III. Law Reviews On-Line

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 subtlely 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 subtlely changed the way in which law review material is distributed, accessed and employed....

[3.9] Some of the changes in law review distribution and usage prompted by LEXIS and WESTLAW address some of the complaints that have been made about (printed) law reviews (an observation which, inter alia, acknowledges the good business judgment of the database companies in extending their coverage to law reviews in the first place). Most obviously, the electronic databases relieve the physical burden of the current law review system; no longer need law professors drown in a sea of paper every month, or every quarter. At the same time, at least under current WESTLAW and LEXIS licensing arrangements, the databases potentially lower the mounting cost of keeping up with legal scholarship; a school that subscribes to WESTLAW and/or LEXIS has the option of discontinuing its subscription to the printed version, or at least cutting back on the number of redundant copies (of high-profile reviews in particular) that it regularly orders.

[3.10] LEXIS and WESTLAW, however, do nothing to address the more substantive problems plaguing today's law review system. They provide new ways of delivering and accessing scholarship, but they leave the institutional structure of the law reviews intact. They do not supplant existing editorial boards, nor do they change the way in which members of those boards select and edit articles. They are dependent on existing publication schedules at individual schools. They are, in other words, conservative information technologies which do not fundamentally challenge or improve the present scheme of scholarly communication.

[3.11] It may be argued that the inherent conservatism of LEXIS and WESTLAW has indirectly contributed to the development of a new form of computer-mediated legal scholarship: the electronic law journal. Electronic journals (or e-journals) in general are creatures of the Internet, a loose system of interconnected world-wide computer networks that can trace its origins to the American military ARPANET (Advanced Research Projects Agency network) of the late 1960s.²¹⁶ E-journals were initially conceived (and in more conservative quarters, are still regarded) as electronic editions of print journals or newsletters that would simply duplicate - or, perhaps more accurately, try to duplicate - all or part of their printed content electronically and would then distribute that duplicated content to subscribers having Internet access.²¹⁷ At first instance, this distribution was accomplished through electronic mail ("e-mail"), then (from 1992) through a more sophisticated Internet retrieval system called "gopher". Today, more and more print journals (such as Modern Language Notes and the British Medical Journal) are being made available electronically on the World Wide Web. This revolutionary and rapidly-growing²¹⁸ Internet platform not only has the capacity to understand and carry its predecessors, but can additionally support multimedia (text, images, sound and video) and "hypertext" (a revolutionary "reading" method which allows Web users to "link" from document to document by following key-word, phrase, or icon connections embedded in particular Web "pages"²¹⁹). Growing confidence in the electronic medium has meanwhile encouraged the creation - and even faster proliferation - of a second generation of electronic journals which are solely electronic, having no print equivalents. Many of these - such as Psycoloquy ²²⁰ and Postmodern Culture - are similarly accessible via the Web and are positioned, at least theoretically, to present information in ways which print technology cannot. They moreover have the ability to update their contents not just by producing new material, but by correcting and revising material already placed on line (something that print-derived e-journals cannot do even in their electronic versions, which by definition have to be print-based).

...the inherent conservatism of LEXIS and WESTLAW has indirectly contributed to the development of a new form of computer-mediated legal scholarship: the electronic law journal.

[3.12] The first American law review to be distributed electronically in full-text outside of LEXIS and WESTLAW²²¹ was the Federal Communications Law Journal (Indiana University, Bloomington), which in 1994 began to provide a Web version of its current printed issue. As of February 1996, the same strategy had been adopted by the Indiana Journal of Global Legal Studies, the Cornell Law Review, the Hastings Womens Law Journal, the Villanova Law Review, the Villanova Environmental Law Journal, the Florida State Law Review, and the Cardozo Arts and Entertainment Law Journal; other such undertakings were forthcoming.

[3.13] By being offered on the Web, virtually all these journals make legal literature available to a national, international and interdisciplinary public much broader potentially than that which has access to (and/or can afford) LEXIS or WESTLAW service. Also by virtue of their chosen platform, these print-derived electronic law reviews can take some advantage of multimedia and hypertext to facilitate access to footnotes and lead readers to other sources and types of documentation and legal information. Ultimately, however, these electronic versions of traditional printed law reviews represent only limited progress over LEXIS and WESTLAW. Their format is necessarily driven (i.e. constrained) by the format of the print medium on which they are based. They cannot range too far from that (by, say, adding or changing information) without destroying their identities and a good part of their value. The fact that they constitute an additional burden on editorial staffs over and above that already imposed by their printed versions has also meant in some instances that far from coming out earlier and being distributed faster than their print equivalents, they actually come out much later, making them inferior to LEXIS and WESTLAW distribution at least in this respect.²²²

By being offered on the Web, virtually all these journals make legal literature available to a national, international and interdisciplinary public much broader....than that which has access to...LEXIS or WESTLAW service.

