Bernard J. Hibbitts
Associate Dean for Communications & Information Technology; Professor of Law
University of Pittsburgh School of Law
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Guide to Last Writes?
Introduction: Hail! - and Farewell?
The next decade could witness the end of the law review as we know it...
I. Hello to Law Reviews
The origins and early history of the law review...
II. The Critical Tradition
Scholarly and professional attitudes to law reviews over the years...
III. Law Reviews On-Line
The coming - and shortcomings - of LEXIS and WESTLAW...
IV. A Modest Proposal
The case for the electronic self-publication of legal scholarship...
V. What is to be Done?
What law professors, law school administrators, the AALS and even law review editors can do to accelerate the transition to electronic self-publishing...
he next decade could witness the end of the law review as we know it. At first glance, this contention might seem implausible - after all, the law review is the supreme institution of the contemporary American legal academy. Virtually all accredited law schools have one; quite a few have several. Law schools depend upon law reviews for publicity and prestige. Law professors depend upon law reviews for publication and promotion. Law students depend upon law reviews for education and employment.
[i.2] The law review, however, is hardly an inevitable institution. It emerged in the late nineteenth and early twentieth centuries as the product of the fortuitous interaction of academic circumstances and improvements in publishing technology. Today, new academic circumstances (not least among which is an increased professorial dissatisfaction with law reviews themselves) and new computer-mediated communications technologies (e.g. on-line services and the Internet) are coming together in a way that may soon lead to the demise of the familiar law review in favor of a more promising system of scholarly communication.
...new academic circumstances...and new computer-mediated communications technologies...are coming together in a way that may soon lead to the demise of the familiar law review.....
[i.3] In this article, I undertake a comprehensive re-assessment of the law review from the perspective of the present age of cyberspace. In Part I, I begin this re-assessment by investigating the academic and technological conditions that initially joined to generate the form. In Part II, I trace the course that criticism of the law review has taken since the institution's debut, showing how criticisms have grown in number, range and intensity to the point of their current crescendo; I explore why various criticisms arose when they did, and evaluate erstwhile (and, as it turns out, largely failed) attempts at reforming the law review system for the benefit of its academic and professional constituencies. In Part III, I examine how new computer-mediated communications technologies embodied in WESTLAW, LEXIS, and the Internet's so-called "electronic journals" have subtly begun to change and improve the law review system, even if those particular services do not and cannot cure the system's more profound ills. In Part IV, I offer a "modest proposal" for the electronic self-publishing of legal scholarship that would use the full potential of today's computer technology to overcome the editorial and material limitations of the law review format while providing legal scholars with an unprecedented range of intellectual and professional opportunities. In the Conclusion to this article, I consider what legal scholars, law school Deans and faculties, the Association of American Law Schools and even the editors of law reviews themselves might do to accelerate or at least accommodate the transition to the proposed system of electronic self-publication.
he standard story of the rise of the American law review is so familiar as to be almost legendary. In 1887, after attempts to create a student-edited law journal at Albany and Columbia had already failed,1 a group of ambitious students at the Harvard Law School - among them the future legal scholars John Wigmore and Joseph Beale - approached Professor James Barr Ames2 of the Harvard law faculty to suggest the inauguration of a school-sponsored legal periodical that would contain not only student-written essays and case comments, but also scholarly papers contributed by Harvard law professors and other prominent members of the bar. The students hoped that in addition to providing a new platform for legal scholarship, such a periodical would spread the word about the Harvard Law School, and especially about the case-method that they and their faculty mentors were pioneering. Seeing the wisdom of the proposal, Ames agreed to act as the law review's advisor and first contributor.3 The newly-formed Harvard Law School Alumni Association provided significant financial backing, and the Harvard Law Review was born. The Review proved so successful that it soon spawned imitators among other American law schools that aspired to Harvard's growing status and prestige.4 Within a few decades, the law review had become a fixture of the American legal landscape, with dozens of law reviews in publication, and many more on the way.5
[1.2] As a rendition of specific facts, this story is not inaccurate, but as an explanation of the initial development and popularization of the law review it is nonetheless inadequate. It has two fundamental failings. First, in focusing (however understandably) on the particularities and personalities of Harvard, it downplays the extent to which the law review served the general interests of the university-based law school as an institution seeking to advance itself in late nineteenth and early twentieth century America; even as confined to Harvard, it presents the law review as the creature of narrow legal considerations where there is at least circumstantial evidence to suggest that broader scholarly concerns might also have animated Ames, the colleagues who supported him, and perhaps his precocious band of law students. Second, the traditional story totally disregards contemporary technological developments in the printing and publishing industry that in the late nineteenth century made law school sponsorship of legal periodicals conceptually plausible and financially practicable for the first time. As a result of these two shortcomings, the law review has been portrayed more as a happy serendipity or a legal peculiarity than as a complex but rational product of its time. In the remainder of this section I will argue for the last of these interpretations.
...the law review has been portrayed more as a happy serendipity or a legal peculiarity than as a complex but rational product of its time.
[1.3] In late nineteenth and early twentieth century America, university-based law schools were not nearly as populous, powerful and prestigious as they are today. They were admittedly not new - law had been taught at Harvard as early as 1815, and the university had operated a separate law school since 1817.6 Neither were university-based law schools all that rare any more; by the late 1880s, there were over 45 of them.7 For all their age and their numbers, however, the schools were, by and large, marginal institutions. They were marginal professionally: universally into the 1890s, and in many regions of the country through the 1900s, most American lawyers still received their education by the more traditional means of apprenticeship.8 In this context, formal legal education was seen (at best) as a supplement to office training, not a substitute for it.9 University-based law schools were also marginal academically. Many (such as Harvard) existed on the intellectual and physical outskirts of university campuses. Most counted for little in their universities' overall academic reputations,10 and sometimes for less in their budgets.11
[1.4] In this context, ambitious law professors sought ways to advance their institutions, their students and themselves. They had several implicit (and sometimes explicit) goals. First, they wanted to provide their students with a superior form of legal training that would positively distinguish the latter from students trained only in law firms.12 Second, they wanted to develop their ties with the practicing bar in a way that would increase the legitimacy of their schools and enhance their own reputations in the professional legal community which they served and in which most of them still worked part-time. Third, they wanted to strengthen their connection with alumni whose support promoted law school solvency, professional goodwill and the employment of law graduates.13 Fourth, they wanted to improve their academic status in their respective university settings.
[1.5] While legal academics were pursuing these goals, contemporary publishing technology was changing. In the last decades of the nineteenth century, new high-speed rotary printing presses came into general use.14 At the same time, paper-making processes accelerated thanks to the widespread substitution of ground woodpulp for rags.15 Together, these developments pushed printing and paper costs to unprecedentedly low levels.16 Taking advantage of the savings, established and new publishers flooded a waiting American market with inexpensive books and magazines. In 1880, 2076 new books were published in the United States; in 1884, over 4000; in 1895, over 5400.17 There were approximately 3300 American periodicals in publication in 1885; by 1890 that number had risen to more than 4400; by 1895, there were approximately 5100 being produced across the country.18 The explosion in the available volume of printed matter became the subject of public comment, and even public concern. In 1895, the editor of The Nation observed that the "multiplication and cheapening of periodical literature within the past five years have been extraordinary."19 In 1896, the editor of another journal concluded (somewhat ironically, perhaps), that "this is a book-enslaved generation. Too many books, too many newspapers, too many magazines - too little reflection, too little originality."20
In the last decades of the nineteenth century....established and new publishers flooded a waiting American market with inexpensive books and magazines.
[1.6] Law was hardly immune from the lure of cheap print. The number of new law books - and reprints of old ones - published each year hit record levels in the 1880s and 1890s.21 In 1880, 62 new law books were published in the United States; in 1882, 261; in 1889, 410; in 1896, 507.22 Lawyers inevitably complained about the burgeoning mass of texts and precedents. In 1882, Chicago attorney J.L. High, writing in the American Law Review, called the increase in materials "appalling": "so far from strengthening the foundations upon which our jurisprudence as a system is based, [it] has a well-defined tendency to weaken them by the substitution of precedents for principles in the practical administration of justice."23 For fear of missing something important or being at a disadvantage, however, most lawyers continued to buy and stock as many new law books as they could afford.
[1.7] The new technology lowered the cost of printing legal periodicals to a point where they could be sponsored by relatively impecunious law schools.24 The flood of periodicals which the new technology facilitated also helped to create an intellectual and cultural environment in which publishing a periodical seemed unremarkable, even for law schools that would not previously have considered such an ostensibly-ambitious and even pretentious undertaking. The fact that a school- sponsored law journal might be feasible and credible, however, was not enough to ensure that such an experiment would actually be attempted. That final step required purpose as well as opportunity.
...new technology lowered the cost of printing legal periodicals to a point where they could be sponsored by relatively impecunious law schools.
[1.8] Unfortunately, there is precious little before-the-fact evidence of precisely which positive factors prompted law professors in a significant number of American law schools to support the inauguration of school-sponsored law reviews in the late nineteenth and early twentieth centuries. Contemporary circumstances and the range of formal, after-the-fact justifications for publication strongly suggest, however, that law professors at these schools believed that law reviews were capable of advancing their aforementioned institutional and personal goals in a variety of ways. First, a law review could further the legal education of law students.25 At the most general level, law students reading their school's law review would presumably benefit from the writings of their professors, and perhaps also their student colleagues. If law students were actually put in charge of a law review, its educational and ultimately professional value to them would be greater still. Acting as editors, they would gain by evaluating and polishing the contributions of law professors and practitioners. As contributors in their own right, their attention would be focussed on recent developments in the case law, and they would gain proficiency in legal analysis, research and writing. Insofar as few if any of these opportunities were available to apprentices working in law firms, working on a law review would make law school graduates uniquely capable in an American legal environment increasingly saturated with printed precedents, statutes and texts.26 As a result, those graduates would be more attractive to potential employers, and the schools and professors that produced them would gain prestige and profit.
[1.9] Coincidentally, making law school graduates more attractive to law firms by virtue of the formers' experience on school-sponsored law journals offered a way to strengthen the connection between law schools and the bar.27 Not only could a student-edited law review provide the bar with a pool of specially-trained recruits, but - assuming it were staffed by the law students with the highest grades - it could also provide a convenient criterion by which hiring attorneys could identify the best and the brightest law graduates. This criterion appeared increasingly attractive once schools such as Harvard eliminated the formal "Honors" programs which had once served the same "streaming" function.28 With or without student editing, a school-sponsored law journal could provide practitioners with a useful professional service29 - first, an additional medium through which they could communicate with other practitioners, and second, a source from which they could regularly glean information on new cases, new legislation, and the broader implications of those. At a time when the bar was being buried with more printed information and material than it could readily assimilate, this latter function was potentially critical: a law review could serve as a law digest, potentially saving busy practitioners both time and the money they would otherwise have spent on rapidly-outdated treatises, reports and statutes. Of course commercial legal journals and digests were already available, but the mass of information descending on the American legal community at the turn of the century was such that more law journals offering analyses, updates and reviews were always welcome. A law school that chose to publish such a journal could gain increased professional recognition and influence, as could the law professors whose writings appeared in its pages.
The fact that a school-sponsored law journal might be feasible and credible, however, was not enough to ensure that such an experiment would actually be attempted. That final step required purpose as well as opportunity.
[1.10] Third, a law review could address a law school's institutional need to gain and keep the support of alumni by providing a product that would bring news of the school to their attention on a regular basis. More pro-actively, it could also provide a forum in which they could publish, correspond and generally maintain ties with one another.30 A school-sponsored law journal promised to be particularly useful as a bonding mechanism when (as was already the case in a number of prominent instances in the late nineteenth century) a law school's graduates were scattered over a broad geographical area, limiting the opportunities for face-to-face meeting and regular conversation. Of course, the more that alumni felt connected to each other and to their alma mater, the more likely they would be to hire their alma mater's graduates, send their own sons (and even daughters) there, recommend the school to friends, and (most importantly) contribute to its coffers.
[1.11] Finally, a school-sponsored law journal could enhance a law school's academic and scientific reputation. In late nineteenth century America, the focus of the academic community was starting to shift from teaching to scholarship. The German model of post-secondary education that was becoming increasingly influential in the United States around this time encouraged universities to re-invent themselves as producers (as opposed to merely conveyors) of research and learning that would stimulate progress and reform.31 In 1876, Johns Hopkins University was established as the first American "research university." Consistent with the new emphasis on research, academics in a wide range of disciplines turned to writing. Universities and learned societies created numerous journals to contain the new scholarship, which could not be absorbed (and in many instances would not have been accepted) by then-existing commercial or learned periodicals.32 The declining cost of print facilitated and further stimulated this process. The last quarter of the nineteenth century witnessed the birth of such scholarly stalwarts as the American Journal of Mathematics (1878), the American Chemical Journal (1879), the American Journal of Philology (1880), the Journal of the American Medical Association (1883), the Political Science Quarterly (1886), Modern Language Notes (1886), the American Journal of Psychology (1887), the Journal of Political Economy (1892), the American Historical Review (1895), the Journal of Physical Chemistry (1896), and the American Journal of Sociology (1896). Ultimately, a variety of universities set up their own presses to facilitate the distribution of their faculties' research products. Predictably, Johns Hopkins led the way in 1891, followed by Chicago (1892), Columbia and the University of California (both in 1893).33 All this activity created an environment in which intellectual respectability was increasingly associated with the sponsorship of journals and the practice of publication.34 In this context, the inauguration of a school-sponsored law review could offer a university-based law school an unprecedented academic opportunity. As the patron of a "learned" journal providing a needed forum for its faculty's scholarship35 outside the traditional confines of treatises36 and commercial legal periodicals37, it could at last make common academic cause with other progressive departments and professional schools on its campus (even if its own journal were student-edited).38 Even more fundamentally, it could demonstrate that the law was amenable to "scientific" study,39 and that a law school belonged in the university.
As the patron of a "learned" journal,...a law school could at last make common cause with other progressive departments and professional schools on its campus.
[1.12] Of course, it was not altogether accidental that students and professors at the Harvard Law School were the first to realize the law review's potential. James Barr Ames, the Harvard Law Review's principal faculty supporter, was the first of a new breed: the fully-academic law professor with minimal practical experience, appointed in the expectation that he would devote his career to teaching and scholarship.40 Ames had begun scholarly work (mostly in legal history) soon after joining the Harvard law faculty, but prior to 1887, he lacked an obvious outlet for that work in the contemporary legal journals.41 His Dean and mentor, Christopher Columbus Langdell, had developed a new pedagogical method - the case method - that he, Ames, and their law students were anxious to celebrate and publicize.42 Both Ames and Langdell were operating in the midst of a university that under the leadership of President Charles Eliot had taken a backseat only to Johns Hopkins in its emphasis on research and publication (and Johns Hopkins, of course, did not have a law school).43 The Harvard Law School had established its own Alumni Association in 1886, and was looking for a means of keeping in touch with graduates already scattered across a wide variety of American, and even foreign jurisdictions. Last but not least, the same Alumni Association - dominated by well-off Boston and New York lawyers - had access to significant financial resources and was willing to use those resources to advance the Law School's interests.44 In these circumstances, the student proposal to create a law review seemed especially sensible and attractive.45 At least some of Harvard's ambitions for its review were explicitly articulated in a note to the first issue (written, of course, by the student editors): "Our object, primarily, is to set forth the work done in the school with which we are connected, to furnish news of interest to those who have studied law in Cambridge, and to give, if possible, to all who are interested in the subject of legal education, some idea of what is done under the Harvard system of instruction. Yet we are not without hopes that the Review may be serviceable to the profession at large."46
...the rapid proliferation of law reviews in the late nineteenth and early twentieth centuries should not be considered as a mere instance of "following the leader."
[1.13] Ultimately the attraction of the school-sponsored law journal was such that shortly after the launching of the Harvard Law Review, other journals began to appear under the sponsorship of other law schools. The example and success of Harvard were certainly factors in this trend,47 but the rapid proliferation of law reviews in the late nineteenth and early twentieth centuries should not be considered as a mere instance of "following the leader".48 Some of the same concerns and interests that in the context of improved print technology had apparently urged the Harvard law students and faculty towards journal publication also spoke to students and legal scholars elsewhere.49 In 1891, for example, the editors of the new Yale Law Journal launched their effort with these words: "the graduates of the Yale Law School...have lacked the esprit de corps, which is necessary for effective unity. The formation of the Alumni Association was a step in the right direction. The Law Journal is intended to be another. It provides a common means of communication between the graduates and the students, and its success should be a mark of the vitality of the school."50 In 1917, the Minnesota Law Review opened its first issue by observing that "the present position of the typical law school, as compared with the medical school, is discreditable to the former; its influence with the profession is not what it ought to be. The law review is one of the means by which the law school may make its influence...felt....".51 Over time, the focus of justification for new law reviews changed subtly as law schools gained prestige (making bold declarations of institutional ambition superfluous), alumni relations came to be fostered through other channels (making that purpose of law review publication less important), and not publishing a law review became more remarkable than publishing one (making justifications as a whole less necessary, or at least less lengthy). Functionality, however, continued to be seen as the key to a review's potential success: as the editors of the George Washington Law Review explained in their first issue, produced 45 years after Harvard's: "Publication of a law review by any school is justified by the additional contributions to legal literature which it stimulates and the opportunities for better training to students which it affords."52
[1.14] This brief history of the initial development and popularization of the law review suggests that the law review was very much the product of its times53 - in particular, the product of a conjunction of contemporary academic circumstances and then-current technological advances. Insofar as it had emerged in response to perceived goals, it was potentially vulnerable to criticism as it tried to fulfill those goals, and as those goals evolved. In the next section of this paper I will trace the course that criticism of the law review has taken over the years, I will investigate why various criticisms arose when they did, and I will examine the structural and substantive reforms that have attempted to preserve or advance the law review's position in the ever-changing American legal academy.
riticizing the law review is a time-honored legal tradition. Almost from the outset of the institution, dissident law professors, practitioners, judges and occasionally even law students have complained about its form, its content and its operation. The precise nature of the criticisms has varied over time, largely in response to developments in American legal education and the larger American legal and social environment which have affected the needs, attitudes or expectations of the law review's constituencies. Commentators have repeatedly remarked on the law review's apparent ability to resist criticism, but in fact the institution has responded to several challenges since its inception. Its fundamental problem today is not that it has not changed, but that it has not changed enough.
[2.2] Criticisms of the law review have historically tended to come in waves, each wave larger and more powerful than the last. The first, weakest and most diffuse wave of criticism lasted roughly from 1905 to 1940, coinciding with much of the law review's initial period of development and popularization. To some extent, the first wave was a reaction against the relatively-rapid proliferation of school-sponsored legal journals in the early decades of the twentieth century. The numbers speak for themselves: in 1900 there were 7 law reviews;54 in 1928, there were 33;55 in 1937, there were 50.56 As early as 1906, the faculty editors of the new state-oriented Illinois Law Journal expressed the feeling that the "field for law reviews of a general character is already overcrowded."57 Restraint, re-orientation and specialization were said to be in order: in 1927, Illinois' Albert Kocourek even went so far as to suggest that "the Harvard Law Review might become what is consistent with its traditions, a journal of legal history; the Yale Law Journal might become a journal of jurisprudence; and the Columbia Law Review might become a journal of commercial law."58
Criticisms of the law review have historically tended to come in waves, each wave larger and more powerful than the last.
