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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
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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