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Citation Stickiness, Computer-Assisted Legal Research, and the Universe of Thinkable Thoughts
Get PDFThis article seeks to answer two main questions. The first is whether courts cited the same cases as the parties more often during the print era than during the digital era. The second is what, if anything, the answer to the first question can contribute to the debate about how print-era forms of organizing and describing case law influenced researchers’ behavior. To that end, we sampled cases from 1957, 1987, and 2017, and used “citation stickiness” to study the differences in how parties and judges cited authorities during each of those years. In short, we found that there is less agreement about what case law authorities are relevant to an appeal between parties and judges in 1957 than in 1987 and 2017. This casts doubt on the existence of a cozy “universe of thinkable thoughts,” or the longstanding theory that classification schemes like West’s American Digest System led to greater coherence and stability in the development of common law in the United States.
In section I of this article, we review the literature on how switching from print research to digital research influences lawyers’ research habits and conceptions of the law. We then look at prior empirical studies assessing the kind of law found by researchers within different research environments or by using different research processes.
In section II of this article, we introduce the citation stickiness metric and describe our methodology.
In section III we present our results, which show that there is a significant difference between 1957, 1987, and 2017 in how often courts cite cases originally cited in at least one party’s brief. We also explore some other possible conclusions gleaned from our data. Finally, we speculate on the reasons why we found what we found and identify questions for further study
Judges and Mass Incarceration
No full textThis Article argues that judges—long overlooked in contemporary explanations of mass incarceration—have played a central role both through affirmative decisions that increased punishment and through failures to act as a check on prosecutorial power. It traces how judicial choices such as imposing the trial penalty, deferring to sentencing guidelines, allowing coercive plea bargaining, expanding pretrial detention, and adopting narrow or delayed statutory interpretations have structurally reshaped the criminal justice system to favor conviction and incarceration. The Article then proposes practical steps trial judges could implement immediately to reverse these trends, including reducing reliance on pretrial detention, eliminating the trial penalty, ensuring defendants receive discovery and legal rulings before pleading guilty, limiting unnecessary court appearances for misdemeanor defendants, and exercising genuine sentencing discretion through the parsimony principle. Finally, it explains that judges already possess ample authority—rooted in the judicial power to enter judgments, manage proceedings, interpret statutes, and impose sentences—to adopt these reforms, and contends that judicial action is essential if the judiciary is to move from being a contributor to mass incarceration to being a meaningful part of its solution
Frozen in Time: The Supreme Court\u27s Outdated, Incoherent Jurisprudence on Congressional Plenary Power over Immigration
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