JILT 1996 (1) - Abdul Paliwala
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From academic tombstones to living bazaars
The changing shape of Law Reviews
Dr. Abdul Paliwala
University of Warwick
A-H.H.Paliwala@warwick.ac.uk
Abstract
This article reviews the development of electronic law journals such as the Journal of Information Law and Technology in the context of academic legal periodicals in general. It suggests that while technology has an important role to play in the electronic future of such publications, it is not a simple determinant of such future. Electronic law journals are likely to be successful because they meet a need, the resolution of a crisis in academic journal publishing which cannot fulfill the needs of a fast changing legal information environment. This requires electronic law journals and reviews which are not mere replicas of paper journals. Instead electronic journals can promote 'living' intellectual discourse through uptodate and interactive information. However, the achievement of these objectives requires the overcoming of a number of obstacles, and in particular it is necessary to promote changes in academic legal culture which make writing and reading electronic journals an acceptable activity.
Keywords: Law reviews, Electronic law journals, electronic publishing, journal of information, law and technology.
This is a refereed article.
Date of publication: 31 January 1996
Citation: Paliwala, A. (1996) 'From academic tombstones to living bazaars The changing shape of Law Reviews,' 1996 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/elj/jilt/issue1/1abdul/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1996_1/paliwala/>
Discussion of this article
1. Introduction
1.1 The Electronic Law Journals Project.
The opportunity to produce a whole new environment for law journals and reviews does not arise very often. With this issue of JILT, the Electronic Law Journals project joins others in a process of change. In the sciences, such journals have mushroomed in the last couple of years. In law, we are beginning to see the development of a series of electronic journals (see Electronic Journals in Law). The Electronic Law Journals project intends to assist the UK and international legal academic community produce a series of electronic law journals by developing a journal environment which will make the best use of the new medium of publishing on the World Wide Web. However, its real mission is to promote culture change - by encouraging and assisting academics to commence electronic journals, writers to write for them and readers to read them.
1.2 The medium and the message.
One could glibly start with the McLuhanite dictum that the new medium will massage journal publishing into new dimensions (McLuhan 1962 and 1966), but history suggests that the kernel of truth in McLuhan must not lead us to ignore the fact that successful revolutionary publishing projects have always required a new message. This should apply as much to publication ventures on the internet as to those on stone tablets. Thus it was Julius Caesar’s new imperial design that was behind the earliest known journal the Acta Diurna consisting of handwritten news bulletins of ancient Rome. And of course, Gutenberg’s printing press was the vehicle for the bible. The device of movable type may have enabled the publication of newspapers in the 15th century, but these met the demand for information in a fast developing society which had emerged from the dark ages (Schramm 1982, Encarta 1995). It is a similar fruitful combination of need and technological development with the growing sophistication in the arts, philosophy and science that resulted in the development of the first periodicals at nearly the same time in Germany, France and Britain {Erbauliche Monaths-Unterredungen (1663, Germany), Journal des Sçavans (1665; subsequently titled Journal des Savants, France), and Philosophical Transactions of the Royal Society of London (1665, UK)}. These scientific publications tended to be devoted to commentary on new developments and ideas which were very different from the equivalent powerful development of newsy journalism.
2. The Development of Academic Legal Periodicals
In one respect it is the development of a particular form of periodical, the law report which provided such a strong impetus to the early development of the common law in England (Daniel 1884). It is not surprising that the word journal appears in the title of several early law reports, and in essence the early law reports were learned treatises by the high priests of the common law.
