In The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study, the authors, David L. Schwartz (Chicago-Kent) and Lee Petherbridge (Loyola-LA), consider the potentially disconcerting question of whether anyone actually "pays attention" to legal scholarship. While the question's normative dimensions have attracted considerable attention of late, its empirical foundation has been comparatively ignored. This paper addresses one sub-set of the potential audience for legal scholarship--federal appellate judges--from an empirical perspective. The abstract, below, summarizes the paper's key findings.
"The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years – and particularly over the last 20 years – there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explanations for courts’ increased use of legal scholarship."
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