Special Issue of the Akron Law Review [
5 ] entirely devoted to commentaries on Last Writes? I had a chance to respond to predictable but overblown concerns about what the development of an archive-style publication system (and the concomitant elimination or radical restructuring of the law review) would mean for the preservation of quality control, the future of editorial "value added", the acquisition of academic prestige by scholarly authors, the educational experience of law students and even their ultimate employability after law school. Readers interested in these issues arereferred to my contribution to the Akron Special Issue:
"Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews." [
6 ] Professor Zariski, however, has raised some additional issues relating to electronic journals as a purportedly-preferable publishing format. It is to these that I direct my attention in the remainder of this comment. 
Technical Difficulties
Zariski's defence of electronic legal journals - and his opposition to electronic self-publication and the central collection or connection of legal scholarship in archives - appears to rest on six propositions, four of which are more or less "technical", and two of which are more broadly "theoretical". I will first consider Zariski's technical propositions, taking them one at a time.1) Electronic journals distribute legal scholarship actively, whereas an archive collecting or connecting self-published legal scholarship would simply hold that scholarship passively, making it comparatively more difficult to find and ultimately more difficult to use.
It is certainly true that electronic journals, like print journals, are active distributors of legal learning. They have subscription lists of individuals who receive journal issues periodically or (in the case of some e-journals) as new articles become available. They publicize themselves in various electronic and print fora to expand their readerships and broaden the reach of their authors' ideas.
On the level of the individual e-journal this is all well and good, but as more e-journals develop it will become harder for interested readers to keep up with the flow of legal scholarship distributed or publicized in this disaggregated way. My own e-mailbox already holds announcements from a range of legal e-journals all clamoring for my attention. The fact that an increasing number of announcements are coming in makes individual announcements easier to miss (as anyone who tries to keep up with the flood of printed legal literature already knows). It would be much easier for readers if legal articles were distributed or publicized from a single source.
This is where an archive of self-published legal scholarship could come in. Such an site, pace Professor Zariski, need not be passive. On the most basic level, as I argued both in Last Writes? and Yesterday Once More, it could operate e-mail lists which could notify legal scholars (on a periodic or incremental basis) of the submission or linking of new articles in a particular subject area or in the site as a whole (much like E-Law and other journals send out e-mails of their Tables of Contents).[
7 ] More ambitiously, such a site might use the latest in Internet technology to "push" readers the latest scholarship in, say, cyberspace law or legal history, according to a given reader's registered interest profile.
This is not just "pie-in-the sky". A distributed archive of self-published legal scholarhip already exists which is performing, at a rudimentary level, the active role which Professor Zariski recommends. In March 1997 I launched
JURIST: Law Professors on the Web, an award-winning Web site expressly developed to connect Net-literate ("Neterate") legal academics to each other, to law students, to lawyers and to the public at large. The site links to the growing number of home pages, online articles, course pages and resource pages created by law professors in the United States, England, Canada, Australasia and South Africa - in essence, the "common law" world. Every month during the North American academic year, JURIST sends an e-mail list of "updates" (newly-linked self-published materials) to academic and professional readers in some 20 different countries.
In the long run, however, e-mail notifications may not be necessary. Zariski's purported distinction between active and passive scholarly formats is likely to become largely irrelevant with the development of "intelligent agent" technology which is still in its protean stages (although basic commercial versions are already on the market). Pre-programmed by their users, intelligent agents will roam the Web, bringing back information specifically tailored to an individual user's interests and needs. In this context, readers of legal scholarship will become their own editors, selecting from journals, archives and other sources precisely the material that they want, instead of having the (good, bad or indifferent) choices of others foisted upon them.
2) Electronic journals allow the products of legal research to be preserved, whereas self-publication, even in association with an archive, could leave them in a "fluid" state where they might be erased at will.
Electronic journals, like print journals, preserve legal scholarship and thus provide a record of scholarly thought even in instances where a scholar later decides to revise his or her work - on their own home page, as Professor Zariski described David Loundy as doing, or in the "pages" of the same electronic journal which originally published it. Given how legal opinion ebbs and flows with changing legal, social and political circumstances, there is certainly value in this process of historical documentation (indeed, as a legal historian myself, I welcome and depend on it).