However, law journals and reviews in the contemporary sense did not appear in the United Kingdom or the United States until much later in the 19th Century. The Bar was first with the Law Journal quickly followed by the Law Society Gazette. Yet, the first academic law reviews were clearly an attempt to discuss at greater length wider issues relating to the law. The first issue of the Law Quarterly Review did not have any foreword. However, its first article provides ample reason why such a review was considered timely. It is by the illustrious James Stephen and Frederick Pollock on the seemingly innocuous “Section seventeen of the Statute of Frauds” (Stephen and Pollock 1885). Stephen’s introduction sets out a powerful case for law reviews in the age of reform:
“One of the many difficulties which stand in the way of improving the law of England- perhaps I might say the great difficulty- may be thus expressed. Those who have acquainted themselves with its provisions have generally neither the time nor the inclination to undertake any other task than that of administering it as an existing system. Besides, when a man has mastered an intricate and difficult system, he takes a positive pleasure not only in the superiority which his knowledge gives him, but in that knowledge itself. The late Lord Wensleydale, whilst pitying the hard lot of a man who was ruined because his pleader had supposed his remedy to be in trespass instead of case, added: ‘No doubt it is hard on him. The declaration ought to have been in case. If it had been, he would have won; but if the distinction between trespass and case is removed, law as a science, is gone -gone.’ On the other hand, those who have not a professional acquaintance with law are almost certain to be baffled in any attempt which they make to improve it by their ignorance of the subject.” (Stephen and Pollock 1885: 1)
Stephen’s response to this dilemma was to make a systematic attempt to improve the law by writing “expositions of existing branches of law at once correct and complete, and capable of being understood by any person of decent education....It seems to me that if the law as it actually is were, so to speak, translated into common English, and made accessible to the public at large, the materials for its re- enactment in an improved and simplified form- in other words for its codification -would be provided, and I felt sure that the convenience of this process would be so generally recognised that if it were once begun there would be every reason to hope that it might proceed quite as rapidly as would be desirable.” (Stephen and Pollock 1885: 2)
A few years later Pollock confirmed this perspective by inviting among other things, “articles of immediate political and social interest in their legal aspect” (Baker 1984). The Harvard Law Review carries a humble note section, as befits a student produced journal, which suggests it is not intended to compete with established law journals, but to set forth primarily work done in and news about the school. But there is also an expectation that some of the articles by professors and illustrious alumni would carry weight with the profession. Such humble beginnings led to two excellent US traditions, the student administered law review and the excellent tradition of legal scholarship.
2.3 The impact of multidisciplinarity.
It is not surprising that with the onset of years august periodicals such as the LQR would be found wanting. Hence, and there is the development in the US of Law and Contemporary Problems in 1933 and in the UK the Modern Law Review in 1937 . Each had a new message to impart. The Modern Law Review was clearly influenced by that combination of European scholars seeking refuge in England and British scholars who wanted to do something different using recourse to multidisciplinarity and sociological jurisprudence:
“The Review deals with the law as it functions in society.....It will take as its field also those branches of scientific study in which law is an important but not the only factor” (Modern Law Review, Editorial Notes 1937: 2)
But it also aimed to provide critical analysis of reform:
Again, the recent history of English Law has been one of continual reform and re-adaptation....All projects of reform must be subjected to searching analysis and discussion in their early stages. In the past legal journals have not taken a very prominent part in this necessary process, which has, for the most part, been left to the lay press”. (Modern Law Review, Editorial Notes 1937: 2)
The Foreword to the first issue of the earlier US publication Law and Contemporary Problems makes a similar point about contextual study of law, but does not have the same political bite as the MLR.
The point is that path-breaking academic law periodicals were never intended to be mere responses to new technologies, but were fulfilling important policy goals. Yet, it seems that really it is only the content which is different. The style, presentation and volume of material hardly changes. There is a certain shape, feel and format to all law reviews which has remained constant.
3. The Rise of Electronic Journals
3.1 The new communications media.
It is this constancy that is being disturbed by the new electronic law journals. Is the attempt to do so justified? Electronic publishing of journals has been enabled by the development of electronic communication. This communication can take place through a variety of means of on-line and off-line delivery. Thus, the major legal on-line systems such as LEXIS and WESTLAW initiated parallel publication of academic law periodicals. Journals can also be delivered on CD-ROM, and ABI INFORM BPO has used this method of delivery for parallel publishing of business journals. However, interest in electronic journals has increased enormously with the rise of the internet and particularly the World Wide Web as the burgeoning medium for communicating information. This is because the World Wide Web provides an easy method for anyone to start electronic information systems which are accessible world-wide.
