ISSN 1062-7421
Vol. 11 No. 10 (October 2001) pp. 472-475.


JURISTS AND JUDGES: AN ESSAY ON INFLUENCE by Neil Duxbury. Oxford: Hart Publishing Co., 2001. 118 pp. Paper $30.00. ISBN: 1-84113-304-7.

Reviewed by Jayanth K. Krishnan, William Mitchell College of Law.

In his new book, JURISTS AND JUDGES: AN ESSAY ON INFLUENCE, Neil Duxbury reflects on the degree to which scholarship by legal academics
affects judicial decision-making. Duxbury's study evaluates this issue from a comparative perspective, focusing on the United States and France, and then
spending nearly half of the book concentrating on England. Although the type of legal scholarship Duxbury examines is "very selective ... within [these]
jurisdictions," (p. 117) this nicely written and thoughtful essay will nevertheless be of interest to many different types of legal academics who may, from time to time, wonder if what they write actually matters to those sitting on the bench.

Duxbury's chapter one begins by noting that an oft-used indicator for detecting whether legal scholarship affects judicial decisions is the number of citations to academic works within a judge's opinion. From the outset Duxbury is skeptical that solely using this factor truly measures influence on courts. "Citations to a work of scholarship are not necessarily indicative of its influence, just as absence of citation to that work does not compel the conclusion that it has had no influence" (p. 1). This being said Duxbury does not entirely reject those citation-based findings suggesting that American and continental European academics have indeed been
influential on judicial thought. However, he believes that influence may take on different forms depending upon the particular jurisdiction.

In chapter two Duxbury further examines this specific issue of influence. He disputes the claim made by scholars, such as William Landes and Richard Posner, that causality is inextricably linked to influence. While related to causality, influence "occurs where a person's outlook alters as a result of his or her conscious or subconscious noticing of external stimuli" (p. 6). Perhaps not surprisingly then, Duxbury believes that measuring whether judges are influenced by external stimuli, such as academic commentaries, is no easy task.

For example, in chapter two he notes several reasons for why someone may want to cite an academic source: from paying patronage to a colleague or friend to enhancing the credibility of one's view to creating the impression that one is well-versed in the literature to using citation as a way of putting one's own name "on the map." Furthermore, simply because certain scholars are not cited does not diminish the influence they may have on how people think and act. Consider the number of modern economists that really cite Adam Smith or Karl Marx. Alternatively, how many present-day hard scientists cite Einstein or Darwin? It would be silly to say that because the works of these historical giants are often absent from bibliographies orfootnotes that they have no influence

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on today's thought. Also, although Duxbury does not place judges in the same category as other writers nor does he believe that judges necessarily have the above-mentioned motivations, his point is that influence is an elusive concept that must be considered in a more complex manner.

Chapter three focuses on the American legal environment. Here, Duxbury seeks to evaluate a frequently mentioned claim--that throughout much of the 1900's American law professors and judges had a great affinity for one another but that by the end of the twentieth century, "the relationship had been thrown into question" (p. 24). The conventional wisdom is that as time passed many judges began questioning the relevancy of U.S. legal academia, while at the same time legal scholars began turning away from trying to influence the outcomes of courts.

According to Duxbury the perception of American judges being influenced by legal scholars exists primarily because several prominent justices--from Brandeis to Cardozo to Douglas to Warren--all publicly lauded the influence legal scholarship had on them. However, Duxbury cautions us about these "sugary" (p. 29) compliments. His research reveals that these kind words almost always came prior to a ceremony celebrating a law school's law review- a fact that the author finds more than just coincidental (Id). (With the exception of a discussion of Brandeis, however, we are not provided with systematic data regarding whether certain justices over time have disproportionately cited law reviews in their opinions in comparison to their colleagues. Although such correlation would obviously not prove a causal relationship, especially given Duxbury's argument, it might nevertheless be interesting to the reader). In addition, since opinion drafting and citations are often left in the hands of law clerks--who are typically socialized in the law review culture--we should not be surprised to find these clerks drawing on works (and scholars) with which they are most familiar. Whether the judges themselves, though, are influenced by suchscholarship should not necessarily be inferred from the actions of their clerks.

