Law Reviews vs. the Courts: Two Thoughts from the Ivory Tower

Abstract:     
Much has been made recently of the charge by federal judges that law reviews have become all-but-irrelevant to contemporary judicial decisionmaking, and that, as Second Circuit Judge Robert Sack put it, even when judges do use law reviews today, they use legal scholarship the same way drunks use lampposts - for support rather than illumination.

This short essay - prepared for the debut of CONNtemplations, the online companion to the Connecticut Law Review - considers the possible role that the ever-shrinking scope of judicial discretion may have on the ability of jurists today to rely upon legal scholarship. Although the recent trend toward the cabining of judicial discretion cannot fully account for the extent to which judges are finding law reviews increasingly inaccessible, the essay suggests that far more attention should be paid to the effects vis-a-vis legal scholarship of this well-documented trend toward more rigid judicial decisionmaking.

Moreover, to whatever extent that there is a correlation between the decline of judicial discretion and the growing complaints that legal scholarship is irrelevant and inaccessible, the essay suggests that online companions, such as CONNtemplations, may help make legal scholarship more accessible to those in the best position to use it - to practitioners.

Accepted Paper Series