Last writes? Reassessing the law review in the age of cyberspace

New York University Law Review

Volumn 71, Issue 3, 1996, Pages 615-688

  Hibbitts, Bernard J ^a,b,c,d,e  

^a UNIVERSITY OF PITTSBURGH   (United States)

^b UNIVERSITY OF OXFORD   (United Kingdom)

^c DALHOUSIE UNIVERSITY   (Canada)

^d UNIVERSITY OF TORONTO   (Canada)

^e HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030521249     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (355)

1. See infra Part I.
2. See infra notes 116-97 and accompanying text.
3. See generally Michael I. Swygert & Jon W. Bruce, The Historical Origins, Founding, and Early Development of Student-Edited Law Reviews, 36 Hastings L.J. 739, 764-69 (1985) (chronicling formation and subsequent failure of the two publications).
4. On Ames's supportive role in the creation of the Harvard Law Review, see id. at 771-72.
5. Id. at 770-71.
6. Afton Dekanal, Faculty-Edited Law Reviews: Should the Law Schools Join the Rest of Academe?, 57 UMKC L. Rev. 233, 235 (1989) ("[F]or virtually all schools except Harvard, student-edited law journals came into being because that is what Harvard did."); Lyman P. Wilson, The Law Schools, the Law Reviews and the Courts, 30 Cornell L.Q. 488, 493 (1945) ("[B]ecause in education as elsewhere there is such a thing as 'keeping up with the Joneses,' each new school and each of the older ones that did not already have a law review felt the urge to start one.").
7. See John J. McKelvey, The Law School Review, 1887-1937, 50 Harv. L. Rev. 868, 882 (1937) (citing multiplication of law reviews after Harvard's success).
8. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s, at 4 (1983).
9. In 1880, there were 46 university-based law schools in the United States; in 1890, there were 50. See Alfred Z. Reed, Training for the Public Profession of the Law 445 tbl. 7 (1921) (cataloguing law schools by type of organization from 1790-1921).
10. See Stevens, supra note 8, at 24 ("The vast majority of the legal profession until the turn of the century still experienced only on-the-job legal education.").
11. "In 1887, . . . [m]any [law schools] were merely adjuncts or supplementary agencies, in the creation of lawyers, to the law offices . . . ." McKelvey, supra note 7, at 878; see also William Johnson, Schooled Lawyers: A Study in the Clash of Professional Cultures 49 (1978) (discussing "[t]he limited and supplementary role that law schools played in legal training").
12. See Stevens, supra note 8, at 35, 37 (explaining that nineteenth-century law schools were mostly trade schools and noting that admissions standards for law schools were lower than those for undergraduate programs).
13. See Reed, supra note 9, at 183 (noting that most law schools, except Harvard and University of Virginia, did not receive effective financial support from their universities).
14. In the latter half of the nineteenth century, American law professors and law schools repeatedly premised their existence on their ability to create superior lawyers. In its catalog for 1858-1859, for instance, New York University's Law Department rejected office training as an environment where (as opposed to law school), "[students] generally pursue their studies unaided by any real instruction, or examination, or explanation. They imbibe error and truth, principles which are still in force with principles which have become obsolete; and when admitted to practice, they find, often at the cost of their unfortunate clients, that their course of study has not made them sound lawyers or correct practitioners." Stevens, supra note 8, at 22 (quoting Law Department, New York University, Annual Announcement of Lectures (1858-1859)).
15. See, e.g., George W. Pepper, Philadelphia Lawyer: An Autobiography 48 (1944) (recalling University of Pennsylvania Law School in 1887, when Pepper was a first-year student there: "There was increasing co-operation between the offices of the bar and the law school. The race of full-time professors of law was in its infancy. In almost all cases the lecturers in the schools were active practitioners who had a flair for teaching.").
16. Some law schools, such as Columbia, had benefited from the existence of formal alumni associations as early as the 1860s. See Foundation for Research in Legal History, A History of the School of Law, Columbia University 403 n.57 (1955).
17. See, e.g., Stevens, supra note 8, at 35-72 (commenting on Dean Langdell's attempts to raise academic standards and gain respectability at Harvard between 1870 and 1895).
18. See Alfred M. Lee, The Daily Newspaper in America: The Evolution of a Social Instrument 118-21 (1937); Hellmut Lehmann-Haupt, The Book in America: A History of the Making and Selling of Books in the United States 162-65 (1951) (tracing development of large cylinder press for newspaper printing).
19. See Alfred M. Lee, The Daily Newspaper in America: The Evolution of a Social Instrument 118-21 (1937); Hellmut Lehmann-Haupt, The Book in America: A History of the Making and Selling of Books in the United States 162-65 (1951) (tracing development of large cylinder press for newspaper printing).
20. See generally Lee, supra note 18, at 100-03 (detailing newspapers' transition to woodpulp newsprint in late 1860s and early 1870s); Lehmann-Haupt, supra note 18, at 166-70 (tracing technological changes and growth in paper-making industry in nineteenth century).
21. See generally Lee, supra note 18, at 104, 118-19.
22. 2 John Tebbel, A History of Book Publishing in the United States 676, 679, 687 (1975).
23. Frank L. Mott, A History of American Magazines 1885-1905, at 11 (1957).
24. Some Magazine Mysteries, 61 Nation 342, 342 (1895).
25. Irving Browne, Too Many Books, 8 Green Bag 83, 83 (1896).
26. See generally Cheap Books, Am. L.J., June 21, 1884, at 105.
27. 2 Tebbel, supra note 21, at 676-77, 682, 689.
28. J.L. High, What Shall be Done with the Reports?, 16 Am. L. Rev. 429, 435, 439 (1882); see also Robert Hughes, Law Reporting, 1 Va. L. Reg. 309 (1885); R.S. Taft, Precedents, 3 U. L. Rev. 197, 198 (1897).
29. The Michigan Law Review, for instance, would premier in 1901 with an $800 loan from the School's Board of Regents - not an insignificant sum at the time, but at least within the realm of institutional possibility. E. Blythe Stason, The Law Review - Its First Fifty Years, 50 Mich. L. Rev. 1134, 1134 (1952).
30. For justifications of law reviews citing this capability, see Samuel Nirenstein, The Law Review and the Law School, 1 Ann. Rev. L. Sch. N.Y.U. 31, 32-34 (1924) (Annual Review of the Law School of New York University, later New York University Law Review); Edwin H. Woodruff, The Cornell Law Quarterly, 1 Cornell L.Q. 27, 28 (1915); Editors' Note, 1 Md. L. Rev. 3, 3 (1901); Editors' Note, 1 Mich. L.J. 25 (1892); Introductory, 1 Counsellor 16 (1891) (New York Law School).
31. See William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education 100 (1994) (explaining that law review experience was valuable in a changing legal environment where written briefs and opinions were replacing oratory as the characteristic form of legal communication).
32. On the general role of the law review in promoting this connection, see, e.g., Henry J. Fletcher, Foreword, 1 Minn. L. Rev. 63, 63 (1917).
33. See LaPiana, supra note 30, at 100 (describing this process at Harvard).
34. For justifications citing the law review's capacity to aid practitioners, see Editors' Note, 1 S. L.Q. 45, 45 (1916) (Tulane Law School); Editors' Note, 1 W. Res. L.J. 18, 18-19 (1895); Introductory, supra note 29; Notes, 1 Harv. L. Rev. 35, 35 (1887) [hereinafter Harvard Notes]; Frederic C. Woodward, Editorial Notes, 1 Ill. L. Rev. 39, 39-40 (1906).
35. For example, the Albany Law Journal, American Law Review, and Central Law Journal.
36. For example, the Albany Law Journal, American Law Review, and Central Law Journal.
37. For example, the Albany Law Journal, American Law Review, and Central Law Journal.
38. For justifications citing the law review's role in facilitating alumni communications, see Editors' Note, 1 Yale L.J. 30, 30-31 (1891); Harvard Notes, supra note 33, at 35; Woodruff, supra note 29, at 28.
39. See, e.g., Philip Girard, The Roots of a Professional Renaissance: Lawyers in Nova Scotia 1850-1910, 20 Man. L.J. 148, 165 tbl. IV (1991) (showing numbers of students from Nova Scotia and New Brunswick who attended Harvard Law School from 1840-1929).
40. For a discussion of the influence of German universities on American academic life during the late nineteenth century, see Laurence R. Veysey, The Emergence of the American University 125-33 (1965).
41. Id. at 158.
42. Note, for instance, this comment by the first President of Johns Hopkins, Daniel Gilman, looking back from 1902 on the circumstances prevailing in 1876: "When this university began, the opportunities for scientific publication in this country were very meagre. The American Journal of Science was the chief repository for short and current papers. The memoirs of a few learned societies came out at slow intervals and could not be freely opened to investigators." Dennis P. Carrigan, The Political Economy of Scholarly Communication and the American System of Higher Education, 15 J. Acad. Librarianship 332, 334 (1990) (quoting Daniel Gilman).
43. See Frederick Rudolph, The American College and University: A History 407 (1990) (discussing emergence of organized university presses).
44. Id. at 406.
45. For justifications referring to law reviews as forums for faculty scholarship, see Nirenstein, supra note 29, at 32; Announcement, 1 Mich. L. Rev. 58, 58 (1902); Editors' Note, 1 Geo. L.J. 50 (1912); Orrin K. McMurray, Introductory Note, 1 Cal. L. Rev. 46, 48 (1912).
46. [W]ithout the law review, the law teacher who was imbued with an urge for expression unsated by the confection of classroom notes would have found little other outlet than that afforded by the treatise. But the treatise is a medium not open to everyone. It demands a substantial investment which the commercial publisher is willing to make only if the assured position of its author (or, occasionally, the timeliness of its subject) affords some guaranty of an adequate market. David F. Cavers, New Fields for the Legal Periodical, 23 Va. L. Rev. 1, 2-3 (1936).
47. One commentator later said, "Were it not for the Law Review, many epoch-making articles might never have been written, or if written, would never have had widespread influence. In the issues of the Law Review, they were circulated, and were read by all." Nirenstein, supra note 29, at 32.
