The University of Pennsylvania Law Review: 150 years of history.
Author | Greenlee, Edwin J. |
The University of Pennsylvania Law Review (1) is one of the nation's oldest law reviews and the oldest continuously published legal periodical in the United States. (2) The predecessor publication of the Law Review, the American Law Register, was published by members of the Philadelphia Bar beginning in 1852. (3) As the Penn Law Review marks its 150th anniversary, this Essay reviews its history and details a few of the many significant signposts of the previous 150 years. In addition, this Essay looks at a few representative articles published in the Law Review and some of the personalities who made the University of Pennsylvania Law Review the significant publication that it is today.
The birth of the Penn Law Review proper--that is, as a student-edited legal publication closely affiliated with a major law school--was the result of reforms in legal education in the late-nineteenth and early-twentieth centuries. The Penn Law Review shares a common history with a number of other law reviews that were established during the same time period, such as those at Harvard, Columbia, and Yale law schools. (4)
The Law Review has faced many of the same challenges that have been presented to legal education and the legal profession itself. From its inception until today, the Law Review has had to strike a balance between the pragmatic orientation that legal practitioners require and the more academic, scholarly approach that first developed in legal publishing during the advent of the twentieth century. (5) The Law Review has had to find ways to finance and staff a sizeable publication even during periods of great fluctuation in the University of Pennsylvania Law School's student population, such as those occasioned by the First and Second World Wars. The Law Review, no less than the Law School, (6) has had to work to foster racial, ethnic, and gender equity and access to opportunity. Surmounting these challenges, the Law Review has offered, and continues to offer, a venue for legal scholars to articulate, develop, and refine their contributions to legal discourse.
Over the past 150 years, the ideologies and bases of legal scholarship have changed dramatically, as has the identity of legal scholars. Legal realism, progressivism, and, more recently, multidisciplinary approaches such as law and economics have become new centers of interest. (7) Voices from and for the margin have developed critical legal studies, critical race theory, and feminist theory, as well as varieties of postmodernism that owe their impetus to continental scholars such as Michel Foucault, Jacques Derrida, and Jurgen Habermas. (8)
All of these approaches to legal scholarship have been represented by leading articles in the Penn Law Review. Additionally, articles in the Law Review have captured seminal historical, social, and legal moments in nineteenth- and twentieth-century American history, such as the passage of the Nineteenth Amendment, which extended suffrage to women; (9) the lawlessness of the First and Second World Wars and our attempts to restore lawful administration afterward; (10) the rise of the security state during the Cold War; (11) the struggle for civil rights (12) and the protests against the conflict in the Vietnam. (13) Other historical moments captured in the history of the Law Review include the burst of technology in the late-twentieth century, including the development of computer technology and the Internet. (14)
The contents of the Law Review have included lead articles, case comments, notes authored by the Law Review's staff, book reviews, and asides. (15) Special issues of the Law Review have honored important figures in the legal community such as the Honorable A. Leon Higginbotham. (16) On occasion, the Law Review has published as symposium issues the papers resulting from conferences such as one on metropolitan regionalism, issued in 1957. (17) Part I of this Essay highlights a few representative pieces from the myriad published in the Law Review's first 150 years.
The Penn Law Review has had an impact on a number of levels. As a key institution at Penn Law, one of the nation's premier law schools, the Law Review has influenced the development of the Law School's curriculum. (18) In addition, membership on Law Review has shaped the education and careers of many Penn Law students. Part II will explore a few of the personalities connected with the Law Review over the years.
Beyond the particular editors involved, the Penn Law Review has been a major influence on the development of American law, as indicated by bibliometric and analytical research, which examines citations to law review articles to assess their impact on legal scholarship and judicial decision making. These citation studies are the subject of Part III of this Essay.
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LAW REVIEW SCHOLARSHIP IN CONTEXT
Examining the 150 years of substantive content of the University of Pennsylvania Law Review reveals that some writers explored rather narrow, technical legal issues. Others engaged the pressing social and legal issues of the day, using intellectual tools extracted from within the world of legal scholarship as well as from the broader field of social science.
The history of the University of Pennsylvania Law Review begins with the 1852 publication of the American Law Register during a turbulent period of American history that would see the election of Abraham Lincoln and the onset of the Civil War. (19) The nation was becoming ever more conscious of the tragedy of slavery in 1852, the year in which Harriet Beecher Stowe published Uncle Tom's Cabin. (20) In the years following the Register's debut, America experienced the destruction of the Civil War and the ensuing period of national reconstruction. (21) While many articles in the American Law Register had a narrow, technical focus, several addressed the social and political issues of the times. (22)
The inaugural volume of the American Law Register offered a format the editors retained for most of the first fifty years of publication, prior to the time that it became a publication of the Law School. (23) Each volume included leading articles by legal practitioners, judges, or law professors, along with summaries of recent American cases and foreign judicial decisions. (24) The Register also provided short book reviews and tributes to notable members of the legal profession. Substantive articles focused on doctrinal topics such as chancery court jurisdiction, voluntary assignments of chattel property, and the rights and liabilities of parents vis-a-vis their minor children.
Since its inception, the University of Pennsylvania Law Review and its predecessor publications have attempted to balance service to the legal profession with the advancement of legal scholarship. In its first life as the American Law Register, the Law Review was published, written, and edited by practicing lawyers for practicing lawyers. The first editors in 1852 were Asa Fish and Henry Wharton, members of the Pennsylvania Bar. (25) During the mid- and late-nineteenth century, the publisher of the American Law Register selected judges, practicing attorneys, and law faculty to serve as editors. (26) In 1892, two Philadelphia attorneys, George Wharton Pepper and William Draper Lewis became the sole editors. (27) They published the periodical under the name American Law Register and Review. (28)
In 1895, Lewis became Dean of the University of Pennsylvania Law School, at which time he succeeded in having the Law School take over the production of the publication under the direction of a board of student editors. (29) The 1896 Volume was the first to be published under a group of student editors. (30) In 1908, the name of the periodical was changed from the American Law Register and Review to the University of Pennsylvania Law Review and American Law Register. (31) The publication kept that name until 1945, when it was given its present name, the University of Pennsylvania Law Review. (32)
While the Law Review initially published articles of primary interest to legal practitioners, in time it would adopt a more academic bent. In its first half-century, the American Law Register addressed a number of topics typically characterized as "doctrinal." Doctrinal articles focus on legal rules in traditional areas such as contracts or torts. These articles are distinguished from articles that are more concerned with law's social, historical, political, or philosophical context.
The time during which the Law School took over publication of the American Law Register was an age of great technological change in America. Steam energy and electricity were introduced into the country's manufacturing industries and transportation systems; there was a great change in national transportation, marked by the expansion of the country's railroads. (33) There were, in addition, demographic changes brought about by a new period of immigration from Europe. (34) It was also a time of economic instability and labor unrest. While many of the articles published by the Law Review at this time addressed narrow, technical legal issues, a few reflected their historical context. (35)
The University of Pennsylvania Law Review proper was established in 1896. At about the same time, several other law reviews were being founded at America's premier law schools. The Harvard Law Review began publication in 1887, followed by the Yale Law Journal in 1891. (36) Law reviews were initiated at the law schools at Columbia in 1901 and Michigan in 1902. (37)
The late-nineteenth-century experiences of the University of Pennsylvania Law School parallel the experiences of a number of the other law schools that began publishing law reviews at roughly the same time. (38) In the late 1890s, law reviews adopted the form we know today. The institution of the Law Review is intimately tied to the model of legal education based upon the study of appellate cases, called the case method...
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