First Monday

"Never Ending, Still Beginning": A Defense of Electronic Law Journals from the Perspective of the E Law Experience by Archie Zariski

This article considers the future of scholarly electronic journals (or ejournals) in the light of their short history with a particular focus on the discipline of law *. The author argues that self-publication by scholars on their own Web sites is not an adequate substitute for the peer reviewing and active dissemination which can be provided by an ejournal **. E Law - Murdoch University Electronic Journal of Law is used as an example of what such journals can contribute.


Cultural Criticism of Electronic Journals
Economics and Electronic Journals
Disciplinary Criticism
Functions of an Electronic Journal
Defending Electronic Journals

"It belongs to a class of publications which can hardly be called either useful or entertaining. It can rarely be used as a tool by the daily craftsman nor can it be often taken up to pass a vacant hour. Its subject matter should relate to the most momentous earthly concerns; but unless these can be connected with present interests, feelings, or passions, they are not usually found to move any large number of mankind to pay for instruction as to them. ... It was not easy therefore to provide for the continued publication of a work of this nature. ... All who have any experience of what this is, know that it is a labour 'never ending, still beginning,' constant and harrassing, requiring unwearied patience and a steady supply of funds."

"Law Periodical", The Law Review Volume 22 (1854-55), p. 39.


So remarked an editor of The Law Review and Quarterly Journal of British and Foreign Jurisprudence which was founded in 1844 and included in its first issue a lead article on "Science and Study of Jurisprudence" as well as pieces concerning the judicial system of France, the consolidation of the criminal law, correspondence on the appointment of judges and the influence of political motives on judicial decisions, case notes and book reviews. He was commenting on the function later added to the Review's mandate of furthering law reform through acting as the publisher of the reports of the Law Amendment Society. I think these remarks from an early period of law journal publishing remain relevant today and I will argue that the case for scholarly law journals, now in electronic form, remains strong despite several current critical onslaughts.

Even in an era where we have come to expect rapid change I am amazed that in only a few years electronic journals have gone from defending their reason for existence 1 to being challenged by even more radical approaches: notably electronic preprint archives 2 and self-publishing on the Web 3. Once a matter of "great debate" 4 scholarly electronic journals have proliferatedrapidly. After a meteoric rise 5 will they disappear just as rapidly? There are now sufficient numbers of electronic journals to warrant a collection of collections of relevant links to them6 and an electronic journal devoted to electronic publishing. 7 Conferences are being held in which electronic journals figure as a major topic 8, there is a large body of literature published concerning them 9, journals devote special issues to discussing them 10, university courses areoffered to help educate people in creating them 11, and public monies are being spent on supporting 12 and archiving them 13. Yet some say this is misguided and wasted effort.

Electronic journals have already made their mark in the face of strong hesitations and dissent which I would classify as falling in one of three categories: cultural criticism, economic arguments, and finally criticism based on disciplinary particulars. I will spend most of this paper dealing with the last but would first like to briefly survey the first two types of argument.

Cultural Criticism of Electronic Journals

It is still common to bemoan the fact that the terminal does not smell like leather bookbinding although most computer users now I suspect much prefer World Wide Web bookmarks to the old variety. Similarly, those who complain that they can't snuggle up with a monitor seem to entirely overlook that the proverbial "comfy armchair" can be placed in front of a monitor which is itself beside the fireplace should you so desire. Even the perennial whining about reading on screen can be answered by pointing out that making notes (on paper or in a computer file) while reading is much easier when ones' hands are not gripping the covers of a book - one tap of a finger serves to "turn a page". QuoteThese are merely examples of the arguments once prominent that cultural and institutional practices would simply not permit the development of ejournals. In a more serious vein, deep reservations were expressed about the readiness and willingness of libraries for instance to accommodate and facilitate the spread of electronic journals. That has been quite firmly proved to be a false concern since there are now several large scale multi-library projects designed specifically for this purpose 14, and it would be a backward university library today that did not assist its patrons in accessing electronic publications.