48. Although not all early law reviews were edited by law students (the Michigan Law Review (1902) and Northwestern's Illinois Law Review (1906) were two particularly prominent - although hardly the only - exceptions), student editing dominated the genre from the outset. The reasoning behind this rather remarkable arrangement, unique in scholarly publishing, has never been adequately explored; instead, legal commentators have somewhat perversely focused on why Michigan and Northwestern bucked the trend (the answer may have had something to do with the failure of an earlier student-edited journal at Michigan in 1898 and the financial role of a former Michigan law student in the establishment of the Illinois Law Review; see generally Swygert & Bruce, supra note 3, at 784-86). Part of the explanation for student editing may lie in the fact that students initiated the first legal publications at Albany, Columbia, and Harvard, but that may simply beg the question of why most law faculty members were from the outset disinclined to create law reviews for themselves. Law professors might have believed that editing journals would be good for their students (see supra notes 29-30 and accompanying text), but the same thing might well have been said of students in arts, sciences, and other professional settings. In light of these considerations I would suggest three other possible explanations. First, law professors as a group lacked the time and the financial incentive to run their own journals. In the late nineteenth and early twentieth centuries, many legal academics were still practicing (see supra note 15 and accompanying text) and spent the majority of their nonteaching hours doing profitable professional work. They arguably saw their students as individuals who would do a job that they could not figuratively or literally afford to do themselves. Second, despite their growing academic aspirations, law professors at the turn of the century were not yet fully assimilated into academic life (some, of course, would suggest that they still are not). For many law professors in this early period, scholarship was not yet so important that its editing and distribution could not be delegated to novices. Third and finally, law professors may have hesitated to edit publications that would, at least ostensibly, compete against commercial legal journals (see supra note 34) edited by their professional (and in some instances, even academic) colleagues. It was more politic to have students take the appropriate personal and professional risks.
49. Although not all early law reviews were edited by law students (the Michigan Law Review (1902) and Northwestern's Illinois Law Review (1906) were two particularly prominent - although hardly the only - exceptions), student editing dominated the genre from the outset. The reasoning behind this rather remarkable arrangement, unique in scholarly publishing, has never been adequately explored; instead, legal commentators have somewhat perversely focused on why Michigan and Northwestern bucked the trend (the answer may have had something to do with the failure of an earlier student-edited journal at Michigan in 1898 and the financial role of a former Michigan law student in the establishment of the Illinois Law Review; see generally Swygert & Bruce, supra note 3, at 784-86). Part of the explanation for student editing may lie in the fact that students initiated the first legal publications at Albany, Columbia, and Harvard, but that may simply beg the question of why most law faculty members were from the outset disinclined to create law reviews for themselves. Law professors might have believed that editing journals would be good for their students (see supra notes 29-30 and accompanying text), but the same thing might well have been said of students in arts, sciences, and other professional settings. In light of these considerations I would suggest three other possible explanations. First, law professors as a group lacked the time and the financial incentive to run their own journals. In the late nineteenth and early twentieth centuries, many legal academics were still practicing (see supra note 15 and accompanying text) and spent the majority of their nonteaching hours doing profitable professional work. They arguably saw their students as individuals who would do a job that they could not figuratively or literally afford to do themselves. Second, despite their growing academic aspirations, law professors at the turn of the century were not yet fully assimilated into academic life (some, of course, would suggest that they still are not). For many law professors in this early period, scholarship was not yet so important that its editing and distribution could not be delegated to novices. Third and finally, law professors may have hesitated to edit publications that would, at least ostensibly, compete against commercial legal journals (see supra note 34) edited by their professional (and in some instances, even academic) colleagues. It was more politic to have students take the appropriate personal and professional risks.
50. For justifications emphasizing the law review's capacity to advance or demonstrate the "scientific" study of law, see Fletcher, supra note 31, at 64 (adding that "in this way the law school . . . may be elevated toward the place in public estimation which it is sure ultimately to attain"); Introductory, 1 U. L. Rev. 1 (1893).
51. See Stevens, supra note 8, at 38 (noting that Ames was appointed professor "for his scholarly and teaching potential").
52. See Swygert & Bruce, supra note 3, at 773 (referring to Ames's delayed publication of legal historical work until Harvard Law Review's founding).
53. On the students' desire to publicize the faculty and the achievements of the Harvard Law School, see generally John H. Wigmore, The Recent Cases Department, 50 Harv. L. Rev. 862 (1937).
54. On Eliot and the turn to research at Harvard, see generally Hugh Hawkins, Charles W. Eliot, Daniel C. Gilman and the Nurture of American Scholarship, 39 New Eng. Q. 291 (1966) (describing role of faculty scholarship in American universities during late 1800s and early 1900s).
55. Wigmore, supra note 49, at 862-63 (describing fundraising efforts to underwrite publication of new journal).
56. Having said this, it is important to note that not all Harvard faculty were initially enthusiastic about the initiative. One of the Review's student founders, Joseph Beale, reported that the members of the faculty displayed "differing degrees of warmth in support offered." Joseph H. Beale, James Barr Ames - His Life and Character, 23 Harv. L. Rev. 325, 328 (1910).
57. Harvard Notes, supra note 33, at 35.
58. See, e.g., Fletcher, supra note 31, at 65 (1917) (speaking of both Harvard Law Review and its more successful competitors: "We feel the inspiration of their example, we covet the eminence they have earned . . . ."); Garrard Glenn, Law Reviews - Notes of an Antediluvian, 23 Va. L. Rev. 46, 46 (1936) ("Before the Columbia Law Review was launched [in 1901] . . . the Dean of the School was approached, and he consented to the review taking the name Columbia only upon condition that it should adopt the model of Harvard.").
59. Swygert & Bruce, supra note 3, at 779.
60. See McKelvey, supra note 7, at 870-71 (listing, at length, law review objectives and justifications).
61. Editors' Note, supra note 35, at 30.
62. Fletcher, supra note 31, at 64.
63. Editor's Note, 1 Geo. Wash. L. Rev. 92 (1932).
64. See Roger Cramton, The Most Remarkable Institution: The American Law Review, 36 J. Legal Educ. 1, 4 (1986) (observing that "the times were ripe; and if the developments had not come about at Harvard in 1887 they would probably have at Columbia or Pennsylvania or elsewhere a few years later").
65. See infra notes 67-197 and accompanying text.
66. See generally Geoffrey Preckshot, All Hail Emperor Law Review: Criticism of the Law Review System and Its Success at Provoking Change, 55 Mo. L. Rev. 1005 (1990).
67. See Frederick C. Hicks, Materials and Methods of Legal Research 207 (3d ed. 1942) (listing all American law school periodicals existing in 1942 with initial years of publication). This statistic does not, however, reflect all of the 19 attempts made to create school-sponsored law reviews up to the turn of the century; for a variety of reasons, the majority of these early initiatives failed. See id. at 206.
68. See Frederick C. Hicks, Materials and Methods of Legal Research 207 (3d ed. 1942) (listing all American law school periodicals existing in 1942 with initial years of publication). This statistic does not, however, reflect all of the 19 attempts made to create school-sponsored law reviews up to the turn of the century; for a variety of reasons, the majority of these early initiatives failed. See id. at 206.
69. Barbara H. Cane, Comment, The Role of Law Review in Legal Education, 31 J. Legal Educ. 215, 220 n.32 (1981).
70. McKelvey, supra note 7, at 868.
71. Editorial Notes, 1 Ill. L. Rev. 39, 39 (1906).
72. A.K., Editorial Note, The Law Review, 21 Ill. L. Rev. 147, 153 (1926).
73. Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38 (1936).
74. Id. at 38.
75. Id. at 44. Rodell was in good company. One of the original student founders of the Harvard Law Review, John Wigmore, admitted the same year: "I sometimes wonder if this journal-type is not becoming staled. Has mass-organization resulted in too much standardization?" Wigmore, supra note 49, at 867.
76. Rodell, supra note 68, at 44-45.
77. Id. at 38.
78. The Wisconsin Law Review was established in 1920 as a faculty-run journal; by 1930, it had become "a more autonomous, student-run organization with less control and influence being exerted by the faculty." The Wisconsin Law Review: Fifty Years of Proud Tradition, 1970 Wis. L. Rev. 973, 973. Students became the sole editors in 1935, although a faculty advisor was retained. Id. at 974.
79. Charles E. Hughes, Foreword, 50 Yale L.J. 737, 737 (1941) (quoting Holmes from memory of some "thirty years ago [when] he admonished counsel who had the temerity to refer to [law review notes] in argument"). From 1870-1873, Holmes had served as Editor of the American Law Review.
80. A.K., supra note 67, at 149.
81. Clarence M. Updegraff, Management of Law School Reviews, 3 U. Cin. L. Rev. 115, 119-20 (1929).
82. See generally American Legal Realism (William W. Fisher III et al. eds., 1993).
83. On Rodell's realism, see Neil Duxbury, In the Twilight of Legal Realism: Fred Rodell and the Limits of Legal Critique, 11 Oxford J. Legal Stud. 354 (1991).
84. Cavers, supra note 43, at 6-7.
85. In 1913, for example, the editors of the Cornell Law Quarterly responded to the Illinois Law Journal's earlier criticisms of the genre: It is seriously to be questioned whether the mere fact of the multiplication of periodicals in any field of serious endeavor is evidence of waste. One may reasonably assert that the extraordinary number of scientific and technical reviews published in Germany (for example, a dozen or more devoted to entomology) is rather the natural and inevitable expression of intense, varied and widespread intellectual activity. Woodruff, supra note 29, at 27. Rather more grandiosely, Karl Llewellyn later argued, [The] law review is . . . a thing American. Here is a thing Americans may well be proud of. There is not so far as I know in the world an academic faculty which pins its reputation before the public upon the work of undergraduate students - there is none, that is, except in the American law reviews. Such an institution it is a privilege to serve. Such an institution it is an honor to belong to. K.N. Llewellyn, The Bramble Bush 105 (Oceana Publications 1951) (1930); see also Frederick E. Crane, Law School Reviews and the Courts, 4 Fordham L. Rev. 1, 1-3 (1935) (discussing reliance of judges and practicing lawyers on law school journals); Douglas B. Maggs, Concerning the Extent to Which the Law Review Contributes to the Development of the Law, 3 S. Cal. L. Rev. 181, 190 (1930) (concluding that "each law school not now publishing a law review should be encouraged to institute one").
86. For a brief description of the experiment and its early results, see A.K., supra note 67, at 148.
87. See Foreword, 1 Law & Contemp. Probs. 1 (1933) (stating these goals).
88. A.K., supra note 67, at 150.
89. Editorial, 27 Ill. L. Rev. 290 (1932).
90. See, e.g., Cavers, supra note 43, at 11-19 (proposing that specialized reviews would extend range of legal scholarship and suggesting subject areas and possible format).
91. See generally G. Edward White, From Realism to Critical Legal Studies: A Truncated Intellectual History, 40 Sw. L.J. 819 (1986).
92. See, e.g., Augustus N. Hand, Foreword, 33 Iowa L. Rev. 193 (1948) (introducing symposium issue on State Administrative Procedure); Labor Relations and the Law: A Symposium, 14 U. Chi. L. Rev. 331 (1947). The University of Illinois Law Forum (a stateoriented law review) began publishing symposium issues on a regular basis in 1950.
