[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