Judges Cite Law Review Articles — But Does This Demonstrate an Article’s Persuasiveness, or Confirmation Bias?

July 20th, 2011

There is an interesting article on SSRN titled An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship. The article shows that contrary to the Chief’s arguments to the contrary, courts do cite Law Review articles:

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 none other than the Chief Justice of the U.S. Supreme Court, John G. Roberts Jr. His 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, Justice Roberts’s recent comments represent a vigorous 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 article presents several surprising results and makes two major novel 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 Supreme 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 strongly counterintuitive to claims that scholarship is useless or irrelevant to judges and practitioners. The article also discusses areas for future work.

Now I agree with the authors that articles are “useful” to judges. But what does it mean for an article to be useful? And this question, is quite meta. Are Judges citing on articles because they are persuasive, or because they reflect the position that the Judge wants to support.

Can you imagine some judge laboring over a tough case, unsure how to decide it, reading a law review article, and screaming, Eureka! that’s how the case should be decided? Or, is it more likely that a Judge has decided how a case should turn out, there is a lack of case law supporting his or her position, so he asks the law clerks to find secondary sources, such as law review articles that confirm and support that position.

In this sense, are articles persuasive, or do they merely reflect a confirmation bias?

In certain Supreme Court cases, where there is no precedent on point–that’s probably why the case is at the Supreme Court in the first place–citations to articles make sense. Judges like to support their opinions somehow.

Now, what would be fascinating is a study about the opinions that do not cite law review articles,and cannot rely on previous precedents. How do they justify the validity of their opinions?