[2.3] The first wave of law review criticism was also a by-product of the gradual standardization of the law review format which had come with the growing popularity and power of the genre. After a brief period of experimentation from the late 1880s through 1900 during which the law reviews carried such "unusual" things as school news, class notes, etc., most fell into a set (and, to us, more familiar) structure: leading articles, cases notes, and book reviews. They also settled into a definable style: careful, plodding, rather heavily footnoted. These developments did not sit well with everyone in the legal professoriate; the dissatisfaction of critics only increased as the reviews appeared to become more hidebound over time. In 1936, as the fiftieth anniversary of the Harvard Law Review drew near, Yale's Fred Rodell made it plain that he had had enough. In his Virginia Law Review article "Goodbye to Law Reviews"59 (which in later years would ultimately, and perhaps ironically, become the most-cited law review article on law reviews) he declared that there were two problems with legal writing in general, and law review writing in particular: "One is its style. The other is its content".60 Armed with a rapier wit and a poison pen, Rodell decried the conservatism of editors and the stultifying sameness of the law review format they favored.61 He bewailed what he regarded as the specious and largely superfluous business of footnotes. More accurately than some of his colleagues, friends and students might have wished, he attributed these and other problems to the law review's nature as a product of the collective self interest of career-conscious professors, job-seeking students and idea-hoarding law firms.62 Rodell's disgust with the existing system was such that he doubted whether he would ever write a law review article again.63
[2.4] Student editorial control of law reviews was another early cause of concern, especially after a number of prominent law schools which had originally founded faculty-edited journals either gave up their experiments (e.g. Iowa, in 1901) or radically reduced the degree of faculty supervision (e.g. Wisconsin, during the late 1920s).64 Speaking from the bench of the United States Supreme Court in 1911, former commercial law journal editor Oliver Wendell Holmes Jr. dismissed law reviews in general as "the work of boys".65 In 1927, the faculty editor of the Illinois Law Review contended that "While preparation of case notes by students is excellent training, and while the researches of law students are valuable in gathering material, in classifying the trend of decisions, and in presenting points of view...yet the bar is entitled to more than that."66 Iowa law professor Clarence Updegraff explicitly opined in 1929 that "the criticism and revision of leading articles, at least in the majority of schools, should be a faculty matter. The best of law students will scarcely be sufficiently well prepared to decide in a close case whether a submitted article should be published or not."67
Speaking from the bench of the United States Supreme Court in 1911,...Oliver Wendell Holmes Jr. dismissed law reviews as "the work of boys."
[2.5] Finally, some of the criticisms made of law reviews in the 1930s in particular were directly or indirectly induced by the rise of legal realism, a broad school of jurisprudence that used social science concepts to challenge traditional doctrinal styles of legal analysis. The realist attack on "classical" legal thought became an attack on the law reviews which had been born of, and in turn had helped to nurture narrow, case-based legal theory. Fred Rodell did not phrase his 1936 critique of law reviews in expressly realist terms, but it is likely that his own realist outlook helped to shape his negative attitude. Duke's David Cavers, although not a realist himself, nonetheless reflected the impact of realism when he observed in the same year that law reviews had a restricted "range of inquiry", having confined themselves to the concerns of courts and lawyers without reference to the social context of legal problems.68
[2.6] Largely because of the somewhat spotty and disjointed nature of these early reproaches of the law reviews, not to mention the paeans, apologias and ripostes which more than counterbalanced them,69 the first wave of criticism had only slight impact on the existing law review structure. After the inauguration of the Illinois Law Review in 1906, an increasing number of state-based law reviews (e.g. the California Law Review and the Missouri Law Bulletin) began publication. In 1925, the University of Chicago, the University of Illinois and Northwestern University tried to avoid duplication of effort (not to mention product) by sharing sponsorship of single law journal (the Illinois Law Review) formerly published under the auspices of Northwestern alone.70 A couple of law reviews specializing in particular subjects appeared in the 1930s (e.g. the George Washington Law Review, specializing in federal public law; the Journal of Air Law, edited out of Northwestern University and the University of Southern California Schools of Law). In 1933, David Cavers and the Duke Law School launched the faculty-edited (if still student-staffed) Journal of Law and Contemporary Problems, an overtly-interdisciplinary publication which pioneered a "symposium" format designed to foster subject-specialization and thereby reduce redundancy across reviews.71
...the first wave of criticism had only slight impact on the existing law review structure.
[2.7] None of these reforms was particularly fundamental or successful, however. The state-based law reviews were little more than smaller versions of the general model; many of them actually evolved into general publications in later years.72 The joint editorial arrangement of the Illinois Law Review collapsed in 1932, when Northwestern law students took it over. Despite some articulate arguments made on their behalf,73 the number of specialized law reviews remained small through the 1940s, largely because of the limited scope for publicity that they afforded to their sponsoring schools. For a variety of reasons (not least of which was the legal academy's retreat from realism) the Journal of Law and Contemporary Problems found it difficult to meet its own interdisciplinary aspirations let alone inspire other reviews to adopt a similar course. The symposium format was adopted by a few law reviews,74 but was quickly recognized, even by its inventor, as being "not well suited for general use": "It compels a shifting of the field of inquiry with each issue.... [and] it...... cannot provide an always-available outlet for the writer who is working on a topic which...does not happen to coincide with the current editorial program."75
[2.8] The lack of significant or successful response to the first wave of law review criticism facilitated the build-up of a second wave. Perhaps predictably, this struck the law reviews in the 1950s and early 1960s after a brief hiatus which had lasted through the war and immediate post-war periods. Many second-wave complaints were obviously the result of ongoing frustration. In 1952, for instance, Illinois' John Cribbet complained that the law reviews were too similar to one another; he called for "experimentation in every phase of the review from the cover and format to the type of note and case comment."76 The next year, Judge Stanley Fuld of the New York Court of Appeals chided law reviews for their plethora of footnotes and their duplication of effort.77 Emory's Arthur S. Miller lamented the "monotonous uniformity" of the journals in 1955, and pointedly deplored the tendency of student note writers in different reviews to seize upon the same cases, with the result that in some instances a single case was noted nineteen or twenty times.78 In 1962, twenty-five years after his first broadside against law reviews, Fred Rodell himself returned to give them a second skewering. Asserting that "a quarter century has wrought no revolution",79 he repeated his original critique, and went on to suggest that the style of law review articles had deteriorated even beyond the sad state in which he had found it in the late 1930s.80
[2.9] Frustration with the lack of fundamental change was not, however, the only factor behind the second wave of law review criticism. By the 1950s, the American legal academy had changed in ways that presented not only new opportunities, but new problems. For one thing, there were significantly more law reviews (76 in 1951, up from 55 in 1941). 81 In this context Chicago's Alan Mewett could and did repeat the old saw about "too many law reviews",82 giving it a new spin by suggesting that the plethora of scholarly outlets made articles in any one subject area hard to find, even with the aid of the Index to Legal Periodicals.83 Mewett argued that marginal law reviews which had to solicit articles or which had difficulty in meeting deadlines deserved to be shut down; he advised authors to accelerate this process by boycotting these journals in the first place.84
Many second-wave complaints were obviously the result of ongoing frustration.
[2.10] Increased pressure to research and publish provided another reason for American law professors to focus more critical attention on law reviews in the 1950s and early 1960s. A certain pressure or at least incentive to publish had of course existed in legal academia since the inception of law reviews in the late nineteenth century, but only after 1950 did the push towards publication become generally significant. To some extent, law schools in these years caught up with other university schools and departments which in the early 1940s had fallen victim to the "publish or perish" approach to tenure and promotion.85 In part also, legal research became more important because the continued multiplication of law reviews made publication more convenient, and even made it necessary to the survival of some of the lesser reviews.86 In 1957, Wisconsin's Willard Hurst called for more financial and personal resources to support law professors' research efforts.87 In 1959, the American Association of Law Schools (AALS) went so far as to adopt a formal "Research Standard," declaring for the first time that "Faculty members have an important responsibility to advance as well as to transmit ordered knowledge."88
[2.11] Renewed criticism of the law review system was also prompted by the fact that by the 1950s and 1960s almost all the law reviews had become formally independent from law faculties. At the University of Michigan, for instance, faculty control had begun to ebb in the early 1940s; by 1952, students had taken over most editorial responsibilities, with faculty serving only in an advisory capacity.89 Developments like this led Alan Mewett to declare that law students had "no place on a law review at all".90 Columbia's Arthur Nussbaum conceded that student editing might have been a good idea in an earlier, simpler, more doctrinal time, but "the situation has changed...Such matters as, say, labor law, taxation law, corporation and trust law, public control of business, etc. are steadily developing new and intricate problems; legal philosophy is being paid far more attention than in the past; the expanding relationship among the countries of Western civilization, and this country's leading role within that orbit, render necessary in many more cases than ever before the investigation of international and foreign law. Students may not have acquired the knowledge and maturity to handle those trends adequately as independent editors."91
Increased pressure to...publish provided another reason for American law professors to focus more critical attention on law reviews in the 1950s and early 1960s.
[2.12] Finally, at least one second-wave complaint about law reviews was prompted by a new egalitarianism which gained strength both inside and outside law schools in the 1950s and early 1960s. A number of commentators openly wondered why, if law review experience was so pedagogically and professionally valuable, it should be limited to that small section of the law school who received high first year grades. The question appears to have been raised for the first time in the mid-1940s,92 but it in the 1950s and early 1960s it was raised again. As law schools in these years adopted much more selective admissions policies,93 singling out some students over others became more problematic. Judge Stanley Fuld found it "a pity that many more students cannot share in [the law review], that some rotating system has not been devised to allow for a broader participation in review work."94 In 1956, the Dean of Northwestern, Harold Havinghurst, suggested that this could be done by allowing for law review publication of some of the better student papers being produced in new seminar-style law school courses.95
[2.13] Partly because of its greater intensity, the second wave of law review criticisms ultimately had more impact than had the first wave. Certainly law reviews still had more than their share of plaudits and unrepentant proponents through this period,96 but starting in the 1950s and continuing into the 1970s, change was in the air in law schools and law review offices across the county. Like the criticisms, some of the changes were extensions of earlier initiatives rather than entirely new departures. Symposium issues, for instance, continued to gain in popularity, as did specialist (mostly faculty-edited) journals such as the American Journal of Legal History (1957), the Journal of Law and Economics (1958), the Supreme Court Review (1960), the Journal of Urban Law (1966), 97 and the Journal of Legal Studies (1972). Other changes were more novel. In the 1960s and 1970s, law review membership was increasingly offered to students who won writing competitions in addition to those with high first year grades.98 Some law reviews also experimented with new formats: the Wisconsin Law Review, for example, launched a "Commentary" section affording authors "an opportunity to discuss and evaluate issues important to the profession which can not be dealt with comfortably in the format of a traditional leading article."99 Much to the delight of John Cribbet, the bright-colored cover even made its debut on the front of the Stanford Law Review.100
[2.14] Again, however, the changes were less than revolutionary. The numbers of law reviews continued to increase. Occasional experiments notwithstanding, the traditional structure of law review issues survived mostly intact. The practice of student-editing continued to predominate, limiting the feasibility of symposia and specialist journals which almost by definition required faculty supervision. Thanks to writing competitions, a greater number and greater range of students made law review, but an internal hierarchy soon developed which favored individuals who had "graded" on.101 For these and other reasons, discontent with law reviews continued to simmer through the early 1980s.102
[2.15] In the mid-1980s, that simmering discontent exploded into a third wave (or, perhaps more accurately, a "tsunami", i.e. tidal wave) of criticism which has not only been sustained to date but has in fact gained in size and intensity. More articles assailing law reviews, containing more pages of criticism and more vitriolic language have appeared in the last ten years than had appeared in the entire corpus of law review literature prior to 1985. A number have been written by highly- respected scholars, most notably Roger Cramton,103 Richard Posner104 and James Lindgren.105 In the last two years alone, the law review system has been the focus of two entire law review symposium issues and one extended "Exchange;" in June 1995, the growing controversy over the operation and reform of law reviews even drew the attention of America's principal academic weekly, the Chronicle of Higher Education, which devoted a cover story to it. 106
In the mid-1980s,...simmering discontent exploded into a third wave (or perhaps more accurately, a "tsunami", i.e. tidal wave) of criticism.
[2.16] Many factors have contributed to this latest critical onslaught. First and most obviously, the absolute number of law reviews has skyrocketed in the past thirty years. It is not so much that certain law schools have decided to publish a law review for the first time - rather, many schools with well-established law reviews have for reasons internal (e.g. extending student participation) and external (e.g. the development of sub-fields which "flagship" reviews were unable or unwilling to cover) begun to publish one or more supplementary journals focusing on particular subject areas.107 The "elite" law schools have inaugurated numerous new publications: in the last three decades Harvard has started 9 that survive to this day (in addition to the Harvard Law Review),108 Berkeley has started 8,109 Columbia and Georgetown have started 7,110 and Yale has started 5. Other "lesser" law schools have also been very active: Tulane, for instance, now boasts 6 law reviews, Notre Dame boasts 5, and Temple boasts 4.112 The consequences of these trends for law review publishing as a whole have been predictable. In 1966, there were 102 school-affiliated law reviews.113 In 1981, there were more than 180.114 In 1990, there were 307.115 Today, in 1995, there are (by one count) 382.116 This unprecedented proliferation of school- sponsored legal periodicals has led to renewed complaints not only about sheer volume,117 but also about the low or at best uneven quality of many law reviews. Even more significantly, it has prompted concern about the high cost to law schools and law school libraries of fueling and sustaining such an elaborate system at a time when an increasing number of universities and law schools are operating under budget constraints.118
[2.17] Second and most significantly, the pressure on legal academics to publish, to publish more and to publish more frequently has become much greater in the last ten to twenty years. We have seen that this pressure had already increased in the 1950s and early 1960s. In the mid-1970s, however, scholarship took on unprecedented importance as a measure of academic worth. As competition for good students and good professors increased,119 and as legal educators took an interdisciplinary turn (see infra) which brought them under the influence of more research- oriented arts and humanities departments, law schools increasingly required that members of their faculties produce a substantial quality of respectable written work - generally, two or three law review articles - to obtain tenure, and several more to obtain promotion. Concomitantly, the number of law professors denied tenure because of poor or inadequate legal scholarship rose dramatically: in 1968-1973, for instance, only 8 tenure denials were substantially attributable to faculty dissatisfaction with candidates' scholarship; in 1973-78, scholarship considerations played a role in 24 tenure denials.120 Since the early 1980s, scholarship has become even more central in the tenure and promotion process.121 This has meant that law review editors, acting in their capacities as primary gatekeepers and streamers of legal scholarship, have incidentally but inevitably acquired a critical degree of control over law professors' careers and reputations.
[2.18] In this predicament, law professors have understandably become more critical of law review operation in general. Many negative comments have focussed on how articles are selected for publication. The concern here is not so much that dubious and/or arbitrary student decision- making prevents any given article from being published somewhere, but that it may compromise an article's chances of getting publishing in "leading" law reviews where it is more likely to be noticed122 and appreciated.123 Professors have alleged that student editors are incompetent to judge academic contributions to an ever-more-complex field,124 and often rely on irrelevant "secondary" criteria, such as the reputation and/or background of the author,125 the prestige of his or her institution,126 or the number of prominent names the author can drop in an "acknowledgments" footnote.127 They have asserted that students are inherently conservative128 (or, alternatively, faddish129) in their publication choices, preferring the familiar to the truly original. They have alleged that students at elite law schools in particular130 are unduly biased in favor of faculty at their own institutions.131 They have expressed resentment at having more or less to beg the editors of higher-ranking reviews for "expedited reads" of an article after it has been accepted elsewhere; they have publicly chafed under the burden of the short deadlines imposed by the understandably-nervous editors of law reviews extending offers.132
Many negative comments have focused on how articles are selected for publication.
[2.19] An increasing number of professors have also complained about student editing of articles after selection.133 They have expressed concern that their manuscripts are not just reviewed for oversights but are substantively rewritten, often by rule-obsessed editors having a less-than- perfect sense of either literary style or the legal subject at hand.134 They have voiced their frustration with having to watch out for and correct the factual and grammatical errors that are frequently (if innocently) imported into their texts in this process.135 They have taken offense at how some law review editors have treated them: they have variously called the attitudes and practices of student editors "infuriating,"136 "officious,"137 and arrogant,138 and some have called for the creation of formal codes of ethics to govern editor-author relationships no longer defined by student deference and respect.139
[2.20] Some legal scholars have even lamented how long it takes for a law review article to be first accepted, and then published.140 This lamentation is not as insignificant as it might seem; in a highly competitive scholarly marketplace - not to mention a rapidly-changing legal environment - the academic and professional worth of an article may be radically diminished if for one reason or another it comes out "late",141 and especially if it comes out after a similar article in a competing journal. One prominent cause of delays (as well as other problems - see supra) has ironically been the professorial practice of making simultaneous submissions to multiple law reviews - a strategy originally adopted to ensure rapid article placement. Nowadays, a simultaneous mailing to twenty or more journals is not unusual; if the initial response is not what the author hopes, another twenty copies may be sent out, and so on. The results of such a strategy for individual reviews - especially reviews at the elite schools - have been catastrophic.142 In 1983, for instance, it was calculated that the top 10% of law reviews received over 200, and sometimes over 300 unsolicited manuscripts each per year.143 In 1995, it was estimated that the "elite journals" were swamped by as many as 1200 annual submissions.144 In this situation law professors have had to endure longer and longer waits before receiving word on the fate of their submissions. In some instances, and especially at some times of year (generally late fall or early spring) law professors wait only to be told that a law review has "filled up", which either forces the professor to go to another review or (what is worse) forces the article to be temporarily withdrawn from a generally- saturated market. Even after an article is selected and edited, publication may be postponed for weeks or even months because there is a problem with a particular law review "issue": another legal scholar has been tardy in correcting proofs, student notes and comments are late, or there are problems or delays at the printer.145 All of this inevitably adds up to frustration.
An increasing number of professors have complained about student editing of articles after selection.
[2.21] Third, the number and intensity of criticisms of law reviews have increased due to changing patterns of student-faculty interaction in contemporary American law schools. Even in those instances where students had taken over formal control of faculty-run publications, they had continued to seek advice from faculty on editorial and policy matters. 146 The tradition of student- faculty consultation had resulted in what one writer (perhaps somewhat ambitiously and nostalgically) has called "peer-review...of a sort", a practice which encouraged most (albeit certainly not all) law professors to preserve their faith in the law review as a scholarly institution.147 By the early-1980s, however, this practice had largely ceased.148 The last phase of student-faculty disengagement had begun in the later 1960s, when student editors directly or indirectly influenced by the rebellious atmosphere on many campuses became notably reluctant to defer or even consult their former faculty mentors.149 Those students still seeking editorial guidance from their professors in the 1970s and early 1980s found that in the increasingly charged academic atmosphere of the time, the latter no longer agreed on the nature or qualities of good scholarship.150 Under increasing pressure to write, many professors moreover lacked the time or the inclination to read others' submissions or give quality advice.151 In this context, the editorial process was left "in the hands of young people with little experience in evaluating legal skills, few standards by which to do so, natural naivete, and scant regard for the institutional future."152
[2.22] In the process of asserting their own independence from faculty supervision, the student editors of contemporary law reviews have become more assertive in their general dealings with faculty authors. For instance, they have increasingly refused to provide rejected law review authors with substantive written or even oral reasons for their rejection. There is little documentary evidence as to when this practice began, but anecdotes suggest that it by the late 1970s it had died out at all but a few institutions, accelerated perhaps by the aforementioned professorial strategy of multiple submissions. Students were too pressed and too stressed to provide reasons or feedback. This deprived faculty of useful input153 and unfortunately helped to create an atmosphere in which it was easy to impute improper selection motives to student editors who no longer made even a pretense of offering evidence to the contrary. Growing student assertiveness has also been manifested in the recent turn towards substantial editorial re-writing of submissions. Before the 1970s, significant student re-writes at all but the most elite law reviews were rarely contemplated, let alone attempted: as one veteran of legal scholarship put it "student editors tended to exercise substantial restraint in the editing process. Errors in grammar and usage were corrected, and suggestions for deletions, additions and reorganization made... [As a result] most faculty members actually could recognize their own work when it appeared in print...".154
[2.23] The plethora of manuscripts, the amount of work consequently demanded of today's student editors and the virtually-complete independence of those editors from law faculty have together given rise to a fourth cause of contemporary law review criticism: doubts about the traditionally- assumed pedagogical value of law review service. Predictably, many of these doubts have been articulated by law professors with other axes to grind. In 1986, for instance, Roger Cramton contended that sheparding manuscripts through a group-decision process and running writing competitions for new staffers "have few educational benefits for anyone and do not contribute in any way to publication of student notes or editing of lead articles."155 Doubts about the educational benefits of law review have, however, also been raised by law students themselves. In 1988, a recently graduated Notes editor of the Georgetown Law Journal concluded that "the law review's academic and creative value is overstated. Many students leave law review with little more to show for their two-year membership than bluebook proficiency."156 In 1990, a disaffected senior articles editor from the Georgetown Journal of Legal Ethics bemoaned a more general and even more pedagogically-awkward problem: "I've barely opened my casebooks because the journal takes too much time; I've skipped classes because the journal takes so much time."157 In other words, law review was actually interfering with this editor's education.
