By Sarah Galer
In 1959, University of Chicago law professor Philip Kurland approached his dean about starting a new faculty-run legal journal, the first of its kind, meant to be a “sustained, disinterested, and competent criticism” of the United States Supreme Court.
That dean, Edward Levi, AB’32, JD’35, a future UChicago president and Attorney General of the United States, encouraged him to pursue the idea but refused any funding, telling Kurland “if what you produce is good enough, it will support itself.”
The following year, The Supreme Court Review became the first regularly published, faculty-edited law journal in the United States, objectively analyzing a wide range of topics on the Court’s history, impact, and behavior. Now after 50 years as the “self-appointed critic” of the Supreme Court that Kurland strived for, the Review continues to be a leader in its field.
“We are trying to publish very high-quality heterodoxy, in terms of criticism of the court,” says Dennis Hutchinson, an editor of the Review since 1986, Senior Lecturer in Law and the William Rainey Harper Professor in the College. “We are not pushing a party line. We turn down what we view to be advocacy scholarship that is just a disguised legal brief for an outcome.”
Kurland, who was the sole editor of the University of Chicago Press-printed journal for 25 years and continued until 1988, sought to engage legal scholars, political scientists, and historians in conversations about Court decisions.
Kurland’s aspirations for the Review embodied the hallmark of the Law School’s academic culture, in which all ideas matter and are worth debate.
“The work of the Supreme Court is one of the few areas in which political scientists and lawyers are dealing with a common body of materials,” wrote Kurland in the preface of the inaugural 1960 issue. “It must be acknowledged that, despite this community of interest, there has been unfortunately little interchange of ideas.”
Journal held in the highest regard
According to Kenneth Karst, an emeritus constitutional law scholar at UCLA who contributed to the first edition as a young associate professor, Kurland’s work on the Review embodied integrity.
“His views and mine about the Court and the Constitution differed considerably, but anyone whose work appeared in these pages would profit by his editing, which always sought to aid the author in expressing his or her position,” wrote Karst in a 50th-edition article in memory its late founding editor.
The Review has only had five editors in its 50-year history: Kurland; Gerhard Casper, who served from 1977-90 and is a former UChicago provost, law dean, professor and now president emeritus at Stanford University; Hutchinson; David Strauss, the Gerald Ratner Distinguished Service Professor of Law, who joined in 1990; and Geoffrey Stone, the Edward H. Levi Distinguished Service Professor, editor since 1992.
“Although it is not common in the rest of the academic world, the vast majority of law journals are student-edited,” says Stone, who currently edits the Review with Hutchinson and Strauss, which as of this issue, is available simultaneously online through JSTOR and in hardback. “Kurland felt there was a need for really highly professionalized commentary about the work of the Court, instead of relying on student-edited law reviews that more randomly decided what will or will not get published.”
By 2006, it was clear that the Review was a first in a growing trend of faculty-edited law reviews; by LexisNexis Directory of Law Reviews’ count, there were now 184 non-student edited law journals, compared to 505 student-edited ones.
Richard Posner, Senior Lecturer at the Law School and judge of the U.S. Court of Appeals for the Seventh Circuit, remarked on this change more than two decades ago, lauding that faculty expertise can benefit specialty journals.
“The focus of scholarly publication at the academic frontier is gradually shifting from student-edited to faculty-edited, faculty-refereed journals,” wrote Posner in the 1986-87 Harvard Law Review, a student law review. “More scholars are coming to realize that law reviews are not well-equipped to select, and through editing to improve, articles outside of the core of legal doctrinal analysis, which, important though it is, no longer exhausts the domain of legal scholarship.”
‘Bridging the gap’ between scholars, lawyers
The Review’s influence has been notable. In 1999, an empirical evaluation of specialized law reviews in the Florida State University Law Review, the Review was ranked first of the 285 journals reviewed. In 2010, Washington and Lee University School of Law’s Law Journals Ranking placed the Review first for the average number of annual citations per article among the 337 peer-edited/refereed law journals included on its list.
“One of the recurring issues in legal scholarship is that the work that interests law school faculty members often is of no interest even to the most sophisticated practicing lawyers,” says Strauss. “The Review has always tried, mostly successfully I think, to bridge that gap—to publish outstanding scholarship that has something to say to people who are in the trenches.”
Contributors to the journal have ranged from newly minted professors to leading legal scholars — which has become somewhat of a tradition for the journal according to Stone. Both he and Hutchinson published their first major articles as young law scholars in the Review. Meanwhile, it has also published three future Supreme Court justices: Antonin Scalia, Ruth Bader Ginsburg, and Elena Kagan.
One of the most influential articles published in the tome was a 1964 piece by Harry Kalven Jr., JD’38, legal scholar and author of the influential Kalven Report (PDF) on the University’s role in political and social action. Kalven foretold the profound influence that the landmark case New York Times Co. v. Sullivan would have on First Amendment jurisprudence.
Other prominent articles have ranged from pieces on Justice Felix Frankfurter and Franklin D. Roosevelt’s “Court-Packing Plan,” to federalism and reconstruction, and Florida’s presidential election deadlock of 2000.
Karst says he published in the Review multiple times throughout its 50 years, in part because its large following of constitutional law scholars helped his work reach his peers.
“Placing an article in the Review is one way of making sure that it is seen—not necessarily read, of course—by most of the people who focus on U.S. constitutional law,” says Karst.