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Bernard J. Hibbitts, University of Pittsburgh School of Law
*. 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: akpress@org.org; 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.
98.
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."
