II. The Rhetoric of Reaction
The Denial Thesis | The
Perversity Thesis | The Jeopardy Thesis (Value Added - Quality Control
Prestige - Education - Employment) | The Futility Thesis | The Alternatives Thesis
n 1991, Princeton social scientist Albert Hirschman wrote a well-received book entitled The Rhetoric of Reaction in which he sorted into separate rhetorical categories the principal arguments that had been deployed to counter such major post-Enlightenment reforms as the recognition of individual human rights, the universalization of the franchise, and the creation of the Welfare State.24 My proposal for the electronic self-publication of legal scholarship in the age of cyberspace obviously pales against the sweeping significance of these changes, but in its own way and in its own sphere it is nonetheless novel. At the same time, by his own admission, Hirschman's rhetorical genres "are not, of course, the exclusive property of 'reactionaries.' They can be invoked by any group that opposes or criticizes new policy proposals . . . ."25 In this context, Hirschman's work offers a highly-suggestive structure within which to analyze and, as appropriate, rebut the specific counter-arguments advanced by the skeptics contributing to this collection.26
[2.1] Those counter-arguments can be distilled into five Hirschman-style "Theses": first, the "Denial Thesis" (in this instance, denying that electronic self-publication will secure significant scholarly benefits); second, what Hirschman calls the "Perversity Thesis" (in this instance, holding that electronic self-publication will worsen the very conditions it purports to improve); third, what Hirschman calls the "Jeopardy Thesis" (in this instance, the argument that by putting established publication procedures in jeopardy, electronic self-publication will incur costs); fourth, what Hirschman calls the "Futility Thesis" (in this instance, holding that electronic self-publication is an unachievable goal); and fifth, the "Alternatives Thesis" (in this instance, asserting that most if not all of the purported benefits of electronic self-publication could be achieved by making other less drastic changes to the existing system of scholarly communication in law). In the remainder of this section I examine and explode each of these Theses in turn.
A. The Denial Thesis
[2.2] In its present articulation, the Denial Thesis takes two forms. First, some commentators skeptical of the electronic self-publishing proposal seem to believe that there is nothing fundamentally wrong with the existing law review system, and that there is thus no need or demand for change which could justify adopting my alternative: that it is, in David Rier's words, "a solution in search of a problem."27 In 1996, however, it is all but impossible to argue that there is nothing rotten in the state of Denmark.28 The output of literature assailing law reviews in the last five years in particular has been nothing short of prodigious, and the flood shows no signs of abating.29 It has no parallel in any other academic discipline. Many law professors who write for law reviews are unhappy because the reviews make arbitrary judgements, mangle prose, delay publication and otherwise make it difficult for professors to get their academic messages across in an accurate, effective and satisfying fashion. These grievances deserve to be taken seriously, especially as "law reviews are published primarily in order that they may be written."30 But law review writers are not the only complainants. Many lawyers, judges and even some law professors who use law reviews (even if they do not "read" them cover to cover like one "reads" a magazine or newspaper) are unhappy because the leading legal journals are providing them with what they regard as inappropriate content: in particular, an excess of theory at the expense of doctrinal or practical information.31 In the context of such wide-ranging dissatisfaction on the part of both producers and consumers of legal literature, there is obviously something deeply wrong with law's existing system of scholarly communication.
...in the context of...wide-ranging dissatisfaction on the part of both producers and consumers of legal literature, there is obviously something deeply wrong with law's existing system of scholarly communication.
[2.3] The second and comparatively more credible version of the Denial Thesis holds that electronic self-publication would secure no meaningful benefits, i.e. that regardless of any alleged "problem" with the existing publication system, my proposal has nothing new and really desirable to offer legal scholars. For the most part, this is an argument from silence: a number of those skeptical of electronic self-publication give virtually no consideration to what such a system might have to offer them as writers or readers of scholarly work. This facile dismissal of the potential advantages of change suits these skeptics rhetorically, especially when they go on to recite a litany of alleged costs 32 to the proposal, thereby tipping their scales heavily against reform. If the cost-benefit analysis they would undertake is not to be disingenuous, however, the benefits of my proposal must be acknowledged and evaluated.
[2.4] The benefits accruing to legal scholars from electronic self-publication derive both from self-publication per se and from Web publication as a general proposition. The benefits of self-publication pertain primarily to authorial control.33 Unburdened by arbitrary editorial constraints and prejudices, legal scholars putting work directly online can write on virtually any subject 34 without considering what particular law reviews might like or might not like.35 We can write in whatever format we consider best suits our message, be that analysis, story, dialogue or even poetry. For the first time in centuries, we can publish in whatever layout we prefer, repainting the canvas of the traditional "page" as we deem appropriate.36 We can express our ideas using our own styles and our own words, without having styles, words (and all too often, errors) imposed upon us. We can edit and polish our work when we have the opportunity to give those tasks the care they deserve, as opposed to when law review editors meeting a production schedule demand that they be done. We can disseminate our articles immediately upon completion, without waiting for them to be reviewed and printed by others; we can even withhold them until just the right moment to ensure their maximum impact and utility. In the wake of online publication in particular, we can conveniently revise, update, improve (and, if necessary, correct) our work without having to seek the assistance or approval of any middleman.37 Because we have self-published, we can readily retain copyright in our own work, allowing us to authorize the reprinting or reproduction of our papers free from the frequently annoying and counter-productive restrictions which have traditionally been imposed by journals and presses publishing for us.38 Such radical author empowerment promises to enhance the quality and creativity of legal scholarship, not to mention the job-satisfaction of legal scholars.39
[2.5] The benefits of the Web as a specific self-publishing platform are by definition somewhat more technical, but they too are extremely significant. On the Web, legal scholars can construct documents in hypertext, making direct, potentially non-linear connections between sources and ideas which are difficult if not impossible to make using print citations.40 On the Web, we don't have to pay or depend upon publishers for reprints of our own work: we can provide all our readers with electronic documents that each one of them can view, save, print and even annotate 41 for later use.42 On the Web, we can write and present in color, enriching and enlivening our articles while developing new ways of organizing our messages.43 On the Web, we can use multimedia to full effect, deploying graphics, audio and video not only to make our scholarship more striking, more memorable 44 and even more accessible,45 but to open up for investigation visual and aural aspects of legal process which have largely been invisible (or inaudible) to print. On the Web, we can expedite the distribution of our work by sidestepping the delays of mail distribution. On the Web, we can reach an international and interdisciplinary audience, profoundly expanding the range of our scholarly influence. Finally, thanks to the Web's capacity to carry e-mail, we can conveniently elicit and receive reader reactions to our work that we may answer, attach as a source of information for future readers, and/or use as a basis for revision and improvement.46 As scholar speaks electronically unto scholar, we have the opportunity to develop the dialogue and debate 47 that, although rarely realized in recent practice, has historically and theoretically been regarded as the test and foundation of sound scholarship.48
The many benefits of electronic self-publication are not hypothetical; they are actual. They are being enjoyed today not only by individual scholars in law, but by entire disciplines - most notably physics.
