Law Review Scholarship in the Eyes of the Twenty-First Century Supreme Court Justices: An Empirical Analysis

An analysis of the twenty-first century Justices’ citations of law review scholarship—how often they cite articles, the professional identities of authors of the cited articles, and the rankings of the law reviews in which the cited articles appear—provides an excellent prism through which to assess today’s law reviews. In addition to having had varied and rich legal careers as practitioners, policy-makers, and lower court judges, the majority of the current Justices were, at earlier points in their careers, full-time law professors. Presumably, the Justices are able to separate the wheat from the chaff in the law reviews. The present study examined whether something meaningful can be gleaned from an analysis of the modern Justices’ practice of citing law review articles. This article describes the results of an empirical study of the nearly two thousand “signed” opinions authored by the Justices—majority opinions, plurality opinions, concurring opinions, and dissenting opinions issued after oral arguments—dated between January 1, 2001, and December 31, 2011, which cited at least one American law review article. Opinions were coded to determine the following: (1) whether one or more law review articles (including law student “notes” or “comments”) were cited in the opinions; (2) which Justices wrote the opinions citing law review articles; (3) the professional status of the articles’ authors at the time that the cited articles were published (as a full-time law professor, legal practitioner, judge, law student, or “other”); and (4) the ranking of the law reviews that published the cited articles according to Washington and Lee University School of Law’s “combined score” ranking system (the “W\u26L” system). The results of this coding project are contained in a lengthy appendix to this article, which lists all 1,023 cited articles in the 1,961 opinions issued in 792 cases. The present study demonstrates that the Justices in the twenty-first century have cited law review articles less frequently than their predecessors did in the 1970s and 1980s, when at least one Justice’s opinion in approximately half of the Court’s cases cited one or more law review articles (with an average of 0.87 articles cited per opinion). During the first decade of the twenty-first century, one or more Justices cited at least one article in 37.1% of the Court’s cases (with an average of 0.52 articles cited per opinion). In 21.3% of the Court’s cases, one or more law review articles were cited in the majority opinion. Justices considered “liberal” in their judicial philosophies cited law review articles in their opinions much more frequently than did Justices considered judicial “conservatives.” Of the cited articles in opinions issued between 2001 and 2011, 61.62% of authors were full-time law professors, while 38.38% were law students, legal practitioners, judges, or persons who were not primarily associated with the bench, bar, or legal academy (including researchers with think-tanks and full-time professors from departments in a university other than a law school, such as economists, historians, and political scientists). An examination of the authors who were not full-time law professors revealed that the four sub-groups each constituted roughly one quarter of the total. With respect to ranking of the law reviews in which the cited articles were published, the mean W\u26L ranking of the cited articles is 91; the median is 21; and the mode is 1. The mode ranking means that the top-ranked law review, Harvard Law Review, was cited the most times (102 times, or 10.1%) among the 1,023 total citations. Although “elite” law reviews were cited in disproportionate numbers—articles in the top-ten law reviews were cited 384 times (or 37.5% of the 1,023 citations)—the Justices cited over 100 articles appearing in law reviews ranked at 300 or below. Data from an earlier study of cited law review articles in the 1970s through 1990s, when compared with data from the present study, show that the Justices have cited articles published in “elite” law reviews at a steadily declining rate since 1970 and have cited articles in lower-rank reviews at a much greater rate, particularly in the last decade. In sum, the current Justices have cited law review articles with less frequency than their predecessors did in the three decades before, which suggests that the current Justices may view current law review scholarship as generally less useful than the members of the Court did a generation ago. Nearly four out of ten of the authors of the cited articles were not full-time members of the legal academy. Considering that writing law review articles is the primary activity of America’s ten thousand-plus full time law professors, the fact that the Justices cite so many articles written by other authors permits the inference that much of the professiorate’s scholarship does not have value or relevance to the Justices (or to the bench and bar generally). The Justices also have cited articles from the full gamut of law reviews in the rankings, including many law reviews that are not deemed “tenure-worthy,” at least from the perspective of the hiring and promotion committees at many “elite” law schools