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* B.A. (Juris.) Oxford University, 1983; LL.B., Dalhousie University, 1984; LL.M., University of Toronto, 1985; LL.M., Harvard Law School, 1988. E-Mail: firstname.lastname@example.org; Web page: http://www.law.pitt.edu/hibbitts/. I am very grateful to my colleagues Peter Shane, Welsh White and Harry Flechtner, and to Paul Ginsparg (physics), Ron LaPorte (public health), Andrew Odlyzko (telecommunications) and David Rothman (Internet education), my interdisciplinary co-laborers in the vineyard of electronic scholarly publishing, for their helpful comments on a draft of this article. I would also like to thank my tireless research assistant, William Curley, for his many intellectual and practical contributions to this piece. Responsibility for the views contained herein, as well as for any errors or mistakes in interpretation is, of course, mine alone.
** Jerry A. Campbell, "Choosing to Have a Future", 24 Am. Libr. 560, 560 (1993)
1. Bernard J. Hibbitts, Last Writes?: Re-assessing the Law Review in the Age of Cyberspace, (Version 1.0, Feb. 5, 1996). A re-designed and graphically-enhanced edition of Last Writes? (Version 1.1, June 4, 1996) is now available. A slightly revised print version of Last Writes? appeared in 71 N.Y.U. L. Rev. 615 (1996).
2. "[I]ntellectuals were thrown into complete disarray by the arrival of a medium they did not understand . . . ." Martin Lowry, The World of Aldus Manutius: Business and Scholarship in Renaissance Venice 35 (1979).
3. Gutenberg himself started out as a goldsmith. In general "the printing industry [grew] up too quickly for the regulations which normally controlled medieval crafts to grow with it. Becoming a printer, wrote Erasmus acidly, was a great deal easier than becoming a baker. This freedom of access probably does much to explain the bewildering variety of people who were involved in printing . . . ." Id. at 8-9.
4. "[R]eaders with the necessary means could acquire sufficient manuscripts to satisfy their needs . . ." Rudolf Hirsch, Printing, Selling and Reading 1450-1550, at 14 (1967).
5. Supra note 2, at 27.
6. Johannes Trithemius, In Praise of Scribes 65 (Klaus Arnold ed., 1974).
7. Trithemius wrote: "[i]f you ask which texts monks are to copy, the answer is simple: whatever their superiors ask of them under obedience. It is for the abbot or prior to assign tasks to the individual scribe." Id. at 73.
8. Lowry, supra note 2, at 26.
10. "In relationships of patronage and dependence, the client would present manuscripts upwards, either as a bid for reward or an expression of gratitude, and would dutifully copy texts transmitted downwards, especially if they were composed or approved of by the patron." Harold Love, Scribal Publication in Seventeenth-Century England 179 (1993).
11. Trithemius, supra note 6, at 61.
12. James J. O'Donnell, The Pragmatics of the New: Trithemius, McLuhan, Cassiodorus at text accompanying n.21 (visited Aug. 30, 1996).
13. Curt F. Buhler, The Fifteenth Century Book 45 (1960).
14. See generally Love, supra note 10; J.W. Saunders, "The Stigma of Print: A Note on the Social Bases of Tudor Poetry", 1 Essays in Criticism 139 (1951); Daniel Traister, "Reluctant Virgins: The Stigma of Print Revisited", 26 Colby Q. 75 (1990).
15. In 1476, for instance, the Italian scholar Franceso Filelfo wrote to Cardinal Marco Barbo complaining that the Roman printer of his De Jesu Christi sacerdoti had corrupted it so much that it was incomprehensible. William Caxton, the first English printer, openly acknowledged his own technical limitations and humbly asked "theym that shal fynde faute to correcte it & in so doyng they shal deserue thankynges & I shal praye god for them." Buhler, supra note 13, at 50-51 (quoting Caxton).
16. Much of this material was associated with printings of classical love-poetry, especially the works of Ovid. In 1497, in an effort to stem the pornographic "tide", the Patriarch of Venice ordered two printers to remove woodcuts of "naked women, phallic deities, and other unclean objects" from the pages of a forthcoming edition of Metamorphoses. Such publications were deemed to be especially objectionable as they might be seen by children. Lowry, supra note 2, at 27, 33.
17. Buhler, supra note 13, at 47.
18. On the survival of literary patronage in seventeenth and eighteenth century England see Alvin Kernan, Printing Technology, Letters & Samuel Johnson 29-35 (1987).
19. "Copying a complete codex by hand was physically demanding and could require months of intensive labor by one or more scribes. Manuscripts occasionally allude to the copyist's plight . . . . In at least one monastery of the Middle Ages penances were imposed on scribes who were negligent in the performance of their duties: 130 genuflections to the monk who disregarded the correct spelling, accentuation, and punctuation of the manuscript he was copying, but only thirty for one who broke his pen in a fit of anger!" Barbara A. Shailor, The Medieval Book 19 (1991).
20. See, e.g., Hirsch, supra note 4, at 54; "[t]he establishment of a press was . . . expensive. Few monasteries had the connections to market the products of a press successfully. It is therefore easy to understand why their number was small and their output not significant when contrasted with the entire production of the period." It has also been suggested that "the mere act of setting up a press in a monastery or in affiliation with a religious order was a source of disturbance, bringing 'a multitude of worries about money and property' into a realm previously reserved for meditation and good works." Elizabeth L. Eisenstein, "From Scriptoria to Printing Shops: Evolution and Revolution in the Early Book Trade", in Books and Society in History 29, 34-35 (Kenneth E. Carpenter ed., 1983). On the (low) proportion of scribes who made the transition to print, see Sheila Edmunds, "From Schoeffer to Verard: Concerning the Scribes Who Became Printers", in Printing the Written Word: The Social History of Books, Circa 1450-1520 (Sandra L. Hindman ed., 1991) (noting, at 40, that "the number of identifiable professional scribes who were once engaged in making manuscript books and who subsequently went into printing would represent approximately 4 to 6 percent of the probable total number of printers who worked before 1500.").
21. Buhler, supra note 13, at 48.
22. A prominent exception to this "rule" was Abbot Trithemius himself, who (despite some of his comments on printing in general) had In Praise of Scribes printed in order to spread its ideas as far as possible. See Noel L. Brann, The Abbot Trithemius (1462-1516): The Renaissance of Monastic Humanism 148 (Heiko A. Oberman ed., 1981).
23. Perhaps not surprisingly, the commentators cover a spectrum of positions, and are therefore somewhat difficult to characterize as a whole. Howard Denemark and David Rier appear to be categorically opposed to the idea of electronic self-publishing. Tom Bruce is troubled by it. Henry Perritt sees it as an option that might precede, rather than replace formal law review publication. Richard Delgado doubts its workability as a general proposition, but thinks that "the idea of [occasionally] publishing one's work directly on the Internet is a fine one." Richard Delgado, "Eliminate the Middle Man?", 30 Akron L. Rev. 233, 233 (1996). William Ross believes that self-publishing would be appropriate only for scholarship dealing with ephemeral subjects, or otherwise having limited readerships. Trotter Hardy voices concerns, but describes himself as "sympathetic" and concludes his comment by saying that "I confess that I think that web publication will become the publication of the future, so my heart is with [Hibbitts]". Trotter Hardy, "Review of Hibbitts's Last Writes", 30 Akron L. Rev. 249, 254 (1996). Gregory Maggs - notably the youngest of the legal commentators, not to mention a former co-chair of the Harvard Law Review- feels that while law reviews may yet have an ancillary contribution to make to the production of legal scholarship, "self-publishing on the Internet will almost certainly become a reality." Gregory Maggs, "Self-Publication on the Internet and the Future of Law Reviews", 30 Akron L. Rev. 237, 237-38 (1996).
24. See Albert O. Hirschman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy (1991). Special thanks to Peter Shane for recommending this book to me.
25. Id. at 7.
26. It is not, however, the only such structure available. At a less specific level, the skeptics' case against electronic self-publishing could also be examined in light of the now-classic analysis of scientific resistance to "paradigm shifts." Thomas Kuhn, The Structure of Scientific Revolutions (2nd ed., 1970).
27. David Rier, "The Future of Legal Scholarship and Scholarly Communication: Publication in the Age of Cyberspace", 30 Akron L. Rev. 183, 200 (1996).
