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The Online Version
of the Magazine
of Cornell Law School

 

Spring 2015

 

Volume 41, No 1

Law Review_1

 

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The editorial board of the first issue of the Cornell Law Quarterly, published in 1915. Mahlon B. Doing ‘16 (second from right, middle row) is editor in chief.

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2014 executive editors of Cornell Law Review
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Early issues of the Cornell Law Review took local and national advertising.

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Early issues of the Cornell Law Review took local and national advertising.


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Early issues of the Cornell Law Review took local and national advertising.
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Early issues of the Cornell Law Review took local and national advertising.
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Table of Contents Featured Article

A Century of "Intelligent Discussion and Investigation": The Cornell Law Review at 100

by IAN MCGULLAM
Why do we need another law periodical?

In the inaugural issue of the Cornell Law Quarterly, law professor and soon-to-be dean of Cornell Law School Edwin H. Woodruff, responded to an editorial writer at the Illinois Law Review who claimed that "now it would seem important to ask if law reviews have not developed to a point where only a blind following of precedent can make law schools overlook the economic and literary waste of so many separate school journals." A touch defensively, Woodruff retorted that "the Cornell Law Quarterly will justify its existence if it can reach and be helpful to any considerable number of lawyers who might otherwise give their attention exclusively to the routine of practice, or be satisfied merely with the solution of such legal problems as are brought to their immediate attention under stress of the demands of a particular case."


Woodruff concluded his editorial with the declaration, "This Quarterly, then, will not fail of its purpose, if it substantially enhances the spirit of mutual service between the College of Law and Cornell lawyers; if it aids in some degree to foster any needed reform in the law, or to give help by intelligent discussion and investigation toward the solution of legal problems; and if it satisfies within the college itself among the students and faculty a desire to advance, beyond the point of classroom instruction, the cause of legal instruction in the larger sense."


That was in November 1915. Flash forward a century, and the journal has seen a name change, becoming the Cornell Law Review in 1967; a subscription costs a bit more than the original dollar, too. But there's certainly enough evidence to prove that Woodruff was on to something, in the mountains of influential scholarship given a home in the Law Review, and in the glowing careers of past student editors.


A jaunt through the Law Review archives turns up boldface names aplenty. Several Supreme Court justices have taken to its pages, including Felix Frankfurter in his Harvard Law professor days to analyze the distribution of power between federal and state courts in 1928, Robert Jackson to discuss advocacy before the Supreme Court in 1951, William Douglas to publish an address he gave on the Supreme Court's caseload in 1960, and Ruth Bader Ginsburg in 2004 to explore women's long struggle for acceptance in the legal field. Current events also make an appearance: an article by Professor George Gleason Bogert, who held the position of faculty editor at the Law Quarterly's founding, presented possible reforms to courts martial in 1919 following World War I, and during the fair housing movement in 1968 the journal published a piece entitled "Uncle Tom's Multi-Cabin Subdivision by Lawrence D. Eisenberg."


Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law, says that when he advised the Law Review between 2007 and 2012, he used to remind incoming staffers that "because we are a top law journal, extending an offer of publication in the Cornell Law Review can be the difference in someone getting tenure or not."


He adds that having a journal edited by students, rather than by professors with decades of experience, can sometimes result in a more vital academic discussion. "Expertise can have this effect of dampening interest in new ideas," he says. "In student-edited journals . . . what you do get is an openness to innovation that you often don't see in peer-reviewed journals. New ideas really get a full hearing."


At least as important as the Law Review's contribution to the wider world of legal scholarship has been its effect on the students who edit the journal. "For law reviews, law professors submit simultaneously to multiple journals, which means that most of the best articles published in the country in any given year are going to come through the door of the Cornell Law Review," says Professor Josh Chafetz, the current adviser. "That doesn't mean that the Cornell Law Review is going to publish them, that doesn't mean that they're even going to accept them. It means that the people who work with law reviews have had a chance to read a really high percentage of the high-quality legal scholarship produced over the course of the entire year."

Needless to say, editing the Law Review has always been a lot of work; former editor in chief Nicholas Goldin '99, now a partner at Simpson Thacher, says, "In many ways, I may have been a law student paying tuition, but I was doing the equivalent of a full-time job." But staffers look back on their days at the journal with fondness, and an appreciation for what it taught them.