If anything, however, an archival approach to the collection and dissemination of legal scholarship is even more likely to support the preservation of the scholarly record. Superseded versions of scholarly papers could be archived by authors themselves - just as I have
archived Versions 1.0 and 1.1 of "LastWrites?" - and then linked from a central Web site. Alternatively or additionally, they might be deposited at a central electronic location. The success of the former procedure would have to depend on the honor system, but then so do many aspects of current scholarly practice (for example, fundamental prohibitions against fraud and plagiarism). The latter system might be able to track versions with extreme precision, using digital timestamping and bit-by-bit comparisons of revised "drafts". In either event, it should be evident that electronic legal journals have no monopoly on accurately recording the course of a legal scholar's thought.
3) Electronic journals provide technical support for law professors who would otherwise lack the skills required for self-publication.
Things change quickly in the age of the Internet - Professor Zariski admits as much in expressing his amazement at how legal e-journals, once seen as too radical, are now assailed as too conservative. Similarly, while most law professors currently lack the skills necessary to publishtheir own work online - giving electronic journals an undeniable "leg up"
for the moment - I suspect that that situation will not hold for long.
I say this for four reasons. First (insisting on a point I made in Last Writes?), the skills themselves are not difficult to acquire. Learning the rudiments of HTML - the Web's standard coding language - takes no longer than it takes to master some of the basic word-processing programs on the market today. A law professor does not have to be a computer geek or a cyberlaw specialist to acquire enough Neteracy to both "read" and "write" on the Web. Professor Zariski is very kind to say that he is as "impressed and awed" by my own online work, but I'm actually the legal historian on my law faculty, more comfortable in many ways with the twelfth century than with the twentieth (let alone the twenty-first!). Second, learning to write and compose for the Web is now easier than ever with the introduction of editing programs like Microsoft's Front Page that turn Web-authoring into a form of word-processing. Third, as American law faculties develop sophisticated online presences they are acquiring staff members who are not only able but to some extent specifically mandated to bring faculty members "up to speed" in the basics of Web authoring. This process will doubtless accelerate as a number of schools develop Intranets (for internal communication and work-sharing among faculty) that depend upon Web-style interfaces. Fourth, the current generation of American law students is already demonstrating a degree of comfort with and skill in Web technology that puts comparative faculty "veterans" such as myself to shame; when this generation graduates and starts to produce legal scholarship in its own right I doubt that its members will feel much need to rely on e-journals for technical support (indeed, they will likely become frustrated with the technological conservatism and unsophistication of many existing e-journals).
4) Electronic journals can provide the same citational flexibility and author-author and author-reader interactivity as any archive of self-published papers.
In their comparatively short life-span electronic legal journals have already done better than most print law reviews in developing flexible (and sensible) citation standards and in encouraging interaction not only between authors, but also between authors and readers. Contrary to what Professor Zariski suggests, however, an electronic archive of self-published scholarship could do just as well in the former respect (indulging variation among authors as appropriate), while probably doing a lot better in the latter.
Professor Zariski himself admits that when it comes to promoting scholarly dialogue, E-Law and other electronic journals have had problems as well as successes. This is not a minor admission, since interactivity is in many respects the name of the electronic game. On the most basic level, an electronic archive of self-published legal scholarship might stimulate significantly more interactivity by exposing legal articles to more traffic - a central site would in the long run attract more academic and professional readers than any single electronic legal journal, and every reader would be a potential commentator.
An electronic archive might also be more successful in stimulating interactivity because almost by definition archives are less hierarchical than most journals. Traditionally, journals - interested in keeping tight editorial control over their content and their overall images in order to protect their profitability and market niches - have channeled interactivity through their editorial offices. Archives, being rather more democratic, have less incentive to do this, and are more likely to permit direct author/author or author-reader dialogue (although that interaction might be technically mediated and "posted" by the archive). In the long run, this would do much to encourage the sort of back-and-forth debate that Professor Zariski noted in the
"Readers' Forum" section of Last Writes? - a debate that took place, I believe, because readers knew that could talk directly to the author, and that the author could (and in most cases did) reply directly to them.
Discipline Problems
Having assessed Zariski's four "technical" points, let me turn to his two more "theoretical" assertions, both relating to the nature and utility of academic "disciplines".1) Electronic journals are preferable vehicles for legal scholarship because the archive model of scholarly publishing, while sensible for science, is structurally and conceptually inappropriate for law.
Here Professor Zariski raises an interesting and potentially fundamental issue that has been missed or overlooked by virtually all other commentators on my proposal. Just because an archival model of scholarly publishing works for science (or at least some branches of it) should we assume that an archival model would work for law? Zariski suggests that science differs from law insofar as the former discipline is more tightly structured and hence generates scholarship that is more readily classifiable. He also suggests that science has the benefit of objective standards of truth and method which make the quality of scientific papers in an archive easier to assess, presumably by experts and non-experts alike. These factors, Zariski says, make an archival structure sensible for scientific work; in their absence, law needs journals to provide structure and guidance.
