The Volokh Conspiracy

An interesting idea. A few quibbles:

1. This won't solve the problem that Lawrence Solum pointed out, viz., that lengthy background sections are necessary in order to educate relatively ignorant student editors, who won't otherwise know much (if any) of the relevant context of any given field of law.

2. What version would appear on Westlaw/LEXIS?

3. Question 2 is important, because to a practicing lawyer, the most useful parts of law review articles are the background sections filled with citations. You can save yourself hours of tedious research if you find a good law review note or article that already has compiled into one footnote all of the 37 cases that have ever considered the precise point of law that you're interested in.

This sounds like an interesting halfway point between the permanence of paper journals and the universal access of online postings.

As for how to structure the online archive, maybe a modification of the setup used in the arXiv already popular among the mathematics and physics communities? For that matter, what about an arXiv for law: a non-peer-reviewed site ot get academic works to the community at large quickly and easily before they make their long trek through reviewed journals?

Professor Kerr's prediction is already occurring in some other fields. For instance in the February 2004 American Sociological Review, the editor wrote:

The website will also feature supplemental material that
cannot fit within the space limitations of the journal. In the case of William Bielby’s Presidential Address, the ASR website will feature pictures and sound clips that build on the themes of his paper. More often the website will feature graphs and appendix tables that supplement the published findings. We can replace the phrase “results not shown,” with “results not shown; see the ASR website for additional relevant material.” In this way, we can provide as much information as possible for the aficionado without using scarce journal pages for research details that may be of little interest to the general reader.

I made law review at my school and now am in the midst of writing my "comment" which the powers that be mandated must be at least 50 pages in length. Never mind, that a 25 page treatment of my topic would suffice. Now, I must "pad" my paper.
One of the hardest assignmnents I ever had, was when I was in graduate school and the professor said that our final paper must be a MAXIMUM of 2 pages. There was no room for B.S. and all of the students agreed it was a difficult task.
Brevity, is indeed the soul of wit.

Anything that makes the rest of the legal scholarship world more like The Green Bag 2d is a good thing.

I think we will se this with briefs too. "here is our 20 page brief. footnote 1 points to the 800 page online version."

I have three major concerns with this bifurcated vision of legal scholarship: extended online versions of articles are likely to lack longevity, will lack the careful review that published pieces get, and may be superfluous.

The first is perhaps the most problematic. Our society has yet to come up with a reliable scheme for the long-term preservation of online information, particularly information which may be superseded or updated but of which prior versions may be useful to scholars. Today, an increasing number of law review articles cite web sites that are reorganized or disappear between the original article submission and publication--how are these articles likely to fare over a span of years, and do we really want to encourage articles to push more of their useful content online? Permalinks and repositories such as SSRN can help, but it's far too soon to see them as replacements for journals themselves, which are kept in bound form in every law library for decades. (And asking law reviews to maintain such sites is unlikely to help; even where they have resources, they lack institutional memory. I doubt our own law review would be able to locate most of the sources that in previous volumes have been cited as "on file with ____ Law Review".)

Second, part of the point of publishing in a law review is that law review articles get cite checked. Cite checking by students has its downsides--and we could argue at length about the comparative merits of student cite checking versus peer review--but it tends to be thorough. Online sources are unlikely to get much if any editing at all, much less review for accuracy (and academic honesty) by a third party. Worse, the sort of information for which cite checking is most useful--discussion of the state of the law containing lengthy string cites to cases--seems to be among the most likely to be relegated to the second-tier, online versions of articles.

Finally, the reason we want articles to be shorter is not that law review issues are too long. It's that most articles don't contain enough meat to be worth their length. Only a minority of articles contain the sort of comprehensive background discussion, literature surveys, or topical discussion that would make for a worthwhile "extended edition"--and that minority, by and large, law journals are and should be happy to publish. General interest journals need a fair amount of background in articles not just for students, but so that the articles can be interesting to and useful for practitioners and academics in different subfields. The length problem, as I see it, more often comes from some secondary discussion that adds length but isn't as well-thought-out, well-researched, or original as the core of the work--and which doesn't need to be relegated to an extended version, but rather to another article, or perhaps the dustbin. (An additional problem is that student law review editors are hesitant to heavily edit writing by established scholars, many of whom get prickly if we try to change what they wrote too drastically. There again, web sites that get even less editing seem like a step in the wrong direction.)

I think I'd rather just see a world in which legal scholarship that's well-suited to the online medium moves there, law review articles remain as standalone pieces that are intended to be a bit more timeless and that receive a bit more careful craftsmanship, and authors in both media realize that conciseness is a virtue.

[Disclaimer: I am a third-year law student on the editorial board of one of the law reviews that's party to the agreement, but I had no role in the agreement's creation and speak only for myself.]

So kind of like Lord of the Rings... where you watch the 3-hour version in the theaters, and then 4 months later you can get the extended version DVDs, with interviews with the makeup crew and the director and stuff.

That would be neat if law reviews could do this. You could have .mov clips of law review editors talking about how it was working with the author, shots of 2Ls doing cite-checking, and interviews with the author explaining how "pathbreaking" the piece is.

And of course you could read the "editor's cut" of the piece, with all of the grammatical errors and rambling paragraphs left in their original form.

Brilliant. In a slightly better world the articles will have linked embeeded to the sources cited. Since West bought Findlaw, Findlaw has sucked. But I'm hoping that Cornell's LII will eventually have all SCT cases and that some repository will store federal courts of appeals and state cases. It's always frustrating to me when I blog about an article or case that is not publicly available. Seems to me that the repository I'd like to see should be publicly funded, since the public does have an interest in freely accessing decisions interpreting public laws.

Why don't the official state reporters just start making available the full text of each book? SCOTUS already does this: ( http://www.supremecourtus.gov/opinions/boundvolumes.html ) Maybe the bandwith bill would be too expensive?

I'm having difficulty understanding the purpose of this proposal. Certainly we'd be better off without student editors demanding that each sentence have a footnote, and with articles being shorter.

But a law review article without any footnotes would be useless to anyone who wants to rely on the article for authority, and I don't think anyone reads law review articles for fun. Law review articles are supposed to be rigorous, well thought out, and promote discourse. Scientists have Cell and Applied Physics Letters to talk among themselves, and there are magazines like Discover and Scientific American to educate the masses.

With a burgeoning number of legal journals, almost anything can be published, thus there is more and more slop, all indexed by Westlaw. I would rather make it rigorous (thus useful to academics and judges), not try to take the place of the New York Times editorial page.

Maybe this will be the future; who knows whether it will be better. At least traditional scholarly publishing involves an elaborate vetting and editorial process, including important functions such as preemption checks and attribution constraints. One often reads on the blogosphere writers making identical points without any evidence that they are aware that others have said the same thing because there are no editorial constraints in that world. For example, I note that the post on which I am commenting bears a date of February 10. The following was posted the day before that on the American Constitution Society blog comment board concerning new limitations on article length.

Written By:Anthony D'Amato On February 9, 2005 04:07 PM
We ought to split the problem. The shorter version of the article (say, a max of 35 pages) should be published in the law review. The longer version should be published on the internet with the url listed in the first footnote of the law review article.