Simpson, Derek A. and Petherbridge, Lee, An Empirical Study of the Use of Legal Scholarship in Supreme Court Trademark Jurisprudence (March 23, 2013). Cardozo Law Review, Vol. 35. Available at SSRN
“Although the usefulness of law review and law journal articles to the decisional lawmaking process is a topic that has captured the imagination of jurists, reporters, and legal academics like few others, very little is actually known about how and why courts use such legal scholarship. This Article addresses that lack of knowledge. It reports an empirical study of the Supreme Courts use of legal scholarship in its trademark jurisprudence that spans the years 1949-2011. Among its contributions are: (1) the identification of Supreme Court trademark cases using and not using legal scholarship, including the identification of the pieces of legal scholarship used in each case; (2) a quantitative description of the use of legal scholarship in Supreme Court trademark jurisprudence, including a comparison to other areas of the Courts jurisprudence; and (3) an analysis and discussion of the Courts qualitative use of legal scholarship in trademark opinions. In connection with this last contribution, the Article offers a preliminary taxonomy useful for descriptively categorizing the various sorts of uses of legal scholarship observed, and further, argues that much of the Courts use of legal scholarship is of the low quality, perfunctory variety. It also discusses the significance of these and other observations to current debates about legal scholarship. This Article should thus be of interest to researchers curious about how and why courts use legal scholarship, to legal scholars who have aspirations of being cited in Supreme Court opinions, to practitioners who are curious about the role of legal scholarship in advocacy, and of course to those legal scholars interested in the High Courts intellectual property, and particularly trademark, jurisprudence.”
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