I. Hello to Law Reviews

he standard story of the rise of the American law review is so familiar as to be almost legendary. In 1887, after attempts to create a student-edited law journal at Albany and Columbia had already failed,¹ a group of ambitious students at the Harvard Law School - among them the future legal scholars John Wigmore and Joseph Beale - approached Professor James Barr Ames² of the Harvard law faculty to suggest the inauguration of a school-sponsored legal periodical that would contain not only student-written essays and case comments, but also scholarly papers contributed by Harvard law professors and other prominent members of the bar. The students hoped that in addition to providing a new platform for legal scholarship, such a periodical would spread the word about the Harvard Law School, and especially about the case-method that they and their faculty mentors were pioneering. Seeing the wisdom of the proposal, Ames agreed to act as the law review's advisor and first contributor.³ The newly-formed Harvard Law School Alumni Association provided significant financial backing, and the Harvard Law Review was born. The Review proved so successful that it soon spawned imitators among other American law schools that aspired to Harvard's growing status and prestige.⁴ Within a few decades, the law review had become a fixture of the American legal landscape, with dozens of law reviews in publication, and many more on the way.⁵

[1.2] As a rendition of specific facts, this story is not inaccurate, but as an explanation of the initial development and popularization of the law review it is nonetheless inadequate. It has two fundamental failings. First, in focusing (however understandably) on the particularities and personalities of Harvard, it downplays the extent to which the law review served the general interests of the university-based law school as an institution seeking to advance itself in late nineteenth and early twentieth century America; even as confined to Harvard, it presents the law review as the creature of narrow legal considerations where there is at least circumstantial evidence to suggest that broader scholarly concerns might also have animated Ames, the colleagues who supported him, and perhaps his precocious band of law students. Second, the traditional story totally disregards contemporary technological developments in the printing and publishing industry that in the late nineteenth century made law school sponsorship of legal periodicals conceptually plausible and financially practicable for the first time. As a result of these two shortcomings, the law review has been portrayed more as a happy serendipity or a legal peculiarity than as a complex but rational product of its time. In the remainder of this section I will argue for the last of these interpretations.

...the law review has been portrayed more as a happy serendipity or a legal peculiarity than as a complex but rational product of its time.

[1.3] In late nineteenth and early twentieth century America, university-based law schools were not nearly as populous, powerful and prestigious as they are today. They were admittedly not new - law had been taught at Harvard as early as 1815, and the university had operated a separate law school since 1817.⁶ Neither were university-based law schools all that rare any more; by the late 1880s, there were over 45 of them.⁷ For all their age and their numbers, however, the schools were, by and large, marginal institutions. They were marginal professionally: universally into the 1890s, and in many regions of the country through the 1900s, most American lawyers still received their education by the more traditional means of apprenticeship.⁸ In this context, formal legal education was seen (at best) as a supplement to office training, not a substitute for it.⁹ University-based law schools were also marginal academically. Many (such as Harvard) existed on the intellectual and physical outskirts of university campuses. Most counted for little in their universities' overall academic reputations,¹⁰ and sometimes for less in their budgets.¹¹

[1.4] In this context, ambitious law professors sought ways to advance their institutions, their students and themselves. They had several implicit (and sometimes explicit) goals. First, they wanted to provide their students with a superior form of legal training that would positively distinguish the latter from students trained only in law firms.¹² Second, they wanted to develop their ties with the practicing bar in a way that would increase the legitimacy of their schools and enhance their own reputations in the professional legal community which they served and in which most of them still worked part-time. Third, they wanted to strengthen their connection with alumni whose support promoted law school solvency, professional goodwill and the employment of law graduates.¹³ Fourth, they wanted to improve their academic status in their respective university settings.

