Fletcher Study on American Indian Legal Scholarship and the Courts

I have posted the data so far in chart form for my ongoing study on the impact of American Indian legal scholarship on the judiciary. The draft paper, which will be available on a limited basis at the Berkeley conference on Phil Frickey’s legacy, is called “American Indian Legal Scholarship and the Courts.” The data is available on SSRN here.

Here is the abstract for the appendices:

“American Indian Legal Scholarship and the Courts” is a forthcoming article that includes charts representing data on the citation patters of federal, state, and tribal courts to American Indian legal scholarship (defined as law review and similar publications focused on American Indian law). This paper includes three appendices in the form of simple charts that organize that data. Appendix 1 is a chart of Supreme Court opinions dating back to 1959 that include citations to Indian law review articles. Appendix 2 is a chart of law review articles cited in lower federal, state, and tribal courts since 1959, organized by article. Appendix 3 is the same chart reversed, with the chart organized by case first.

Are Law Review Articles Worthless to Practicing Lawyers and Judges?

From the Cal. Lawyer via the Law Librarian blog:

In 1980 the California Supreme Court reviewed a tort claim filed on behalf of women afflicted with cancer because their mothers had taken diethylstilbestrol (DES), a synthetic estrogen, during pregnancy. But, 20 or 30 years after the fact, the plaintiffs could not identify the manufacturer of the DES in question. How could the liability of any individual manufacturer be determined? Justice Stanley Mosk found the answer in a student note published in the Fordham Law Review, and so a law student’s advocacy of market-share liability became the law of California (Sindell v. Abbott Laboratories, 26 Cal. 3d 588 (1980)). Likewise, when then–Associate Justice Roger Traynor wrote his seminal concurring opinion inEscola v. Coca Cola Bottling Co. (24 Cal. 2d 453 (1944)), he cited 15 law review articles that discussed various aspects of strict liability for manufacturers.

During California’s legal “golden era” of the Gibson and Traynor Courts in the 1950s and ’60s, law reviews were cited with increasing frequency. In a classic study of the authorities cited in California Supreme Court opinions, Stanford law professor John H. Merryman counted 164 law review citations in the court’s 1970 opinions, a “sharp increase” over previous years (Merryman, “Toward a Theory of Citations,” 50 S. CAL. L. REV. 381 (1977)).

I did my own count recently of the California Supreme Court opinions published during the past five years that relied on law reviews as authority: There were just six. This despite—or perhaps because of—the fact that law reviews have tripled in number since the 1970s. The 20 ABA-accredited law schools in California now publish a total of 82 law reviews. UC Berkeley’s alone publishes 14, while Stanford and UC Hastings each publish 9. Both law professors seeking tenure and law students seeking employment at elite law firms eagerly fill these volumes. But who reads them now? Surely not the judges who decide the law. And not practicing lawyers either.

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Federal Indian Law in General Law Reviews

What are the chances, statistically, of an article focusing on Federal Indian Law being accepted and published by a general law review? Which law reviews published the most articles about Federal Indian Law in the last 30 years (at least according to WESTLAW, which goes back further for some journals than others)?

Here are the results of this not-so-scientific survey. The first list is of the top 75 or so law reviews (plus New Mexico and Geo. Mason, who can pretty strong claims to the top 75, even if their law reviews aren’t there yet), using the Wash & Lee current “combined” stats, ranked by the number of articles, published that are predominantly about Federal Indian Law, and using symposium pieces, book reviews, and student notes as a tie-breaker.

The number before the law review name is the W&L ranking, the number following the name is the number of stand-alone articles published, and the rest should be self-explanatory.

Top 75

  1. (62) Arizona State (25) — Miller (2008), Berger (2005), Washburn (2004), Nakai (2003), Goldberg (2003), Hannah (2003), Zellmer (2000), Pearson (2000), O’Melinn (1999), LaVelle (1999), Pommersheim (1999), Suagee (1999), Tsosie (1999), Epps (1998), Koehn (1997), Meteer (1996), Miller (1996), Royster (1995), Joranko (1994), Limas (1994), Zion (1993), Trope (1992), Marsh (1992), R. Johnson (1992), Strickland (1992). 31 other pubs.
  2. (132) New Mexico (11) — Kunesh (2007), Smith (2005), Laurence (1998), Lee (1998), Reynolds (1997), Alexander (1997), Strickland (1996), Rice (1996), Klein (1996), Limas (1996), Luna (1996). 27 student papers and symposium papers. and 1 postscript.
  3. (65) Oregon (9) — Rosser (2008), Wildenthal (2007), Krakoff (2004), Braveman (2003), Miller (2001), Cross (2000), Ansson (1999), King (1998), Laurence (1990). 9 other pubs.
  4. (48) Washington (8) — Riley (2005), R. Johnson (1992), R. Johnson (1991), Royster (1989), Wilkinson (1989), Canby (1987), Barsh (1984), Barsh (1981). At least 20 student pubs, and 9 symposium pieces and book reviews.
  5. (41) Arizona (7) — Rosser (2005), Dussias (2001), Laurence (2000), Cross (1998), Winslow (1996), Vetter (1994), Clinton (1990). Five student pubs. Seven symposium pieces and book reviews.
  6. (42) Colorado (6) — Pommersheim (2000), Blumm (1998), Mergen (1997), Smith (1990), Royster (1988), Getches (1988). Six student pubs. Ten symposium pieces and book reviews.
  7. (16) Minnesota (6) — Washburn (2008), Getches (2001), Atwood (1999), Frickey (1996), Joranko (1993), Worthen (1990), Three student pubs.
  8. (24) North Carolina (6) — Clarkson (2007), Washburn (2006), Dussias (1999), Reynolds (1995), Worthen (1993), Reynolds (1984). One student note.
  9. (67) Nebraska (6) — Fletcher (2006), Dussias (2005), Pollman (2004), Snowden (2001), Atwood (2000), Brietzke and Klein (1999). 2 student pubs.
  10. (13) UCLA (5 soon to be 6) — Carpenter (2005), Goldberg (2002), Coker (1999), Goldberg (1997), Atwood (1989). Berger has one article forthcoming in 2009. Five student pubs. Five symposium pieces and replies. Continue reading