By Jerry Crimmins
Law Bulletin staff writer
What should happen to law journals that arrive in a big, fat brown envelope?
And who reads them anymore?
Regarding the first question, a group of librarians confronted the problem of printed law journals on Nov. 7, 2008, and issued "The Durham Statement on Open Access to Legal Scholarship."
"If stable, open, digital formats are available," it says, "law schools should stop publishing law journals in print, and law libraries should stop acquiring print law journals."
Yet two librarians who signed the Durham Statement, Judith M. Wright of the University of Chicago Law School and James W. McMasters of Northwestern University School of Law, say their schools still subscribe to almost all the American law journals in printed, bound pages. They said they will continue to subscribe to print for the time being.
"This university is committed to retaining not all but most print publications [of law journals] as long as they're published," said Wright, associate dean for library and information services at the D'Angelo Law Library.
Asked why, she cited what happened in England.
In 1086, William the Conqueror ordered a great land survey called the Domesday Book, which can still be read today. In 1986, one million people in England contributed data to the New Domesday survey, which was put on computer disks.
Fifteen years later, nobody could read the New Domesday survey. The disks and computer systems had become obsolete and unusable. A project to extract the 1986 information from the old computer disks has begun. The project will take several years, according to the Domesday Book Online.
Wright cited as another example the fact that it is hard to find the original version of an American law enacted in 1940.
"That's our concern about journals. We don't want them to disappear," she said.
Digital data "is very fragile," Wright said. Computers keep changing, and software keeps changing.
"All it takes is the next version and two versions down the road," Wright said. "You can't read it. You spend a fortune trying to retrieve it."
John Christensen, library director at Washburn University School of Law in Topeka, Kan., believes in keeping print law journals.
"Another purpose for retaining print is that law reviews represent the work product of the law professoriat. Having this body of law available in print for the ages has value, particularly to a library which sees itself as being a research library," he said.
So why did librarians issue the Durham Statement on doing away with print?
"It's an aspirational document" that expresses the librarians' hope for the future, said McMasters, director of the Pritzker Legal Research Center at Northwestern University School of Law.
The Durham Statement "anticipates both that the costs for printing and mailing can be eliminated" for law reviews, and that law libraries can save the space and cost of preserving print journals, said Richard Danner, research professor of law at Duke University.
The anti-print part of the Durham Statement "was intended to kind of jump-start some conversations on what are the best methods of digital archiving," McMasters said.
"What was intended to be the real headline piece" of the Durham Statement was "the open-access message," he said.
"Open access' essence is that it is available for free to anyone on the Web," McMasters said. "If we want the Northwestern Law Review to be widely read," the way to do that is to make it available for free on the Internet.
"Five of our six [law] journals are open-access, free, and we're working on the sixth.
"We want law schools to think about what is the worldwide audience for the journals. Since law is becoming an increasingly interdisciplinary study, it's important to make it available to everyone," McMasters said.
Nevertheless, the movement to do away with printed and bound law reviews is rapidly moving ahead.
"Our law library at Oklahoma City University Law Library . canceled about 400 law reviews [last fall], about half our subscriptions," said Lee F. Peoples, associate professor of law library science at that school. "We didn't get rid of the back file issues in print. Those we are still keeping, but we are monitoring their use."
Peoples said some law libraries are getting rid of the old paper copies and canceling their subscriptions, too.
The University of Arizona is "very aggressive [in] getting rid of that stuff," Peoples said.
Several other law libraries have announced they will be cutting print subscriptions to law reviews.
Oklahoma City University Law Library is simply " running out of space," Peoples said. "Stopping subscriptions is a great way to gain more space."
Moreover, "we're paying for these law reviews, really, four times over," he said.
Peoples and the other law librarians pointed out that law review articles are available on LexisNexis and Westlaw legal databases and HeinOnline.
LexisNexis and Westlaw go back only about 30 years for most law reviews, Peoples said. "That's a limitation because some of those older law reviews are important."
HeinOnline, a "preservation publisher," has older law journals.