[2.6] The many benefits of electronic self-publication are not hypothetical; they are actual. They are being enjoyed today not only by individual scholars in law, but by entire disciplines - most notably physics, which since 1991 has relied on an archive of self-published "pre-prints" run by Paul Ginsparg at Los Alamos National Laboratory in New Mexico.49 Thousands of physicists worldwide have already contributed to this resource; tens of thousands use it every day. The Los Alamos archive has in practice superseded the traditional physics journals as the primary locus of scholarly communication in the physics field. If electronic self-publishing had no benefits as a scholarly strategy, this simply would not have happened. The fact that physics has opted for electronic self-publishing is of additional significance as the sciences have traditionally been far in advance of other disciplines - including law - in the development of new scholarly publishing formats. In the late 1600s, physicists and other scientists figured prominently in the creation of the first printed scholarly journals. Today, "because scientific and technical fields have the greatest stake in the development of electronic forms of information dissemination, and because their members have the greatest knowledge of, access to, and facility with these new technologies, their decisions concerning new forms of electronic publication will establish the precedents for other fields...to follow."49a
[2.7] To the (limited) extent that adherents of the Denial Thesis do evaluate what I consider to be the benefits of electronic self-publication, they tend to argue that those benefits are in truth neither positive nor significant. Most notably, David Rier asserts that the ability of self-published scholars to instantly disseminate their completed research over the Web would do little for them or for their readers. Unfortunately, Rier fails to appreciate the implications of instant or, for that matter, delayed dissemination. Take the present law review system. The lag between acceptance of an law review article and its formal publication is all-too-often a year or more. Given how fast law changes these days,50 such a lag can prove academically fatal: a new statute or a new precedent can render an analysis obsolete or inapplicable very shortly after (or even before) it appears. Less obviously, even the standard months-long lag between acceptance and publication all but ensures that by the time other law professors comment on a published piece (by letter or e-mail), the original author has already completed a follow-up piece or has moved on to another subject. In these circumstances most of the benefit of the commentary is lost before it is offered - which helps to explain why so few law professors offer post-publication commentary on others' papers. The problem is only compounded if a law professor responds to another in print. In this situation, it is often two years or more (from original submission) before the original author or the observing legal academy gains enlightenment from the "exchange," presuming they are even aware of it having occurred.51 These realities inevitably discourage the dialogue and debate which I've already identified as so important to the scholarly enterprise.52
[2.8] In an electronic self-publication system, however, the pace of scholarly communication is considerably accelerated.53 "Instant dissemination" of legal scholarship permits publication on the heels of completion, and therefore greatly increases the likelihood that an article will appear in time to matter. Instant dissemination of legal scholarship also has the potential of provoking instant reader responses which can reach a legal author directly, can reach her while her mind is still on her subject, and can reach her while she can still react and/or make revisions in light of comments received.54 The fact that comments can have a considerable impact in these altered circumstances will only encourage more of them to be made, which will give scholars more impetus to rethink and revise, which will in turn provoke more comments, etc., etc.55 By permitting immediate reaction, instant dissemination of legal scholarship also makes it more likely that third party readers will have the benefit of seeing an article critically discussed and evaluated while it is still relevant and still familiar.
[2.9] This Special Issue of the Akron Law Review ironically proves my points on reader response. Because Last Writes? was a self-published article instantly disseminated over the World Wide Web, it became available for comment much sooner than if it had gone through the standard law review system. The fact that I received electronic and written comments - including Rier's - within hours, days, and weeks of my actual completion of the paper (at least in its initial version), instead of a year or so down the line after one or more rounds of formal print-based publication, has allowed me to derive much more practical benefit from them. By cutting in half the normal "lag time" between print publication and print response, the instant online dissemination of Last Writes? has also helped to ensure that the readers of this collection will see those comments when it will do them the most good, i.e. while the article prompting them is still very topical.
B. The Perversity Thesis
[2.10] Taken to extremes, the Denial Thesis - asserting no benefit from electronic self-publishing - transmutes into Hirschman's Perversity Thesis: in this instance, that electronic self-publishing will actually make the scholarly situation worse instead of better.56 In effect, this is one of the arguments of Trotter Hardy,57 who alleges that Web self-publication might draw law professors into the technical quagmire of hypertext and multimedia, slowing down rather than speeding up the pace of scholarly exchange. Scholars creating high-tech enhancements would also incur an intellectual opportunity cost insofar as their time would not have been "devoted to substantive legal thinking."58
[2.11] Like other historical articulations of the Perversity Thesis which have granted the transformative potential of reform but have purported to reveal that as a danger, Hardy's argument seems neat in theory, but in practice it is exaggerated. Incorporating hypertext, video and audio components into Web documents is - as a matter of technology - already very simple, and is getting easier all the time. I know; I've been working with hypertext and multimedia for months. As I write this, a microphone and an inexpensive video camera sit on my computer console. It would take me less than five seconds to program a hypertext link in HTML (and that's in raw code, without an HTML "editor"), less than two minutes to record an short audio segment and code that into a given Web document, and probably less than three minutes to record and incorporate a brief video segment. If a picture (or a sound, or a hyperlink to a picture, a sound or even another text) is "worth a thousand words" that's not a bad investment of time. Even leaving aside the cliché, programming a hyperlink and recording particular audio or video segments may take less time than it already takes most of us to craft a good paragraph, or sometimes even a good sentence. In this context, it's virtually impossible to credit the contention that using these technological options will take so much time and energy that they would seriously slow the pace of scholarly production and exchange. On the contrary, Web-based multimedia might ultimately speed that process up (and otherwise enhance it) by allowing legal academics to substitute immediate depiction for lengthy second-hand description. Of course, none of this is to say that academic authors (or anyone else, for that matter) should employ multimedia in Web documents simply "because they're there." Rather, the fact that multimedia are quick and easy gives electronic self-publishers the freedom to use them appropriately. Instead of having to leave them out solely because incorporating them would take too long, we can include them whenever we conclude that they would make a document or a point more comprehensible and more memorable.
...programming a hyperlink and recording particular audio or video segments may take less time than it already takes most of us to craft a good paragraph, or sometimes even a good sentence.
[2.12] But what about hypertext and multimedia as conceptual constructs? Now here's the rub. Trotter Hardy suggests that hypertext and multimedia require "new ways of thinking" and implies that adjusting to them will take time and effort that might otherwise be invested in the intellectual content of legal scholarship. Making the transition to hypertext and multimedia will certainly take a while 59 and might not be easy for everyone (indeed, for some, it might prove to be impossible), but I doubt that it will have the necessarily-compromising effect on scholarship that Hardy seems to fear. Consider a situation that he himself describes: "many [legal] authors do not do a wonderful job of organizing their material in linear, old-fashioned text as it is."60 Hardy seems to feel that these authors are simply lacking in ability,61 but what if they are merely running up against organizational or cognitive obstacles imposed by the currently-dominant scholarly medium, i.e. text? Perhaps these scholars would do better communicating with the aid of hypertext and multimedia 62 - far from slowing them down intellectually, using such non-linear forms might speed them up, and improve the quality of their scholarly products into the bargain. Many scholars who are relatively more comfortable with linearity may not find hypertext and multimedia quite so liberating, but they may nonetheless discover that those tools give them rhetorical options which more than compensate for the effort put into mastering them. On a more general level, I'm not sure that we should draw a sharp "zero-sum" distinction between using media and thinking about law. The one process arguably informs and opens up new horizons onto the other. Writing, for instance, has influenced the agenda and attitude of Western jurisprudence for hundreds of years.63 Deploying hypertext and multimedia will likely have similarly-significant consequences for substantive legal thought; far from imposing an opportunity cost on over-enthusiastic legal scholars, such deployment might inspire insights into dimensions of law and law-making that might never have been prompted by direct analysis.64
C. The Jeopardy Thesis
[2.13] Most of the counter-arguments advanced in this collection against my proposal for electronic self-publication are instances of what Hirschman calls the "Jeopardy Thesis:"65 they assert that adopting my proposal would jeopardize legal scholarship, legal scholars and law students by eliminating academic and pedagogical benefits bestowed by the current law review structure. In other words, electronic self-publishing would incur costs, and that makes it unacceptable.
[2.14] The very premise of the Jeopardy Thesis is dubious. The existence of costs per se does not provide enough reason to reject any given reform proposal. By definition, all reforms - as changes - come with costs of some sort (a point which, by the way, reveals the Jeopardy Thesis to be extremely reactionary, so much so as to be pre-emptively against any change). To take an historical example, commercial printing incurred costs. We have already seen that in the short term, printers made editorial and technical errors and had problems with quality control; in the long term, printing deprived many copyists of their occupations, if not their livelihoods. Additionally, print made scholars technologically dependent on the members of a trade.66 Its mechanical limitations disfavored images, color and fine handwriting.67 Its finality rendered textual corrections difficult and expensive to make. Printing nonetheless triumphed over manuscript production because its advantages - speed, mass production, standardization, general low cost - outweighed those liabilities. The same logic applies to my proposal for the electronic self-publication of Web scholarship. It would doubtless incur certain costs (most obviously, taking the time to learn the relevant - if simple - computer skills), but it should nonetheless be adopted as a scholarly strategy because those losses are outweighed by the considerable benefits it would bring.68
...the adherents of the Jeopardy Thesis have radically over-estimated the costs that electronic self-publishing would entail. Like Chicken Little, these anxious scholars would have us believe that the sky is falling.