28. Unless, of course, you're not Danish. In this context it's interesting that Rier, who of all the contributors to the current collection is the one most opposed to electronic self-publishing, and in some ways the one most comfortable with the existing law review system (even if he would reform it in certain respects - see infra notes 156-59 and accompanying text), is a medical sociologist who does not have to publish in law reviews.
29. Bernard J. Hibbitts, Last Writes?: Re-assessing the Law Review in the Age of Cyberspace, (Version 1.1, June 4, 1996), paras. 2.15-2.27 [all particular references to "Last Writes?" in this article are to numbered paragraphs in Version 1.1, rather than to locations in the unpaginated Version 1.0; as regards any material quoted herein, the texts of Version 1.1 and Version 1.0 are identical]. Most recently, see "Symposium on Trends in Legal Citation and Scholarship", 7 Chi.-Kent L. Rev. 748 (1996).
30. Harold C. Havighurst, "Law Reviews and Legal Education", 51 Nw. L. Rev. 22, 24 (1956).
31. See, e.g., Harry T. Edwards, "The Growing Disjunction Between Legal Education and the Legal Profession", 91 Mich. L. Rev. 34 (1992); Michael J. Saks et al., "Is There a Growing Gap Among Law, Law Practice, and Legal Scholarship?; A Systematic Comparison of Law Review Articles One Generation Apart", 28 Suffolk U. L. Rev. 1163 (1194).
32. See infra Section II C.
33. "Self-publishing . . . enabl[es] scholars to present and control their textual signs." Jackie L. Hill MacLelland, A Rhetorical Process for Scholarly Self-Publishing 1 (1995) (unpublished Ph.D. dissertation, Texas Women's University) (on file with author).
34. Ironically (given the Internet's global scope), this may prove particularly valuable for scholars writing articles about subjects of local interest: in normal circumstances these pieces might have difficulty getting placed in law reviews seeking national readerships, and in some instances, they might not find an academic home at all. On the general value of this kind of work, see Howard Denemark, "How Valid if the Often-Repeated Assertion That There Are Too Many Legal Articles and Too Many Law Reviews?", 30 Akron L. Rev. 215 (1996).
35. The fact that under the present regime most legal articles - regardless of subject - will eventually find a home somewhere is cold comfort to authors who understand that all law reviews are not created equal, and that failing to write on topics attractive to the major reviews will almost certainly doom their work to remain unread and unrecognized.
36. "Arrangement in a self-published document in the information age demands that an entire document be carefully considered, ordered, and designed. In the information age, the total published piece must be perceived as not only the form in which a message is presented but also the message itself. In self-published documents, encoders' rhetorical considerations encompass the entire spectrum of writing and illustrating, as well as that of managing technology, publishing, printing and information." MacLelland, supra note 33, at 73.
37. This capacity should not, however, be used as an excuse to post material online that is still "raw" or unpolished. Unless there is an academically-legitimate reason for doing otherwise, a writer owes his earliest online reader what we would currently term a "publishable" piece (if he does not provide one, he should be publicly censured - see the discussion of quality control via reader comments, infra notes 46-48 and accompanying text).
38. Unlike publishers who wish to give only paying customers access to their published information, scholars (for the most part) want to have their ideas disseminated to as broad an audience as possible. See Stevan Harnad, "Implementing Peer Review on the Net: Scientific Quality Control in Scholarly Electronic Journals", in Scholarly Publishing: The Electronic Frontier 105 (Robin P. Peek and Gregory B. Newby eds., 1996) [hereinafter Scholarly Publishing] ("The scholar/scientist . . . wants to reach his peers' eyeballs so as to influence the contents of their minds; his interest is not in the contents of their pocketbooks.").
39. As regards the last of these, the benefits of electronic self-publishing obviously go far beyond saving legal scholars "the humiliation of the occasional rejection." Delgado, supra note 23, at 235.
40. While accepting that hypertext will avoid certain citational complexities, Trotter Hardy suggests that citation (and perhaps even the Bluebook itself) will survive in a Web-based publishing environment. Hardy, supra note 23, at 253-54. I'm not so sure. In a few circumstances Web authors might wish to make explicit reference to the source of a hypertext link in the text of one's own document, but in most instances I imagine that citation would be (and, to enhance document legibility, perhaps should be) implicit or embedded. For instance, instead of writing and highlighting "Ethan Katsh, "Rights, Camera, Action: Cyberspatial Settings and the First Amendment", 104 Yale L.J. 1681 (1995)" or some such technical formula designating a recent article by Ethan Katsh, authors would highlight a word or words in their text (perhaps quoting Katsh) which would then lead the interested reader directly to the relevant paragraph of Katsh's article. In this context readers would still be able to tell where they were going before they went, but that information would be yielded in some standard form by their browsers (today, for instance, Netscape would report the URL for Katsh's article if I passed my mouse over a hypertext link to it).
41. Thanks to the capacities of the Web, one might even envisage an interested reader re-posting an annotated article online as a highly particular form of publicly accessible reader comment. Some listserv e-mail postings already display this structure as writers quote and then systematically reply to specific points in a previous message. Far from being a rhetorical novelty, this type of document would in fact be the twenty-first century equivalent of the published "commentaries" (e.g., Coke on Littleton) that performed similar ancillary functions in law and other scholarly fields in the medieval and early modern periods. Might its development herald "the [re]birth of the reader"? See Laurence J. Victor, "Travel Guide to Cyberspace 2020: Simulated Instructions", 6 J. Contemp. Legal Issues 435, 457-58 (1995) ("Readers will attach comments and create links. Paths of readers will weave tours for others to follow. Champion readers will become as authors.").
42. The ability of readers to retain and manipulate copies of web-posted documents has led a few legal scholars (albeit none contributing to this collection) to suggest that Web-based self-publishing might prove to be a bonanza for plagiarists and pirates. However sincere these concerns, they overlook the critical fact that the Web also makes detection of unauthorized uses easier than ever: "Just type into one of the many search services a couple of sentences of a [paper], and you will be able to discover any pirated [or plagiarized] version of the piece." "The Property of the Mind", The Economist, July 27, 1996, at 57, 59. It might also be mentioned that electronically self-published articles are no more vulnerable to plagiarizing and pirating than articles posted to the Web by established journals.
43. "One of the most effective of all the visual elements, color is expensive to produce on the written page. . . . [But color] affects people physically. Red raises blood pressure, increases appetite and raises body temperature. Pink can have a calming effect, as can green. . . . Color also . . . can serve to connect related ideas within a text (and across multi-volume works) in some discourses. . . ." MacLelland, supra note 33, at 121.
44. Numerous studies have suggested that multimedia presentation dramatically enhances recall. One recent survey suggested that although people retain only 10% of what they read, they retain 20% of what they hear, and 30% of the images they see. Using text, speech and images together is even more mnemonically effective. Victor Dwyer, "Surfing Back to School", Maclean's Aug. 26, 1996, at 42.
45. "Because it places more emphasis on sounds and images, multimedia publications offer dyslexic readers another avenue for learning. . . . And younger [readers], raised on television and MTV, are more adept at acquiring information visually and aurally than their parents. For coming generations, multimedia is a natural." Rob French, "Where is Publishing Headed?", Adobe Mag., May/June, 1996, at 34, 37. Even more fundamentally, multimedia presentation might make formal scholarship (and legal scholarship in particular) more attractive, more engaging and more fulfilling for members of gender, racial and ethnic groups which because of prejudice, historically-limited educational opportunities and comparatively-low literacy levels have been marginalized in the dominant print (i.e. text-based) culture of the academy. See generally Bernard J. Hibbitts, "The Interface is the Message", Wired, Sept. 1996, at 130.
46. "Instead of being dead-on-arrival, every article we write on the Web can be a living creature, capable of interactivity, growth and evolution." Hibbitts, supra note 29, at para. 4.6. See also Abdul Paliwala, "From Academic Tombstones to Living Bazaars: The Changing Shape of Law Reviews", 1 J. Info., L. and Tech. (Jan. 31, 1996).
47. Might this "dialogue and debate" degenerate into the chaos of some electronic bulletin boards and listservs? Evidence from established groups seems to suggest that if the topic of debate is limited to, say, the virtues of a specific scholarly article (as opposed to the contents of an entire field or sub-field, with no pre-set agenda), discussion is much more likely to be responsible, on point, and (ultimately) useful. See generally Andrew Odlyzko, Untitled (visited September 9, 1996); Andrew Odlyzko, "Tragic Loss or Good Riddance? The Impending Demise of Traditional Scholarly Journals", 42 Int'l J. Hum.-Computer Stud. 71, 91-93 (1995).