[2.24] A fifth reason why criticisms of law reviews have multiplied dramatically of late relates to law's recent "interdisciplinary turn":158 the scholarly shift towards studies of law and economics, feminist jurisprudence, law and society, critical race theory, postmodern legal studies, etc. The causes of this turn are still being debated. Changing political and ideological circumstances - the civil rights movement, the women's movement, etc. - have certainly played a role, as has the recent intellectual vigor of such specific disciplines as economics, philosophy and history, not to mention the general restlessness experienced by many members of law school faculties after a period of dominant doctrinalism. To some extent, the interdisciplinary turn has also been the product of population shifts in the legal academy - in particular, the influx of a high number of former liberal arts students who since the early 1970s have gone into the relatively-open field of law and law teaching instead of taking more economically-risky Ph.D.s and then assuming professorships in arts and humanities departments.159 Whatever its origins, the interdisciplinary turn in legal studies has prompted professorial objections to the judgments of law review editors who, for all their raw interest, have little or no graduate training in other disciplines: Richard Posner, for instance, has recently observed that "Few student editors, certainly not enough to go around, are competent to evaluate nondoctrinal scholarship."160 Indirectly, the interdisciplinary turn has stimulated criticism of the status quo by sensitizing legal academics to the scholarly practices of other fields, where student control of academic publishing is unknown and indeed, ridiculed. It is no accident that James Lindgren, whose interests run from law and sociology to legal history, has lately written that "in other parts of the academy, legal journals are considered a joke. Scholars elsewhere frequently can't believe that, for almost all our major academic journals, we let students without advanced degrees select manuscripts."161
Doubts about the educational benefits of law review have...also been raised by law students themselves.
[2.25] Sixth, law reviews have come in for more criticism as more law review writers have ceased writing about professional, doctrinal and local issues. In part, this development is a result of the just-discussed interdisciplinary turn. It is also, however, a product of the recent fall-off in the number of practitioners and judges - as opposed to law professors - writing for (or allowed to publish in) law reviews,162 and of the understandable ambitions of a variety of "lesser" law schools to raise their institutional and scholarly sights above the horizon of their own states and regions. In these circumstances, law reviews have been accused of having become increasingly irrelevant for the practicing bar and the judiciary, two of their traditional constituencies.163 Several prominent members of the American bench have openly expressed their frustration with this situation. In a recent article in the Michigan Law Review, Judge Harry Edwards of the US Court of Appeals for the DC Circuit volunteered his opinion that "our law reviews are full of mediocre interdisciplinary articles."164 Judge Laurence Silberman of the DC Circuit has even slammed the law reviews from the bench, accusing them of being "dominated by [the] rather exotic offerings of increasingly out-of-touch faculty members...".165
[2.26] Seventh, criticisms of law reviews have multiplied because in the last fifteen years, law professors have tended to produce articles that are on average longer and more heavily-annotated than those written, say, forty years ago.166 In part, this lengthening and substantiating process has been prompted by the desire of assistant and associate law professors to demonstrate their scholarly capabilities to increasingly demanding tenure and promotion committees,167 not to mention increasingly selective law review boards;168 in part, it has been driven by the need of law professors in general to differentiate their individual submissions from those of an increasingly large number of scholarly competitors;169 and in part, it has been encouraged by some professors' implicit recognition that interdisciplinary articles coming before law student editors (not to mention other law professors) often require more extended explanation and documentation than they would coming into the hands of academics in the arts, humanities and social sciences.170 It has also been suggested that student editors have actively contributed to the problems of length and extended footnoting through an overenthusiastic adherence to Bluebook form and a concomitant desire to impress their editorial board colleagues by displays of footnote finesse. Unfortunately, the presence of longer and more heavily documented articles in law reviews has attracted the ire of many impatient and/or aesthetically-displeased readers from both inside and outside the professoriate.171 In 1983, the desire for more concise, more visually-attractive and more lively articles was a major factor prompting Professor Richard Stewart of the Harvard law faculty to author an internal memorandum recommending the creation of a faculty-edited law journal.172
[2.27] Finally, law reviews have become more controversial as law students' social attitudes and writing abilities have changed. Egalitarianism has continued to work its magic on law review boards, an increasing number of whose members have lost faith in both "grading on" and "writing on" as impartial arbiters of merit.173 By the late 1970s, the Stanford and Yale law reviews had opened themselves up to student volunteers.174 In the 1980s, many student-edited legal journals formally or informally embraced affirmative action as a way of extending the benefit of law review participation to more women, minorities and other persons from disadvantaged backgrounds (including the poor, the disabled, and gays and lesbians). This trend began with a controversial policy decision at the Harvard Law Review in 1981;175 by 1983, eight law reviews had formally followed suit.176 Also since the early 1980s, more and more students have become involved in the law review editing process via the multiplication of specialty journals. At least some academic commentators have alleged that these developments have significantly "watered down" the already-dubious editorial quality of the law reviews.177 This accusation has become even more serious in light of what most law professors regard as a general decline in the writing abilities of today's law students. This decline has allegedly been reflected in both the poor quality of many editorial re-writes and editors' increasingly slavish devotion (presumably born of uncertainty and inexperience) to the technical standards of the Bluebook or some other style manual.178
...the interdisciplinary turn has stimulated criticism of the status quo by sensitizing legal academics to the scholarly practices of other fields, where student control of academic publishing is unknown and indeed ridiculed.
[2.28] Even in the face of all these developments and the (sometimes severe) criticisms they have encouraged, certain law professors, legal practitioners and an increasing number of law students have insisted on coming to the law review's defense one more time.179 These defenses have not, however, precluded significant attempts to further reform the law review system.180 One reform has entailed the formal or informal adoption of editorial policies more explicitly deferential to faculty authors: in 1994, for instance, the articles editors of the University of Chicago Law Review publicly promised to show "substantial deference", by which they meant that they would respect the author's "voice" and would give the author final say on whether suggested changes would be made.181 A second reform, recently inaugurated in the offices of the Yale Law Journal, has substituted "blind" article selection for the traditional "full disclosure" variety in an effort to avoid the appearance of bias.182 A third reform has involved a greater tolerance of (and in some instances, even a formal encouragement of) non-traditional styles of scholarship and academic writing, especially those favoring brevity. In 1985, for instance, the University of Michigan Law Review inaugurated a "Correspondence" section allowing its readers an opportunity to formally react to articles appearing in its pages.183 Later the same year, the Harvard Law Review started a "Commentary" section featuring brief comments by legal scholars on topical issues,184 while Yale launched "Essay" and "Dialogue" sections that offered legal scholars new ways to present and respond to ideas. More recently, a number of journals have published fictionalized or actual dialogues, playscripts, and even poetry185 in an effort to expand their stylistic range. A fourth, somewhat-more traditional reform has resulted in an increasing number of student-edited law reviews adopting a symposium format in the hopes of making their contents more appealing (and more noticeable) to well-defined academic and professional constituencies.186 A fifth reform has been entrepreneurial in orientation: recognizing their precarious position in both a saturated academic community and an austerity-ridden institutional environment, "spin off" law reviews such as the Yale Journal of Law & Regulation have consciously undertaken to market themselves to a broader buying and subscribing public.187 This initiative has inevitably made their substance and style more colloquial.188 A sixth reform has been even more radical: the inauguration of an increasing number of faculty-edited law journals (mostly specialized or symposium-based) pointedly providing peer review, feedback, the guidance of experienced editors, stylistic flexibility, timely publication and/or other advantages not generally offered by student-edited law reviews.189 Some of these publications - such as the University of Minnesota Law School's Constitutional Commentary and the University of Florida's Florida Tax Review - are brand new. Others - such as the University of San Diego's Journal of Contemporary Legal Issues and the Chicago-Kent Law Review190 - have come into being after complete or partial faculty "take-overs" of studentedited publications.191
[2.29] The latest reforms of the law review system may be improvements, but for all the hope and hype attending them it is unlikely that they will prove all that effective in the long run. "Editorial deference" is a notoriously vague concept that (judging by anecdotal evidence) is more often the exception rather than the norm. Notwithstanding its apparent success at Yale,192 the "blind read" selection strategy is time-consuming and hardly fool-proof insofar as authors can reveal themselves and their schools in multiple ways;193 besides, although blind reading removes a temptation, it does nothing to positively raise the standards of the student selection process. Dialogues, poems, essays and letters are marginal formats which to date have instilled little enthusiasm in tenure and promotion committees. The symposium format, while a standard "fix" for certain law review problems, also has equally-standard problems.194 Making law reviews into profit-seeking institutions runs the risk, over time, of undermining their primarily academic mission. However attractive faculty-edited journals might be in the abstract, few law professors have the time or the inclination (without substantial economic or professional reward) to do quality editing or prompt refereeing when they might be writing articles or books themselves;195 it is not irrelevant in this connection that despite the proliferation of faculty-edited reviews in the last decade, two very high-profile experiments in faculty editing announced in the mid-1980s (one at Harvard, and the other under the auspices of the AALS)196 failed ignominiously before they even began.197 Judging from experiences outside legal academia, and even from reported experiences inside it, it must also be admitted that faculty journals have editorial weaknesses of their own: they can easily become hidebound, they can be "captured" by particular viewpoints or schools of thought, and their editors can select articles on scholastically-illegitimate or arbitrary grounds.198 The putative ascendency of faculty-edited journals might even compromise law professors' ability to get their work placed: in all likelihood, a faculty-dominated law review system would mean that fewer outlets would be available for the same amount of scholarly output.199
The latest reforms of the law review system may be improvements, but for all the hope and hype attending them it is unlikely that they will prove all that effective in the long run.
[2.30] More important for present purposes, the efficacy of all these reforms is ultimately limited by most of them having been attempted within the physical and intellectual confines of traditional print technology. Having lost sight of how technology contributed to the creation and development of law reviews in the first place, all but a few would-be reformers have to this point failed to consider how new technologies - in particular, computer-mediated communication technologies - might be deployed to break the impasses of the current law review system.
[2.31] In fact, of course, computer-mediated communications technologies are already at work in the legal academy. Not only are they subtlely changing how law reviews are used, but they are (for the most part) increasing the latters' scholarly and professional value. They are even meeting some of the criticisms lately articulated by the law review's detractors. In the next section of this article, I will explore the development of two manifestations of these computer technologies - on- line databases (LEXIS/WESTLAW) and Internet electronic journals - with a view to demonstrating both their impact and their limitations as new forms of scholarly communication in law.
oday's on-line legal databases originated as a technological response to mid-twentieth century complaints about the unregulated proliferation of legal literature. Such complaints already had a long history in the American legal community,200 but from the 1940s through the early 1960s their intensity increased dramatically201 as American lawyers found themselves confronting a collection of postwar statutes, precedents and professional periodicals (including, of course, law reviews) that was growing at an unprecedentedly-rapid pace.202 The legal literature was multiplying so fast that it threatened not only to bankrupt many attorneys but to overwhelm the indexing systems that had traditionally corralled and contained it - even presuming that the standard legal indexes could conceptually and physically keep up with the rush of new materials (a problematic presumption at best203), they were themselves becoming so large and awkward that they almost defeated their own purposes.204
[3.2] In these circumstances, an eclectic variety of lawyers, legal academics and law librarians looked to emerging computer technology to facilitate the storage, accessing and distribution of legal information.205 Computers had been developed for military purposes during World War II; in the mid-1950s they had entered the commercial market. Here, then, was a likely tool for the times: one which could eventually make the mountains of paper law physically manageable again, which could make retrieval of legal information faster, cheaper and more accurate than ever before,206 and which into the bargain could create entirely new legal communication and research strategies.
[3.3] The first successful experiments in what we now call "computer-assisted legal research" (CALR) were performed in the late 1950s and early 1960s by John Horty, Director of the University of Pittsburgh Health Law Center and (from 1960) an adjunct professor at the University of Pittsburgh School of Law. In an effort to facilitate research into the public health laws of Pennsylvania, Horty had the texts of all the relevant statutes207 coded onto punch-cards and then put on computer tapes where they could be rapidly searched and retrieved by keyword (technically "Key Words in Combination", or KWIC).208 In 1960, Horty demonstrated his search and retrieval system at the Annual Meeting of the American Bar Association;209 in later years, he extended his root database to include the texts of all Pennsylvania statutes, the opinions of the Pennsylvania Attorney General on education, the complete statutes of New York, health law statutes from eleven other states, and even decisions of the United States Supreme Court and the Pennsylvania Court of Common Pleas.210
The first successful experiments in..."computer-assisted legal research"...were performed in the late 1950s and early 1960s by John Horty, Director of the University of Pittsburgh Health Law Center....
[3.4] Horty's system was ingenious and remarkable in many ways, but it had significant technical limitations. In 1967, these limitations prompted the Ohio State Bar Association to create a not- for-profit corporation called Ohio Bar Automated Research (OBAR), which in turn contracted with an Ohio company called Data Corporation for the development of an improved variety of legal research software.211 In 1969, Data Corporation was acquired by Mead Corporation; a subsidiary of the latter, Mead Data Central, continued the OBAR project and eventually acquired all rights to it from OBAR itself. By 1972, Mead Data Central had produced a second-generation version of the OBAR software which retained many of the best features of the Horty system. In April 1973, a modified version of this software (together with dedicated hardware) was introduced to the American legal community under the name LEXIS. LEXIS initially offered its subscribers a database of full-text federal statutes and case law, a federal tax library, and selected state databases (including, of course, Ohio); in 1980, it expanded to give its subscribers access to NEXIS, a huge database of news and business information.
[3.5] The same year that LEXIS went on-line, the West Publishing Company began work on a CALR system of its own called WESTLAW. The first WESTLAW system - based on West's famous headnotes - went into operation in April 1975, but it was not until December 1976 that West undertook a full text service that could effectively compete with LEXIS. Software problems complicated the development of WESTLAW to the point where, in 1980, it was thoroughly redesigned. In the meantime, as well as afterwards, West pursued an aggressive program of database enhancement which allowed its subscribers to access more and more case law, more state databases, and more research options outside of the traditional West system.
[3.6] Originally, neither LEXIS or WESTLAW carried law review articles, despite the fact that law reviews were contributing to the proliferation of legal literature almost as much as courts and legislatures. The initial disinclination of both services to include law review material can be attributed to several factors. First, the primary commercial targets for both LEXIS and WESTLAW - practicing attorneys - used law reviews far less frequently than they used case law and statutes; as commercial endeavors, it made sense for both systems to place more emphasis on the development of the more relevant case and statute-searching services. Second, law review material was not as massive nor as badly indexed as case and statutory material - it was therefore in less need of a technological fix. Third, law review material was copyrighted, whereas judicial decisions and statutes were not; legal access to law review material was therefore limited, making it more difficult and potentially more expensive to provide.
In 1982...both LEXIS and WESTLAW decided to enter the law review arena.
[3.7] In 1982, however, both LEXIS and WESTLAW decided to enter the law review arena. In all likelihood, they had multiple motivations for their decisions. First, they had an interest in broadening their own scope as legal information providers. Secondly, they had an interest in broadening their clientele: including law reviews in their databases would make their services more useful and hence more attractive to law professors and law students. Third, they presumably saw a business opportunity in an area which had become increasingly complex and confused in the wake of the radical expansion of law review literature that had begun in the 1970s and which, in the early 1980s, showed every sign of continuing. LEXIS and WESTLAW nonetheless adopted different market strategies in making law review articles available electronically. LEXIS chose the "intensive" route, covering all articles in thirty selected legal journals. WESTLAW chose to be "extensive", i.e. to include more law reviews but to be selective in choosing which articles in those reviews were actually included.212 Both strategies had obvious limitations, but WESTLAW's proved particularly problematic because researchers could not be sure that they were getting all relevant articles in the law reviews WESTLAW carried. This inevitably created pressure to check manually through the same material, a frustrating situation that LEXIS avoided by definition (although its limitations obviously required manual searching of law reviews not included in its database). WESTLAW subsequently decided to offer full coverage of the top law journals, and since the mid-1980s both LEXIS and WESTLAW have extended their range of law review coverage, with WESTLAW enjoying a slight edge as of this writing.
[3.8] Together, LEXIS and WESTLAW have subtly changed the way in which law review material is distributed, accessed, and employed by many members of the American legal community.213 Most of these changes have made law reviews more useful. First, LEXIS and WESTLAW allow virtually-immediate access to law review articles upon publication; where once a law professor or practicing lawyer had to wait for the arrival of the printed journal in the mail, or (after arrival) wait his or her turn on the internal routing list, he or she can now read a law review article as soon as it officially released to the database companies. Second, LEXIS and WESTLAW offer unprecedentedly convenient access to published law review material: articles, notes and comments can be read from the convenience of a reader's desk at almost any time of the day or night. Third, LEXIS and WESTLAW provide guaranteed access: a law professor or other legal researcher is no longer at the mercy of other readers or borrowers who remove a needed law review volume from its appointed place in the law library. Fourth, LEXIS and WESTLAW allow for specific (keyword) searches of law review materials. Fifth, LEXIS and WESTLAW make it much easier for law professors to bring their ideas to members of the legal profession who otherwise might subscribe to only a handful of printed law reviews.214 Finally, using LEXIS and WESTLAW search strategies, legal academics in particular can check how often particular articles have been discussed or cited, giving them (for good or ill) a more accurate sense of trends in legal literature and legal thought.215
Together, LEXIS and WESTLAW have subtly changed the way in which law review material is distributed, accessed and employed....
[3.9] Some of the changes in law review distribution and usage prompted by LEXIS and WESTLAW address some of the complaints that have been made about (printed) law reviews (an observation which, inter alia, acknowledges the good business judgment of the database companies in extending their coverage to law reviews in the first place). Most obviously, the electronic databases relieve the physical burden of the current law review system; no longer need law professors drown in a sea of paper every month, or every quarter. At the same time, at least under current WESTLAW and LEXIS licensing arrangements, the databases potentially lower the mounting cost of keeping up with legal scholarship; a school that subscribes to WESTLAW and/or LEXIS has the option of discontinuing its subscription to the printed version, or at least cutting back on the number of redundant copies (of high-profile reviews in particular) that it regularly orders.
[3.10] LEXIS and WESTLAW, however, do nothing to address the more substantive problems plaguing today's law review system. They provide new ways of delivering and accessing scholarship, but they leave the institutional structure of the law reviews intact. They do not supplant existing editorial boards, nor do they change the way in which members of those boards select and edit articles. They are dependent on existing publication schedules at individual schools. They are, in other words, conservative information technologies which do not fundamentally challenge or improve the present scheme of scholarly communication.