[2.15] This favorable balancing of accounts is all the more probable insofar as the adherents of the Jeopardy Thesis have radically over-estimated the costs that electronic self-publishing would entail. Like Chicken Little, these anxious scholars would have us believe that the sky is falling. First, they assert that electronic self-publishing would necessarily incur a loss of the "value added" to individual scholarly articles as they move through the current law review production system. Second, they insist that electronic self-publishing would inevitably lead to a loss of quality control over legal literature as a whole, resulting in a proliferation of poor scholarship. Third, they say that electronic self-publishing would entail a loss of prestige for authors who would no longer be able to claim the glory of good placements in reputable legal journals. Fourth, they argue that electronic self-publishing would deprive law students of the critical educational opportunities currently afforded them by their editing of current law reviews. Fifth and finally, they contend that electronic self-publishing would rob the same students of a credential they need to get good professional and academic jobs after graduation. As we shall see, none of these claims is justified .
1. Value Added
[2.16] Consider the "value added" argument. As articulated primarily by Richard Delgado, Henry Perritt and Tom Bruce, it holds that without formal law review publication, legal articles would be deprived of the value added to them when law review staffers edit their texts, verify their sources, standardize their forms, register their release (establishing "intellectual priority"), distribute and publicize them, associate them with other good or related articles in "issues," preserve them for posterity and/or make them eventually citable and locatable. This case against publishing one's own legal scholarship online sounds overwhelming, but it has two rather fundamental weaknesses.
...[the] case against publishing one's own legal scholarship online...implicitly overstates the quality of the various values added to articles by the current law review system.
[2.17] To begin, it implicitly overstates the quality of the various values added to articles by the current law review system. For example, law review redaction of legal scholars' submitted drafts is problematic. Because authors' mistakes slip by unnoticed and because mistakes are often introduced into a manuscript by law review editors themselves, spelling and style errors frequently show up in printed articles. Richard Delgado correctly 69 points out that in Version 1.0 of Last Writes? I misspelled "accommodate"70 (now amended in Version 1.1), but a WESTLAW search indicates that in the past fourteen years, for one reason or another, well-established law reviews have done likewise 947 times 71 (and those misspellings notably remain uncorrected72). Self-publishers also have no monopoly on stylistically-awkward sentences: Richard chides me for one rather "Germanic" structure (also since amended), but he fails to acknowledge that law reviews themselves "have become nursing homes for hobbled sentences and confused syntax."73 Law review copy-editing has in fact become so bad that it has lately led to litigation: in 1994, a student at the Fordham Law School sued the student-edited Fordham International Law Journal for mangling his Note.74 Although the suit was dismissed on summary judgment for failing to disclose a cause of action in federal law, the Journal nonetheless acknowledged its editorial errors and proposed to print an errata sheet. Verification of sources by law review staff members is sometimes no better than law review redaction. As William Ross notes elsewhere in this collection, "all too many law reviews perform citation checks neglectfully, negligently, or incompetently."75 In any event, American legal scholars should not fetishize editorial verification when many scholarly journals in the arts, humanities and sciences (not to mention book publishers,76 and legal journals in most other countries) cope very well without it, relying on the good faith and reliability of scholarly authors. Even the law review's role in standardizing legal scholarship is conceptually and practically problematic. Standardizing a text has traditionally required freezing it, thereby ensuring (short of a later reprinting in a book) that it cannot reflect new developments or new sources. In more than a few instances, standardization has had the undesirable side-effect of propagating and preserving the editorial errors I mentioned earlier.
[2.18] Other "values" supposedly added by current editorial and publishing procedures have similarly been overstated. Having articles published in law reviews is a common way of registering them for credit and recognition within the legal academy, but the registration process is very inexact: not only are articles often printed months after their "official" publication dates, but as far as establishing intellectual priority goes, it's virtually impossible to tell whether one article in a "Fall 1995" issue of one journal actually predated (or post-dated) another on the same subject in the "Fall 1995" issue of a second. Law reviews' distribution and publicization of articles is likewise problematic. True, publishing an article in the Harvard Law Review or the Yale Law Journal may bring it to the attention of readers both inside and even outside the legal community, but most other legal journals are neither actively marketed nor generally distributed on law school routing lists. Their contents (i.e. 99% of the legal articles produced) are therefore never adequately distributed or otherwise "publicized": in the face of this depressing fact, most legal scholars are compelled to "self-distribute" and "self-publicize" by sending reprints directly to desired readers.77 Physical association of an individual's work with other good or relevant articles in single issues of a specialty journal or even regular volumes of a general journal theoretically locates her in a broad community of scholars,78 but given the subdivision of the academic audience and the faintness of reflected glory, that may mean little in practical terms.79 Physical association of articles may actually be dysfunctional as it often imposes unwanted material on (not infrequently, paying) readers and may create the false impression that a given field is comprehensively covered.80 In any event, many legal scholars read legal articles on their own as either reprints, photocopies or online documents, totally oblivious to what else is in a particular journal number. The success of (especially printed) law reviews in preserving legal scholarship for posterity should also not be taken for granted. In libraries across the country, thousands of law review volumes are disintegrating thanks to the "slow burn" of acid in their pages. Some law reviews now use acid-free paper, but even that cannot protect legal scholarship against the potentially-devastating ravages of fire, vandalism and normal reader "wear" (the last two of which can actually make the most famous of articles the hardest ones to find in readable condition). Finally, publishing an article in a law review which can be formally cited in, say, the Index to Legal Periodicals, hardly ensures that it will be found when needed. Categorization in print-based (or even certain electronic) legal indexes can be quite misleading. Even if an article is properly indexed under the current system, there is no guarantee that the printed law review containing it will be on the shelf, actually available for consultation.
[2.19] The other fundamental problem with the "value added" argument is that it overlooks the virtual certainty that the values alleged to be "lost" by electronic self-publishing will simply be secured in the new system by other means - means which will work just as well as (if not better than) their print-based/law review-based antecedents. For instance, self-publishing scholars who desire the benefits of good editing - and who wouldn't?81 - will probably place greater reliance on computerized spelling and grammar checkers, taking advantage of the very computer technology which enables them to self-publish in the first place. At least in the short term, they will probably also arrange to have their work thoroughly checked by research assistants who, unlike law review staffers, could be hand-picked for their academic backgrounds in particular areas, would be directly responsible to a scholarly author for the quality of their editing, and would lack the technical wherewithal to set their own mistakes in print.82 Scholars wishing to have the form and substance of their citations verified could pursue similar alternatives, relying on a combination of software citation-checkers 83 and research assistants.84 Scholars wanting to give various readers the opportunity to examine a set text of their work without having to "freeze" it would merely need to support the current version of their documents with previous versions: given the capacities of electronic storage, nothing would have to be thrown away. For example, Version 1.0 of Last Writes? - now superseded by Version 1.1 - is still stored on my own Web site, and is still available for downloading on demand. Not only would such storage enable other scholars to ensure that they were all citing, quoting or consulting the same version of a particular text (a point that especially concerns Trotter Hardy85), but it might provide useful insight into an authoring scholar's thought process over time.
The other fundamental problem with the "value added" argument is that it overlooks the virtual certainty that the values alleged to be "lost" by electronic self-publishing will simply be secured in the new system by other means....