"I do think that I learned a lot about legal writing, about the disciplined nature of legal writing, about effective persuasive writing," says Dan T. Coenen '78, now a professor at the University of Georgia Law School, of his time leading the journal. "One real advantage of having had the Law Review experience was that when I went into academics, I wasn't afraid of the legal research and writing side. I wasn't afraid of that part of the academic role of generating publishable work that would be credible in the view of people who select work to be published."


Former coeditor in chief Alvin D. Lurie '44 says that another advantage was that it got him used to corresponding with public figures at the height of their careers. "You get into the business of writing letters, 'Dear Mr. President,' or 'Dear Mr. Vice President,' or 'Dear Mr. Majority Leader, would you be interested in writing . . . ,'" says Lurie, who still practices as a tax lawyer. "So getting into the Law Review gave you a whole different vista, a whole different approach. And suddenly you think, Well, my goodness, this is a pretty exciting area."


Having "Editor in Chief, Cornell Law Review" on their résumé has greatly expanded Law School graduates' opportunities as they venture into the wider world. Alison J. Nathan '00, who went on to serve as special assistant to President Obama and associate White House counsel and is currently a judge for the U.S. District Court for the Southern District of New York, says she owes her clerkship with Supreme Court Justice John Paul Stevens in large part to having been editor in chief; she later learned that Justice Stevens especially valued the credential as a sign that an applicant had done extensive editing work and could command the respect of her peers. The Law Review's influence can be seen in the list of former editors in chief who went on to great things, including Elbert P. Tuttle '23, who would serve as chief judge of the U.S. Court of Appeals for the Fifth Circuit in the 1960s, at a time when the court handed down a string of important civil rights decisions; Sol Linowitz '38, later chair of Xerox and confidant to several Democratic presidents, who co-negotiated the Panama Canal treaties and acted as a special envoy to the Middle East for President Carter; and Barber B. Conable Jr. '48, who represented a western New York district in the House of Representatives and served as president of the World Bank.


In a world where having been editor in chief of a major law journal like the Cornell Law Review boosts your chances of professional success, the post has become a potentially valuable weapon in the fight for better representation for women and minorities in the legal world. The Cornell Law Review has seen several notable milestones. Joseph J. Kennedy '93 became the journal's first African American editor in chief in 1992. But perhaps even more important was the pioneering role played by women in the journal's history. Mary H. Donlon '20 was elected editor in chief at the Cornell Law Quarterly, becoming the first female head of a law review in the country, decades before any other law journal. But, while Donlon is relatively well known on the Cornell campus -she went on to become the first female partner at a Wall Street law firm and was active in supporting Cornell and in New York State Republican politics-her successors are less so. It turns out that the Law Quarterly didn't just have the first female editor in chief in the United States, but also the second, Doris J. Banta '46; the third, Elizabeth M. Storey '48; and the fourth, Jean Ann Ripton '49.

Cynthia Grant Bowman, the Dorothea S. Clarke Professor of Law and an authority in feminist jurisprudence, has written about all four women in this magazine, and describes the hostile atmosphere that women faced at Cornell. "The competition to get on a law review is the big race to run in law school," Bowman says.


"So if men were, as they were in the first part of the century in the United States, intent on keeping women out, I think that would also extend to law reviews. That made Mary Donlon really unusual."


The situation facing Banta, now Doris Banta Pree, was somewhat different; in the immediate aftermath of World War II, the Law School's enrollment had dropped precipitously, leaving few students available to keep the Law Quarterly running. "I think if our grades were good, we were practically asked to please be on the Quarterly because there were so few students in the Law School," says Pree. However, Bowman says that as the decade wore on, "veterans were coming home, and they were getting preferential treatment in American law schools in general. So the later women, particularly the ones in the class of 1949, would have been up against that."


Of the latter three women, Bowman says, "Only Doris Banta Pree goes on and has a standard legal success story-she goes to a large law firm and becomes a partner and lives a fairly standard legal career." Pree attributes her job at a St. Louis firm in part to her editor-in-chief credential; a professor's letter of recommendation got her in the door, she says, but, when an extremely conservative senior partner had to sign off on her hiring, she guesses that "probably the fact that I was editor in chief of the Law Review impressed that senior partner who had to . . . hire this woman."


After its early string of female leaders, the Law Review saw a long drought, with no women being elected editor in chief until 1981. Since then, eight women-including the current top editor, Christine Kim '15-have led the journal, less than one every four years. By contrast, the most recent entering Law School class was 44 percent women.


