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April 26, 2012


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If my math is correct, about a fifth of law review articles cited by the Supreme Court in this century were written by students and professors of subjects other than law.
Does this mean that, if the USSCT asks five people - a student, a law professor, a professor untrained in the law, a lawyer and a judge - for an opinion about an issue affecting a decision, the students and the non-law professors have an equal shot at providing the answer?
Is my math correct? Does this say more about the court or our present cadre of law professors?
It is obvious that the bias against practioners (i.e., anyone with more than a few years at a big firm) in hiring really needs to be reexamined. That bias is seeming to be ever more misguided.

Michael Herz

Citation counts are only a small piece of the picture. They say nothing about how articles are being used. (Sort of the way that law school employment statistics, even if they were not fictional, would be quite incomplete because they do not reveal what kind of jobs graduates obtain and whether they are able to get the jobs they actually want. Harvard and Podunk could have identical, glittering rates of employment; that would not mean opportunities for graduates of the two schools were identical.)

Citation is not the same as "use" in the sense of reliance or influence. A few years ago, most of the Second Circuit participated in an event at Cardozo devoted to judicial (non)use of law review articles. Judge Sack observed that even when judges cite articles, they usually use them "the way a drunk uses a lamp-post: more for support than illumination."

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