48. "This [dialogue] could continue indefinitely, even a hundred years after the initial submission . . . .A research paper would be a living document, evolving as new comments and revisions were added. This process by itself would go a long way toward providing trustworthy results." Andrew Odlyzko, "Tragic Loss or Good Riddance? The Impending Demise of Scholarly Journals", in Scholarly Publishing, supra note 38, at 91, 97.
49. See generally Paul Ginsparg, First Steps Toward Electronic Research Communication (visited Sept. 9, 1996).
49a. Nicolas Constantin Burbeles and Bertram C. Bruce, This is Not A Paper
50. As Trotter Hardy reminds us in this very collection, "We are no longer a legal community of common law courts, gradually evolving, in piecemeal fashion, over the course of decades. We are a world of statutes and regulations, coming out with startling speed." Hardy, supra note 23, at 252. See also Frank H. Easterbrook, "Comment: Discovery as Abuse", 69 B.U. L. Rev. 635, 644 (1989) ("By most accounts, the pace of legal change (legislative and judicial) has never been greater."). In the age of cyberspace, law is likely to change even faster. See also Robert A. Stein, "The Future of Legal Education", 75 Minn. L. Rev. 945, 963 (1991) ("[N]etworks of scholars and practitioners working in common speciality areas and joined by computers will immediately share knowledge about the use and success of novel legal theories and procedures, vastly increasing the pace of change in the law.").
51. Given the shortcomings of contemporary indexing, an article printed in one journal responding to an article that initially appeared in another may not be found by the author of the first piece or other interested readers until long after the response is printed.
52. Publishing delays have the same consequences in science. See David Green, "Death of an Experiment", Int'l Sci. and Tech., May 1967, at 83 ("No one argues a point in a journal if it takes a year from the time of submission of a manuscript to the time of publication.")
53. See generally id. at 84 ("Anything which leads to or accelerates the solution of problems is in the best scientific interest.").
54. In this context, psychologist Stevan Harnad has suggested that the pace of scholarly exchange over the Internet will approach the "speed of thought": "Whatever ideas could have been generated by minds interacting at biological tempo are forever lost at paper-production tempos. Scholarly skywriting [Harnad's term for the electronic dialogue I discuss in the text] promises life for more of these potential brain children, those ideas born of scholarly intercourse at skyborne speeds, progeny that would be doomed to stillbirth at the earthbound speeds of paper communication." Harnad, supra note 38, at 114. In the physics preprint archive, "everyone mentions how beneficial it has been to get constructive criticisms from the most interested readers within days (or hours) . . . ." E-mail from Paul Ginsparg to Bernard Hibbitts (Sept. 30, 1996).
55. "[T]exts produced through on-line conferences reflect a more authentic scholarly dialogue: distinctions between authors and readers become blurred as participants function in both roles, their voices represented as distinct even as their particular contributions get woven into synthetic and emergent products." Teresa M. Harrison & Timothy Stephen, "Computer Networking, Communication and Scholarship", in Computer Networking and Scholarly Communication in the Twenty-First Century University 3, 17 (Teresa M. Harrison and Timothy Stephen eds., 1996) (hereinafter Computer Networking).
56. See generally Hirschman, supra note 24, at 11-42.
57. Henry Perritt also advances a form of the Perversity Thesis in claiming that "implementation of Professor Hibbitts' proposal is likely to make the quality of the Web worse, and to exacerbate the most important of the problems prompting criticisms of student-edited law reviews poor quality." Henry Perritt, "Reassessing Professor Hibbitts' Requiem for Law Reviews", 30 Akron L. Rev. 255, 255 (1996). In this article, however, I will consider the quality control point under the rubric of the Jeopardy Thesis (i.e. as a specific "cost" to be incurred), which is how the majority of the skeptics approach it.
58. Hardy, supra note 23, at 250.
59. The time involved will depend on what is meant by "transition." Using hypertext and multimedia as technical tools in traditionally-styled articles (e.g., Last Writes?) is but the first step in the process. Re-organizing scholarly "writing" in a way which overtly favors hypertext and multimedia is the second step. Re-conceiving the nature of law in light of what hypertext and multimedia facilitate and reveal is the third step. So far, only a very few legal scholars have taken the first step, none (to my knowledge) have as yet taken the second, and only a handful are even contemplating the third. For suggestive but still very preliminary "third-step" analyses, see Ronald K. Collins & David M. Skover, "Paratexts", 44 Stan. L. Rev. 509 (1992); Bernard J. Hibbitts, "Making Motions: The Embodiment of Law in Gesture", 6 J. Contem. Legal Issues 51 (1995); Ethan M. Katsh, Electronic Media and the Transformation of Law (1989); Ethan M. Katsh, Law in a Digital World (1995).
60. Hardy, supra note 23, at 250.
61. "One shudders to think what these authors would make of the multi-dimensional organizational schemes facilitated indeed required by hypertext!" Id.
62. See supra note 45.
63. See generally Katsh, supra note 59.
65. See generally Hirschman, supra note 24, at 81-132.
66. In the late fifteenth century, Abbot Trithemius astutely reminded his readers that the manuscript copyist "does not suffer constraint under contract with a printer, but is free, and by his office will take pleasure in the sweetness of his liberty." See Brann, supra note 22, at 157.
67. "[P]rinting generally neglects orthography and various other types of embellishments characterizing [manuscript] books." Id. at 158 (quoting Trithemius).
68. See supra Section II A.
69. Incorrectly, he also claims that I misspelled "subtly" as "subtlely." Webster's Third New International Dictionary indicates that the latter spelling is an acceptable variant.
70. Specific errors in the prototype Web version of Last Writes? should not be necessarily associated with electronic self-publishing as a genre, which can be organized to avoid them. See infra note 82 and accompanying text.
71. Search of WESTLAW, TP-ALL file (Apr. 5, 1996). When I obtained this result I initially suspected that the high figure was the product of inputting errors at West, but in every instance when I checked the database against the print original, the error was there as indicated.
72. See, e.g., 61 U. Chi. L. Rev. 1479, 1533, n.54 (1994); 83 Geo. L.J. 525, 553 (1994); 95 Colum. L. Rev. 1466, 1482 (1995); 71 Ind. L. J. 673, 726 (1996); 46 Stan. L. Rev. 1487, 1539 (1994); 80 Va. L. Rev. 403, 449 (1994); 92 Mich. L. Rev. 1953, 1957 (1994). Article titles and authors have been omitted to protect the unfortunate.
73. Rosa Ehrenreich, "Look Who's Editing", Lingua Franca, Jan./Feb., 1996, at 58, 60.
74. Choe v. Fordham Univ. Sch. of Law, 920 F.Supp. 44 (S.D.N.Y. 1995).
75. William Ross, "Scholarly Legal Monographs: Advantages of the Road Not Taken", 30 Akron L. Rev. 259, 264 (1996).
76. Id. at 263-65.
77. Given that law reviews usually provide authors with only 50 free reprints, this "self-distribution"/"self-publicization" practice can get rather expensive. In this context legal scholars are not only doing without a "value" allegedly added by law review publication, but they are literally paying for its absence.
78. "Journals help to 'create [a] . . . sense of unity among scholars by connecting people . . . isolated geographically, politically, economically.' They also provide a sense of community where authors share ideas and readers see what their peers are working on." Marcel C. Lafollette, Stealing into Print: Fraud, Plagiarism and Misconduct in Scientific Publishing 77 (1992).
79. Take, for instance, articles appearing in the Law and History Review. "Medievalists" are likely to read its articles on English legal history, and "Americanists" are likely to read its American oriented articles. The co-presence of both types of article in a single journal will in practical terms be irrelevant to many, if not most members of both groups.
80. Readers of the Law and History Review and its counterpart, the American Journal of Legal History, will therefore tend to assume that they are "keeping up" with the legal history field. This is certainly true to some extent, but the very existence of these publications, combined with the fact that good articles on legal history are regularly published in other journals in law and in history (where they can easily be overlooked), inevitably distorts the prevailing perception of where exactly "the field" is. Precisely because of this, the organizers of the H-Law electronic discussion list for legal history have begun to post references to relevant articles not appearing in the primary legal history journals. See H-Law: Law Journals - Table of Contents (visited Oct. 24, 1996).
