Adam Liptak, in the NYT, penned an interesting article on the declining level of usefulness that law review articles appear to have in judicial opinions. (Orrin Kerr has a nice post on the article.)
Various quotes in the article make clear that some members of the judiciary do not find law review articles particularly helpful in deciding cases. I would like to think that that is more reflective of the substance of many of the well-placed law review articles than it is of the value of law review articles as a genre.
I say this as an academic who favors doctrinal work and who has gone so far as to say somewhere in one of my articles on securities fraud that the whole point of writing the article was to help the court and the bar make their way through securities fraud claims. I have taken a bit of flack from a few scholars who look down on doctrinal work, yet my sense has always been, and the quotes from the judiciary in the NYT article seem to confirm, that doctrinal work has the potential to be incredibly valuable in the courts.Â
For example, my writing on telecomm and on securities fraud – all of which is doctrinal – has been cited by courts. I would like to flatter myself by thinking that the recent Mass. district court judge who cited my securities fraud work in passing (see In re Credit Suisse-AOL Secs. Litig., 465 F. Supp.2d 34 (D.Ct. Ma. 2006)) actually read my work for its substance (which led to the analyst liability claims *not* being dismissed). I would like to believe that I am achieving my goal of explaining a more sensible way to examine securities fraud claims in the context of one-off actors (e.g. investment banks, auditors, lawyers), and I would like to think that, if academics produce articles that are helpful (as opposed to purely descriptive, etc.), they will be relied upon as such.
The ball, then, seems to partially rest with the second- and third-year law students who select the articles that their law journals will publish. What is the chance that the student editors of the “top” law reviews are going to read the NYT article and start looking for good academic work that has practical value to the bench, bar, and/or legislature? When choosing between articles titled “Going Private Transactions and Fiduciary Duties” and “A Countermajoritarian Analysis of the Ellsworth Court, Federalism and the Eleventh Amendment,” perhaps law review editors might consider the potential practical value of the articles in molding the evolution of the law. (I am not suggesting that an article providing a countermajoritarian analysis of the Ellsworth court and the 11th Amendment would not help mold the law, by the way.)
Thanks to my colleague Mark Drumbl for bringing this NYT article to my attention.