93. Cavers, supra note 43, at 11-12.
94. John E. Cribbet, Experimentation in the Law Reviews, 5 J. Legal Educ. 72, 81 (1952).
95. Stanley H. Fuld, A Judge Looks at the Law Review, 28 N.Y.U. L. Rev. 913, 919-20 (1953).
96. Arthur S. Miller, A Modest Proposal for Changing Law Review Formats, 8 J. Legal Educ. 89, 89, 91 (1955).
97. Fred Rodell, Goodbye to Law Reviews-Revisited, 48 Va. L. Rev. 279, 286 (1962).
98. See Rodell, supra note 68, at 286-90.
99. See Cribbet, supra note 89, at 73; McKelvey, supra note 7, at 868.
100. Alan W. Mewett, Reviewing the Law Reviews, 8 J. Legal Educ. 188, 188-89 (1955).
101. Id. at 189.
102. Id. at 191; see also John G. Hervey, There's Still Room for Improvement, 9 J. Legal Educ. 149, 151 (1956).
103. The phrase "publish or perish" was apparently coined by Logan Wilson in his classic study, The Academic Man: A Study in the Sociology of a Profession 197 (1942) ("The prevailing pragmatism forced upon the academic group is that one must write something and get it into print. Situation imperatives dictate a 'publish or perish' credo within the ranks.").
104. See generally Stevens, supra note 8, at 271 (reporting that "[t]he emphasis of law professors on article writing flourished in the 1950s as the number of law reviews grew").
105. J. Willard Hurst, Research Responsibilities of University Law Schools, 10 J. Legal Educ. 147, 153-54 (1957).
106. Stanley E. Harper, Jr., Caution, Research Ahead, 13 J. Legal Educ. 411, 411 n.2 (1961) (quoting Association of Am. Law Sch., Proceedings 194-95 (1959)).
107. Stason, supra note 28, at 1137.
108. Mewett, supra note 95, at 190.
109. Arthur Nussbaum, Some Remarks About the Position of the Student-Editors of the Law Review, 7 J. Legal Educ. 381, 381 (1955).
110. See, e.g., Harold Marsh, Jr., The Law Review and the Law School: Some Reflections About Legal Education, 42 Ill. L. Rev. 424, 433-34 (1947); Howard C. Westwood, The Law Review Should Become the Law School, 31 Va. L. Rev. 913 (1945).
111. See Stevens, supra note 8, at 221 n.38. Berkeley, for instance, accepted 70% of its applicants in 1954, but only 34% in 1968. Id.
112. Fuld, supra note 90, at 917; see also Roger J. Traynor, To the Right Honorable Law Reviews, 10 UCLA L. Rev. 3, 4 (1962) (calling for extension of law review training "to as many students as are willing and able to benefit therefrom").
113. Harold C. Havighurst, Law Reviews and Legal Education, 51 Nw. U. L. Rev. 22, 25-26 (1956); see also Roy Moreland, Unfair Domination of Law Reviews, 12 J. Legal Educ. 424 (1960) (calling for publication of student papers by non-law review members so as to extend legal research training to more law students).
114. See, e.g., Kenneth F. Burgess, Law Reviews and the Practicing Lawyer, 51 Nw. U. L. Rev. 10, 14 (1956) (declaring that "[n]o convincing reason exists, from the standpoint of the practicing lawyer, for altering the established format of the law review"); Havighurst, supra note 108, at 24 (meeting criticism that too many law reviews were being produced for too few readers by noting that "[w]hereas most periodicals are published primarily in order that they may be read, the law reviews are published primarily in order that they may be written"); Arthur H. Kahn, Comment, Some Additional Remarks about the Position of the Student-Editors of the Law Review, 9 J. Legal Educ. 73 (1956) (defending student editorial control); William M. Moldoff, Reviewing the Law Reviews: An Answer, 8 J. Legal Educ. 497 (1956) (responding to Mewett); Traynor, supra note 107, at 8 (responding to critics denigrating law review as product of students: "They pay no heed to the evidence that the average apprentice in an American law school has long since reached the age of discretion and that he is no ordinary student."); Earl Warren, Message of Greeting to the U.C.L.A. Law Review, 1 UCLA L. Rev. 1, 1 (1953) ("The American law review has properly been called the most remarkable institution of the law school world.").
115. This journal actually originated as the University of Detroit Law Journal; it represented one of the few instances of a law school deciding to replace its general journal with a specialist law review. The practice of student editorial control survived the transition. See Introduction, 44 J. Urb. L. 1, 1 (1966).
116. See, e.g., James R. Clark, The Wisconsin Law Review in Today's Legal and Educational Environment, 1970 Wis. L. Rev. 983, 987 (describing Wisconsin Law Review's program allowing students to participate as editors pursuant to writing competition).
117. The Wisconsin Law Review: Fifty Years of Proud Tradition, supra note 73, at 974.
118. Cribbet, supra note 89, at 81.
119. See Cane, supra note 64, at 222 ("[N]ot all means of achieving [law review] membership are considered equally prestigious.").
120. See, e.g., Clark, supra note 111, at 983-84 (criticizing lack of editorial continuity in student-edited law reviews); John F.T. Murray, Publish and Perish - By Suffocation, 27 J. Legal Educ. 566 (1975) (criticizing repetition and marginal quality of most law review writing produced under pressures of "publish or perish"); Louis B. Schwartz, Civilizing the Law Review, 20 J. Legal Educ. 63 (1967) (criticizing narrow, technical scope of law reviews); Edd D. Wheeler, The Bottom Lines: Fifty Years of Legal Footnoting in Review, 72 Law Libr. J. 245 (1979) (criticizing radical lengthening, if not necessarily radical proliferation, of law review footnotes since 1928); The Law Review - Is It Meeting the Needs of the Legal Community?, 44 Denv. L.J. 426 (1967) (presenting results of one-year Denver Law Journal survey of law reviews' content and its evaluation by judges, attorneys, and law professors).
121. See, e.g., Cramton, supra note 60 (describing and criticizing student-edited law reviews).
122. See, e.g., Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131, 1133 (1995) (pointing to law reviews' failure and inability to adapt to changing nature of American law and American legal scholarship).
123. See, e.g., James Lindgren, An Author's Manifesto, 61 U. Chi. L. Rev. 527, 531 (1994) [hereinafter Lindgren, Manifesto] (arguing that student editors are "grossly" unsuited for jobs facing them); James Lindgren, Fear of Writing, 78 Cal. L. Rev. 1677, 1681-94 (1990) [hereinafter Lindgren, Fear of Writing] (criticizing rules in Texas Law Review Manual of Style as wrong and misleading); James Lindgren, Reforming the American Law Review, 47 Stan. L. Rev. 1123, 1124-28 (1995) [hereinafter Lindgren, Reforming] (explaining that American law review is in transition and prescribing four revised models for student-edited law reviews).
124. See Symposium on Law Review Editing: The Struggle Between Author and Editor Over Control of the Text, 70 Chi.-Kent L. Rev. 71 (1994); Special Issue: Law Review Conference, 47 Stan. L. Rev. 1147 (1995).
125. See Exchange, 61 U. Chi. L. Rev. 527 (1994) (including Lindgren, Manifesto, supra note 118, at 527, Wendy J. Gordon, Counter-Manifesto: Student-Edited Reviews and the Intellectual Properties of Scholarship, at 541, and The Articles Editors, A Response, at 553).
126. See Exchange, 61 U. Chi. L. Rev. 527 (1994) (including Lindgren, Manifesto, supra note 118, at 527, Wendy J. Gordon, Counter-Manifesto: Student-Edited Reviews and the Intellectual Properties of Scholarship, at 541, and The Articles Editors, A Response, at 553).
127. See Christopher Shea, Students v. Professors: Law-Review Debate Heats Up as Student Editors Clash with Faculty Authors, Chron. Higher Educ., June 2, 1995, at A33; see also Rosa Ehrenreich, Look Who's Editing, Lingua Franca, Jan./Feb. 1996, at 58.
128. For example, feminist jurisprudence and women's legal issues, environmental law, civil rights law, international law, tax law, entertainment law, comparative law, and computers and law.
129. The Harvard BlackLetter Journal, the Harvard Civil Rights-Civil Liberties Law Review, the Harvard Environmental Law Review, the Harvard Human Rights Journal, the Harvard International Law Journal, the Harvard Journal of Law and Public Policy, the Harvard Journal of Law and Technology, the Harvard Journal on Legislation, and the Harvard Women's Law Journal. Law Sch. Admission Council, The Official Guide to U.S. Law Schools 179 (1995). As of this writing, Harvard is about to start yet another journal, the Harvard Negotiation Law Review. Everyone's an Editor, Student Law., Nov. 1995, at 5.
130. The African-American Law and Policy Report, the Asian Law Journal, the Berkeley Journal of Employment and Labor Law, the Berkeley Women's Law Journal, the Ecology Law Quarterly, the High Technology Law Journal, the International Tax and Business Lawyer, and La Raza Law Journal. Law Sch. Admission Council, supra note 123, at 92.
131. The Columbia reviews include the Columbia Business Law Review, the Columbia Human Rights Law Review, the Columbia Journal of Environmental Law, the Columbia Journal of Gender and Law, the Columbia Journal of Law and Social Problems, the Columbia Journal of Transnational Law, and the Columbia-VLA Journal of Law & the Arts. The Georgetown reviews include the American Criminal Law Review, Georgetown Immigration Law Journal, the Georgetown Journal of Legal Ethics, the Georgetown Journal on Fighting Poverty, the Georgetown International Environmental Law Review, Law and Policy in International Business, and the Tax Lawyer. Id. at 167.
132. Yale journals include the Yale Journal of International Law, the Yale Journal of Law and Feminism, the Yale Journal of Law and the Humanities, the Yale Journal on Regulation, and the Yale Law and Policy Review. New York University publishes the Annual Survey of American Law, the New York University Environmental Law Journal, the New York University Journal of International Law and Politics, the New York University Review of Law & Social Change, and the Tax Law Review (faculty-run). See id. at 257 (listing student-run journals only).
133. Id. at 369, 272-73, 351.
134. Cane, supra note 64, at 220 n.32.
135. Preckshot, supra note 62, at 1009 n.25 (1990) (citing Index to Legal Periodicals (Supp. Oct. 1989)).
136. This figure was obtained by counting those law journals in the Index to Legal Periodicals which either carry a law school's name in their titles or list a law school as an editorial address. Index to Legal Periodicals (Supp. June 1995). It may be a low estimate, however: the information on individual law schools in The Official Guide to U.S. Law Schools, published by the Law School Admissions Council, collectively suggests a figure closer to (or, given gaps in its coverage, even above) 413. See Law Sch. Admission Council, supra note 123, passim.
137. One law dean has offered the following tongue-in-cheek proposal as a means of "solving" the problem: "Law schools should enter into a non-proliferation treaty on law reviews. No new reviews, gradual destruction of existing stockpiles until all are destroyed." Roger I. Abrams, This is Not an Article, or Scholarship: The Greek Salad, 13 Nova L. Rev. 33, 37 (1988).
138. See, e.g., Kenneth Lasson, Scholarship Amok: Excesses in the Pursuit of Truth and Tenure, 103 Harv. L. Rev. 926, 928 (1990) ("Slops fill the law reviews. Simply put, there are too many of them.").
139. On this problem in academia as a whole, see Deana L. Astle, The Scholarly Journal: Whence or Wither, 15 J. Acad. Librarianship 151 (1989). On law school budget and financing problems in particular, see, e.g., Richard Reuben, State Law Schools Squeezed for Cash, A.B.A. J., Apr. 1994, at 32.
