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JILT 1996 (1) - Trotter Hardy

Dr. Abdul Paliwala
From Academic Tombstones to Living Bazaars
The Changing Shape of Law Reviews


by Professor I. Trotter Hardy

William and Mary School of Law
Williamsburg Virginia USA


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Date of publication: 7 May 1996

1. Intoduction

Dr. Paliwala writes about changing the culture of law journal publication. That’s good: much about the culture could stand some change. Still, one has to wonder whether the principal change needed is easier and cheaper publication: won’t that just encourage more law journals to be published? Are more journals really desirable? Do most of us lie awake nights worrying that there are too few law journals in the world, hoping for some mechanism—oh, for some world-wide mechanism!—that would speed up the output of these journals?

But putting those concerns and the cynicism they reflect aside, and putting aside the ambivalence that comes from knowing that I myself have added yet another journal to the world in the Journal of Online Law (adding hypocrisy to cynicism; oh dear!), I think Dr. Paliwala is right that the new medium of e-publication can offer things that the old medium of print cannot. Perhaps the rising cost of print publications (I assume this rise to be a fact, though truly I have no idea whether it is anything more than inflation, or if so, why so) means that e-publication will rescue scholarship from a descent into poverty. Let us accept e-publication, in short, as desirable, and go on to speculate as to how well and how quickly Dr. Paliwala will likely accomplish the cultural change he seeks.

2. P-journals

We might start by asking why scholars and the academic culture need forcibly to be changed. If e-journals offer as many advantages as they seem, on the surface, to do—speed of publication, low cost, world-wide instantaneous distribution—why would anyone continue to operate a paper journal? Why would authors continue to try to publish in a paper journal? Indeed, as the editor of an e-journal, I more than a little bit wish they would not. But on the other hand, as the editor of an e-journal, I have had to do a lot of thinking about why they do.

At least part of the answer, I think, has to do with the perception of quality that paper journals convey.

Many things can indicate the quality of a journal. One indicator of course is the quality of the law school’s or department’s faculty and students. The Harvard Law Review has a stronger reputation than many other universities, for example. All things being equal, an e-publication from Harvard will have an aura of greater quality than an e-publication from a school or department of substantially lesser reputation.

I don’t propose to address this factor of institutional quality, though, because it suggests that if Dr. Paliwala wants to change the culture, the best thing for him to do would be to ensure that institutions putting out e-journals simply acquire a reputation comparable to that of Harvard in the U.S. If I knew how to cause that to happen, I wouldn’t be writing this essay—I’d be raising my own school’s reputation to that of Harvard and demanding three times my current salary.

I will address, rather, another aspect of the perception of quality. For good or ill, people (and I include academics here) associate higher cost with higher quality. Of course that relationship does not always and everywhere hold true, but it’s true enough that a perception that cost and quality are related is far from arbitrary or irrational.

Here, then, is a crucial point: the cost and time of law review publication suggest some measure of quality. The subtle implication of academic print journals is that no one would bother spending all that time and money to put out the journal if the articles were no good. To be sure, it may be that the relation of cost and quality reaches its lowest point in the context of scholarly journals, but it is nonetheless inevitable that printed publications convey an impression of some quality threshold, and that that impression has something to do with the enormous effort and expense that go into putting out the publication.

3. E-journals

Here is a crucial corollary: to the extent that e-journals lower the cost and time of publication, without changing anything else, they will be accompanied by a perception of lower quality.

And there is yet another corollary. Since I seem to be italics-happy, I will italicize this one too: to keep the perception of quality constant, low-cost e-journals will have to find something to take the place of the impression of quality given by high-cost print publication.

In essence, the time spent by law journal students and faculty and printing press employees for print journals functions as a surrogate for quality assurance. These assurances come before the fact of publication. That same assurance for e-journals could also come from more elaborate law review processes before the fact of "electronic publication"—more cite-checking, more editing, etc.—but if these new procedures take the same time that the old print procedures took, e-journals will obviously lose the primary advantage of the electronic medium: its speed.

Happily, however, quality assurance does not have to come through a pre-publication process; it could come after publication as well. And the assurance does not have to reside in the editorial or publication staff itself. Indeed, e-journals—like any other "product" available on a "market,"—can be assessed by an independent organization. In fact, we may see the rise of evaluative journals that scan and review and rate other e-journals, in much the way that the consumer publication Consumer Reports rates consumer products. These evaluative journals, to provide true quality assurance, would have to do more than prepare abstracts or summaries: those are easy to do and can be reasonably well done by machine. The hard work of real evaluation—literary criticism or book reviews, if you will—is what is necessary to substitute for the pre-publication efforts of print publications.

Consequently, if we move to the world that Dr. Paliwala proposes, with a large number of electronic publications, we may see a corresponding increase in the rise of evaluative organizations and journals. These might be student-led; perhaps with the time saved in publishing their journals electronically, students will also be able to review other publications and provide advice to the profession.

If, on the other hand, readers mistrust student judgment (of course, if that is so, then why do we tolerate student-edited journals in the first place?), perhaps this quality assurance function could be performed by other organizations. Librarians, for example, sometimes see their role in a world of on-line information and automatic indexing as providing quality assurance. Libraries of tomorrow may be absolutely comprehensive by simply pointing to all the world’s electronic literature and databases: they will have no need to acquire tangible copies of anything. Instead they can spend their time and energies establishing collections of pointers to quality-assured documents and information that they think would be helpful to their patrons.

Other quality assurance mechanisms are also possible. Not all of the quality review of consumer products comes from rating organizations. A good deal of informal measurement of quality comes with the simply fact of acceptance by "the market." One takes a measure of comfort in buying product "X" if one knows that "X" is the leading seller in its field. Of course, wide acceptance does not guarantee quality, nor does it guarantee that a product is well suited to one’s particular needs. But on the other hand, what quality assurance mechanism does guarantee quality? Certainly the current law journal process does not guarantee it for scholarly articles.

With consumer products, the usefulness of the measure of market acceptance is somewhat offset by the fact that one has to go to a bit of trouble (or believe advertising) in order to discover just how well accepted a product really is. But access to e-journals over a mechanism like the World Wide Web leaves a record. We may not like the implications for privacy, but the privacy issue can be separated from the automatic accumulation of Web site "hits," or the measurement of the time that a reader spends perusing a document, or the keeping of records of how many readers choose to download a document. In other words, some amount of quality assurance could come from publicly available records of the frequency and duration of e-journal accesses. Such records would be quite similar to a count of the number of citations to print articles today. Again these counts are by no means a perfect indicator of quality, but they may mean enough to make the difference between looking at an article or not.

4. Conclusion

All of this discussion about post-publication student or librarian review, or automatic assurance systems through Web site statistics, is unimportant in its details. Rather, I mean to suggest that quality assurance is a serious, if implicit, issue in journal publication. Those like Dr. Paliwala who want to change the culture will do so most effectively if they work to establish not only an illustrative e-journal, as they have so elegantly done with JILT, and the tools for others to produce similar e-journals, but also a new system of journal quality assurance to replace the implicit guarantees that expensive print publication, rightly or wrongly, now provides.

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