* Associate Professor of Law, University of Akron School of Law. J.D., 1984, University of Wisconsin; B.S.B.A., 1981, Washington University in St. Louis. The author wishes to thank Professor David A. Rier, Professor John Martin, and his fine research assistant, Richard Scislowski (J.D., 1996), for their suggestions regarding this article.
1. Bernard J. Hibbitts, Last Writes? Re-assessing Law Review in the Age of Cyberspace (version 1.0, Feb. 5, 1996) <http://www.law.pitt.edu/hibbitts/last.htm> at text accompanying nn.54-199. A print version of Professor Hibbitts's article can also be found in the New York University Law Review at 71 N.Y.U. L. Rev. 615 (1996).
2. Id. at text accompanying nn.228-34.
4. For example, the Akron Law Review is a paper journal with its full text available on the Internet for issues released since the Fall of 1995. See <http:/www.uakron.edu/law/alr/alr.html>.
5. For example, The Boston University School of Law has an exclusively-electronic journal, the Journal of Science & Technology Law (announcement on file with the author). For an extensive though incomplete list of electronic journals, see generally, Office of Scientific and Academic Publishing Association of Research Libraries, Directory of Electronic Journals, Newsletters and Academic Discussion Lists, 105-346 (Ann Okerson, 5th ed. 1995).
A somewhat different phenomenon is a paper journal also available on-line. For example, the Akron Law Review is a paper journal with its full text available on the Internet. See supra note 4.
7. Hibbitts, supra note 1, at text accompanying n.230.
8. For example, Professor Hibbitts included in his summary of criticisms against law reviews some attacks that appear to be mutually exclusive. In the 1960s, he reports, law reviews were criticized for being "elitist," in that they did not allow all interested students to participate. Id. at text accompanying nn.92-124. Thus, they were unfairly dooming a majority of law students to inferior educations and resumes by denying them the educational benefits of law review. He also related that a criticism of the 1980s was that law reviews had begun admitting students using affirmative action criteria. Id. at text accompanying nn.173-76. The problem with this practice, he reported, was that the quality of law review editing suffered. Id. at text accompanying n.177.
I do not purport to resolve the question of which of these criticisms may be valid, but I note that they conflict. Either all law students are capable of serving on the reviews, in which case the "elitist" selection practices were an evil of law reviews, or selection by criteria other than grades and writing competitions hurt the quality of reviews, in which case the "elitism" is necessary to safeguard their quality. Professor Hibbitts made no attempt to resolve or even recognize these apparent contradictions, seeking only to collect and pass on the charges made against law reviews.
9. . Id. at text accompanying nn.54-199.
10. Id. at text accompanying nn.57, 82, 117.
11. Frederic C. Woodward, Editorial Notes, 1 Ill. L. Rev. 39, 39 (1906) ("Undoubtedly the field for law reviews of a general character is already overcrowded. Moreover, it must be conceded that such reviews, however excellent, enlist the interest of but a small minority of the practicing lawyers of Illinois."). This editorial note was recounted at Hibbitts, supra note 1, at n.57 and accompanying text.
12. 3 An Index to Legal Periodical Literature v-vi (1919).
13. Roger Cramton, "The Most Remarkable Institution": The American Law Review, 36 J. Legal Educ. 1, 8 (1986) (supporting a legal literature of fewer journals with faculty editing because "[t]he extraordinary proliferation of law reviews, most of them student edited and all but a handful very erratic in quality, has been harmful for the nature, evaluation, and accessibility of legal scholarship.").
14. 25 Index to Legal Periodical Literature xi-xv (1986).
15. See infra notes 39-41 and accompanying text (regarding students needing distinction in the job market); see also infra note 38 (regarding professors needing articles for tenure and promotion).
16. David A. Rier, The Future of Legal Scholarship and Scholarly Communication: Publication in the Age of Cyberspace, 30 Akron L. Rev. 183 (1996).
18. See Hibbitts, supra note 1, at nn.57, 82, 117 and accompanying text.
19. See Robert C. Berring, Collapse of the Structure of the Legal Research Universe: The Imperative of Digital Information, 69 Wash. U. L. Q. 9, 19 (1994).