[3.11] It may be argued that the inherent conservatism of LEXIS and WESTLAW has indirectly contributed to the development of a new form of computer-mediated legal scholarship: the electronic law journal. Electronic journals (or e-journals) in general are creatures of the Internet, a loose system of interconnected world-wide computer networks that can trace its origins to the American military ARPANET (Advanced Research Projects Agency network) of the late 1960s.216 E-journals were initially conceived (and in more conservative quarters, are still regarded) as electronic editions of print journals or newsletters that would simply duplicate - or, perhaps more accurately, try to duplicate - all or part of their printed content electronically and would then distribute that duplicated content to subscribers having Internet access.217 At first instance, this distribution was accomplished through electronic mail ("e-mail"), then (from 1992) through a more sophisticated Internet retrieval system called "gopher". Today, more and more print journals (such as Modern Language Notes and the British Medical Journal) are being made available electronically on the World Wide Web. This revolutionary and rapidly-growing218 Internet platform not only has the capacity to understand and carry its predecessors, but can additionally support multimedia (text, images, sound and video) and "hypertext" (a revolutionary "reading" method which allows Web users to "link" from document to document by following key-word, phrase, or icon connections embedded in particular Web "pages"219). Growing confidence in the electronic medium has meanwhile encouraged the creation - and even faster proliferation - of a second generation of electronic journals which are solely electronic, having no print equivalents. Many of these - such as Psycoloquy 220 and Postmodern Culture - are similarly accessible via the Web and are positioned, at least theoretically, to present information in ways which print technology cannot. They moreover have the ability to update their contents not just by producing new material, but by correcting and revising material already placed on line (something that print-derived e-journals cannot do even in their electronic versions, which by definition have to be print-based).
...the inherent conservatism of LEXIS and WESTLAW has indirectly contributed to the development of a new form of computer-mediated legal scholarship: the electronic law journal.
[3.12] The first American law review to be distributed electronically in full-text outside of LEXIS and WESTLAW221 was the Federal Communications Law Journal (Indiana University, Bloomington), which in 1994 began to provide a Web version of its current printed issue. As of February 1996, the same strategy had been adopted by the Indiana Journal of Global Legal Studies, the Cornell Law Review, the Hastings Womens Law Journal, the Villanova Law Review, the Villanova Environmental Law Journal, the Florida State Law Review, and the Cardozo Arts and Entertainment Law Journal; other such undertakings were forthcoming.
[3.13] By being offered on the Web, virtually all these journals make legal literature available to a national, international and interdisciplinary public much broader potentially than that which has access to (and/or can afford) LEXIS or WESTLAW service. Also by virtue of their chosen platform, these print-derived electronic law reviews can take some advantage of multimedia and hypertext to facilitate access to footnotes and lead readers to other sources and types of documentation and legal information. Ultimately, however, these electronic versions of traditional printed law reviews represent only limited progress over LEXIS and WESTLAW. Their format is necessarily driven (i.e. constrained) by the format of the print medium on which they are based. They cannot range too far from that (by, say, adding or changing information) without destroying their identities and a good part of their value. The fact that they constitute an additional burden on editorial staffs over and above that already imposed by their printed versions has also meant in some instances that far from coming out earlier and being distributed faster than their print equivalents, they actually come out much later, making them inferior to LEXIS and WESTLAW distribution at least in this respect.222
By being offered on the Web, virtually all these journals make legal literature available to a national, international and interdisciplinary public much broader....than that which has access to...LEXIS or WESTLAW service.
[3.14] In 1995, four second-generation electronic law reviews emerged that had no print versions: the National Journal of Sexual Orientation Law (founded by Mary Sylla, a law student at the University of North Carolina), the Journal of Online Law (edited by Professor Trotter Hardy at the William and Mary Law School), the Richmond Journal of Law and Technology (edited by law students at the University of Richmond), and the Michigan Telecommunications and Technology Law Review (jointly edited by students at the University of Michigan Law School and the University of Michigan Business School). These journals have a far greater potential to change and improve the way in which legal scholarship is distributed, accessed and even done. In the first place, they are not grounded to a print format at all - articles appearing in them can be specifically designed for Internet distribution and access. They can take advantage of multimedia and hypertext, not to mention the potential for updating, correction and revision of material that is inherent in a purely-electronic medium. They can solicit and archive e-mail from readers, thereby fostering academic dialogue. Second, because they have far less physical and economic overhead then either print law reviews or their electronic equivalents (which have to bear the overhead both of themselves and their printed source), they are far less expensive to produce and distribute. Editors and managers do not have to pay printers for their services. In turn, "subscribers" do not have to pay for access. Third - by their virtue of their lesser overhead combined with their technological convenience - purely electronic law journals are relatively more likely (at least in the long run) to be controlled and edited by otherwise busy and individually-impoverished law faculty. They therefore promise to address the "problem" of student editing. Fourth, the pure electronic law reviews are not bound to publish on a particular schedule, or at a particular length. If they have a good article, they can distribute it immediately;223 if they have bad articles, they do not have to include them as necessary "filler".224 Under these conditions, authors need not be hung up in publication delays caused by the tardiness of other authors or problems with the printer, and readers need not be inundated with mediocre material.
[3.15] In the context of these observations one might plausibly conclude that nirvana is nigh - that purely electronic law reviews provide the ultimate alternative for law professors (and others) suffering under the limitations of the present law review system. But such a conclusion would be premature and, I would argue, incorrect. Even purely electronic law reviews have serious problems as presently constructed, some of which might only be exacerbated were those reviews to become the foundation of a new structure of scholarly communication in law. To begin, the number of purely-electronic American law reviews can currently be counted on the fingers of one hand, and there are few signs of the imminent and radical expansion of the genre. Moreover, all of the electronic law reviews now in operation are highly subject-specific, and three of them deal with technology itself. In this context, it may be quite some time before most legal scholars can reap the advantages that purely electronic publication would seem to promise. In the second place, the purely electronic law reviews that do exist are not taking full advantage of their medium.225 A comprehensive check of the current and back issues of the relevant legal journals reveals that they have not as yet made any use of multimedia, nor have they taken more than marginal advantage of hypertext. On a less obvious level, they are still releasing material in "issues" that ape the necessary periodicity of print publications. Even if they formally allow their authors to take advantage of their more malleable electronic format by making changes to articles after publication, those changes cannot be made spontaneously by the author herself; rather, they must first be submitted to and then implemented by the reviews (creating an ironic bias against change). In the third place, the purely electronic law journals are still burdened by problematic editorial structures. Three of the existing purely-electronic American law reviews are student-edited. They therefore suffer from many of the same editorial limitations as traditional print-based student law reviews. The other two electronic American law journals are faculty-edited, but - as was emphasized earlier in another context - few law faculty members have the time or the inclination to edit a journal and do it well. The number of faculty members having the time, inclination, and the computer skills required to work comfortably in the new medium is even lower; relatively less effort may be required to edit an electronic as opposed to a print publication (in part because printers are not involved), but that effort still comes at a personal opportunity cost, which in turn imposes an implicit financial cost (in lost teaching and scholarship-production hours, not to mention staff support) on sponsoring institutions. Even if faculty members were able and could be persuaded to take on electronic editorial responsibilities "en masse", it is highly likely that (again, as we saw in another context) the outlets for scholarly publication would be radically reduced, a development that could have a devastating impact on the careers of many legal scholars, not to mention on legal literature as a whole. Finally, faculty- edited electronic law journals are as vulnerable to intellectual capture and co-option as any print review. These eventualities could have serious intellectual consequences for the entire American legal community.
Even purely electronic law reviews have serious problems as presently constructed.
[3.16] The last two general problems of current, purely-electronic law reviews - not taking full advantage of the new medium and their retention of traditional editorial structures - may be mutually reinforcing. Student law review editors have repeatedly been accused of being editorially-conservative; in this context, it is unlikely that they will unilaterally promote technologically-radical forms of scholarship. Here, as elsewhere, their "credibility" in the legal and law review communities at large is at stake. Faculty-editing is also an inherently conservative force. The process of peer-review and selection, one of the "advantages" touted by the faculty- edited electronic law reviews, may - even in relatively "forward looking" technological environments - encourage the publication of pieces that fit easily into generally-accepted norms and conform with the ordinary stylistic expectations of editors and especially peer-reviewers (who will not necessarily be as computer-literate as the authors of articles in on-line law journals). On an even more fundamental level, student and faculty editors of the new electronic law reviews may ultimately shy away from experimentation for fear that that would contribute to the failure of their initiatives (something that looks too different from the print "norm" may not be accepted or cited226). The greater the number of people involved in these initiatives as editors, peer reviewers, etc. (i.e. the more there is to lose), the more conservative a given review (electronic or otherwise) is likely to be. In this context, electronic law reviews may be very slow to realize their technological promise, a hesitancy which may significantly retard the progress of legal scholarship and, arguably, legal thought.227
[3.17] In light of these critical limitations on both the actual and potential performance of purely- electronic law journals in particular, I believe we can do better. Modern computer-mediated communications technology, in particular the World Wide Web, offers us not only a new platform for legal scholarship, but also a radically-new method for producing and distributing it which at a stroke could remove most of the editorial frustrations and administrative bottlenecks of the old print-based (and even the new electronically-based) law review system. In the next section of this paper I identify this method and show how it might be used to redefine the practice and the process of American legal scholarship in the twenty-first century.
n the age of cyberspace, law professors can finally escape the straitjacket of the law reviews by publishing their own scholarship directly on the World Wide Web. Far from being unprecedented, self-publishing is a time-honored, if hitherto-problematic part of the scholarly tradition. In the days before scholarly journals, scholars published their latest work in long letters to one another.228 Unfortunately, this was a labor-intensive process which permitted scholars to reach only one person at a time. In this context, many new ideas never received the broad exposure they deserved.
[4.2] In the decades and centuries following the inauguration of the first printed scholarly journals in 1665,229 scholars were able to reach many more people with their ideas, in a form that was both more legible and more stylistically consistent than any series of handwritten communiques. In order to do this, however, scholars had to surrender to editors a certain amount of control over how and even what information was disseminated. After all, print was a scarce material and cultural resource. As the quality and speed of print technology improved, as more and more scholars came to appreciate the professional advantages of print publication, and as they produced more and more scholarship, the journal editors who controlled access to print acquired more and more power over the scholarship selection and publishing process. Scholars had little choice but to tolerate this situation. Both sides "knew the score": without the approval and assistance of editors, scholars' work would not get printed, and therefore would remain essentially unknown.
In the age of cyberspace, law professors can finally escape the straitjacket of the law reviews by publishing their own scholarship directly on the World Wide Web.
[4.3] In Part II of this article, we saw that over time, legal scholars have become increasingly displeased and frustrated with the law review system. Many law professors have variously accused law reviews of being too arbitrary, too slow, too error-prone, or too heavy-handed; they have blamed law reviews for running articles that are too conventional, too long, too heavily footnoted or otherwise problematic. At bottom, all these accusations are complaints about editorial practices, the editorial process or the material results of working within a given editorial system. The identity of the law review editors - students or faculty members - has done little to alter the fact of complaints; it has merely determined their details.
[4.4] Today, however, new computer-mediated communications technologies, the more conservative manifestations of which I considered in Part III of this article, provide law professors and other scholars with a way of breaking out of the editorial bind. For the first time in the history of legal scholarship, one medium in particular - the World Wide Web - provides a practical and attractive means by which law professors can take complete control of the production and dissemination of their own scholarly work.
[4.5] The case for the self-publishing of legal scholarship on the Web is clear and strong. Law professors working at terminals with an Internet connection to the Web need not worry any more about whether the subject of a piece is too esoteric, too doctrinal, too complicated or even too impolitic for law review editors; we are free to write and publish on the topics of our choice. This freedom might give us a useful antidote to the substantive (conservative or "trendy") sameness of the reviews as they now exist. On the Web, we need not endure months of frustrating or embarrassing delay while our papers are judged, peer-reviewed, edited or printed in formal journals; we can disseminate our work instantly, as soon as we are satisfied with it. Our work can appear when we want it to, as opposed to when someone else's printing and publication schedule allows it to appear. On the Web, we are under no compulsion to tolerate the indignities and inaccuracies of line-editing: we can present our own work in our own terms, in our own "voice", in our own words, in our own ways. On the Web, we need not cater to the technologically- conservative expectations of peer-reviewers or even of editors themselves; on the Web, we can "push the envelope", constructing our presentations in what we regard as the most technologically-effective manner. On the Web, we need not turn our backs on our own work once it is printed, without the benefit of revision, correction or change; we can conveniently and immediately improve our own articles days, months or even years after initial publication, without going through an editorial middleman. On the Web, we can even save money: if the practice of Web self-publishing becomes sufficiently generalized, our institutions will no longer have to spend hundreds of thousands of dollars paying for both the publication of our own (print or electronic) law reviews and our subscriptions to the law reviews of others.
The case for the self-publishing of legal scholarship on the Web is clear and strong.
[4.6] While freeing legal scholars from inconvenient and occasionally-oppressive editorial controls, self- publishing on the Web also brings with it all the general advantages of Web publication (some of which I mentioned in passing while reviewing the advantages of electronic journal publication in Part III). On the Web, our ideas need no longer be circumscribed by the national or intra- disciplinary circulation of particular law reviews; we can present our work to an international and interdisciplinary public. An article on war crimes, for instance, can be easily read by a legal scholar in Italy, or a sociologist at Berkeley. The latter possibility is an especially attractive prospect in this age of "interdisciplinary" legal scholarship: rather than hope that a law review article somehow leaks out into greater academia where it can have a truly-interdisciplinary impact, legal scholarship can be made readily available to researchers from multiple fields who would otherwise never see a law review. On the Web, we are no longer limited by the lineal nature of print or the physical limits of the article format; we can use the Web's hypertext capacity to set our ideas in a broader substantive context, incidentally allowing interested readers to follow particular threads of our analysis.230 If we are discussing the Supreme Court's decision in Roe v. Wade, for instance, we can provide a hypertext link instantly connecting the reader to the full text of that decision. Not only is the use of hypertext likely to have explicit scholarly and informational benefits, but it may even encourage new and different ways to think about law consistent with hypertext's non-lineal and anti-authorial nature.231 On the Web, we no longer have to defer to the sensory limitations of the print medium; we can communicate our ideas and information with media and combinations of media that printed law reviews either cannot deal with or can deal with only with difficulty. For instance, an article on the Magna Carta might provide readers not only with the text of the famous thirteenth-century English charter, but also with a full color (and, in this instance, magnifiable) image of the manuscript in the British Library. An article on Roe v. Wade might connect to a recording of the oral arguments in that case. An article on the O.J. Simpson trial might include not only links to the trial transcripts, but also pictures from the trial, audio clips of the legal arguments, and even video from the court proceedings. Far beyond making our scholarship more entertaining (a not-insignificant achievement in itself), such strategies promise to open up rich new vistas of legal academic inquiry. On the Web, senses, sounds, images, colors, movements and performances can all come to center stage. Legal rhetoric, legal gesture, legal ritual, legal proxemics, legal architecture, legal iconography and other audio-visual practices and phenomena that are not easily captured or described in print232 will become more amenable to study and intelligent discussion. The pictorial and even the aural dimensions of legal documents which print has reduced to purely-textual artifacts (e.g. illuminated medieval legal manuscripts and even the Declaration of Independence, which recent research has revealed to have been originally composed for oral proclamation233) will at long last be recovered and recreated. Individuals working in the legal system or otherwise involved in the legal process as judges, lawyers, clients, witnesses or family members will be heard and seen for themselves in legal scholarship, instead of being (re-)presented and (mis-)understood through the filter of words written on a page. Given the technological means, some of us might even choose to personally step before the microphone and/or the camera, creating multimedia Web "scholarship" that in its supra-textual aspects might resemble "teaching", thereby breaking down the sharp, debilitating split that has long existed between these forms of academic communication. Finally, after we publish on the Web, we do not have to wait in our offices for someone to take the time to write to us or to make the psychological effort to call with comments of criticism or praise; the built-in electronic mail capacities of the Web allow and encourage our readers to provide meaningful and timely feedback to us at the touch of a button,234 comments which we can use as the basis of revision of the original article and/or append to the original document for the enlightenment and benefit of other readers and evaluators. Instead of being dead-on-arrival, every article we write on the Web can be a living creature, capable of interactivity, growth and evolution.
On the Web,...legal rhetoric, legal gesture...legal iconography and other audio-visual practices and phenomena that are not easily captured or described in print will become more amenable to study and intelligent discussion.
[4.7] The existence of a good prima facie case for the self-publishing of legal scholarship on the Web does not mean, however, that proponents of continuing the editorial status quo have no possible counter-arguments. For instance, they might say that edited law reviews provide important quality control, without which the legal community would be flooded with sub-standard legal writing. There are at least three responses to this. First, most law professors who are inclined to publish are already writing at or near capacity; productivity would doubtless increase if professors did not have to spend time dealing with law review editors and their re-writes, but a quantum increase in the pages of writing generated is unlikely. Second, "flooding" by self-published electronic papers is not a problem in the same sense that flooding by printed papers is. In an electronic system, no one is going to be buried in paper who does not want to be. Given electronic searching, no one has to laboriously flip through pages and pages of unwanted articles to get to the one he or she wants to find. The Web could in fact absorb a gigantic number of scholarly contributions without individual legal scholars or researchers becoming inconvenienced by or even conscious of such a development.235 Third, "quality control" would not suffer under the self-publishing proposal. We have already seen that the current law review system operates with minimal quality control in the generally-accepted ("peer-review") sense of that term: there are still very few faculty-edited law journals, and it is at least questionable whether the second- and third-year editors of the student- run reviews make or can make accurate qualitative (as opposed to institutionally-, reputationally-, or stylistically-related) judgments about any but the most familiar or doctrinal brands of legal scholarship. In this context the elimination of what now passes for "quality control" might actually be an improvement. The point is moot, however, for Web self-publishing and significant, professorially-undertaken quality control are in fact highly compatible. To a large extent, quality control in a self-publishing environment will be self-imposed. Individual legal scholars, knowing that their work will be presented in exactly the form in which they leave it, will be strongly encouraged to review their arguments, their facts and their texts carefully in circumstances where they can no longer leave those tasks to student editors. For the same purpose of avoiding public embarrassment (as well as to simply improve their scholarly products) many will doubtless choose to continue the current practice of informally circulating drafts to friends and colleagues, thereby ensuring to themselves the benefit of pre-publication feedback. Quality-control might also be provided after the fact by reader comments that the new technology could "attach" to any given self-published article; positive comments would probably make an article more significant, while negative comments (or no comments) would probably encourage its marginalization. In effect, this would be a new and improved form of (post-hoc) peer-review, where the "peers" would be individuals sufficiently interested and informed about the article's subject matter to have read the article voluntarily, and where the review would rate an article without (as in the current system) forcing its perhaps-premature or unfortunate suppression if the reviewers' verdict were negative.235a Individual law faculty might even go so far as to compile lists of (and links to) recommended articles on their own Web "home pages", thereby providing quality- based bibliographic guidance for colleagues in search of that.
Instead of being dead-on-arrival, every article we write on the Web can be a living creature, capable of interactivity, growth and evolution.