[2.20] In an electronic self-publishing system, registration, distribution/publicization, association, preservation, citation and location would likewise be achieved in new ways. Work would be informally registered with the legal community by posting a precisely dated version of it online. In a developing Internet culture, lawyers and legal academics would overlook online postings at their peril (attorneys on various e-mail discussion lists have already suggested that not consulting the Internet on certain legal matters may amount to malpractice). Alternatively, formal registration of self-published articles might be achieved by listing them with, adding them to, and/or having them "digitally time-stamped" (along the lines of the physics model) by a central Website/databank of electronically self-published legal scholarship, perhaps run (as I proposed in Last Writes? 86) by the Association of American Law Schools.87 Self-published legal scholarship would be electronically distributed (or, perhaps more accurately, made distributable) to an international and interdisciplinary public potentially far larger than the readership of any current subscription-based law review. Organizing a central scholarly databank would make it possible to publicize legal articles by general (perhaps even regular) e-mail announcements of new works in particular areas or by particular authors.88 Electronically self-published articles (and their authors) would be associated with one another through their joint appearance on subject-based e-mail notification lists from the databank, through their co-presence in databank sub-directories of scholarship in particular subject-areas (e.g. "Constitutional Law"), or in the results of computerized rank-based searches of the database or the Net as a whole.89 Somewhat more ambitiously, individual scholars wishing to keep up to date with writing in their fields but not willing to spend a lot of time searching for online resources in an ever-expanding database (or waiting for centralized notifications) could use "intelligent agents" - computerized research assistants carefully programmed by their users and released onto the Internet - to not only find and report back on all existing materials fitting a certain disciplinary profile (and only that profile), but to alert their programmers to all new relevant postings.90 Works of self-published legal scholarship would be preserved electronically at their own sites and/or in the (presumably more secure) central databank: safe from many physical ravages that affect paper, backed up and even "mirrored" as appropriate,91 they could remain intact and legible indefinitely.92 Finally, electronically self-published articles might not be cited in the traditional print-based indices, but they would nonetheless be locatable through subject-, author- and/or keyword searches of the general Internet indices (e.g., Yahoo, Altavista, Hotbot) which many law professors and attorneys are already using or, less circuitously, through similar searches of the anticipated central databank and/or its sub-directories. Alternatively (or additionally), electronically self-published articles could be traced through a new generation of subject-specific Internet search engines (e.g. Hieros Gamos,93 Web-Cite 94) which instead of replicating restrictive, journal-only print indices, seek out both self-published and journal-published electronic materials. As Trotter Hardy notes, certain Internet addresses might occasionally prove problematic,95 but given current Web-authoring customs, the chances of getting a bad (and, more importantly, untraceable 96) address would in practice be much less than the chances of finding that a particular printed law review is "out," is being bound, or is otherwise unavailable. Electronically self-published papers might not have page numbers to direct readers to particular areas of text, but (like Version 1.1 of Last Writes?) they would have unobtrusive paragraph-numbers which would actually allow for much more exact citation. In these and other ways, the electronic self-publication of legal scholarship would not in practice require giving up the "value added" by present publication procedures; indeed, legal scholarship would likely emerge from the self-publishing process with its own value considerably enhanced.
2. Quality Control
[2.21] The second article of the Jeopardy Thesis asserts that by displacing law reviews, electronic self-publishing would precipitate the collapse of quality control. Richard Delgado, Henry Perritt, Trotter Hardy and David Rier all claim or at least suspect that with no editorial boards to impede anyone from publishing anything, over-enthusiastic legal scholars would mar legal literature and complicate legal research by flooding the legal academy with junk.97
...the concept of law students exercising quality control over legal scholarship borders on the oxymoronic.
[2.22] In a sense, this quality control point is but an especially-contentious particularization of the value-added point - it posits that the law reviews currently contribute a specific value (in this instance, quality screening and certification) to the literature without which it would mushroom and deteriorate. As is the case with other values, however, the worth of the current quality control system is overstated. In particular, the concept of law students exercising quality control over legal scholarship borders on the oxymoronic.98 Student law review editors are second and third year apprentices in a sometimes-learned, sometimes not-so-learned profession. Yes, there are a few areas about which they may know something (e.g. constitutional law, generally a required course in second- and sometimes first-year), but there's a great deal of legal and non-legal ground about which they know nothing. However hard they may work at it, they have taken on an evaluative task for which they are simply not prepared:99 in these circumstances, much of what they prefer to publish turns out not to be what is academically best or innovative or remarkable, but what is recognizable (to them), what is "safe" or alternatively fashionable, what is written by familiar "names," what catches their fancy on stylistic grounds, or what will cause them the fewest hassles at cite-checking time. The fact that good articles do appear in the "best" student-run law reviews does not gainsay this point. Many good articles also appear in "lesser" student journals, and many articles that run in the "best" student journals are (dare I say) not that good.100
[2.23] If quality control by students is problematic, however, traditional quality control by peers may not be that much better. Although only a marginal phenomenon in legal scholarship, "peer review" in general suffers from many well-documented shortcomings: poorly- or arbitrarily-selected reviewers;101 reviewer anonymity,102 partiality,103 fallibility,104 or overwork;105 a systemic bias against innovation;106 lengthy delays; unavailability of reviews to general readers; and even occasional editorial dismissals of peer verdicts.107 In practice, it lets in much of the "dubious data and poor prose"108 it is supposed to screen out; precisely because of this, much scientific literature in particular is comprised of well-deserved trashings of other scientists' published work. Growing appreciation of peer review's problems has recently led Nobel Prize winners,109 journal editors 110 and many rank and file scholars in various fields 111 - not to mention some prominent lay observers 112 - to call for its reformation or outright elimination. Those who still consider peer review an academic sacred cow tend to forget that it is a relatively recent historical phenomenon. Its roots may go back to the eighteenth century, but it was only embraced by most disciplines in the twentieth.113 It is definitely not a necessary precondition of good science (à la Copernicus, Newton or Darwin 114) or good scholarship (à la Gibbon, Smith, or Russell).115 In fact, the historical rationale for peer review ultimately has less to with guarding academic standards than with making scholarly journals profitable,116 keeping the support of wealthy patrons - be they aristocrats or government agencies - 117 and ensuring that academic editors maintain politically-tenable positions in their own fields.118 Circumventing this form of quality control by electronic self-publishing would not be as risky as one might think. Indeed, it might be desirable.
If quality control by students is problematic, however, traditional quality control by peers may not be that much better.
[2.24] Electronic self-publishing, however, would not require the circumvention of quality control itself. Over and above the presumed continuation of such "informal" checks as work-in-progress colloquia and draft reviews by colleagues,119 that control (like other "added values") would simply be exercised and its benefits secured by new and improved means. For instance, quality in an electronic self-publishing system could be maintained via a system of reader comments, submitted by e-mail and then (for the information of both authors and future readers) attached 120 to self-published articles as appropriate.121 Good articles would presumably receive good comments; bad articles would receive bad comments, or no comments.122 The prospect of receiving no comments, or bad comments which would then be publicly posted with the original work (a sort of academic "scarlet letter") would be a powerful incentive not to post poor quality work in the first place. Such a "post hoc peer review" system is not at all revolutionary. A variant already operates in several print-based scholarly journals, and in somewhat attenuated form it is, of course, the foundation of current book review practice. Ultimately, it would probably function better than traditional pre-publication peer review: it would not suppress or create obstructions for innovative or experimental papers, it would expose scholarship to the comments of all legal scholars (as opposed to just a few chosen peer reviewers), and it would make readers' comments available for all to see (providing useful information to later readers while reducing the chances of arbitrary review in the first place). Insofar as it could operate indefinitely, this quality control system would also be able to adapt to continuing changes in an electronically-published article's text. Of course, the system's success would ultimately depend upon the willingness of other scholars to participate. Some scholars might choose not to - David Rier, for instance, would recuse himself on the assumption that inviting such commentary is asking others to do one's own work.123 But this is no different (and, given the more advanced stage at which it would take place, probably better) than the tradition of asking colleagues to read drafts, or, for that matter, the practice of sending drafts to student boards for routine editing and cite checking. Many people would probably take advantage of the opportunity to comment on papers that they thought were worth the effort. Not only would that enable them to have a direct, immediate and public impact on others' work, but it would demonstrate their unselfish commitment to the ideal of scholarship as dialogue.
