Wednesday, April 23, 2008

Fun: What Frequently Cited Law Review Article Has Had The Biggest Influence In The Courtroom?

This blog has previously discussed what popular television show has appeared most frequently in the pages of the Federal Reporter. Prompted by this recent trivia post at PrawfsBlawg, I decided to see if the law review articles that had a major effect within academia also had a similar effect outside the ivory tower, more specifically, in the courtroom.

I selected the top thirty articles as listed on PrawfsBlawg and described in Fred Shapiro’s 1996 law review article. Some of these articles were too old to be included in the Westlaw database themselves, so I could not use the citing references tool. Instead, I structured a search looking for the author’s last name within a paragraph of the title within a paragraph of one of the journal identifiers within a paragraph of the year of publication. For example, the search for the law review article most cited in other articles was: Coase /p “The Problem of Social Cost” /p Econ! /p 1960. I performed this search within the allcases and cta databases of Westlaw separately.

My table of results can be found here (PDF). Looking at the data, three quick conclusions came to mind. First, it is good to be a Justice – even your academic writings are frequently cited in court materials. The top two articles were published over a century ago, and only three of the top ten were published after 1970. Four of the top five also deal with issues of individual rights, whereas the fifth deals with the study of law as a science. These facts lead to the second conclusion – law review articles were more influential in the past, when they dealt with black-letter law. For more on this phenomenon, see here (NY Times article), here (Volokh discussion and linkwrap), and here (.PDF study). The final conclusion is not all that surprising. Some of the articles which have proved the most influential in the academy have not been able to reach outside the ivory tower and into the courtroom. (This author thinks that might be for the better).

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