3.2 The rationale for electronic journals.
It is necessary to avoid the simplistic assumption that electronic publishing of journals is merely a fad, of the medium chasing the message in order to see what can be done with the new medium. There are wider reasons for the move to electronic journals. The first is the crisis in paper publishing (Arnold 1995, Follett Report 1993, Okerson and O’Donnell 1995). The crisis has been brought about by the enormous growth in the number and subscription rates of paper journals to the extent that libraries can no longer afford to stock them, or are dispensing with monographs in order to stock vital journals. Thus the Follett Report recommended a funded programme for the development of electronic journals largely as an answer to the crisis of libraries. The production, distribution and reading of paper journals have three main costs. Editorial costs have been mainly borne by academics and mostly absorbed by academic institutions. Printing, distribution and marketing costs have been borne by publishers and passed on in the form of subscriptions. Library costs include those of ordering, maintaining and issuing paper copies.
The costs of funding of the internet tend to be absorbed by the academic community as a whole, with the result that it is delivered free at source to users. In electronic publishing on the internet, the costs, which in respect of paper journals, were borne by publishers are now absorbed by the academic community. More significantly, electronic publishing has diminished the difference between editorial, production and distribution tasks. Thus, producing a new academic electronic journal becomes relatively cheap (Harnad 1995). Electronic publishing on the internet is also a boon to libraries because the costs of administering, maintaining and issuing are diminished.
A second reason is the speed, efficiency and width of access. Access is widely expanded as the limitations of bandwidth form the main obstacles to the number of users who can access a journal at any time. There is a general recognition that access on the internet can be slow and cumbersome, and it may be that for some time alternative forms of electronic delivery such as CD ROM will remain popular. However, even with these problems, electronic journals provide better access than paper ones because of their relative ability to deliver to any number of people at any time at any place. The problems of traffic will never disappear, but will improve with better management and improvements in bandwidth.
A third and perhaps most significant reason is what Harnad (1991) has called the fourth revolution in the history of human thought. The previous three revolutions of language, writing and printing have enabled the widespread communication of thought, but at the expense of slowing down the relationship between the occurrence of thought and its communication. He illustrates the cognitive crisis of present paper publications: In that medium, new ideas and findings are written up and then submitted for peer review. The refereeing may take anywhere from three weeks to three months. Then the author revises in response to the peer evaluation, and when his article is finally accepted, it again takes from three to nine months or more before the published version appears...That’s not the end of the wait, however, but only the beginning, for now the author must wait until his peers actually read and respond in some way to his work -- incorporating it into their theories, doing further experiments, or otherwise exploring the ramification of his contribution. That’s why creative scholars publish, after all: not to put another line on their CVs but to collaborate with their peers in expanding our collective body of knowledge. For him:
Scholarly skywriting (e.g. through electronic journals) promises to restore the speed of scholarly communication to a rate much closer to the speed of thought, while adding to it a global scope and an interactive dimension that are without precedent in human communication, all conducted through the discipline of the written medium, monitored by peer review, and permanently archived for future reference.”
One matter that Harnad does not discuss is the crisis in the nature of information. The written word was a particular form of communication of thought in a codified form. It has had and continues to have a dominant role in the communication process. However, the rise of other media has enhanced the role of speech, other sounds and still and moving images in the communication process. Multimedia has a significance for academic legal communication in journals which is explored later in this paper.
