In 1980 the California Supreme Court reviewed a tort claim filed on behalf of women afflicted with cancer because their mothers had taken diethylstilbestrol (DES), a synthetic estrogen, during pregnancy. But, 20 or 30 years after the fact, the plaintiffs could not identify the manufacturer of the DES in question. How could the liability of any individual manufacturer be determined? Justice Stanley Mosk found the answer in a student note published in the Fordham Law Review,
and so a law student's advocacy of market-share liability became the law of California (Sindell v. Abbott Laboratories,
26 Cal. 3d 588 (1980)). Likewise, when then?Associate Justice Roger Traynor wrote his seminal concurring opinion in Escola v. Coca Cola Bottling Co.
(24 Cal. 2d 453 (1944)), he cited 15 law review articles that discussed various aspects of strict liability for manufacturers.
During California's legal "golden era" of the Gibson and Traynor Courts in the 1950s and '60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court's 1970 opinions, a "sharp increase" over previous years (Merryman, "Toward a Theory of Citations," 50 S. CAL. L. REV. 381 (1977)).
I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite - or perhaps because of - the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley's alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.
As Adam Liptak of the New York Times
observed a few years ago, "Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions - which is to say the practice of law - is beneath them."
Back in 2002, California Supreme Court Chief Justice Ronald M. George and Associate Justice Janice Rogers Brown got into a bit of a dustup over the citing of student-authored law review notes in the court's opinions. (See People v. Mar
(28 Cal. 4th 1201 (2002).) After the Chief cited a student law review note on whether courts can, as a precautionary measure, require defendants to wear electric stun belts, Brown wrote a dissent with a snotty comment: "Were this court to take [courtroom security] seriously, one would hope, with the resources available to us, we could find a better means of informing ourselves than by relying on such secondary sources as a student comment
in a law journal and a Progressive
magazine article that bares its heart in its subtitle-Stunning Technology: Corrections Cowboys Get a Charge Out of Their New Sci-Fi Weaponry.
... A high school student who turned in a research paper with a bibliography like that would be unlikely to get high marks for either the distinction or balance of the authorities cited." (28 Cal. 4th at 1232.)
Chief Justice George responded with a modification to his footnote citing the student note, which read in part: "The St. Mary's Law Journal
comment cited by the Court of Appeal is a lengthy and well-researched article that has been cited in a number of prior judicial decisions. (See, e.g., Hawkins v. Comparet-Cassani,
251 F.3d 1230, 1234 (9th Cir. 2001); Wrinkles v. State,
749 N.E. 2d 1179, 1193 (Ind. 2001).) Its factual description of the REACT stun belt and its operation, of the manufacturer's promotional materials, and of the instances in which the stun belt has been activated are consistent with descriptions reported in numerous other articles."
"Of course," George later added, "it is customary for the opinions of appellate courts to include citations to the published work of student authors." He then cited an opinion in which Justice Brown herself had cited three student notes in the same footnote (28 Cal. 4th at 1215 n.1).
Since four of the six California Supreme Court opinions I found that cited law review articles were authored by Chief Justice George, I asked Jake Dear, the court's chief supervising attorney and George's head staff attorney, for his take on how useful these publications are. Dear, himself a former editor-in-chief of the UC Davis Law Review,
replied: "In the past two decades, I've included in my drafts very few cites to law review articles or notes because, frankly, I find very few to be relevant or useful to the issues that confront the court."
And when Dear did
find a useful article, it was just as likely to be authored by a student as by a law professor. This left him with the distinct impression that "many law professors do not deign to write anything of practical use, but instead leave such pedestrian matters for students."
Recently, the staff of the Cardozo Law Review
surveyed articles in five leading law reviews: California (UC Berkeley), Columbia, Harvard, NYU, and Yale. Comparing what was published in 1960 with what was published in 2000, the editors assessed articles as "practical" if they addressed doctrinal questions of law or concrete solutions to relevant legal problems, and "theoretical" if they related to abstract legal issues or focused on the intersection of law and other disciplines. The count for 1960 was 48 practical, 21 theoretical. The count for 2000 was 6 practical, 68 theoretical. To some extent, this trend reflects the hiring patterns at law schools across the country, where a PhD is valued more than years of professional practice. Which raises an obvious question: Why do we now entrust the training of lawyers to professors who were so eager to leave the practice of law behind?
At the University of Chicago, law professor Brian Leiter produces much-watched law faculty rankings that measure "scholarly impact" by the number of citations in law reviews rather than in court opinions (see
www. leiterrankings.com). So, in effect, the scholarship that these highly ranked law professors churn out is for other law professors to read.
In another navel-gazing exercise, Fred R. Shapiro measured the 50 most-cited law review articles by counting their citations in subsequent law review articles. The winner was Gerald Gunther's foreword for the Harvard Law Review
analysis of the U.S. Supreme Court's 1971 term (Shapiro, "The Most-Cited Law Review Articles," 73 CAL. L. REV. 1540 (1985)). In an equally exciting sequel, he compiled "The Most-Cited Law Reviews" (29 J. LEGAL STUDIES 389 (2000)). At the top of the list was the Yale Law Journal.
By coincidence, Shapiro is a librarian at Yale Law School. (For a tongue-in-cheek critique of Shapiro's work, see Balkin & Levinson, "How to Win Cites and Influence People," 71 CHICAGO-KENT L. REV. 843 (1996).) With all due modesty, though, I must confess that it was my own entry into this competition that ran away with the title of most-cited law review article of all time. At last count, I had 8,407,309 citations in law reviews. I achieved this remarkable feat simply by titling my article "Id," and including an instruction that the article could be cited simply by title, without any reference to author, volume, or page numbers (see 1992 BYU L. REV. 335 (1992)).
Of course, there are still a few law professors who would rather publish for practicing lawyers and judges than just for other professors. But given the way the academic game is played these days, they do so at their peril - particularly if they are seeking tenure. Still, law reviews are in no danger of disappearing anytime soon. After all, big law firms and elitist judges continue to demand "law review experience" as a prerequisite for hiring. The publication of student notes also provides a vehicle to enhance badly needed writing skills for barely literate law students. But in terms of contributing to the profession, most law reviews are simply a waste of trees.
Gerald F. Uelmen is a professor of law and former dean at Santa Clara University School of Law.