An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship

38 Pages Posted: 13 Jul 2011 Last revised: 3 Oct 2012

Date Written: July 12, 2011

Abstract

Derogating legal scholarship has become something of a sport for leading figures in the federal judiciary. Perhaps the chief antagonist in recent years has been none other than the Chief Justice of the U.S. Supreme Court, John G. Roberts Jr. His most recent salvo includes the claim that because law review articles are not of interest to the bench, he has trouble remembering the last law review article he read. This claim, and others by the Chief Justice, may represent the end of an uneasy détente concerning the topic of the utility of legal scholarship to the bench and bar. At a minimum, Justice Roberts’s recent comments represent a vigorous invitation to a discussion, which this article accepts. To that discussion we contribute an empirical study that is based on an original and unprecedented body of data derived from every Supreme Court decision over the last sixty-one years. This article presents several surprising results and makes two major novel contributions. The first is evidence describing the amount and patterns of the Supreme Court’s use of legal scholarship over the last sixty-one years. The second, and perhaps most striking contribution of this article, is empirical evidence on the nature and quality of the Court’s use of scholarship. This article provides the first report, as far as we can determine, of evidence that the Supreme Court not only often uses legal scholarship, it also disproportionately uses scholarship when cases are either more important or more difficult to decide. It thus presents results strongly counterintuitive to claims that scholarship is useless or irrelevant to judges and practitioners. The article also discusses areas for future work.

Keywords: Supreme Court, Empirical, Courts, Judges, Law & Courts, Development of Law, Jurisprudence, Law & Society, Legal Scholarship, Use of Legal Scholarship, Law Reviews, Law Journals, Legal Academy

Suggested Citation

Petherbridge, Lee and Schwartz, David L., An Empirical Assessment of the Supreme Court’s Use of Legal Scholarship (July 12, 2011). Northwestern University Law Review, Vol. 106, Page 995; Loyola-LA Legal Studies Paper No. 2011-31. Available at SSRN: https://ssrn.com/abstract=1884462

Lee Petherbridge (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-8194 (Phone)
213-380-3769 (Fax)

David L. Schwartz

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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