81. As initially advanced in Last Writes?, my electronic self-publishing proposal was designed to allow legal scholars to sidestep law review editing; I never meant to suggest that editing per se was undesirable or unnecessary.
82. It almost goes without saying that absent the "net" of law review staffs, electronic self-publishers will also be more careful in editing their own work. To this extent, suggestions that self-published scholarship will resemble the less-than-editorially-perfect drafts of work that often arrive in today's law review offices are off the mark; they fail to recognize that eliminating the law reviews would not merely remove an element of the current editorial process, but would change the entire editorial equation.
83. Although most legal academics are still unaware of them, these have been on the market since 1986; their quality has improved considerably since then, and is continuing to improve. See Mark J. Welch, "Software Reviews", 1 High Tech. L.J. 527 (1986).
84. A somewhat more speculative variation on one or more of these strategies might involve the eventual conversion of existing law school "word processing centers" into in-house line-editing and bluebooking operations (albeit probably staffed by persons hired from editorial as well as secretarial backgrounds). Arguments in favor of this include the increasing superfluity of traditional word-processing in an electronically more sophisticated workplace, and the convenience of having rote editing and formatting functions assigned to trained long-term employees rather than to transient students. Arguments against the notion include the cost to students of altogether removing them from the editorial process and the risk of occasional delays in publication when multiple faculty members seek editorial and formatting assistance at the same time.
85. See Hardy, supra note 23, at 250-51.
86. See supra note 29, at para.4.10.
87. In Last Writes? I referred to this central databank as an "archive." On reflection, I prefer the former term, as the root metaphor of a "bank" suggests that the central site holds objects that (thanks to revisions and, as we shall see infra, comments) are dynamic and will increase in value over time, rather than objects that are finished and are put away solely for preservation.
88. A regular e-mail notification service might be the electronic equivalent of the present law review "issue" insofar as many legal scholars use those for notification more than for reading. On the importance of the "issue" concept, see Thomas Bruce, "Swift, Modest Proposals, Babies, and Bathwater: Are Hibbitts's Writes Right?," 30 Akron L. Rev. 243, 246-47 (1996).
89. To the (limited) extent that legal journals provide their readers with a sense of "community" (see supra note 78), "community" in a self-publishing system would be (re-)created by the dynamics of the self-publishing enterprise; on a day-to-day basis, a given legal scholar's "community" would be the readers who commented on a particular piece, and the authors of those other pieces who have chosen to hypertextually link their own work to it. Ultimately, a given self-publishing legal scholar might belong to multiple self-generating communities of this sort, rather than having to adopt (not to mention having to pay for membership in) the relatively artificial communities provided by journal subscription lists.
90. See, e.g., Rick Hauser, Net Watch Top Ten Intelligent Agents/Information Agents (visited Sept. 2, 1996): "Good agents will allow people to spend less time searching for information and more time utilizing or analyzing 'good' information that is 'auto-retrieved'." In a sense, scholarly journals are very dumb (i.e. non-programmable, insufficiently-selective) "intelligent agents" in their own right.
91. The physics preprint archive at Los Alamos will shortly be duplicated at 20 mirror sites all over the world. E-mail from Paul Ginsparg to Bernard Hibbitts (Sept. 30, 1996).
92. "[T]he HD-ROM recording technology, developed at Los Alamos [National Laboratory, the site of the pre-print physics archive], can attain storage densities over 100 times those of current CD-ROMs, and, by using materials such as stainless steel or iridium, can guarantee stability for tens of thousands of years, and provide resistance to fire water damage, rats, and other disasters that can destroy paper data." Andrew Odlyzko, On the Road to Electronic Publishing (visited Sept. 2, 1996). See also Andrew Treloar, Scholarly Publishing and the Fluid World Wide Web (visited Sept. 2, 1996): "The durability of Web documents is unknown, but there are no technological reasons for their life to be limited in any way."
93. Hieros Gamos Legal Publication Database (visited Aug. 30, 1996).
94. Welcome to Web-Cite (visited Sept. 2, 1996).
95. The technical basis of current Internet citation - the Uniform Resource Locator, or URL - stands in need of revision. It locates material not by its inherent content characteristics, but rather by its specific physical location on the Net. As Clifford Lynch explains, "[t]his is like citing a printed work by referring to the holdings of a specific library, stored in a specific place in the stacks of that library." Clifford A. Lynch, "Integrity Issues in Electronic Publishing", in Scholarly Publishing, supra note 38, at 136. The consequences of this system are obvious: move a file to another location, and it is "lost" until its new URL is determined and/or existing hyperlinks to it are corrected. By itself, however, this somewhat awkward arrangement need not undermine my proposal for the co-ordinated electronic self-publication of legal scholarship. In the short term, URL changes can be publicly reported and "follow-up" links to new sites provided by Web posters (as is done already); in the long term, the URL system as a whole will likely be replaced by an alternative, "portable" system of citation centered on so-called "URN"s (Uniform Resource Names) or "URC"s (Uniform Resource Characteristics). See generally Clifford A. Lynch, "Uniform Resource Naming: From Standards to Operational Systems", 20 Serials Rev. 39 (Winter 1994); Treloar, supra note 92.
96. As of this writing (September 2, 1996), it is unfortunately (and perhaps ironically) impossible to trace Trotter Hardy's own Journal of Online Law from its original site on the Cornell server to its new site at William and Mary (on the re-location and its problematic consequences for a hypertext connection in Version 1.0 of "Last Writes?", see Hardy, supra note 23, at 257). Not only is there no "follow-up" link on the Cornell site, but there is no mention of the move, leaving visitors unaware that the old site has been superseded.
97. See, e.g., Delgado, supra note 23, at 235 ("Internet publishing could easily wind up like TV, with a mass of indigestible material with a few gems thrown in.").
98. It is noteworthy in this connection that law is the only discipline in which students are given this kind of academic authority. The thought of even Ph.D. candidates in the Arts and Sciences (many with 5-10 years experience in their specific disciplines) overseeing scholarly publication in their respective fields would be considered preposterous.
99. A number of commentators in the present collection acknowledge this point. See e.g., Hardy, supra note 23, at 251 ("students are often not qualified to assess an article's merits or contribution to the field"). See also Ross, supra note 75, at 262, discussing (in light of his own experience as a legal historian) student difficulties in determining whether a submitted article makes a unique contribution to the legal literature or has been "pre-empted" by an article published elsewhere ("one law review editor informed me . . . that my 38-page article on the legal career of John Quincy Adams was pre-empted by another article on the very same subject. When I asked for the citation to this supposed pre-emptive piece, the editor directed me to a two-page ABA Journal article about the legal career of Adam's father, John Adams.").
100. To the extent there is a discernible general difference between articles in top-ranked student-edited journals and articles in bottom-ranked student-edited journals it must be remembered that even in a multiple-submission system, publication fora are to some degree self-selected by law faculty. In other words, articles in the Harvard and Yale law reviews may on average be better than articles appearing in the law review of ***** law school, but that's because law professors are more likely to send their best (or at least more) of their work to the former journals, and only their less impressive products (if any) to the latter.
101. On editorial arbitrariness, see, e.g., Steve Fuller, "Cybermaterialism, or Why There Is No Free Lunch in Cyberspace", 11 Info. Society 325, 331 (1995) ("[A]ny intellectually current editor will know to whom manuscripts should be submitted, depending on whether the editor wants a favorable or unfavorable . . . assessment.").
102. Malcolm Atkinson, "Regulation of Science by Peer Review", 25 Stud. Hist. and Phil. Sci. 147, 155 (1994) ("In reality the cloak of anonymity, concealing uncertain 'peer' status and possible vested interest, confers licence to indulge whims and express opinions that the referee might not care to defend publicly."). See also Alexander Berezin at el., "Lifting the Pernicious Veil of Secrecy", New Scientist, Feb. 11, 1995, at 46 ("in all others areas of human endeavour [sic] (the arts, sports, politics) criticism, even the most harsh, is invariably open."). In this connection it is curious that anonymous peer review has taken hold at all in a legal community where formal allegations must be made by identifiable sources before being considered credible in court.
