An empirical Assessment of the Supreme Court's use of legal scholarship

Lee Petherbridge*, David L. Schwartz

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

9 Scopus citations

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 détente 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.

Original languageEnglish (US)
Pages (from-to)995-1032
Number of pages38
JournalNorthwestern University law review
Volume106
Issue number3
StatePublished - Oct 5 2012

ASJC Scopus subject areas

  • Law

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