20. The colonial period was marked by a legal world of printed decisions in which, "Few attained currency in manuscript form most probable was verbal circulation in garbled form." Joseph H. Smith, Appeals to the Privy Council from the American Plantations 660 (1950); Lawrence M. Friedman, A History of American Law 48-93 (2d. ed. 1985). Mr. Friedman states: [c]ase lawcourt decisionsdid not pass easily from colony to colony. There were no printed reports to make transfer easy, though in the 18th Century some manuscript materials did circulate among lawyers. These could hardly have been very influential." Id at 92.
21. 2 Life and Letters of Joseph Story 564 (W. Story ed., 1851).
22. Robert C. Berring, Legal Research and Legal Concepts: Where Form Molds Substance, 75 Cal. L. Rev. 15, 19 (1987).
23. There are a number of jurisdictions using the first digest West published for them, updated with pocket parts and supplemental volumes. So, while New York is on its fourth West's Digest, Arkansas, Connecticut, Hawaii, and Montana, among other states, are still using their first. The combined digests of those four states take less than one-third the shelf space of a full set of New York digests. The implication of this fact is that those jurisdictions still using their first digest have fewer points of law decided, making it practical to update digests dating back to the 1800s.
Presumably, lawyers motivated to educate themselves by reading advance sheets would be more successful in those jurisdictions than would a New York lawyer.
24. Berring, supra note 22, at 22. ("By the middle of the twentieth century, an enormous structure of standardized case reporting had evolved. Far too many cases for any individual to master were now available. . . No longer could memory serve as the lawyer's main tool. A research system was growing from cases organized into like elements and placed into a like format.").
25. 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).
26. Fred Rodell, Goodbye to Law Reviews, 23 Va. L. Rev. 38, 45 (1937).
27. See Hibbitts, supra note 1, at nn.163-65 and accompanying text.; Cramton, supra note 13; Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992).
28. It is doubtful that the law reviews were much of a cause of this change, given the dramatic increase in the volume of reported cases experienced in the United States. The Century Edition of the American Digest noted that American Courts produced one-half million decisions in the 238 years between 1658 and 1896. 1 American Digest iii (Century ed. 1897). The number of decisions in the 83 years from 1897 to 1980 was over three million. J. Myron Jacobstein & Roy M. Mersky, Fundamentals of Legal Research 7 (1987).
29. Berring, supra note 22; at 22; see also Richard A. Posner, The Future of the Student-edited Law Review, 47 Stan. L. Rev. 1131, 1137 (1995) (In 1995, Judge Posner was able to assert: "Scholarly journals are not meant to be read the way the daily newspaper is read . . . . The vast majority of articles in scholarly journals are destined to go directly from the subscriber to the library shelf, there to be available for future reference . . . .").
30. The H. W. Wilson Company, The Wilson Disk Guide I-1 (1987).
31. Professor Hibbitts discusses the limitations of the Lexis and Westlaw coverage of law review articles. Hibbitts, supra note 1, at text accompanying n.212.
33. For example, the recent United States Supreme Court decision of Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993) was noted in 20 law reviews, according to the Index to Legal Periodicals. 33 Index to Legal Periodicals 950 (1994) (indexing four notes in its table of cases for this case); 34 Index to Legal Periodicals and Books 969 (1995) (indexing sixteen notes in its table of cases for this case).
35. Friedman, supra note 20, at 693; see also John T. Noonan, Jr., Law Reviews, 47 Stan. L. Rev. 1117, 1117 (1195) ("[L]aw reviews are a necessary element of every respectable law school . . . . ").
36. Hibbitts, supra note 1, at text accompanying n.235.
38. Hibbitts, supra note 1, at text accompanying n.228.
39 . Id. at text accompanying nn.82-84 (citing Alan Mewett, Reviewing the Law Reviews, 8 J. Legal Educ. 188, 189 (1955); John G. Hervey, There's Still Room for Improvement, 9 J. Legal Educ. 149, 151 (1956)).