103. See Mary Biggs, "The Impact of Peer Review on Intellectual Freedom", 39 Libr. Trends 145, 153-55 (1990) (discussing reviewer partiality based on gender difference, politics, institutional affiliation, general intellectual perspective, and career considerations).
104. See, e.g., Michael E. Peskin, Reorganization of the APS Journals for the Era of Electronic Communication (visited Sept. 2,1996) ("this system is prone to breakdown . . . . [J]ournals often publish incorrect papers, which we uncover in compiling bibliography, in answering our students misperceptions, and in refereeing new papers based on these results."). Multiplying the number of reviewers in the hopes of reducing the likelihood of error does not necessarily solve the problem. A former editor of the New England Journal of Medicine conducted a study which revealed that the possibility of two different referees agreeing was only slightly better than chance. See Benjamin D. Singer, "The Criterial Crisis of the Academic World", 59 Soc. Inquiry 127, 133 (1989). A former editor of a Canadian historical journal encountered an even more concrete difficulty at one point: "I sent [a manuscript] out to two well-published scholars whom my journal had dealt with before. One replied that the manuscript was the best thing he had ever read on the subject . . . . The other reader replied that the manuscript was of such poor quality that it would not even be acceptable as a chapter in a mediocre MA thesis." Brett Fairbairn, "The Present and Future of Historical Journals", 27 J. Scholarly Publishing 59, 62 (1996).
105. See, e.g., Singer, supra note 104, at 133 ("there is a constant overload of papers and too few reviewers available . . . the best reviewers often are overloaded and refuse to take on additional assignments so that, by default, persons with little experience may determine what is published.").
106. Examples from the sciences are disconcertingly-legion. "The work of S.A. Berson, MD, and Yalow on radioimmunoassay, which . . . eventually led to a Nobel Prize, was initially rejected for publication . . . . Requests for funding for research on in vitro fertilization were repeatedly turned down by the peer review process. Steptoe and R. Edwards, Ph.D., funded the research personally and as everyone knows it ended in practical success." David Horrobin, "The Philosophical Basis of Peer Review and the Suppression of Innovation", 262 J. Am. Med. Ass'n 1438, 1440 (1990) (listing 16 other instances). See also Berezin, supra note 102, at 46 ("[I]n the 1960s the Canadian chemist John Polyani had his paper on molecular reactions rejected by Physical Review Letters as 'having no scientific interest'. . . . [I]n 1986 he won a Nobel Prize for Chemistry for the work."); Robert Matthews, "Storming the Barricades", New Scientist June 17, 1995, at 38, 40 ("Brilliant but unorthodox papers can be rejected for years, a fate that famously befell the work of American biologist Lynn Margulis on the origin of eucaryotic cells in the late 1960s, and the American theorist Mitchell Feigenbaum's seminal work on chaos theory ten years later.").
107. For instance, the "prestigious" New England Journal of Medicine sometimes prints studies panned by both its assigned reviewers. Neal B. Freeman, "Peer Review and Its Discontents", Weekly Standard, Aug. 26, 1996, at 29.
108. "Re-engineering Peer Review", The Economist, June 22, 1996, at 78, 79.
109. Singer, supra note 104, at 127. According to Nobel prizewinner Rosalind Yallow, "There are many problems with the peer review system. Perhaps the most significant is that the truly imaginative are not being judged by their peers." Id. at 132.
110. Richard Smith, the editor of the British Medical Journal, "[says] that only 5% of what peer-reviewed journals publish is credible, the rest being 'rubbish'." Lawrence K. Altman, "The Inglefinger Rule, Embargoes and Journal Peer Review: Part I", 347 Lancet 1382, 1385 (1996).
111. See, most recently, J. Scott Armstrong, "We Need to Rethink the Editorial Role of Peer Review", Chron. of High. Educ., Oct. 25, 1996 at B6 (based on J. Scott Armstrong, "Peer Review for Journals: Evidence on Quality Control, Fairness and Innovation", Sci. & Engineering Ethics (forthcoming, 1997)).
112. See, e.g., Freeman, supra note 107, at 29; "Re-engineering", supra note 108, at 78.
113. For example, "peer review became the standard in biomedical journals in the English-speaking countries and at least some places in continental Europe, such as the Netherlands and Switzerland, not long after World War II . . . ." John C. Burnham, "The Evolution of Editorial Peer Review", 263 J. Am. Med. Ass'n 1323, 1327 (1990).
114. In a more recent context, it's been noted that "the fundamentals of quantum mechanics, organic synthesis and DNA structure managed to be discovered without the blessing of peer review." Rustum Roy, "Alternative to Peer Review?", 212 Sci. 1338, 1338-39 (1981).
115. James M. Banner Jr., "Preserving the Integrity of Peer Review", 19 Scholarly Publishing 109, 110-11 (1988).
116. Most modern scholarly journals are commercial enterprises; peer view supports them economically insofar as it reassures their publishers that they are printing a "quality" product that will be bought by readers. Without peer review, publishers are afraid that they might print "bad" articles which would lead them to lose their reputations and their paid subscribers. See generally id. at 110. In this connection it is interesting to note that what is often credited as the first instance of modern peer review was undertaken in 1752 when the Royal Society of London assumed fiscal responsibility for its Philosophical Transactions. David A. Kronick, "Peer Review in 18th-Century Scientific Journalism", 263 J. Am. Med. Ass'n 1321 (1990).
On the basis of these points and observations one might frame the following "economic theory" of peer review: the incentive for pre-publication peer review rises with the cost of (i.e. financial risk assumed in) publishing scholarship. Conversely, as cost (and risk) decreases - say, with Internet self-publishing - the incentive for pre-publication peer review does likewise.
117. "[A] [further] historical reason for disciplining scientific communication was to ensure that the scientists' aristocratic patrons were not necessarily confused or offended. The aristocrats supported scientific societies in order to be amused, edified, and, in some cases, technically empowered. Peer review instituted the decorum needed to persuade patrons that their money was well spent." Steve Fuller, "Cyberplatonism: An Inadequate Constitution for the Republic of Science," 11 Info. Society 293, 299 (1995).
118. In other words, peer review essentially allows academic editors to "pass the buck" of responsibility for not publishing a given paper to a set of anonymous colleagues. As a result, editors can avoid becoming the objects of personal resentment and recrimination when the volume of submitted scholarship in their (sub)field grows to the point where they cannot accept all submissions. See Fuller, supra note 101, at 331 ("[I]f enough of the right mix of referees are chosen, the editor can hide his or her hand in the process entirely.").
119. Contrary to what David Rier seems to think, there is no reason to presume that these pre-circulation controls would be abandoned in a self-publishing system. See Rier, supra note 27, at 208-10. Indeed, there is reason to believe that they would become more important than ever (along, perhaps, with such high-tech variations as "trial-ballooning" on electronic discussion lists). For a testimonial to the effectiveness of pre-circulation quality control by colleagues in particular, see Ross, supra note 75, at 264. ("I found, for example, that my colleague and fellow legal historian David J. Langum offered a far more detailed and useful critique of my legal history books than did any [peer] reviewer of the books. One's faculty colleagues, of course, could just as easily critique a law review article or a self-published work.").
120. "Attachment" might take place in several ways. As a start, electronically self-publishing legal scholars might manually attach e-mail responses to their own work (see, for instance, the Reader's Forum section of Last Writes?, (Version 1.1, June 4, 1996) ). Eventually, the organization or institution providing the central databank for self-published legal scholarship could maintain a separate database for comments, linked from any given paper, but removed far enough from it technically to ensure that authors could not manipulate or illegitimately "filter" comments posted. It has recently been suggested that to facilitate dialogue, a comments database should actually become a general feature of the Web, in effect allowing any user to add a comment to any web document; those comments could then be viewed (or ignored) by other users at their discretion. See Misha Glouberman, Adding Comments to the Web (visited Sept. 7, 1996).
121. As Tom Bruce points out elsewhere in this Special Issue, readers might also rule on the merits of an electronically self-published piece by including it on lists of "recommended papers" posted on their own web pages. Bruce, supra note 88, at 246. This has already begun to happen (indeed, I included a number of such lists on my own homepage when I posted that in January 1996) but, it is not likely to be as rigorous or as informative to other readers as a system of directly-appended reader comments.