This argument strikes me as odd in two ways. In the first place, it seems to reflect a naive, perhaps somewhat nostalgic understanding of science that presumes that science is much more neat, tidy and transparent than it really is. In truth, of course, much of science is in flux. Scientists disagree with each other all the time. Very few scientific papers are obviously right or obviously wrong. Yet it is clear that for a number of branches of science, the archive model works - and works very well.
On the other side, law is not as much of a mess as Zariski would make it out to be. Is it classifiable? Sure - just ask the editors of the Index to Legal Periodicals, or the providers of the LEXIS and WESTLAW database services. Is law objectively accessible? Well, perhaps it doesn't have "universal" standards in the same way science does, but it certainly does have methodological and substantive criteria for "truth", "correctness" and "reasonableness" which are used all the time by scholars and judges (even though they might sometimes disagree with each other on just what those standards are). In any event, most legal scholars are not so helpless or hapless that they have to rely on journal editors to tell them what is good or not good, especially in their own fields. And even if legal scholars did need more help than scientists in assessing or determining the worth of scholarship, why not get that help from potentially hundreds of commenting colleagues coming to an archive from all sectors of the legal community, as opposed to a mere handful of editors and peer reviewers running a few journals? In this context an archive, far from hurting the cause of legal learning, would arguably help it.
2) Electronic legal journals support law's status as a "discipline", whereas drawing or linking self-published papers together in an archive would fragment law and disconnect legal scholars.
It is an historical fact that the current structure of academic disciplines with which we are so familiar today is in large part the product of journals. Journals brought scholars together in communities of interest, in many ways creating and delimiting the relatively autonomous spheres of learning now denominated as "history", "chemistry", "economics", "law", etc. Professor Zariski suggests that journals are needed to preserve these disciplines and support scholarly interaction within them; he contends that any other arrangement (such as centralized or distributed archives) would compromise disciplinary integrity and undermine academic "community."
Again, this is an interesting argument, but it has a number of flaws. In the first place, it completely overlooks the intrinsically-communal character of the electronic scholarly archives extant and proposed. Take Los Alamos: is there any evidence to suggest that the physics community has been weakened by its development? No. On the contrary, both the physics community and the general intellectual enterprise of physics have been strengthened by the immediate, frequent and minimally-mediated reader-author interactions stimulated by the archive, which is much more than the mere "library" that Professor Zariski would make it out to be. Why else would the world's 45,000 physicists bother to access it 75,000 times a day, and place 500 new papers with it every week (to the point where it now includes over 70% of the current physics literature)?[
8 ] Why else would the archive format be catching on so rapidly elsewhere - not only in other hard sciences, but in such other more humanistic fields as economics and
philosophy?
A legal archive might similarly strengthen rather than undermine disciplinary ties. Even JURIST, although hardly more than a prototype, brings together an eclectic range of legal academics in multiple ways for multiple purposes, hopefully enriching the disciplinary experience rather than undercutting it. It is also wrong to presume that journals themselves always strengthen disciplines: as a result of their highly specific focuses (tax law, international law, constitutional law, etc.) and their concomitant tendency to support relatively-autonomous scholarly conclaves, many established legal journals and even the majority of e-journals - if not E-Law itself- may do as much to weaken law's overall disciplinary coherence as they do to further it.
Even if one were to accept Zariski's point, it might still be argued that some weakening of disciplinary coherence in law (as in other fields) would actually be a good thing. The development of disciplines in the seventeenth through the twentieth centuries did much to fragment the academy and cut scholars off from one another. In reaction to this, many contemporary legal scholars are pressing for more interdisciplinarity, an interdisciplinarity that might well be facilitated by literally "unbundling" the legal learning hitherto confined between the covers of the law reviews. Professor Zariski suggests that such a step might have grave consequences, perhaps even jeopardizing what he calls the "moral element" in legal scholarship. I'm not entirely sure what Zariski means by this - the notion of a "moral element" sounds vaguely romantic, and the implicit suggestion that we abandon journals at the peril of our professional souls seems overdrawn and worse - but one might respond by submitting that only by breaking down the disciplinary barriers largely created by journals can law and legal scholarship re-open themselves to the philosophical influences and social considerations which make them truly "moral."
