ABSTRACT
Drawing on two hand-collected data sets of 10,466 state supreme court cases from 2019 and 7,354 state supreme court cases from 2003, this study examines patterns of citations to prior opinions of courts located in other states. We find robust evidence that state supreme courts preferentially cite to opinions of nearby courts and correspondingly refrain from citing decisions of courts in faraway states. We also find strong evidence for a ‘gravity’ model of citations similar to the pattern postulated for international trade in goods: other things equal, the volume of citations to courts in other states will be directly proportional to the size of the cited state and inversely proportional to the distance between the citing and cited states. We examine other potential influences on citation practices: cultural attitudes, political similarity, ideological affinity, classifications in the Westlaw Reporter series, case type, transmission of legal knowledge by attorneys, and the possible impact of choice-of-law rules. In general, factors other than distance and size play a minor role. The study suggests the possibility of sub-national or regional effects in the administration of state judge-made law. One might, albeit with a bit of hyperbole, call this a form of regional common law – not one that is actually organized or defined along regional lines (although regions do make a difference), nor one that has binding legal effect or is explicitly recognized by courts – but nevertheless a set of practices and preferences that cannot adequately be explained other than by the hypothesis of regional influence in citation practices.
Chang, Yun-chien and Miller, Geoffrey P, Regional Common Law (March 12, 2021). Journal of the Legal Profession, volume 45, 2021.
First posted 2021-03-18 15:00:57
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