The Right Coast

August 02, 2005
Declining influence of legal scholarship with Court
By Tom Smith

The trend is for the highest (not in the sense of marijuana) Court in the land to cite legal scholarship less and less. The numbers are driven by a precipitous fall in citations to the Harvard Law Review. It is not clear if this is because the Harvard Law Review sucks more than ever before, or if Justices increasingly have a hard time finding scholarship which supports their views. This latter difficulty is much aggravated by the necessity of citations being to already published works. New technologies may allow future courts to insert "dummy" cites, which can later be filled in with post-hoc rationalizations generated by scholars. These after the fact rationalizations are much easier to produce than are predictions of what the Court will want to do.