Friday, November 21, 2008

CAFC not citing law reviews very much

Patently-O has a post on citation to law review articles by the CAFC. The low abundance of cites has been discussed in the past. [For example, Nard's TOWARD A CAUTIOUS APPROACH TO OBEISANCE: THE ROLE OF SCHOLARSHIP IN FEDERAL CIRCUIT

Also of note:

Judge Plager takes on Nard and Duffy: easier to critique than to be original

Separately, note that there is a law review article on the general topic: THE DECLINING USE OF LEGAL SCHOLARSHIP BY COURTS: AN EMPIRICAL STUDY by
Michael D. McClintock, 51 Okla. L. Rev. 659

Part of the text might be viewed in light of how OMB handled its analysis of the now-enjoined continuation rules:

Similarly, Professor Robert Gordon of Stanford University points out how the "law and economics" movement is
very practical. [FN122]
I must admit my jaw dropped when I came to the part of Judge Edwards' article that seems to argue that even law
and economics is not "practical." . . . President Reagan's executive orders required all the agencies to do "cost-
benefit" analyses;

If the "cost benefit analysis" is a pretextual formality, then there is no "practicality."

And don't forget Why There Should Be Fewer Articles Like This One: Law
Professors Should Write More for Legal Decision-Makers and
Less for Themselves
which included:

Furthermore, engaged scholarship already abounds. For example, Professor
Mark Lemley has published several articles that are highly theoretical, but
address issues of critical interest to litigants. Though his articles are published
in such journals as the Yale Law Review,18 which many consider the most
theoretical of the law journals, courts have nonetheless repeatedly relied upon
them in deciding real-world disputes.19

19= CPC Intíl, Inc. v. Skippy Inc., 214 F.3d 456, 462 (4th Cir. 2000)


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