For a sense how scholarly publications used to play a role in the application and development of legal doctrine, check out this opinion.
The California Supreme Court discusses a wide variety of law review articles -- including but not limited to those written by students -- and how those publications shaped subsequent judicial and legislative decisions. An impressive story.
What's equally significant, however, are the dates of the publications that made a difference. Law review articles in 1928 and 1931. A student note in 1947. Law review comments in 1913 and 1949.
Academic publications used to matter. They were cited and relied upon not only by other scholars, but by the judiciary as well.
One need not look beyond this opinion -- which, amongst its couple of dozen or so citations, contains no discussion of any academic work published after the Korean War -- to reveal that the era of broad academic influence upon the judiciary has long since passed. Sadly.
There's perhaps some reason to hope for at least a partial comeback. The increasing availability of real-time and doctrinal commentary -- bloggers, online law reviews, etc. -- may grant courts access to the type of neutral academic discourse that has tended to disappear from academia. This assumes, of course, that lawyers and courts -- which are no longer extensively familiar with looking to academia for insight -- retain the desire to familiarize themselves with these sources.
The rise of information technology and the increasing sophistication of counsel has permitted lawyers and judges to develop for themselves many of the arguments that used to be generated by academia. At the same time, legal academia has become increasingly insular and removed from the real world. The resulting confluence results in opinions like this one. Which reflect the substantial historical use of scholarly publications but the absence of such commentary in contemporary jurisprudence.
A telling opinion.
