Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews Hibbitts' Home Page
30 Akron Law Review 267 (Special Issue, 1996); this edition enhanced and updated for the World Wide Web
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Bernard J. Hibbitts
Associate Dean for Communications & Information Technology; Professor of Law
University of Pittsburgh School of Law

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Abstract | Contents | Text

The Abstract

This article responds to a series of commentaries on my 1996 Web-posted article Last Writes? Re-assessing the Law Review in the Age of Cyberspace (reprinted in 71 New York University Law Review 615 (1996)) collected in a Special Issue of the Akron Law Review (Volume 30, Number 2, Winter 1996). In brief, Last Writes? argued that the ongoing development of Internet technology allows and should encourage legal scholars to move away from traditional law review publication - with all of its well-publicized problems - towards a self-publishing system in which electronically-posted articles would be centrally archived and made available for post-hoc open peer review.

[a.1] This article begins by pointing out the resemblance between the arguments of contemporary scholars skeptical of the advisability of electronically self-publishing legal scholarship and the arguments of fifteenth and sixteenth century scholars who doubted the advisability of commercial printing. It then proceeds to address each of the skeptics' arguments on its own terms. It shows that instead of having no discernible benefits for legal scholars, electronic self-publishing has many, not least of which is its potential for encouraging scholarly dialogue by expediting the publication process and making scholars directly and immediately accountable to one another. It shows that instead of making things worse for law professors and other legal authors by compromising quality and sacrificing "value added" by law reviews, electronic self-publishing promises to enhance quality and actually add value of its own. It shows that instead of imposing numerous professional and/or pedagogical costs on law professors, lawyers and law students, electronic self-publishing imposes very few, and in some respects, none at all. It shows that instead of being impossible to realize, electronic self-publishing is technologically and academically feasible. Finally, it shows that instead of threatening too radical a change, electronic self-publishing is the only change radical enough to fully meet the major structural and intellectual challenges currently facing legal scholarship in the age of cyberspace. For all these reasons, legal scholars should embrace electronic self-publishing with enthusiasm.

The Table of Contents

I. D�j� Vu      II. The Rhetoric of Reaction

A. The Denial Thesis

B. The Perversity Thesis

C. The Jeopardy Thesis

1. Value Added
2. Quality Control
3. Prestige
4. Education
5. Employment

D. The Futility Thesis

E. The Alternatives Thesis

III. A Whole
New World

The Text

I. D�j� Vu

They said it was inadvisable. There was nothing to be gained from the radical publishing reform that the new technology permitted. Allowing anyone with the appropriate hardware to publish scholarship would result in actually losing the value added to works as they moved through the existing system of scholarly communication. Without experts supervising the production process in the usual way, spelling and other errors would disfigure academic texts. Without the usual reviewers pre-vetting scholarly output, basic quality control would be lost. Readers would bend and eventually break under the weight of unprecedented and unmanageable amounts of dubious information. Abandoning traditional scholarly outlets would deprive authors of a critical means of gaining personal prestige. Cutting neophytes out of the publication structure would deprive them of a crucial educational experience. In any event, advocating reform was a waste of time: entrenched academic elites would block any fundamental alteration of the scholarly modus operandi, especially while the benefits of progress could be secured and most of its costs avoided by simply turning the new technology over to established publishers.

[1.1] Readers of the present collection of commentaries in this Special Issue of the Akron Law Review will recognize these points. They are all criticisms of the system of electronic self-publication that I proposed in my Web-posted article Last Writes? Re-assessing the Law Review in the Age of Cyberspace.1 But they are also recognizable from another context. Five hundred years ago, every one of them was leveled at the scholarly proponents of commercial printing.