Still, the Law Review has made definite progress toward a better gender balance on its senior staff. Susan Pado has been the Law Review's administrative assistant since 1987. "I remember when I first started, most of the board members were males, and now it has gotten to the point where just this past year, I had all women," she says, referring to the journal's current leadership with a bit of hyperbole. "The editor in chief is a woman, the executive editor is a woman, the senior notes editor is a woman.

The managing editors usually are split between men and women. But back in the day, men usually got these positions just because there weren't a lot of females on the journals. Now I see more and more females taking on the roles on the board of editors." Pado takes a special interest in encouraging female Law Review staffers, and in 2011 she received the Women's Law Coalition's Anne Lukingbeal Award for her commitment to women at the Law School; it was the first, and so far only, time the award has gone to a staff member rather than a faculty member.


The Law Review has adjusted how it chooses new associates over the years, after previously relying solely on class rank. In the late 1960s, the journal started using a writing competition, in addition to grades, in evaluating prospective staff members. Samuel Kilbourn '71, now in private practice in South Portland, Maine, remembers that in 1969 he and a few others who just missed the stringent class rank cutoff were invited to compete for membership by writing a brief note; he made it on, and went on to be an article and book review coeditor.


Over the following decade, use of the writing competition seems to have expanded, according to former staff members from that period. In the 1990s, it was supplemented with the option of following the so-called composite plan, where, in addition to being evaluated on their GPAs and writing contest submissions, prospective Law Review members could write a personal statement that would be evaluated using diversity as a factor. Pado estimates that of the 2014-2015 Law Review staff, slightly more than a third were chosen based on their grades, while the rest were evenly split between those who were evaluated on the basis of their GPA and writing competition entries, and those who opted for the composite plan.


Bowman suggests that some of the revised systems for admission to the Cornell Law Review and other law journals that take factors other than straight GPA into account "maybe have made it fairer" and could account for the increased presence of underrepresented groups. "It takes women and minorities, I think, a bit longer to adjust to the style of law school classrooms and examinations," she says. "You've got to hit the ground really running."


By its very nature, the Law Review has always struggled to keep its memory of its past from fading. With the most senior half of the staff graduating every year, knowledge of what happened even a few years prior can get fuzzy, while documenting the journal's history as it happens usually takes a back seat to actually producing a legal journal while not failing out of law school at the same time.


Nonetheless, editors in chief down through the decades speak of how much they valued the Law Review's traditions. "I remember constantly thinking and reminding myself that we're just stewards for a journal that's been around for generations, and so we have to do our best to keep up the Law Review's traditions and standards while moving it forward," says Goldin.


Goldin recalls how the wisdom of past years was passed on to him when he became editor in chief in 1998. "The morning after our editorial board had been elected, I found a binder waiting for me on the EIC's desk," he remembers. "It had been left by the outgoing editor and began with a letter to me followed by pages and pages of memos, guidance, and random policies that, it turned out, had been handed down from one EIC to the next over many years."


The following year, it was Nathan's turn as the newly elected editor in chief to receive the totemic black binder. "I distinctly remember sitting in that small office for hours and maybe days with Nick and Dan Wenner [the managing editor] and just walking through it in excruciating detail," she says. "The problem was, it was all oral history," adds Nathan. "It was difficult to maintain institutional learning with an annual turnover."


Staff members and faculty have played a key role in helping Law Review staffers take a long view and learn from their predecessors' mistakes. In an institution that's always focused on the next issue, the Law Review's administrative assistant is often the person in the room with the longest memory. Former editor in chief Allan Tessler '78, who went on to a successful career in investment management, described the legendary Law Review secretary Dorothy E. Lord, universally known as "Skip," as the "glue that held everything together." In an appreciation published in the Law Review in 1987 upon her retirement, former editors in chief described Lord's role over the past twenty-one years as much greater than typing up edits and compiling footnotes. "When we decided to break tradition-changing from 'Quarterly' to 'Review,' modernizing the cover and format, accepting The Bluebook in full, calling the second-year class 'associates' instead of 'competitors'-we dared not proceed without Skip's blessing," notes Mark L. Evans '68.


Pado has worked on the journal even longer, dating back to 1987. "They joke about it, saying that I'm the institutional memory," Pado says. "But when they first take over, it's kind of like, 'Here, here's your job,' and they haven't really worked with the journal or anything. So I think it's important to have somebody who's been here for quite a while and knows what works and what hasn't in the past. It's definitely run by the students, but if they ask me my opinion, I can definitely give them some advice, and I hope usually it's good advice."


