Citation of law review articles

Citation of law review articles. On a lark, I looked at the table of authorities for about two hundred party briefs filed in the past six months at the Federal Circuit.  These briefs each cited many cases and statutes.  Notably absent, however, were cites to law review articles. Out of the two hundred briefs, only two law review articles were cited — three if you count a citation to John Duffy’s Patently-O Patent L.J. article. The famous articles:

  • Jeffrey S. Dillen, DNA Patentability – Anything But Obvious, 1997 Wis. L. Rev. 1023 (1997)
  • John F. Duffy, Are Administrative Patent Judges Unconstitutional?, 2007 Patently-O Patent L.J. 21.
  • Mark A. Lemley et al., Divided Infringement Claims, 33 AIPLA Q.J. 225(2005).

This result goes along with the rule of thumb for Federal Circuit appellate briefs — cite only Federal Circuit cases unless you have a compelling reason to do otherwise.

24 thoughts on “Citation of law review articles

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  5. 15

    Citing to U.S. Supreme Court cases is equally important, if not more important, in light of the high court’s interest in patent jurisprudence over the last 10-12 years.

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  7. 11

    Having come to law from Physics, I have to say that what goes in in law journals is simply appalling (especially compared to scientific journals). The salient feature of the law journal process is that citation is more important that fact. Ever article gets checked for proper citation of “data” but there is no checking of the fact. I frequently find in law journals:

    1. Opinions in dubious sources become “facts” by chains of citation. I discover this by tracing “facts” back to their original source.

    2. Statements of case law that are not in accord with the actual opinion.

    Both are easily checked but law journals simply want to pray before the “Blue Book”.

    To this, I add that the law journals. The ratio of completely useless and wastes of pulp articles to have any use at all articles is akin to the ratio of fissionable U-235 to U-238.

    This is even true among law journals from top tier schools.

  8. 9

    RE: “A lark? You need to get out more DC.”

    Give the man a break – he has an infant son at home!

  9. 8

    From the POV of a law clerk, I find the best use of a law review article is to shortcut the legal research process, especialy in an area of law where my knowledge is only superficial. A good law review article will point to the most relevant cases, and act as a check on my own research and analysis to make sure I didn’t miss anything glaringly obvious. I have only cited to one very occasionally, where I want to rely on its analysis rather than to go directly to the case law.

  10. 7

    “cite only Federal Circuit cases unless you have a compelling reason to do otherwise”

    In light of recent events, the new rule may be cite supreme court precedent first, cite what the rule was before the federal circuit was created second, and then third cite Federal Circuit cases.

  11. 6

    It’s not necessarily true that law review articles should not be cited in Fed Cir briefs. While in some cases they may well be “Overrated, undercited, basically useless except to lawyers trying to buff themselves up to other lawyers” [and don’t forget law students trying to buff up their resumes], a review article by a respected author could be useful in giving the court needed historical or technical background. Yes, it would be foolhardy to use a LR article to make a point of law, but judges and clerks might well be interested in other information that an article could provide. And the citations in the article itself might be useful to clerks and judges as well. As a suggestion, unless it were obvious from the citation that the article were worth reading (e.g., by naming Giles Rich as an author) the value of the article could be hinted at in the text. For example, “Harvard Law professor_____has noted that. . . . ”

  12. 5

    Law Review articles may be good for scooping out the key cases to an off-the-beaten-path argument, but once you have the cases, you are best citing straight to the cases and essentially leaving the law review article in the dust.

    Citing to a law review article gives the impression that you are trying to sell the Court on an unprecedented concept that an academic came up with. I agree that it says, “I’ve got nothing.”

  13. 4

    I don’t agree that law review articles are “basically useless” having written a few of them myself. Usually, they can be good sources of case law, especially in areas that are off the beaten path, and for potentially getting ideas for how to argue those cases in a brief. But I’m with Andrew Dhuey that citation to such articles, unless from a fairly well established writer, isn’t going to have much impact on a court like the Federal Circuit. I also agree that citing anything other than Federal Circuit precedent to the Federal Circuit in brief, unless none exists or the point relates to one controlled by the regional circuit from where the case came from, isn’t normally a good idea, although I suspect that citation to some of the more recent SCOTUS cases like KSR International (if handled carefully) should be OK.

  14. 3

    This is part of the reason why, when I was an associate in BigLaw, I always had to suddenly go to the restroom whenever some partner said “We should write a law review article / white paper on that.” I also scrupulously avoided any kind of law review in law school.

    Overrated, un/undercited, basically useless except to lawyers trying to buff themselves up to other lawyers. Or those with an ax to grind.

  15. 1

    I rarely cite to law review articles. It makes sense when there is no case on point, or when you are trying to steer the court away from non-binding case law. Otherwise, it looks like you’re saying, “I’ve got nothing.”

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