Academic

Measuring the Rapid Rise in Citations to Judge Posner's Opinions

By Alfred Brophy

Christopher McCurdy and Ryan Thompson of Duke Law School have just posted a new study of citations to Judge Posner's opinions, "The Power of Posner: A Study of Prestige and Influence in the Federal Judiciary" (available here).  Here's their abstract:

Some judges have a disproportionate influence over the American judiciary; existing research has shown Judge Richard Posner is one of those judges. Our goal was to identify and determine how Judge Posner?s influence has changed over time. To measure and track his influence, we collected and compared citation and invocation data from three distinct time frames. While these measurements are imperfect, they can help illustrate the level of influence and prestige Judge Posner enjoys. The existing literature led us to expect Judge Posner?s early citation rates to be low. After several years on the bench, the citation rates for each opinion should rise dramatically. By contrast, Judge Posner's citation rates are exceptionally high from the outset while more recent opinions actually have lower citation rates.

I'm actually not so surprised as the authors that Judge Posner started receiving a disproportionate number of citations early on.  By the time I was a 1L in 1987, he was already a huge figure; part of this is obviously due to his status as a law professor -- but I think his writing style encouraged citations.  A lot of his opinions read -- to my eyes anyway -- as works designed to standardize and make the law accessible and understandable. I'd imagine that's one way to win citations and influence people.  But looking back on this, Judge Posner had only been on the bench, what, five years or so when I was a 1L.

But this also causes to wonder more about citations to my antebellum judges.  I've had a couple of terrific RAs working on citation studies of a couple of my antebellum judges (Ruffin of North Carolina and Lumpkin of Georgia and I'm getting increasingly interested in Gaston).   My sense, though I need to go back and look at the data, is that it took a while for them to rise in citations, with the possible exception of Ruffin's slavery opinion in State v. Mann, which was close to an instant hit, though in the public rather than the judiciary and among antislavery rather than slavery advocates.

McCurdy and Thompson make me wonder about something else, too, though: how much we can draw inferences about a judge from citations.  This obviously taps into a large debate on citations and ranking of judges -- of which their Professor (and very occasional faculty lounge guest poster) Mitu Gulati has written a lot.

Finally, I wonder if part of Judge Posner's early influence is related to his introduction of economic analysis, where it had been relatively sparse before.  Perhaps other judges were initially looking to him for guidance, but as economic analysis became more common, there was less need for citations to Posner opinions?  I'd imagine a similar phenomenon takes place often -- the first cases to interpret a new federal statute, for instance, will get more citations than later opinions making a similar interpretation, I'd imagine.

Anyway, you ought to download it; it's a fast read and entertaining and I imagine it'll open up some more discussion.

Full post as published by The Faculty Lounge on March 06, 2010 (boomark / email).