Tuesday, March 08, 2005

End of law reviews?

In an earlier post, we discussed the article by Bernard J. Hibbitts, "Last Writes? Re-assessing the Law Review in the Age of Cyberspace"; http://www.law.pitt.edu/hibbitts/lastrev.htm; Version 1.1, June 4, 1996.

The last paragraph stated:

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

In the nine or so years since Hibbitts wrote, we have seen increased availability of legal manuscripts on the web, but they are mainly in the form of prequels to articles which are later published in conventional law reviews.

One issue not fully analyzed by Hibbitts was the role that student editors play as unpaid assistants to the preparation of law review articles. This issued was explored by Jonathan Mermin in Remaking Law Review, 56 Rutgers L. Rev. 603 (2004).

At page 609, Mermin writes:

What faculty critics overlook or mention in passing is that student editors supply an enormous quantity of unpaid labor to faculty authors. The free labor students perform falls into five categories: (1) reconstructing the author 's research to correct errors and track down omitted citations; (2) correcting citation form - which many authors don't even try to get right - to ensure compliance with the requirements of the Bluebook; (3) coordinating the review of many hundreds of articles, and competing with other journals for the better ones, under a system, unique in academic publishing, that permits the submission of one article to dozens of journals at the same time; (4) transforming what often seem to be first or second drafts into finished papers; and (5) for 3Ls, teaching legal writing to 2Ls.

There is a simple explanation for the persistence of student-edited law reviews: law professors enjoy the benefit of using unpaid student labor to perform tasks that would otherwise require faculty time or paid research assistance.

Going back to the transistor/hearing aid footnote (footnote 29 in a certain 2004 University of Chicago Law Review article), one notes that the initial footnote version on the internet cited to an article in the Stanford Observer, a defunct alumni newspaper. Student editors caused a change to a cite in an EE magazine. The underlying source was the same, Professor Nathan Rosenberg at Stanford. It was an interesting concept wherein a publication of an interview devoid of literature sources itself became a source for later law review articles, including the article in the UofC Law Review.

As Mermin points out:

Each article published in a law review is subjected to a meticulous process of double-checking. Student editors track down each source that is cited and check: (1) that the author and title are correct; (2) that quotations have been transcribed accurately; and (3) that the source supports the proposition for which it has been cited. If the author has not indicated the relevant page in the source, the editor is expected to find it.

The folks at the University of Chicago Law Review confused the page number for the issue number of the magazine, confused what Rosenberg said in the 1990's with what the New York Times said in 1948, and, most importantly, neglected to observe that no source supported the proposition that the inventors of the transistor anticipated only a use for hearing aids. They failed on all points emphasized by Mermin.

And, the University of Chicago Law Review helped create an urban legend.

[As an aside, the EE article referred to a New York Times article on the transistor in 1947, which is quite an accomplishment because the very name transistor was not selected till 1948.]


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