Last fall, Adam Liptak, of the New York Times, posted a scathing critique of law reviews. The charges, in a nutshell: “incompetent” law student editors select articles on arcane topics based on the author’s prestige rather than the article’s use to the bench and bar. Ouch. I won’t rush to the defense of the editors—I think they’ve already done a pretty good job defending themselves. And although I concede that many law reviews publish articles with little practical implication, I think they still have a place in our jurisprudence. Recent court decisions, at least in Michigan, suggest this is true.
After reading Liptak’s article, I decided to search Michigan appellate opinions issued in 2012 and 2013 for law review citations. My parameters were strictly limited to law reviews (I didn’t take the time to search for other journal citations because my “quick” search for just law review cites turned into several hours). I found 30 opinions in the past two years that cited law review articles. (You can review a chart summarizing my research here.) Not a staggering figure, to be sure, but it was higher than I predicted based on the dismissive comments in Liptak’s article.
As a group, the opinions suggest some interesting patterns. Over half were issued by the Michigan Supreme Court. The rest were nearly an even split of published and unpublished Court of Appeals cases. The Michigan Supreme Court opinions were largely in criminal cases where the court decided an evidentiary or constitutional issue. The citations were not limited to dissents and concurrences, as I predicted. In fact, the majority opinion cited to at least one law review article in 9 of the 17 Michigan Supreme Court opinions I reviewed. I also found that certain justices and judges cited to law reviews more than their colleagues.
What I didn’t find in these cases was derision by the courts toward law review articles generally. In one 2012 Michigan Supreme Court case, the majority chided the dissent for relying solely on a law student note, but the majority’s criticism was aimed primarily at the dissent’s lack of other authority. And the Michigan Supreme Court went on to cite law review articles in majority opinions thereafter. So despite the purported problems with law reviews, it seems they have continuing influence in Michigan courts.