Last Writes? Re-assesing the Law Review in the Age of Cyberspace

The full-text version of this article1 offers a comprehensive re-assessment of the law review from the perspective of the present age of cyberspace. Such a re-assessment is best begun with an investigation of the academic and technological conditions that initially joined to generate the genre. The standard story setting out the origin of the American law review runs as follows: in 1887, a group of enterprising Harvard law students, backed by visionary faculty and supportive Harvard alumni, commenced publication of a student-edited legal periodical (the Harvard Law Review) which soon became the model for many others. The story is factually accurate, but conceptually inadequate. It downplays the extent to which the law review served the general interests of the university-based law school as a formerly-marginal institution seeking greater distinction for its programs and its students in late nineteenth and early twentieth century America. It presents the law review as the creature of narrow legal considerations where there is at least circumstantial evidence to suggest that a desire to match the new journalpublishing projects of numerous other disciplines (e.g. medicine, chemistry, history) might have animated the professors who supported the student initiatives at Harvard and elsewhere. Most important for present purposes, the traditional story totally disregards technological developments in the printing and publishing industries in particular, the development of high-speed rotary presses and improved paper-making processes that in the late nineteenth century radically lowered printing costs and made law school sponsorship of legal periodicals financially and conceptually plausible for the first time. In light of these factors, the initial spread of law reviews to a variety of law schools can be seen as a logical outgrowth of contemporary circumstances, rather than as an instance of institutions across the United States simply following the leader

Martial Lawyers: Lawyering and War-Waging in American History

American lawyers like to celebrate themselves as practitioners of peaceful dispute resolution. On public and professional occasions they proudly proclaim their loyalty to the rule of law over brute force. From the very beginnings of colonization, however, lawyers in America have been primary wagers of war. Leaving aside for the moment professional soldiers who only proliferated in significant numbers in the late 19th century, lawyers as an occupational group have been uniquely prominent in American history as invaders, battlefield commanders and soldiers, militia leaders, armed revolutionaries, filibusters, rebels, paramilitary intelligence agents, proponents of militarism, and civilian war managers. Over the course of four centuries, American lawyers have enthusiastically organized war, led war, and fought war. This article argues that war has shaped American lawyers professionally as well as personally, and that lawyers have in turn shaped the American way of war

Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews

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. 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

Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews

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). Last Writes? argued that the 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 articles uploaded to the Internet by their scholarly authors could be archived centrally or in a distributed fashion across institutions and made available for post-hoc open peer review. The 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\u27 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 can 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 need impose 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

Making Sense of Metaphors: Visuality, Aurality and the Reconfiguration of American Legal Discourse

Building on the work of Marshall McLuhan, Walter Ong, David Howes and other scholars of the senses, this article examines the reconfiguration of contemporary American legal discourse represented by the apparent shift from mostly visually-evocative metaphors for law and legal practice (judicial review , bright-line distinctions, penumbras of authority, observing the law, squaring precedents, etc.) towards a greater number of aurally-evocative figures of speech (law as dialogue , conversation , polyphony , etc.). Part I of the article establishes the importance of examining this reconfiguration in light of the nature of metaphor and its central role in thought and legal reasoning. Part II explores the techno-cultural, sociological and phenomenological roots of American jurists\u27 traditional preference for visual legal metaphors. It argues that visualist legal language has both reflected and reinforced three fundamental circumstances: first, Americans\u27 long-standing technological and cultural prejudice in favor of visual expression and experience; second, the legal and political power of certain gender, racial, ethnic and religious groups which at least in the American context have demonstrated a particular respect for visuality; and third, the correspondence between traditional American legal values and the values supposedly supported by vision itself. Part III of the article investigates the multiple factors behind the growing vogue of aural metaphors in American legal discourse, especially among critical theorists seeking liberation from orthodox outlooks and values. It attributes the new figurative aurality to three factors: first, American culture\u27s technologically-stimulated interest in aural expression and experience; second, the new and self-assured turn towards experience being taken by a growing number of legal scholars from previously marginalized gender, racial, ethnic and religious groups which at least in the American context have demonstrated a particular respect for aurality; and third, the existence of a fit between the central tenets of critical jurisprudence and the supposed phenomenological biases of sound and hearing. The Conclusion of the article returns to the theme of reconfiguration and considers the future of both aural and visual legal metaphors in American legal discourse

Making Motions: The Embodiment of Law in Gestures

In contemporary America, the locus of legal meaning is habitually deemed to be the written word. This article pushes our conception of law’s “text” beyond its traditional inscripted bounds by focusing on physical gesture as a legal instrumentality. The few studies of legal gesture undertaken to date have explained its prominence in various legal systems and cultural environments, the significance of specific legal gestures in specific historic contexts, and the depiction of legal gestures in particular manuscripts or other specific physical settings, but no one has considered the general functions of legal gesture as a modality. In an effort to remedy this situation, Section II of this article outlines eight broad categories of function which legal gesture has historically served and, on occasion, still serves; it then describes specific functions that specific gestures serve or have served within each of those categories. Section II of the article suggests how an appreciation of legal gesture’s multiple capabilities can provide important new insights into gesture’s survival on the margins of contemporary legal culture, into its checkered history, and even into its future as legal instrumentality

Letters of the Law: The Rise and Fall of University-Based Legal Education by Mail, 1875-1885

Professor Bernard J. Hibbitts, of University Of Pittsburgh School Of Law, presented a working draft of his work Letters of the Law: The Rise and Fall of University-Based Legal Education by Mail, 1875-1885. This work examines the early experiments in correspondence legal education that took place in university settings during the last decade of the 19th century and the first decades of the 20th.https://ecollections.law.fiu.edu/faculty-workshops/1031/thumbnail.jp