Last Writes?
Re-assessing the Law Review in the Age of
Version 1.2 created March 10, 1997; Version 1.0 created February 5, 1996

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Conclusion: What is to be Done?

This article has comprehensively re-assessed the institution of the law review from the perspective of the present age of cyberspace. In Part I, I began this re-assessment by showing how the law review first developed from the interaction of improved print technology and the institutional circumstances of American law schools in the late nineteenth and early twentieth centuries. In Part II, I traced the course that criticism of the law review system has taken over the years, relating the shifting pattern and growing intensity of the criticisms to ongoing changes in the legal academy. In Part III, I showed how new computer-mediated communications technologies embodied in LEXIS, WESTLAW and the various electronic law journals have subtlely altered (and arguably improved) the way in which legal scholarship is distributed, accessed and used; at the same time, I emphasized that those formats have neither succeeded in curing the fundamental deficiencies of the law review system nor realized their own technological potential. In Part IV of this Article, I argued that legal scholars could simultaneously avoid many of the pitfalls and problems traditionally associated with the law reviews, seize exciting new professional and intellectual opportunities, and take full advantage of the new computer technology by publishing their own scholarship on the Internet platform known as the World Wide Web.

[v.2] Given the range of benefits that self-publication of legal scholarship on the Web would bestow on legal scholars and the legal community as a whole, it is theoretically possible that the practice will develop spontaneously (as, to some extent, it already has), slowly gaining popularity until it becomes the scholarly norm. There are, however, steps that can be taken to accelerate and enrich this otherwise gradual process. The precise nature of these steps depends in large part on who is taking them.

[v.3] Individual law professors, for instance, can promote Web-based legal publishing by putting their own papers on line as soon as possible. Individuals who retain copyright to their published pieces can put their existing scholarship on line immediately. Those who have granted copyright to law reviews can either negotiate with those reviews to regain copyright so as to allow on-line publication of their full texts, or, at the very least, they can post abstracts of their published pieces. Those in the process of writing legal scholarship might consider putting that on-line themselves as soon as it is completed to their satisfaction. This need not preclude later publication of their work in a printed or electronic law journal - indeed, on-line release could be perfectly compatible with that insofar as Web publication would probably elicit feedback that would improve the printed product, and moreover would allow scholars to reach what are now two relatively-distinct audiences. Over the years, however, legal scholars will probably discover (as an increasing number of scholars in other fields have already found) that a two-track publication system is awkward, unstable and ultimately self-defeating. Writers used to working on the Web will eventually find the absolute or relative fixity of their formally-published products frustrating, and in order to meet criticism, maintain the integrity or extend the shelf-life of those products will likely opt to revise their Web-based versions after (as well as before) formal publication. Readers will inevitably be drawn to the most up-to-date version of any given article, and will therefore stop using or referring to articles in their formally-published forms once those have been superseded by electronic revision. Together, these developments will make law review publication increasingly unattractive (indeed, unnecessary) as a professional option.

Individual law professors...can promote Web-based legal publishing by putting their own papers on line as soon as possible.

[v.4] Law deans and law faculties as a whole, meanwhile, should encourage or at least recognize the scholarly value of self-published legal scholarship. If they do not endorse or support the practice, preferring publication through the old established channels of the law reviews, their inaction will make Web publication impractical or at least unattractive for precisely those members of the legal professoriate who are otherwise most likely to take advantage of and gain from it: younger, more computer-literate legal scholars under significant pressure to publish. On the other hand, if they intervene positively, they will encourage their younger and more ambitious faculty members to unprecedented heights of productivity and, very likely, creativity.

