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Thursday, October 19, 2006

When the Law Review was Young

Over the last six months,  I have spent a great deal of time reading law review articles from the first few decades of the 20th century.  Initially, I was reading the articles as part of my research for an article on the history of the development of a distinction between substantive and procedural due process (a topic I will return to later in my visit if time permits).  About six weeks into my research, however, I realized that--in addition to my project on the due process super-structure--I was going to have to write an historical article on the early Law Reviews themselves.

What you might ask was so surprising? So fascinating as to change my research agenda?  Well, across journals and authors, there was a freshness to the writing, a spontaneity of both style and content that was worlds away from both the dry legal treatises of the 19th century and the formulaic law review articles of the late 20th and early 21st century.  There was an almost palpable sense that the new medium of university-affiliated journals was creating a new genre of legal commentary, whose contours were up for grabs in every piece of writing.

To draw the obvious parallel, the law review was to the early 20th century what the blog is to the early 21st--a new medium that is faster, cheaper, and more democratic than previous avenues of commentary and scholarship.  Whereas much of the legal scholarship of the 19th century came in the form of treatises and other similarly long-range projects, the law review opened up the opportunity for timely commentary on recently decided cases, for commentary that was more impressionistic and provisional, and for commentary by a wider swath of students, practitioners, and untested academics.

There is a deeper academic story here about the conversation that ensued between the commentators and the courts as both law review writers and judges tried to make sense of a rapidly--and to some extent haphazardly--evolving constitutional landscape.  But for today, I just wanted to tell the tale of a time when the law reviews were fresh and hip.

Posted by amsiegel on October 19, 2006 at 02:20 PM | Permalink


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Tracked on Oct 19, 2006 5:07:39 PM


So did the "young era" of law reviews end with Fred Rodell's "Goodbye to Law Reviews" in 1936? As for your paralell to law blogs, I'm sure many critics of them would echo Rodell's line that "There are two things wrong with almost all legal writing. One is its style. The other is its content."

Posted by: Milbarge | Oct 19, 2006 3:11:07 PM

Just as good were all the jokes and humorous anecdotes the older law reviews included. Sort of an academically sanctioned Reader's Digest "All in a Day's Work."

Posted by: Jeremy A. Blumenthal | Oct 19, 2006 4:35:48 PM

Based on the comment and a conversation with a colleague, I should clarify that what I like so much about the early law reviews (Harvard is a partial exception here) is how willing they were to be wrong. If a student, lawyer, or young professor saw an interesting set of cases or a confusing supreme court decision, he (and it almost always was a he) jumped right in with 10 or 20 pages of speculation as to what might be driving the case(s). Particularly in the arena of due process (which is what I was substantively researching) the sheer volume of ideas and theories bouncing around in the law reviews between say 1900 and 1940 was extraordinary.

Posted by: andy siegel | Oct 19, 2006 4:38:45 PM

"is how willing they were to be wrong."

I don't think that today's 'scholarship' is missing any of that. Just try examining some of the "Law and..." articles.

Posted by: andy | Oct 19, 2006 4:46:15 PM

"is how willing they were to be wrong."

I don't think that today's 'scholarship' is missing any of that. Just try examining some of the "Law and..." articles.

Posted by: andy | Oct 19, 2006 4:46:18 PM

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