[2.25] In a self-publishing system, quality control would also be enforced by self-policing. Electronic dissemination of legal scholarship on the Web would expose law professors' work to the world: in this context, even leaving aside the threat of public sanction through negative reader responses, self-interest would suggest that law professors post quality material lest they publicly embarrass themselves and do serious damage to their own academic reputations. Quality control through self-policing of this sort is not a pipe-dream. The scientific community already relies on self-policing to prevent most instances of fraud.124 Self-policing has also succeeded in more specific settings. In the early 1960s, several hundred biomedical scientists from around the world organized themselves into so-called "Information Exchange Groups" focused on specific subject issues. Group members submitted their papers and communications to a central office in Washington D.C. which immediately passed them on to all other participating group members. No editors intervened in the process, although slanderous statements of a personal nature were eligible for return to authors at the discretion of the project Chairman. In the wake of the project's premature termination in 1966,125 one participant recalled: "In the early days, many believed that the IEGs would be outlets for a flood of rubbish. This flood never materialized. When a communication is to be scrutinized by 700 or more experts, only a fool would risk presenting an inferior article . . . . The quality of the communications was certainly no worse than the quality of the published literature, and this despite the absence of reviewing or editorial selection."126 A similarly-successful self-policing system exists today in the physics community: the electronic archive of physics preprints that I described earlier effectively looks after itself - there is no quality control problem at present, and according to the archive's founder, "no likelihood" that one will develop.127 In this context, it's clear once again that protecting and preserving the quality of "published" scholarship does not depend on the survival of established academic periodicals, law reviews included.
...quality in an electronic self-publishing system could be maintained via a system of reader comments, submitted by e-mail and then...attached to self-published articles as appropriate.
[2.26] Even in the unlikely event that those skeptical of my electronic self-publishing proposal were right in their contention that eliminating law reviews would result in a significant loss of quality control, it's doubtful that such a loss would have the devastating impact they fear. Good articles would still be written by responsible law professors and lawyers; the "problem," supposedly, would be how to find those good articles amidst the bad ones that would hypothetically "flood" the academy. In a print-based self-publication system finding better work would admittedly be difficult - it would be possible only after wasting a good deal of time and effort leafing through and trying to evaluate second-rate material. The electronic self-publishing system I outlined in Last Writes?, however, could easily cope with bad articles, effectively shunting them aside and saving scholars the inconvenience of having to read them or even see them. It could do this by taking advantage of its capacity to elicit and carry reader comments. A ranking system could easily be developed wherein self-selected reader-evaluators would rank an article on a 1-10 scale. Alternatively, the organization running the projected databank of self-published legal scholarship could come up with a comprehensive ranking based on the comments received. Scholars could profitably use this information in constructing electronic searches: thus, instead of asking the databank to list everything on a particular topic, a scholar could instruct it only to list articles above a certain ranking.128 The databank might actually contain more (low-quality) articles than it would list pursuant to such an instruction, but those would be rendered irrelevant and invisible to the point where, far from being concerned about "flooding," scholars might not even be aware of their existence. Ultimately, such a system would probably be used as a time-saver as much as a junk-filter: busy scholars faced with an array of reader-classified "quality" articles in a particular area might plausibly rely on rankings to identify the one or two "best" pieces, just as some currently tend (somewhat more arbitrarily) to choose "elite"-published articles on a subject over articles on the same subject appearing in non-elite law reviews.129
[2.27] The third concern voiced by adherents of the Jeopardy Thesis - most forcefully, by David Rier - is that elimination of law reviews in favor of electronic self-publication would deprive law professors in particular of the academic and even professional prestige derived from publishing in highly-respected journals.1 In other words, they would no longer benefit from the "boost" of a good placement.
[2.28] There are several problems with this contention. Not least of these is its somewhat unseemly nature. If law reviews are to be retained, they should be retained because they serve scholarship or further a pedagogical purpose, not because they can make particular law professors "look good" and "get ahead" in the strictly-careerist sense of that term. Somewhat less idealistically (given the importance of prestige in fact), it should be noted that placement-based prestige is in limited supply: a relatively few members of the legal academy get the opportunity to publish in prestige-generating journals. To this extent, most legal academics publishing elsewhere have no prestige to lose by opting for another, in many respects better, system of scholarly communication. Those skeptical of electronic self-publishing must finally admit that even under the existing system, prestige isn't everything. In particular, prestige will not necessarily win someone tenure and promotion - at many American law schools, scholarship is judged not according to where an article is placed, but rather according to how good evaluators (especially external evaluators) deem it to be.131 This not infrequently results in non-elite-published and even, on occasion, as-yet-unpublished (and unplaced) articles getting good reviews, and well-published "prestigious" articles getting trashed. The authors of the former tend to be elevated; the authors of the latter tend not to be.
Electronic self-publishers may by definition be unable to gain prestige through placements, but they will nonetheless obtain it from the electronically-recorded reactions and comments of their colleagues.
[2.29] Have no fear, however - in the age of cyberspace, prestige is not going to evaporate into thin air. Electronic self-publishers may by definition be unable to gain prestige through placements, but they will nonetheless obtain it from the electronically-recorded reactions and comments of their colleagues. A "prestigious" self-published piece will be one that many scholars consult and/or revisit (judging from its "counter"), one that numerous scholars or institutions include as a link on their own sites (a form of Web citation, if you like 132), one that stimulates widespread commentary and debate as evidenced by attached e-mail messages, and/or one which succeeds in eliciting positive comments from many scholarly readers (or from a few high-profile ones). All four sources of prestige would in fact be more impressive and academically more legitimate than the process that purports to confer prestige at the moment. Take just one example: from a prestige perspective, would you rather have your article on legal history published by students in the Columbia Law Review, or electronically self-published on the Web with positive comments from Morton Horwitz, Bob Gordon and Barbara Black? . . . Me too.133
[2.30] The fourth objection that exponents of the Jeopardy Thesis make to electronic self-publishing focuses on the alleged pedagogical cost to law students of supplanting the law review. Tom Bruce, Howard Denemark and Gregory Maggs all hold that law review service educates law students in legal research and writing, appraises them of significant issues in the legal community, and/or hones their analytic judgment. They suggest that without retaining the law review in at least some form, students would suffer.
[2.31] This concern for the pedagogical welfare of law students is highly commendable (indeed, I share it), but do law reviews really accomplish all that their partisans claim? A growing number of disgruntled law students say not.134 Moreover, if law review experience is pedagogically fundamental, why is it not offered to more - even all - law students?135 Would those skeptical of electronic self-publishing suggest that non-law review students are receiving a substandard legal education? If not, they cannot claim that eliminating the institution would do significant pedagogical damage. The skeptics should also remember that other common law educational systems - in particular, England, Australia and to some extent Canada - function very well without student-edited law reviews. Would anyone seriously suggest that graduates of these systems are legally less capable than their American counterparts?
Shifting to a system of electronic self-publication...does not demand...that law students lose the pedagogical benefits which the law review was to some extent designed to provide.
[2.32] Shifting to a system of electronic self-publication of legal scholarship does not demand, however, that law students lose the pedagogical benefits which the law review was to some extent designed to serve. If the law review itself were felt to be a unique incubator of legal research and writing skills, law schools could always choose to retain it in modified and limited form as a vehicle of student scholarship. It could be reduced to a collection of student Notes,136 or perhaps a compendium of seminar papers. Alternatively, legal analysis, legal research and writing, and even "currents in contemporary legal thought" could be explicitly taught in a wider range of classes, seminars or independent studies. Not only would such undertakings allow students to approach those subjects directly and comprehensively rather than indirectly and haphazardly, but it would save money as compared to the present system (in other words, it would be more "cost-effective"). Law students wishing more intensive, hands-on training in any specified skill or area could apply for research assistantships with productive legal scholars in their schools. In that capacity they would get an intellectual and academic work-out certainly as good as, and - given close faculty supervision - arguably better than any available in contemporary law review offices.137
[2.33] Finally, we come to the pièce de résistance of the Jeopardy Thesis: the argument (here offered by Tom Bruce and Howard Denemark) that without the credentials provided by the existing law review structure, law graduates may have difficulty finding jobs. It is clear that many contemporary employers favor students with law review experience.138 It is less clear why they do that. They may believe that a year or two of reading academic articles, editing drafts and checking citations makes one a better lawyer. They may believe that service on a law review board helps acclimate law students to the teamwork and effort expected in corporate legal practice. They may even be biased towards law review students as a result of what Bruce terms "nostalgia" - hiring partners in law firms may (justifiably or not) look back with fondness on their own law review experiences of five, fifteen or twenty-five years ago, and may be tempted to hire students who in retrospect remind them of themselves.