40. See, e.g., id.; John W. Creswell, Editor's Notes, in Measuring Faculty Research Performance 1 (John W. Creswell ed., 1986) ("[O]ne campus after another in recent years has begun to place increased emphasis on scholarly research . . . campus after campus has been moving aggressively to upgrade the importance of scholarly productivity as a criterion for academic personnel decisions.") (citations omitted); George Kannar, Citizenship and Scholarship, 90 Colum. L. Rev. 2017, 2056-58 (1990) (book review) (concluding the professors must write articles as part of their jobs); Howard P. Tuckman, Publication, Teaching and the Academic Reward Structure (1976).
41. John F. Dobbyn, So You Want to Go to Law School 138-39, 141 (1976); see also Friedman, supra note 20, at 693 ("[L]aw review editors were the student elite of their schools. They had the best grades, the best, or only, rapport with the faculty, and went to the best firms when they got their degrees.").
42. Law School Admissions Council, The Official Guide to U.S. Law Schools 19 (1997 ed. 1996).
43. "[D]irect professorial publishing on the Web would not in itself prevent law students from continuing to publish a law review, if they or others deemed the educational experience sufficiently useful and important. Law students might, for instance, turn to publishing print or electronic law journals for themselves. . . ." Hibbitts, supra note 1, at text accompanying n.243.
44. See supra notes 41-42 and accompanying text.
45. One researcher reached the conclusion that fewer than one-half of students on law reviews have their work published. Josh E. Fidler, Law-Review Operations and Management, J. Legal Educ. 48, 56 (1983). Cramton, supra note 13 (accepting the figure used by Joesh E. Fiedler).
46. See supra notes 41-42 and accompanying text.
48. Dobbyn, supra note 41, at 142.
49. Scholarly Journals at the Crossroads: A Subversive Proposal for Electronic Publishing 23-29, 118-39 (Ann S. Okerson & James J. O'Donnell eds., 1995) (discussing extensively the cost savings projected in electronic publication); Andrea Keyhani, Innovations in Cost Recovery, in Scholarly Publishing On the Electronic Networks: Filling the Pipeline and Paying the Piper 57 (1995).
50. Hibbitts, supra note 1, at text accompanying n.255 ("[I]f [law deans and faculties] intervene positively [to bring about Internet self-publication without editorial controls] they will encourage their younger and more ambitious faculty members to unprecedented heights of productivity. . . .").
This may contradict Professor Hibbitts' earlier assertion, made in anticipatory response to the possible objection that the legal community will be flooded with articles in an era of Internet self-publication, that "[m]ost law professors who are inclined to publish are already writing at or near capacity . . . ." Id. at text accompanying n.235.
51. See Jordan H. Liebman & James P. White, How the Student-Edited Law Journals Make Their Publication Decisions, 39 J. Legal Educ. 387, 404, 414 (1989) (listing as consideration for acceptance "Does the article break new ground or is it duplicative?" and stating that ". . . a manuscript on a topic about which much has been recently written is less likely to be worth publishing than one on a fresh topic.").
53. Professor Hibbitts is aware that professors are made to publish articles for retention, promotion, and tenure. Hibbitts, supra note 1, at text accompanying n.85. Indeed, he suggests that promotion and tenure committees consider self-published materials as they would publications in student-run journals. Id. at text accompanying n.255.
54. See supra notes 41-46 and accompanying text.
55. Charles E. Hughes, Forward, 50 Yale L.J. 737, 737 (1941).
56. Bart Sloan, Note, What Are We Writing For? Student Works as Authority and Their Citation By the Federal Bench, 1986-1990, 61 Geo. Wash. L. Rev. 221, 230-31 (1992).
60. I learned this fact from a student-written note about student writing. Id. at 227-28 n.38 (1992). The piece in question was Naomi Sheiner, Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham. L. Rev. 963 (1978).
61. This conclusion is drawn from a citation analysis I conducted. The Westlaw state and federal court databases were used to identify any courts citing that issue of the Fordham Law Review. The "JLR" data base of Westlaw was searched for citations, and the result was checked against Shepard's Law Review Citator as an accuracy check.
