Use of law review materials.

JurisdictionUnited States

Section 62. Use of law review materials.—In 1915, Dean Wigmore, in the preface to the second edition of the then Supplement to his monumental—and immortal—treatise on Evidence, deplored the prevailing tendency of courts to overlook the treasures locked in the pages of legal periodicals, and to cite a second- or third-rate textbook in preference to a first-rate article in a law review.270 Those strictures were not repeated in the second edition of his Treatise, published in 1923; by 1930 or thereabouts "the conspiracy of silence" had pretty well been dissolved;271 and today, the pendulum has swung far in the opposite direction.272 Indeed, lawyers who would not dream of citing encyclopedias or annotated reports or third-rate textbooks in their briefs seem to think that they will appear to be pretty learned fellows when they refer to and rely upon expressions of opinion in the law reviews.

Law review materials fall into two groups: the leading articles, invariably signed, and the student notes and comments, which, certainly in the older law reviews, are frequently and perhaps generally unsigned.

So far as the student notes are concerned, the brief-writer will, by and large, be well advised to use them as case-finders and as sources for his own ideas, rather than as expressions of authority to be cited to the courts. A little reflection will show the reason why. After all, your task as an advocate is to persuade a court of more or less learned and more rather than less elderly judges to decide your case in your favor. They are not likely to be persuaded by what some lads on a law review have said. Sometimes the judicial reaction to a law review citation is essentially one of amusement, as for example the remark (probably not wholly apocryphal) attributed to Mr. Justice Holmes: "I don't mind when the lads on the Law Review say I'm wrong, what I object to is when they say I'm right." Sometimes the reaction is one of impatient annoyance; I have heard just precisely that kind of comment, in open court, from one of the most distinguished of Federal judges (directed, I should hasten to add, at my opposition) .273 And on occasion the matter goes beyond that, as witness the testy comments in one of the late Mr. Justice Butler's last dissents:

The opinion also cites, footnote 7, selected gainsaying writings of professors,—some are lawyers and some are not—but without specification of or reference to the reasons upon which their views rest. And in addition it cites notes published in law reviews some signed and some not; presumably the latter were prepared by law students.274

True, student notes are nowadays frequently cited by the courts,275 and the views expressed above are not in any sense the consequence of sour grapes. I too have tooted on The Bugle, and one note that I committed while in school, which criticized two Supreme Court decisions,276 was twice cited by that Court—as it qualified the one277 and overruled the other.278 I strongly suspect, however, that, in those instances as in the others, the student note citations were added by the justices' law clerks, by ways of...

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