[4.8] A variant of the "no quality control" argument might be that self-publishing on the Web would destroy the existing technical standards for law review writing which have been implicitly and explicitly created by generations of print law review editors and which are now being carried on (with some adjustments) by their successors working in electronic formats. This is theoretically possible, but probably not likely in the short term - self-published scholars (like the editors of purely electronic law reviews, albeit to a lesser extent) have at least some incentive to adhere to prevailing conventions so as to render their work acceptable. Even assuming that standards did collapse, however, would that be such a bad thing? The historical record of law review criticism - going back to Fred Rodell and beyond - would suggest not. The freedom that would come with Web self-publishing could eventually prompt a lot of fresh air to blow across a fairly arid stylistic terrain. New formats would appear; new types of presentation would be tried. But of course style is not all that is at stake here. Less obviously, but perhaps more importantly, so is the Bluebook. The Bluebook, however, has many limitations and critics already. Its demise, or at least its decline, would not be disastrous so long as legal academics make an honest effort to make their references understood, which is ultimately in their own interest. Indeed, freedom from Bluebook conventions would likely make some citations (especially to foreign and non-legal materials) more rather than less intelligible.236 Proponents of Web self-publishing might even argue that the Bluebook is largely irrelevant in a Web environment - as that environment develops and information is added to it, footnotes and references as we now know them are likely (in many, if not in all instances) to be replaced by direct hypertext links to the cited material. In other words, instead of dropping a conventionalized footnote (in appropriate Bluebook style) to, say, Stephen Shriffin's article "Racist Speech, Outsider Jurisprudence and the Meaning of America" in the November 1994 issue of the Cornell Law Review, a Web-based paper would link directly to that article.237 No footnote, and no Bluebook required.
[4.9] A second major argument that might be advanced against Web publishing by defenders of edited law reviews might be that only journals (be they in print or electronic form) are capable of efficiently bringing legal scholarship to the attention of legal readers; in this analysis, independently-published legal scholarship would be lost in a sea of information. At the moment, these statements have some truth to them. However, two points might be made. First, printed scholarship (even when produced in journal form) is itself often lost in a sea of (printed) information, despite the best efforts of the indexing services. Second, electronic law journals are particularly hard to find unless you know what to look for. Together, these points mean that edited law reviews themselves cannot guarantee that scholars will find readers, or that readers will find scholars.
[4.10] The potential problem of "unfindable self-published legal scholarship" could be solved, however, if a legal academic institution - most obviously, the AALS - created and maintained a Web site to which all law professors could submit or "link" their scholarly work. This site would be somewhat similar to an electronic archive insofar as scholars and others would access it to look for articles. At the same time, it would be different insofar as articles would not actually have to be stored there (although some could be), but could rather be stored by individuals on their own individual or institutional home pages (in which case the central site would serve as a "pointer"). Such a central site, made electronically searchable by category and keyword, could provide a legal researcher with a convenient listing of an individual scholar's writings, articles citing a particular case, articles in a particular field, etc. There is no technological reason why such a site could not be supplemented by an electronic notification service whereby individuals interested in particular information could be notified whenever a new article relevant to them was submitted to or linked to the site, or when an existing article they had previously accessed was updated, corrected or otherwise revised. The result would be a system which would be more accurate, more accessible and more flexible than anything that exists today in the context of formal periodical publication. If an academic institution were to construct an electronic archive of self-published scholarship, it could also set (and enforce) minimal access and conduct standards to ensure that only authorized individuals (e.g. lawyers and academics) submit materials to the archive, and that "flaming" or other objectionable behavior does not disrupt the necessary decorum of academic debate. It might also enter into co-operative agreements with other institutions fulfilling similar tasks in other disciplines so as to facilitate the free exchange of information.
Web self-publishing and significant, professionally-undertaken quality control are in fact highly compatible.
[4.11] Third, at least some proponents of edited law reviews are likely to point out that only a small fraction of legal scholars are on the Web or even on the Internet in general - and so electronic self-publishing is not a practicable alternative, there being too few electronic writers and/or too few electronic readers to make it academically advantageous. The argument is problematic, however, insofar as there is every indication that more and more American law professors and lawyers are gaining Web access as their law schools and law firms come on-line in increasing numbers.238 The group of potential readers for (and writers of) self-published Web scholarship is therefore growing all the time, and growing rapidly. In this context, the original point becomes somewhat akin to a hypothetical argument that might have been made (with unfortunate long- term results) against printing scholarship at the outset of scholarly journals: "let's stick to writing letters because not all scholars have access to printing facilities or printed materials".
[4.12] A variant of this argument would be: even if law professors are coming on line, it is too technically difficult for most of them to publish on the Internet directly. Once there might have been something to be said for this argument, but given recent developments in Web publishing, it should not be taken that seriously. In the first place, the Web's publishing language - HTML ("Hypertext Markup Language") can be learned in a few hours (it is much easier, in fact, than the other "computer languages" such as Fortran, Basic, C, etc. that some of us were introduced to in school or in college). Once one learns the rudiments of HTML, materials that a law professor has already put into computer in a standard word-processing format (e.g. Microsoft Word, Word Perfect) can be made HTML-compatible almost instantly, without even having to be re-typed. In other words, with only a little more effort, the rewards of writing one's scholarship on computer to begin with (which virtually all of us do these days) can be radically increased. In the second place, a wide range of software packages known as HTML "editors" is now available which enable one to create Web documents easily and quickly without ever learning HTML itself.
[4.13] Fourth, traditionalists preferring edited law reviews in general and printed law reviews in particular might argue that a system of self-publishing on the Web would incidentally condemn legal academics to the physically-uncomfortable fate of having to read an increasing amount of new legal scholarship on computers. The visual limitations of computer screens are well known,239 as is the inconvenience attendant upon having to sit down at a terminal (as opposed to your favorite armchair) in order to read a computer-based work.240 While granting both these points under current technological circumstances, multi-chrome screens with greater resolution and less glare have been - and are being - developed that go a long way to solving the first problem.241 Miniaturization is already helping to make computer technology more portable (witness laptops), pointing the way towards a solution for the second.242 Finally, the fact that a legal article or some other document is initially published on line does not mean that it cannot be accessed or used by a would-be reader in printed form - all one has to do is download the relevant piece to a printer, whereupon it assumes all the familiar, even cozy qualities of the traditional printed format.
[4.14] In a related vein, traditionalists might argue that computer-published articles are less aesthetically pleasing than print pieces, and that therefore self-published scholarship will look prohibitively worse than its print equivalent. This might have been true once, but today it is at the very least debatable. With the aid of popular "browsers" (Mosaic and Netscape in particular), the Web is an increasingly reader-friendly visual environment; it is, in fact, much more legible than LEXIS or WESTLAW, substituting traditional Roman style letters for harsh, "computerish" typefaces. On standard (13-15 inch) computer screens, moreover, the letters and words of Web documents generally appear much larger than they do in most printed law reviews.
The freedom that would come with Web self-publishing could eventually prompt a lot of fresh air to blow across a fairly arid stylistic terrain.
[4.15] A fifth argument against self-publishing on the Web might focus on the likelihood that - if the strategy proved attractive and successful - it would deprive students in particular of the benefits of editing a law review. The problems with this argument should already be apparent. As we saw in Part II of this article, many law professors and even some law students have argued that the educational value that students derive from the editing exercise is, if not minimal, at least dubious. As a result, there may be little to be lost by the decline and potentially the fall of the law review as an institution. Indeed, there may be something to be gained: if law review work were largely eliminated, law students would have more time for classes, studying, and getting the benefits of a formal legal education. Any "missed opportunity" for student training in legal research and writing that might be caused by the elimination of the law review could probably be more than counterbalanced by the institution of upper-level legal writing programs and/or working with individual students to make their own papers publishable. Even apart from this, direct professorial publishing on the Web would not in itself prevent law students from continuing to publish a law review, if they or others deemed the educational experience sufficiently useful and important. Law students might, for instance, turn to publishing print or electronic law journals for themselves, using them as vehicles for circulating the best in student papers from their own law schools to the legal community at large. Institutionally, this would probably be much better than allowing unrestricted student legal publication in, say, an AALS-supervised archive.
[4.16] Of course, moving towards self-publishing of legal scholarship on the Web would equally deprive faculty editors and peer reviewers of their roles in the current law review system. Here too there would seem to be an ostensible loss: editing and reviewing may provide at least some law professors with professional stimulation and connections. In the long run, however, the same individuals would likely benefit from the change. With no law review to run and no submissions to review, law professors could (and perhaps would be prompted to) get on with their own writing, which after all is the primary route to professional and institutional advancement in the legal academy. They could save time; their institutions would save money. If erstwhile reviewers really did want to spend time telling others what they think of their work, that option would still be available to them via what I earlier described as "post hoc" peer review; indeed, this peer review, for the peer reviewers, would be less a form of peer review in the private, limited sense of the term, than it would (by definition) be a publication in itself. In this context, peer reviewers could finally have their cake and eat it too (i.e. do peer review and get formal scholarly credit for doing that), which might result in a better quality of criticism.
[4.17] A sixth, and perhaps the most frank argument that defenders of edited law reviews might make against Web self-publishing would focus on the loss of incidental prestige to authors, editors and institutions that would likely be caused by the adoption of such a strategy. If legal scholars published themselves, they would by definition be deprived of the "halo effect" of a "good" placement in a "reputable" law review. If legal scholars published themselves, the publishing institutions (not to mention the editors of the institutions' reviews) would moreover be unable to claim the benefit of any reflected glory. But these points, even if powerful,243 are surely specious. "Halo effects" are intellectually suspect - surely serious scholars would agree that scholarly articles should ultimately be assessed on their own merit, rather than according to the prestige of the law review in which they appear, especially when the law reviews exercise little if any true quality control. In this context, eliminating the "halo effect" of placement would remove a significant temptation in the way of free and fair evaluation of scholarship, while at the same time (re- )focusing the attention of law professors on doing their scholarly work for its own sake, rather than playing the placement "game".244 Secondly, self-publishing would not end all prestige benefits for institutions: law schools would presumably continue to derive status from the published product of their own professors, if not from the prestige of a home journal publishing the works of others.
...surely serious scholars would agree that scholarly articles should ultimately be assessed on their own merit, rather than according to the prestige of the law review in which they appear.....
[4.18] Finally, supporters of edited law reviews (either in print or electronic form) might just throw up their hands at the notion of professorial self-publishing on the Web, saying: "the whole idea's just crazy; it's science-fiction; it would never work." But the general idea (or something very much like it) has already been implemented by individual scholars all over the world. It has become standard procedure in at least one discipline and is making practical headway in several others. Highly credible commentators and committees have lately recommended it for even wider academic application. The present argument for the self-publication of legal scholarship on the Web would not be complete without some description of each of these initiatives.
[4.19] Very soon after the World Wide Web was developed (and with increasing frequency after the release of Mosaic and Netscape), individual academics in a variety of different disciplines realized its enormous professional and scholarly potential. Without waiting for their colleagues to "catch up" or for their academic associations to formally endorse their actions, scholars in such fields as computer science, mathematics, physics, public health, classics, media theory and even law began putting portions of their work directly on-line for the world to see. Some of these materials were electronic "post-prints" of papers that had already been formally published elsewhere. Others were abstracts of those papers. A few enterprising scholars even took the next logical step and began to put "unpublished" papers on-line, some with a view to getting feedback prior to seeking formal publication in traditional media, others under the assumption that distributing a piece on the Web made other publication redundant. These practices are becoming more and more common as more and more academics enter the Web and realize what it can do for them and for their ideas.
...self-publishing on the Web...has become standard procedure in at least one discipline and is making practical headway in several others.
[4.20] Some academic disciplines have nonetheless made more organized progress in the direction of electronic self-publication than have others. In the early 1990s, physics took the lead in this respect and has kept it ever since. In May 1991, David Mermin, a disgruntled but prescient academic columnist for Physics Today, openly declared that "The time is overdue to abolish journals and re-organize the way we do business".245 He proposed that physicists e-mail their work to a "central clearinghouse" which would then post that work on an electronic bulletin board for perusal and downloading by others as necessary.246 Physicist Paul Ginsparg of the Los Alamos National Laboratory took concrete action in August of the same year: frustrated by the prevailing system of scholarly communication in high-energy physics in particular, where - as elsewhere in the sciences - delays and difficulties inherent in the existing system of peer-reviewed journals had stimulated the circulation of expensive, self-published paper "pre-prints", he created what he called a "pre-print electronic archive" to which individual physicists could send electronic versions of their pre-prints prior to formal publication. As constructed, this fully-automated archive was active as well as passive: not only did it make papers available for access by e-mail, "FTP" (file transfer protocol) and (eventually) World Wide Web, but it used e-mail to notify "subscribers" of new submissions.247 Ginsparg's system has since become so successful that in high-energy physics, the electronic pre-print archive has not only replaced the practice of circulating paper pre-prints, but has largely superseded the formal printed journals as "primary disseminators of research information."248 Ginsparg's archiving software has meanwhile been applied to some twenty-five other research disciplines ranging from other areas of physics (astrophysics, condensed matter theory, quantum physics, chemical physics, etc.) through mathematics, economics, computational linguistics all the way to oceanic sciences;249 a similar program has recently been used in Japan to create an international database of self-published pre- prints in philosophy.250
[4.21] In several major fields where a lesser amount of practical progress has been made, electronic self- publication of scholarship has lately come highly recommended. For instance, in May of 1995, a team of public health professionals and information specialists (including managers at AT&T and NASA) headed by Ronald Laporte of the University of Pittsburgh Graduate School of Public Health proposed a Ginsparg-style system of electronic self-publication for the health sciences. In an article in the British Medical Journal provocatively entitled "The Death of Biomedical Journals", Laporte et al. detailed the editorial and financial limitations of the current biomedical periodical structure. They described their work on a "Global Health Information Server" (part of the Global Health Network) that would facilitate distribution and exchange of biomedical research by eliminating journals and preliminary peer review in favor of electronic archiving of revisable self-published papers with comments provided post hoc by interested readers. Issuing a clarion call for radical, liberating change, Laporte concluded that "it is time that scientists begin to take control of their research communication."251 Laporte's proposal prompted a spirited response from the editors of the prestigious New England Journal of Medicine, who argued that the lack of preliminary peer-review in his system not only threatened to undermine "time tested traditions", but might potentially cost lives or cause physical harm to patients whose doctors read inadequately-reviewed literature.252 At the same time, the Journal moved to pre-emptively stifle any scholarly migration to the Global Health Information Server or other similar electronic archive by issuing an ill-disguised threat: "posting a manuscript....on a host computer to which anyone on the Internet can gain access will constitute prior publication" rendering an article ineligible for publication by the Journal itself.253 Even in this context, Laporte's program has garnered significant support, both nationally and internationally. To the extent that it remains controversial, its greatest problems would by definition not be encountered in legal scholarship, which has neither a significant peer-review system to lose nor runs the risk of causing death or physical harm if quality control becomes problematic (although I have already argued that post-hoc peer review would make such a development unlikely).
...internal professional circumstances - and not just the abstract existence of a technology - make Web self-publishing a particularly attractive option for the legal academy.
[4.22] Systems or proposals for reform of scholarly communication that make sense in one or more disciplines admittedly may not be automatically appropriate for another having significantly different traditions, characteristics or sensibilities. The existence of the paper pre-print system in high energy physics, for instance, made it easier to create an electronic archive of self-published scholarship existing outside the traditional bounds of the printed physics journals. Having said that, however, this article has clearly demonstrated that internal professional circumstances - and not just the abstract existence of a technology - make Web self-publishing a particularly attractive option for the legal academy. The potential in law of the general idea of electronic self- publication, if not its specific application to the World Wide Web, has notably been recognized by at least one group of legal information specialists. In 1993, the Interim Report of a joint committee established by the University of Dayton School of Law and Mead Data Central to study the role and potential of computer technology in legal education suggested (apparently inspired by some of the musings of Cornell law professor Peter Martin) that, in the future, "Law reviews may be replaced by direct access data bases to which faculty contribute their scholarly work.... "Direct" publishing of scholarly material ...provides a fast and efficient arena for scholarly debate and discussion. This shift away from hard copy to on-line availability raises a number of questions about the future role of student-edited law reviews."254 Not having been specifically charged with the task of re-examining legal scholarship, the committee made its comments only in passing, but they nonetheless lend credence to the present proposal.
[4.23] The self-publishing of legal scholarship on the Web might not be altogether without its own difficulties and challenges (especially in the short term, while the relevant technology is still evolving), but the theoretical and practical analysis offered here suggests that in the context of the multiple problems plaguing the contemporary law review system, the professional and intellectual benefits of such a scheme would be well worth the risks. The question therefore becomes: what can the members of the American legal academy - administrators, professors and even law students - do to make this "modest proposal" a reality?
his article has comprehensively re-assessed the institution of the law review from the perspective of the present age of cyberspace. In Part I, I began this re-assessment by showing how the law review first developed from the interaction of improved print technology and the institutional circumstances of American law schools in the late nineteenth and early twentieth centuries. In Part II, I traced the course that criticism of the law review system has taken over the years, relating the shifting pattern and growing intensity of the criticisms to ongoing changes in the legal academy. In Part III, I showed how new computer-mediated communications technologies embodied in LEXIS, WESTLAW and the various electronic law journals have subtlely altered (and arguably improved) the way in which legal scholarship is distributed, accessed and used; at the same time, I emphasized that those formats have neither succeeded in curing the fundamental deficiencies of the law review system nor realized their own technological potential. In Part IV of this Article, I argued that legal scholars could simultaneously avoid many of the pitfalls and problems traditionally associated with the law reviews, seize exciting new professional and intellectual opportunities, and take full advantage of the new computer technology by publishing their own scholarship on the Internet platform known as the World Wide Web.
[v.2] Given the range of benefits that self-publication of legal scholarship on the Web would bestow on legal scholars and the legal community as a whole, it is theoretically possible that the practice will develop spontaneously (as, to some extent, it already has), slowly gaining popularity until it becomes the scholarly norm. There are, however, steps that can be taken to accelerate and enrich this otherwise gradual process. The precise nature of these steps depends in large part on who is taking them.
[v.3] Individual law professors, for instance, can promote Web-based legal publishing by putting their own papers on line as soon as possible. Individuals who retain copyright to their published pieces can put their existing scholarship on line immediately. Those who have granted copyright to law reviews can either negotiate with those reviews to regain copyright so as to allow on-line publication of their full texts, or, at the very least, they can post abstracts of their published pieces. Those in the process of writing legal scholarship might consider putting that on-line themselves as soon as it is completed to their satisfaction. This need not preclude later publication of their work in a printed or electronic law journal - indeed, on-line release could be perfectly compatible with that insofar as Web publication would probably elicit feedback that would improve the printed product, and moreover would allow scholars to reach what are now two relatively-distinct audiences. Over the years, however, legal scholars will probably discover (as an increasing number of scholars in other fields have already found) that a two-track publication system is awkward, unstable and ultimately self-defeating. Writers used to working on the Web will eventually find the absolute or relative fixity of their formally-published products frustrating, and in order to meet criticism, maintain the integrity or extend the shelf-life of those products will likely opt to revise their Web-based versions after (as well as before) formal publication. Readers will inevitably be drawn to the most up-to-date version of any given article, and will therefore stop using or referring to articles in their formally-published forms once those have been superseded by electronic revision. Together, these developments will make law review publication increasingly unattractive (indeed, unnecessary) as a professional option.
Individual law professors...can promote Web-based legal publishing by putting their own papers on line as soon as possible.
[v.4] Law deans and law faculties as a whole, meanwhile, should encourage or at least recognize the scholarly value of self-published legal scholarship. If they do not endorse or support the practice, preferring publication through the old established channels of the law reviews, their inaction will make Web publication impractical or at least unattractive for precisely those members of the legal professoriate who are otherwise most likely to take advantage of and gain from it: younger, more computer-literate legal scholars under significant pressure to publish. On the other hand, if they intervene positively, they will encourage their younger and more ambitious faculty members to unprecedented heights of productivity and, very likely, creativity.
