Federal Courts of Appeal Cite Law Review Articles More than They Used To

That's according to a new empirical study David L. Schwartz and Lee Petherbridge recently published in the Cornell Law Review (Vol. 96, pp. 1345-74, 2011). Here's the take away from their article:

The study reported here adds a substantially more comprehensive data set to this important body of work than previous studies: an assessment of citation to legal scholarship in 296,098 reported decisions of the federal courts of appeals  between 1950 and 2008. Using clearly described and easily reproducible methods it further adds to the existing body of knowledge by empirically exploring the stridently pressed conventional wisdom that legal scholarship has drifted so far from the interests of the bench and bar that courts have little use for it.

The study produces two important results. First, the data collected support the interpretation that the use of legal scholarship by the federal circuit courts of appeals has not declined. Rather, the use of legal scholarship by such courts has increased. Taken together, the data gathered in this study call into serious question the conventional wisdom that courts have little use for legal scholarship.Second, the study provides evidence that a relatively small cohort of judges is responsible for the overwhelming majority of citations. Using empirical and theoretical methods, the study also considers explanations for the empirical results.

I wonder whether David Segal of the New York Times will retract the blanket claim he made in an article he wrote a couple weeks ago about the uselessness of legal scholarship (see here).