140. See Arthur D. Austin, Footnotes as Product Differentiation, 40 Vand. L. Rev. 1131, 1138 (1987) ("Looking for a way to . . . compete successfully for bright students, ambitious schools followed academic tradition by giving first priority to research and scholarship. . . . 'Publish or perish' descended on law schools with a vengeance.").
141. See infra notes 177-80 and accompanying text.
142. Elyce H. Zenoff & Lizabeth A. Moody, Law Faculty Attrition: Are We Doing Something Wrong?, 36 J. Legal Educ. 209, 220 (1986) (citing Association of Am. Law Sch., Tenure Practices Survey - Preliminary Report 12 (Oct. 3, 1978)).
143. See Graham C. Lilly, Law Schools Without Lawyers? Winds of Change in Legal Education, 81 Va. L. Rev. 1421, 1437 (1995) (referring to "mounting pressure on young academics, particularly untenured ones, to research and publish"); Zenoff & Moody, supra note 137, at 220-21 (discussing "recent emphasis on scholarship" in tenure process).
144. On the tendency of most law professors, lawyers, and judges to cite, and more generally read, only a very few law reviews (essentially those from the "elite" schools), see Olavi Maru, Measuring the Impact of Legal Periodicals, 1976 Am. B. Found. Res. J. 227, 232-42.
145. Some law faculties actually require that their junior members publish in a prescribed number of "acceptable" (read "elite" or "high-profile") law reviews. Michael Vitiello, Journal Wars, 22 St. Mary's L.J. 927, 929 (1991). Even among those faculties where no such formal requirement exists, article placement is often taken as a proxy for the quality of the piece. Id. at 936.
146. See, e.g., Cramton, supra note 60, at 7 (noting that modern legal scholarship has demolished effectiveness of student editing); Lindgren, Manifesto, supra note 118, at 528 (pointing out that law review staffs are greatly disadvantaged because students are ignorant, immature, inexperienced, and have inadequate incentives); Posner, supra note 117, at 1132 (explaining that student editors, who are often young and work part-time, do not comprehend the scholarly enterprise they manage).
147. See, e.g., Banks McDowell, The Audiences for Legal Scholarship, 40 J. Legal Educ. 261, 269 (1990).
148. Lindgren, Manifesto, supra note 118, at 530.
149. See Arthur D. Austin, The "Custom of Vetting" as a Substitute for Peer Review, 32 Ariz. L. Rev. 1, 5-7 (1989).
150. See, e.g., Cramton, supra note 60, at 8 (alleging that student editors discourage innovation); Lindgren, Manifesto, supra note 118, at 533 (observing two most frequently selected topic areas for articles are constitutional law and corporate law); Laura F. Rothstein & Mark A. Rothstein, Law Reviews Suffer from Lack of Peer Review, Legal Times, Jan. 6, 1986, at 10 (arguing that similar pieces are frequently chosen for publication).
151. Carl Tobias, Manuscript Selection Anti-Manifesto, 80 Cornell L. Rev. 529, 530 (1995).
152. See, e.g., Ira M. Ellman, Comparison of Law Faculty Production in Leading Law Reviews, 33 J. Legal Educ. 681, 685 (1983) (citing editors of Virginia Law Review for filling 1323 of 2794 pages with their own faculty's material over two and one-half year period).
153. See Catherine G. Cahan, Living with the Pressure to Publish or Perish, Student Law., Sept. 1985, at 5 (describing pressure on student editors to publish articles of faculty at their own schools); Jordan H. Leibman & James P. White, How the Student-Edited Law Journals Make Their Publication Decisions, 39 J. Legal Educ. 387, 405 (1990) (same).
154. A number of law reviews have recently moved to prevent or at least extremely limit law review "shopping" by imposing very short deadlines on would-be authors (which is certain to induce even more dissatisfaction). Lisa Anderson, Law Journals Attack 'Shopping' of Manuscripts, N.Y. Times, July 12, 1995, at B6.
155. See, e.g., Gregory E. Maggs, Just Say No?, 70 Chi.-Kent L. Rev. 101, 103 (1994); Carol Sanger, Editing, 82 Geo. L.J. 513, 517 (1993) (explaining that during editorial process, articles are transformed "from something written by an author with a distinct voice . . . to a composition by student committee").
156. See, e.g., Lindgren, Manifesto, supra note 118, at 531; Rothstein & Rothstein, supra note 145, at 10; Sanger, supra note 150, at 517.
157. See, e.g., Lindgren, Manifesto, supra note 118, at 529 (citing case of one scholar who found more than 200 style errors introduced into original manuscript after student edit). Lindgren himself has concluded that "[l]aw-review editors are the most aggressive and ignorant editors you will ever encounter." Shea, supra note 121, at A33 (quoting Lindgren, Manifesto, supra note 118, at 527). In 1995, a problematic edit by the student editors of the Fordham International Law Journal actually led to a lawsuit (ironically brought by a student whose Note had allegedly been mangled). The suit was dismissed on summary judgment, not because there were no serious errors in the Note, but rather because the plaintiff could show no good cause of action in federal law. Choe v. Fordham Univ. Sch. of Law, 920 F. Supp. 44, 49 (S.D.N.Y. 1995).
158. Mark Thompson, The Law Review Meets the Marketplace, Student Law., Dec. 1984, at 14, 19.
159. Ronald D. Rotunda, Law Reviews: The Extreme Centrist Position, 62 Ind. L.J. 1, 10 (1986).
160. Sanger, supra note 150, at 517.
161. See, e.g., Michael L. Closen, A Proposed Code of Professional Responsibility for Law Reviews, 63 Notre Dame L. Rev. 55, 57 (1989).
162. See, e.g., David M. Richardson, Improving the Law Review Model: A Case in Point, 44 J. Legal Educ. 6, 7 (1994).
163. See Lasson, supra note 133, at 933 ("Most often the lag is so long between the first dull gleam in an author's eye and the finished product that whatever might be timely and relevant is largely lost on whatever few readers may be out there. The stuff is simply stale.").
164. See infra notes 172-73 and accompanying text.
165. Pursuing a rather selective (and perhaps optimistic) placement strategy, I initially submitted the print version of this Article to "only" 14 journals.
166. See generally Erik M. Jensen, The Law Review Manuscript Glut: The Need for Guidelines, 39 J. Legal Educ. 383, 383 (1989) (arguing that law review selection process "has broken down in many cases").
167. Josh E. Fidler, Law-Review Operations and Management, 33 J. Legal Educ. 48, 60 (1983).
168. Tobias, supra note 146, at 531. Another estimate suggests more than 1500. See Shea, supra note 121, at A33.
169. Cf. Rotunda, supra note 154, at 9 (conceding existence of drawbacks to student-run publications). In 1983, the average law review published two months behind schedule. Fidler, supra note 162, at 51. Anecdotal evidence would suggest that by 1995, that lag had become at least a month or two longer.
170. See, e.g., John G. Kester, Faculty Participation in the Student-Edited Law Review, 36 J. Legal Educ. 14, 14 (1986) ("[W]e editors who guarded the lofty independence of even the most-independent-of-all Harvard Law Review in the pre-Jacobin era of a generation ago kept a careful eye cocked on the Harvard faculty. Our professors, in turn, generously supplied counsel that we were clever enough to recognize (if not always admit) we needed.").
171. Id. at 16.
172. Cramton, supra note 60, at 6; see also Dekanal, supra note 6, at 234 (expressing regret at declining faculty participation).
173. See Patricia Bellew Gray, Harvard Faculty Hit for Plan to Start New Law Journal, Chi. Daily L. Bull., May 28, 1986, at 2.
174. Kester, supra note 165, at 15-16.
175. Chris Goodrich, Professor, Edit Thyself, Cal. Law., July 1986, at 48, 52.
176. Kester, supra note 165, at 16.
177. See generally Leibman & White, supra note 148, at 423 (asserting that "the failure to provide feedback is the most serious weakness of the law review model").
178. Dekanal, supra note 6, at 236.
179. Cramton, supra note 60, at 9 (noting large portions of editorial staff efforts devoted to selecting new members); see also Lasson, supra note 133, at 932 (arguing that exclusive nature of law reviews calls scope of their educational value into question).
180. E. Joshua Rosenkranz, Law Review's Empire, 39 Hastings L.J. 859, 860 (1988); see also id. at 899, 899-911 (positing that "[l]aw review does not make you any smarter - the experience is illusory").
181. Rosemary Harold, Dilemmas: Law Review Isn't What You Think It Will Be. But Is Membership Really Worth It?, Student Law., Jan. 1991, at 7.
182. See generally Richard A. Posner, The Decline of Law as an Autonomous Discipline, 1962-1987, 100 Harv. L. Rev. 761 (1987).
183. See Robert Weisberg, Some Ways to Think About Law Reviews, 47 Stan. L. Rev. 1147, 1154 (1995) (discussing impact of changing demographics on legal education in America).
184. Posner, supra note 117, at 1133-34.
185. Lindgren, Manifesto, supra note 118, at 535.
186. In 1960, for instance, judges and practitioners published almost as many articles in law reviews as did professors. Judith S. Kaye, One Judge's View of Academic Law Review Writing, 39 J. Legal Educ. 313, 320 n.33 (1989) (citing Michael Saks's January 1989 presentation of research for law journal study to symposium on legal scholarship). By 1985, however, articles by professors outnumbered those by judges and practitioners by more than three to one. Id.
187. See Cramton, supra note 60, at 10 (noting that law review articles are remote from practitioners' problems); Max Stier et al., Law Review Usage and Suggestions for Improvement: A Survey of Attorneys, Professors, and Judges, 44 Stan. L. Rev. 1467, 1498 (1992) (reporting results of survey indicating that judges and attorneys found contemporary law review articles too theoretical); Law Reviews: A Waste of Time and Money?, Am. Law., Apr. 1994, at 50 (quoting on-line expressions of dissatisfaction with law reviews from members of legal profession).
188. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34, 36 (1992).
189. United States v. $639,558 in United States Currency, 955 F.2d 712, 722 (D.C. Cir. 1992) (Silberman, J., concurring).
190. On the increasing length of contemporary law review articles, see W. Lawrence Church, A Plea for Readable Law Review Articles, 1989 Wis. L. Rev. 739, 740 (reporting that in 1936-1937, length of average leading article in Wisconsin Law Review was 13 pages; in 1962, 36 pages; and in 1988, over 44 pages); Elyce H. Zenoff, I Have Seen the Enemy and They Are Us, 36 J. Legal Educ. 21, 21 n.1 (1986) (noting that for 17 of 20 law reviews surveyed, length of articles in first issue of current volume was longer on average in 1984-1985 than in 1954-1955). On the history, function, and problems associated with footnotes, see generally Austin, supra note 135 (discussing authors' uses of footnotes to differentiate their articles and to give impression of scholarly depth); Lasson, supra note 133, at 937-41 (arguing that negative effects of footnote proliferation outweigh positive effects); William R. Slomanson, Footnote Logic in Law Review Writing: Previously Unaddressed in the Criminal Justice System, 9 Crim. Just. J. 65 (1986).
