Bernard J. Hibbitts; Assoc. Dean for 

Comm. & Info. Tech.; U. Pgh. School of Law
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Papers: Taking 'Writes' Seriously: The Future (?) of the Law Review
This paper explores the reactions to my 1996 article Last Writes? Re-assessing the Law Review in the Age of Cyberspace [delivered at the panel on "'Last Writes', Blood Transfusions and Assisted Suicide: Technology and the Future of the Law Review", 1997 CALI Conference for Law School Computing, Chicago, IL, June 1997)].

The entire panel session was recorded live in RealAudio.TM

Esther Dyson, Chair of the Electronic Frontier Foundation and a leading commentator on Internet culture, recently observed that: “Most ideas go through a cycle. The first time people hear an idea, they don’t even pay enough attention to disagree. The idea just slips by. The second time they say, “that’s really stupid. If that were true, we’d know it already.” The third time, they seem to get it vaguely and say “Hmm, you know...”. The fourth time they say “Oh yeah, everybody knows that. That’s boring.”


In February 1996 I published an article entitled Last Writes? Re-assessing the Law Review in the Age of Cyberspace. As many of you know, this article examined the origins and historical trajectory of the law review as an institution in American legal education. In Part IV of “Last Writes?”, I argued that the ongoing development of Internet technology should encourage legal scholars to publish their own scholarship electronically so that it might be submitted or at least linked to a central Web site, perhaps maintained by the Association of American Law Schools. Supported by e-mailed peer comments and author revisions, this aggregated (deposit-based) or distributed (link-based) archive could eventually displace the law reviews.

I did not make this suggestion merely because new technology permitted such a shift. I also made it because I believed that law review selection, editing and production of legal scholarship had become sufficiently cumbersome and problematic in the eyes of enough law professors to render continued tinkering with the law review inadequate; instead, we needed to rethink our whole approach to scholarly communication.

Last Writes was written in the knowledge that there was precedent for this sort of proposal in disciplines other than law. In mid-1991, for example, Paul Ginsparg of the Los Alamos National Laboratory in New Mexico developed an archive for electronically-published “preprints” of papers ultimately destined for the pages of the physics journals. Contrary to the traditional sense of the term, this “archive” was dynamic: it allowed readers to comment on its papers, and permitted authors to revise their work in response. By early 1996, Ginsparg’s operation was challenging the physics journals as the intellectual center of the physics universe. This was a significant development, not simply on its own terms, but because physicists and other scientists had been in the forefront of the last scholarly publishing revolution: the one which, in the middle of the 17th century, had given us the scholalrly journal in the first place. If the pioneers of the journal format were themselves bailing out, something significant was going on, and legal scholars needed to take note.

But the point of Last Writes? lay in its medium as much as in its message. The article made its initial appearance not in a law review, in fact not in a journal at all, but directly on the Web, on my home page. In fact, I published it on the Web as an article (not as a draft, or pre-print) before I even sent it out to the journals.

As a Web-based document, Last Writes? differed from traditional law review articles in several fundamental respects. It was current - it represented my thinking at the time of release, instead of representing it as it was six-months to a year previous (as is normally the case with regular print publication). It was presented and available to an interdisciplinary and international audience. It used hypertext to immediately connect readers to online sources and references. It used multimedia - images, voice and video - to capture and express information in non-traditional ways. It provided a direct e-mail link from readers to author. Most significantly, perhaps, it provided a public forum where I could post and reply to reader comments: this feature in particular ensured that rather than being like traditional articles which are “dead on arrival”, this article could live, growing and developing as readers responded to it and I responded to them..

Stage 1: “The Idea Just Slips By”

As Esther Dyson might have predicted, the initial reaction to Last Writes? was limited. The most, and the most positive, reactions came from members of the electronic publishing and computer communities outside law: scientists, computer and information science specialists, plus a few corporate leaders who were in many ways already comfortable with the open model I proposed.

Within the legal community, however, the electronic version of Last Writes? fell on comparatively deaf ears. Don’t get me wrong - there were some responses, both encouraging and discouraging. A number of members and friends of CALI had some kind things to say, although even some of them pointed out (correctly) that the article would have to see print (and be seen in print) before it would have a real impact.

Other legal academics were somewhat more troubled. They had questions: how would you control quality, what impact would electronic self-publication have on the tenure and promotion process, and how would you prevent plagiarism. I reported all these queries, and publicly offered some more thought on them, in the Readers’ Forum section of Last Writes?.