122. Electronic publication "promises to make it evident when a paper is of utter inconsequence to the community by spawning no reactions, or hostile and nonconfirming ones." Robert Silverman, "The Impact of Electronic Publishing on the Academic Community", in Scholarly Publishing supra note 38, at 55, 63. See also Gary Taubes, "Peer Review in Cyberspace", 266 Sci. 967 (1994) ("[If no comments at all are attached to a paper] there can be only two reasons. Either nobody cared to read it, or nobody cared to comment positively. In either case, it's either wrong or not even wrong, which for our purposes is equivalent." (quoting Paul Ginsparg)).
123. See Rier, supra note 27, at 208.
124. Ann C. Schaffner, "The Future of Scientific Journals: Lessons from the Past", 13 Info. Tech. and Libr. 239, 243 (1994) (noting that falsification of raw data generally cannot be detected in the peer review process).
125. The project was terminated after the editors of five prominent biomedical journals agreed not to publish papers previously circulated within the IEGs. The journal editors cited their concerns about dual publication, copyright infringement and misunderstanding of non-traditionally published results. None of these arguments was justified, however; in practice, they hid "the fact that the editors were apprehensive that the status and prestige of the journals would be downgraded if another agency (IEG) were distributing to its members, from six months to a year earlier than the journals, the very papers which would eventually appear in the journals . . . ." Green, supra note 52, at 86.
Law review editors contemplating a similarly-prohibitive strategy in the face of electronic self-publishing of legal scholarship might usefully reflect on their institutional raison d'être: is it to serve the legal and academic communities, or is to serve themselves? Fortunately, the editors who have considered this question thusfar have chosen the former interpretation: see, for instance, the editors' note to Bernard J. Hibbitts, "Last Writes? Re-assessing the Law Review in the Age of Cyberspace", 71 N.Y.U. L. Rev. 615, 616 n.** (1996) ("The New York University Law Review has always been mindful of its role in shaping legal discourse and its continuing obligation to be responsive to the changing legal environment . . . While our traditional publication policy has been to accept original works that have never been published, an exception was made for Professor Hibbitts' [electronically self-published] article . . . . Our print publication of the Article reflects . . . the continuing commitment of the Law Review to extend the range of legal discourse." ).
126. Green, supra note 52, at 83.
127. E-mail from Paul Ginsparg to Bernard Hibbitts (Sept. 30, 1996). See also Ginsparg, First Steps, supra note 49 ("Some members of the community have voiced their concern that electronic [self-]distribution will . . . encourage dissemination of preliminary or incorrect material . . . [But] the electronic form once posted to an archive is instantly publicized to thousands of people so the embarrassment over incorrect results . . . is, if anything, increased."). Skeptics have suggested that the high quality of the physics preprints may be due to the fact those papers are ultimately destined for the formal physics journals, and that their authors have simply "internalized" the control standards of those publications. If a professional community has truly internalized control standards, however, nothing should happen if the agent of control (i.e. the journal structure) is actually removed.
128. This scheme of numerical ranking (and searching by rank) was originally suggested for electronically-published articles in the sciences, and has recently been proposed for adoption (on an experimental, voluntary basis) in the physics preprint archive. See Richard C. Roistacher, "The Virtual Journal", 2 Computer Networks and ISDN Sys. 18, 120 (1978); Taubes, supra note 122. Applied to law, such a system could theoretically become very sophisticated: a reader might be able to request an article's overall rank, its ranking by specialists in a particular sub-field (using, for instance, AALS lists), its ranking in specific aspects (quality of argument, depth of research, originality, etc.), its ranking over certain periods of time, its ranking by practitioners or academics in associated disciplines, etc.
129. In a variant on this system, readers might even rank the comments of other readers; this would allow later, interested viewers of an article to make intelligent selections from the mass of responses that might accumulate over time. See generally Glouberman, supra note 120.
130. Rier, supra note 27, at 204 ("[P]rofessors, especially those not yet tenured, can ill afford to 'opt out' of a game that determines their professional fate.").
131. This does not make student editing and selection of articles any less problematic under the present system, however. Even if students do not necessarily control how professors are formally evaluated, they do largely control how many people see a particular article (e.g. a Harvard selection guarantees a wide audience) which for scholarly and overall career purposes is just as bad if not worse.
132. See supra note 121.
133. Cf. Rier, supra note 27, at 206.
134. Witness the scathing comments from former law review staffers from Georgetown, quoted in Last Writes?, supra note 29, at para. 2.23. In a recent discussion of the value of law reviews on the law student newsgroup bit.listserv.lawsch-L, a law review student from an "elite" eastern law school analogously suggested that "the duties of a journal member could be performed by a chimpanzee of average intelligence." "Re: Law Review, how is it run at your school", bit.listserv.lawsch-L (Sept. 18, 1996). Not surprisingly, many law students doing this sort of work don't like it very much: in the words of a disgruntled law review student from Stanford, "[v]ery few people seem to enjoy law review as an activity. Most see it as purely instrumental . . . ." Confidential e-mail to Bernard Hibbitts, Oct. 24, 1996. In these circumstances, a significant number of good law students are actually foregoing the opportunity to serve on law reviews. See "Re: Law Review, How Is It Run at Your School", bit.listserv.laswch-L (Sept. 18, 1996) (law student stating from personal experience that "many students with high grades do not even try out for law review because they think the chores of law review are not worth their time.").
135. As early as 1949, Harvard law professor Warren Abner Seavey complained that "from the standpoint of the school it would be better if every other man on the [Harvard Law] Review was a low C man if more poor men could do the kind of work that is done by the Review. The Review men need the training least of all. The Review might go to hell, but from the standpoint of education it would be better if half your men were selected from those who got seventy or below, or by lot." Eleanor Kerlow, Poisoned Ivy: How Egos, Ideology and Power Politics Almost Ruined Harvard Law School 21 (1994) (quoting Seavey). Expansion of staffs and the proliferation of "spin-off" law reviews have recently extended the base of student participation at many American law schools but, at most, "law review" remains a limited opportunity.
136. A prototype for this sort of publication is Cornell's liibulletin-ny [Legal Information Institute Bulletin - New York] service, started in the Fall of 1995: second and third year law students write case comments on significant decisions of the New York Court of Appeals and make them available to interested readers over the Web and by e-mail.
137. This would be especially true under my internalized "value added" system, in which student RAs would do editorial work under direct professorial supervision. See supra Section II.C.1. Even under the current system, see "Value of Law Reviews", bit.listserv.lawsch-L (Nov. 11, 1995) (law student "not convinced that [law reviews] do much to improve research and writing skills, at least in comparison to other activities, e.g., . . . working as a research assistant for a professor.").
138. There is, however, evidence to suggest that some employers do not value law review membership as much as they used to, in part because of how law review staffers are now selected at some schools. For instance, a law review student at Stanford recently told me that despite what he and many other law review members thought going in, "not many interviewers seem to be impressed by law review. This is probably explained by the fact that [at Stanford] grades play no role in law review membership; a writing competition determines membership." Confidential e-mail to Bernard Hibbitts, Oct. 24, 1996.
139. "If you are on the law review, employers may assume you are either one of the brightest in your class, or an outstanding writer - or both [emphasis added]." Law School Admissions Council, the Official Guide to US Law School, quoted in Denemark, supra note 34, at 223.
140. See Maggs, supra note 23, at 239-40. The letters that Maggs refers to are the "dirty little secrets" of the law review business; the potential of securing one subtly encourages student editors (especially at elite law schools) to publish established names whose endorsements would carry the greatest weight with prospective professional and academic employers. See, e.g., Kerlow, supra note 135, at 24 ("The greatest advantage Review members had . . . was the built-in opportunity to develop personal relationships with faculty members. This could come through . . . editing an article submitted by professors. To secure a clerkship to an appellate judge, nothing was more valuable than having a Harvard Law professor write an editor a letter of recommendation.").
141. See generally Hirschman, supra note 24, at 42.
142. Bruce, supra note 88, at 243.
143. For what it's worth, discussions with my own Dean about the present article (then still a work-in-progress) prompted him to convert our "Word Processing Center" into a "Document Technology Center", and to request the director of that Center to commence training her staff in the preparation of Internet-ready (HTML) documents for the purpose of helping interested faculty publish their own work on Web servers at the Law School or elsewhere. Letter from Peter Shane to Bernard Hibbitts (Sept. 16, 1996) (on file with author).
144. Make an Entry: HG Legal Publications Database (visited Aug. 30, 1996). Similar services exist in other fields: note, for instance, Web-Cite, a self-archiving service for the literary and cultural studies community. Submit a Link to Online Journal Article (visited Aug. 30, 1996).