62. No disrespect is intended for the Fordham Law Review. Many fine journals are not recognized as the top in their field. A 1986 law review article that tracked citations to law review articles by the United States Supreme Court identified Fordham as tied for 40th place during the three years from 1981 through 1983, together with 14 other journals, for the period under study. That ranking was achieved by three citations. During the period 1971 through 1973, Fordham Law Review enjoyed six citations in the nation's highest Court, earning it a tie with 8 other reviews for 29th place. Louis J. Sirico, Jr. & Jeffrey B. Margulies, The Citing of Law Reviews by the Supreme Court: An Empirical Study, 34 UCLA L. Rev. 131, 138, 142-43 (1986). A 1976 study found the impact of the Fordham Law Review to be 43rd in the nation. Olavi Maru, Measuring the Impact of Legal Periodicals, 1976 Am. B. Found. Res. J. 227, 243 (1976).
63. A recent survey of student satisfaction with their law schools placed Fordham 102nd in a field of 170. Shanie Latham, The Happiest Law Students On Earth, Nat'l Jurist, April/May 1996, at 20, 26. The annual U.S. News & World Report survey that purports to evaluate the "quality" of law schools ranked Fordham in the second tier of five. Ted Gest, America's Best Graduate Schools, U.S. News & World Rep., Mar. 18, 1996, at 79, 83. While the validity of rankings such as these are subject to doubt, they may reflect perceptions of law students, lawyers, and professors.
64. This conclusion is drawn from the citation analysis described supra at note 61.
65. 46 Fordham L. Rev. Part 2, at ii (1978) (table of contents for Part 2).
67. Professor Hibbitts cited E. Joshua Rosenkranz, Comment, Law Review's Empire, 39 Hastings L.J. 859 (1988). Hibbitts, supra note 1, at n.156 and accompanying text. There may be more student pieces cited in Last Writes However, the author's deviation from Bluebook form requiring authors to indicate student authorship makes identifying student works cited in Last Writes a daunting task.
68. Howard A. Denemark, The Death of Law Reviews Has Been Predicted: What Might Be Lost When the Last Law Review Shuts Down? 27 Seton Hall L. Rev. __ (forthcoming 1996).
69. Nonetheless, for the reasons discussed earlier, it is unlikely that a decrease in citations by courts and scholarly articles would undermine the determination of law schools to support student reviews. See supra text accompanying notes 40-48.
70. This estimate is stated for the year 1991 in Maru, supra note 62, at 227 n.35.
71. If scholarly legal articles really serve no purpose, then perhaps the fact that some useless articles cite other useless articles is of no consequence. This appears not to be the general assumption of the profession, however, since scholars have published analyses of which law reviews are cited more frequently in law review articles. See, e.g., Maru, supra note 62.
72. See e.g., supra notes 60-69 and accompanying text. The same may be true of other fields of academic endeavor. The Nineteenth Century mathematician George Boole developed a mathematical system for understanding the truth or falsity of statements in a symbolic system of zeros and ones. It was considered interesting enough in its day, but has much greater significance in the computer era, since modern digital computers operate using Boolean algebra. That telephone switching systems and electronic computers would someday depend on Boole's system of symbolic logic could not have been foreseen in Boole's lifetime. 2 New Encyclopedia Britannica, George Boole 372 (15th ed. 1994).
73. Belsito v. Clark, 644 N.E.2d 760 (Ohio C.P. Summit Cty. 1994). This is the only case I researched to make this point. My selection was not scientific: I helped draft an amicus brief on this case, together with Akron professors Wilson Huhn and Malina Coleman. We thought the case was significant and interesting enough to get involved at the trial level.
78. A search on LEXIS, in the "News" library revealed 13 mentions of the case in response to a query "Belsito w/25 baby." Of those mentions, seven were made in Ohio newspapers. The remaining articles were quite brief. LEXIS does not maintain the text of the Akron Beacon Journal, the newspaper with the closest connection to the area. A search of the Akron Beacon Journal for the relevant time period shows front page coverage of the story. See infra note 81 and the articles cited within. The Dayton Daily News carried four stories on the case in its "A" section between September and October of 1994: Son Born to Parents, Surrogate in Akron Case, Dayton Daily News, Oct. 13, 1994, at 5B; Genetics Rule, Judge Says, Dayton Daily News, Oct. 12, 1994, at 5B; Judge Must Deliver Before Woman Does; 2 'Moms' Seeking Clarity on Birth Law, Dayton Daily News, Sept. 28, 1994, at 4B; Who's The Mother? Couple Asks Ruling on Test Tube Baby!, Dayton Daily News, Sept. 16, 1994, at 3B. By contrast, the LEXIS News library shows not a single mention of the case in The New York Times, The Wall Street Journal, The Boston Globe, The Boston Herald, the Hartford Courant (selected articles only are made available on the "busdl" file of the "news" library), The New Haven Register, The San Francisco Chronicle, or The Los Angeles Times.