In general, however, I was struck by the relative absence of reaction and debate. In early 1996, suggesting that law professors abandon the law reviews in favor publishing their own papers in or through an electronic archive was clearly not an easy matter when many law professors were obviously still getting used to e-mail, and when only a handful were actively using the Web.

Stage 2: “That’s Really Stupid”

Later in 1996, however, two events occured which moved my prescription for electronic self-publishing from Dyson’s first stage of general disinterest to Dyson’s rather more overt second stage of disagreement: “that’s really stupid. If it were true, we’d know it already”. To begin, Last Writes appeared in print in the New York University Law Review. The NYU printing immediately exposed the piece to a wide audience of print-oriented law professors, lawyers and law students. Second, another law journal, the Akron Law Review, commissioned a Special Issue devoted to commentaries on the article by a variety of law professors and legal information specialists.

Most of the legal academics who chimed in to the debate at this stage - some by direct e-mail, some in print, and some in electronic discussion lists - were quite unsympathetic to the self-publishing proposal: in addition to quality control and tenure and promotion isues, they raised concerns about the loss of such editorial “values added” as text-editing, cit-checking, distribution and presrvation; they questioned law professors’ ability to publish on the Internet without journal support; and they cited the potential pedagogical and professional harm that might come to law students formerly employed on law reviews.

The law students who raised their voices likewise did so mostly in protest. If electronic self-publication came along, how would they be distinguished from one another? How would they get jobs? More to the point perhaps, how would legal scholarship survive - surely I realized that many law review articles arrived in their offices in bad shape; without their intervention, wouldn’t these less-than-perfect products be inflicted upon a readership that deserved better?

I addressed these reactions and questions at some length in my ongoing responses to reader comments in the “Readers’ Forum” section of “Last writes?”, in replies on the LAWPROF, NET-LAWYERS and H-LAW discussion lists, and in my own contribution to the Akron Special Issue. The various concerns were, I suggested, exaggerated: in fact there was good reason - especially given the success of the physics archive - to think that electronic self-publication of legal scholarship would not create the difficulties many feared. More importantly, virtually every one of the skeptics’ worries - about value added, quality control, academic prestige and even the education of students - had been heard during a previous period in the history of scholarly publishing, to whit the fifteenth and sixteenth centuries, when commercial printing gradually displaced scribal manuscript production as the basic format for scholarly communication.

The Akron Special Issue was finally released in March 1997. In what I can only describe as a delicious twist of fate, the print version of the Special Issue is still in process: print copies were produced in May, but bad printing compromised the majority of them, with the result that I am still waiting for reprints to send to my more print-based colleagues. How ironic: a law review issue by and large defending the law review, but betraying on its face a technical and perhaps even structural weakness of the format!

Stage 3: “Hmm, you know...”

On the brink of what I think will be Dyson’s third stage of consideration - “hmm, you know...” - circumstances both outside and inside of law are combining to give significant momentum to the electronic self-publication of legal scholarship.

Outside of law, the archive of electronically self-published physics preprints continues to grow. It now includes more than 70% of the current physics literature. It receives 500 new articles a week and is accessed 75,000 a day by the world’s 45,000 physicists. Its reader feedback and rapid revision mechanisms have given its contributors advantages that simply are not available to physicists who continue to submit their work only to formal journals: in the past couple of months, a few physicists have actually been chided for allowing their work to be printed with errors and problems that were immediately apparent to users of the electronic archive when the work was finally posted there. What this means is that the quality control debate is over - far from being less rigorous than publication in a peer-reviewed journal (and we should remember here that most law reviews do not even have peer review in their facor), self-publication in an archive is turning out to be more rigorous.

The physics archive format has lately spawned a variety of spin-offs in disciplines ranging from chemistry to economics. In a major initiative to generalize the format across the scholarly board, the University of Southampton in England, under the leadership of Stevan Harnad, has lauched something called Cogprints, or the Cognitive Sciences E-print Archive, which draws together self-published pre-prints of articles in computer science and engineering, psychology, neuroscience, behavioral biology and linguistics.

In non-legal fields which have not yet established formal archives, but which are often seen as analogous to law in their professional orientations, scholars are also challenging convention. In a recent issue of the British Medical Journal I joined Professor Ronald LaPorte of the University of Pittsburgh’s Graduate School of Public Health in a Comment arguing that an archive of self-published scholarly papers had a place in medicine and the health sciences. This is not the first occasion that such a proposal had been made, but this time the prospect was taken so seriously by the established medical journals that the editors of the Journal of the American Medical Association, the Lancet, the Annals of Internal Medicine as well as the BMJ itself rushed out to do immediate battle with us in responses and editorials.