[v.5] As I indicated in the previous section of this Article, the Association of American Law Schools might play a highly constructive - indeed, a critical - part in any movement towards Web-based self-publishing by exploring the possibilities for establishing an automated, but supervised Web site which would archive and link the new corpus of self-published legal scholarship.255 At least initially, it might be worthwhile to explore the potential applicability to law of some variation of Paul Ginsparg's archival physics software (which, it should be recalled, has already been successfully exported into other disciplinary fields). If the AALS is unwilling or unable to take the general initiative, a single American law school might consider providing such a site as a service to both the legal professoriate and the wider legal community. The cost of such an undertaking would be well within the means of even a non-elite school, given a pre-existing Web connection: Ginsparg's own experiment was undertaken on a shoestring (if never formally established) budget, covering a few hours of programming labor plus hard disk space on an existing machine (valued in 1991 at under $5000) which ran and continued to run other programs.256 A small investment here could have a very big payoff: given the critical position the site-sponsoring law school would likely come to occupy in the broader constellation of American legal scholarship and information, such a school might make a considerable name for itself in the age of cyberspace, just as Harvard made a name for itself in the hey-day of cheap print by inaugurating its law review. The institutional boost to the site-sponsoring school would be that much greater if its faculty, like the Harvard faculty in the early years of the Harvard Law Review, made a special point of publishing or (in the case of already-printed pieces over which copyright has been retained) re-publishing its own scholarship on the site. In that way, the site-sponsoring school could seize the technological high-ground, insofar as inquisitive and ambitious scholars from other law schools, other disciplines and other countries drawn to the site for its potential and its convenience would (if the site were properly constructed) encounter the sponsoring school's intellectual products, perhaps for the first time.

[v.6] Last but not least, even the editors of contemporary law reviews have a positive role they can play in the transition to a new system of electronically self-published legal scholarship (obviously, they could choose to play a negative role - in particular, by embracing the strategy of the "pre-emptive strike" already launched by the New England Journal of Medicine against self-published scholarship in the health sciences - although it is to be hoped that scholarly responsibility and even their own self-interests as law students and law professors will prevail over the simple instinct for institutional self-preservation257). Far from voluntarily and immediately folding up, they should continue their incipient efforts to place their published scholarship on the Web; not only, in fact, should they put on whatever new scholarship that continues to appear in their pages over the next few years, but they should put on a complete run of their back issues (perhaps making the articles in those issues hypertext-compatible by converting into hyperlinks their footnotes and their citations to other articles in the same journal). Such a strategy would have two important results: first, it would make the Web a better (and more frequently-used) resource for legal scholarship (which would in turn help to subtlely acclimate legal scholars to the idea of using it as a publishing base); and, second, it would make the Web a richer publishing tool by giving legal scholars more literature to link to with hypertext. As for the (student or faculty) editors of second-generation electronic law reviews with no printed equivalents, they too should continue their work for as long as at least some scholars are willing to feed them material. The more established they become, the more established the Web itself will appear; in this context, they might do as much to encourage the success of Web self-publishing in the long run as they might to distract certain scholars from it in the short run.

...the Association of American Law Schools might play a highly-constructive - indeed, a critical - part in any movement towards Web-based self-publishing....

[v.7] In the long run, however, the practice of self-publishing legal scholarship on the World Wide Web will almost certainly bring about the end of the institution of the law review as we know it, in both its print and electronic forms.258 When will that end come? Providing they are attractive, convenient and not too expensive, new technologies can disrupt traditional media very quickly - just consider how rapidly CDs replaced vinyl LPS in the entertainment industry. Even in the ostensibly more conservative academic context, new technologies which solve fundamental problems and create new opportunities for professors and their institutions can change scholarly norms in a stunningly-short snippet of time. For instance, the 1991 creation of Paul Ginsparg's cheap and speedy electronic archive put the printed high energy physics journals on the ropes almost immediately; four years after the inauguration of his service they have not collapsed, but they have been reduced to the status of side-shows and their demise appears inevitable. In actuality, it is still too early to say exactly when the law review in its present form will pass from the American academic scene, but in light of its critical condition and the availability of an alternative and arguably superior form of scholarly communication, it is not too early for the last writes.

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