Debate over the contribution which electronic technology might make to human advancement and the changes in thinking to which it might lead goes back to the 1940s 15 and continues today. One of the latest proposals would see journals in electronic form beingsuperseded by what Stevan Harnad calls "scholarly skywriting" which he believes can lead to a "fourth cognitive revolution" surpassing the achievements based upon modern printing techniques. 16 For Harnad, the quality control over scholarlywork imposed by journal editors and referees is of secondary importance to fast dissemination of research results accompanied by widespread opportunities for comment and contradiction via electronic networks. In his view this "subversive proposal" if embraced should lead tothe decline and disappearance of increasingly more expensive scientific journals whether in print or electronic format. In a similar vein, Paul Ginsparg advocates the use of electronic preprint archives as the principal means for sharing research among scholars and has implemented this approach successfully for his own field of high-energy physics. 17

My reasons for thinking that these approaches do not spell doom for electronic journals in law relate principally to the disciplinary differences between scientific and legal studies. Scientific scholarship today appears to operate under relatively unchallenged paradigms of knowledge and method and with rather well-defined narrow research fields and questions. This gives rise to a collaborative enterprise in which research is, I suggest, more easily classified and its worth determined. That in turn allows easy indexing of scholarship for the purposes of search and retrieval and fast assessments of quality by those "in the loop". It may well be that well-organized electronic archives and e-mail discussion lists may serve scientists as well as, or perhaps better than refereed journals, but I don't see similar research conditions in law and therefore doubt that the same model would work for legal scholars. I will return to the idiosyncratic nature of legal scholarship below. One analyst of electronic publishing has concluded that we still know too little about its nature and effects to judge its future and the impact it will have on academe or society as a whole. 18

Economics and Electronic Journals

Another battle which electronic journals appear to have already fought and won is the economic one. Early debate over the viability of electronic journals considered such topics as competition between electronic and print formats of the same work 19 and the real costs of electronic production. 20 The crisis in exploding serials costs felt primarily by academic and research libraries prompted the creation of its own electronic newsletter21 and publication of papers on the topic. 22

QuoteIt now appears incontrovertible that electronic publishing is cheaper than print and our experience with E Law is a case in point. Over the last four years of its publication there has probably been a direct subsidy for its publication of under two thousand dollars, although it has benefited from the expertise of university staff working under a number of grants and projects. 23 E Law applied for funding support from the Australian Vice-Chancellors' Committee but was unsuccessful. Looking back, many ofthe objectives proposed for funding have now been achieved without the requested support, a major item being the presentation of a Web version. Of course, much of the work which has been done to publish E Law has been volunteer labor by law students acting as Editorial Board members to whom we are indebted. At least from 1997 they have the abilityto gain academic credit for their participation in producing the journal. 24 It is worth noting, however that large sums have been spent on the development of ejournals in Australia and the United Kingdom, but still with the expectation that costs of acquisition of the published results of scholarly research will be lower overall for the electronic format.

Disciplinary Criticism

This brings us to what I believe is the most important test and challenge for electronic journals: responding appropriately to the specific needs of academic disciplines. It seems likely that the phenomenon which I have dubbed "virtual textuality" 25 will not have the same effects and elicit the same responses in all areas of knowledge. As Marshall McLuhan insisted, a change in the medium of transmission and storage of ideas seems capable of wide-ranging impact on our conception of its "content", and our conceptions of knowledge itself 26.

The practice of science has long since become the field of numerous disciplines although one can still speak of a "scientist" in paradigmatic terms. The scholarly study of law, however, still remains at least arguably a single discipline with its comprehensive designation of "lawyer" which academics also claim. I would argue it is important that the field of law remain a single discipline and not be fragmented into specialties and sub-specialties as in the scientific model. In my view there is a danger of losing the fundamental paradigm of law as we know it today if a central focus is not provided for it by appropriate disciplinary communication. What I am speaking of is the theme of the rule of law in aid of human well-being. It is this central moral element to scholarship that may have been largely lost in the scientific field due to an emphasis on narrow problems and technique and which has resulted in technological progress within a moral vacuum. My fear is that should law lose its own morally-based disciplinary focus it will become a mere amalgam of technically-proficient specialties which play an administrative-management function in society but do not deserve to be called the pursuit of justice through law.

