It has become fashionable for judges to decry the current state of legal scholarship, complaining that law professors produce almost nothing of value that they can use in deciding cases. One of a series of articles in the New York Times about the state of legal education also takes shots at legal scholarship. Much of it, the article claims, amounts to little more than “intra-academy tiffs that could interest only the combatants” or “highbrow edu-tainment.” Overall, the number of law review articles cited in judicial opinions has declined in recent years, according to statistics reported in the article.
It is not clear to me what to make of these critiques. Utility to the judiciary is certainly one criterion for evaluating legal scholarship, but it is by no means the only one. Nor does simply toting up the number of judicial citations accurately measure influence. Obvious examples of the limitations of this approach are Ronald Coase’s articles The Nature of the Firm and The Problem of Social Cost. They are among the most influential articles ever written, helping to re-shape our understanding of corporations and laying the ground work for the law and economics movement. Courts have cited them only a handful of times, but because they have changed the way we think about and teach law their influence is palpable in thousands of opinions that never mention them by name and among judges who may not have ever read them.
With that objection noted, let’s take the debate on its own terms and examine the output of the St. John’s faculty. Are we producing practical scholarship that is of immediate use to judges?
The answer is a resounding yes—we continue to write articles and books that directly influence judicial thinking in a wide range of legal disciplines. Let me offer just a few recent examples. This past February, the Tenth Circuit Court of Appeals looked to Janai Nelson’s 2007 Georgetown Law Review article (White Challengers, Black Majorities: Reconciling Competition in Majority-Minority Districts with the Promise of the Voting Rights Act) to inform its understanding of that statute (you can find the opinion here). A few months earlier, Judge Richard Posner in the Seventh Circuit cited my article in the Stanford Law Review, Fraud and Federalism: Preempting Private State Securities Fraud Causes of Action, in an opinion interpreting the Securities Litigation Uniform Standards Act (SLUSA). Indeed, in another measure of influence the New York Times ignores, the data collected in that article prompted Congress to pass SLUSA in the first place. Just last week, Judge Weinstein in the Eastern District of New York cited Adam Zimmerman’s 2011 University of Pennsylvania article, The Criminal Class Action (co-authored with David Jaros), in approving an SEC settlement in a case with a parallel criminal action. You can find the opinion here.
St. John’s law professors’ influence extends beyond law review articles. Several faculty members devote a large portion of their research time to writing treatises and commentaries that have an immediate and obvious influence among both judges and practitioners. In just the last six months, Vincent Alexander’s CPLR Practice Commentaries and evidence treatise (Evidence in New York State and Federal Courts) have been cited in eleven separate court opinions. Vincent Di Lorenzo’s book, New York Condominium and Cooperative Law, was quoted last month in a Southern District of New York opinion interpreting the Interstate Land Sales Full Disclosure Act.
Legal research takes many forms. As Dean Michael Simons noted recently at the Dean’s Docket: “Some [St. John’s] faculty members are experts in particular areas of legal practice; others are experts in historical events with obvious relevance to today; others are exploring some of today’s most important public policy questions; and still others are exploring how to make legal education more effective and inclusive.” There is little doubt that practical scholarship about current legal issues is an integral part of that broad array.
Update: In March, a state court in North Carolina cited Nina Crimm’s article An Explanation of the Federal Income Tax Exemption for Charitable Organizations: A Theory of Risk Compensation, which appeared in the Florida Law Review. You can find the opinion here.
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