The project of the Harvard 'Forewords': a social and intellectual inquiry.

• Author: Tushnet, Mark V.
• Position: Forewords to annual Supreme Court surveys in the Harvard Law Review

Since 1951 the editors of the Harvard Law Review have selected a prominent scholar of constitutional law to write a "Foreword" to the Review's annual survey of the work of the Supreme Court. Within the community of scholars of constitutional law the "Forewords" are widely taken to be good indications of the state of the field. The Foreword project defines a vision of the field of constitutional scholarship. After describing the history and current reputation of the Forewords, this Essay examines some of the structural constraints on the project. It concludes with an analysis of some dimensions of the intellectual project the Forewords have defined. In addition to proposing a modest revision of the accepted understanding of the intellectual history of constitutional law scholarship, we hope that, by suggesting a less-than-obvious connection between constitutional scholarship and constitutional law, the analysis can give us insight into the directions constitutional law scholarship may take in the next decade.

1. HISTORY AND IMPACT

   The Harvard Law Review began to publish student-written Notes surveying the prior Supreme Court Term in 1949. Two years later the first Foreword appeared.(1) Since 1985, the Review's Supreme Court edition has included a legal scholar's case comment on one major decision of the previous term.(2)

   The Forewords continue a tradition at the Review examining the work of the Court on a term-by-term basis.(3) The tradition began with a series of articles on the Court written by then Harvard Law Professor Felix Frankfurter,(4) who was joined by James M. Landis and Adrian S. Fisher, and by Henry M. Hart, Jr., who was to have his own Foreword in 1959.(5) At first these articles considered only one Supreme Court term, but in 1937 they began to consider two terms in one article.(6) Frankfurter's participation ended in 1938, a year before he was appointed to the Supreme Court. The series ended shortly after Frankfurter left.(7) The articles begun by Frankfurter are similar to the successor Forewords in that both rely predominantly on legal scholars, not students.

   Over time, the Forewords have gained a considerable prestige and influence. For example, to support the proposition that "[o]ur age is obsessed with equal protection," James Liebman notes that "11 of the last 26 Forewords ... have been principally concerned with equal protection."(8) The so-called "Republican Revival" was validated by Frank Michelman's Foreword of 1986.(9) This growing prominence is reflected in stylistic changes within the Forewords themselves, frequent citations to previous Forewords by subsequent Foreword authors and other scholars, and generalizations about the Forewords or their authors.

   Two stylistic changes mark the transformation to prominence. First, through 1955 the Foreword author's name appeared at the end of the article, although lead articles placed the author's name at the front. In 1956 the name of the Foreword's author appeared at the front. The shift in 1956 acknowledges that the Forewords had become the intellectual equivalent of the lead articles.(10)

   A second stylistic shift seen in the Forewords is their increasing length.(11) Although this increase in size was part of a general increase in the size of law review articles,(12) it does suggest that the Forewords were becoming more important. The change in length between the first and second decade of Forewords brought about a greater than proportional increase in quality. Among the first ten Forewords, several are brief, inconsequential essays likely dashed off rather quickly; unlike later Forewords, they do not attempt any systematic or extensive approach to the preceding Court. term. Indeed, the Forewords' increasing length is one function of the authors' efforts. As the Forewords became more highly regarded, scholars might have been inclined to write more; they may have felt that they had to measure up to the standards set by their predecessors.(13)

   The significance of the Review's project can also be seen through citations to Forewords, including the degree to which Foreword writers cite previous Forewords. Such citations may reflect an author's belief that the previous Forewords were significant enough to be considered as authority, and, we suggest, increasingly significant as authorities. They also identify the Forewords as an intellectual project.

