Saturday, March 10, 2007

Legal Scholarship: No. 3

Legal Treatises

The panel discussion at my law school involved many judges of the United States Court of Appeals for the Second Circuit. The gathering also involved (i) law faculty members at my law school, (ii) students at my law school, and (iii) assorted guests (many of them quite interesting).

The topic was the "utility of legal scholarship to judges." The discussion initially focused almost exclusively on the utility vel non of law journal articles to judges. But some faculty members began to mention other possible forms of legal scholarship. I was no exception to this partially self-serving attempt to re-direct discussion: I raised the question of views (both outside and inside the legal academy) about the utility of legal treatises.

Disclosure: I am working on a legal treatise. I also revised part of a legal treatise, part of John Henry Wigmore's monumental treatise on the law of evidence; I converted one of the volumes -- a hefty volume in small print -- into two hefty volumes (also in small print, with some of the longest footnotes known to man).

  • A Sign of the Times: This treatise is now available online.
  • More than two decades ago several prominent law teachers doubted the value of "doctrinal scholarship," including legal treatises. (The doubters were mainly lodged on the right side of the political spectrum and on the left side, but not in the moderate, or mushy, middle.) Earlier on this blog I expressed -- I reiterated -- my opinion that the notion that legal treatises cannot harbor original or creative thought is twaddle. See Platonic Hierarchies of Legal Scholarship.

    After the panel discussion with the judges, I had a hallway conversation that moved me to gather some data about the number of times that prominent courts cite to Wigmore's treatise, including my part of the treatise. Here is a bit of the largely self-serving stuff that I found and noted:

    There were a total of ca. 1,700 citations to the Wigmore Treatise by all U.S. courts from and including 2000 to the present.

    During the same period the Supreme Court of the United States cited to Wigmore's treatise in 17 judicial opinions.

  • For purposes of this count I do not distinguish between opinions of the Court, concurring opinions, and dissenting opinions.
  • &&&

    There were 16 citations to Wigmore by the 2nd Circuit from and including 2000.

  • My procedure here is to count the number of judicial opinions that cite the Treatise, not the actual number of citations. Hence, mutiple citations in one judicial opinion count as one citation.
  • There were 27 citations to Wigmore by the 9th Circuit from and including 2000.

    There were 6 citations to Wigmore by the 5th Circuit.

    There were 16 citation by the 4th Circuit.

    There were 15 citations by the 1st Circuit.

    So (as might have been expected) there is substantial variation among the circuits in the frequency to citations to Wigmore.

    &&&

    There were 9 citations by the NY Court of Appeals in the same period.

    In all New York state courts there were ca. 55 citations to Wigmore (but in this instance I didn’t check for false hits).

    &&&

    83 Supreme Court briefs cited to Wigmore during the same period.

    Westlaw’s database contains 9,428 appellate briefs around the country that cited to Wigmore during the same period (but I didn’t check for false positives).

    WESTLAW shows 337 appellate briefs in New York that cited to Wigmore during the same period.

    ***

    The Supreme Court of the United States has cited my Wigmore volumes -- 1 & 1A WIGMORE ON EVIDENCE (P. Tillers rev. 1983) -- four (4) times. See Selected Judicial Citations to vols. 1 & 1A J. Wigmore, Evidence (P. Tillers rev. 1983)

    The High Court of Australia has cited my volumes six (6) times.

    The Supreme Court of Canada has cited my revision seven (7) times. Id.

    The Constitutional Court of the Republic of South Africa cited my revision once.Id.

    For citations by U.S. Courts of Appeals and by the highest courts of the States of the United States, please see Selected Judicial Citations to vols. 1 & 1A J. Wigmore, Evidence (P. Tillers rev. 1983)

    ***

    More about citation counts later.

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