My argument then is that "a library does not a discipline make" and that if we allow legal knowledge to be housed in such a form alone the existing discipline of law will disappear. A discipline is, perhaps most importantly, a community of interactive scholars and practitioners with a common focus. The communication tools of the discipline should be appropriate to maintain those links and further the common goals. It is my view that electronic law journals such as E Law are better tools to carry out those tasks than the mechanisms proposed by those who would welcome the disappearance of such journals.

Ginsparg's electronic preprint archive for researchers in high-energy physics is one version of the library model of disciplinary communication. It appears to work due to the ease of classification of contents into tightly defined niches suitable for archive and search technology where the searcher is very familiar with the terminology and has good pre-formed expectations of what might be available. This approach to sharing knowledge does not create or maintain a discipline I argue, but merely supports collaborative work which is generated by other means. I refer to the funded project-based method in which most scientific research is now carried out. Public and private funding now creates what might be called shifting communities of scientific scholars drawn together by grant monies. These communities have I believe gone a long way towards supplanting notions of distinct disciplines with recognized ongoing research issues. This is more than "interdisciplinarity", it is "nondisciplinarity" and I argue that the moral element in science has suffered for it. Without a general disciplinary forum such as can be provided by scholarly journals disciplines become specialties and specialties blind obsessions. Scholarly communication in such an environment becomes a closed circuit of those "in the loop" to the detriment alike of scholars and society.

Legal research is not yet predominantly done on the funded project model, although that approach is increasing in significance. One result of the present system of scholarly work in law is that ideas can be less easily pigeon-holed into neat categories for classification, archiving, search and retrieval. Titles of papers in law, for instance, often seem designed to mystify and intrigue readers rather than allow quick identification of the nature of the contents. Approaches to legal analysis and criticism as applied to one area of law may still have relevance and usefulness in others rather than being ultra-specialized techniques of no interest to many legal scholars. Legal issues often involve matters of opinion related to shifting social practices making current debate essential. These and other aspects of the nature of legal scholarship seem to me to call for general law journals to support and advance the discipline of law.

Functions of an Electronic Journal

Once it is acknowledged that the debate over the possibility and practicality of scholarly electronic journals has been won the next challenge is posed by those who say they are superfluous in the digital age. In the words of Bernard Hibbitts we are asked to conclude that they are "more trouble than they're worth". 27 Similarly, Stevan Harnad believes that the purposes of ascholarly journal can now be more efficiently realized by other means. 28

Fytton Rowland speaks of the four traditional functions carried out by a scholarly journal: dissemination of information; quality control; the canonical archive; and recognition of authors. 29 To this I would add the establishment of a disciplinary focus which helps to relate scholars to the rest of society and wider concernsthan mere technical expertise - in the case of law, the cause of justice according to law. Harnad believes these functions can be adequately met by "scholarly skywriting". 30 His position seems to depend on the characterization of much scholarly writing as "esoteric" in the sense that its content will appeal to only a very small number of readers familiar with the subject matter and its importance. This certainly describes much of scientific research where it is only the "insiders" of a particular research group or small community of scholars who will be interested in the majority of what its members produce by way of research. But that, I argue, is a situation which characterizes the decline of a discipline rather than itsflourishing. It is what I suggest will describe scholarship in law if general journals disappear.

In some respects several of Rowland's four functions of journals are not equally important for law. First, most legal scholarship would not be well described as "information" but rather as "analysis", "opinion" or "critique"; even "polemic" would be applicable and appropriate in some cases. Legal writing is therefore less able to be fitted into factual classification frameworks such as science has been perfecting and it is accordingly harder to search for and find legal scholarship of a particular nature. The "dissemination" aspect becomes more important in law than the proper categorization of content. Second, in the era of what I call "virtual textuality" ideas lose much of the rigidity with being associated with print on paper, become more fluid and open to change and the "canon" is no longer set in stone. For the same reason, security and permanence of retention of ideas is more easily obtained by redundancy of sources rather than concentrating resources in unique locations. Finally, I would argue that the purpose of journals is only associated with recognition of scholars in a tangential way. QuoteBut, in another sense, journals may have an important role to play in giving exposure to writing which is controversial and challenging and thus bring new ideas and approaches into the disciplinary mainstream.

