Yesterday Once More
Printed in 30 Akron Law Review 267 (Special Issue, 1996); this edition enhanced and updated for the World Wide Web
Created March 6, 1997; optimized for Netscape Navigator 3 and Microsoft Internet Explorer 3

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Readers' Forum
he unique capacity of the Web to expedite feedback from readers, to facilitate dialogue between readers and writers, and to allow revisions based on feedback and dialogue prompts the creation of this section. Interesting and/or constructive comments and criticisms (and my response to same, as appropriate) are posted here for the information of new readers who would like to know how this article is being received, and for those who would like to follow any debate which the article prompts.

You are invited to submit your own views and opinions to

The most recent comment was received on September 30, 1997.

Comments from the following individuals are posted below:

From: Shawn G. Pearson (
Date: 3/6/97 8:07pm
Subject: Yesterday Once More

Professor Hibbitts,

I just finished reading Yesterday Once More, and all I can say is that I wish you would have e-mailed me a preprint before I turned in the final version of my comment ["Hype or Hypertext: a Plan for the Law Review to Move into the Twenty-First Century", University of Utah Law Review, forthcoming]! :)

While you know my stance on the argument, I have to say that you have managed to crank out a document that *looks* as good as anything I have seen any Law Review do to date. In fact it probably looks better than anything I have seen from the Law Reviews. The colors and graphics really make it something nice to look at on the screen. My only complaint would be the use of superscript on the footnotes -- it really gets irritating to look at differently spaced lines (but that's nitpicky).

About the printout argument, though.... I just can't read something thoroughly on the screen. I know that that's a sentiment held by many others too. Thus, I just don't think that the world is ready for *fully* hypertext/hypermedia enhanced scholarly articles -- unless authors expect (and readers) that readers will go back after reading a printout to see where all of those unfootnoted links lead to. Linked footnotes are useful today, though.

Anyway, great job, good read, and congratulations on another job well done.

Shawn Pearson
[3L, University of Utah College of Law]

The spacing problem may be a by-product of your browser as much as anything else - by increasing its standard line spacing Microsoft Internet Explorer tends to handle superscripted footnotes better than Netscape. As for whether legal scholars are ready for fully hypertext/hypermedia enhanced scholarly articles: while scholars might be disinclined to read all the hyperlinks online before reading a printout of a piece (just as, today, they are disinclined to read all the footnotes in advance), I suspect that scholars interested in following up on particular points or arguments will be increasingly inclined to track down the links after the fact (just as, today, they track down footnote sources after the fact). Links might also provide an additional way for legal scholars to assess the scholarly "depth" of an article in the first place - even more accurately, perhaps, than current footnotes, as curious scholars would be instantly able to access and assess an articles' sources for themselves.
From: pat northey (
Date: 3/16/97 10:18am

Bernard, your new article is great. I was reading a book on the history of printing over the summmer and if one had substituted the word Internet for printing then one could see instantly what is happening to the legal profession. The publisher I now represent produces electronic statutes. When I go to give a demo I stress how much they look like the printed word (as they do) how the look and feel of them so resembles a book and of course how the benefits of both are combined in this product. I do believe what I am saying and it is so frustrating to see a profession with a monopoly unwilling to keep up to date...

New niche publishers will change all this and in this country we shall see e-books, articles, theses and the like quite soon....The 3 large megapublishers will hopefully be counting their months profits , reporting to London, Toronto and Holland respectively and looking at ways to squeeze yet more out of a seemingly captive market while the next leap is happening around them.

The young ones will be the hope of this development as usual with a 2% takeup from the established academia.

Do keep on with this fascinating discussion as you know it will happen.


[Pat Northey
legal information consultant, Auckland, NEW ZEALAND]

From: Tony Delamothe (
Date: 3/18/97 10:21am
Subject: Various versions of the end of me

Dear Bernie

...I have....just read...Yesterday Once More....What a tour de force!

Lots of things I agree with, and rather than having ourselves made redundant I suppose at the BMJ we are looking at ways of reengineering ourselves for electronic publication ( I know you don't really see the point of that).

The main issues I'm wrestling with at present relate to identifying something that you want out there and then knowing how good it is.

We have Excite on our own web page and it searches better than our previous search engine - but it still comes up with a wierd selection - and I know the universe it's searching. Repeating the same exercise on the www at large I lack any confidence in coming up with what's really out there.