145. Subscribe/Unsubscribe: HG Personalized E-Mail Notice (visited Aug. 30, 1996).
146. Bruce, supra note 88, 243.
147. See supra, Section II.A.
148. In a slightly different context see Joseph M. Moxley & Lagretta T. Lenker, "Introduction," to The Politics and Processes of Scholarship 1, 3 (Joseph M. Moxley & Lagretta T. Lenker eds., 1996) ("If academic institutions hope to be honored and supported . . . then faculty will be encouraged to participate in computer-related research . . . . Academics just cannot stick their heads in the sand on this issue that is, if they hope to come up for air.")
149. "[M]ost . . . members of university tenure committees belong to the last generation of scholars not steeped in computer culture . . . ." Jacques Leslie, "Goodbye, Gutenberg: Pixelating Peer Review is Revolutionizing Scholarly Journals", Wired, Oct., 1994, at 68, 71.
150. A recent dictum of futurist Alvin Toffler is à propos here despite having been offered in a slightly different context: "Oh, these ideas are now regarded as zany, kooky, but I believe that in 10, 15 years, as the entire Internet phenomenon spreads, as more and more young people come into the system, these proposals are going to become mainstream proposals. They're not just going to be regarded as these flaky, digerati ideas." Kevin Kelly, "Anticipatory Democracy", Wired, July 1996, at 45, 187 (interviewing Alvin Toffler). Several decades ago, the German physicist Max Planck expressed his own faith in future reform rather more fatalistically: "a new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it." Quoted in Kuhn, supra note 26, at 151.
151. This does not presume, however, that these self-publishing legal scholars will voluntarily withdraw or freeze their online texts at the moment of print publication. On the contrary, many will doubtless wish to continue taking advantage of their original electronic medium by maintaining and revising the self-published versions of their work post-print. See infra note 152. Not incidentally, the latter activity will allow those versions to supersede the printed versions, and will encourage other legal scholars to look to them rather than to printed copies as the primary objects of academic reading and research. Editors of printed law reviews tempted to save their institutions by pre-emptively prohibiting maintenance and revision of electronically self-published papers after print publication (or even, in a more desperate move, refusing to print any papers previously self-published) are referred to supra note 125.
152. See Hibbitts, supra note 125, at 615. In order to preserve my ability to maintain and make post-print changes to the self-published version of Last Writes?, I purposefully retained all electronic rights in the article, except those which would permit NYU to post an electronic version of the printed article in the event of inaugurating an Internet edition of their journal (Agreement Between New York University Law Review and Bernard J. Hibbitts, July 30, 1996 (on file with author); the Editors' Note purporting to describe the Agreement is ironically in error insofar as it indicates that NYU retained unspecified "online rights."). In the interest of extending the range of legal discourse, and having no electronic edition to protect from what would have amounted to electronic competition, the NYU Law Review did not object to this arrangement.
153. See Delgado, supra note 23, at 233 ("Self-publishing has a long and honorable history going well back into the age of print. Many authors who could not find a publisher for some reason simply went ahead and printed their books . . . etc. themselves.").
154. See generally Jerry A. Campbell, "Choosing to Have a Future", 24 Am. Libr. 560 (1993) ( "We should be willing to sacrifice any organizational model or specific practice in order to better carry out our mission.").
155. Bruce, supra note 88, at 247.
156. For similar proposals, see, e.g., Eric Jensen, "The Law Review Manuscript Glut: The Need for Guidelines", 39 J. Legal Education 383, 386 (1989) ("No one should have more than five copies of any manuscript circulating for consideration for publication at one time."); James Lindgren, "Student Editing: Using Education to Move Beyond Struggle", 70 Chi.-Kent L. Rev. 95, 98 (1994) ("We should also be willing to take on the very substantial work ourselves of starting faculty journals.").
157. What's more, "the proposal is obviously naive . . . .Very few non-tenured faculty members, living on the edge of faculty review and possible extinction and always desperate for an acceptance would have the confidence and discipline to limit distribution to five journals." Arthur Austin, "Footnote* Skullduggery** and Other Bad Habits***" 44 U. Miami L. Rev. 1009, 1013 (1990).
158. "Everyone who writes or speaks . . . knows how much you can get away with as long as you keep close to received doctrine . . . . When I refer to Nazi crimes or Soviet atrocities, for example, I know that I will not be called upon to back up what I say, but a detailed scholarly apparatus is necessary if I say anything critical about . . . the United States . . . . This freedom from the requirements of evidence or even rationality is quite a convenience, as any informed reader of the media and journals of opinion, or even much of the scholarly literature, will quickly discover . . . . Evidence is unnecessary, argument beside the point." Noam Chomsky, "Interview," in The Noam Chomsky Reader 1, 36-37 (James Peck ed., 1987).
159. See supra notes 101-17 and accompanying text.
160. Ross, supra note 75, at 260.
162. "Increasingly, presses are saying that they simply cannot afford to publish monographs. Over the last five years, for instance, the list for one of the top five academic presses in the country moved from 70 percent monographs to only 30 percent and falling." "The Endangered Monograph", Persp., Oct. 1995, at 3 (American Historical Association Newsletter). See also Peter Applebone, "Publishers' Squeeze Making Tenure Elusive", NY Times, Nov. 18, 1996 at A1 (reporting that "university presses are cutting back, sometimes drastically, on publishing specialized monographs."); James Shapiro, "Saving "Tenure Books" from a Painful Demise", Chron. of High. Educ., Nov. 1, 1996 at B6 (noting that "[i]t is hard to imagine a grimmer time in which to get a 'tenure book' accepted.").
163. On the relationship between "commercial" academic releases and the decline of footnotes, see William H. Honan, "Footnotes Offering Fewer Insights", N.Y. Times, Aug. 14, 1996 at B9 (noting that "to compete more effectively [in the retail book market], university press editors began packaging their books more attractively, and that meant . . . fewer footnotes . . . ."). In the age of hypertext, however, the rumors of the footnote's demise may turn out to have been greatly exaggerated. Internet publishing actually privileges "footnoting" insofar as it values hyperlinked material over non-hyperlinked material. Hyperlinks, of course, are little more than footnotes (usually without numbers or formal citations) that directly take one to another part of a single text, or outside that text altogether. Not only are hyperlinks more powerful "connectors" than footnotes ever were, but readers might be able to "mask" hyperlinks in ways that will allow scholars to include as many hypertextual "footnotes" as they wish for the benefit of highbrows without necessarily frightening or alienating lowbrows. In other words, members of different reading audiences will be able to tailor the appearance and content of Internet texts to suit themselves.
164. "Most [presses] would like to publish the broader second and third books by well-known authors of monographs . . . ." "The Endangered Monograph", supra note 162, at 3. See also MacLelland, supra note 33, at 8-9 ("University presses, faced with meshing production costs with audience demand, tend to publish well-known names . . . . Because they can no longer afford the financial risks involved in publishing unknown authors, many university presses are excluding from the dialogical context the very voices which may have produced, or may be producing, the best and most significant scholarship.").
165. This is not to suggest that such publications have no proper place in the legal literature. They clearly do. Whether they should become the core or basis of that literature, however, is another matter entirely.
166. In the current book-publishing environment, "the people who determine what subjects up-and-coming academics get to write about and who in effect award tenure and the right to shape the next generation of scholars are Barnes & Noble customers." Judith Shulevitz, "Keepers of the Tenure Track", N.Y. Times, Oct. 29, 1995, at 46, 47 (Book Review).
167. See, e.g., Perritt, supra note 57, at 257 ("[I]t probably is appropriate for student edited reviews to migrate to the Web.").
168. Rier, supra note 27, at 212.
169. Perritt, supra note 57, at 257.
170. See supra notes 33-39 and accompanying text (on advantages of the Web as a publishing platform).
171. On electronic self-publication as possibly both a prelude and a follow-up to publication in a printed law review, see supra notes 151-54 and accompanying text.
172. See Perritt, supra note 57, at 257 (discussing how preliminarily self-published papers would be "locked" and officially "published" by transferring them onto the Web sites of electronic legal journals).
