Thanks to a pointer from my former colleague -- and mentor -- Art Lefrancois, I see Zoey Orol's "Reading the Early American Legal Profession: A Study of the First American Law Review" is up on ssrn.
Here is Ms. Orol's abstract:
This note seeks to demonstrate the ripeness of early American legal periodicals as a subject of further inquiry by reading the American Law Journal (1808-1817), the first American law review, as a reflection of the changing nature of the legal profession at a crucial time in American history. Close analysis of the content and editorial choices of the journal suggests that the journal both reflects and addresses three early nineteenth century professional needs: the need to practice in a variety of jurisdictions and areas of law; the need to give voice and content to the emerging idea of a professional self-consciousness, which some scholars suggest developed only later in the century; and the need to respond to the internationalization of American legal and political affairs, which undercuts the arguments of many legal historians that the period marked an increasing tendency in American jurisprudence to look inward. The few scholars who have attempted to paint a picture of legal affairs in this transformative period have typically focused on the dockets of particular jurisdictions while overlooking legal periodicals. But such sources can more accurately portray the state of the national legal profession given that a journal editor, unconstrained by state or regional boundaries, can incorporate cases and sources from a wide range of jurisdictions and on a varied array of topics. Furthermore, the fact that periodicals are necessarily dependent on a subscriber base suggests that such editors had to touch on issues of interest to subscribers from all across the country in order to stay afloat.
This is a very exciting piece, which studies closely the American Law Journal's content. It's a quantitative study of the subject matter of the ALJ's articles and the cases it digests. These kind of quantitative studies can tell us a lot about what was on the minds of editors -- and presumably the audience of the ALJ as well. Quantiative-intellectual legal history! I love it.
I think we need more of these kinds of studies. This could go in all sorts of directions -- towards studying references to legal cases in newspapers and pamphlets (and of course treatises), as well as a legal periodicals. Another thing that would be very helpful is an intensive study of what the state and federal courts are citing in this period and their docket as well. And also how cases then enter the stream of law -- for instance, how much cases by leading (and less well-known) judges are cited (especially by courts in other jurisdictions) and for how long. I've been doing some work on this on a select set of cases involving trusts for emancipation and have to say that it's a surprisingly time-consuming project, but I think it has the potential to tell us a lot about the "communities of communication" among judges. (Some years ago I had some preliminary thoughts on how to draw inferences about judicial philosophy based on cases decided more or less simultaneously in the Confederate state supreme courts.)
The illustration is North Carolina Supreme Court Justice Pearson's grave marker in Raleigh's Oakwood Cemetery, which reads in part "His epitaph is written by his own hand in the North Carolina Reports." This I take as further evidence that people at the time understood the importance of judicial opinions as a gauge of the mind of the author, which is a central variable in studies like Orol's.