It is the matter of "quality control" on which Professor Hibbitts largely rests his argument against law journals whether on paper or in digital bytes. Here, he has recited a history and litany of complaints about the student-edited American law school review which may justify abandoning that particular form of journal publication. But the American law review is not the first nor the only model of journal publication in law. Hibbitts' history begins in the latter part of the nineteenth century when law school journals took shape in the United States but does not mention earlier scholarly legal journals there or in the United Kingdom. In the latter country a number of general journals of law took shape in the early and mid nineteenth centuries in the mould of non-legal periodicals such as the Edinburgh Review, Westminster Review and the Quarterly Review which contained contributions from the likes of Bentham, Brougham and the Mills. 31 The legally-focused reviews included The Law Magazine and LawReview: or Quarterly Journal of Jurisprudence, The Law Review and Quarterly Journal of British and Foreign Jurisprudence, and The Quarterly Jurist. These publications included many scholarly analyses and critiques of the law and legal practice and were guided by editors whoprofessed openly certain principles, views and ideas which they brought to the task of selecting and presenting the contents. 32 These journals helped to shape the academic discipline of law aswe know it today and provide another model for law reviews in electronic format.

Professor Hibbitts believes that self-publishing of individual articles through authors placing them on their own publicly-accessible Web pages is the answer to dissatisfaction with American law school journals. Any peer-review would come post hoc as Web surfers visited the site, read the work and left their comments. Quality would shine through as greater or lesser numbers of readers commented upon, bookmarked and linked to worthwhile articles. Hibbitts' own article containing these ideas is held up by him as a successful model of the new world of scholarly legal publishing. 33

Defending Electronic Journals

In defense of electronic journals I would like to offer several criticisms of Hibbitts' approach:


In sum, I believe that most of Hibbitts' criticisms of law reviews are either inapplicable to E Law or have been accommodated satisfactorily in its structure with the possible exception of the feature of easy interactivity. For me, electronic law reviews are most definitely not "more trouble than they're worth" as Professor Hibbitts puts it.

I agree with the editor of the Law Magazine who said:

"It is obvious that from time to time legal and constitutional questions arise, some of which do not come into the courts, and which require elucidation, and may receive such elucidation in a legal journal. A legal journal is, indeed, the only medium for the exposition or discussion of such questions as they arise, without reference to any particular interest or result, and entirely in the interests of law and jurisprudence as a science, and with the accuracy incident to written compositions, which must await the judgment of a learned profession."40

In guiding such a publication an editor was to be prepared "on any question to declare his own opinion, while giving full consideration to the opinions and ideas of others". Such an editor and such a publication contributes to the cause of justice without which law becomes a trade and technique rather than a profession and academic discipline. I believe E Law is carrying on in the footsteps of those earlier editors and journals and that although the work is "never ending, still beginning" it needs to be done.

The Author

Archie Zariski teaches law at Murdoch University Law School in Perth, Australia, having previously practiced law in Canada. He is a founding editor of E Law - Murdoch University Electronic Journal of Law and has used the Internet extensively in teaching since 1994. His academic Web space is at Contact information: Phone: +61 8 9360 2985, Fax: +61 8 9310 6671, Post: Murdoch University School of Law, Perth, Australia, 6150



* I have prepared a chronology of what appears to me to be the most significant events in the conception, gestation, birth and development of E Law - Murdoch University Electronic Journal of Law which is attached as an Appendix.

** The opinions expressed here are personal and do not necessarily represent policies of Murdoch University, its Law School or the Editorial Board of E Law.