But signs of progress toward scholarly self-publishing are not limited to what might be called “greater academia”. In law itself, a growing number of professors are breaking free of the “cookie-cutter” web pages created by their Public Relations departments in the last few years and are establishing their own web sites - in effect, self-publications providing platforms for other self-publications. When Last Writes? was first released in 1996, there were fewer than 20 of these sites, offering fewer than 15 self-published papers. Today there are over 60 sites, offering almost 70 papers.

These papers take two forms:

1) preprints, i.e. articles relaesed online by their authors before appearing in formal law reviews. These are especially common in cyberspace law - some of these are not only staying up but are being revised after appearing in more formal venues. The number of preprints is likely to increase, especially as many of the traditioonal law reviews seem to be operating under policies that do not exclude electronically pre-printed articles as having been formally “published”.

2) post-prints. A growing number law professors are posting articles to which they have either retained copyright or for which they have recived a law review’s copyright clearance. As a result, these law professors are now finding interdisciplinary and international audiences for their work. The rise in the number of both preprints and postprints suggests that the formal electronic venues for legal scholarship - law reviews with electronic editions and purely electronic law journals - have not yet established themselves. Despite some promising beginnings, a number are still burdened with major production problems. The purely electronic legal journals in particular tend to operate in limited disciplinary areas (mostly cyberspace and IP law). There is, in fact, no certainty that the new electronic editions or journals will ever become fully established - after all, some disciplines (such as physics) have basically skipped the e-journal stage and it could be that in law, the locus of legal scholarship will shift elsewhere before the e-journals are “ready”.

With a view to that possibility, I launched a new Web site in March 1997 that I hope will be a clearinghouse for our incipient electronic self-publishing efforts. Some of you may already have seen it. It's called JURIST: Law Professors on the Web. From this central site law professors can conveniently access the online articles self-published by their colleagues which to this point have been scattered holus-bolus over the Internet. Law professors and others can also use JURIST to access other legal academics’ home pages, course pages, and resource pages, making JURIST more of an incipient “knowledge network” than a traditional archive dealing solely in scholarly papers.

Right now, JURIST is only a prototype. As such, it is very limited, but eventually it will allow readers to rate and make comments on its self-published articles, its contents will be fully searchable, and it will, we hope, have a truly global reach with mirror sites on several continents.

Beyond simply pointing to and consolidating all the work that law professors are producing independently, JURIST has considerable potential to improve the quality of whay we put online as independent information providers. In brief, it gives each of us an incentive to produce first-rate material - if we don’t, that fact will be obvious to the thousands of visitors to the JURIST site (many of whom, of course, will be our professorial colleagues). To give a twist to an overused cliche, if the information superhighway comes right through your neighborhood, you may want to spruce up your property.

The final factor lending momentum to the cause of electronic self-publication is, of course, Last Writes? itself, which remains a going concern. Version 1.2 of the electronic edition was released in march 1997, just days before the formal debut of JURIST. Over a year after its initial publication, Last Writes? still attracts several hundred hits a month. And Last Writes? is still attracting comments. It has been the focus of three articles above and beyond the commentaries solicited by the Akron Law Review: its own "Readers’ Forum" now runs to 28 single-spaced printed pages of opinion and dialogue. Last but not least, Last Writes? is linked by over 45 legal and academic Web sites in the United States, the United kingdom, Canada, Australia, Germany, Italy, the Netherlands, Turkey and Japan.

Stage 4: “Everybody Knows That”

Of course it’s too early to say for sure whether electronic self-publication will become the norm for legal scholarship, or that the fully-fledged archive or knowledge-network of independently-produced scholarly materials I envisage will materialize. I hope, however, that the undeniable success of the archive model in other disciplines, the experience of the JURIST project in co-ordinating our early self-publishing efforts, and the continued vigor of Last Writes? itself will bring us closer to the day when we think of the electronic self-publishing of legal scholarship not as a fantasy, not as a danger, not as of merely passing interest, but rather in terms of Esther Dyson’s fourth stage of ideas: “Oh yeah, everybody knows that. That’s boring.”

© Bernard J. Hibbitts, 1997

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