Once I've located something how do I know how good it is? No appended comments (or negative ones) doesn't seem enough. If everyone in the world's faculties is self publishing there is a problem. Traditionally, we have had recourse in medicine to peer reviewed journals, edited by professionals rather than students. I'm not remotely complacent about the quality of peer review - and in fact we're doing a study of it which should give us some idea whether referees do better when their identity is open to authors or when authors' names and affiliations are masked from reviewers. The better peer reviewed journals (New England Journal of Medicine and Lancet) tend to publish the best papers on clinical medicine. If time is short, the average reader might start there instead of searching the Internet for say - cardiology, myocardial infarction - unearthing hundreds of papers, which may or may not report well conducted research.

I believe that journals (at least in the short term) will have the role of bundling together articles and conferring some imprimatur of quality on them. Why do so many of my clever American friends (including Ron La Porte, and judging by your footnotes, you) read the Economist in hard or electronic form? It's because you know that what falls between its covers is going to be worth reading. Some editorial hand has skimmed off what you need to know about the world from the tide of information. It chooses good writers who, over a year, capture just about everything of importance that has happened in the world. In other words, the Economist is doing a lot of work for you; you feel confident that you're not missing out on anything.

People turn to the big general medical journals with something of the same expectations (rarely realised). Yes, they could surf the net and come up with loads of self published information on all the topics that interests them - but at present I think they will head for the beacons of proven excellence instead.

The beacons of proven excellence is used ironically - but I think those that purport to be so can do a lot to clean up their act and extend their franchise into cyberspace. We can add all the functionality that you describe and make ourselves great and useful places to visit. Just watch. (We've got a bit of time.)

Am I drifting dangerously into the rhetoric of reaction? Hirschman's typology and the Gutenberg/www parallel that started Yesterday Once More were particularly treasured discoveries.

Tony Delamothe
[Deputy Editor, British Medical Journal, London, UK]

I appreciate your points about peer review in medicine. I wonder, however, whether the general review/quality control process might not actually be improved by moving to a system of post-hoc peer commentary: after all, a weak link in the current peer review structure is the identity of the peers - sometimes journals pick the right ones, sometimes they don't. Maybe democratizing the process would be a good thing - more people could take part in the evaluative process, and readers would moreover have the benefit of their comments (which they don't have at the moment since the process is - from the readers' perspective - a "black box").

In law, of course, the current evaluation process is even more problematic. Electronic self-publishing and open peer commentary would make many pieces available for public academic evaluation for the first time; law professors could be held much more accountable for the quality of their work (which at the moment can be dumped into hundreds of student journals without much fear of anyone saying anything bad - or anything at all - about it ever again, to the eternal detriment and perhaps even damnation of readers). This arrangement might be the best *we* can do - because of internal tradition I just do not see formal peer review catching on here any time soon.

As for searching, intelligent agents might eventually sort out the mess for individual readers: an agent could be instructed to "bring back" all materials above a certain ranking, or evaluated by particular individuals, etc. We might regard today's journals as "intelligent agents" which aren't very bright - yes, they can deliver good stuff, but at times they also deliver bad stuff, and they moreover deliver alot more stuff than most readers really want, leaving those readers to pay for that.

From: Heinrich C. Kuhn (
Date: 3/20/97 11:02am
Subject: Re: "Last Writes?" sequel

Dear Bernard Hibbits,

...Thanks a lot for pointing me to this very interesting text.

I'll venture some comments:

1) You write (near Footnote 14): "They wrote manuscripts and made copies, perpetuating a scribal tradition that survived on the margins of print culture until roughly the end of the seventeenth century." You might add at least annother there quarters of a century: e.g. Goethe and the other "new" German poets of the second half of the 18th cent. came to know part of Klopstock's work in *manuscript* (as can be read in "Dichtung und Wahrheit"). If you should want to take reproduction by typewriting into account, you could extend the period well into the second half of the 20th centuries as part of the samisdat-literature in the communist countries was disseminated in this way.

2) You advocate "post hoc peer review". I'm not really convinced whether this can replace all of the functions of "prestigious" journals: e.g.: When I still had a bit more time for research than I have now, I sometimes had a look at selected journals publishing in areas rather outside of my own speciallity and the general level of quality of the articles published in certain journals made it easier for me to decide which of those journals to browse. I'll continue to comment on the aspects of how to ensure quality below.