[v.5] As I indicated in the previous section of this Article, the Association of American Law Schools might play a highly constructive - indeed, a critical - part in any movement towards Web-based self-publishing by exploring the possibilities for establishing an automated, but supervised Web site which would archive and link the new corpus of self-published legal scholarship.255 At least initially, it might be worthwhile to explore the potential applicability to law of some variation of Paul Ginsparg's archival physics software (which, it should be recalled, has already been successfully exported into other disciplinary fields). If the AALS is unwilling or unable to take the general initiative, a single American law school might consider providing such a site as a service to both the legal professoriate and the wider legal community. The cost of such an undertaking would be well within the means of even a non-elite school, given a pre-existing Web connection: Ginsparg's own experiment was undertaken on a shoestring (if never formally established) budget, covering a few hours of programming labor plus hard disk space on an existing machine (valued in 1991 at under $5000) which ran and continued to run other programs.256 A small investment here could have a very big payoff: given the critical position the site-sponsoring law school would likely come to occupy in the broader constellation of American legal scholarship and information, such a school might make a considerable name for itself in the age of cyberspace, just as Harvard made a name for itself in the hey-day of cheap print by inaugurating its law review. The institutional boost to the site-sponsoring school would be that much greater if its faculty, like the Harvard faculty in the early years of the Harvard Law Review, made a special point of publishing or (in the case of already-printed pieces over which copyright has been retained) re-publishing its own scholarship on the site. In that way, the site-sponsoring school could seize the technological high-ground, insofar as inquisitive and ambitious scholars from other law schools, other disciplines and other countries drawn to the site for its potential and its convenience would (if the site were properly constructed) encounter the sponsoring school's intellectual products, perhaps for the first time.
[v.6] Last but not least, even the editors of contemporary law reviews have a positive role they can play in the transition to a new system of electronically self-published legal scholarship (obviously, they could choose to play a negative role - in particular, by embracing the strategy of the "pre-emptive strike" already launched by the New England Journal of Medicine against self-published scholarship in the health sciences - although it is to be hoped that scholarly responsibility and even their own self-interests as law students and law professors will prevail over the simple instinct for institutional self-preservation257). Far from voluntarily and immediately folding up, they should continue their incipient efforts to place their published scholarship on the Web; not only, in fact, should they put on whatever new scholarship that continues to appear in their pages over the next few years, but they should put on a complete run of their back issues (perhaps making the articles in those issues hypertext-compatible by converting into hyperlinks their footnotes and their citations to other articles in the same journal). Such a strategy would have two important results: first, it would make the Web a better (and more frequently-used) resource for legal scholarship (which would in turn help to subtlely acclimate legal scholars to the idea of using it as a publishing base); and, second, it would make the Web a richer publishing tool by giving legal scholars more literature to link to with hypertext. As for the (student or faculty) editors of second-generation electronic law reviews with no printed equivalents, they too should continue their work for as long as at least some scholars are willing to feed them material. The more established they become, the more established the Web itself will appear; in this context, they might do as much to encourage the success of Web self-publishing in the long run as they might to distract certain scholars from it in the short run.
...the Association of American Law Schools might play a highly-constructive - indeed, a critical - part in any movement towards Web-based self-publishing....
[v.7] In the long run, however, the practice of self-publishing legal scholarship on the World Wide Web will almost certainly bring about the end of the institution of the law review as we know it, in both its print and electronic forms.258 When will that end come? Providing they are attractive, convenient and not too expensive, new technologies can disrupt traditional media very quickly - just consider how rapidly CDs replaced vinyl LPS in the entertainment industry. Even in the ostensibly more conservative academic context, new technologies which solve fundamental problems and create new opportunities for professors and their institutions can change scholarly norms in a stunningly-short snippet of time. For instance, the 1991 creation of Paul Ginsparg's cheap and speedy electronic archive put the printed high energy physics journals on the ropes almost immediately; four years after the inauguration of his service they have not collapsed, but they have been reduced to the status of side-shows and their demise appears inevitable. In actuality, it is still too early to say exactly when the law review in its present form will pass from the American academic scene, but in light of its critical condition and the availability of an alternative and arguably superior form of scholarly communication, it is not too early for the last writes.
*. Audio quotation from Marshall McLuhan reproduced courtesy of Dr. Nelson Thall, Research Director, McLuhan Center for Media Studies, Toronto, CANADA. A CD containing this and other McLuhan quotes is sold by AK Press (URL: http://www.akpress.org; email: email@example.com; telephone 415-923-1429).
1. See generally Michael I. Swygert & John W. Bruce, "The Historical Origins, Founding and Early Development of Student-Edited Law Reviews", 36 Hastings L.J. 739, 764-769 (1985).
2. On Ames' supportive role in the creation of the Harvard Law Review, see Swygert & Bruce, supra note 1, at 771-772.
3. Swygert & Bruce, supra note 1, at 770.
4. Afton Dekanal, "Faculty-Edited Law Reviews: Should the Law Schools Join the Rest of Academe?", 57 UMKC L. Rev. 233, 235 (1989): "...for virtually all schools except Harvard, student-edited law journals came into being because that is what Harvard did."; Lyman P. Wilson, "The Law Schools, the Law Reviews and the Courts", 30 Cornell L. Q. 488, 493 (1945) ("...because in education as elsewhere there is such a thing as "keeping up with the Jones", each new school and each of the older ones that did not already have a law review felt the urge to start one.").
5. John J. McKelvey, "The Law School Review, 1887-1937", 50 Harv. L. Rev. 868, 882 (1937).
6. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s, 4 (1983).
7. In 1880, there were 46 university-based law schools in the United States; in 1890, there were 50. Alfred Z. Reed, Training for the Public Profession of the Law 445 (1921).
8. See generally Stevens, supra note 6, at 24.
9."In 1887,....many [law schools] were merely adjuncts or supplementary agencies, in the creation of lawyers, to the law offices...". McKelvey, supra note 5, at 878. See also William Johnson, Schooled Lawyers: A Study in the Clash of Professional Cultures 49 (1978) (discussing "the limited and supplementary role that law schools played in legal training...").
10. See, e.g., Stevens, supra note 6, at 35, 37.
11. Reed, supra note 7, at 183.
12. In the latter half of the nineteenth century, American law professors and law schools repeatedly premised their existence on their ability to do this. In its catalog for 1858-59, for instance, New York University Law School rejected office training as an environment where (unlike law school), students "generally pursue their studies unaided by any real instruction, or examination, or explanation. They imbibe error and truth, principles which are still in force with principles which have become obsolete; and when admitted to practice, they find, often at the cost of their unfortunate clients, that their course of study has not made them sound lawyers or correct practitioners." Quoted in Stevens, supra note 6, at 22.
13. Some law schools - such as Columbia - had benefitted from the existence of formal alumni associations as early as the 1860s. See Columbia University School of Law, A History of the School of Law, Columbia University, 403 n.57 (1955).
14. See Alfred McClung Lee, The Daily Newspaper in America: The Evolution of a Social Instrument, 118-121 (1937); Hellmut Lehmann-Haupt, The Book in America: A History of the Making and Selling of Books in the United States 162-165 (1952).
15. See generally Lee, supra note 14, at 98-103; Lehmann-Haupt, supra note 14, at 166-170.
16. See generally Lee, supra note 14, at 104, 118-125.
17. John Tebbel, A History of Book Publishing in the United States 676, 679, 687 (1975).
18. Frank Luther Mott, A History of American Magazines 1885-1905, at 11 (1957).
19. "Some Magazine Mysteries", 61 Nation 342 (1895).
20. "Too Many Books", 8 Green Bag 83 (1896).
21. See generally "Cheap Books", 1 American Law Journal 105 (1884).
22. Tebbel, supra note 17, at 676, 677, 682, 689.
23. J.L. High, "What Shall be Done with the Reports?", 16 Am. L. Rev. 429, 435, 439 (1882). See also Robert Hughes, "Law Reporting", 1 Va. L. Reg. 309 (1885); R.S. Taft, "Precedents", 3 Univ. L. Rev. 197 (1897).
24. The Michigan Law Review, for instance, would be started in 1901 with an $800 loan from the School's Board of Regents - not an insignificant sum, but at least within the realm of institutional possibility. E. Blythe Stason, "The Law Review - Its First Fifty Years", 50 Mich. L. Rev. 1134 (1952).
25. For instances of justifications of law reviews citing this capability, see "Introductory", 1 The Counselor [New York Law School] 16 (1891); 1 Mich. L.J. 25 (1892); 1 Md. L. Rev. 3 (1901); "The Cornell Law Quarterly", 1 Cornell L.Q. 27 (1915); "The Law Review and the Law School", 1 N.Y.U. L. Rev. 31, 32 (1924).
26. See generally William P. Lapiana, Logic and Experience: The Origin of Modern American Legal Education 100 (1994).
27. On the general role of the law review in promoting this connection, see, e.g., "Foreword", 1 Minn. L. Rev. 63 (1917).
28. See generally Lapiana, supra note 26, at 100.
29. For instances of justifications citing a law review as having this capacity, see "Notes", 1 Harv. L.R. 35 (1887); "Introductory", supra note 25; "Notes", W. Res. L.J. 18 (1895); "The Illinois Law Review", 1 Ill. L. Rev. 39 (1906); 1 S. L. Q. [Tulane Law School] 45 (1916).
30. For instances of justifications citing these capacities of a law review, see "Notes", 1 Harv. L.R. 35 (1887); 1 Yale L.J. 30 (1891); "The Cornell Law Quarterly", supra note 25.
31. See generally Laurence R. Veysey, The Emergence of the American University 121-179 (1965).
32. Note, for instance, this comment by the first President of Johns Hopkins, Daniel Gilman, looking back from 1902 on the circumstances prevailing in 1876: "When this university began, the opportunities for scientific publication in this country were very meager. The American Journal of Science was the chief repository for short and current papers. The memoirs of a few learned societies came out at sow intervals and could not be freely opened to investigators.". Quoted in Dennis P. Carrigan, "The Political Economy of Scholarly Communication and the American System of Higher Education", 15 J. Acad. Librarianship 332, 334 (1990).
33. Frederick Rudolph, The American College and University: A History 407 (1990).
34. Rudolph, supra note 33, at 406.
35. For instances of justifications citing this capability of the law review, see "Announcement", 1 Mich. L.Rev. 58 (1902); 1 Georgetown L.J. 50 (1912); "Introductory Note", 1 Cal. L. Rev. 46, 48 (1913); "The Law Review and the Law School", 1 N.Y.U. L. Rev. 31, 32 (1924).
36. As David Cavers wrote in 1936, "without the law review, the law teacher who was imbued with an urge for expression unsated by the confection of classroom notes would have found little other outlet than that afforded by the treatise. But the treatise is not a medium open to everyone. It demands a substantial investment which the commercial publisher is willing to make only if the assured position of its author (or, occasionally, the timeliness of its subject) affords some guaranty of an adequate market." David Cavers, "New Fields for the Legal Periodical", 23 Va. L. Rev. 1, 2-3 (1936).
37. It would later be said that "[w]ere it not for the law review, many epoch-making articles might never have been written, or if written, would never have had widespread influence. In the issues of the Law Review, they were circulated, and were read by all." "The Law Review and the Law School", 1 N.Y.U. Law Review 31, 32 (1924).
38. It was thought that student editors could be made more scholastically responsible through close faculty supervision, and, in any event, law professors were not yet so assimilated into the broader academic culture as to make such an arrangement (otherwise attractive on pedagogical and professional grounds) anathema to them. See generally Dekanal, supra note 4, at 235.
39. For instances of justifications emphasizing the law review's capacity to advance or demonstrate the "scientific" study of law, see 1 Univ. L. Rev. 1 (1893); "Foreword", supra note 27 (adding, at 64, that "in this way the law school...may be elevated toward the place in public estimation which it is surely ultimately to attain.").
40. Stevens, supra note 6, at 38.
41. Swygert & Bruce, supra note 1, at 773.
42. On the students' desire to publicize the faculty and the achievements of the Harvard Law School, see John H. Wigmore "The Recent Cases Department", 50 Harv. L. Rev. 862 (1937).
43. On Eliot and the turn to research at Harvard, see generally Hugh Hawkins, "Charles W. Eliot, Daniel C. Gilman and the Nurture of American Scholarship", 39 New Eng. Q. 291 (1966).
44. Wigmore, supra note 42, at 862-63.
45. Having said this, it is important to note that not all Harvard faculty were initially enthusiastic about the initiative. One of the Review's student founders, Joseph Beale, reported that the members of the faculty displayed "differing degrees of warmth in support offered." Quoted in Swygert & Bruce, supra note 1, at 770.
46. "Notes", 1 Harv. L. Rev. 35 (1887).
47. See, e.g., Garrard Glenn, "Law Reviews - Notes of an Antediluvian", 23 Va. L. Rev. 46 (1936): "Before the Columbia Law Review was launched [in 1901]...the Dean of the School was approached, and he consented to the review taking the name Columbia only upon condition that it should adopt the model of Harvard."; 1 Minn. L. Rev. 63, 65 (1917), speaking of the both the Harvard Law Review and its more successful competitors: "We feel the inspiration of their example, we covet the eminence they have earned...".
48. Swygert & Bruce, supra note 1, at 779.
49. See generally the long list of law review objectives and justifications cited by John McKelvey in McKelvey, supra note 5, at 870-871.
50. 1 Yale L. J. 30 (1891).
51. "Foreword", supra note 27, at 64.
52. Quoted in McKelvey, supra note 5, at 869.
53. See Roger Cramton, "'The Most Remarkable Institution': The American Law Review", 36 J. Leg. Ed. 4 (1986) (offering, in passing, the observation that "the times were ripe; and if the developments had not come about at Harvard in 1887 they probably would have at Columbia or Pennsylvania or elsewhere a few years later").
54. Derived from Frederick C. Hicks, Materials and Methods of Legal Research 207 (3rd. ed., 1942). This statistic does not, however, reflect all of the nineteen attempts made to create school-sponsored law reviews down to the turn of the century; for a variety of reasons, the majority of these early initiatives failed. See Hicks, at 206.
55. Barbara Cane, "The Role of Law Review in Legal Education", 31 J. Leg. Ed. 215, 220 (1981).
56. McKelvey, supra note 5, at 868.
57. "Editorial Notes", 1 Ill. L. Rev. 39 (1906).
58. A.K. "The Law Review", 21 Ill. L. Rev. 147, 156 (1926).
59. Fred Rodell, "Goodbye to Law Reviews", 23 Va. L. Rev. 38 (1936).
60. Rodell, supra note 59, at 38.
61. Rodell was in good company. One of the original student founders of the Harvard Law Review, John Wigmore, admitted the same year: "I sometimes wonder if this journal-type is not becoming staled. Has mass-organization resulted in too much standardization?" Wigmore, supra note 42, at 867.
62. Rodell, supra note 59, at 44-45.
63. Rodell, supra note 59, at 38.
64. The Wisconsin Law Review was established in 1920 as a faculty-run journal; by 1930, it had become "a more autonomous student-run organization with less control and influence being exerted by the faculty." Students became the sole editors in 1935, although a faculty advisor was retained. "The Wisconsin Law Review: Fifty Years of Proud Tradition", 1970 Wis. L. Rev. 973, 974.
65. Charles E. Hughes, "Foreword", 50 Yale L.J. 737, 737 (1941) (quoting Holmes).
66. A.K., supra note 58, at 149.
67. Clarence M. Updegraff, "Management of Law School Reviews", 3 U. Cin. L. Rev. 115, 119- 20 (1929).
68. Cavers, supra note 36, at 6-7.
69. See, e.g., 1 Cornell L.Q. 1 (1913) (responding to the Illinois Law Journal): "It is seriously to be questioned whether the mere fact of the multiplication of periodicals in any field of serious endeavor is evidence of waste. One may reasonably assert that the extraordinary number of scientific and technical reviews published in Germany (for example, a dozen or more devoted to entomology) is rather the natural and inevitable expression of intense, varied and widespread intellectual activity."; Douglas B. Maggs, "Concerning the Extent to Which the Law Review Contributes to the Development of the Law", 3 S. Cal. L. Rev. 181, 190 (1930) (concluding that "each law school not now publishing a law review should be encouraged to institute one"); Karl Llewellyn, The Bramble Bush 107 (1930) ("[The] law review is....a thing American. Here is a thing Americans may well be proud of. There is not, as far as I know, in the world an academic faculty which pins its reputation before the public upon the work of undergraduate students - there is none, that is, except in the American law reviews. Such an institution it is a privilege to serve. Such an institution it is an honor to belong to."); "Why Law School Reviews?: A Symposium", 4 Fordham L. Rev. 1 (1935); McKelvey, supra note 5, at 874 ("While...sameness to some has appeared a defect, after due consideration I am forced to the conclusion it is a virtue....The lawyer, judge or law student who uses a law review is not seeking experimentation. He looks for service, and he has no desire to be diverted from his purpose or even delayed by having to familiarize himself with a novel, strange or differently constructed tool.").
70. For a brief description of the experiment and its early results, see A.K., supra note 58, at 148.
71. See generally, "Foreword", 1 Law & Contemp. Probs. 1 (1933).
72. A.K., supra note 58, at 150.
73. See generally Cavers, supra note 36, at 14-19.
74. See, e.g., "A Symposium on State Administrative Procedure", 33 Iowa L. Rev. 193 (1949); "Labor Relations and the Law", U. Chi. L. Rev. 331 (1947). The University of Illinois Law Forum (a state-oriented law review) began publishing symposium issues on a regular basis in 1950.
75. Cavers, supra note 36, at 11-12.
76. John E. Cribbet, "Experimentation in the Law Reviews", 5 J. Leg. Ed. 72, 81 (1952).
77. Stanley Fuld, "A Judge Looks at the Law Review", 28 N.Y.U. L. Rev. 913, 919, 920 (1953).
78. Arthur S. Miller, "A Modest Proposal for Changing Law Review Formats", 8 J. Leg. Ed. 89 (1955).
79. Fred Rodell, "Goodbye to Law Reviews - Revisited", 48 Va. L. Rev. 279, 286 (1962).
80. Rodell, supra note 79, at 288.
81. Cribbet, supra note 76, at 73.
82. Alan Mewett, "Reviewing the Law Reviews", 8 J. Leg. Ed. 188, 189 (1955).
83. Mewett, supra note 82, at 188.
84. See also John G. Hervey, "There's Still Room for Improvement", 9 J. Leg. Ed. 149, 151 (1956).
85. The phrase "publish or perish" was apparently coined, or at least publicized, by Logan Wilson in his classic study The Academic Man: A Study in the Sociology of a Profession, 197 (1942) ("The prevailing pragmatism forced upon the academic group is that one must write something and get it into print. Situation imperatives dictate a 'publish or perish' credo within the ranks.").
86. See generally Stevens, supra note 6, at 271 (reporting that "The emphasis of law professors on article writing flourished in the 1950s as the number of law reviews grew.").
87. James Willard Hurst, "Research Responsibilities of University Law Schools", 10 J. Leg. Ed. 147 (1957).
88. Quoted in Stanley E. Harper, "Caution, Research Ahead", 13 J. Leg. Ed. 411 (1959).
89. Stason, supra note 24, at 1137.
90. Mewett, supra note 82, at 190.
91. Arthur Nussbaum, "Some Remarks About the Position of the Student-Editors of the Law Review", 7 J. Leg. Ed. 381 (1955).
92. See, e.g., Howard Westwood, "The Law Review Should Become the Law School," 31 Va. L. Rev. 913 (1945); Harold Marsh Jr., "The Law Review and the Law School: Some Reflections About Legal Education", 42 Ill. L. Rev. 424, 434 (1947).