Relations between the student editors of the Law Review and their faculty adviser are sometimes more complicated, and vary from year to year. Some years, editors preferred their adviser to take a hands-off approach. Coenen says that "the Law Review operated very autonomously from the faculty" when he was editor in chief in 1977-1978. "That is the way the railroad was run-it wasn't new with me, it was just the culture."


However, other Law Review editors had a much tighter relationship with faculty members during their time in charge. Tessler says he worked closely on a symposium with Professor William E. Hogan, who, Tessler says, "assisted a great deal with bringing to bear a great number of experts on the Universal Commercial Code in different areas from other institutions." In addition to their connections, professors' specialized knowledge has proved useful; as former editor in chief Marc Franklin '56, now a professor emeritus at Stanford Law School, notes, "Sometimes you'd get a paper in some obscure area-was it crackpot or what was it? You did have to rely on their experience." Likewise, Nathan recalls that several faculty members were invaluable in helping her navigate submissions dealing with cutting-edge subjects like empirical legal research and critical race theory and feminist theory.


On the other side of the student-faculty relationship, Chafetz says, "I take the adviser part of faculty adviser very seriously." He adds, "My view is that my job is to largely stay out of their way, and to help them think through and negotiate issues that they don't feel entirely comfortable figuring out on their own." Peñalver agrees, saying that when he advised the Law Review between 2007 and 2012, "the adviser's role was minimal, mostly dealing with recalcitrant authors and things like that. Someone wouldn't give their edits in on time or was resisting some normal part of the editing process, and the students would sometimes ask me to reach out to them and try to bring them along. And that was really the extent of it."


Professor Robert A. Hillman '72 is in the perhaps unique situation of having played both roles: he was an editor on the Law Review as a student, and the publication's adviser during several years in the 1980s and early 1990s. He says that his approach was a combination of hands off and closer involvement. "I waited for them to come to me with particular problems and got involved with those," Hillman says. But, he adds, he also found himself preemptively talking to new staffers at the beginning of every year to address two perennial problems: students overediting professors' submissions, and making sure the staff passed down lessons learned to future years.


The Quarterly wasn't the first law journal to come out of Cornell. More than two decades before volume 1, issue 1 of the Cornell Law Quarterly hit lawyers' offices, the university saw the publication of its first legal periodical, an abortive effort called the Cornell Law Journal. The only issue published, dated June 1894 and edited by Charles H. Werner '95, featured articles on eminent domain, legal instruction, and the "Law's Delay." In a feature conspicuously absent from its successors, the Law Journal also contained a 105-line poem laying out the particulars of Starch v. Blackburn, an (apparently real) lawsuit brought against a milkman with ferocious guard dog: "An action for injuries caused to the limb / Of the plaintiff, one Starch, (sobriquet Fighting Tim) / By the teeth of defendant's dog, Three-leggéd Jim."


Werner tried again the following year, appearing as editor of Cornell's new law publication, the New York Law Review. In its first issue, the new journal contrasted itself to the profusion of law reviews that had sprung up over the past decade. While those were "essentially academic," the editorial said, the New York Law Review would primarily address "the business-like problems most likely to arise before the busy lawyer." The new journal ran for six issues before folding in July 1895.


When the Cornell Law Quarterly started up in 1915, it at first hewed to a much more conservative schedule, publishing in November, January, March, and May; the quarterly then expanded in 1966 to publishing six issues a year so that it could cover legal issues in a more timely fashion. Despite the jump in the journal's frequency, the Quarterly officially remained the Quarterly for another year. In 1967, though, the editors admitted that "the consequence of this delicate concession to tradition was an epidemic of confusion among our readers and subscribers, together with some embarrassment on the part of the Board of Editors." They decided to "bow to the inevitable," and the Quarterly took its present moniker, the Cornell Law Review.


One hundred years ago, Dean Woodruff took to the pages of the first issue of the Cornell Law Quarterly to present a defense of one more law journal. A century later, Dean Peñalver is more than happy to reaffirm that the Cornell Law Review has something special to offer. "Law reviews reflect the characters and the personalities of the schools," he says. "There's definitely a Cornell Law School personality that's pretty distinctive, and I see that in the selections that the Law Review makes."


"In our law review, I see frequently an interest in empirical scholarship, I see a nice balance of theory and doctrine and a little bit of a pragmatic streak," he says. "A diversity of voices. A tendency towards scholarship that's unpretentious."


That's reason enough to look forward to another century of the Cornell Law Review.







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