4. Electronic publishing of law journals
4.1 The crisis in paper publishing.
It is not surprising that the issues that have affected other areas of scholarly publication have affected law journals as well (Jensen 1989, McDowell 1990, Gordon 1991, Stier et al 1992, Althouse 1994, Tushnet 1994, Richardson 1994). The exponential growth in the publication of law periodicals may have been partly fueled by supply side factors such as growth in the number of law academics and the pressures to publish. However, the major factor is growth in demand for specialised legal information on a worldwide scale. The result is that academics, practitioners and students require the means to research or study law on a global basis. Only the richest libraries can afford to subscribe to all the relevant law periodicals. Even more significant is the need for instant information in a rapidly shifting infoscape. If the media can produce instant information which can quicken the pace of decision making, and the pace and quantity of commercial transactions has to be measured in fractions of seconds, then a cumbersome process of turnaround of paper law articles which can take over a year between completion and reaching the reader can only be relevant for the most timeless or futuristic studies. One can assert that real academic work is timeless, the difference between a considered ‘review’ and a journalistic exercise. Of course academics write about the past in the present in the name of the future, but if the future has changed irrevocably before the past has been described, perhaps it has become necessary to catch up. In any case, how much of the contemporary legal publication merits the badge of timelessness?
Electronic publication has responded to this crisis in a number of ways, without resolving it. Firstly, electronic communication of the original article in word processed form and the organisation of the refereeing and editorial process through electronic mail should speed up the publication process. Wordprocessing of the original article is common now, but electronic mail for refereeing and editorial communication still needs to take off.
Secondly, there is the advent of parallel publishing of the original paper version. The major online services such as LEXIS and WESTLAW contain the text of leading law periodicals. However, even this form of publication is not without significance. The change of medium makes certain things quite awkward and others a great boon. For example, reading the text of articles on screen on the existing LEXIS interface cannot be a pleasurable experience for anyone. Footnoting can be a nightmare. Reading the text after printing is equally unfriendly because the printouts don’t have the look and feel of the original paper versions. Therefore, there are design issues which any electronic publisher has to tackle. As yet, there is nothing equivalent in law to systems such as ABI Inform BPO which provides images of paper journals on CD ROM. The reader searched a database containing the summaries of articles and then printed out the exact paper image. An excellent combination, except that you have to shift CD’s in the process. Nevertheless, the reason why the LEXIS and WESTLAW type of parallel publishing will remain popular as long as paper journals exist is the ability to search for relevant articles across huge archival datasets, browse them for relevance and instantly print or download them from your desktop. In the circumstances, an online service which can access a vast number of journals on a “pay as you go” basis has a great advantage for the user. For the periodical publishers, the electronic version becomes a supplementary source of income with the main income continuing to come from subscriptions to the paper journal. The existence of electronic versions must provide an incentive to libraries and users to consider unsubscribing to paper versions in these cost-cutting times, but no research has been done yet on the implications of this either from the perspective of the user or from that of the publisher of the journal. For example, will the time come when the income stream from the electronic version becomes greater than that from the paper version?
The ability to search is a second advantage. It is not surprising that the most successful forms of electronic publishing for law periodicals so far have been electronic abstract services for law periodicals. Paper versions of services such as the Index to Legal Periodicals were a boon to researchers before the onset of the electronic age. The electronic abstract services such as the electronic Index to Legal Periodicals, Legal Resources Index or Legal Trac are a huge improvement on anything the paper versions can provide. The problem for users is the discontinuity between the abstract and the actual article in an age when there is no reason why the article should not be available instantly. It is the frustration of finding a reference to an interesting article and it not being there in the library. Parallel publishing of large numbers of periodicals in a single dataset partially overcomes this problem. You can search for relevant articles in LEXIS or WESTLAW, browse them for relevance and have them instantly downloaded or delivered to your desktop printer. A further advantage of this medium is that the user can save, subject to licensing constraints, the electronic version on disk for further browsing and can directly incorporate extracts into planned publication. This has always been a major advantage to practitioners in relation to electronic versions of law reports (Paliwala, Terrett and Cartwright, forthcoming). It is an even greater advantage for academics writing articles.