93. Stevens, supra note 6, at 221 n.38. Berkeley, for instance, accepted 70% of its applicants in 1954; in 1968, it admitted only 34%.
94. Fuld, supra note 77, at 917. See also Roger Traynor, "To the Right Honorable Law Reviews", 10 UCLA L. Rev. 3, 4 (1962).
95. Harold Havinghurst, "Law Reviews and Legal Education", 51 Nw. L. Rev. 22, 25-26 (1957). See also Roy Moreland, "Unfair Domination of Law Reviews", 12 J. Leg. Ed. 424 (1960).
96. See, e.g., Earl Warren, "Message of Greeting to the UCLA Law Review", 1 UCLA L. Rev. 1 (1953); William M. Moldoff, "Reviewing the Law Reviews: An Answer", 8 J. Leg. Ed. 497 (1955-56) (responding to Mewett); Arthur H. Kahn, "Some Additional Remarks about the Position of the Student-Editors of the Law Review", 9 J. Leg. Ed. 73 (1956) (defending student editorial control); Kenneth F. Burgess, "Law Reviews and the Practicing Lawyer", 51 Nw. L. Rev. 10 (1956) (declaring that "No convincing reason exists, from the standpoint of the practicing lawyer, for altering the established format of the law review."); Havinghurst, supra note 95, at 24 (meeting the criticism that too many law reviews were being produced for too few readers by noting that "Whereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that be may be written."); Traynor, supra note 94, at 8 (responding to critics denigrating the law review as the product of students: "They pay no heed to the fact that the average apprentice in an American law school has long since reached the age of discretion and that he is no ordinary student.").
97. This journal actually originated as the University of Detroit Law Journal; it represented one of the few instances of a law school deciding to replace its general journal with a specialist law review. The practice of student editorial control survived the transition.
See e.g. James R. Clark, "The Wisconsin Law Review in Today's Legal and Educational Environment", 1970 Wis. L. Rev. 983, 987.
99. "The Wisconsin Law Review", supra note 64, at 974.
100. Cribbet, supra note 76, at 81.
101. Cane, supra note 55, at 222.
102. Louis Schwartz, "Civilizing the Law Review", 20 J. Leg. Ed. 63 (1967) (criticizing the narrow, technical scope of law reviews); "The Law Review: Is It Meeting the Needs of the Legal Community"? 44 Denv. L. J. 426 (1967); Clark, supra note 98 (criticizing the lack of editorial continuity in student edited law reviews); John F.T. Murray, "Publish and Perish - By Suffocation", 27 J. Leg. Ed. 566 (1975) (criticizing the repetition and marginal quality of most law review writing produced under the pressures of "publish or perish"); Ed D. Wheeler, "The Bottom Lines: Fifty Years of Legal Footnoting in Review", 72 L. Lib. J. 245 (1979) (criticizing the radical lengthening, if not necessarily the radical proliferation, of law review footnotes since 1928).
103. See, e.g., Cramton, supra note 53.
104. See e.g., Richard A. Posner, "The Future of the Student-Edited Law Review", 47 Stan. L. Rev. 1131 (1995).
105. See, e.g., James Lindgren, "An Author's Manifesto", 61 U. Chi. L. Rev. 527 (1994); James Lindgren, "Fear of Writing", 78 Cal. L. Rev. 1677 (1990); James Lindgren, "Reforming the American Law Review", 47 Stan. L. Rev. 1123 (1995).
106. See "Symposium on Law Review Editing: The Struggle Between Author and Editor Over Control of the Text", 70 Chi.-Kent L. Rev. 71 (1994); "Special Issue: Law Review Conference", 47 Stan. L. Rev. 1147 (1995); "Exchange", 61 U. Chi. L. Rev. 527 (1994); Christopher Shea, "Students v. Professors: Law-review debate heats up as student editors clash with faculty authors", The Chronicle of Higher Education, June 2, 1995, at A33. Even more recently, see Rosa Ehrenreich, "Look Who's Editing", Lingua Franca, January/February 1996, at 58.
107. E.g., feminist jurisprudence and women's legal issues, environmental law, civil rights law, international law, tax law, entertainment law, comparative law, computers and law.
108. The Harvard Civil Rights-Civil Liberties Law Review; the Harvard Journal of Law and Public Policy; the Harvard Journal on Regulation; the Harvard Environmental Law Review; the Harvard International Law Journal; the Harvard Journal of Law and Technology; and the Harvard Women's Law Journal, the Harvard Journal on Legislation and the Harvard Human Rights Journal. As of this writing, Harvard is about to start yet another journal, the Harvard Negotiation Law Review. "Everyone's An Editor", 24/3 Student Law. 5 (1995).
109. The African-American Law and Policy Report, the Asian Law Journal, the Berkeley Journal of Employment and Labor Law, the Ecology Law Quarterly, the International Tax and Business Lawyer, La Raza Law Journal, the Berkeley Women's Law Journal, and the High Technology Law Journal.
110. The Columbia reviews include the Columbia Business Law Review, the Columbia Human Rights Law Review, the Columbia Journal of Environmental Law, the Columbia Journal of Gender and Law, the Columbia Journal of Law and Social Problems, the Columbia Journal of Transnational Law, and the Columbia-VLA Journal of Law and the Arts. The Georgetown reviews include the Georgetown Journal on Fighting Poverty, Law and Policy in International Business, Georgetown Immigration Law Journal, the American Criminal Law Review, the Georgetown Journal of Legal Ethics, the Georgetown International Environmental Law Review, and the Tax Lawyer.
111. The Yale Journal of International Law, the Yale Journal of Law & the Humanities, the Yale Journal of Law and Feminism, the Yale Journal on Regulation, and the Yale Law and Policy Review.
112. These figures are drawn from information contained in Law School Admission Council, The Official Guide to US Law Schools (1995).
113. Cane, supra note 55, at 220.
114. Cane, supra note 55, at 215.
115. Geoffrey Preckshot, "All Hail Emperor Law Review: Criticism of the Law Review System and its Success at Provoking Change", 55 Mo. L. Rev. 1005, 1009 n.25. (1990).
116. This figure was obtained by counting those law journals in the Index to Legal Periodicals which either carry a law school's name in their titles, or list a law school as an editorial address. It may be a low estimate, however: the information on individual law schools in The Official Guide to US Law Schools, published by the Law School Admissions Council, collectively suggests a figure closer to (or, given gaps in its coverage, even above) 413. See Law School Admission Council, supra note 112.
117. One law dean has offered the following tongue-in-cheek proposal as a means of "solving" the problem: "Law schools should enter into a non-proliferation treaty on law reviews. No new reviews, gradual destruction of existing stockpiles until all are destroyed." Roger I. Abrams, "This is Not an Article, or Scholarship: The Greek Salad", 13 Nova L. Rev. 33, 37 (1988).
118. On this problem in academia as a whole, see Deana L. Astle, "The Scholarly Journal: Whence or Wither", 15 J. Acad. Librarianship 151 (1989); on law school budget and financing problems in particular, see e.g., Richard Reuben "State Law Schools Squeezed for Cash", ABA Journal, April 1994, at 32.
119. See Arthur D. Austin, "Footnotes as Product Differentiation", 40 Vand. L. Rev. 1131, 1138 (1987).
120. Elyce H. Zenoff & Lizabeth A. Moody. "Law Faculty Attrition: Are We Doing Something Wrong?", 36 J. Leg. Ed. 209, 220 (1986).
121. See generally Zenoff & Moody, supra note 120; Graham C. Lilly, "Law Schools Without Lawyers? Winds of Change in the Legal Academy", 81 Va. L. Rev. 1421, 1437 (referring to the "mounting pressure on young academics, particularly untenured ones, to research and publish").
122. On the tendency of law professors, lawyers and judges to cite, and more generally use, only a very few law reviews (essentially those from the "elite" schools), see Olavi Maru, "Measuring the Impact of Legal Periodicals", 1976 Am. B. Found. Res. J. 227, 232-242.
123. Some law faculties actually require that their junior members publish in a prescribed number of "acceptable" (read "elite" or "high-profile") law reviews. Michael Vitiello, "Journal Wars", 22 St. Mary's L. J. 927, 929 (1991). Even among those faculties where no such formal requirement exists, placement is often taken as a proxy for the quality of the piece. Vitiello, at 936.
124. See, e.g., Cramton, supra note 53, at 7; Lindgren, "An Author's Manifesto", supra note 105; Posner, supra note 99.
125. See, e.g., Banks McDowell, "The Audiences for Legal Scholarship", 40 J. Leg. Ed., 261, 269 (1990).
126. Lindgren, "Author's Manifesto", supra note 105, at 530.
127. See Arthur D. Austin, "The 'Custom of Vetting' as a Substitute for Peer Review", 32 Ariz. L. Rev. 1 (1989).
128. See e.g. Cramton, supra note 53, at 8; Laura F. Rothstein and Mark A. Rothstein, "Law Reviews Suffer from Lack of Peer Review", Legal Times, Jan. 6, 1986, at 10; Lindgren, "An Author's Manifesto", supra note 105, at 533.
129. Carl Tobias, "Manuscript Selection Anti-Manifesto", 80 Cornell L. Rev. 529, 530 (1995).
130. See e.g. Ira Mark Ellman, "Comparison of Law Faculty Production", 33 J. Leg. Ed. 681, 692 (1983) (citing the editors of the Virginia Law Review for filling 1323 of 1926 pages with their own faculty's material over a two and one-half year period).
131. See generally, "Living with the Pressure to Publish or Perish", 14/1 Student Law. 5 (1985); Jordan H. Leibman and James P. White, "How the Student-Edited Law Journals Make Their Publication Decisions", 39 J. Leg. Ed. 387, at 405 (1990).
132. A number of law reviews have recently moved to prevent or at least extremely limit law review "shopping" by imposing very short deadlines on would-be authors (which is certain to induce even more dissatisfaction). Lisa Anderson, "Law Journals Move to Stop 'Shopping' of Manuscripts", N.Y. Times, July 12, 1995.
133. See, e.g., Carol Sanger, "Editing", 82 Geo. L. J. 513 (1993); Gregory E. Maggs, "Just Say No?", 70 Chi.-Kent L. Rev. 101 (1994).
134. See e.g., Rothstein and Rothstein, supra note 128, at 10; Sanger, supra note 133, at 517; Lindgren,"An Author's Manifesto", supra note 105, at 531.
135. See, e.g., Lindgren, "Author's Manifesto", supra note 105, at 529 (citing the case of one scholar who found more than 200 style errors introduced into the original manuscript after a student edit). Lindgren himself has concluded that "Law-review editors are the most aggressive and ignorant editors you will ever encounter." Quoted in Shea, supra note 106, at A33.
136. Mark Thompson, "The Law Review Meets the Marketplace", 13/4 Student Law. 14, 19 (1994).
137. Ronald D. Rotunda, "Law Reviews: The Extreme Centrist Position", 62 Ind. L. J. 1, 10 (1986).
138. Sanger, supra note 132, at 517.
139. See, e.g., Michael L. Closen, "A Proposed Code of Professional Responsibility for Law Reviews", 63 Notre Dame L. Rev. 55 (1989).
140. See, e.g., David M. Richardson, "Improving the Law Review Model: A Case in Point", 44 J. Leg. Ed. 6, 7 (1994).
141. See Kenneth Lasson, "Scholarship Amok: Excesses in the Pursuit of Truth and Tenure", 103 Harv. L. Rev. 926 at 933 (1990) ("Most often the lag is so long between the first dull gleam in an author's eye and the finished product that whatever might be timely and relevant is largely lost on whatever few readers there may be out there. The stuff is simply stale.").
142. See generally Erik M. Jensen, "The Law Review Manuscript Glut: The Need for Guidelines", 39 J. Leg. Ed. 383 (1989).
143. Josh E. Fidler, "Law-Review Operations and Management", 33 J. Leg. Ed. 48, 60 (1983).
144. Tobias, supra note 129, at 531. Another estimate suggests more than 1500. See Shea, supra note 106, at A33.
145. See generally Rotunda, supra note 137, at 9. In 1983, the average law review published two months behind schedule. Fidler, supra note 143, at 51. Anecdotal evidence would suggest that by 1995, that lag had become at least a month or two longer.
146. See e.g. John G. Kester, "Faculty Participation in the Student-Edited Law Review", 36 J. Leg. Ed. 14 (1986): "[W]e editors who guarded the lofty independence of even the most-independent -of-all Harvard Law Review in the pre-Jacobin era of a generation ago kept a careful eye cocked on the Harvard faculty. Our professors, in turn, generously supplied counsel that we were clever enough to recognize (if not always admit) we needed."
147. Kester, supra note 146, at 16.
148. Cramton, supra note 53, at 6; Dekanal, supra note 4, at 234.
149. Patricia Bellew Gray, "Harvard Faculty Hit for Plan to Start New Law Journal", 132/104 Chi. Daily L. Bull. 2 (1986).
150. Kester, supra note 146, at 15-16.
151. Chris Goodrich, "Professor, Edit Thyself", 6/7 Cal. Law. 49, 52 (1986).
152. Kester, supra note 146, at 16.
153. See generally Jordan H. Leibman & James P. White, "How the Student-Edited Law Journals Make Their Publication Decisions", 39 J. Legal Ed., 387, 423 (1989) (asserting that "the failure to provide feedback is the most serious weakness of the law review model").
154. Dekanel, supra note 4, at 236.
155. Cramton, supra note 53, at 9. See also Lasson, supra note 141, at 932.
156. E. Joshua Rosenkranz, "Law Review's Empire", 39 Hastings L.J. 859, 860 (1988). See also Rosenkranz, 899-911.
157. Rosemary Harold, "Dilemmas", 19/5 Student Law. 7 (1991).
158. See generally Richard A. Posner, "The Decline of Law as an Autonomous Discipline, 1962- 1987", 100 Harv. L. Rev. 761 (1987).
159. See generally Robert Weisberg, "Some Ways to Think About Law Reviews", 47 Stan. L. Rev. 1147, 1154 (1995).
160. Posner, supra note 104, at 1133-1134.
161. Lindgren, "Author's Manifesto", supra note 105, at 535.
162. In 1960, for instance, judges and practitioners published almost as many articles in law reviews as did professors. By 1985, however, articles by judges and practitioners were outnumbered by more than 3:1. Judith S. Kaye, "One Judge's View of Academic Law Review Writing", 39 J. Leg. Ed. 313, 320 (1989), citing research by Michael Saks.
163. See generally Cramton, supra note 53, at 10; Max Stier et al., "Law Review Usage and Suggestions for Improvement: A Survey of Attorneys, Professors and Judges", 44 Stan. L. Rev. 1467, 1498 (1992) (reporting the results of a survey indicating that judges and attorneys found contemporary law review articles too theoretical); "Law Reviews: A Waste of Time and Money?", Am. Law., April 1994 at 50.
164. Harry T. Edwards, "The Growing Disjunction Between Legal Education and the Legal Profession", 91 Mich. L. Rev. 34 at 36 (1992).
165. United States v. $639,558, 955 F. 2d. 712, 722 (D.C. Cir. 1992) (Silberman J., concurring).
166. On the increasing length of contemporary law review articles, see Elyce H. Zenoff, "I Have Seen the Enemy and They Are Us", 36 J. Leg. Ed. 21 (1986) (noting that for seventeen of twenty law reviews surveyed, the length of the articles in the first issue of the current volume was longer on average in 1984-85 than it was in 1954-55); W. Lawrence Church, "A Plea for Readable Law Review Articles", 1989 Wis. L. Rev. 739, 740 (reporting that in 1936-37, the length of the average leading article in the Wisconsin Law Review was 13 pages; in 1962, it was about 36 pages, and in 1988, it had grown to over 44 pages). On the contemporary proliferation of footnotes, see generally William R. Slomanson, "Footnote Logic in Law Review Writing: Previously Unaddressed in the Criminal Justice System", 9 Crim. Just. J. 65 (1986); Austin, supra note 119; Lasson, supra note 141, at 937-941.
167. This is consistent with the results of a 1983 study which indicated that as legal academics rose through the tenure track (from Acting Professor, Assistant Professor, Associate Professor, Professor, to Dean) and thereby had fewer promotional concerns, they produced articles with fewer pages, fewer footnotes, and fewer footnotes per page. See Ellman, supra note 130, at 683.
168. Lindgren,"Author's Manifesto", supra note 105, at 531.
169. See generally Austin, supra note 119.
170. The footnote "problem" in particular has also been exacerbated by the traditional absence of bibliographies in law review articles, which helps to explain, inter alia, why far more footnotes appear in law review articles than in other academic journals.
171. See e.g. Austin, supra n. 119, at 1133-1135; Alfred F. Conrad, "A Lovable Law Review", 44 J. Leg. Ed. 1 (1994); Ronald Lansing, "The Creative Bridge Between Authors and Editors", 45 Md. L. Rev. 241, 248-250; Church, supra note 166; Stier et al., supra note 163, at 1499 (reporting the results of survey in which most professors, judges and attorneys agreed that articles should be shorter and less heavily footnoted).
172. Thompson, supra note 136, at 17.
173. On the limited value of the "writing competition", see e.g. Rosenkranz, supra note 156, at 894-897.
174. Joel Seligman, The High Citadel 182 (1978).
175. "Drawing Distinctions at Harvard Law", NY Times, March 3, 1981, A18; "Harvard Law Review's Ethnic Screening Criticized", NY Times, Feb.24, 1981, A12. After female editors voted against its application to themselves, the Review's affirmative action policy ultimately did not extend to women. Perhaps consequently, women make up a mere 11 of the 44 new members on the 1995-96 Harvard Law Review board. Tara Dawood, "Law Review to Study Gender Disparity", Harvard Law Record, October 20, 1995, at 1.
176. Fidler, supra note 143, at 53. Controversy over law review affirmative action policies nonetheless continued beyond this initial period of implementation. See, e.g., "Scholarly Schism", 75 ABA J. 50 (September, 1989) (discussing affirmative action on the George Washington Law Review).
177. Cramton, supra note 53; Austin, supra note 127, at 4.
178. See generally Richard Posner, "Goodbye to the Bluebook", 53 U. Chi. L. Rev. 1343, 1349- 1351 (1986); Lindgren, "Fear of Writing", supra note 105 (reviewing the Texas Law Review Manual on Style, which he refers to as "one of the most pernicious collections of superstitions that has ever been take seriously by educated people.").
179. See e.g. Joseph R. Julin, "Faculty-Edited Law Review: No - A Statement by Joseph R. Julin", 16/3 Syllabus 1 (1985); Rotunda, supra note 137; Scott M. Martin, "The Law Review Citadel: Rodell Revisited", 71 Iowa L. Rev. 1093 (1986); Phil Nichols, "A Student Defense of Student Edited Journals: In Response to Professor Roger Cramton", 1987 Duke L.J. 1122; Michael Vitiello, "In Defense of Student-Run Law Reviews", 17 Cumberland L. Rev. 859 (1987); John Paul Jones, "In Praise of Student-Edited Law Reviews: A Reply to Professor Dekanal", 57 UMKC Law Review 241 (1989); Vitiello, supra note 123; Wendy J. Gordon, "Counter- Manifesto: Student-edited Law Reviews and the Intellectual Properties of Scholarship", 61 U. Chi. L. Rev. 541 (1994); The Articles Editors, "A Response", U. Chi. L. Rev. 553 (1994).
180. See e.g., Vitiello, supra note 123 at 930 ("[T]here has been positive change in format and content of what many law reviews are publishing."); James Lindgren, "Reforming the American Law Review", 47 Stan. L. Rev. 1123 (1995) ("The law review reform movement is coming of age. As this symposium attests, at least the targets of our criticism are beginning to listen.").