   The first citation to a Foreword in a subsequent Foreword occurred in 1955.(14) Thereafter, Foreword writers have often cited the work that preceded theirs. Indeed, the authors begin to treat the Forewords as an institution unto itself. Griswold's 1959 Foreword uses Hart's Foreword and Judge Arnold's reply as a springboard. In 1964, Kurland's Foreword's first sentence refers to "[t]hese annual chronicles of the work of the Supreme Court of the United States, of which this is the sixteenth."(15) Kalven's 1972 Foreword refers to "this annual task."(16) By 1973, Tribe takes up Gunther's 1972 Foreword with the phrase, "[l]ast year in these pages."(17) By referring to "the task of Foreword-writing," Tribe is also the first such author to describe Forewords as a unique genre.(18) Finally, Karst recognizes Forewords as an institution with his comment about ideas offered "in these pages."(19) Notably, the first Forewords did not treat them as a distinctive form of scholarship with a project of their own.

   Another aspect of the Forewords' growing importance may be seen in the degree to which Forewords are cited by other scholars. Such citations reveal some Forewords to be among the

   "classics of legal scholarship."(20) One study found that among the fifty most-cited law review articles, five were Forewords; the most-cited law review article in the entire study was Gunther's 1972 Foreword.(21)

   The Forewords' prestige is also reflected in generalizations made about its authors and about the Forewords themselves. John Hart Ely writes that whoever writes the most recent Foreword is the "`hottest' constitutional theorist in the country" at the time,(22) and though Ely's specific references were designed to express his respect for scholars he was then criticizing, his comment plainly reflects the profession's general view. In 1971, Judge Skelly Wright felt that the legal process Forewords of the 1950s and 1960s were such a strong influence and force to be reckoned with that he placed them within "the scholarly tradition"--a unique "mode of scholarly criticism"--and felt the need to criticize the view of the Supreme Court's limited role they espoused.(23) A 1985 study of the most-cited law review articles noted that

   [o]ne area of omission in Shepard's Law Review Citations

   which it was necessary to rectify involved the annual Forewords

   to the Supreme Court issue of the Harvard Law Review.

   Although this is a prestigious series which often presents important

   scholarship, Shepard's lumps it together with notes,

   comments, book reviews and the like ....(24)

   The decision of the study's author to make methodological adaptations to include the Forewords, and the laudatory comments he addressed to this series, are strong indicators of their significance.

   2. STRUCTURE

   Next we identify some structural features of the Forewords which, we argue, have some bearing on the nature of the questions addressed and answers offered by the Forewords. Although, as that formulation suggests, there can be no sharp division between structure and substance, our primary interest lies in identifying the intellectual project of the Forewords taken as a group. The structural features we identify provide some constraints on the intellectual project itself.

1. Elite status: Not surprisingly, most of the authors of the Forewords have been associated with the nation's elite law schools.(25) The first Foreword written by someone not closely associated with Harvard itself was either Bickel's of 1961 or Pollak's of 1963.(26) Tigar, writing the 1970 Foreword, was the first author not teaching at one of the elite law schools,(27) and of the forty-three authors only seven were not teaching at elite law schools when they wrote the Forewords.(28)

   There are a number of reasons for the concentration of authors at elite law schools.(29) First, there is the usual "home court advantage": those who teach at an institution generally have favored access to "their" school's law review. Twenty-one of the Forewords have been written by scholars teaching at Harvard.(30) Second, and not unrelated, there is the "Matthew effect":(31) those

   invited to write Forewords must be known to the editors of the Harvard Law Review; they will inevitably be differentially aware of scholars at Harvard who could be considered as potential authors of Forewords, and the nature of elite education suggests that they will be differentially aware of similar scholars at other elite schools.

   These explanations describe a causal arrow running from the elite school to selection by the editors: "Because these people teach at elite schools, they are candidates for authorship of a Foreword." Perhaps, though, the causal arrow runs the other way: "If a person has an interesting mind, he or she will be more likely to teach at an elite school, and will-independently of the `school' effect--be more likely to be invited to write a Foreword." Some such mechanism might well be at work to some extent. Elite schools have reached that status in part because they attract and select faculty members who have interesting minds at a somewhat higher rate than non-elite schools, and then provide them with an environment of intellectual and material resources that allows that effect to be amplified. Still, we note two qualifications. First, the rate of elite authorship seems somewhat high even taking this causal mechanism into account.(32) Second, if the causal mechanism is that having an interesting mind leads one both to be invited to write a Foreword and to be on the faculty of an elite law school, we...