[1.2] The printing press and the remarkable publishing opportunities it offered European scholars from the mid-fifteenth century onwards were not universally acclaimed. In some quarters, fear, shortsightedness and misapprehension prompted outright attacks either on the new technology or on its more adventuresome applications.2 More than a few academics believed there was nothing to be gained by handing scholarly publishing over to ordinary entrepreneurs like Johann Gutenberg;3 they preferred to trust the strictly-learned scribal system of scholarly communication that had kept Gutenbergimportant books in circulation for centuries and that had lately spawned factory-like scriptoria capable of limited mass production.4 One late fifteenth century Dominican friar, Filippo di Strata, actually said that "the world has got along perfectly well for six thousand years without printing, and has no need to change now."5 Fra Filippo and his sympathizers were concerned that scholars turning to commercial printers would lose the benefits of scribes' editorial expertise, not to mention their direct physical control over individual manuscripts: they worried that printing would permit spelling mistakes, typographical errors and other technical faults that might mar hundreds of copies of a single scholarly work. Speaking of the threat to good spelling in a tract appropriately entitled In Praise of Scribes, a German Abbot named Johannes Trithemius concluded "[p]rinted books will never be the equivalent of handwritten codices . . . . The simple reason is that copying by hand involves more diligence and industry."6

The printing press and the remarkable publishing opportunities it offered European scholars from the mid-fifteenth century onwards were not universally acclaimed.
[1.3] The critics of commercial printing similarly believed that it threatened to undermine the substantive quality of published scholarship by enabling material that was not commissioned or pre-approved by the traditional (generally religious 7 or aristocratic) authorities to be widely marketed. Without prior restraints, unscrupulous or unschooled printers were bound to unleash a veritable flood of information, much of it inaccurate, and some of it dangerous. Fra Filippo accused the printers of "vulgarizing intellectual life." He claimed that the Italian city-state of Venice had already become "so full of books that it was hardly possible to walk down a street without having armfuls of them thrust at you 'like cats in a bag' for two or three coppers."8 These texts were "hopelessly inaccurate," having been prepared by "ignorant oafs;" they tempted "uneducated fools to give themselves the airs of learned doctors."9 In the absence of pre-certification, critics of commercial printing moreover regarded that as a threat to their prestige. With less (or no) need of sponsors and patrons to underwrite theirTrithemius work and afford them professional and social status,10 how would they advance their careers or reputations? Commercial printing additionally deprived the young monk or aspiring Doctor of what Trithemius and others considered the "conspicuous" educational benefits of copying manuscripts: "his time, a most precious commodity, is productively put to use; his mind, while he writes, is illumined; his sentiments are enkindled to total surrender; and after this like he will be crowned with a special reward . . . . And as he is copying the approved texts he is gradually initiated into the divine mysteries and miraculously enlightened."11 If printing were to be done, it were better done by experienced, educated scribes in monasteries and established scriptoria. So long as they remained in charge of publishing, scholars could take advantage of print's production capacities without having to assume the risks inherent in operating outside the traditional editorial system.

[1.4] Animated by these and other arguments, concerned professors and churchmen tried to corral commercial printing on numerous occasions in the 1400s and 1500s. In an effort to impose old standards on the new technology, they lobbied for laws requiring booksellers to obtain the permission of university and/or clerical review boards before printing any work whatsoever. In 1471, for example, an Italian classicist, Niccolo Perotti, asked the Pope to impose pre-publication censorship to ensure that printed editions of classical works were properly checked for errors.12 In 1533, the Sorbonne went even further, asking the French Crown to formally order the printing presses to shut down.13 In the short run some of these initiatives succeeded, but as we now know, they all failed in the long run. Meanwhile, many critics of commercial printing continued to do academic business in the old, familiar way. They wrote manuscripts and made copies, perpetuating a scribal tradition that survived on the margins of print culture until roughly the end of the seventeenth century.14

[1.5] In some superficial respects, of course, the critics of commercial printing were absolutely right. Many early printers did make spelling and other technical errors, some of which were very serious.15 The ability of print authors to circumvent the traditional sponsorship system meant that inferior material - especially religious propaganda and "pornography"16 (plus �a change...) - was produced in greater amounts and reached a wider audience then it had previously. By making copying largely superfluous, printing disrupted ancient monastic and scholarly routines.

