Legal Writing and Research Commons^™

Is Legal Scholarship Out Of Touch? An Empirical Analysis Of The Use Of Scholarship In Business Law Cases, Michelle M. Harner, Jason A. Cantone

Michelle M. Harner

Commentators have observed two apparent trends in the use of legal scholarship by the judiciary. First, judges now cite law review articles in their opinions with less frequency. Second, despite this general decline in the invocation of legal scholarship, judges now cite articles in specialty journals with more frequency. Some commentators attribute the apparent decline in the courts’ use of legal scholarship to the increasingly theoretical and impractical nature of that scholarship. A few studies even suggest that the increasing use of specialty journals by the courts reflects the gap between the content of legal scholarship in general law reviews …