But there are problems with this form of parallel publishing. I have already mentioned the user interface. More significantly, these services lack the interconnectivity brought about in cyberspace by the World Wide Web. At present, the reader can search LEXIS journals or WESTLAW journals, each with different interface design and search techniques. There may be hypertext within each system, but you can not jump from a LEXIS article to a WESTLAW one, let alone compare the two. The reader has to ‘walk’ from one library to another with all its attendant problems. The Web on the other hand provides the possibility of global searches and global hypertext in a virtually seamless library. But as noted above, the Web is not without its problems of traffic and locating decent sites within an anarchic maze.
A Web site which is properly managed and has consistent standards can avoid many of the disadvantages of the internet as well as of existing full text retreival systems. There is therefore a strong case for parallel publishing of paper journals in an electronic form, although I believe that readers will increasingly demand this to be in forms which are consistent and interconnected as on the World Wide Web. The Electronic Law Journals project aims to encourage parallel publishing on its environment in order to provide users with a consistency of standards and ease of use.
4.3 Original Electronic Publishing.
The case for electronic law journals goes beyond this. It is the case for a reversal of roles, a reversal of priorities between paper and electronic, and secondly and more radically, publication exclusively in the electronic version. Paper-first parallel publishing cannot deal with the need for rapid communication in the changing infoscape. As suggested above, the effective revolutionary change involved in electronic publishing is not merely of cutting out the time lag in printing and distribution, but of electronic restructuring of the whole process of submission, refereeing, editing, communicating and post- publication interaction. These arguments, of quantity, speed, breadth of access and costs, produce the most compelling case for the shift from paper to electronic as the original form of publication. This does not mean that paper forms will not retain their prestige for some time, but that prestige may fade into archaism if the difficulties as outlined below of the new medium can be overcome. In the meantime, the tendency will be to go for a compromise solution of the publication of an electronic journal followed by the paper version.
This attractive approach has been followed by the WEB Journal of Current Legal Issues. Bruce Grant (1995) has said of the WEB journal that he does the technical work himself with very little assistance from anyone else. Articles are submitted in electronic form, referees’ comments are sought electronically, and are edited and marked up electronically. The consequence is an amazingly fast time between submission and publication which no paper journal can match. Thus, an invitation to submit articles has been sent out in January 1996 for articles which will be refereed, edited and published on the WEB by 31 March 1996, the crucial date for the United Kingdom Research Selectivity Exercise (which assesses institutions for their research record during the past four years). All this is achieved by one man and, presumably, no dog (Grant 1995).
Parallel publishing, whether it is paper first or electronic first, does not break the tradition of continuity of the type of articles. Even where the publication is electronic first, the articles are written as if for paper journals. Each article being an enclosed space. There are occasional appendices which can be linked with hypertext, but these are the exception, and in any case, paper journals have been known to print appendices as well. There are two innovations which are interesting for this type of electronic journal - the ability to search across issues for articles, and in due course, across journals using the web search engines or custom built indices which transcend single journals. It is also possible to obtain instant comment on articles. However, as the articles are written as if for paper, readers tend to download them first and read them in the paper version. Comments tend to be of the valedictory sort - not about the content of an article, but congratulations on the concept of the journal (Grant 1995).
There need not be any difference between electronic journals which combine original publication with a paper copy and those which only publish electronically. In particular, the demands of current criteria for scholarship whether in the US or Europe require that a journal must not stray too far off from the paper canon if it is to achieve academic respectability. For example, Trotter Hardy, who recently published the first issue of the Journal of Online Law (JOL), is testing his journal against other academic products when he says: “Writing for a new journal is a little like jumping from an airplane with an untested parachute: you certainly hope it will be successful, but its a bit of a gamble.” (Hardy 1995).
He suggests further on that the Journal is a publication of “scholarly essays”. This means “thoughtful, readable pieces that analyze current trends in the law and predict future disputes and problems.” Nevertheless, there are suggestions of a significant difference between an imitation paper journal and a solely electronic one. A journal of scholarly essays is different from the typical “law review” or “law journal”. The latter emphasises comprehensiveness, thoroughness, and reliance on detailed footnotes. These characteristics have their place; we simply intend something different; a journal that is shorter, more easily readable, having wider appeal.”(Hardy 1995).
