Citation Stickiness

20 Journal of Appellate Practice & Process, Forthcoming

UNC Legal Studies Research Paper

60 Pages Posted: 7 May 2019 Last revised: 23 Jul 2019

See all articles by Kevin Bennardo

Kevin Bennardo

University of North Carolina School of Law

Alexa Chew

University of North Carolina School of Law

Date Written: April 19, 2019

Abstract

This Article is an empirical study of what we call citation stickiness. A citation is sticky if it appears in one of the parties’ briefs and then again in the court’s opinion. Imagine that the parties use their briefs to toss citations in the court’s direction. Some of those citations stick and appear in the opinion — these are the sticky citations. Some of those citations don’t stick and are unmentioned by the court — these are the unsticky ones. Finally, some sources were never mentioned by the parties yet appear in the court’s opinion. These authorities are endogenous — they spring from the internal workings of the court itself.

In a perfect adversarial world, the percentage of sticky citations in courts’ opinions would be something approaching 100%. The parties would discuss the relevant authorities in their briefs, and the court would rely on the same authorities in its decision-making. Spoiler alert: our adversarial world is imperfect. Endogenous citations abound in judicial opinions and parties’ briefs are brimming with unsticky citations.

So we crunched the numbers. We analyzed 325 cases in the federal courts of appeals. Of the 7552 cases cited in those opinions, more than half were never mentioned in the parties’ briefs. But there’s more — in the Article, you’ll learn how many of the 23,479 cases cited in the parties’ briefs were sticky and how many were unsticky. You’ll see the stickiness data sliced and diced in numerous ways: by circuit, by case topic, by an assortment of characteristics of the authoring judge. Read on!

Keywords: citation practice study, federal courts of appeals, judicial decison-making, judicial opinion-writing

Suggested Citation

Bennardo, Kevin and Chew, Alexa, Citation Stickiness (April 19, 2019). 20 Journal of Appellate Practice & Process, Forthcoming; UNC Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3375050

Kevin Bennardo (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

Alexa Chew

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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