"It goes back all the way," Peoples said. "They've scanned them in, actual PDF images. They're searchable."
One serious drawback of the electronic databases is that they don't own the law reviews, said Wright, of the U of C. They merely pass along the content for a fee.
"From a librarian's standpoint, there is no guarantee they will always be there," Wright said. "Contracts change, license agreements change," or the vendor might decide to eliminate material that is little used.
Or the electronic databases could raise their rates to a point that libraries can't afford, Peoples said.
"They really have a lot of control over us," he said.
Law schools don't have the technology to keep migrating and refreshing data from one computer system to the next and the next and the next, Wright said.
Once law reviews are all-electronic, she asked, "will we really have access to those in 50 years?"
To cope with this question, the law library community has started at least two collaborative projects to find a way to permanently preserve digital material.
One is the Chesapeake Project, which was started by the Georgetown University Law Library, the State Law Library of Maryland and the Virginia State Law Library. It is described as a pilot project "to establish the beginnings of a strong regional digital archive."
The other is the HathiTrust, a collaboration of 13 universities to establish a digital repository of their library collections. Its Web site calls it a "bold idea with big plans" that "won't happen overnight."
At what future date will law reviews in libraries be all digital?
"Maybe when the current generation of law professors retires and newer people who prefer an electronic format are in the majority," Washburn University's Christensen said.
For now, he said, "older patrons prefer print." Moreover, people often use the electronic version for searching and finding "and then they will use print for reading and marking."
The second question this article set out to explore is: Who reads law reviews anymore?
McMasters, of Northwestern, is very high on them.
"I really think they are more important and more widely read now than ever before because of the fact that they are becoming available in so many places," he said.
For some law reviews, "anyone can find them through Google" and for free, McMasters said.
He said JSTOR, a limited- access online database for institutions and organizations, "has many of the top journals. That's one virtually every college would have."
"More of our authors are at foreign institutions," McMasters said. "We have authors . from all over the world."
Thus, the dialogue about law is expanding internationally through law reviews.
Meanwhile, law reviews are still important to students and faculty, he said. "In some ways, I think it's a golden age for journals because their reach is stronger than it's ever been."
Wright, of the U of C law library, is not so sanguine.
Law reviews "really are of less interest to practitioners than they were in the past," she said. "They're very academic, these articles. . Very theoretical.
"Certainly in the past more practitioners wrote for journals. More of the journals had a close connection with the practicing bar."
Peoples said: "I think relevant articles still get read a lot. If you find one right on point, it's like a gold mine. It's got all the citations right there."
But he agreed with Wright that "law professors as writers are focusing more and more on extremely narrow topics."
"Some people have said that the law review is the graveyard where an idea goes to die," Peoples said.
Yet "it is still the place where the promotion and tenure committee evaluates the faculty, so there is a reason why people are continuing to write these articles," he said.
Chief Justice John G. Roberts Jr. of the U.S. Supreme Court recently told Indiana University School of Law - Indianapolis that he, too, doesn't pay much attention to academic legal writing.
According to the Wall Street Journal Law Blog of April 7, Roberts said law review articles are "more abstract" than practical and aren't "particularly helpful for practitioners and judges."
Circulation of law reviews as measured by "total paid circulation" has declined drastically since 1979, according to a study by Ross E. Davies of George Mason University School of Law.
Paid circulation of the Harvard Law Review declined 77 percent in those years, to 2,029, and paid circulation of the Northwestern Law Review declined 67 percent, to 584. Paid circulation of the U of C Law Review declined 26 percent, to 1,525.
The explanation for this phenomenon could be simply that law firms and individuals can find most law review articles electronically, so they don't need to subscribe to the print versions. Libraries don't need more than one print copy.
"Perhaps the net consumption of law reviews is actually on the rise, along with their influence and status. Who knows?" Davies said.
So why doesn't somebody count the frequency of use of law reviews in the electronic form?
"The databases might have that information and might be able to sort it out by faculty and students, but they would never give us that information," Wright said. "People wouldn't want to advertise they have this data. People don't like to think someone's tracking everything they're looking at."