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Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases

51 Pages Posted: 26 Jul 2010 Last revised: 27 Mar 2013

Michelle M. Harner

University of Maryland Francis King Carey School of Law

Jason A. Cantone

Federal Judicial Center

Date Written: July 26, 2010

Abstract

Commentators have observed two apparent trends in the use of legal scholarship by the judiciary. First, judges now cite law review articles in their opinions with less frequency. Second, despite this general decline in the invocation of legal scholarship, judges now cite articles in specialty journals with more frequency.

Some commentators attribute the apparent decline in the courts’ use of legal scholarship to the increasingly theoretical and impractical nature of that scholarship. A few studies even suggest that the increasing use of specialty journals by the courts reflects the gap between the content of legal scholarship in general law reviews and the practical needs of the judiciary. Others defend the academy, taking the position that academics continue to write meaningful doctrinal articles and that theoretical and interdisciplinary pieces encourage broader intellectual discourse regarding legal issues.

This study analyzes and refutes the claim of the diminishing role of legal scholarship in the context of business law cases. Specifically, the study focuses on the use of legal scholarship by Delaware state courts from 1997 to 2007 and then on an interval basis dating to 1965. The study finds no general downward trend in the use of legal scholarship in business law cases. Moreover, the study undertakes a detailed analysis of factors predicting a court’s likelihood to cite legal scholarship. Overall, the study provides a unique insight into when, why and how courts invoke legal scholarship in business law cases and, consequently, may help inform future scholarship intended to influence court decisions in this discipline.

Keywords: legal scholarship, intellectual discourse, citations

Suggested Citation

Harner, Michelle M. and Cantone, Jason A., Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases (July 26, 2010). University of Miami Business Law Review, Vol. 19, 2010; U of Maryland Legal Studies Research Paper No. 2010-29. Available at SSRN: https://ssrn.com/abstract=1648987

Michelle M. Harner (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States
410-706-4238 (Phone)

Jason A. Cantone

Federal Judicial Center ( email )

Washington, DC 20002
United States

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