Influence on Nebraska Supreme Court

• Publication year: 2021

76 Nebraska L. Rev. 708. Influence on Nebraska Supreme Court

708

Richard G. Kopf*

Do Judges Read the Review? A Citation-Counting Study of the Nebraska Law Review and the Nebraska Supreme Court, 1972-1996

TABLE OF CONTENTS

I. Background 710
A. Citation-Counting Studies 710
1. An Overview 711
2. Five Caveats from Other Studies 713
3. Eight Findings from Other Studies 714
B. Methodology 716
II. Results 719
A. Basic Facts 720
1. Nebraska Law Review 720
a. Highlights 720
b. Tables 720
2. Creighton Law Review 720
a. Highlights 721
b. Tables 721
B. Authors 721
1. Nebraska Law Review 722
a. Highlights 723
b. Tables 724
2. Creighton Law Review 724
a. Highlights 725
b. Tables 725
C. Subject Matter 725

709

1. Nebraska Law Review 726
a.Highlights 727
b. Table 727
2. Creighton Law Review 727
a. Highlights ???
b. Table ???
D. Judges and Opinions ???
1. Nebraska Law Review ???
a. Highlights ???
b. Tables ???
2. Creighton Law Review ???
a. Highlights ???
b. Tables ???
E. Influence ???
1. Nebraska Law Review ???
a. Highlights ???
b. Table ???
2. Creighton Law Review ???
a. Highlights ???
b. Table ???

III. Analysis ???
A. Seven Judgments ???
B. An Editorial Partnership ???
IV. Conclusion ???

The seventy-fifth anniversary of the Nebraska Law Review(fn1)[hereinafter Review] provides an opportunity to ask whether or not all the effort that goes into publishing the Review is worthwhile.(fn2) One way to gauge the value of the Review is to study its influence on judges. By analyzing the frequency with which the Nebraska Supreme Court has cited the Review over the last twenty-five years, this Article attempts to decide whether the Review influences judicial opinion writing. In the following discussion, we explain what we did and what we discovered. We then make judgments about the present value of the Review to the judiciary as measured by its impact (or lack

710

thereof) on opinions written by the Nebraska Supreme Court. Lastly, we make a recommendation regarding the creation of an editorial "partnership" between the Review and the Nebraska judiciary.

I. BACKGROUND

As an introductory matter, we present a brief survey of the literature on citation studies. After that, we provide an explanation of the methodology used to complete this study.

A. Citation-Counting Studies

1. An Overview

Quantitative analyses of law review(fn3) use, which often center upon the number of times authors refer (cite) to law review articles, have become the subject of intense interest at law schools.(fn4) Without self-consciousness, one law review devoted an entire issue to the subject.(fn5)Academics debate the value of quantitative studies on law review use. This debate reflects "the continuing tension in legal education resulting from two conflicting definitions of the enterprise."(fn6)

On one hand, we may properly see legal education as "professional training."(fn7) If the purpose of legal education overall, and of legal scholarship in particular, is professional in nature, it follows that law reviews ought to reflect attention to professional concerns. In turn, law reviews are properly measured by whether or not professionals, such as judges, use them. If we accept such a measuring stick as valid, "[c]itation studies demonstrate that legal scholarship makes only a modest direct contribution to the daily practice of law. Thus, the time has come to acknowledge that legal scholarship is overwhelmingly an academic endeavor of little immediate perceived value to the rest of the profession."(fn8)

711

The contrary view is that legal education is properly "an academic endeavor."(fn9) If this view prevails, we frequently judge law reviews more generously (and not quantitatively). For such individuals, quantitative studies are irrelevant or misleading. In their view, "[l]egal knowledge, like most other kinds of learning, is a social construct," and the law review is the "means by which legal ideas and meaning are created, debated, and disseminated."(fn10) Thus, studying whether professionals use law reviews is meaningless since "`good' scholarship" is valuable whether or not it appeals to the "existing hierarchies."(fn11)