I have no way of knowing how much the content of law review articles is influenced by media coverage of cases, except to note the obvious point that cases that do not come to the attention of law review writers will not be noted. Newspaper readers in Akron and Dayton had an opportunity to learn of the case from their local daily papers and write timely analyses. Readers in New Haven, Connecticut or Cambridge, Massachusetts might never have become aware of the Belsito case.
80. See Michelle Pierce-Gealy, Comment, "Are You My Mother?": Ohio's Crazy-Making Baby-Making Produces a New Definition of "Mother," 28 Akron L. Rev. 535 (1995); Victoria L. Fergus, Note, An Interpretation of Ohio Law of Maternal Status in Gestational Surrogacy Disputes: Belsito v. Clark, 644 N.E.2d 760 (Ohio C.P. ), 21 U. Dayton L. Rev. 229, 237 (1995) ("The Ohio General Assembly has not specifically addressed the issue involving maternal status in gestational surrogacy cases. The only Ohio court to address this issue has been the Belsito v. Clark court.").
81. 5 Cal. 4th 84, 851 P.2d 776 (Bank 1993).
82. Fergus, supra note 80, at 243-44. The influence of Calvert v. Johnson can be seen in the number of citations to it in courts and law reviews. See 7 Shepard's Pac. Rep. Citations 1526 (1994); 89 Shepard's Pac. Rep. Citations 841 (Ann. Cumulative Supp. pt. 2, no. 3 March 1996); 89 Shepard's Pac. Rep. Citations (Ann. Cumulative Supp. no. 4 April 1996) (for citations in American courts). See also 33 Index to Legal Periodicals 937 (1994), 34 Index to Legal Periodicals and Books 955 (1995), and 89 Index to Legal Periodicals and Books 182 (no. 1 Oct. 1995) (for citations to 13 law review works analyzing Calvert v. Johnson).
83. One need only look at newspaper accounts with their dramatic pictures of the parents-to-be or the new mother holding her technological-miracle baby to understand the human interest of this news story. See, e.g., Sheryl Harris, Ruling Favors 'Real' Mommy, Akron Beacon-J., Oct. 12, 1994, at A1, A8; Sheryl Harris, "Special Delivery": Tiny Subject of Summit's Landmark Court Ruling Arrives, Akron Beacon-J., Oct. 13, 1994, at A1.
84. See supra note 80. A search in the "Lawrev" library of LEXIS revealed only one citation, Richard A. Epstein, Surrogacy: The Case for Full Contractual Enforcement, 81 Va. L. Rev. 2305, 2307, n.6 (1995) (citing the Belsito case briefly in a note). The data base did not include the University of Dayton or Akron law review articles.
85. The Chicago-Kent Law Review citation analysis of the most prestigious law reviews does not include either of these reviews in its study. Collen M. Cullen & S. Randall Kalberg, Chicago-Kent Law Review Faculty Scholarship Survey, 70 Chi-Kent L. Rev. 1445, 1452-460 (1996). Since the University of Dayton Law Review began publishing in 1976, it is not treated in the 1976 citation study by the American Bar Foundation. See Maru, supra note 62.
86. A.B.A. Comm. on Legal Education, A Review of Legal Education in the United States, 45-47 (1995) (listing nine law schools in Ohio and indicating all are ABA-approved).
