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106 Nw. U. L. Rev. 995 (2012)
An Empirical Assessment of the Supreme Court's use of Legal Scholarship

handle is hein.journals/illlr106 and id is 1019 raw text is: Copyright 2012 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 106, No. 3 Articles AN EMPIRICAL ASSESSMENT OF THE SUPREME COURT'S USE OF LEGAL SCHOLARSHIP Lee Petherbridge & David L. Schwartz ABSTRACT-Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been the Chief Justice of the U.S. Supreme Court, John G. Roberts, Jr., whose most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy detente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Chief Justice Roberts's recent comments represent an invitation to a discussion, which this Article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This study makes two major contributions. The first is evidence describing the amount and patterns of the Supreme Court's use of legal scholarship over the last sixty-one years. The second, and perhaps most striking, contribution of this Article is empirical evidence on the nature and quality of the Court's use of scholarship. This Article provides the first report, as far as we can determine, of evidence that the Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results that contradict claims that scholarship is useless or irrelevant to judges and practitioners. AUTHORS-Lee Petherbridge is a Professor of Law and Richard A. Vachon, S.J., Fellow at Loyola Law School Los Angeles. David L. Schwartz is an Associate Professor of Law at Chicago-Kent College of Law. The authors wish to thank Jeff Amestoy, Carlos Berdejo, Pamela Corley, Michael Guttentag, Sam Zyontz, Shane Gleason, Kimberly West- Faulcon, Laurie Levenson, Samuel Pillsbury, Allan Ides, Ellen Aprill, Aaron Caplan, Georgene Vairo, Karl Manheim, Robert Hume, Carolyn Shapiro, and the Honorable Richard Posner for helpful comments concerning this study and earlier drafts. The authors also thank our librarians Tom Boone and Tom Gaylord, as well as Paul Cohen, Crystal Coveney, Laura Foody, Anderson S. Jonas, Lauren Locke, Matt Robinson, Gagik Stepanyan, Jacek Wnuk, Rose Ohanesian, Matthew Rudolph, Richard Tuminello, and Sam Cook for excellent research assistance.

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