[1.5] While legal academics were pursuing these goals, contemporary publishing technology was changing. In the last decades of the nineteenth century, new high-speed rotary printing presses came into general use.¹⁴ At the same time, paper-making processes accelerated thanks to the widespread substitution of ground woodpulp for rags.¹⁵ Together, these developments pushed printing and paper costs to unprecedentedly low levels.¹⁶ Taking advantage of the savings, established and new publishers flooded a waiting American market with inexpensive books and magazines. In 1880, 2076 new books were published in the United States; in 1884, over 4000; in 1895, over 5400.¹⁷ There were approximately 3300 American periodicals in publication in 1885; by 1890 that number had risen to more than 4400; by 1895, there were approximately 5100 being produced across the country.¹⁸ The explosion in the available volume of printed matter became the subject of public comment, and even public concern. In 1895, the editor of The Nation observed that the "multiplication and cheapening of periodical literature within the past five years have been extraordinary."¹⁹ In 1896, the editor of another journal concluded (somewhat ironically, perhaps), that "this is a book-enslaved generation. Too many books, too many newspapers, too many magazines - too little reflection, too little originality."²⁰

In the last decades of the nineteenth century....established and new publishers flooded a waiting American market with inexpensive books and magazines.

[1.6] Law was hardly immune from the lure of cheap print. The number of new law books - and reprints of old ones - published each year hit record levels in the 1880s and 1890s.²¹ In 1880, 62 new law books were published in the United States; in 1882, 261; in 1889, 410; in 1896, 507.²² Lawyers inevitably complained about the burgeoning mass of texts and precedents. In 1882, Chicago attorney J.L. High, writing in the American Law Review, called the increase in materials "appalling": "so far from strengthening the foundations upon which our jurisprudence as a system is based, [it] has a well-defined tendency to weaken them by the substitution of precedents for principles in the practical administration of justice."²³ For fear of missing something important or being at a disadvantage, however, most lawyers continued to buy and stock as many new law books as they could afford.

[1.7] The new technology lowered the cost of printing legal periodicals to a point where they could be sponsored by relatively impecunious law schools.²⁴ The flood of periodicals which the new technology facilitated also helped to create an intellectual and cultural environment in which publishing a periodical seemed unremarkable, even for law schools that would not previously have considered such an ostensibly-ambitious and even pretentious undertaking. The fact that a school- sponsored law journal might be feasible and credible, however, was not enough to ensure that such an experiment would actually be attempted. That final step required purpose as well as opportunity.

...new technology lowered the cost of printing legal periodicals to a point where they could be sponsored by relatively impecunious law schools.

[1.8] Unfortunately, there is precious little before-the-fact evidence of precisely which positive factors prompted law professors in a significant number of American law schools to support the inauguration of school-sponsored law reviews in the late nineteenth and early twentieth centuries. Contemporary circumstances and the range of formal, after-the-fact justifications for publication strongly suggest, however, that law professors at these schools believed that law reviews were capable of advancing their aforementioned institutional and personal goals in a variety of ways. First, a law review could further the legal education of law students.²⁵ At the most general level, law students reading their school's law review would presumably benefit from the writings of their professors, and perhaps also their student colleagues. If law students were actually put in charge of a law review, its educational and ultimately professional value to them would be greater still. Acting as editors, they would gain by evaluating and polishing the contributions of law professors and practitioners. As contributors in their own right, their attention would be focussed on recent developments in the case law, and they would gain proficiency in legal analysis, research and writing. Insofar as few if any of these opportunities were available to apprentices working in law firms, working on a law review would make law school graduates uniquely capable in an American legal environment increasingly saturated with printed precedents, statutes and texts.²⁶ As a result, those graduates would be more attractive to potential employers, and the schools and professors that produced them would gain prestige and profit.

