What better time to write a blog post than when you are drafting an article on the topic?
Way back in 2013 I read a NY Times article by Adam Liptak lambasting the law review as arcane and not useful to the practice of law (The Lackluster Reviews Lawyers Love to Hate, 10/21/2013).
Immediately, as a good law librarian I was offended. This article has lived rent free in head now for years. I have always used law reviews for research on specific topics and mined them for plenty of primary sources. I have also come across an article that was used by the profession decades after it was published because it contained the only legislative history on a particular piece of legislation in that state– The West Virginia Consumer Credit and Protection Act, 77 W.Va. L. Rev. 401 (1975). I had the pleasure of working in the same state law library alongside the clerks of the court who all consulted law reviews in their work. Finally, I have never met a law professor who was not excited about their articles in law reviews.
So, while I had done some preliminary research for a few states for a poster session at an AALL annual meeting conference, I had mostly let the issue lie fallow. Finally, this year I started looking into the topic with more gusto. I decided to look at all fifty states’ Supreme Court decisions. My thinking was that since there were several articles that looked at US Supreme Court decisions, it would be better to look at the states’ Supreme Courts. I was going to do the most recent ten-year period but then decided to do 2014-2024 technically eleven years because in 2020 across all jurisdictions caseloads were significantly lower than normal.
I ran searches for all the cases in each jurisdiction within the 2014-2024 date range, then ran the same search with the addition of search terms designed to get all the hits for law reviews. I next went through each hit to see where in the opinion the hits were coming (Majority, Concurrence and Dissent), and to make sure there were not mishits.
My “theory of the case” was we would get significant percentages of cases in which a law review was cited. Significance is relative, I think five percent or more is significant because if a lawyer is arguing in front of a court and the court cites law reviews in at least one out of twenty decisions, it behooves the lawyer to consider these publications in their research.
Thus, categories I broke results into were:
- Very Significant – over 10%
- Significant – 5-10%
- Not as Significant – 1-4.99%
- Not Significant – under 1%
I also thought most of the hits would be in concurrence and dissent opinions. My thought process here was that judges not siding with the majority would look to many sources, including law reviews to make their argument.
While the reader will have to wait for the full article for more details, I will share some of the results. In short, the results were not what I expected on a few levels. In terms of where the hits show up in the opinion, in forty-three out of the fifty states most hits showed up in the majority part of the opinion.
Just thirteen out of fifty states came in as significant or very significant for the above categories I created. However, Iowa had a whopping thirty-one percent of cases citing law reviews for that period. Tennessee came in second with twenty-two percent of cases citing law reviews.
Texas and Oklahoma both split their supreme courts in two for civil and criminal appeals. Thus, I recorded results for these two states under civil and criminal and then a third combined number. I only used the combined number to compare state to state. However, it is interesting to note that Texas civil came in the very significant category and Oklahoma civil and Oklahoma overall fell in the significant category.
States with high caseloads tended to be in the not significant category. Also, a good amount of the states fell into the same category as states that bordered them possibly signifying similar judicial philosophies.
Further research on this topic will be beneficial to the bar and academic communities alike. Ideas for such research I have thought about are:
- Different time periods for all fifty states.
- Longer time periods for one state—compare how it has changed over a period of time.
- Lower State court appellate decisions.
- Federal appellate (Circuit comparisons).
- Interviews with Clerks and Justices to get their opinions on law reviews.
