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96 Cornell L. Rev. 1345 (2010-2011)
The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study

handle is hein.journals/clqv96 and id is 1359 raw text is: THE USE OF LEGAL SCHOLARSHIP BY THE FEDERAL COURTS OF APPEALS: AN EMPIRICAL STUDY David L. Schwartzt & Lee Petherbridge Ph.D.tt ChiefJustice John Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not particu- larly helpful for practitioners and judges. Chief Justice Roberts's criticism echoes that made by other judges, some of whom, likeJudge Harry Edwards, have been much more strident in the contention that legal scholarship is largely unhelpful to practitioners and judges. Perhaps inspired by criticisms like those leveled by ChiefJustice Roberts and Judge Edwards, legal scholars have sought to investigate the relevance of legal scholarship to courts and practitioners using a variety of means. One avenue of investigation has been empirical, where several studies using different and sometimes ambigu- ous methodologies have observed a decrease in citation to legal scholarship and interpreted that observation to mean that legal scholarship has lost rele- vance to courts and practitioners. The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original data set that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the federal circuit courts of appeals over the last fifty-nine years. It finds a rather surprising result. Contrary to the claims of ChiefJustice Roberts and Judge Edwards, and con- trary to the results of prior studies, this study finds that over the last fifty- nine years there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explana- tions for courts' increased use of legal scholarship. f Assistant Professor of Law, Chicago-Kent College of Law. tt Professor of Law, Loyola Law School Los Angeles. The authors wish to thank Chris- topher Buccafusco, Ralph Brill, Kevin Clermont, Gary Edmond, the Honorable Harry Ed- wards, Ted Eisenberg, Andrew Gold, June Liebert, Raizel Liebler, Dan Martin, John Meixner, Minor Myers, the Honorable Richard Posner, Jason Rantanen, Brian Ray, Cesar Rosado, Matthew Sag, Carolyn Shapiro, Louis Sirico, Gregory Sisk, Michael Solimine, Ron Staudt, Richard Wise, Richard Wright, Corey Yung, and the participants at the Fifth An- nual Conference on Empirical Legal Studies, the Law & Society 2010 Annual Meeting, the 2010 Midwest Law & Society Annual Retreat, and workshops at the University of Cincinnati College of Law and Chicago-Kent College of Law for their helpful comments concerning this study and earlier drafts. The authors also thank Tom Boone, Loyola Librarian, and Tom Gaylord, Chicago-Kent Librarian, as well as Rose Ohanesian, Matthew Rudolph, Rich- ard Tuminello, and Teresa Clark for excellent research assistance. 1345

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