These differences can be gleaned from the submission rules. For example, that articles created in hypertext should either be accompanied by an appropriate reader program or be converted to some other format mentioned in this section. Similarly there are rules for the submission of digitized graphics.
That is, the journal already recognises, without emphasising, the potential for culture change in the way articles are written. I suggest that from footnotes to hypertext is a transcendence and not a mere transition. Footnotes are those beady little numbers intensely loved by US law reviews. Instead, hypertext interconnects not merely to other matters in the article, to other articles in the journal but to the whole of hyperspace. Thus, this issue of the journal can link the reader directly to the Law Courseware Consortium Web pages, which provides an idea of what the courseware is about. Hypertext can be used to link articles together, for example, in the special feature articles on data protection. Not only are there relevant links between different articles on the subject, but to the EC Directive on Data Protection which is linked from each article. Multimedia can include illustrations, animations and software demonstrations as is the case with the Maharg article.
That is, the logic of the new medium is ultimately likely to be subversive of the traditional medium. However, as we said at the beginning of this article, the mere existence of the medium does not bring about change, there have to be active reasons, desire and implementation strategies for the culture change. That is the reason for existence of the Electronic Law Journals project. In submission to the Elib programme, the project partners were concerned to emphasise that the aim was not mere publication of a new journal or even a series of journals. It was to emphasise that the rapid changes in the nature of law and legal communication cannot be efficiently tackled by existing law journals and reviews and required the culture change which would lead to future acceptance of the new medium.
5. Tombstones and Living Journals
5.1 Paper journals as tombstones.
Paper journals are essentially dead forms of publication in the sense that late publication of articles results in the description of dead reality and not existential one. They are dead in another sense. Journals were produced to provide effective discourse. In the 17th Century when the first academic reviews were published and in the 19th Century when the first law reviews were published, they reached small intellectual communities which were in reasonably effective communication with one another through personal contact or paper correspondence. In comparison, most existing journal articles die as they are published and become archival tombstones. Few people have access to them and fewer read them. There is an afterlife, in the sense that another scholar working in the same area may read the article and incorporate it in hers. But this is a slow and cumbersome process. There is little scope for responding to an article in a way that other readers will notice. The author of the original article has very little effective comeback. Of course, from time to time, periodicals carry correspondence on some weighty issue, but this is a negligibly rare event. The only real opportunity for contemporaneity and discussion arises in academic conferences. But discussions of papers at conferences seldom last more than 20 minutes. Symposia, such as those facvoured by the Law Society review, constitute innovative exceptions. The best symposium issues consist of a publiction of a range of articles together with the proceedings of seminar discussion on the subject. But inevitably there is a static feel to it all as the symposium itself becomes an archival record, a tombstone, as soon as it is published.
5.2 The concept of a ‘living’ journal.
Electronic journals can transcend the tombstone effect and be living journals, provided they can go beyond mere imitation of paper. Firstly, the processes of closure which apply to discussion in paper journals need not apply to electronic ones. They can continue to provide room for asynchronous discussion as long as the matter remains of interest to readers. Harnad (1991) suggests the publication of journal articles with comments. This issue of JILT experiments with a work in progress section in which the reader is invited to comment on significant ventures such as the BILETA Committee of Inquiry Draft Report on Computer Competency or on the Proposed Bill Relating to Libel on the Internet. The objective of the work in progress section is to use electronic conferencing as a new form of consultation procedure.