Achilles Heels
In championing the electronic law journal as the best format for future legal scholarship, Professor Zariski overlooks its two greatest weaknesses: its Achilles heels, if you like. One of these weaknesses is particular to legal e-journals; the other is a weakness of e-journals in general. Electronic journals will only attain dominance in law if they can provide adequate editorial support for legal scholarship: i.e. if they can attract sufficient staff to handle the editorial and technical tasks journals have traditionally assumed. Some legal e-journal editors might draft law students for this purpose: if this is the solution, however, legal scholars may well be faced with many of the same editorial problems they confront - and deplore - at present in the print-based law review system. Other e-journal editors might turn to select groups of faculty members for editing and peer review support. This might work for a while, but I doubt if it would work for long - at least not in the United States, which unlike England and other Commonwealth countries (such as Australia, where E-Law is published) has developed only a marginal tradition of peer review in law and which at the same time imposes upon its law teachers a harsh "publish or perish" credo which discourages many law faculty from assuming many peer review commitments. In this situation the few professorially edited and peer-reviewed e-journals that might develop would not be able to carry more than a fraction of produced papers, portending disaster for law faculty and for legal scholarship as a whole.
An electronic archive of self-published legal scholarship would not encounter these problems. It would not depend on the judgment or competence of law students (except insofar as they might serve as closely-supervised research and technical assistants to individual scholarly authors). Its editorial overhead would be made manageable by being spread across the entire legal professoriate: individual law professors would finally be able to take full responsibility for the quality of their own scholarly products. Similarly, the burden of peer review would be fully democratized; individual law professors would be able to comment on others' work according to their own interests and at their own convenience. Their public comments would overtly add to the value of the articles they appraised, and they would get public credit for making those comments. Eventually the line between "scholarship" and "commentary" would start to blur, encouraging more professors to contribute. As a result, legal scholarship, far from dying on the vine for lack of outlets, would flourish as never before.
The potential weakness of electronic legal journals as the mainstays of legal scholarship is, however, only incidental to a greater weakness of e-journals in general. To put the matter bluntly, I suspect that e-journals will ultimately be unable to deal effectively with the very electronic scholarship that they would take as their stock-in-trade. Consider the ease with which any Internet document can be revised. Future scholars, growing to professional maturity in the Internet age, are likely to regard revision as not only convenient, but academically desirable [
9 ] - not merely to attract attention and extend the intellectual "shelflife" of their work, but also to ensure that their words continue to be accurate representations of themselves and their ideas (which they often are not under the current publishing paradigm). In this context, scholars may well put as much (if not more) of a premium on keeping articles up to date as on producing completely new work. What may count most for tenure and promotion may therefore not be how much a scholar produces, but rather how much a scholar maintains (and how well he/she maintains it).[
10 ] Signs of this new academic paradigm are already evident on the Web, which allows and already rewards ongoing revision of work product: scholarly and non-scholarly Web authors who periodically revise, update and improve their Web sites tend to get more traffic and more return for their efforts than those who do not.
In the face of a scholarly desire to revise, e-journals have three options. First, they might simply refuse to allow revisions, forcing authors to move to other formats, such as self-publication on their own home pages. Professor Zariski describes one of E Law's authors - David Loundy - as having done precisely this. If this becomes common or standard practice, however, e-journals will wither away, having become little more than academic graveyards: scholars will look for the latest ideas elsewhere. Second and more innovatively, e-journals might allow scholars to alter previously e-published work at will. But this would amount to commiting institutional suicide: by surrendering editorial control over their content, e-journals would become mini-archives of self-published articles in fact if not in name. Third, e-journals might attempt to preserve their editorial integrity by requiring proposed changes to be approved in advance. This alternative, however, stands to create a bureaucratic obstacle on the road to revision which could freeze scholars more than free them. Even if it did not dissuade scholars from at least trying to make changes, such a policy would impose huge burdens on editors trying - with presumably fixed amounts of manpower - to review and/or implement an ever-increasing number of change requests coming from an ever-increasing number of scholars. Sooner or later e-journals would collapse under the pressure.
Ongoing revision of scholarly work would not, however, compromise archives of self-published papers. Provided that an archive is appraised or can keep track of significant revisions (there are numerous legal and technical ways of doing this), and provided that it or the network at large has storage capacity sufficient to house all the revised editions of a scholar's work (not a real problem in these days of gigabytes), those revisions could continue indefinitely. At the end of the day, they would render the resultant corpus of legal or other scholarship as up to date, as accurate and as useful to others as its contributors could possibly make it.