191. This is consistent with the results of a 1983 study which indicated that as legal academics rose through the tenure track (from Acting Professor to Assistant Professor, Associate Professor, Professor, and Dean) and consequently had fewer promotional concerns, they produced articles with fewer pages, fewer footnotes, and fewer footnotes per page. See Ellman, supra note 147, at 683 (analyzing study's statistics broken down by rank and occupation of author).
192. Lindgren, Manifesto, supra note 118, at 531.
193. See Austin, supra note 135, at 1141-43 (describing "numbers game" played by "[n]eophyte writers [who] have a tendency to go for quantity").
194. The footnote "problem" in particular has also been exacerbated by the traditional absence of bibliographies in law review articles. If bibliographies were common, law professors might feel less compelled to annotate in order to show they had read or consulted a particular work, or to point readers to that work.
195. See, e.g., Austin, supra note 135, at 1133-35 ("A chorus of critics argue that footnotes have become a serious embarrassment to legal scholarship . . . ."); Alfred F. Conard, A Lovable Law Review, 44 J. Legal Educ. 1, 1 (1994) (claiming to "love brevity"); Ronald B. Lansing, The Creative Bridge Between Authors and Editors, 45 Md. L. Rev. 241, 248-50 (1986) (complaining about number of footnotes per article); Stier et al., supra note 182, at 1499 (reporting results of survey in which most professors, judges, and attorneys agreed that articles should be shorter and less heavily footnoted). For a discussion of footnoting problems, see generally Church, supra note 185.
196. Thompson, supra note 153, at 17.
197. On the limited value of the "writing competition," see Rosenkranz, supra note 175, at 894-97 (arguing that writing competitions cannot measure research skills and do not measure analytic skills).
198. Joel Seligman, The High Citadel 182 (1978).
199. See Drawing Distinctions at Harvard Law, N.Y. Times, Mar. 3, 1981, at A18 (claiming that "a fixed standard of merit is being abandoned for only the vaguest reasons of social good"); Harvard Law Review's Ethnic Screening Criticized, N.Y. Times, Feb. 24, 1981, at A12 (discussing objections to Harvard's policy). After female editors voted against its application to themselves, the Review's affirmative action policy ultimately did not extend to women. Perhaps consequently, women made up a mere 11 of the 44 new members on the most recent (1995-1996) Harvard Law Review board. Tara Dawood, Law Review to Study Gender Disparity, Harv. L. Rec., Oct. 20, 1995, at 1.
200. Fidler, supra note 162, at 53 (reporting results from New York University Law Review Alumni Association survey). Controversy over law review affirmative action policies nonetheless continued beyond this initial period of implementation. See, e.g., Scholarly Schism, 75 A.B.A. J. 50 (1989) (discussing affirmative action on George Washington Law Review).
201. Cramton, supra note 60, at 8-9; Lasson, supra note 133.
202. See generally Lindgren, Fear of Writing, supra note 118, at 1678 (claiming Texas Law Review Manual on Style represents "one of the most pernicious collections of superstitions that has ever been taken seriously by educated people"); Richard A. Posner, Goodbye to the Bluebook, 53 U. Chi. L. Rev. 1343, 1349-51 (1986) (claiming that "[t]he Bluebook creates an atmosphere of formality and redundancy" and providing examples "of the antilessons that our heavily student-influenced legal culture enforces").
203. See, e.g., Wendy J. Gordon, Counter-Manifesto: Student-Edited Law Reviews and the Intellectual Properties of Scholarship, 61 U. Chi. L. Rev. 541 (1994); John Paul Jones, In Praise of Student-Edited Law Reviews: A Reply to Professor Dekanal, 57 UMKC L. Rev. 241 (1989); Joseph R. Julin, Faculty-Edited Law Review: No - A Statement by Joseph R. Julin, 16/3 Syllabus 1 (1985); Scott M. Martin, The Law Review Citadel: Rodell Revisited, 71 Iowa L. Rev. 1093 (1986); Rotunda, supra note 154, at 9 (noting virtues of present law review system); Michael Vitiello, In Defense of Student-Run Law Reviews, 17 Cumb. L. Rev. 859 (1987) [hereinafter Vitiello, In Defense]; Vitiello, supra note 140; The Articles Editors, A Response, 61 U. Chi. L. Rev. 553 (1994); Phil Nichols, Note, A Student Defense of Student Edited Journals: In Response to Professor Roger Cramton, 1987 Duke L.J. 1122.
204. See, e.g., Lindgren, Reforming, supra note 118, at 1123 ("The law review reform movement is coming of age. As this symposium attests, at least the targets of our criticism are beginning to listen."); Vitiello, supra note 140, at 930 ("[T]here has been positive change in format and content of what many law reviews are publishing.").
205. The Articles Editors, supra note 198, at 558.
206. Lindgren, Reforming, supra note 118, at 1129. In "blind" article selection, students considering articles are not privy to the identities, institutional affiliations, or curriculum vitaes of faculty authors.
207. John C. Metaxas, Two New Faculty-Edited Journals Enter the Legal Scholarship Arena, Nat'l L.J., Jan. 27, 1986, at 4. On the general proliferation of "Correspondence" sections, see Erik M. Jensen, Law Review Correspondence: Better Read than Dead?, 24 Conn. L. Rev. 159 (1991).
208. John C. Metaxas, Harvard Law Review Inaugurates an Informal 'Commentary' Section, Natl1 L.J., Dec. 16, 1985, at 4.
209. E.g., Richard Delgado & Helen Leskovac, The Politics of Workplace Reforms: Recent Works on Parental Leave and a Father-Daughter Dialogue, 40 Rutgers L. Rev. 1031, 1039-58 (1988) (presenting fictional dialogue on "parental leave's ability to benefit or harm women").
210. E.g., Victor Bolden, Judge Not, That Ye Be Not Judged: A Dramatic Call for a More Enlightened Approach to Judicial Decision-Making in Race Discrimination Cases, 7 Harv. BlackLetter J. 33 (1990) (presenting play "on how judges ought to look at themselves and how they consider deciding cases").
211. See, e.g., A. Sirico, Supreme Court Haiku, 61 N.Y.U. L. Rev. 1224 (1986) (reducing notorious cases to six poetic moments).
212. See generally Executive Board, The Symposium Format as a Solution to Problems Inherent in Student-Edited Law Journals: A View from the Inside, 70 Chi.-Kent L. Rev. 141, 141 (1994) (discussing "degree to which the Chicago-Kent Law Review's symposium format works to solve [various] problems"); Jean Stefancic, The Law Review Symposium Issue: Community of Meaning or Re-inscription of Hierarchy?, 63 U. Colo. L. Rev. 651 (1992) (examining proliferation of symposium issues).
213. See generally Thompson, supra note 153.
214. "We aimed for something more in-depth than Harper's or Atlantic but not as dry or as boring as a standard law review." Thompson, supra note 153, at 16 (quoting a former editor of the Yale Journal of Law and Politics).
215. See generally Richard A. Epstein, Faculty-Edited Law Journals, 70 Chi.-Kent L. Rev. 87 (1994).
216. On the new regime at the Chicago-Kent Law Review, see Randy E. Barnett, Beyond the Moot Law Review: A Short Story with a Happy Ending, 70 Chi.-Kent L. Rev. 123 (1994).
217. Not all attempts at faculty takeover have been completely successful. At George Mason University, for instance, the faculty's declared intention to assume control of the flagship student-run law review generated such controversy that the students began an "independent" law review (appropriately named the George Mason Independent Law Review). The faculty ultimately agreed to a compromise which allowed students to maintain control over article selection and editing in the main journal, although at the same time the faculty insisted that it include only student-written articles. For discussions of the attempted faculty "coup," see Stier et al., supra note 182, at 1504 n.112; Lisa Schkolnick, Review Revamp Raises Ire at George Mason, Student Law., Jan. 1992, at 47.
218. See generally Lindgren, Reforming, supra note 118, at 1129.
219. The Articles Editors, supra note 198, at 554-55 (stating that writing style, among other things, may give authors' identities away); see also Rebecca M. Blank, The Effects of Double-Blind versus Single-Blind Reviewing: Experimental Evidence from the American Economic Review, 81 Am. Econ. Rev. 1041, 1045 (1991).
220. See supra text accompanying note 88; see also Executive Board, supra note 207, at 143-46 (noting that "[t]he symposium format gives rise to a number of problems" including publishing delays due to the "slowest article," authors' withdrawals of articles, additional bureaucratic layer in form of faculty symposium editor, and relinquishment of student control over topic and article selection).
221. See Rotunda, supra note 154, at 6.
222. On the controversy surrounding the Harvard initiative, see Gray, supra note 168, at 2. The proposal that the AALS sponsor a journal was originally floated by its then-President, Roger Cramton, in 1985. Cramton, supra note 60, at 9-10. On the two proposals generally, see Metaxas, supra note 202.
223. On the failure of the Harvard journal, see John C. Metaxas, Harvard Faculty Journal Loses Tribe to Bicentennial of the Constitution, Nat'l L.J., July 21, 1986, at 4 (discussing resignation of Laurence Tribe, designated editor of faculty-edited Harvard law journal, so that he could devote his attention to other scholarly endeavors).
224. Horror stories about peer review in the arts and sciences are common. In one particularly provocative experiment on the objectivity of the process, researchers selected a dozen articles written by well-known authors that had recently appeared in respected journals, resubmitting them to the same journals with the names of the original authors deleted. The journals and their appointed referees (two per article) rejected eight of the twelve resubmitted pieces, citing poor scholarship and poor writing. Douglas P. Peters & Stephen J. Ceci, Peer-Review Practices of Psychological Journals, 5 Behavioral & Brain Sci. 187, 187-90 (1982); see also Mary Biggs, The Impact of Peer Review on Intellectual Freedom, 39 Libr. Trends 145, 157-58 (1990) (discussing Peters & Ceci study).
225. Vitiello, In Defense, supra note 198, at 872-73.
226. In addition to the sources cited supra note 27, see Roscoe Pound et al., Report of the Special Committee to Consider and Report as to the Duplication of Law Books and Publications, 61 A.B.A. Rep. 848 (1936); Samuel H. Sibley, The Multitude of Published Opinions, 25 J. Am. Judicature Soc. 166, 166 (1942) (arguing that "courts of last resort . . . or the legislatures, ought to restrain the publication of those [opinions] not of general importance").
227. See, for instance, Eugene M. Prince, Law Books, Unlimited, 48 A.B.A. J. 134, 134 (1962) ("Lawyers know that there are too many law books, but not every lawyer realizes how many, or how critical a problem these books present.").
