The use of legal scholarship by the federal courts of appeals: An empirical study

Chief Justice John Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not particularly helpful for practitioners and judges. Chief Justice Roberts's criticism echoes that made by other judges, some of whom, like Judge 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 Chief Justice 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 ambiguous methodologies have observed a decrease in citation to legal scholarship and interpreted that observation to mean that legal scholarship has lost relevance 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 Chief Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last fiftynine 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 explanations for courts' increased use of legal scholarship.