Last week, the New York Times published an article commenting upon a recent study published by the UC Davis Law Review, which purported to quantify the “influence” of the various state courts among their brethren.

Although the New York Times breathlessly found the “study’s methodology … smart and hard to quarrel with,” other state supreme court justices were not as easily impressed. One such justice anonymously and dryly observed:

[A] report by the chief supervising attorney of the Supreme Court of California and the reporter of decisions of California that concludes — voilà! — that California is the most ‘followed’ jurisdiction in the nation is presumptively suspect.

Texas’s own Don Cruse over at SCOTX Blog, had a more incisive and penetrating objection to the “smart … methodology” of which the New York Times was so enamored. Therein, Cruse explains that:

By focusing on “follows,” the study gives greater weight to decisions that ground themselves in broad notions of the common law rather than some other source of authority, say, a statute passed by a legislature. My guess is that this means the study overweights decisions that expand common-law doctrines — such as tort law, privacy rights, and the like. By contrast, court decisions that contract such doctrines (such as tort reform) often cite as authority the state’s own idiosyncratic statutes rather than “following” another state’s lead.

With that in mind, it seems little wonder that the Supreme Court of California is the leader in “follows,” as it remains in the vanguard of creating new common-law doctrines. And for those who have followed the ebbs and flows of Texas politics, it also seems unsurprising that the Texas court is less likely to lead in that category in the 1990s and 2000s than it was in the 1960s and 1970s.

In an interview with the New York Times, Judge Michael A. Wolff (only that court’s Chief is referred to as a “Justice”) of the Missouri Supreme Court echoed Cruse’s theory, explaining the California Supreme Court had been “out in front in emerging theories of liability,” and that such decisions “were accompanied by a Greek chorus of academic commentary, favorable for the most part as long as the trends remained liberal.”

Unsurprisingly, the California authors of the California law review article finding the California Supreme Court to be the most “influential” in the land, pointed to other factors explaining why California’s supreme court was “followed” most often; namely because of the “[r]eputation, [p]rofessionalism, and ‘[l]egal [c]apital'” displayed by the court. See Jake Dear & Edward W. Jessen, “Follow Rates” and Leading State Cases, 1940-2005, 41 U.C. DAVIS L. REV. 683, 706 (2007). The fact that the livelihoods of both authors depended upon the court the study deemed most “influential” was not overtly cited as a contributing factor however.

Thx to SCOTX Blog for it’s excellent analysis, Blawgletter, and to SCOTX for refusing to create new theories of liability where the law and facts don’t merit such action

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