We believe that law reviews should appeal to professionals since law schools, and the law reviews they publish, train professionals and not solely academics. Thus, our view is that quantitative approaches to the study of law review use are helpful.(fn12) Knowing whether or not judges and lawyers rely upon law reviews is valuable because such reliance-the "conventional criteria of theory-acceptance"(fn13)-is one reasonable way, among many, to decide whether legal ideas (and, by extension, law reviews) have merit.(fn14) As a student author of a law review article correctly put it, "[w]ithout objective means of examining the benefits each party receives from the law review process, few precise conclusions may be drawn concerning the reviews' impact."(fn15)

When a quantitative approach is used, we can begin by "counting cites." Using this method, we can analyze whether law reviews have significance to other legal periodicals,(fn16) the courts,(fn17) or both legal periodicals and the courts(fn18) by determining the frequency with which other authors refer to law review articles. In particular, from the fre

712

quency of law review citations we can derive "insight into how useful the[] courts find legal scholarship."(fn19)

We can extend citation-counting studies beyond measuring the mere frequency of citations to law review articles. For example, we can examine the subject matter of the law reviews cited,(fn20) whether the law reviews are cited in majority, concurring, or dissenting judicial opinions,(fn21) whether certain judges cite law reviews more frequently than others,(fn22) and whether the authors of the cited law reviews are students, professors, judges, or practitioners.(fn23)

Although more difficult, we also can try to decide objectively if a law review article significantly influenced the writer who cited the article.(fn24) For example, we can attempt objectively to determine: (1) whether the article was cited as the sole authority; (2) whether the article was cited for a proposition that was important to the holding of the case; (3) whether the "introductory signal" (such as "see") was weak or strong; (4) whether the article was quoted and, if so, the placement of the quotation; and (5) whether other courts cited the opinion that relies upon the law review article as authority.(fn25)

With the arrival of computer-assisted research, we are able efficiently to study large data collections consisting of legal periodicals and judicial opinions. For the study of law review usage in judicial opinions, a common technique is to find a citation to a review by using a computer-based service such as LEXIS or Westlaw.(fn26) Using this method, we select a database of judicial opinions and then enter the name of a law review as a search term.(fn27) This method also allows the investigator to search specific time periods.(fn28)

713

2. Five Caveats from Other Studies

Most quantitative studies of the use of law review articles properly recite various caveats regarding the utility of the research. For purposes of studying the impact of the Review on judicial opinions, five such limitations are the most salient.

First, we must not imply statistical significance where none exists or when we have not attempted to decide whether statistical significance is present.(fn29) A study can be empirically based but lack statistical significance; that is, the data derived from a citation-counting study may or may not be the product of chance.(fn30) Drawing inferences from comparisons of small numbers is particularly problematic, and citation-counting studies frequently suffer from such problems.(fn31)

Second, citation counting as a methodology also may "underestimate the impact of legal scholarship on the courts, as judges often fail to cite journal articles that they have used as a basis for their reasoning."(fn32) Moreover, judges may be influenced by a law review article without realizing the source of the influence. Simply put, empirical studies based upon citation counts are "an extremely crude method of measuring the impact of academic work on the decision-making process."(fn33)

Third, citation-counting studies that exclusively use appellate judicial opinions understate the value of law reviews to various other professional groups.(fn34) "The articles most frequently cited by appellate judges may differ from the sources trial judges, courtroom litigators, corporate counsels, and other members of the practicing bar find most useful."(fn35)

Fourth, we should not necessarily draw negative conclusions about the value of secondary source material such as law reviews simply because judges may refer less frequently to secondary material than they do to primary source material.(fn36) Although both primary author

714

ity (cases, statutes, and the like) and secondary authority (law reviews, treatises, and the like) may properly be considered "authoritative," for judges, "statutes and cases are more authoritative than other legal and nonlegal writing."(fn37) Therefore, we should not be surprised that a judge will cite source material that is the "more authoritative" when that material is available.

Fifth, law reviews have value whether courts use them or ignore them.(fn38) For example, law reviews provide a unique educational opportunity for law students to sharpen their research, writing, and analytical skills.(fn39) Law reviews also have other worthwhile uses, such as giving law professors a "valuable means of disseminating their ideas" to other academics.(fn40) None of these values are dependent upon whether or not judges cite (or read) law reviews.

3...