7 U. Kan. L. Rev. 477 (1958-1959)
Legal Periodicals and the United States Supreme Court

handle is hein.journals/ukalr7 and id is 487 raw text is: 19591

LEGAL PERIODICALS AND THE
UNITED STATES SUPREME COURT
Chester A. Newland*
[Editor's note. Reprinted from Midwest Journal ol Political Science, Vol. I1, No. 1, pp. 58-74, Feb. 1959,
with permission.]
Even the most casual perusal of the court reports will show that legal periodi-
cals have been cited by the Supreme Court of the United States and by judges
of some other courts in the past several years in proportions that are sharply
increased over those of three decades ago. Most law schools now publish re-
views; together with bar journals and related publications, their total number
today is well over 100.1 Comment upon judicial decisions and critical inquiry
into broader problems of the law have become generally accepted functions of
these periodicals. Today, their critical role seems to be an almost inevitable ele-
ment in the continuing process of fitting the law to the demands of society. It
is commonly understood that legal counsel and judges regularly turn to the
reviews as sources of information and analysis of legal problems.
This article summarizes the actual proportions in which legal periodicals
were cited by the Supreme Court during the period from the October Term,
1924, through the October Term, 1956, and it briefly describes the reliance on
legal periodicals in a few cases selected for illustration. While the circumstances
of the increase in citation of legal periodicals can be shown in this abbreviated
manner, the reasons for the change can only be suggested here by way of intro-
duction. Also, opinions of what the role (or roles) of law reviews should be
will only be considered incidentally.
In 1931, Justice (then Chief Judge of the New York Court of Appeals)
Benjamin N. Cardozo, in an introduction written for a compilation of articles
on the law of contracts, called attention to the growth in respectability of law
reviews as sources of legal authority. Commenting on the reasons for the
change in reliance on legal periodicals, Cardozo said The leading cause ...
has been a dislocation of existing balances, a disturbance of the weights of
authority and influence. Judges and advocates may not relish the admission,
but the sobering truth is that leadership in the march of legal thought has been
passing in our day from the benches of the courts to the chairs of the univer-
sities.2 Ten years after Cardozo wrote these words, Chief Justice Hughes
characterized the law reviews as the fourth estate of the law. Hughes said:
It is not too much to say that, in confronting any serious problem, a wide-
* Social Science Research Council Research Training Fellow.
'The INDEX To LEGAL PERIODICALS listed 242 publications in 1957, including several published in
Canada, Great Britain, and other countries.
2CARDOZO, Introduction to SELECTED READINGS ON THE LAW OF CONTRACTS FROM AMERICAN AND
ENGLISH LEGAL PERIODICALS at vii. (Comm. of the Ass'n of Am. Law Schools 1931).

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