[3.14] In 1995, four second-generation electronic law reviews emerged that had no print versions: the National Journal of Sexual Orientation Law (founded by Mary Sylla, a law student at the University of North Carolina), the Journal of Online Law (edited by Professor Trotter Hardy at the William and Mary Law School), the Richmond Journal of Law and Technology (edited by law students at the University of Richmond), and the Michigan Telecommunications and Technology Law Review (jointly edited by students at the University of Michigan Law School and the University of Michigan Business School). These journals have a far greater potential to change and improve the way in which legal scholarship is distributed, accessed and even done. In the first place, they are not grounded to a print format at all - articles appearing in them can be specifically designed for Internet distribution and access. They can take advantage of multimedia and hypertext, not to mention the potential for updating, correction and revision of material that is inherent in a purely-electronic medium. They can solicit and archive e-mail from readers, thereby fostering academic dialogue. Second, because they have far less physical and economic overhead then either print law reviews or their electronic equivalents (which have to bear the overhead both of themselves and their printed source), they are far less expensive to produce and distribute. Editors and managers do not have to pay printers for their services. In turn, "subscribers" do not have to pay for access. Third - by their virtue of their lesser overhead combined with their technological convenience - purely electronic law journals are relatively more likely (at least in the long run) to be controlled and edited by otherwise busy and individually-impoverished law faculty. They therefore promise to address the "problem" of student editing. Fourth, the pure electronic law reviews are not bound to publish on a particular schedule, or at a particular length. If they have a good article, they can distribute it immediately;²²³ if they have bad articles, they do not have to include them as necessary "filler".²²⁴ Under these conditions, authors need not be hung up in publication delays caused by the tardiness of other authors or problems with the printer, and readers need not be inundated with mediocre material.

[3.15] In the context of these observations one might plausibly conclude that nirvana is nigh - that purely electronic law reviews provide the ultimate alternative for law professors (and others) suffering under the limitations of the present law review system. But such a conclusion would be premature and, I would argue, incorrect. Even purely electronic law reviews have serious problems as presently constructed, some of which might only be exacerbated were those reviews to become the foundation of a new structure of scholarly communication in law. To begin, the number of purely-electronic American law reviews can currently be counted on the fingers of one hand, and there are few signs of the imminent and radical expansion of the genre. Moreover, all of the electronic law reviews now in operation are highly subject-specific, and three of them deal with technology itself. In this context, it may be quite some time before most legal scholars can reap the advantages that purely electronic publication would seem to promise. In the second place, the purely electronic law reviews that do exist are not taking full advantage of their medium.²²⁵ A comprehensive check of the current and back issues of the relevant legal journals reveals that they have not as yet made any use of multimedia, nor have they taken more than marginal advantage of hypertext. On a less obvious level, they are still releasing material in "issues" that ape the necessary periodicity of print publications. Even if they formally allow their authors to take advantage of their more malleable electronic format by making changes to articles after publication, those changes cannot be made spontaneously by the author herself; rather, they must first be submitted to and then implemented by the reviews (creating an ironic bias against change). In the third place, the purely electronic law journals are still burdened by problematic editorial structures. Three of the existing purely-electronic American law reviews are student-edited. They therefore suffer from many of the same editorial limitations as traditional print-based student law reviews. The other two electronic American law journals are faculty-edited, but - as was emphasized earlier in another context - few law faculty members have the time or the inclination to edit a journal and do it well. The number of faculty members having the time, inclination, and the computer skills required to work comfortably in the new medium is even lower; relatively less effort may be required to edit an electronic as opposed to a print publication (in part because printers are not involved), but that effort still comes at a personal opportunity cost, which in turn imposes an implicit financial cost (in lost teaching and scholarship-production hours, not to mention staff support) on sponsoring institutions. Even if faculty members were able and could be persuaded to take on electronic editorial responsibilities "en masse", it is highly likely that (again, as we saw in another context) the outlets for scholarly publication would be radically reduced, a development that could have a devastating impact on the careers of many legal scholars, not to mention on legal literature as a whole. Finally, faculty- edited electronic law journals are as vulnerable to intellectual capture and co-option as any print review. These eventualities could have serious intellectual consequences for the entire American legal community.

Even purely electronic law reviews have serious problems as presently constructed.

[3.16] The last two general problems of current, purely-electronic law reviews - not taking full advantage of the new medium and their retention of traditional editorial structures - may be mutually reinforcing. Student law review editors have repeatedly been accused of being editorially-conservative; in this context, it is unlikely that they will unilaterally promote technologically-radical forms of scholarship. Here, as elsewhere, their "credibility" in the legal and law review communities at large is at stake. Faculty-editing is also an inherently conservative force. The process of peer-review and selection, one of the "advantages" touted by the faculty- edited electronic law reviews, may - even in relatively "forward looking" technological environments - encourage the publication of pieces that fit easily into generally-accepted norms and conform with the ordinary stylistic expectations of editors and especially peer-reviewers (who will not necessarily be as computer-literate as the authors of articles in on-line law journals). On an even more fundamental level, student and faculty editors of the new electronic law reviews may ultimately shy away from experimentation for fear that that would contribute to the failure of their initiatives (something that looks too different from the print "norm" may not be accepted or cited²²⁶). The greater the number of people involved in these initiatives as editors, peer reviewers, etc. (i.e. the more there is to lose), the more conservative a given review (electronic or otherwise) is likely to be. In this context, electronic law reviews may be very slow to realize their technological promise, a hesitancy which may significantly retard the progress of legal scholarship and, arguably, legal thought.²²⁷

[3.17] In light of these critical limitations on both the actual and potential performance of purely- electronic law journals in particular, I believe we can do better. Modern computer-mediated communications technology, in particular the World Wide Web, offers us not only a new platform for legal scholarship, but also a radically-new method for producing and distributing it which at a stroke could remove most of the editorial frustrations and administrative bottlenecks of the old print-based (and even the new electronically-based) law review system. In the next section of this paper I identify this method and show how it might be used to redefine the practice and the process of American legal scholarship in the twenty-first century.