The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study

By Professors Lee Petherbridge & David Schwartz

Legal scholarship has been under sharp attack, particularly when it comes to the role some believe it should play in support of the legal profession. In recent remarks, Chief Justice John Roberts explained that he does not pay much attention to it, reportedly stating that legal scholarship is not "particularly helpful for practitioners and judges." Moreover, Chief Justice Roberts is not alone in his criticism. Judge Harry Edwards has characterized legal scholarship coming from "elite" law faculties as "abstract scholarship that has little relevance to concrete issues, or addresses concrete issues in a wholly theoretical manner" and offered his impression that judges, administrators, legislators, and practitioners have little use for much of the scholarship.

[Click here to continue reading about the findings of their study at Cornell Law Review's Legal Workshop.]

Professors Petherbridge and Rantanen argue that the America Invents Act could be counterproductive

By Professors Lee Petherbridge & David Schwartz

Professor Lee Petherbridge is involved in a debate on PENNumbra, a University of Pennsylvania Law School project (originating with their law review) that hosts debates between scholars on current controversies. He and Professor Jason Rantanen of the University of Iowa College of Law have asserted that despite its stated goal to stimulate innovation and job creation, the America Invents Act (recent patent reform legislation) may well do just the opposite. In response, Professor Kesan (Illinois) examines other sections of the Act, arguing that they provide more reason to be optimistic.
In the piece, the professors argue that:

"All rules are distortive. In perhaps no instance is this idea more true than when it comes to the patent system. In a very fundamental sense, the system is nothing more than a set of rules imposed for the very purpose of affecting the behavior of economic actors. Like so many other rules, it has a laudable purpose: the desire to efficiently stimulate invention and innovation.

The purpose of the newly enacted Leahy-Smith America Invents Act (AIA) is to rearrange the rules of the patent system and thus to create a new and different set of benefit and cost possibilities for economic actors. Pub. L. No. 112-29, 125 Stat. 284 (2011) (to be codified in scattered sections of 35 U.S.C.). Unfortunately, the changes in benefits and costs worked by the AIA seem tailored to do two things: (1) discourage the patent-driven incentive to innovate, and (2) protect market power. This suggests the AIA may have a negative effect on American competitiveness and job creation, a disappointing outcome given that Congress's express purpose in enacting the law is to promote technological development and protect the rights of small businesses and inventors."

Read the complete debate on PENNumbra.

Prof. Lee Petherbridge releases study of impact of legal scholarship on Supreme Court

A new study by Loyola Law School Professor Lee Petherbridge and Chicago-Kent College of Law Associate Professor David L. Schwartz details the impact of legal scholarship on the Supreme Court. The study, "An Empirical Assessment of the Supreme Court's Use of Legal Scholarship," is available for download on SSRN.

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 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.

Cornell Law Review to publish Prof. Lee Petherbridge's recent article on judicial impact of scholarship

Associate Professor Lee Petherbridge has just accepted an offer to publish his article The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study in the Cornell Law Review.

Abstract:

Chief Justice 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 the 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 dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years - and particularly over the last 20 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.