1 See Public-Access Computer Systems Review Special Section On Network-Based Electronic Serials, July 1991.

2 See presentation of " Winners and Losers in the Global Research Village" by Paul Ginsparg at UNESCO, February 1996.

3 The approach advocated in " Last Writes? Re-assessing the Law Review in the Age of Cyberspace" by Bernard J Hibbitts.

4 See Jo Coward, " The Great Debate".

5 "In 1991 there were 110 journals and academic newsletters listed in the Association of Research Libraries Directory. This grew to 133 in 1992, 240 in 1993, 400 in 1994 (Okerson, 1994) and 700+ in 1995. There has also been remarkable growth in the number of refereed electronic journals from 74 in 1994 to 142 in 1995 (Okerson, 1995)." Mike Sosteric:" Electronic Journals and Scholarly Communication: Notes and Issues".

6 See the Web site Ejournal SiteGuide: a MetaSource.

7 See Journal of Electronic Publishing.

8 For instance, ICCC/IFIP - Electronic Publishing '97.

9 See the Scholarly Electronic Publishing Bibliography by Charles W Bailey Jr.

10 For example, The Information Society, Volume 11, no. 4 Special issue on Electronic Journals and Scholarly Publishing.

11 See InfoTrain, the teaching electronic journal project.

12 See the UK SuperJournal project.

13 In Australia there is the National Library of Australia PANDORA Project.

14 In the UK there is eLib: Electronic Libraries Programme; in the U. S., CIC Electronic Journals Collection and Project Muse (Johns Hopkins University); in Canada the Canadian Electronic Scholarly Network; and in Australia the National Library's PANDORA Project.

15 See Vannevar Bush, " As We May Think".

16 Stevan Harnad, " Scholarly Skywriting and the Prepublication Continuum of Scientific Inquiry", and Scholarly Journals at the Crossroads: A Subversive Proposal fo rElectronic Publishing.

17 See his presentation of " Winners and Losers in the Global Research Village" to UNESCO.

18 Mike Sosteric: " Electronic Journals and Scholarly Communication: Notes and Issues".

19 See the discussions on the VIPIEJ-L list in 1993.

20 Stevan Harnad estimated that production of a page of scholarship for electronic distribution costs about 25% of the cost of print production: see Subversive Proposal supra note 16.

21 Newsletter on Serials Pricing Issues.

22 See, for instance, Odlyzko, " Tragic Loss or Good Riddance", and " On the Road to Electronic Publishing", Mike Sosteric - Electronic Journals: The Grand Information Future?, Fytton Rowland, "Print Journals: Fit for the Future?" and Stevan Harnad, " The Paper House of Cards".

23 Principally " Using computer network retrieval tools and communications in research and teaching " and Multimedia pilot projects.

24 The year-long unit L334 E Law Journal enrolled its first students in February 1997.

25 See Archie Zariski, " Virtual Textuality and the Library".

26 For more about McLuhan's thought see Project McLuhanand The McLuhan Probes.

27 See " Last Writes?", " Yesterday Once More" and the Akron Law Review Special Issue devoted to those articles.

28 See The Paper House of Cards.

29 See Print Journals: Fit for the Future?

30 Supra note 28.

31 See Biancamaria Fontana, Rethinking the Politics of Commercial Society: The Edinburgh Review, 1802-1832. Cambridge: Cambridge University Press, 1985.

32 See for instance the statement published in The Law Magazine and Review Volume 3 (NS), no. 1 (January 1874) as "The Function and Influence of Legal Journalism".

33 See "Last Writes?"

34 See " Yesterday Once More".

35 " E-Law 2.0: Computer Information Systems Law and System Operator Liability Revisited".

35a " Propos Sur la Meacutediation en Matiere Civile"

36 See " E-Law 3.0.1: Computer Information Systems Law and System Operator Liability in 1995".

37 See the Unit Outline for L334 E Law Journal.

38 InfoTrain Teaching Electronic Journal.

39 See " The Holland et al Exchanges", Ejournal, Volume 4, no. 3 (November 1994).

40 "The Function and Influence of Legal Journalism", supra note 32.


Highlights in the History of
E Law - Murdoch University Electronic Journal of Law

Prepared by Archie Zariski, Founding Technical Editor
March, 1997


Copyright © 1997, ƒ ¡ ® s † - m ¤ ñ d @ ¥