87. The University of Akron School of Law publishes the Akron Law Review. Capital University Law & Graduate Center publishes the Capital University Law Review. Case Western Reserve University School of Law publishes the Case Western University Law Review. The University of Cincinnati College of Law publishes the University of Cincinnati Law Review. Cleveland State University Cleveland-Marshall College of Law publishes the Cleveland State Law Review. The University of Dayton School of Law publishes the University of Dayton Law Review. Ohio Northern University Pettit College of Law publishes the Ohio Northern Law Review. The Ohio State University College of Law publishes the Ohio State Law Journal. The University of Toledo College of Law publishes the University of Toledo Law Review. 34 Index to Legal Periodicals and Books xv-xxvii (1995).
88. For example, The University of Akron School of Law has the Akron Tax Journal in addition to the Akron Law Review. The Ohio State University has the Ohio State Journal of Dispute Resolution in addition to the Ohio State Law Journal. Id.
89. Had I looked at the Spring, 1995 issue of the University of Dayton Law Review, I would have found a casenote on Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993). That note was one of twenty listed in the hardbound volumes of the Index to Legal Periodicals. 33 Index to Legal Periodicals 950 (1994) (indexing 4 casenotes on this decision), 34 Index to Legal Periodicals and Books 968-69 (1995) (indexing 16 casenotes on this decision, including Bobbie L. Flint, Note, Sex Discrimination: Psychological Injury from Hostile Work Environment Sexual Harassment Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (interim ed. 1993), 20 U. Dayton L. Rev. 1049 (1995)). Perhaps each of those twenty notes fills a need in the legal literature, but one certainly might suspect that there is substantial duplication among those notes. If so, the critics of law reviews might have slated The University of Dayton's law review as one that ought to stop publication, alleging that its work merely duplicates what others have done. That would be a loss to legal scholarship. See supra note 73 and accompanying text; infra note 93 and accompanying text.
90. See Sloan, supra note 56, at 229 n.42 and Maru, supra note 62, at 230 nn.13-14 for brief discussions of the weaknesses of citation analysis in determining the impact of legal periodical articles. However, one may search briefs filed with the United States Supreme Court in LEXIS and WESTLAW to determine when a law review article is cited in that forum. Such a search in the LEXIS database reveals sixteen citations to Akron Law Review since 1979 (Lexis BRIEFS library, keywords "Akron L. Rev.").
91. 34 Index to Legal Periodicals and Books and 89 Index to Legal Periodicals and Books Supplements to the date of this research list only one casenote each for the following cases: Shump v. First Continental-Robinwood Associates, 644 N.E.2d 291 (Ohio 1994) and Churhfield v. Monsanto Co., 844 F. Supp. 371 (S.D. Ohio 1994). These cases are noted in Cameron A. Sergent, Note, The Current Status of Landlord Liability for Injured Guests of Ohio Tenants: An Evaluation of Shump v. First Continental-Robinwood Associates, 21 U. Dayton L. Rev. 209, 249 (1995). In fairness, I should report that I derived the example of twenty casenotes concerning Harris v. Forklift Systems, Inc., by looking beyond the specific issue of the University of Dayton Law Review to Volume 20, which was one of the twenty reviews noting the case. See supra notes 33-34, 89 and accompanying text.
92. See supra note 73 and infra note 93.
93. I must also commend the lead article, Andrew A. Marino and Lawrence E. Marino, The Scientific Basis of Causality in Toxic Tort Cases, 21 U. Dayton L. Rev. 1 (1995). I have written on topics treated in this article (see Howard A. Denemark, "The Search for 'Scientific Knowledge' in Federal Courts in the Post-Frye Era: Refuting the Assertion that 'Law Seeks Justice While Science Seeks Truth,'" 8 High Tech. L. J. 235 (1993); Howard A. Denemark, "Improving Litigation Against Drug Manufacturers for Failure to Warn Against Possible Side Effects: Keeping Dubious Lawsuits from Driving Good Drugs off the Market," 40 Case W. Res. L. Rev. 413 (1990)) and found it useful. I teach about expert scientific testimony in an annual seminar on law, science, and technology, and I may use the article when I prepare my next lecture on the subject. Modesty prevents me from commenting on John S. Zanghi, "Community Standards" in Cyberspace, 21 U. Dayton L. Rev. 95 (1995), since Mr. Zanghi wrote the original draft of that article for my above-mentioned seminar in law, science, and technology.