[1.6] In more fundamental respects, however, the critics were wrong. First, they were wrong in their underlying conviction that commercial printing would compromise scholarship per se. Print's early editorial and quality-control problems were soon overcome. Sometimes hiring scribes to assist them, commercial printers developed proofreading and review systems that internalized and in some ways improved upon the checking and control procedures associated with manuscript publication.17 In conjunction with scholars, they developed and implemented indexing and Early Printed

Bookcataloguing practices that, despite the rush of printed information, made good learning more accessible than ever. Second, the critics of commercial printing were wrong in thinking that it would undermine scholarly prestige. Insofar as commercial printing provided an independent means of securing a return on one's intellectual labor, the financial support of prominent persons became less important, but that did not prevent print-oriented scholars from continuing to solicit sponsorship and enjoy its monetary and status rewards.18 In the long run, commercial printing also made it possible to gain scholarly status in new ways, i.e. through the standing of the publisher who chose to distribute a book, and/or the extent of a book's success in the marketplace. Third, the critics were wrong in their belief that commercial printing would compromise clerical education. Monks and theological students who no longer did copywork soon found or were directed towards other pedagogically- or spiritually-worthwhile activities. Far from suffering in the transition, many were doubtless glad of it.19 Fourth, the critics of commercial printing were wrong in believing that established scribal institutions could control print publishing just as they had controlled manuscript production. Some monasteries, scriptoria, and individual scribes did experiment with print, but they had limited capital, time, manpower and incentive to develop the new technology.20 Many gave up,21 or voluntarily assumed supporting roles in a commercialized and secularized printing industry. Ultimately, the success of commercial printing proved its critics so wrong that we can scarcely credit their arguments today. Indeed, except for those arguments that were put into print (often by others 22), their rhetorical legacy has largely disappeared.

The striking similarity between the present controversy over electronic self-publishing and the long-settled battle over commercial printing suggests...that the arguments against...Last Writes? are overdrawn.
[1.7] Five centuries later, the actors have changed but the old roles remain. Advocating, among other things, democratization and the speedy mass distribution of learning, proponents of the electronic self-publication of legal scholarship stand in the place of the commercial printers and their early academic supporters. Opposing them are a number of skeptical academics (including most of the commentators in this Special Issue23) who by offering justifications for the traditional law review would unwittingly follow the example of the late medieval scribes and scholars who either rejected new technology outright or - if they ostensibly accepted it - refused to recognize or hesitated to endorse its capacity for structural reform. Concerns about the appearance and substantive quality of printed scholarly texts that led some fifteenth and sixteenth-century intellectuals to demand that commercial printers get academic permission before publishing now prompt their modern legal counterparts to call for the perpetuation and even enhancement of traditional editorial and peer review procedures on the Internet. Worries about the future of scholarly prestige in a world without patronage now represent themselves in alarms at the prospect of legal academics losing the chance to place their works with "elite" law reviews at Harvard, Yale and other premi�re law schools. Fears for the plight of monks and theological students deprived of the educational opportunities inherent in copying manuscripts now reverberate in the arguments of law professors reciting the pedagogical "costs" to law students of going without the vaunted law review experience. Assumptions about the ability of Renaissance church and state to resist religious, political and social reforms fueled by the presses now revive in assertions that conservative law school faculties and administrations will successfully stymie any Internet-facilitated deviations from the established channels of scholarly communication. Calls to confine printing to responsible monasteries and scriptoria now find an echo in appeals for the organization of student- or faculty-edited electronic law journals to absorb the future scholarly output of legal academics and (in the process) extend the power of modern legal publishers into a new medium.

[1.8] The striking similarity between the present controversy over electronic self-publishing and the long-settled battle over commercial printing suggests prima facie that the arguments against my proposal in Last Writes? are overdrawn. The majority of commentators in this Special Issue are undoubtedly disturbed by the prospect of sweeping, technologically-facilitated change (the course of which never did run smooth). Like their fifteenth and sixteenth-century forebearers, however, they have mistakenly presumed that the academic enterprise itself cannot prosper without the benefit of existing structures - in this instance, the law review. Having forgotten history, they may have doomed themselves to repeat it.

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