Perhaps more significantly as well as controversially, articles in electronic journals need never die. An author can respond to comments, criticisms and new developments by refreshing her article and producing a new version. The old can coexist as an archive of the new. Furthermore, there is a radical possibility of keeping subjects refreshed with new articles. Unlike paper journals, hyperspace allows multidimensional arrangement and navigation of its objects. Thus, this issue of JILT carries a list of contents which is confined to this issue, and each subsequent issue will continue this orthodox procedure. However, the arrangement need not be confined to this chronological one. The next and subsequent issues will continue to carry new articles on this issue’s special feature on Data Protection. For the reader interested in data protection, the contents list will carry an arrangement of all articles on the subject, and all the comments. These will include the date of publication, but will be irrespective of the date. Combine this possibility with that of hypertextual interconnectivity, and of the ability to include the primary source materials to which the articles refer, and you have a radically different concept of a review of the subject. If the editors and contributors do their work, the potential is for the reader to have access to a living commentary on the law on a particular subject.
An electronic journal need not conform to publication routines. Of course, it is desirable to have regular and predictable issues, but this is not for reasons of producing neat parcels to put in the post or on the shelf. Therefore, it is possible to have your cake and eat some of it. JILT intends to produce orthodox issues in accordance with orthodox publication deadlines, especially in relation to refereed articles. At the same time, certain aspects such as news and diary require to be provided instantly to be of use to the reader. It is no use reading about conferences which have already taken place.
More radically, electronic publications are less written text bound than paper ones. Nevertheless, any ventures into multimedia have to be undertaken with great circumspection. Historically, from the period of the oracle or of trials by battle, law was not bound by written text, it is moveable type printing which resulted in the monopoly of written text. If anything, the televising of the O.J. Simpson trial has reemphasised that law is a species of theatre in which orality plays a major role. The major achievement of written text, from law reports, to written trial submissions to academic treatises and articles, has been in being the dominant vehicle for communication of and about law. It may be far too early to suggest that this domination of the written text is coming to an end (CF Katsh 1995). Yet, there are some subversive influences at play. The use of images and computer animations are becoming part of the drama of the courtroom as in the case of the Delta Airlines 191 Crash (Marcotte 1989, Paliwala 1991). Video conferencing is becoming acceptable for giving evidence. The promise of artificial intelligence, expert systems and neural networks has delivered little so far, but if and when they do deliver, mere textual explanations will be insufficient (Paliwala 1991). Thus it is difficult to describe by means of written text complicated legislation using mathematical formulae such as the UK Child Support Act. Expert systems and or spreadsheets on screens can do it much better. The fitful development of Court TV and more specifically the powerful images of the O.J.Simpson trial suggest the beginning of the end to the monopoly of written text in communication about law. These lessons are being absorbed in the development of computer assisted learning systems. For example, in the use of interactive video in the teaching of rules of evidence and procedure and the extensive use of images in computer assisted learning developed by the Law Courseware Consortium and others. Discursive academic work has yet to find a place for these changes although Ethan Katsh (1995) has made a start (see Andrew Terrett's Review). Anyone who read the description of the Delta Airlines case and the use of animation in court in an article , would have been singularly unimpressed by the poor quality of images reproduced on paper (Marcotte 1989) . And yet, such production on paper is an expensive business, whereas the computer does not really distinguish between images and text, as long as you have sufficient memory.
5.4 Illustrating software and legal applications.
Written text will continue to dominate serious academic communication, but electronic media provide tools which enable responses to changes in legal communication. There is of course the major problem that effective, as opposed to theoretical, delivery of multimedia on the internet is not really possible as yet, but the lesson of technology is that it has seldom provided long term constraint. Therefore, it is already time to experiment, to make cautious beginnings. The first issue of JILT does this to a limited extent, and further adventures are promised. Thus, the Maharg article, carries semi-animated illustrations of the software involved. The Journal is privileged to provide and exclusive preview of selections of web pages from the online Hansard, which only members of the British Parliament can access currently.
