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51 Okla. L. Rev. 659 (1998)
The Declining Use of Legal Scholarship by Courts: An Empirical Study

handle is hein.journals/oklrv51 and id is 669 raw text is: THE DECLINING USE OF LEGAL SCHOLARSHIP BY COURTS: AN EMPIRICAL STUDY MICHAEL D. MCCLINTOCK* I. Introduction In 1931, Judge Cardozo, in describing what he viewed as the prejudice held by judges and practitioners toward law reviews, stated the following: The law-review essay has felt beyond the common lot the repressive cruelty of prejudice. There has been prejudice against it on two grounds - prejudice because it was not bound, and prejudice because its authors, for the most part, were not practitioners, but teachers. If the prejudice on the score of paper were up rooted, there would remain, as I have said, another: the distrust of the dominie, the recluse, the academic scholar. For a long time the practicing lawyers, and the judges, recruited for the most part from the ranks of the practitioners, were suspicious that there would be a loss of practical efficiency if the teachers in the universities were not made to know their place. At the worst they might be philosophers, and they were theorists at best. In part the distrust was of a piece with a belief that man thinking is less efficient than man doing! Despite this lachrymose view of law reviews, the bias against them faded as the law review became a recognized secondary authority in judicial opinions.2 Today, however, many of the same issues that formed this early prejudice and framed the debate over the utility of law reviews have appeared again. Judges and practitioners increasingly feel that there is a lack of legal scholarship that they can use when they face their daily case loads. They complain that academia is losing touch with the practice of law.3 Academics, on the other hand, argue that they are taking the study of law to a higher level. No longer teaching simply doctrine, professors are * Attorney, McAfee & TaI Oklahoma City, Oklahoma. Judicial Clerk, Honorable Judge Robert H. Henry, United States Court of Appeals for the Tenth Circuit, Dec. 1998 to Dec. 1999. J.D. Summa Cur Laude, 1998, Oklahoma City University. B.S., 1992, United States Merchant Marine Academy, Kings Point, New York. The author would like to thank Professor Alfred Brophy, Professor Michael Gibson, and Andrew Lester for their comments and criticisms, and Monique McClintock for her patience and understanding. 1. Benjamin N. Cardozo, Introduction to SELECTED READINGS ON THE LAW OF CONTRACTS FROM AMERICAN AND ENGLISH LEGAL PERIODICALS at vii-viii (Association of American Law Sch. ed., 1931) (noting further that law reviews are viewed with a jaundiced eye because they are more like pamphlets than bound treatises). 2. See infra notes 10-66 and accompanying text. 3. See infra notes 68-115 and accompanying text.

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