Publications and citations are essential to the research academic. They help separate experts from novices in a given field. They provide metrics for universities to gauge the quality of their professors’ scholarship. In legal scholarship there is a particularly meaningful measure that distinguishes law from other disciplines: citations in published opinions. Supreme Court citations to law reviews convey the importance of an article to a particular area of law.
One counterargument to the above sentiment involves the potential for instrumental usage of such citations. In some instances these citations may be post-hoc rationalizations for decisions. When these articles are cited by the Supreme Court, however, they inevitably help shape the law and the notoriety that these citations bring can both catalyze future citations of such articles and expose the articles to wider audiences. In short, there are few more exciting outcomes for legal scholars than to have their work cited by the Supreme Court.
In this post, I look specifically at citations to general law review (I exclude specialty law reviews). My search parameters include citations to “law reviews” and “law journals” in all majority and separate opinions and footnotes. This post focuses on the most recent Supreme Court citations to law reviews: from the 2013 Term through April 26, 2016 (there were two such citations in Heffernan v. City of Paterson which was released on April 26, 2016).
In terms of cumulative measures, there were 134 opinions with citations to general law reviews over this time period with 165 total citations or 1.23 citations per opinion with citations. The opinion with the most citations to general law reviews was Glossip v. Gross (2014) with twenty. The Court cited to 61 general law reviews over this period.
To the surprise of few (I assume), law reviews from elite law schools dominated these citations, although maybe not in the order one would predict. A seemingly safe assumption might be that the schools with the most Supreme Court clerks should have the most citations. This was not the case, although some schools were much farther from their ordering in terms of number of clerks than others.
This raises an interesting question that I will not attempt to resolve in this post of where the gatekeeping occurs for which articles the Supreme Court chooses to cite. Put another way, is the Court disproportionately looking to elite law schools’ law reviews for such scholarship (at the expense of examining articles in lesser tiered law reviews) or are there simply more relevant pieces published in these law reviews? These two categories are not mutually exclusive. Still, the causal chain beginning with the publication and ending with the citation is far from clear. The top ten most cited law reviews for this period (eleven in total because there is a three-way tie at number nine with six citations) are:
1) Harvard Law Review: 27 citations in 23 cases
2) Yale Law Journal: 26 citations in 18 cases
3) Columbia Law Review: 16 citations in 12 cases
4) University of Chicago Law Review: 11 citations in 9 cases
5) NYU Law Review: 9 citations in 8 cases
6) Stanford Law Review: 8 citations in 6 cases
7) Michigan Law Review: 7 citations in 5 cases
8) University of Pennsylvania Law Review: 7 citations in 7 cases
9) Georgetown Law Journal: 6 citations in 4 cases
9) Virginia Law Review: 6 citations in 6 cases
9) Texas Law Review: 6 citations in 5 cases
Interestingly, of US News’ top ranked law schools the only top ten school not captured in this list is UC Berkeley (California Law Review). Non-top ten law schools that make this list include Georgetown and Texas.
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On Twitter: @AdamSFeldman