The Right Coast

June 16, 2005
Of Blogs and Stare Decisis
By Tom Smith

What do blogs and stare decisis have in common? Just as some blogs (Instapundit, DailyKos, etc.) get a lot more hits and links than others, so some cases get cited more than others, a lot more. In fact, a lot, lot more. I recently did some calculations on my Web of Law data and found to my shock that a mere 1000 of the total of more than 4 million state and federal cases get 80 percent of all citations. The vast majority of cases are dead -- they have never or rarely been cited and will almost certainly never be cited again. For USSC cases, it is the same story. A mere 2 percent of USSC cases get 96 percent of all cites to USSC cases. I don't know about you, but this rather changes the way I think about stare decisis. Shouldn't it? I'm not exactly sure what I thought before I knew this, but I think I just assumed most cases had some fate other than complete oblivion. In any event, in the interests of self promotion, the revised version of my paper is here. It has these numbers, plus some charts showing this phenomenon occurs on every jurisdictional level, federal to state.

I also strongly suspect the same distribution characterizes legal scholarship. I am trying to get the data now. It will turn out, I betcha, that the vast majority of law review articles rarely or never get cited. The top 5 percent of articles (cite wise) will get maybe 90 percent of all cites, or something equally shocking. The physics scholarship network has such a highly skewed distribution. Does this mean that legal scholarship is a waste of time? It doesn't seem to have slowed down physicists much. If an article gets cited say, six times in total, does that mean it was wasted effort? (Top articles get cited thousands of times.) Hmmmm. "Is Legal Scholarship a Waste of Time?" sounds like the title of a law review article that might appeal to student editors.