Duxbury then transitions to a discussion of why it may be actually more likely that courts would want to refrain from citing law reviews. From Oliver Wendell Holmes to William Howard Taft to Harry Edwards to Richard Posner many prominent judicial figures over the years have questioned the value of law review scholarship. The argument is that law review scholarship lacks proper peer-review, fails to address pressing problems courts face, and presents frequently flawed empirical research. Also, although law reviews have been important venues for the development of feminist jurisprudence, law and economics, and certain other fields, overall Duxbury documents how several judges continue to lament the fact that this form of scholarship provides little normative and empirical guidance for modern American courts. For Duxbury this all suggests that the perception of academics having influence over American judges--and law reviews being particularly key sources of insight for courts--needs much more scrutiny.

In chapter four Duxbury moves to a discussion of whether courts in France--including the Court of Cassation--are influenced by the works of legal academics. A common belief in France is that law professors have very little influence on judges. This notion is based on the fact that judges in France rarely cite the works of law professors in their opinions. Indeed while

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few judicial opinions make note of legal academics, Duxbury digs beyond simply looking at this measure of influence. For example, the NOTE D'ARRET,
or case note, which is a commentary of judicial decisions made by academics, practitioners, or judges, has historically been an important source of influence on French courts. Duxbury traces the evolution of the case note and documents how this form of legal literature has directly contributed to the development of such fields as tort law.

Specialists usually write case notes. The notes are highly prestigious, expound on what are typically very short judicial opinions, and perhaps most importantly serve as guidance for future decisions. By showing how the style, language, and doctrines of case notes have been adopted by many French courts, Duxbury demonstrates that although judges do not often directly cite scholars in their opinions, jurists can be still very influential.

Duxbury begins chapter five by noting that in England the practice of citation by judges--as well as by lawyers and academics--historically has been quite different than what occurs in the United States. In terms of courts, when judges have sought the assistance of legal scholarship, rarely have academics been cited within these judgments. Several cultural and institutional reasons are offered for why judges adhere to this "convention against citation" (p. 66). For example, Duxbury notes that there is a common belief that outside sources written by academic lawyers often are unrealistic and not subject to the constraints of precedent. There is continued respect among many judges for the declaratory theory of law, which treats "all extra-judicial opinions as unauthoritative" (p. 67). Also, the English legal process seems to focus more on the oral, rather than written, word in adjudicating matters (p. 68).

However, for Duxbury the lack of citation to scholarship by English courts is not indicative of an absence of juristic influence. Nor does he believe that only in modern times have English judges turned to jurists for insight. Duxbury spends much of the fifth chapter showing how scholars, such as Frederick Pollock (1845-1937), helped to shape both case law and judicial doctrine in England. Through his numerous publications on the subject of liability in LAW QUARTERLY REVIEW, Pollock's views found their way into some of the House of Lords' most important tort cases. Similarly Arthur Goodhart (1891-1978), who also championed for more progressive liability laws in LAW QUARTERLY REVIEW, saw his beliefs reflected almost verbatim in one of the most important "reasonable forseeability" cases (The WAGON MOUND case), despite the fact that he was only cited once by the court.

Duxbury does not contend that these two examples somehow prove that English courts turned to academic commentaries in the past with the same frequency as they do today. Indeed, in modern times academic lawyers in England have played a larger role in public life, which perhaps has increased their prominence and notoriety among those sitting on the bench. However, his point is that the ideas of such jurists like Pollock and Goodhart, while not often cited in judicial opinions, nevertheless played a critical role in many important cases. If citation were viewed as the main indicator of influence, then the impact of these intellectuals would be completely missed.

Duxbury's comparative study is useful for observers interested in understanding the role scholarship plays in

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judicial decision-making. Of course there will be those who question his methodological approach and criticize his system of collecting data. Others will find fault with his use of a limited universe of academic commentaries. Still others will wonder about his case selection. But to his credit these are points Duxbury recognizes and concedes in his brief final chapter. Although for some such a concession may not excuse his admitted shortcomings, this study is precisely what the title says it is: an essay. It is a starting point that provides important insight on a topic that has needed to be addressed in comparative law, and for this reason both law professors and social scientists will want to read this valuable and thought-provoking study.

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Copyright 2001 by the author, Jayanth K. Krishnan.