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March 20, 2007
YESTERDAY'S DISCUSSION of how courts are citing law review articles less and less often -- especially damning given the exploding number of law reviews, and the growth in caseloads -- produced a number of interesting points, including this post by Eugene Volokh on whether law professors should even care whether their articles are cited by courts.
I would say that the answer depends on how wide your focus is. Whether any particular article is cited by courts doesn't matter much, and many articles aren't really suitable for court citation. My Columbia Law Review piece on chaos theory and the evolution of Supreme Court doctrine, for example, isn't the sort of thing that a judge would cite, but I think it was kind of a neat little piece. Likewise, this piece on "penumbral reasoning" as employed by right-leaning judges isn't likely to be cited much, except perhaps in a separate opinion by a left-leaning judge who wants to get a shot in.
Other stuff's different. Some of my Second Amendment writing -- like this piece -- has been cited by courts because it's straightforward doctrinal analysis. (This piece, too). It all depends on what you write, and what winds up in courts.
But for the legal-academic profession as a whole, the decline is worrisome, because it does suggest that we're talking to ourselves, and not producing insights that people outside the legal-academic profession care about very much. (I suppose that lots of people other than judges could be devouring law reviews eagerly -- er, but how likely is that, really?) So I do think that we should take it as a warning sign that legal academia is getting too divorced from legal practice, and revisit our work -- and our curricula -- with that in mind. I'm all for writing interesting stuff of no particular judicial application -- otherwise I wouldn't write about chaos theory or evolutionary biology -- but I do try to mix things up and also address doctrinal issues at times.
Ultimately, legal education is about the practice of law. I don't think it's bad that academics write about things beyond this narrow focus, but it's worrisome when the profession as a whole is looking this disconnected from the real world.