3) in 2.25 you write: "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." I don't know about law professors, but ...: At least in some other fields there is quite an amount of printed material that sometimes does convey to the reader a not exceedingly postive impression of the authors' scholarly capabilities ... . I'm not too optimistic that this will be changed by "going electronic" [;-/].

4) In 2.26 you write: "A ranking system could easily be developed wherein self-selected reader-evaluators would rank an article on a 1-10 scale." Agreed, but: How to avoid the use of friends and family to obtain postive votes by asking them to cast such votes: Sending an email is far more easily done than quoting all the papers of all one's friends in all contexts appropriate and not appropriate ...

5) same section: "Alternatively, the organization running the projected databank of self-published legal scholarship could come up with a comprehensive ranking based on the comments received." That would mean the something like reinvention of the editorial board, wouldn't it? And it would mean just *one* editorial board instead of several ones with several high quality journals. In case you want to overcome this by setting up several databanks on one subject with several editorial boards: is this not some- thing very like the present system (just faster ...)?

6) in 2.28 you write: "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. 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." What follows is the comment of an ignorant in the working of your law-schools hoping for enlightenment: A good system - *if* it works. I don't know about American lawschools. Do you really get your external reviewers to actually *read* all of the publications of a person applying for a post, tenure or promotion? I completely agree: This is the method that should be followed by any institutional system that realy values scholarship. Both aspects of it seem to be vital: A *wisely selected* body of *external* reviewers and actually reading the texts written by the person to be judged. Who selects the reviewers in Amercian lawschools? Is there sufficient remuneration (by prestige, financial, or otherwise) to incite them to do a really good job? What control is there to ensure that they actually do a good job?

7) Is there a tension between what you wrote on promotion (based on actually reading the texts) and 2.44? "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."

Thanks again for your text! I'll make link to it one of the next days in my internetographies.


Heinrich C. Kuhn
[Co-ordinator Libraries, Max-Planck-Gesellschaft
Munich, GERMANY]

From: Rob Brian (
Date: 3/20/97 6:29am
Subject: Last Writes and Yesterday

Dear Professor Hibbitts,

I have found your articles absolutely rivetting. The medium is, indeed, the message! I will be referring to your fantastic articles in a keynote address I am to give on 5 April at the College of Law here in Sydney. The theme of this seminar is: "Standards and Issues in the Electronic Publication and Dissemination of Legal Information". I have been asked to deal with 'quantitative and qualitative research in the area covering such issues as the breadth of usage of electronic legal research tools; users preferred mediums (CD/Online); and identified research issues and areas'.....Congratulations! Keep up the fight for self-publishing on the Net!

Kind regards,

Rob Brian
Parliamentary Librarian
Parliament House
Sydney NSW Australia

From: john peters (
Date: 3/20/97 8:03pm
Subject: Re: New Paper on Legal Publishing -Reply

Dear Bernard

Very impressive piece (again).

A few comments for you rather than criticisms per se.

I liked your "deja vu" very much, and the rhetoric of reaction model. Back in 1960, Everett M Rogers, a marketing theorist (and a very smart one) produced the "diffusion of innovation" theory which said, briefly stated, all new technology innovations diffuse in a characteristic pattern through the target population, through five distinct phases, the early ones of which can prove insuperable and fatal. That's everything, from cars, to TV, to e-publishing, to teleporting to other planets or time travel. The stages are: Innovation, where up to about 5% of the population, being psychological new-toy adopters, risk-takers, technophiles, join in; early adopters, covering about 12% of the target population as entrepreneurs, lateral thinkers etc; early majority at about 33% being younger or young-acting, educated; late majority at about 33% being older, more conformist; laggards at about 16% being older, poorer, less educated, etc.

It makes a skewed bell-curve if you draw it. The demographic/psychographic segments are hopelessly generalised, but you can see how it works. My mother has a fax machine for the last few years, but not e-mail; my grandmother, as a different class and a different generation, used the phone but wouldn't touch the fax. She would have been a fax laggard; my mum is a fax early/late majority and an e-mail LM or laggard.

Rogers' thesis is that the process is INESCAPABLE. You can't make a jump to a new technology without a few people using it and most being not interested/sceptical/unaware; then more people using it and many being sceptical or preferring to "wait and see"; and so on. He has a whole lot more neat stuff about how to oil the wheels for faster and wider diffusion too, which I won't bore you with now but I'd be happy to run by you if you like at some point.

E-publishing as an innovation seems to me to be diffusing in classical Rogers fashion. We have hit early adopters and are heading fast to early majority. Two years ago we were in Innovators only.