228. For extensive documentation (complete with graphs), see Layman E. Allen et al., Automatic Retrieval of Legal Literature: Why and How 1-22 (1962); see also Robert A. Wilson, Computer Retrieval of Case Law, 16 Sw. L.J. 409, 409 (1962) ("Each year about 25,000 new opinions are published (nearly 700 cases per day) along with over 29,000 new statutes.").
229. Prince, supra note 222, at 135 (estimating that in 1961, establishing a minimum "adequate working library" for extensive state, federal, and administrative practice would cost $100,000, and $30,000 per year thereafter to maintain it).
230. See, e.g., Irving Kayton, Retrieving Case Law by Computer: Fact, Fiction, and Future, 35 Geo. Wash. L. Rev. 1, 1-6 (1966) ("The inherent problems of legal indices and digests are compounded by the extraordinarily large amounts of case law and other legal materials printed and disgorged daily."); Wilson, supra note 223, at 410 (discussing problems with breadth and identity of traditional indexing categories).
231. See Jessica S. Melton & Robert C. Bensing, Searching Legal Literature Electronically: Results of a Test Program, 45 Minn. L. Rev. 229, 230 (1960) ('"With each passing year, we pile up decision on statute on rule on regulation and then construct large and cumbersome digests, compendiums, indexes and other archeological devices which we hope will help us find what we want in the evergrowing mound.'" (quoting Counsel to the Governor of New Jersey, Vincent P. Biunno, Progress and New Developments in Electronic Research for the Lawyer, Address at the Meeting of the American Bar Association in Miami, Fla. (Aug., 1959))); Wilson, supra note 223, at 409 (discussing "the overtaxing of the traditional indexing systems, and the increasing inability of these systems to meet the research needs of the lawyer whose clients are more and more demanding faster answers to their growing legal problems").
232. See, e.g., Roy N. Freed, Prepare Now for Machine-Assisted Legal Research, 47 A.B.A. J. 764, 764-67 (1961) ("Substantial advantages are in store for lawyers from the use of machines and appropriate indexing techniques to aid in legal research."); Lawrence A. Harper, Legal Research, Technology and the Future, 24 State B. Cal. J. 104, 111 (1949) ("If in '49 the State Bar starts a serious investigation of the possibilities of mechanical aids to legal research . . . it should help to hasten the day when the attorney is emancipated from the slavery of routine research and freed to practice law."); Louis O. Kelso, Does the Law Need a Technological Revolution?, 18 Rocky Mtn. L. Rev. 378, 385-92 (1946) ("The American bar will do well to think seriously of mechanizing the drudgery of the practice of law, in order that the really irreplaceable human contributions may be liberated for the benefit of mankind."); J.M. Jacobstein, Note, Scientific Aids for Research, 31 Chi.-Kent L. Rev. 236, 243-45 (1952) (discussing necessity of electronic searching machine for legal research).
233. Freed, supra note 227, at 766 ("Professionals devote considerable time to poring through indices for citations and to chasing down the books to check on relevance. By finding relevant references faster and by reducing the percentage of irrelevance, machines will contribute real economies . . . .").
234. See John F. Horty, The "Key Words in Combination" Approach, M.U.L.L.: Modern Uses of Logic in Law, Mar. 1962, at 54, 57; see also id. at 62 ("The easy availability of this information means that, for the first time, it will be possible to analyze the contexts in which selected words used in statutes appear."). Apart from Horty's own circumstances, "[s]tatutes were the first area of the law to be adapted to computer research since the precision of their language made a search system based on a full text relatively feasible." Note, Science - Computers - The Use of Data Processing in Legal Research, 65 Mich. L. Rev. 987, 988 (1967).
235. F. Reed Dickerson, The Electronic Searching of Law, 47 A.B.A. J. 902, 902 (1961).
236. See Gerald W. Davis, Automatic Data Processing and the Judge Advocate General's Corps, 23 Mil. L. Rev. 117, 129 (1964); David T. Moody, Note, Legal Research: Computer Retrieval of Statutory Law and Decisional Law, 19 Vand. L. Rev. 905, 909 n.9 (1966).
237. in particular, it was "off-line" (i.e., operated by technicians rather than by researchers with direct computer access), and it was minimally interactive (meaning that users had limited opportunity to refine searches in progress).
238. William G. Harrington, A Brief History of Computer-Assisted Legal Research, 77 Law Libr. J. 543, 547-48 (1984-1985).
239. Id. at 550.
240. Id. at 551.
241. Id. at 552-53.
242. Id. at 552.
243. Id. at 553.
244. Id. at 553-54.
245. Id. at 554.
246. Id.
247. Howard A. Hood, Disk and DAT: Recent Developments in Legal Databases and Emerging Information Technologies in the United States, 15 Int'l J. Legal Info. 109, 112 (1987).
248. Id.
249. Id.
250. Id.
251. Id.
252. WESTLAW carries well over 400 law journals and reviews. West Publishing Corp., WESTLAW Database List, Winter/Spring 1996, at 180-207. LEXIS carries barely over 300. LEXIS-NEXIS, Directory of Online Services 111-14 (1996).
253. See generally M. Ethan Katsh, Law in a Digital World 66-69 (1995) (discussing how "the growth of electronic sources of information changes the nature of information seeking activities because the context of information seeking is different").
254. See Peter W. Martin, How New Information Technologies Will Change the Way Law Professors Do and Distribute Scholarship, 83 Law Libr. J. 633, 635 (1991) (arguing that professors "will soon realize that to reach the widest possible audience of lawyers and judges with an article or its equivalent, the writing itself must be distributed electronically" and that "[p]ublication in WESTLAW and LEXIS, via the law review files, is already a more effective distribution path to members of the legal profession than print alone").
255. Having said all this, however, it must be admitted that in at least one way the electronic database services have made law reviews less useful: given the ease with which case and statute law now can be researched, attorneys and judges have become less inclined to use law reviews as comprehensive guides to legal materials on a particular subject.
256. On the history and development of the Internet, see, e.g., Richard W. Wiggins, The Internet for Everyone: A Guide for Users and Providers 5-10 (1995).
257. Bill Gates describes this typical first step: Whenever a new medium is created, the first content offered is brought over from other media. . . . So far the vast majority of content on-line has been "dumped" from another source. Magazine or newspaper publishers are taking text already created for paper editions and simply shoving it on-line, often minus the pictures, charts, and graphics. Bill Gates, The Road Ahead 126 (1995).
258. .
259. .
260. The number of individual Web users in the United States is now estimated in the millions. In January 1996, there were some 100,000 Web "sites" (locations of Web-based materials) worldwide, up from 23,500 in June 1995, 10,022 in December 1994, and 623 in December 1993. See generally Matthew Gray, Measuring the Growth of the Web, (May 8, 1996).
261. For explanations of hypertext, see generally Sven Birkerts, Hypertext: Of Mouse and Man, in The Gutenberg Elegies 151 (1994); M. Ethan Katsh, Hypertext: Constructing Cyberspace, in Katsh, supra note 248, at 195; George P. Landow, Hypertext: The Convergence of Contemporary Critical Theory and Technology 4 (1992) (describing hypertext as "a form of electronic text, a radically new information technology, and a mode of publication [which] denotes text composed of blocks of text . . . and the electronic links that join them").
262. For explanations of hypertext, see generally Sven Birkerts, Hypertext: Of Mouse and Man, in The Gutenberg Elegies 151 (1994); M. Ethan Katsh, Hypertext: Constructing Cyberspace, in Katsh, supra note 248, at 195; George P. Landow, Hypertext: The Convergence of Contemporary Critical Theory and Technology 4 (1992) (describing hypertext as "a form of electronic text, a radically new information technology, and a mode of publication [which] denotes text composed of blocks of text . . . and the electronic links that join them").
263. For explanations of hypertext, see generally Sven Birkerts, Hypertext: Of Mouse and Man, in The Gutenberg Elegies 151 (1994); M. Ethan Katsh, Hypertext: Constructing Cyberspace, in Katsh, supra note 248, at 195; George P. Landow, Hypertext: The Convergence of Contemporary Critical Theory and Technology 4 (1992) (describing hypertext as "a form of electronic text, a radically new information technology, and a mode of publication [which] denotes text composed of blocks of text . . . and the electronic links that join them").
264. (May 8, 1996). Psycoloquy was in fact the first peer-reviewed, fully electronic scientific journal on the Internet. Ann Shumelda Okerson & James J. O'Donnell, Introduction, in Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing 4 (Ann Shumelda Okerson & James J. O'Donnell eds., 1995).
265. (May 8, 1996).
266. On the potential implications of this strategy for LEXIS and WESTLAW, see Adrian Sherwood White, The Internet: Is It Curtains for Lexis-Nexis and Westlaw?, Legal Info. Alert, Apr. 1995, at 1, 1 (comparing resources and capabilities of on-line services with Internet, concluding that "the two big commercial legal networks can continue to breathe easily - at least for the moment").
267. E-mail from Will Sadler, Director of Internet Development, Center for Computer-Assisted Legal Instruction (CALI), to Bernard Hibbitts (May 13, 1996). Sadler put the Federal Communications Law Journal on-line with the cooperation of Fred Cate, Faculty Advisor to the Journal. The current Web address for the Federal Communications Law Journal is (May 8, 1996).
268. Cardozo Arts and Entertainment Law Journal, (May 8, 1996).
269. Cornell Law Review, (May 8, 1996).
270. Florida State Law Review, (May 8, 1996).
271. Hastings Women's Law Journal, (May 8, 1996).
272. Indiana Journal of Global Legal Studies, (May 8, 1996).
273. Villanova Law Review, (May 8, 1996).
274. Villanova Environmental Law Journal, (May 8, 1996).
275. E.g., Journal of Gender and the Law, (July 29, 1996).
276. As of May 1996, for example, the Web-based edition of the Cornell Law Review was more than a year behind schedule due to the fact that maintaining it proved to be an unexpectedly onerous task. See e-mail from David Lodemore, Editor-in-Chief, Cornell Law Review, to Bernard Hibbitts (Dec. 8, 1995) (on file with author) (recounting problems keeping journal updated).
277. National Journal of Sexual Orientation Law, (May 8, 1996).
278. Journal of Online Law, (May 8, 1996).
279. Richmond Journal of Law and Technology, (May 8, 1996).
280. Michigan Telecommunications and Technology Law Review, (May 8, 1996). The foregoing list is limited to American publications only, and by definition does not include Cardozo Electronic Law Bulletin, (May 8, 1996) (edited by law faculty at the University of Trento, Italy), E-Law, (May 8, 1996) (edited by law faculty at Murdoch University, Perth, Australia), Humboldt Forum Recht, (May 8, 1996) (edited by law students at Humboldt University Faculty of Law, Berlin, Germany), the Journal of Information Law and Technology, (May 8, 1996) (joint effort edited by faculty at universities of Warwick and Strathclyde in the United Kingdom), and the Web Journal of Current Legal Issues, (May 8, 1996) (faculty-edited out of the University of Newcastle-upon-Tyre, England).
