By knowing what a judge cites, one may better understand what the judge believes is important, how the judge understands her work will be used, and how the judge conceives of the judicial role. Empirical scholars have devoted serious attention to the citation practices and patterns of the Supreme Court of the United States, the United States Courts of Appeals, and multiple state supreme courts. Remarkably little is known about what probate courts cite. This Article makes three principal claims — one empirical, one interpretative, and one normative. This Article demonstrates through data, derived from a study of all decrees and orders issued by the New York County Surrogate’s Court in the years 2017 and 2018, that the probate court located in the most densely populated county in the United States cites fewer authorities less often than almost any other court (of any level) for which data is available. There are a variety of factors that may explain this low rate of citation by the New York County Surrogate’s Court, including docket size, the size and composition of the court’s staff, a judicial perception that the application of the law is a relatively mechanistic process, or a subjective determination that speed in processing the court’s docket outweighs any public interest in citation-replete decrees and orders. Yet by increasing its engagement with a range of authorities, the New York County Surrogate’s Court (and indeed any probate court) may increase public confidence in the judiciary while also enhancing understanding of trusts and estates as a complex and dynamic area of law.
Bridget J. Crawford, What Probate Courts Cite: Lessons from the New York County Surrogate’s Court 2017-2018, 53 U.C. Davis L. Rev. 2125 (2020), https://digitalcommons.pace.edu/lawfaculty/1163/