From Archive to Knowledge Network
To this point I have assessed Professor's Zariski's defense of legal e-journals in terms of the alternative to them which I presented in Last Writes?: an archive collecting or connecting electronically self-published legal scholarship. I believed then and I continue to believe that the archive format is in many ways preferable and in many respects more feasible than the e-journal alternative. At the end of this comment I would, however, like to suggest that the archive format itself could be extended and improved in ways which would make the e-journal option even more unsatisfactory.
Despite its differences from the journal model of scholarly communication, the archive model shares the journal's focus on traditional scholarship - articles and "published" papers - as the constituent elements of a scholarly corpus. But why limit scholars to that? Why not develop broader online academic communities - comprehensive "knowledge networks" for law and other disciplines - that would also carry courses and course materials, provide pathfinders for relevant academic resources, store recordings from academic meetings, coordinate a variety of academic mailing lists and perhaps even host virtual academic conferences? For financial and editorial reasons print journals could never come close to doing all these things; as a result, they never really represented more than the tip of the scholarly iceberg in any one field. E-journals might do better, but they cannot do what I describe and still be journals. By now it should be apparent that we are not in Kansas anymore: in this age of the Internet, the scholarly paradigm that I see opening up before us has nothing to do with print, little to do with journals, and goes well beyond "publishing" as traditionally conceived.
While we argue about legal e-journals, a number of knowledge networks are already in the works. In physics, Paul Ginsparg, the father of the preprint archive, is now talking in these terms.[
11 ] In law, the JURIST project is in some respects already more like a knowledge network than an archive: not only does it pull together the existing corpus of Web-based legal articles, but it makes available a wide range of law professors' home pages, course pages and resource pages, and contains links to a wide range of other sites useful to legal academics. Plans are already being made to enhance its interactivity and develop it as an online platform for scholarly meetings and conferences. Even at this early stage it encompasses or co-ordinates more legal information that a number of the more prominent legal e-journals; its advantage in that respect should only increase as more and more law professors develop independent presences on the Internet.
Will legal e-journals disappear tomorrow? Of course not. They have made, and for a while longer they will continue to make important contributions to legal scholarship. I suspect, however, that they represent the end of an evolutionary line. The sooner we realize this, the sooner legal scholars can devote the full measure of their energies to building electronic structures which will have a far greater capacity to advance and nourish legal learning in the twenty-first century.
The Author
Professor Bernard Hibbitts is Associate Dean for Communications & Information Technology at the University of Pittsburgh School of Law, where he writes on the general subject of law and communication as well as on the specific topic of electronic legal publishing. He is the founder and Webmaster of JURIST: Law Professors on the Web. He may be reached by e-mail at
Hibbitts@law.pitt.edu and can also be contacted via his Web site at
http://www.law.pitt.edu/hibbitts/.
Notes
[1] See Charles Bazerman, Shaping Written Knowledge: The Genre and Activity of the Experimental Article in Science 128-150 (Madison: University of Wisconsin Press, 1988).
[2] John Hagel III and Arthur G. Armstrong, Net Gain: Expanding Markets Through Virtual Communities 3 (Cambridge: Harvard Business School Press, 1997).
[3] See Marie Boas Hall, "Oldenburg and the Art of Scientific Communication", 2 British Journal for the History of Science 277, 284 (1965).
[4] See Bernard J. Hibbitts,
"Last Writes? Re-assessing the Law Review in the Age of Cyberspace", reprinted in 71 New York University Law Review 615 (1996).
[5] See 30 Akron Law Review 173-323 (Special Issue, Winter 1996).
[6] See Bernard J. Hibbitts,
"Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews", 30 Akron Law Review 267 (1996).
[7] See, for example, Hibbitts, "Yesterday Once More", at 289.
[8]
Cogprints: The Cognitive Science Eprint Archive (describing the Los Alamos project).
[9] See Jerome McGann,
"RadiantTextuality": "[U]nlike paper-based forms, electronic texts are volatile and open-ended. This means that the work-in-progress becomes a defining mode for scholarly writing. Of course scholarship is a long journey, but the hypothetical structure of knowledge - knowledge as a continual pursuit rather than an archived condition - gets increased emphasis through these new forms of study and expression."
[10] See Anthony Barry,
"Publishing on the Internet with World Wide Web".
[11] E-mail from Paul Ginsparg to Bernard Hibbitts, June 5, 1997.