281. Michigan Telecommunications and Technology Law Review, (May 8, 1996). The foregoing list is limited to American publications only, and by definition does not include Cardozo Electronic Law Bulletin, (May 8, 1996) (edited by law faculty at the University of Trento, Italy), E-Law, (May 8, 1996) (edited by law faculty at Murdoch University, Perth, Australia), Humboldt Forum Recht, (May 8, 1996) (edited by law students at Humboldt University Faculty of Law, Berlin, Germany), the Journal of Information Law and Technology, (May 8, 1996) (joint effort edited by faculty at universities of Warwick and Strathclyde in the United Kingdom), and the Web Journal of Current Legal Issues, (May 8, 1996) (faculty-edited out of the University of Newcastle-upon-Tyre, England).
282. Michigan Telecommunications and Technology Law Review, (May 8, 1996). The foregoing list is limited to American publications only, and by definition does not include Cardozo Electronic Law Bulletin, (May 8, 1996) (edited by law faculty at the University of Trento, Italy), E-Law, (May 8, 1996) (edited by law faculty at Murdoch University, Perth, Australia), Humboldt Forum Recht, (May 8, 1996) (edited by law students at Humboldt University Faculty of Law, Berlin, Germany), the Journal of Information Law and Technology, (May 8, 1996) (joint effort edited by faculty at universities of Warwick and Strathclyde in the United Kingdom), and the Web Journal of Current Legal Issues, (May 8, 1996) (faculty-edited out of the University of Newcastle-upon-Tyre, England).
283. Michigan Telecommunications and Technology Law Review, (May 8, 1996). The foregoing list is limited to American publications only, and by definition does not include Cardozo Electronic Law Bulletin, (May 8, 1996) (edited by law faculty at the University of Trento, Italy), E-Law, (May 8, 1996) (edited by law faculty at Murdoch University, Perth, Australia), Humboldt Forum Recht, (May 8, 1996) (edited by law students at Humboldt University Faculty of Law, Berlin, Germany), the Journal of Information Law and Technology, (May 8, 1996) (joint effort edited by faculty at universities of Warwick and Strathclyde in the United Kingdom), and the Web Journal of Current Legal Issues, (May 8, 1996) (faculty-edited out of the University of Newcastle-upon-Tyre, England).
284. Michigan Telecommunications and Technology Law Review, (May 8, 1996). The foregoing list is limited to American publications only, and by definition does not include Cardozo Electronic Law Bulletin, (May 8, 1996) (edited by law faculty at the University of Trento, Italy), E-Law, (May 8, 1996) (edited by law faculty at Murdoch University, Perth, Australia), Humboldt Forum Recht, (May 8, 1996) (edited by law students at Humboldt University Faculty of Law, Berlin, Germany), the Journal of Information Law and Technology, (May 8, 1996) (joint effort edited by faculty at universities of Warwick and Strathclyde in the United Kingdom), and the Web Journal of Current Legal Issues, (May 8, 1996) (faculty-edited out of the University of Newcastle-upon-Tyre, England).
285. Michigan Telecommunications and Technology Law Review, (May 8, 1996). The foregoing list is limited to American publications only, and by definition does not include Cardozo Electronic Law Bulletin, (May 8, 1996) (edited by law faculty at the University of Trento, Italy), E-Law, (May 8, 1996) (edited by law faculty at Murdoch University, Perth, Australia), Humboldt Forum Recht, (May 8, 1996) (edited by law students at Humboldt University Faculty of Law, Berlin, Germany), the Journal of Information Law and Technology, (May 8, 1996) (joint effort edited by faculty at universities of Warwick and Strathclyde in the United Kingdom), and the Web Journal of Current Legal Issues, (May 8, 1996) (faculty-edited out of the University of Newcastle-upon-Tyre, England).
286. Katsh, supra note 248, at 44.
287. See Wiggins, supra note 251, at 390 ("Another liberating aspect of e-journals is that there need not be any pressure to 'pad' an issue with a certain number of articles.").
288. See supra notes 271-73 and accompanying text.
289. This has been identified as a problem of e-journals in general. Rob Kling, Electronic Media and Legitimate Media in the Systems of Scholarly Communication, 11 Info. Soc'y 261 (1995).
290. The reviews are doubtless shy about letting authors have direct access to reviews' servers. They are presumably also concerned that direct access would lead to loss of editorial control over the content of their publications. In the absence of direct access, however, authors may (incorrectly) regard some changes as more of a hassle than they are worth.
291. Michigan Telecommunications and Technology Law Review, supra note 273, National Journal of Sexual Orientation Law, supra note 270, and Richmond Journal of Law and Technology, supra note 272.
292. Michigan Telecommunications and Technology Law Review, supra note 273, National Journal of Sexual Orientation Law, supra note 270, and Richmond Journal of Law and Technology, supra note 272.
293. Michigan Telecommunications and Technology Law Review, supra note 273, National Journal of Sexual Orientation Law, supra note 270, and Richmond Journal of Law and Technology, supra note 272.
294. Journal of Online Law, supra note 271.
295. See supra text accompanying note 216.
296. See supra note 220 and accompanying text.
297. See supra note 145 and accompanying text.
298. On the link between stylistic conservatism and professional acceptance of electronic journals, see Thomas J. DeLoughry, Effort to Provide Scholarly Journals by Computer Tries to Retain the Look and Feel of Printed Publications, Chron. Higher Educ., Apr. 7, 1993, at A19, A20 (discussing University of California at San Francisco's plans to develop electronic document delivery system and noting that "[t]he strategy behind the project. . . is to make the computerized version of a journal as similar as possible to the paper edition so that faculty members are comfortable using it").
299. See Erik Jul, Electronic Publishing: Electronic Journals in a Print-on-Paper World, Computers in Libr., Feb. 1992, at 37, 38 ("Are electronic journals . . . adopting the conventions of print-on-paper journals in hopes of obtaining widespread acceptance among readers? Herein lies a danger. By imitating familiar formats, electronic journals may neglect fundamentally new possibilities of publishing and disseminating information made possible by computer and telecommunications technologies.").
300. Bernard Houghton, Scientific Periodicals: Their Historical Development, Characteristics and Control 12 (1975). Books were deemed an inappropriate medium for new work because they took too long to write and produce. Id.
301. Bernard Houghton, Scientific Periodicals: Their Historical Development, Characteristics and Control 12 (1975). Books were deemed an inappropriate medium for new work because they took too long to write and produce. Id.
302. The first scholarly journal appears to have been the Journal des scavans, published in January 1665. John Budd, Not What It Used to Be: Scholarly Communication Then and Now, in Scholarly Communication in an Electronic Environment: Issues for Research Libraries 1, 3 (Robert S. Martin ed., 1993). The first English-language scholarly journal was the Philosophical Transactions of the Royal Society, published in London, England, in May of the same year. Id. at 3 n.5 .
303. The first scholarly journal appears to have been the Journal des scavans, published in January 1665. John Budd, Not What It Used to Be: Scholarly Communication Then and Now, in Scholarly Communication in an Electronic Environment: Issues for Research Libraries 1, 3 (Robert S. Martin ed., 1993). The first English-language scholarly journal was the Philosophical Transactions of the Royal Society, published in London, England, in May of the same year. Id. at 3 n.5 .
304. The first scholarly journal appears to have been the Journal des scavans, published in January 1665. John Budd, Not What It Used to Be: Scholarly Communication Then and Now, in Scholarly Communication in an Electronic Environment: Issues for Research Libraries 1, 3 (Robert S. Martin ed., 1993). The first English-language scholarly journal was the Philosophical Transactions of the Royal Society, published in London, England, in May of the same year. Id. at 3 n.5 .
305. See supra note 177 and accompanying text.
306. By early August 1996 - within six months of its initial release - the electronic version of this Article had to my knowledge (based on receipt of subsequent e-mail) already been read by law professors, lawyers, law students, information scientists, physicists, and anthropologists in the United States, legal scholars and law students in Germany, law professors and computer scientists in Australia and the United Kingdom, law librarians and sociologists in Canada, the director of a Comparative Law Center at a major Japanese university, and information technology specialists working for large American and French telecommunications companies. Over the same six-month period, the Article's counter registered more than 1500 reader "hits" in total.
307. In hypertext, "not only [will an author's] own works . . . be linked to each other, but a growing body of scholarly literature may be enmeshed in a net of links and connections that multiply the value of each item appreciably." Ann Shumelda Okerson & James J. O'Donnell, Conclusion, in Scholarly Journals, supra note 257, at 227.
308. LEXIS and WESTLAW have only very rudimentary hypertext capacities. LEXIS has a "Link" feature which enables readers to move from a case cite directly to the case itself; WESTLAW has a "Jump" feature which, inter alia, connects headnotes to case texts.
309. For analyses of hypertext's nature and its implications from politics to pedagogy, see generally Landow, supra note 256; Hyper/Text/Theory (George P. Landow ed., 1994).
310. For examples of incipient efforts in these areas, all of which were to some extent handicapped by the limitations of the print medium, see Katherine Fischer Taylor, In the Theater of Criminal Justice: The Palais de Justice in Second Empire Paris at xxii (1993) (using black-and-white illustrations to help demonstrate "the way architecture participated in [the] spectacle [of criminal justice] and crystallized debates about justice as a reflection of society" in Second Empire Paris); Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police Interrogation, 103 Yale L.J. 259 (1993) (describing how "direct speech" of men is more effective in invoking Miranda rights during police interrogation than "indirect" mode of expression characteristic of women and other marginalized groups); Milner S. Ball, The Play's the Thing: An Unscientific Reflection on Courts Under the Rubric of Theater, 28 Stan. L. Rev. 81 (1975) (describing theatrical elements of courtrooms and arguing that judicial proceedings are a type of theater); John L. Barkai, Nonverbal Communication from the Other Side: Speaking Body Language, 27 San Diego L. Rev. 101 (1990) (suggesting that lawyers actively use body language to improve communication with clients); Ann M. Gill, The Oral Tradition of Gerry Spence in Pring v. Penthouse, 17 Sw. U. L. Rev. 693 (1988) (using trial transcript excerpts to recreate plaintiff attorney's narrative style); Bernard J. Hibbitts, "Coming to Our Senses": Communication and Legal Expression in Performance Cultures, 41 Emory L.J. 873 (1992) (arguing that "[l]ike all other types of meaning in [societies with little or no experience with writing], law and legal understandings are conveyed not only orally, but also in gesture, touch, scent, and flavor" and utilizing several black-and-white images of medieval manuscript illuminations depicting legal gestures). All of these endeavors would have been much more effective had they been augmented by the multimedia potential of the World Wide Web.
311. See, e.g., Jay Fliegelman, Declaring Independence: Jefferson, Natural Language, and the Culture of Performance 25 (1993) (arguing that marked pauses in Jefferson's original draft "call attention to the fact that the Declaration was written to be read aloud").
312. See Gates, supra note 252, at 143 ("For some reason people are less shy about sending e-mail than communicating on the phone or in person.").