[1.9] Coincidentally, making law school graduates more attractive to law firms by virtue of the formers' experience on school-sponsored law journals offered a way to strengthen the connection between law schools and the bar.²⁷ Not only could a student-edited law review provide the bar with a pool of specially-trained recruits, but - assuming it were staffed by the law students with the highest grades - it could also provide a convenient criterion by which hiring attorneys could identify the best and the brightest law graduates. This criterion appeared increasingly attractive once schools such as Harvard eliminated the formal "Honors" programs which had once served the same "streaming" function.²⁸ With or without student editing, a school-sponsored law journal could provide practitioners with a useful professional service²⁹ - first, an additional medium through which they could communicate with other practitioners, and second, a source from which they could regularly glean information on new cases, new legislation, and the broader implications of those. At a time when the bar was being buried with more printed information and material than it could readily assimilate, this latter function was potentially critical: a law review could serve as a law digest, potentially saving busy practitioners both time and the money they would otherwise have spent on rapidly-outdated treatises, reports and statutes. Of course commercial legal journals and digests were already available, but the mass of information descending on the American legal community at the turn of the century was such that more law journals offering analyses, updates and reviews were always welcome. A law school that chose to publish such a journal could gain increased professional recognition and influence, as could the law professors whose writings appeared in its pages.

The fact that a school-sponsored law journal might be feasible and credible, however, was not enough to ensure that such an experiment would actually be attempted. That final step required purpose as well as opportunity.

[1.10] Third, a law review could address a law school's institutional need to gain and keep the support of alumni by providing a product that would bring news of the school to their attention on a regular basis. More pro-actively, it could also provide a forum in which they could publish, correspond and generally maintain ties with one another.³⁰ A school-sponsored law journal promised to be particularly useful as a bonding mechanism when (as was already the case in a number of prominent instances in the late nineteenth century) a law school's graduates were scattered over a broad geographical area, limiting the opportunities for face-to-face meeting and regular conversation. Of course, the more that alumni felt connected to each other and to their alma mater, the more likely they would be to hire their alma mater's graduates, send their own sons (and even daughters) there, recommend the school to friends, and (most importantly) contribute to its coffers.

[1.11] Finally, a school-sponsored law journal could enhance a law school's academic and scientific reputation. In late nineteenth century America, the focus of the academic community was starting to shift from teaching to scholarship. The German model of post-secondary education that was becoming increasingly influential in the United States around this time encouraged universities to re-invent themselves as producers (as opposed to merely conveyors) of research and learning that would stimulate progress and reform.³¹ In 1876, Johns Hopkins University was established as the first American "research university." Consistent with the new emphasis on research, academics in a wide range of disciplines turned to writing. Universities and learned societies created numerous journals to contain the new scholarship, which could not be absorbed (and in many instances would not have been accepted) by then-existing commercial or learned periodicals.³² The declining cost of print facilitated and further stimulated this process. The last quarter of the nineteenth century witnessed the birth of such scholarly stalwarts as the American Journal of Mathematics (1878), the American Chemical Journal (1879), the American Journal of Philology (1880), the Journal of the American Medical Association (1883), the Political Science Quarterly (1886), Modern Language Notes (1886), the American Journal of Psychology (1887), the Journal of Political Economy (1892), the American Historical Review (1895), the Journal of Physical Chemistry (1896), and the American Journal of Sociology (1896). Ultimately, a variety of universities set up their own presses to facilitate the distribution of their faculties' research products. Predictably, Johns Hopkins led the way in 1891, followed by Chicago (1892), Columbia and the University of California (both in 1893).³³ All this activity created an environment in which intellectual respectability was increasingly associated with the sponsorship of journals and the practice of publication.³⁴ In this context, the inauguration of a school-sponsored law review could offer a university-based law school an unprecedented academic opportunity. As the patron of a "learned" journal providing a needed forum for its faculty's scholarship³⁵ outside the traditional confines of treatises³⁶ and commercial legal periodicals³⁷, it could at last make common academic cause with other progressive departments and professional schools on its campus (even if its own journal were student-edited).³⁸ Even more fundamentally, it could demonstrate that the law was amenable to "scientific" study,³⁹ and that a law school belonged in the university.

As the patron of a "learned" journal,...a law school could at last make common cause with other progressive departments and professional schools on its campus.