[2.34] Will electronic self-publishing of legal scholarship wreck this symbiotic relationship between law review staffers and law firm recruiters? Not at all. In the first place, as I indicated earlier, law reviews may in some sense survive a faculty move towards self-publication by limiting themselves to the publication of student-written material. In this context, students would still be able to acquire the editorial and organizational skills that recruiters allegedly value; they will also remain the objects of nostalgic envy and displaced identification. But even if the law review collapsed completely as an institution, students would still get hired. They would get hired on the basis of their grades. They would get hired on the basis of their writing skills. They would get hired on the basis of their interests, their backgrounds, their work ethics, their recommendations, their interviewing skills, and their personalities. Law firms hired law students for these reasons before there were law reviews, and they will hire them for these reasons after there are law reviews. One might even suggest that they actually hire them for these reasons now: especially given how students get onto and advance up law review boards, law review service is in many ways a cipher for many other credentials.139 Taking away the cipher would ultimately encourage more direct examination - and perhaps more accurate assessment - of qualities that really "count."
[2.35] A working electronic self-publication system would moreover generate new ways of resumé-building for job-seeking law students. Given that many law review editors would likely become RAs in a revamped scholarly production structure, they would have an opportunity to perform under supervision many of the same editorial and research tasks they do now. As RAs, they would also secure the benefit of (hopefully, good) recommendation letters from law faculty intimately familiar with their editorial and research work - letters that should be worth more to employers than letters from satisfied authors 140 who might have dealt with a given law review editor only a handful of times while he/she (and perhaps others) were working on the author's article. Being practical people, law firm recruiters would not take long to adjust to these new realities; indeed, they would probably come to appreciate them.
D. The Futility Thesis
[2.36] In general terms, Hirschman's "Futility Thesis" asserts that regardless of its inherent merits, a given reform will be deemed inadvisable by some of its detractors because it supposedly cannot be accomplished given the forces and obstacles arrayed against it.141 Rhetorically, the Thesis affords individuals the chance to conjure with an idea while allowing them to avoid endorsing it by pointing out bureaucratic, political or social impediments beyond their control. In the present collection of commentaries on Last Writes?, the Futility Thesis is most obviously incarnated in Tom Bruce's suggestion that even if the electronic, Web-based self-publishing of legal scholarship were a goal worth pursuing, it might be difficult if not impossible to achieve given the likely indifference, intransigence or outright hostility of contemporary law school faculties and administrations (what Bruce calls the "tenacity of the existing culture"142). Expressed somewhat more positively, the Thesis asserts that the time for change has not yet come.
[2.37] In theory, electronic self-publishing might be stymied both materially and normatively. Material obstacles might manifest themselves in oblivious or overly-cautious law schools failing to provide their faculties with the technological and financial support necessary for faculty members to either self-publish independently, or, more ambitiously, orchestrate a self-publishing system through the creation of a central scholarly databank. The infrastructure for the first of these initiatives, however, is already bought, paid for, in operation or at least imminent in many (if not most) American law schools. All law professors have to do is use it.143 As to the second ostensibly more ambitious initiative, that is not nearly so difficult to undertake (or easy to stop) as some might presume. The Internet which supports the World Wide Web was originally designed to be decentralized. Military scientists constructed it so that independent computers operating at any of its nodes would have the capacity to access, organize and deliver information all over the network. Today, this same capacity theoretically gives individual scholars at law schools all over the United States the technological ability to organize electronic databanks potentially holding or linking to thousands of self-published electronic articles. Given existing Web connections and existing law school servers, the cost of doing this (initially on a volunteer, part-time basis) would be close to zero - much less than that generally associated with undertaking a print-based project such as a new law review. In this context, legal scholars interested in launching an experimental electronic databank might easily end-run administrators or colleagues who might not wish to undertake such an experiment themselves.
...as I write these words, a framework for a generalized system of legal self-publishing is already in place...
[2.38]"End-running" may not be necessary, however. As of August 1996, a global consortium of law firms called Lex Mundi has developed (as part of its Hieros Gamos Web indexing initiative) a limited archiving 144 and notification 145 service enabling legal scholars to directly link their self-publications to an evolving databank searchable by other legal scholars or by members of the public. Readers reporting their subject-preferences are advised every time the database registers a new article in their areas of interest. The Lex Mundi system could arguably be improved in various ways, in particular by incorporating reader commentaries and evaluations which could be used to refine the search process, but the basic point remains: as I write these words, a framework for a generalized system of legal self-publishing is already in place, whether certain law school Deans and faculty members would welcome it or not.
[2.39] Although by definition literally "immaterial," the normative obstacles allegedly in the way of electronic self-publishing of legal scholarship are potentially more serious than their material counterparts. Tom Bruce puts the problem bluntly: "unless merit, tenure and promotion committees begin to recognize and actively encourage electronic publication, electronic publication will not take place on a useful scale."146 Is this recognition and encouragement likely to be forthcoming? Bruce suspects not, but I'm more optimistic. In the first place, administrators and senior scholars on these committees - not to mention the university officials that oversee them - may turn out not to be as conservative or hostile as Bruce and others presume. A few of them (especially Provosts and central administrators from hard sciences like physics) may be engaged in self-publishing themselves. A larger number may at least come to appreciate its many scholarly benefits 147 and/or acknowledge the comparative rigor of a process that not merely distributes scholarship but intentionally and immediately exposes it to critical public comment. Some senior officials may recognize the political and potentially financial advantages of being seen to endorse a powerful scholarly option presented by the latest technology.148 Others may insist - heaven forbid! - on continuing to evaluate colleagues' scholarship on its merits, as opposed to how or where it is published. The composition of "tenure and promotion committees" is also bound to change over time:149 as that change occurs and as those bodies become inevitably more Net-literate ("Neterate") themselves, they will be more accepting of a Neteracy-based self-publishing strategy.150
Eventually, the majority of legal scholars will gain enough online experience to realize that far from being a last resort, electronic self-publishing is a first resort that allows them to publish scholarship more easily, more efficiently, more quickly, more cheaply, more accurately, more creatively, and more effectively than any legal journal.
[2.40] The second reason why I'm relatively optimistic about the chances of overcoming normative obstacles in the way of electronic self publishing is related to the likelihood that early self-publishing legal scholars will probably take a two-track approach to publication. In the short term, along with putting their work online, most will continue the practice of sending it to printed law reviews in order to reach their entrenched, largely non-Neterate audiences.151 Last Writes?, for instance, was posted on the Web and also submitted to (and accepted by) the New York University Law Review.152 Not incidentally, such a strategy will allow self-publishing scholars to "cover" themselves in the eyes of their colleagues, who will therefore be less likely to reject self-publication itself out of hand. In the meantime, it will gain strength and credibility as a scholarly option. Eventually, the majority of legal scholars will gain enough online experience to realize that far from being a last resort,153 electronic self-publishing is a first resort that allows them to produce scholarship more easily, more efficiently, more quickly, more cheaply, more accurately, more creatively and more effectively than any legal journal. At this stage they will abandon formal law reviews as being more trouble than they're worth.154
[2.41] Because large-scale electronic self-publishing of legal scholarship is already a technologically-viable option, because it may prove to be less than anathema to established interests, and especially because it will not lead to the immediate abandonment of the law review, there is no good reason to postpone it to a better, somehow "riper" time. Waiting until everyone is technologically up-to-speed, or until every aspect of the present law review system is replaced, or until "all parties are convinced they will lose nothing in the process [of transition]"155 is simply not necessary. Nor is it advisable. Progress towards a working system of electronic self-publication will almost inevitably involve some measure of trial and error. Certainly thought should be given to what lies ahead, but solutions to the challenges inevitably presented by the new system should also be allowed to develop incrementally. Because what ultimately works may be very different from what we might expect to work, we should get started as soon as possible. More fundamentally, delaying the shift to electronic self-publishing to some hypothetical "right moment" may paradoxically ensure that it never happens. There will always be someone who (by choice or by force) will stay outside the computerized publication structure. There will always be someone who will insist (perhaps rightly) that the law review is not and cannot be entirely "replaced." There will always be someone who will feel that change will not be in their interest. These people deserve our respect and our sympathy, but waiting for them would be as counterproductive for us as waiting for recalcitrant scribes would have been for the pioneering printers of five centuries ago.
