The Declining Relevance of Legal Scholarship

It has been a long-running theme of mine that academic social science, which at its birth promised to bring “scientific” research to bear on solving practical human problems, is increasingly detached from the real world and of almost no use to the larger world. Partly this is because of defects or limitations of positivist social science, the overwhelming leftist bias of most academic social scientists, and the deliberate aloofness of many academics from the real world, where obscurity and hyper-specialization is now prized over engagement with the real world. (Just see what happens to professors like Harvard’s Steven Pinker who dare to publish a trade book that reaches a mass audience.)

This is not a new problem. I have previously enjoyed citing Harvard graduate Robert F. Kennedy, who remarked in the early 1960s that “I majored in Government at Harvard and never learned anything which helped me in practical political situations or in overseas travel thereafter. How can universities answer this problem?”

This is preface for noting an interesting new study about the declining influence of legal scholarship on the judiciary in ways that parallel the irrelevance of social science. “May It Please the Court: A Longitudinal Study of Judicial Citation to Academic Legal Periodicals,” by University of Buffalo School of Law professor Brian Detweiler, finds that there is a long-term decline in the number of law review articles cited in federal court opinions—especially from the most elite law schools such as Harvard and Yale. Meanwhile, citations from law reviews of lesser ranked law schools have held steady. What does that tell you?

From the abstract:

This study shows that as the percentage of reported cases citing to at least one academic law journal article has decreased since the mid-1970s, so too has the proportion of reported cases citing to the leading journals of the elite law schools included in this study. At the same time, citation rates for law reviews of exemplar schools for Tiers I-IV remained relatively stable throughout.

And here are the charts:

In other words, real world judges are not finding law review articles by our top legal scholars to be of much use in crafting rulings. This ought to be a mild embarrassment to the elite legal academy, but won’t be. Law schools are professional schools, meant to educate members of the bar in the practicalities of the profession. Increasingly many law professors think of themselves more a political philosophers, and write accordingly.