313. See generally Stevan Harnad, Implementing Peer Review on the Net: Scientific Quality Control in Scholarly Electronic Journals, in Scholarly Publishing: The Electronic Frontier 103 (Robin P. Peek & Gregory B. Newby eds., 1996); Andrew M. Odlyzko, Tragic Loss or Good Riddance? The Impending Demise of Traditional Scholarly Journals, in Scholarly Publishing, supra, at 91, 96-98. E-mailed comments on Version 1.0 of this Article (with my responses) have been collected at (May 8, 1996).
314. See generally Stevan Harnad, Implementing Peer Review on the Net: Scientific Quality Control in Scholarly Electronic Journals, in Scholarly Publishing: The Electronic Frontier 103 (Robin P. Peek & Gregory B. Newby eds., 1996); Andrew M. Odlyzko, Tragic Loss or Good Riddance? The Impending Demise of Traditional Scholarly Journals, in Scholarly Publishing, supra, at 91, 96-98. E-mailed comments on Version 1.0 of this Article (with my responses) have been collected at (May 8, 1996).
315. [E]lectronic publication presents few disincentives to publishing large amounts of material. An electronic literary journal has no reason to decline to run a competent 10,000-word article about an obscure author simply because it is of interest only to a few subspecialists, because no one else is likely to call it up anyway. An electronic newsmagazine article on the civil war in Somalia can include forty columns of background material as a kind of sidebar interested readers can open by clicking an icon. . . . In the course of things, then, electronic [forums] will become more inclusive, on the reasonable assumption that readers can ignore irrelevant information much more easily in electronic formats than if it were included in a 400-page volume stuffed in their mailbox every month. Geoffrey Nunberg, The Places of Books in the Age of Electronic Reproduction, 42 Representations 13, 23 (1993).
316. See supra note 296 and accompanying text.
317. A form of this post-hoc peer review already exists in some print journals in other disciplines, such as Current Anthropology and Behavioral and Brain Sciences, where published pieces are routinely followed by several reviews, and, ultimately, the author's reply.
318. See, e.g., supra note 197.
319. For complaints about how the Bluebook often mangles references to these sources, see Conard, supra note 190, at 2 (contrasting nonlaw journal citation forms with "confusing[ ]" law review citation forms).
320. See generally Okerson & O'Donnell, supra note 257, at 227.
321. I.e., their names, or a comprehensive listing, such as that provided by FindLaw at (May 8, 1996).
322. "Flaming" is the practice of sending abusive personal messages over the Internet. An academic institution supervising an archive of electronic scholarship could police flaming by refusing to post the "flame" and/or censuring the offending party (in extreme cases, perhaps by refusing him/her access to the archive for deposit of his/her own scholarly work).
323. See, e.g., Hadrian R. Katz, Internet Use Spreads Through 'World Wide Web', Nat'l L.J., Jan. 30, 1995, at C10 (discussing accessibility of Internet and World Wide Web and noting that various law firms, universities, and other institutions have set up Web servers containing legal information or links to legally oriented materials).
324. E.g., HotMetal, HotDog.
325. See A. Dillon et al., Reading from Paper versus Reading from Screen, 31 Computer J. 457, 463 (1988) (surveying various experiments and concluding that "reading from computer screens may be slower and sometimes less accurate than reading from paper" and that "[u]ntil screen standards are raised sufficiently these differences are likely to remain").
326. See The Limitations of Electronic Journals, 38 J. Reading 405, 405 (1995) (noting in recent survey that "scholars reported considerable eye strain and the fatigue of sitting in one position" and commenting that "an electronic journal would be OK only if they had a computer terminal always right at hand").
327. See Gates, supra note 252, at 72 (predicting that "[b]oth TV screens and PC screens will continue to improve . . . in quality").
328. Id. at 113 (predicting that "[u]ltimately, incremental improvements in computer and screen technology will give us a lightweight, universal electronic book, or 'e-book,' which will approximate today's paper book" and which will be capable of "show[ing] high-resolution text, pictures, and video").
329. See supra notes 174-76 and accompanying text.
330. The continuing academic allure of the "halo effect" was recently demonstrated at an international mathematics conference when a Canadian mathematics professor unsuccessfully tried to persuade his colleagues to publish electronically all 135 papers submitted rather than waiting for traditional publication. The professor later commented with some chagrin, "I think [my proposal] failed because people like this kind of ranking. That's also one of the reasons I'm so excited about [electronic publishing], because of the challenge to these elitist traditions." Quoted in Barry Ries & Peggy Berkowitz, The Electronic Journal: Has Its Time Come?, U. Aff., Aug.-Sept. 1995, at 10, 11.
331. See McDowell, supra note 142, at 270-77 (discussing "scholarship game" and how to control it in interest of producing truly valuable legal research and writing). In some instances, "halo effects" can be not only distortive, but destructive. On more than one occasion candidates for tenure promotion (not to mention members of their respective law faculties) have assumed that good placements favored and perhaps guaranteed success, only to have their hopes dashed by disappointing external reviews (indicating, not incidentally, that the professional reviewers disagreed with the quality judgments of the student editors).
332. E.g., Ethan Katsh, Rights, Camera, Action: Cyberspatial Settings and the First Amendment, (May 8, 1996), originally published at 1 Yale L.J. 1681 (1995).
333. E.g., Bernard J. Hibbitts, Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Discourse, (May 8, 1996), originally published at 16 Cardozo L. Rev. 229 (1994).
334. E.g., James J. O'Donnell, The Pragmatics of the New: Trithemius, McLuhan, Cassioderus, (May 8,1996) (Classics, University of Pennsylvania).
335. N. David Mermin, Publishing in Computopia, Physics Today, May 1991, at 9, 9.
336. Id. Mermin was not, however, the first academic to come up with this general idea. In 1989, Sharon Rogers and Charlene Hurt, library directors at George Washington and George Mason universities, respectively, proposed the creation of a "Scholarly Communication System" which would electronically archive submitted scholarly articles for retrieval and comment. Sharon J. Rogers & Charlene S. Hurt, How Scholarly Communication Should Work in the 21st Century, Chron. Higher Educ., Oct. 18, 1989, at A56; see also Stevan Harnad, Scholarly Skywriting and the Prepublication Continuum of Scientific Inquiry, 1 Psychol. Sci. 342, 342 (1990); Richard Lanham, The Electronic Word: Literary Study and the Digital Revolution, 20 New Literary Hist. 265 (1989).
337. Paul Ginsparg, First Steps Toward Electronic Research Communication, (May 8, 1996).
338. Id.
339. E-mail from Paul Ginsparg to Paul Southworth, reprinted in Scholarly Journals, supra note 257, at 14.
340. Id. at 36.
341. Ginsparg, supra note 319.
342. The International Philosophical Preprint Exchange, (May 8, 1996) (service provided by Department of Philosophy, Chiba University).
343. Ronald E. LaPorte et al., The Death of Biomedical Journals, 310 Brit. Med. J. 1387 (1995).
344. Id. at 1387-89.
345. Id. at 1390.
346. Jerome P. Kassirer, M.D. & Marcia Angell, M.D., The Internet and the Journal, 332 New Eng. J. Med. 1709 (1995).
347. Id. at 1709.
348. The University of Dayton Sch. of Law and Mead Data Central Joint Comm. to Study Computer Technology in Legal Educ., Interim Report, at 33 (Aug. 1993).
349. See supra notes 314-16 and accompanying text.
350. One might actually lead to the other; Web posting of the present piece led within a couple of weeks to four unsolicited offers to publish from accredited law reviews.
351. Feedback from the release of the electronic version of this Article has benefitted its present print version, although more substantial revision will have to await the next electronic edition. Legal scholars interested in preserving their legal authority to unilaterally maintain, update, and revise the electronic version(s) of any given article after print publication might consider amending the standard law review copyright-transfer agreement by inserting a term expressly reserving to themselves all rights to publish, transmit, and modify the article in electronic form (with the exception of LEXIS/WESTLAW distribution, which is more conveniently left to the reviews themselves). Such a term was included in the copyright agreement governing the publication of this Article. See supra note **.
352. The AALS might profitably take the advice of Tim Berners-Lee, the principal developer of the World Wide Web: Put a cheerful front page to the archive: put some graphics in at the top to encourage readers. Let the thing run with a few gigabytes of disk space, and see whether society responds. You will have to jump start it probably with an injection of existing archives of papers, or pointers to them: otherwise, you will never get a critical product of readership and information base. E-mail from Tim Berners-Lee to Virginia Polytechnic Institute Electronic Journals List (July 5, 1994), reprinted in Scholarly Journals, supra note 257, at 37-38. The AALS might also keep chronological track of submissions to such an archive, enabling legal scholars to make and prove priority claims as appropriate. AALS might even provide a running ratings system for archived articles ("four stars" or perhaps "two thumbs up") based on the reader comments that a particular piece attracts. See supra notes 297-98 and accompanying text. This last feature could save researchers time by providing a standard by which to narrow archival searches (a law professor could essentially tell the archive, "retrieve all four-star articles on affirmative action").
353. E-mail from Paul Ginsparg to Bernard Hibbitts (Dec. 1, 1995) (on file with author). Ginsparg has also estimated that with a gigabyte of hard disk storage space currently costing less than $500, 25,000 physics papers can be stored on such a disk at a cost of less than two cents apiece. Paul Ginsparg, Winners and Losers in the Global Research Village, (May 8, 1996) (text of presentation made at UNESCO Headquarters, Paris). Ginsparg has since estimated that the same gigabyte of disk space could accommodate 10,000 papers the size of the present one (roughly 423 kilobytes compressible to 82 kilobytes). E-mail from Paul Ginsparg to Bernard Hibbitts (Apr. 24, 1996) (on file with author).
354. Obviously, they could choose to play a negative role - in particular, by embracing the strategy of the "preemptive strike" already launched by the New England Journal of Medicine against self-published electronic 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-preservation. The California Law Review recently demonstrated its mature attitude in this respect by printing an article by Robert Berring which had previously been made available in draft on the Internet. See Robert Berring, On Not Throwing Out the Baby: Planning the Future of Legal Information, 83 Cal. L. Rev. 615, 615 n.* (1995). The New York University Law Review has obviously adopted the same commendable attitude in printing the present piece.
355. This is not to say that the law review might not survive in some radically altered form with which we are not now familiar. It could, for instance, continue as a high-status ceremonial or archival mode of publication (e.g., a "deluxe edition" or a festschrift of especially famous essays). Alternatively, it might continue as a collection of student-written reviews - or, somewhat less ambitiously, a student-or faculty-selected list - of recommended self-published articles. This format might prove very appealing in an information-rich Internet 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. See generally Jacques Leslie, Goodbye, Gutenberg, Wired 2.10, Oct. 1994, at 68, 69 (quoting James J. O'Donnell, co-editor of the Bryn Mawr Classical Review: "'[T]he journal model will evolve toward not a publishing operation but a gatekeeping operation' - that is, the journal's role will be to single out from the morass of information available on the Net those articles worthy of its imprimatur.").