Law journal articles and the Dover decision

This post discusses the possible effects of law journal articles on future court interpretations and evaluations of the Kitzmiller v. Dover intelligent design decision. As I said, even if the Dover decision were a good one, which it is not, it would have little precedential value because it is just an unappealed federal district court decision of a single judge. I would bet my last dollar that the Dover decision is not binding precedent even in Judge Jones' own Middle District of Pennsylvania federal district court, and I am confident that I remember correctly that the 9th Circuit federal court of appeals once had a rule that no district court opinion could be cited in any court of the 9th Circuit. Furthermore, there are almost no other precedents dealing with the Dover decision's main subject areas, i.e., evolution disclaimer statements and the teaching of intelligent design (or other scientific or pseudoscientific criticisms of Darwinism) in the public schools. The only other precedent in one of these areas is Freiler v. Tangipahoa Parish, which was only a federal appeals court decision, not a Supreme Court decision, and which dealt with an evolution disclaimer statement but not the teaching of ID. The Selman v. Cobb County district court decision does not count because this case was finally settled out of court after beng vacated and remanded. Because of this lack of court precedents and because the citation of law journal articles by court opinions has been very common (see below), IMO law journal articles would likely play a strong role in possible future court interpretations and evaluations of the Dover opinion.

In recent years, court opinions' citations of law review articles have greatly declined in frequency but the frequency still appears to be quite significant. The Volokh Conspiracy blog reported,

In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Patterns at other leading law reviews are similar. And the drop in the number of citations understates the phenomenon, as the courts’ caseload has exploded in the meantime. . . .

The statistics for five different law journals are shown in a graph in Appendix A of the report of the staff of the Cardozo Law Review. One of the symbols on the graph -- a black diamond -- is not identified, so this must be the symbol for the California Law Review (Berkeley). Anyway, these statistics give no idea of the likelihood of particular law review articles being cited in particular decisions.

I think that citation of law journal articles (and -- more recently -- blogs) is most useful in new areas of the law where there are no or few case precedents to rely on. I think that as the number of case precedents has grown, the number of areas of the law where there are no or few case precedents has declined (though new areas like the Internet keep cropping up), and so the need to cite law journal articles may be declining. In court opinions today it is common to see long strings of several case precedents following points of law. I think that judges are reluctant to cite law journal articles when they don't have to, because these articles are not legal precedents and because these articles usually contain just the unrebutted opinions of just one or a few people. I think that a declining need for citing law journal articles helps explain the decline in the frequency of court citations of law journal articles.

Anyway, as I said, IMO there is a particular need to cite law journal articles in analyzing the Dover decision because (1) the decision was never reviewed by a higher court and (2) there are almost no case precedents that directly apply to the Dover case. And as I noted before, of the law journal articles I have seen that analyze the Dover case, most are critical, particularly of Judge Jones' decision to rule on the scientific merits of intelligent design. Besides law journals, there are other important published sources of criticism of the Dover decision, e.g., (1) the Discovery Institute's report that reveals that the opinion's ID-as-science section was virtually entirely ghostwritten by the ACLU and (2) the DI's book "Traipsing Into Evolution." Jones' statement at Dickinson College that organized religions are not "true" religions doesn't help either. Overall, it does not look very good for the so-called "Dover trap". And the passage of a bill to ban or cap attorney fee awards in establishment clause cases will be the coup de grace to the "Dover trap." Like I said, the Dover decision is a dud. The Darwinists have been grossly overoptimistic about the precedential value of the Dover decision.

For other blog posts here concerning law journal articles and other expert opinions about the Dover case, click on the "Expert opinions about Kitzmiller" label on the bottom of this post.

BTW, some other explanations have been given for the decline in the frequency of law journal citations in court opinions, but IMO these explanations have little or no validity. One offered explanation is that law journals have become more interdisciplinary, but they are interdisciplinary because the law itself is interdisciplinary -- for example, to understand environmental law, it is often necessary to understand environmental science and technology. Another offered explanation is that law journal articles have become more theoretical rather than dealing with actual cases, but I can see no reason why actual relevant cases would not be discussed in a law journal article. Another reason given is that the Internet has made it easy for judges and their clerks to do their own research and so they are less dependent on law journal articles to do research for them, but a lot of the research is done by the litigants themselves, and before there was an Internet it was easy to do research in large law libraries by means of annotated law books that gave key case citations for different subjects.

In contrast to widespread court citations of law journal articles over many decades, direct court citations of blogs are still fairly rare, despite some claims to the contrary. However, citations of blogs by law journal articles have become common, and thus a blog has a fair chance of influencing a court decision indirectly through a decision's citation of a law journal article. For example, a law journal article by Jay Wexler cited the Panda's Thumb blog, and Wexler's article might be cited by a future court decision. This potential indirect influence of blogs on court decisions is another good reason why blogs whose bloggers practice arbitrary censorship should not be cited in any authoritative reference.
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