E. The Alternatives Thesis
[2.42] The fifth and final type of argument advanced by those skeptical of the prescription I offered in Last Writes? may conveniently be termed the "Alternatives Thesis." The proponents of this Thesis present a variety of proposals which they assert might improve the present legal publishing system without running the risks allegedly inherent in dismantling the law review structure as we know it. Unlike the exponents of Futility, they believe that some changes can be made, even if those are not the root-and-branch changes I have urged.
[2.43] The alleged "alternatives" run the gamut from the traditional to the imaginative. The most traditional alternative to electronic self-publishing is proposed by David Rier, who at one point advocates reforming the existing law review system by indirectly and directly strengthening formal pre-publication review procedures. If multiple submissions were limited and manuscripts were shortened, he claims that law students would do a more thorough job of evaluating papers; if more faculty members became involved in editing legal journals or at least supervising the work of student boards, he claims that the overall quality of review would go up. But these proposals are old hat,156 and are themselves unsatisfactory. Radically limiting multiple submissions to, say, three or five at a time would considerably slow the pace of legal scholarship; the process of placing an article (which now takes only a couple of months, and often less time than that) might ultimately take years.157 Imposing a formalized publishing preference for short articles would potentially discriminate against scholars taking non-conformist approaches which require further elaboration and documentation than conformist writing, the framework for which is already known and endorsed in the legal community.158 In any event, reducing the workload of student editors does nothing to make them more educated or more experienced. As to Rier's second suggestion of more faculty editing (or for that matter, more faculty supervising of student-editing), that is unlikely to take hold as a standard practice so long as it threatens to impose additional administrative or pedagogical burdens on faculty which would distract them from their own writing. If faculty members have time to spare, learning how to self-publish electronically would be a much better professional investment. Finally, to the extent that faculty editing presumes peer review, Rier is asking legal scholars to climb onto a bandwagon precisely when a critical mass of his colleagues in the sciences are clamoring to get off.159 Prudent legal scholars should beware.
[2.44] A slightly more novel alternative to electronic self-publishing is put forward by William Ross, who suggests that legal scholars looking for new avenues of intellectual expression should consider publishing books. Books, of course, enjoy revered status in the academic pantheon. They represent the culmination of years of thought and work, and as such are (hopefully) major contributions to scholarship. They offer professional editing, editorial continuity, peer review (for good or ill) and even the possibility of revising one's work in later editions. By definition, however, they are not an alternative to articles, which are the focus of my electronic self-publication proposal. Many good ideas that are perfectly suited to abbreviated discussion in an article would lose much of their punch in book format. Books take longer to conceive and produce, which is one reason why articles and journals came into existence in the first place. In several respects, books are also weaker than articles as a practical medium of legal scholarship: as Ross himself admits, "many law professors read law review articles far more avidly than books."160 In law, books don't even carry a guaranteed prestige advantage: Ross corrrectly notes that "most law professors would receive more prestige and attention from their peers by publishing with a top-ten law review than with a second-string publisher."161
[2.45] Even if books did not suffer from these disadvantages, using them as a professorial "escape hatch" from law reviews would be complicated by the fact that the current market for academic monographs is very, very tight, and getting worse all the time. University presses under severe financial constraints are no longer accepting the number of manuscripts that they did even five years ago.162 The manuscripts that many are accepting fit a particular, somewhat problematic profile: popular, topical, lightly documented 163 works generally by established, publicly-recognizable academic authors that are more likely to pay for themselves in the marketplace.164 Most law professors are not well-known outside their specific areas of expertise; many do not produce, do not want to produce or do not wish to be confined to producing books of this sort.165 Opting for book publication under these circumstances would force most legal academics to derail their own scholarly agendas.166 This is clearly not acceptable.
[2.46] Somewhat more visionary is a third alternative explicitly advanced by both Henry Perritt 167 and (as a futuristic setting for the implementation of his more traditional proposal) David Rier:168 shift the locus of legal scholarship from printed law reviews to electronic journals ("e-journals"). Taking the basic idea one step further, Perritt even suggests making electronic self-publication a preliminary step in a new electronically-based law review production structure.169 Of course, electronic journals are Internet entities capable of multimedia and other technological innovations.170 They also have the social and political "advantages" of being relatively recognizable to users, being compatible with existing scholarly practices, and being (for the most part) protective of existing academic and publishing hierarchies. Building self-publication into electronic legal journals' submission and editorial processes would save mailing and transmission time and would ostensibly allow legal scholars to have their cake and eat it too, i.e. take advantage of self-publishing while preserving the basic law review system.
[2.47] Having said all this, electronic legal journals and this notion of "preliminary" self-publishing are both problematic. Let's take preliminary self-publishing first. A legal scholar posting her articles online for the sole purpose of having them considered, selected, edited by and eventually "published" in some electronic law journal 171 would in practice be sacrificing most of the benefits of the technological skill she would have bothered to acquire. Assuming with Perritt that the editors of most electronic law journals would not tolerate an electronic self-publisher maintaining or revising the electronically self-published and by definition directly competing version of an article after formal e-journal publication,172 that preliminarily self-publishing legal scholar would be handing over to others the final say over editing, design and dissemination when she could have had that herself. She would also be abdicating direct control of post-publication changes and (most likely) giving up republication and duplication rights. In sum, she would be allowing a fully-representative, up-to-date, dynamic and mobile statement of her ideas to be replaced with something less. This would come close to constituting academic negligence; the self-publisher would be better advised to leave well-enough alone. Any legal e-journals that might permit co-publication by electronic self-publishers in the interest of securing particular articles or in the hope of setting an altruistic example for other journals would be courting disaster: they might retain their readerships for a little while, but regularly peddling soon-superseded (or, at best, redundant) products would ensure their collapse in the long run. In either case, the practical benefits for preliminary self-publishers passing their work products along to e-journals would be limited. Judging by current realities, legal e-journals would have no technological edge over self-publishers, would have access to no larger a potential audience, and might in some instances reduce the actual circulation of papers by demanding that would-be readers "register" or pay subscription fees. At bottom, the very concept of self-publication as a prelude to e-journal publication is a bit odd. One wonders whether its proponent, transported to the fifteenth century, would have advised legal scholars to have their works commercially-printed as a step towards having them copied by scribes,173 or (just as nonsensically) re-distributed by printers based in monasteries.
...the electronic law journal...is still a journal - as such, even in its "pure" variety, it is but a late twentieth century electronic imitation of a seventeenth century print publishing format....
