Academic Legal Writing - Eugene Volokh [75]
There are many other examples, some of which themselves arise from scholars' not checking the original source, and thus repeating the intermediate source's error. For instance, several articles claim that the common phrase “rule of thumb” originated in a “common law rule that a husband could beat his wife without legal sanction if he used a rod no thicker than his thumb.” This etymological claim—like many interesting etymological claims—appears to be mythical.26 But it has appeared in many reputable journals, and is poised to lead still more people into error.
Even Supreme Court opinions can contain mistakes; for instance, Reno v. ACLU, where the Court struck down the first Internet indecency ban (the Communications Decency Act), said the following to distinguish two earlier cases:
The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg [v. New York, 390 U.S. 629 (1968),] and [FCC v.] Pacifica [Foundation, 438 U.S. 726 (1978)], the scope of the CDA is not limited to commercial speech or commercial entities.27
Sounds like you can confidently assert, citing Reno, that the restrictions in Ginsberg and Pacifica were limited to commercial speech or commercial entities.
Unfortunately, the Reno opinion was wrong. The Ginsberg law, which barred the sales of certain sexually themed magazines to minors, was not limited to commercial speech: Such magazines, even ones sold for money, do not qualify as commercial speech, a term that generally refers only to commercial advertising.28 The Pacifica regulation was not limited either to commercial speech or to commercial entities; the broadcast in Pacifica itself was noncommercial speech carried by a nonprofit, noncommercial radio station.29 Whoops.
If you want to cite Reno as evidence of how the Reno Court treated the precedents, that's fine, though from the context it doesn't look like the Court was intentionally trying to redefine the terms “commercial speech” and “commercial entities.” But you shouldn't cite Reno as evidence of what actually happened in Ginsberg and Pacifica—read, quote, and cite the precedents directly.
One significant exception: Judges' discussions of the factual findings in the litigation itself tend to be fairly reliable. These discussions aren't perfect, but they're generally good enough for you to trust. Even in this context, though, consult the most thorough available version of the factual findings—if the trial court's finding of facts are available, read them, rather than just relying on the appellate court's account.
2. Historical, economic, or scientific evidence
If you're making a claim about:
• history (the Framing generation thought this-and-such),
• economics (demand for these sorts of goods operates this way),
• social or physical science (people in this experiment behaved this way),
• or any other specialized discipline,
you should read, quote, and cite a work in that discipline. Do not rely on law review articles that make this assertion.
People who write law review articles are usually not experts in history, economics, and science. Some are quite knowledgeable in those fields, but some have learned just enough to be dangerous.
If possible, you should go to the ultimate source, such as a historical document or a scientific study. Many of the ultimate sources are available in your university library—your law school reference librarians can help you find them, and possibly even borrow them for you from another library, if necessary. Law students often overestimate the difficulty of getting books from other libraries. Librarians tend to be quite ready to help students (or recent alumni) with this sort of research.
Sometimes, you might have to rely on an intermediate source. The ultimate source might be too technical for you to adequately understand. The authors of a book may be expressing their own expert judgment based on a wide range of materials, and no single ultimate source will directly support that judgment. Or you might just not have the time to go through a large body of original