173. There is some evidence that the Abbot Trithemius actually took this view. See supra note 6 and accompanying text. At one point in his book In Praise of Scribes, he wrote that "the devoted scribe should . . . guarantee permanence to useful printed books by copying them . . . His labor will render mediocre books better, worthless ones more valuable, and perishable ones more lasting." Trithemius, supra note 6, at 65. Printing was thus contemplated as the first rather than the last step in the publication process.
174. Recall the discussion of "peer review" supra in Section II.C.2.
175. Thanks to the Internet, "the notion that discourse must be fixed to be valid will fade." James J. O'Donnell, "The Virtual Library: An Idea Whose Time Has Passed," in Gateways, Gatekeepers, and Roles in the Information Omniverse 19, 25 (Ann Okerson and Dru Mogge eds., 1994). See also Jerome McGann, Radiant Textuality (visited March 3, 1997) ("[U]nlike paper-based forms, electronic texts are volatile and open-ended. This means that the 'work-in-progress' becomes a defining mode for scholarly writing. Of course scholarship . . . is a long journey, but the hypothetical structure of knowledge knowledge as a continual pursuit rather than an archived condition gets increased emphasis through these new forms of study and expression.").
176. Admittedly, some might not - they might (like Trotter Hardy) prefer to publish a piece and be finished with it. Hardy, supra note 23, at 251. Legal scholars would certainly be free to adopt this attitude, but they would risk losing comparative advantage to others taking a more active, dialogically-responsive approach to their work.
177. In the current publication system, many if not most articles become little more than "museum pieces" within 10 years of initial publication. If scholars had the option of periodically updating and revising their articles, those could remain relevant for a far longer period of time, to the benefit of both writer and readers. The sheer quantity of scholarship produced might decline somewhat (perhaps not such a bad thing), but its quality and long-term utility would arguably increase dramatically. In such an environment, academic achievement might even come to be judged "not [by] past publications . . . but [by] the number of existing publications that are still being developed and maintained with new material." Antony Barry, Publishing on the Internet with World Wide Web (visited Sept. 2, 1996).
178. "There is scarcely a page I have published in a decade and a half of scholarly writing that I would not now change if I could, but I cannot. Words that I know to be inadequate and in some instances untrue continue to speak for me, who am no longer the person I was when I wrote them, but I am still somewhat their author; I must be, because I once was." O'Donnell, supra note 175, at 24.
179. This recent statement by a commercial editor reflects something of what publishers (and journals of all sorts) have at stake here: "Editors like me spend most of our day reconceiving, rechecking, and rewriting what someone else has already conceived, checked and written. And it's not that I don't trust my authors - if publishers didn't have great respect for their authors' insight, intelligence, and dedication, why would they publish their books? It's simply that . . . authors and publishers have different areas of expertise . . . . I work for a publisher that has a reputation for quality and I find it hard to imagine us publishing anything . . . that we felt reflected poorly on us." Denise Wydra [Senior Editor, Bedford Books] to WEBRIGHTS-L, June 6, 1996.
180. See Michael Giles, "Presidential Address From Gutenberg to Gigabytes: Scholarly Communication in the Age of Cyberspace", 58 J. Politics 613, 614 (1996) (noting that "the conversion of scholarly journals from a paper to an electronic format . . . has tended to obscure the more far-reahing implications of the internet. It is my thesis that the emerging technology of the internet will fundamentally alter the structure of scholarly communication."); Paul LeBlanc, "Pulling Out the Rug: Technology, Scholarship and the Humanities", in The Politics and Processes of Scholarship 115, 119 (Joseph M. Moxley & Lagretta T. Lenker eds., 1996) (speculating that electronic journals may represent "a short-lived analog from print culture.").
181. As Marshall McLuhan so astutely reminded us in the 1960s, the content of a new medium of communication is always imagined (initially) to be an older medium. Marshall McLuhan, Understanding Media ix (1964). Not only were automobiles initially seen as horseless carriages, but television was initially regarded as a vehicle for broadcasting movies, and printing was initially seen as a faster means of reproducing manuscripts. Today, consistent with this tradition, the Internet is primarily (mis)conceived in academia as a medium for delivering scholarly periodicals.
182. Derek Law, "The Electronic Message to Scholarly Publishers: Adapt or Obsolesce", 6 Logos 67, 72 (1995). The shift from institutions to individuals as the primary locus of publishing activity may only be facilitated by the speed at which Internet publishing technology evolves. Already journalists are talking about "Internet time", the accelerated rate at which new Web browsers and other applications are developed and enter the marketplace. Change is occurring so fast that it is almost impossible for actual or would-be publishing organizations to keep up: by the time they collectively decide to take one step, the technology has advanced by another. In this situation, autonomous individuals may be the only agents able to make consistent use of the latest publishing innovations.
183. "What types of individuals are potential agents of Internet use in the scholarly communication system? Generally, it would be those who have ties that overlap generational, occupational or knowledge groups." Charles A. Schwartz, "The Strength of Weak Ties in Electronic Development of the Scholarly Communication System", 55 College & Res. Libr. 529, 535 (1994). See also Peter Martin, "How New Information Technologies Will Change the Way Law Professors Do and Distribute Scholarship", 83 L. Libr. J. 633 (1991) (discussing how four categories of legal scholars - "Professor Lawyer", "Professor Humanist", "Professor Social Scientist" and "Professor Internationalist" - are likely to approach electronic media in different ways, at least initially).
184. "The printed book is made of paper and, like paper, will quickly disappear. But the scribe working with parchment ensures lasting remembrance for himself and for his text." Trithemius, supra note 6, at 35.
185. Maggs, supra note 23, at 237.
186. Id. at 238.
187. "[D]irect professorial publishing on the Web would not in itself prevent law students from continuing to publish a law review, if they or others deemed the educational experience sufficiently useful and important. Law students might, for instance, turn to publishing print or electronic law journals for themselves, using them as vehicles for circulating the best in student papers from their own law schools to the legal community at large." Hibbitts, supra note 29, at para. 4.14. Alternatively, "[T]he law review . . . might . . . continue as a collection of student-written reviews or, somewhat less ambitiously, a student . . . selected list of recommended self-published articles. This format might prove very appealing in an information-rich environment; in this context, law review staffers along with individual professorial (post hoc) peer reviewers would be performing a function somewhat akin to book or film reviewers who judge and comment on works after the fact, without having any control over whether or how they appear." Id. at n.258.
188. See supra note 136.
189. See Hibbitts, supra note 29, at para.1.
190. See supra note 120 and accompanying text.
191. See supra note 90 and accompanying text.
192. See Duncan Sanderson, "Cooperative and Collaborative Mediated Research", in Computer Networking, supra note 55, at 95.
193. See generally G.P. Thomson & John R. Baker, "Proposed Central Publication of Scientific Papers", 161 Nature 771, 772 (1948) (noting, in the context of a somewhat similar 1948 proposal for the central deposit and distribution of scientific papers, that "[i]t is extremely unlikely that editors would continue to undertake all the functions they now discharge, largely without payment and from love of their subject, if their power and prestige were diminished to the extent proposed"). See also Ralph Phelps & John Herlin, "Alternatives to the Scientific Periodical", 14 Unesco Bull. for Libr. 69 (1960).
194. Maggs, supra note 23, at 239.
195. This behavior may say as much about some skeptics' level of Neteracy as about the current (but continually shrinking) limitations of on-screen reading.
196. "Two centuries ago there was a huge gap between what a scholar could do and what publishers provided. A printed paper was far superior in legibility to hand-written copies of the preprint, and it was cheaper to produce than hiring scribes to make hundreds of copies. Today the cost advantage of publishers is gone, as it is far cheaper to send out electronic versions of a paper than to have it printed in a journal. The quality advantage of journals [is also] rapidly eroding . . . ." Odlyzko, supra note 47, at 82.
197. See generally Jean-Claude Guedon, "The Seminar, the Encyclopedia, and the Eco-Museum as Possible Future Forms of Electronic Publishing", in Scholarly Publishing, supra note 38, at 71.
198. "Four assumptions lie behind our historical conception of a university: the library; a community of scholars (formed around library) drawing on each others knowledge in different disciplines; teachers working with small groups of students and a period of schooling that helps one to transform from adolescent to adult and grants a credential for entering work . . . . Information technology is undermining these assumptions. . . .I suspect we are underestimating the speed at which the traditional university is approaching disintegration." Peter J. Denning, "The University's Next Challenges", Comm. ACM, May 1996, at 27, 29.
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