[2.48] Altogether apart from preliminary self-publication, electronic legal journals themselves may offer scholars less than conventional wisdom currently suggests. At the moment, there are relatively few of them. Most of these are simply Web-based extensions of existing print publications which replicate all the faults and delays of the print-based editorial structure. Legal e-journals which have no independent print existence are more promising, but they too have critical limitations. Insofar as they can currently be counted on the fingers of one hand, relying on them for publication would require many legal scholars - especially those working in areas outside the "law and technology" field - to wait years before enjoying the benefits of the Internet. Moreover, most of the current "electronic only" law reviews have an Achilles heel: they are still student-edited. The one faculty-edited American electronic law journal (the Journal of Online Law, edited by Trotter Hardy) is not likely to have many counterparts until American law faculty start volunteering for editorial assignments in significant numbers, which is not likely to happen anytime soon. Even were it to happen someday, faculty editing would delay publication and inevitably would not be foolproof.174
[2.49] The greatest weakness of the electronic law journal, however, is that it is still a journal - as such, even in its "pure" variety, it is but a late twentieth century electronic imitation of a seventeenth century print publishing format which I suspect is fundamentally incompatible with its own electronic environment. As demonstrated by the Web in particular, that environment allows and already rewards ongoing revision of work product:175 Web authors who periodically revise, update and improve their Web sites tend to get more traffic and more return for their efforts than Web authors who do not. In the age of cyberspace, many scholars will want the same flexibility 176 not merely to attract attention and extend the intellectual "shelflife" of their work,177 but also to ensure that their words continue to be accurate representations of themselves and their ideas.178 Yet any legal e-journal which permitted legal scholars to revise their work at will would be committing institutional suicide: by surrendering editorial control, it would become a platform for self-publication in fact if not in name. Those legal e-journals which attempt to preserve their editorial integrity by requiring proposed changes to be approved in advance 179 may eventually find themselves no better off. If their policies do not end up alienating (and driving away) Neterate legal scholars trying to attract or hold on to readers by keeping their work current, they will impose huge burdens on editors trying with fixed amounts of manpower to review an ever-increasing number of change requests coming from an ever-increasing number of scholars. In this context, e-journals attempting to save themselves by providing electronic conveniences (in this instance, revisability) comparable or superior to those already enjoyed by self-publishers may only succeed in putting themselves out of business.
[2.50] Ultimately, I believe that legal e-journals (and electronic journals in general) are an evolutionary dead-end.180 They are publishing's "horseless carriages" archaic forms which attempt in their very name to reconcile the past and the future, but which serve neither well.181 Their comparative recognizability discourages complacent or unwitting legal scholars from seizing or even appreciating many of the exciting new publishing opportunities afforded by Internet technology. In this age of the Information Superhighway, however, each of us has a choice: we can update traditional modes of transportation, keep the carriage-makers going and eventually get run over, or we can get out of our conceptual rut, take control of our scholarship, and start building Ferraris.182
...e-journals...are publishing's "horseless carriages" - archaic forms which attempt in their very name to reconcile the past and the future, but which serve neither well.
[2.51] A fourth alternative, mooted if not discussed in detail by both Richard Delgado and William Ross (the latter offering his second option), would theoretically accept self-publication as a final rather than simply preliminary format for legal scholarship, but would only recommend it for certain types of scholarly material. Delgado's comments unfortunately offer little guidance as to what kind of articles he would consider fit for "occasional" self-distribution over the Internet. Ross is somewhat more specific, suggesting that papers with limited readerships, of only "current interest" (e.g. articles on pending or just-decided cases, or on legislative revisions) or otherwise having only a short shelflife might be well-suited to personal online dissemination.
[2.52] There is something to this notion of limited self-publication. For one thing, it implicitly recognizes that certain legal academics dealing with certain subjects in certain ways will likely be drawn to electronic self-publishing ahead of their colleagues.183 It also recognizes that Internet-based self-publishing is especially attractive for articles on "ephemeral" subjects that might lose much of their topical value while moving through the editing and printing stages of traditional journals. To limit self-publishing in the manner proposed, however, would be to miss most of its potential. As demonstrated earlier in this article (as well as in Last Writes?), all legal scholars can profit from the proposition, and the discussion of all subjects can be advantaged. The apparent "ephemerality" of a process moreover does not predetermine the "ephemerality" of its product. After all, paper-based printing was quite properly considered ephemeral in the scribal, parchment-oriented culture of the fifteenth century,184 but that hardly compromised print's future as the universal format of scholarly record.
[2.53] The fifth, final and most forward-looking alternative outlined in this collection of essays is that set out by Gregory Maggs. With a gracious nod to Last Writes?,185 he foresees that law professors will turn to self-publication for all sorts of legal scholarship; he nonetheless recommends that law reviews be retained in certain residual roles.186 In Maggs's view, law review staffers might carry on as Note writers, article reviewers, symposium organizers, and/or article editors. I agree with the first two of these proposals; indeed, I made them myself in Last Writes?,187 and I have already restated one of them here.188 Law reviews could certainly survive as collections of student writings. They might even survive as true student "reviews" of self-published faculty articles, performing that evaluative mission along with individual faculty readers (although one wonders what weight they would ultimately carry in that context). In both these scenarios, however, scholarly self publishing would still have led to the end of the law review "as we know it."189
Law reviews could certainly survive as collections of student writings. They might even survive as true student "reviews" of self-published faculty articles....
[2.54] I am less certain of the desirability or even feasibility of having law review staffers carry on either as organizers of symposia or as editors of ("to-be-self-published") articles. Bringing scholars together to discuss a related set of issues is certainly an important function in the contemporary legal academy (one which the editors of the Akron Law Review have in fact undertaken here), but the quality of the resultant scholarly conversation is often only as good as the judgment and the erudition of those who orchestrated it in the first place. Students may not be in the best position to select participants or even topics, just as they may not be in the best position to select ordinary articles. Eliminating the law review as a sponsor of symposia would furthermore not result in the demise of the symposium genre as a whole. In all likelihood, enterprising law faculty would continue to organize such "meetings of minds" much as they do now, soliciting specific colleagues to write on particularly-topical or significant issues (and sometimes publishing their contributions in edited books). Finally, I imagine that in a self-publishing universe, scholars would be brought together in other more efficient and satisfying ways. The possibility of attaching reader comments to electronically self-published papers 190 could to a certain extent turn every article into a symposium in itself, making student-sponsored dialogue superfluous. On a larger scale, scholars searching a central legal databank could instantly assemble collections of subject-specific self-published articles for themselves 191 which would be just as if not more substantively co-ordinated as many current symposia. It is also highly likely that future developments in Internet- and video-conferencing technology (building from today's listservs, MOOs and CU-SeeMe applications) will make it easy for scholars to organize a greater number of "live" academic gatherings on their own without third party assistance. The same technology, complete with electronic whiteboards and other worksharing devices, might even prompt legal scholars to step beyond the symposium format and write more papers in active collaboration with one another.192
[2.55] Having law review staffers stay on as editors of faculty prose is similarly problematic. In the first place, that proposal presumes that law review staffers would voluntarily continue to do the "dirty work" of legal publishing without having control over article selection or final presentation. Under these circumstances, most would probably abandon the law review office 193 and simply work as RAs, where they could have the advantages of both pay and direct supervision of their work (not to mention public acknowledgments and reference letters, the two incentives Maggs associates with law review service 194). In the second place, Maggs's argument in favor of continued law review editing assumes that an unsupervised law review staffer would do the same quality of editorial work as an RA hand-picked by and directly responsible to a completely independent self-publisher. To the extent that that assumption is debatable, law professors would be unlikely to avail themselves of the service. In the third place, Maggs's scenario does not take into account the likelihood that if it did prove attractive, relying on law review staffs as glorified secretarial pools would likely create backlogs of unpublished, unedited articles; student editors would then have to select some articles over others, which would informally give them much the same degree of control over publication as they enjoy at the moment. For many law professors, an "alternative" which would lead to such a result would be no alternative at all.
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[2.56] As in the three historical instances Hirschman considered in his own work, the "rhetoric of reaction" generated by my proposal to reform the existing law review system through the electronic self-publication of legal scholarship turns out, for the most part, to be a rhetoric of overstatement, misapprehension and mistake. None of the five theses so vigorously advanced by the skeptics - Denial, Perversity, Jeopardy, Futility, or Alternatives - ultimately withstands scrutiny. Instead of having no discernible benefits, as the Denial Thesis claims, electronic self-publishing turns out to have many. Instead of threatening to make things worse for legal scholars, as the Perversity Thesis claims, electronic self-publishing promises to make things better. Instead of imposing numerous costs on law professors, lawyers and law students, as the Jeopardy Thesis claims, electronic self-publishing imposes very few (and in some respects, none at all). Instead of being impossible to realize, as the Futility Thesis claims, electronic self-publishing appears to be quite feasible. Instead of being too radical a change, as the Alternatives Thesis claims, electronic self-publishing seems to be the only one radical enough to address and solve fundamental problems. For all these reasons, legal scholars should embrace electronic self-publishing with enthusiasm.
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