[1.12] Of course, it was not altogether accidental that students and professors at the Harvard Law School were the first to realize the law review's potential. James Barr Ames, the Harvard Law Review's principal faculty supporter, was the first of a new breed: the fully-academic law professor with minimal practical experience, appointed in the expectation that he would devote his career to teaching and scholarship.⁴⁰ Ames had begun scholarly work (mostly in legal history) soon after joining the Harvard law faculty, but prior to 1887, he lacked an obvious outlet for that work in the contemporary legal journals.⁴¹ His Dean and mentor, Christopher Columbus Langdell, had developed a new pedagogical method - the case method - that he, Ames, and their law students were anxious to celebrate and publicize.⁴² Both Ames and Langdell were operating in the midst of a university that under the leadership of President Charles Eliot had taken a backseat only to Johns Hopkins in its emphasis on research and publication (and Johns Hopkins, of course, did not have a law school).⁴³ The Harvard Law School had established its own Alumni Association in 1886, and was looking for a means of keeping in touch with graduates already scattered across a wide variety of American, and even foreign jurisdictions. Last but not least, the same Alumni Association - dominated by well-off Boston and New York lawyers - had access to significant financial resources and was willing to use those resources to advance the Law School's interests.⁴⁴ In these circumstances, the student proposal to create a law review seemed especially sensible and attractive.⁴⁵ At least some of Harvard's ambitions for its review were explicitly articulated in a note to the first issue (written, of course, by the student editors): "Our object, primarily, is to set forth the work done in the school with which we are connected, to furnish news of interest to those who have studied law in Cambridge, and to give, if possible, to all who are interested in the subject of legal education, some idea of what is done under the Harvard system of instruction. Yet we are not without hopes that the Review may be serviceable to the profession at large."⁴⁶

...the rapid proliferation of law reviews in the late nineteenth and early twentieth centuries should not be considered as a mere instance of "following the leader."

[1.13] Ultimately the attraction of the school-sponsored law journal was such that shortly after the launching of the Harvard Law Review, other journals began to appear under the sponsorship of other law schools. The example and success of Harvard were certainly factors in this trend,⁴⁷ but the rapid proliferation of law reviews in the late nineteenth and early twentieth centuries should not be considered as a mere instance of "following the leader".⁴⁸ Some of the same concerns and interests that in the context of improved print technology had apparently urged the Harvard law students and faculty towards journal publication also spoke to students and legal scholars elsewhere.⁴⁹ In 1891, for example, the editors of the new Yale Law Journal launched their effort with these words: "the graduates of the Yale Law School...have lacked the esprit de corps, which is necessary for effective unity. The formation of the Alumni Association was a step in the right direction. The Law Journal is intended to be another. It provides a common means of communication between the graduates and the students, and its success should be a mark of the vitality of the school."⁵⁰ In 1917, the Minnesota Law Review opened its first issue by observing that "the present position of the typical law school, as compared with the medical school, is discreditable to the former; its influence with the profession is not what it ought to be. The law review is one of the means by which the law school may make its influence...felt....".⁵¹ Over time, the focus of justification for new law reviews changed subtly as law schools gained prestige (making bold declarations of institutional ambition superfluous), alumni relations came to be fostered through other channels (making that purpose of law review publication less important), and not publishing a law review became more remarkable than publishing one (making justifications as a whole less necessary, or at least less lengthy). Functionality, however, continued to be seen as the key to a review's potential success: as the editors of the George Washington Law Review explained in their first issue, produced 45 years after Harvard's: "Publication of a law review by any school is justified by the additional contributions to legal literature which it stimulates and the opportunities for better training to students which it affords."⁵²

[1.14] This brief history of the initial development and popularization of the law review suggests that the law review was very much the product of its times⁵³ - in particular, the product of a conjunction of contemporary academic circumstances and then-current technological advances. Insofar as it had emerged in response to perceived goals, it was potentially vulnerable to criticism as it tried to fulfill those goals, and as those goals evolved. In the next section of this paper I will trace the course that criticism of the law review has taken over the years, I will investigate why various criticisms arose when they did, and I will examine the structural and substantive reforms that have attempted to preserve or advance the law review's position in the ever-changing American legal academy.