There is another sense in which electronic journals can, and JILT will try to, be subversive of traditional practice. We have noted that there has been little change in the nature, as opposed to shape, of academic journals in over a century of publication. Most electronic journals are trying to innovate while conforming to this shape. However, it may be questioned whether there is any real need for conformity. The academic emphasis on refereed articles seems to suggest standards that need to be followed. This will be scrupulously done in relation to the refereed section of this journal. Nevertheless, as electronic journals mature, it is inevitable that new principles for assessing electronic articles will develop within the overall canons of scholarship. The non-refereed sections of journals are of greater interest in this respect. While the format of academic articles has remained constant, other bits and pieces have changed throughout the history of journals. Thus, the first issue of the Harvard Law Review contained miscellaneous matters such as course notes. That of the Law Quarterly Review also contained much miscellany. Over the years, miscellany has been reduced to academically respectable bits such as case notes, legislation notes, book and conference reviews. JILT already makes some changes in this system by including news items. This is because news can be contemporaneous in an electronic journal. A Journal of Information, Law and Technology has to be innovative about developments in legal applications of information technology, whether they are new web sites, new software or courseware. Future issues may have descriptions of software by the developers, reviews by academics and online or downloadable demonstrations. A living journal can continue to update product development information without the need for “republishing”. This is based on the belief that there is a great need for rigorously accurate and continually updated information. This leads us to the concept of a living intellectual Bazaar, which constantly adapts itself to the needs of its users - in our case, both the readers and the writers. The Bazaar is a lively interactive place which can accommodate both an orthodox refereed section and more adventurous approaches to electronic communication.
6. Conclusion: Obstacles to culture change
The somewhat rosy picture painted above needs to be tempered by more sombre hues. This issue of JILT does not deliver the full promise of a living journal. There is much room for development and coordination to provide a coherent and effective framework for scholarly electronic law journal publishing. If such journals are a part of the fourth cognition revolution, we must be at its merest beginnings (Harnad 1991). The state of the internet and the World Wide Web constitute major obstacles. The fact that addict web surfers, the 'nerds' find it necessary to do their surfing in the early hours of the morning is a clue to the problems of traffic on the internet. These are likely to be greatly ameliorated in the future as bandwidths improve. There is also the problem of cost. Electronic journal production is cheap as long as it is done through the voluntary effort of academic editors and as long as it does not require high level production skills. Production costs will continue to remain relatively cheap, but ultimately costs will need to be supported. Subscription regimes, however low, may go against the grain of a freely accessed internet. Copyright is a further problem as far as publication of primary sources of law alongside of the original articles is concerned (Oppenheim 1995). In this respect, we are hopeful that the law publishers and in particular Her Majesty’s Stationary Office have shown a positive attitude to our requests for publication, as is the case with publication of substantial abstracts of the Draft Bill Relating to Libel on the Internet.
Perhaps the greatest obstacle to success is the current culture of academic legal publishing. The Electronic Law Journals project could have opted for a journal which efficiently produced electronic versions of paper articles. This can be done fairly easily and cheaply. Instead, it has opted for experimentation. This is because the objective is culture change, not mere publication. The ‘mission’ of the journal, to use a hackneyed expression, is not merely to make use of a new medium of communication, but to assist the legal academic and professional communities adapt to changes taking place in the nature of law and legal communication. JILT is therefore itself a product of culture change, but to be successful it has to promote this message of change to both its writers and readers and to encourage the birth of sister journals. In this process, it is necessary to exercise caution. Authors cannot be expected to become superior multimedia hypertext developers overnight, nor readers to jettison lifetime habits of reading hardcopy in favour of surfing the net. The new journals will have to establish academic acceptability if they are to attract articles of a high academic caliber. However, change will occur over the next three years because the move towards electronic journals reflects changes in the nature of legal information. The first steps towards academic respectability have already been achieved in the United Kingdom by the statement of the Funding Councils that electronic publications have equivalent status to paper ones. The quality of the editorial boards of both the Web Journal of Current Legal Issues and of JILT suggests high level academic support for the ventures. The current readership figures for the Web Journal are also impressive. Nevertheless, all concerned with electronic journals need to cooperate to develop strategies to assist the publication of new journals and encourage the training of authors and readers.
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Discussion of this article