As I tell my sceptical friends in publishing and editing - in two or three years from now there will be no fuss. It will happen. The part I find exciting is being there whilst it is happening and indeed in our own humble way helping it find its shape, as well as seeking entrepreneurially for ways to catch the wave.

You've pointed to some of the barriers to e-publishing amongst your profession. In terms of the wider scholarly publishing industry there are all kinds of vested interest opposition as you know - from author (someone's going to steal my stuff before it gets "verified" in a print journal) to librarian (what's my job going to be?) to subscription agent (they will have no need of us) to commercial publisher (how do we make money? How do we avoid being bypassed? How do we add value?) to professor (how do I stay smarter than everyone else when accessibility is so open?) to editor (they won't need me) to professional author (how do I make money out of this?) to researcher (how do I know the good from the bad? I don't like computers!) to tenured academic (how do I keep my EAB/ERB positions?)....

..surprising how the bandwagon has kept rolling, isn't it.

From a supply chain management theory point of view, the chain has lost its focus and leadership, and someone will re-assume chain command - a bit like how supermarkets assumed supply chain command from branded goods manufacturers because they have more muscle. Time was Heinz would tell Safeway how much shelf space they should devote too Heinz beans. Now Safeway call the shots, and tell Heinz to keep spending on "pull" advertising.

Subs agents such as Ebsco and Blackwell have a good opportunity to assume supply chain command as "data warehousers", but I don't know if they are smart enough. Someone like Reed Elsevier have the muscle to do so on behalf of scholarly publishers, but I don't know if they are fast enough. Someone like OCLC has the knowhow to do so, but they are too limited by their constitution and probably their ambitions. Someone like Microsoft or Netscape has the opportunity to enter this market and kick it into shape, but would probably not think of it, don't have the core competence. Ditto IBM or Apple. Ditto some other cash/asset-rich mega-corp who need to get into sunrise industry to keep their institutional investors happy.

Maybe we should sell them how to make it happen, eh?!

Anyway - thanks for provoking these meanderings....

Best wishes


Dr V John Peters
MCB University Press, multi-medial business publishing
[Bradford, ENGLAND]

From: Robert M. Fowler (
Date: 3/26/97 7:54pm
Subject: Yesterday Once More


Just a quick note expressing appreciation for "Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews."....The material you have collected on Trithemius and other critics of early print culture will make your piece valuable to folks in many disciplines. And not only is it a rich essay, it is nicely presented visually on the web.

I'm glad you're keeping up the good work.

Best wishes,


Robert M. Fowler
Department of Religion, Baldwin-Wallace College
275 Eastland Road, Berea, OH 44017 USA

From: Gerry Anders (
Date: 9/30/97 11:34AM
Subject: "Yesterday Once More"

Professor Hibbitts:

As an editor at a scholarly press, I found "Yesterday Once More" as pertinent in many ways to my side of the publishing industry as to law reviews. It seems to me that upwards of 90 percent of the scholarly monographs now published (or not published) in traditional form--many of them little more than dissertations in fresh makeup--often with potential sales in three figures, would be far better suited to the Net than to paper between hard covers. This thought of course runs into the same resistant arguments you so skillfully dismantle in your article, but with the added twist that most people in my industry literally love books--their form, their feel, even their smell--and so are threatened on an almost physical level by electronic publishing.

Having found "Yesterday Once More" almost by accident, through Matthew G. Kirschenbaum's excellent Web page at, I look forward to reading "Last Writes?"

A little editorial feedback. Most important, Section II cut off in midsentence in paragraph 2.49 (I've had the same thing happen with printed books). Maybe it's my browser? Less crucially, there is no end punctuation after "to" in "not to David Rier" in graf 2.24. In the same graf, "disincentive not to" amounts to a double negative. And my dictionary gives no such spelling as "stylisticly" (graf 2.17), although it seems a perfectly good word--one that Shakespeare wouldn't have thought twice about using.

Thanks for a thought-provoking read.

Gerry Anders
LSU Press

Thanks for the editorial feedback. Your paragraph cut-off in 2.49 appears to be on your end. The other "blips" were real ones, and I've made the appropriate corrections. Ironically, at least one of them was caused by the law review editing process (the punctuation after "to" in "not to David Rier" in para 2.24 was present in my original manuscript but somehow was taken out without me catching it). The other two errors were not overtly caused by that process, but did survive that (which doesn't speak too well of the process either, I guess...).

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