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).

Fun: Split on the Supreme Court’s Role?

Within the last week, it appears that a circuit split is developing on whether Supreme Court decisions provide helpful guidance. Compare United States v. Carty, 2008 WL 763770, *21 (9th Cir. Mar. 24, 2008) (en banc) (“The Supreme Court is in the business of resolving circuit splits, not inviting them.”) with Card v. City of Everett, 2008 WL 783783, *26 (9th Cir. Mar. 26, 2008) (Fernandez, J. concurring) (“I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials. Alas, even my redoubtable colleague cannot accomplish that.”) (discussing establishment clause principles) and Robbins v. Hendrick, 2008 WL 747132, * (10th Cir. Mar. 21, 2008) (“We are not the first to acknowledge that the new formulation is less than pellucid.”) (discussing Twombly). Will the Supreme Court grant cert to issue a split plurality opinion that it offers clear and instructive help to the appellate courts?

In other news, this blog has just passed 1000 unique visitors and gone international, having recently received visits from Australia, Bosnia-Herzegovina, and Canada. Most visitors still come from the United States Federal Courts, accounting for over 200 unique visits. Many thanks to all of those who have helped me to start up, especially (all links on sidebar) Appellate Law & Practice, California Blog of Appeal, Obsidian Wings, Sentencing Law & Policy, and Southern Appeal. If anyone has any feedback, or would like to see more coverage of any particular issue, feel free to either email me or comment below.

Pop Culture in the Circuits

Given that the search for any interesting splits netted nothing that struck my fancy in the last two days, I thought I would take a riff off of Judge Rader's citation of South Park or Judge Coar's homage to the Middle Ages and see what elements of pop culture have filtered into the sacred pages of the Federal Reporter.

While Judge Evan's citation to Ludacris (comment 8)to clarify the spelling of 'ho' may win him the all time prize, I decided to see what the Judges (or their clerks) have been watching recently. Can you guess which of the top 20 TV shows for the period 1990-2000 or 2000-present has been cited the most in the last eight years? Answer, with methodology explained, in the comments...