181. The Articles Editors, supra note 179, at 558.
182. Lindgren, "Reforming the American Law Review", supra note 180, at 1129.
183. John Metaxas, "Two New Faculty Journals Enter the Legal Scholarship Arena", 8 National Law Journal 4 (1986). On the general proliferation of "Correspondence" sections, see Erik M. Jensen, "Law Review Correspondence: Better Read than Dead", 24 U. Conn. L. Rev. 159 (1991).
184. John C. Metaxas, "Harvard Law Review Inaugurates an Informal 'Commentary' Section", 8 National Law Journal 4 (1985).
185. See, e.g., A. Sirico, "Supreme Court Haiku", 61 NYU L. Rev. 1224 (1986).
186. See generally The Executive Board of the Chicago-Kent Law Review, "The Symposium Format as a Solution to Problems Inherent in Student-Edited Law Journals: A View from the Inside", 70 Chicago-Kent L. Rev. 141 (1994); Jean Stafancic, "The Law Review Symposium Issue: Community of Meaning or Re-inscription of Hierarchy?", 63 U. Colorado L. Rev. 651 (1992).
187. See generally Thompson, supra note 136.
188. "We aimed for something more in-depth than Harper's or Atlantic but not as dry or as boring as a standard law review." Thompson, supra note 136 at 16 (quoting a former editor of the Yale Journal of Law and Politics).
189. See generally Richard A. Epstein, "Faculty-Edited Law Reviews", 70 Chicago-Kent L. Rev. 87 (1994).
190. On Chicago-Kent, see generally Randy E. Barnett, "Beyond the Moot Law Review: A Short Story with a Happy Ending", 70 Chicago-Kent L. Rev. 123 (1994).
191. Not all attempts at faculty take-over have been completely successful. At George Mason University, for instance, the faculty's declared intention to assume control of the flagship student- run law review generated such controversy that the students began an " independent" law review (appropriately named the George Mason Independent Law Review). The faculty ultimately agreed to a compromise which allowed students to maintain control over article selection and editing in the main journal, although at the same time the faculty insisted that it include only student-written articles. See generally Lisa Schkolnick, "Review Revamp Raises Ire at George Mason", 20/5 Student Law. 47 (1992); Stier et al., supra note 163, at 1504 n.112.
192. See generally Lindgren, supra note 180, at 1129.
193. The Articles Editors, supra note 179, at 554-555. See also Rebecca M. Blank, "The Effects of Double-Blind versus Single-Blind Reviewing: Experimental Evidence from the American Economic Review", 81 Am. Econ. Rev. 1041 (1991).
194. See supra note 75; Executive Board, supra note 186, at 143-146.
195. See Rotunda, supra note 137, at 6.
196. The proposal that the AALS sponsor a journal was originally floated by its then-President, Roger Cramton, in 1985. Cramton, supra note 53, at 3. On the controversy surrounding the Harvard initiative, see Patricia Bellew Gray, "Harvard Faculty Hit for Plan to Start New Law Journal", 132/104 Chicago Daily Law Bulletin 2 (1986). On the two proposals generally, see John C. Metaxas, "Two New Faculty-Edited Journals Enter the Legal Scholarship Arena", 8/20 National Law Journal 4 (1986).
197. On the failure of the Harvard journal, see John Metaxas, "Harvard Faculty Journal Loses Tribe to Bicentennial of the Constitution", 8/45 National L. J. 4 (1986) (discussing the resignation of Lawrence Tribe, the designated editor of the Harvard law journal, so that he could devote his attention to other scholarly endeavors).
198. Horror-stories about peer review in the arts and sciences are common. In one particularly provocative experiment on the objectivity of the process, researchers selected a dozen articles written by well known authors that had recently appeared in respected journals, resubmitting them to the same journals with the names of the original authors deleted. The journals and their appointed referees (two per article) rejected eight of the twelve re-submitted pieces, citing poor scholarship and poor writing. D.P. Peters & S.J. Ceci, "Peer Review Practices of Psychological Journals", 5 Behav. Brain Sci. 187 (1982). See also Mary Biggs, "The Impact of Peer Review on Intellectual Freedom", 39 Lib. Trends 145 (1990).
199. Vitiello, "In Defense", supra note 179, at 872-873.
200. In addition to the sources cited supra, note 23, see "Report of the Special Committee to Consider and Report as to the Duplication of Law Books and Publications", 61 ABA Rep. 848 (1936); Samuel H. Sibley, "The Multitude of Published Opinions", 25 J. Am. Jud. Soc. 166 (1942).
201. See, for instance, Eugene M. Prince, "Law Books, Unlimited", 48 ABA J. 134 (1961).
202. For extensive documentation (complete with graphs), see Layman E. Allen et al., Automatic Retrieval of Legal Literature: Why and How 1-22 (1962). See also Robert A. Wilson, "Computer Retrieval of Case Law", 16 Sw. L. J. 409 (1962) ("Each year about 25,000 new opinions are published (nearly 700 cases per day) along with over 29,000 new statutes.")
203. See e.g. Wilson, supra note 202, at 410 (discussing problems with the breadth and identity of traditional indexing categories); Irving Kayton, "Retrieving Case Law by Computer: Fact, Fiction and Future", 35 Geo. Wash. L. Rev. 1, 1-6 (1966).
204. See Jessica S. Melton & Robert C. Bensing, "Searching Legal Literature Electronically: Results of a Test Program", 45 Minn. L. Rev. 229, 230 (1960) (quoting Vincent Biunno, counsel to the Governor of New Jersey: "With each passing year, we pile up decision on statute on rule on regulation and then construct large and cumbersome digests, compendiums, indexes and other archeological devices which we hope will help us find what we want in the evergrowing mound."); Wilson, supra note 202, at 409.
205. See, e.g., Louis O. Kelso, "Does the Law Need a Technological Revolution", 18 Rocky Mountain L. Rev. 378 (1946); Lawrence A. Harper, "Legal Research, Technology and the Future", 24 Cal. St. B.J. 104 (1949); J.M. Jacobstein, "Scientific Aids for Research", 31 Chi.- Kent L. Rev. 236 (1952); Roy N. Freed, "Prepare Now for Machine-Assisted Legal Research", 47 ABA J. 764 (1961) .
206. Freed supra note 205, at 766: "Professionals devote considerable time to poring through indices to citations and to chasing down the books to check on relevance. By finding relevant references faster and by reducing the percentage of irrelevance, machines will contribute real economies....".
207. Altogether apart from Horty's own circumstances, "statutes were the first area of the law to be adapted to computer research since the precision of their language made a search system based on a full text relatively feasible." Note, "The Use of Data Processing in Legal Research", 65 Mich. L. Rev. 987, 988 (1967).
208. See John F. Horty, "The 'Key Words in Combination' Approach", M.U.L.L. [Modern Uses of Logic in Law], March 1962 at 54.
209. F. Reed Dickerson, "The Electronic Searching of Law", 47 ABA J. 902 (1961).
210. See Gerald W. Davis, "Automatic Data Processing and the Judge Advocate General's Corps", 23 Military L. Rev. , 117, 129 (1964); David Thomas Moody, "Legal Research: Computer Retrieval of Statutory Law and Decisional Law", 19 Vand. L. Rev. 905, at 909 n.9 (1964).
211. Much of the material in this paragraph and the two which follow is derived from William G. Harrington, "A Brief History of Computer-Assisted Legal Research", 77 L. Lib. J. 543 (1984-85).
212. Howard A. Hood, "Disk and DAT: Recent Developments in Legal Databases and Emerging Information Technologies in the United States", 15 Int. J. of Leg. Info. 109, 112 (1987).
213. See generally, Ethan Katsh, Law in a Digital World, 66-69 (1995).
214. Peter W. Martin, "How New Information Technologies Will Change the Way Law Professors Do and Distribute Scholarship", 83 L. Lib. J. 633, 635 (1991).
215. Having said all this, however, it must be admitted that in at least one way the electronic database services have made law reviews less useful: given the ease with which case and statute law now can be researched, attorneys and judges have become disinclined to use law reviews as comprehensive guides to legal materials on a particular subject.
216. On the history and development of the Internet, see e.g., Richard W. Wiggins, The Internet for Everyone: A Guide for Users and Providers 5-10 (1995).
217. See generally Bill Gates, The Road Ahead 126 (1995) ("Whenever a new medium is created, the first content offered is brought over from other media...So far the vast majority of content on- line has been "dumped" from another source. Magazine or newspaper publishers are taking text already created for paper editions and simply shoving it on-line, often minus the pictures, charts and graphics.").
218. The number of individual Web users in the United States is now estimated in the millions. In June 1995, there were some 23,500 Web "sites" (locations of Web-based materials) world-wide, up from 10022 in December 1994 and 623 in December 1993. See generally, Matthew Gray, "Measuring the Growth of the Web", http://www.mit.edu/people/mkgray/growth/", November 22, 1995.
219. See generally, George P. Landow, Hypertext: The Convergence of Contemporary Critical Theory and Technology (1992); M. Ethan Katsh, "Hypertext: Constructing Cyberspace", in Katsh, supra note 213, at 195; Sven Birkerts, "Hypertext: Of Mouse and Man", in The Gutenberg Elegies, at 151 (1994).
220. Psycoloquy was in fact the first peer-reviewed, fully-electronic scientific journal on the Internet. Ann Okerson & James J. O'Donnell, "Introduction", in Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing 4 (Ann Okerson & James J. O'Donnell, eds., 1995).
221. On the potential implications of this strategy for LEXIS and WESTLAW, see Adrian Sherwood White, "The Internet: Is it Curtains for Lexis-Nexis and Westlaw?", Leg. Info. Alert, April 1995, at 1.
222. As of December 1995, for example, the Web-based edition of the Cornell Law Review was a year behind schedule, due to the fact that maintaining it proved to be too great a task for the administrative editor originally assigned the task. E-mail Lodemore (Editor-in Chief, Cornell Law Review)-Hibbitts, December 8, 1995.
223. Katsh, supra note 213, at 44.
224. See generally Wiggins, supra note 216, at 390.
225. This has been identified as a problem of e-journals in general. See e.g., Rob Kling and Lisa Covi, "Electronic Media and Legitimate Media in the Systems of Scholarly Communication", 11 Information Society 261 (1995)
226. On the link between stylistic conservatism and professional acceptance of electronic journals, see Thomas J. Deloughry, "Effort to Provide Scholarly Journals by Computer Tries to Retain the Look and Feel of Printed Publications", Chron. Higher Ed., April 7, 1993, at A19.
227. See generally Erik Jul, "Electronic Journals in a Print-on-Paper World", 12 Computers in Libraries 37 (1992): "Are electronic journals...adopting the conventions of print-on-paper journals in hopes of obtaining widespread acceptance among readers? Herein lies a danger. By imitating familiar formats, electronic journals may neglect fundamentally new possibilities of publishing and disseminating information made possible by computer and telecommunications technologies."
228. Bernard Houghton, Scientific Periodicals: Their Historical Development, Characteristics, and Control 12 (1975). Books were deemed an inappropriate medium for new work because they took too long to write and produce.
229. The first scholarly journal appears to have been the Journal des scavans, published in January 1665. The first English-language scholarly journal was the Philosophical Transactions of the Royal Society, published in London, England in May of the same year. See John Budd, "Not What it Used to Be: Scholarly Communication Then and Now", in Scholarly Communication in an Electronic Environment: Issues for Research Libraries 3 (Robert Sidney Martin, ed., 1993).
230. In hypertext, "not only [will an author's own] works will be linked to each other, but a growing body of scholarly literature may be emmeshed in a net of links and connection that multiply the value of each item appreciably." Ann Okerson & James J. O'Donnell, "Conclusion", in Scholarly Journals, supra note 220, at 227.
231. See generally Landow supra note 219; Hypertext/Theory (George P. Landow, ed., 1994).
232. For examples of preliminary efforts in this area, virtually all of which were to some extent handicapped by the confines of the (then-)available medium, see Janet E. Ainsworth, "In a Different Register: The Pragmatics of Powerlessness in Police Interrogation", 103 Yale L.J. 259 (1993); Milner Ball, "The Play's the Thing: An Unscientific Reflection on Courts under the Rubric of Theater", 28 Stanford L. Rev. 81 (1975); John Barkai, "Non-Verbal Communication from the Other Side: Speaking Body Language", 27 San Diego L. Rev. 76 (1990); Ann Gill, "The Oral Tradition of Gerry Spence in "Pring v. Penthouse", 15 Southwestern L. Rev. 693 (1988); Bernard J. Hibbitts, "Coming to Our Senses: Communication and Legal Expression in Performance Cultures", 41 Emory Law Journal 873 (1992) (which nonetheless included a few black-and-white images of medieval manuscript illuminations depicting legal gestures); Katherine F.Taylor, In the Theater of Criminal Justice: The Palais de Justice in Second Empire Paris (1993) (containing many black and white illustrations, but only one color photo, on the dustcover).
233. See generally Jay Fliegelman, Declaring Independence: Jefferson, Natural Language and the Culture of Performance (1993).
234. "For some reason, people are less shy about sending e-mail than communicating on the phone or in person." Gates, supra note 217, at 143.
235. See generally Geoffrey Nunberg, "The Places of Books in the Age of Electronic Reproduction", 42 Representations 13, 23 (1993): "...[E]lectronic publication presents few disincentives to publishing large amounts of material. An electronic literary journal has no reason to decline to run a competent 10,000 word journal article about an obscure author simply because it is of interest only to a few subspecialists, because no one else is likely to call it up anyway. An electronic newsmagazine article on the civil war in Somalia can include forty columns of background material as a kind of sidebar interested readers can open by clicking an icon.....In the course of things, then electronic [forums] will become more inclusive, on the reasonable assumption that readers can ignore irrelevant information much more easily in electronic formats than if it were included in a 400-page volume stuffed in their mailbox every month."
235a. A form of this post-hoc peer-review has actually been adopted by some print journals in other disciplines, such as Current Anthropology, where published pieces are routinely followed by several reviews, and, ultimately, the author's reply.
236. For complaints about how the Bluebook often mangles references to these sources, see Alfred F. Conrad, "A Lovable Law Review", 44 J. Leg. Ed. 1, 3 (1994).
237. See generally Okerson & O'Donnell, supra note 230, at 225.
238. See, for instance, Hadrian R. Katz, "Internet Use Spreads Through 'World Wide Web'", National L. J., January 30, 1995 at C10.
239. See generally A. Dillon et al., "Reading from Paper versus Reading from Screen", 31 Computer J. 457 (1988).
240. See generally "The Limitations of Electronic Journals", 38 J. Reading 405 (1995).
241. Gates, supra note 217, at 72.
242. Gates, supra note 217, at 113.
243. The continuing academic allure of the "halo effect" was recently demonstrated at an international mathematics conference when a Canadian mathematics professor unsuccessfully tried to persuade his colleagues to publish electronically all 135 papers submitted, rather than waiting for traditional publication. The professor later commented with some chagrin, "I think [my proposal] failed because people like this kind of ranking. That's also one of the reasons I'm so excited about [electronic publishing], because of the challenge to these elitist traditions." Quoted in Barry Ries & Peggy Berkowitz, "The Electronic Journal: Has its Time Come?", Univ. Affairs, August/September 1995, 10, at 11.
244. See generally Banks McDowell, "The Audiences for Legal Scholarship", 40 J. Leg. Ed., 261, 270-277 (1990) (discussing the"scholarship game" and how to control it in the interests of producing truly valuable legal research and writing).
245. N. David Mermin, "Publishing in Computopia", 44/5 Physics Today 9 (1991).
246. Mermin was not, however, the first academic to come up with this general idea. In 1989, Sharon Rogers and Charlene S. Hurt, library directors at George Washington and George Mason universities respectively, proposed the creation of a "Scholarly Communication System" which would electronically archive submitted scholarly articles for retrieval and comment. Sharon Rogers and Charlene S. Hunt, "How Scholarly Communication Should Work in the 21st Century", Chron. Higher Ed., October 18, 1989, at A56. See also Steven Harnad, " Scholarly Skywriting and the Prepublication Continuum of Scientific Inquiry", 1 Psychological Science 342 (1990); Richard Lanham, "The Electronic Word: Literary Study and the Digital Revolution", 20 New Literary History 265 (1989).
247. E-mail Ginsparg-Southworth, reprinted in Scholarly Journals, supra note 220, at 14.
248. E-mail Ginsparg-Letedge, reprinted in Scholarly Journals, supra note 220, at 36.
249. P. Ginsparg, "First Steps Toward Electronic Research Communication", http://xxx.lanl.gov/ftp/hep-th/papers/macros/blurb.te
250. The International Philosophical Preprint Exchange, a service provided by the Department of Philosophy, Chiba University, available at http://phil-preprints.l.chiba-u.ac.jp/IPPE.html
251. Ronald E. LaPorte et al, "The Death of Biomedical Journals", 310 BMJ 1387 (1995).
252. "The Internet and the Journal", 332 New Eng. J. Med. 1709 (1995).
253. "The Internet and the Journal", supra note 252 at 1709.
254. The University of Dayton School of Law and Mead Data Central Joint Committee to Study Computer Technology in Legal Education, Interim Report, August 1993, at 33.
255. The AALS might profitably take the advice of Tim Berners-Lee, the principal developer of the World Wide Web: "Put a cheerful front page to the archive: put some graphics in at the top to encourage readers. Let the thing run with a few gigabytes of disk space, and see whether society responds. You will have to jump-start it probably with an injection of existing archives of papers, or pointers to them; otherwise, you will never get a critical product of readership and information base." E-mail Berners-Lee - VPIEJ-L list, July 5, 1994, reprinted in Scholarly Journals, supra note 220, at 37.
256. E-mail Ginsparg-Hibbitts, December 1, 1995. Ginsparg has also estimated that with a gigabyte of hard disk storage space currently costing less than $500, 25,000 physics papers can be stored on such a disk at a cost of less than 2 cents apiece. Paul Ginsparg, "Electronic Publishing in Science", pre-delivery text of presentation to be made at UNESCO Headquarters, Paris, February 21, 1996, http://xxx.lanl.gov/blurb/pg96unesco.html. Even assuming that the standard law review paper is ten times longer than the standard physics paper, and would therefore take up ten times more disk space (an assumption which, given how computers store information, is not necessarily true), this means that $500 would cover the storage of 2500 law review papers at 20 cents apiece, an infinitesimal sum compared to the labor and material costs of printing or acquiring law review papers by traditional means.
257. The California Law Review has already demonstrated its mature attitude in this respect by printing an article of Robert Berring's, a draft of which had previously been made available on the Internet. See Robert Berring, "On Not Throwing Out the Baby: Planning the Future of the Legal Profession", 83 Cal. L. Rev. 615, n.* (1995).
258. This is not to say that the law review might not survive in some radically-altered form we are not now familiar with. It could, for instance, continue as a high-status "ceremonial" mode of publication (e.g., a deluxe edition or a festschrift of especially famous essays). Alternatively, it might continue as a collection of student-written reviews - or, somewhat less ambitiously, a student- or faculty-selected list - of recommended self-published articles. This format might prove very appealing in an information-rich environment; in this context, law review staffers - along with individual professorial (post-hoc) peer reviewers - would be performing a function somewhat akin to book or film reviewers who judge and comment on works after the fact, without having any control over whether or how they appear. See generally Jacques Leslie, " Goodbye, Gutenberg", Wired 2.10, October 1994 (quoting James J. O'Donnell, co-editor of the Bryn Mawr Classical Review): "'the journal model will evolve toward not a publishing operation but a gatekeeping operation' - that is, the journal's role will be to single out from the morass of information available on the Net those articles worthy of its imprimatur."