Thoughts on Innovation in Law Review Publishing (Part 1 of 2)

My recent experience publishing a colloquy essay with the Northwestern University Law Review got me thinking about innovation in law review publishing.  This first post will describe my experience and impressions as reflected by the Northwestern model, a follow up post will detail some of my thoughts on how law review’s can easily build on current innovations.

My essay, Gregory S. McNeal, Beyond Guantánamo, Obstacles and Options, 103 Nw. U. L. Rev. ____ (2009) deals with the military commissions, a timely subject with rapidly changing law.  Because of this I faced some publishing dilemmas.  My draft was regular essay length (30+ pages 130+ footnotes), but was also too timely to wait for a law review issue to be printed.  Given the work I put into the essay, I didn’t want it to sit in SSRN or BePress hoping for a cite or some attention via listserv.  It was too long to blog, and I didn’t want to relegate it to a “less prestigious” (whatever that means) publication by accepting any offer I could find based solely on timeliness.  As I tried to find a home for my essay, I thought that The Northwestern Law Review was innovative enough to accommodate my needs.  Exploring their website I found that they have a  feature known as “colloquy” essays, which follow the same editorial standards for acceptance into the Law Review (a big hurdle) but are published as soon as editors complete their cite-checking and BlueBook review.  What that meant was if I could get accepted, I could publish my thoughts while the legal and policy debate was still underway.

The problem… those timely essays are limited to 3-4000 words inclusive of footnotes.  The editors goals were timely pieces which were also shorter than the standard law review essay or article.  My work, while meeting the timely test was more than triple the maximum length.  Luckily, the editors were flexible and innovative.  Because my topic related to an ongoing debate, they stretched their rules.  That allowed for immediate publication of my essay (after editorial review) on the Northwestern Law Review website, along with publication in the completed print issue later this fall.  I still have to wait for the final page numbers, but I have a citation that other scholars can rely on Gregory S. McNeal, Beyond Guantánamo, Obstacles and Options, 103 Nw. U. L. Rev. ____ (2009) (it’s supposed to be published in the print edition), a parallel citation in the on-line edition 103 Nw. U. L. Rev. Colloquy (2008), and more importantly the ideas are out there as part of the dialogue.

There are some other cool features that the Northwestern Law Review includes with their webpage.  First, are open comments below the essay.  What this  means for me is no delay between publication and knowing just how wrong someone thinks I am….:-) But seriously, what it means for other scholars is that they can immediately respond to my thoughts and link to their own related scholarship.  Bloggers can blog on their own site about my essay, and can preview their thoughts in the comments, dropping a link to their own blogs.  All of this makes for an interactive dialogue, which is really what scholarly debate should be about.

In the spirit of scholarly debate, Northwestern will also host a series of “colloquy posts” where other professors will write short response essays about my work.  Those essays, which will only appear on-line,will be indexed in Lexis and Westlaw.  (Prof. Ben Davis’ response to my essay, entitled No Third Class Process for Foreigners, will be featured on the Northwestern Law Review website in the coming weeks.  He has already posted it in SSRN here.  Other confirmed participants include Prof. Amos Guiora of the University of Utah, Col. Morris Davis, former Chief Prosecutor in the Office of Military Commissions, and others.)

What really struck me about going through this process was how much sense it makes, and how innovative it is.  Now granted, being timely meant I needed to turn around responses to the editors quickly (for most edits I was responding within 24 hours or less, even on a Friday night).  But the editors comments were extremely helpful, and their preference for links to on-line sources (which they include in the Footnotes of the on-line version) will mean that other scholars can instantly trace the authorities I relied upon and integrate them into their forthcoming scholarship.

Moreover, the timeliness of their system, the indexing of response essays, and open comments all seem to be great examples of a potential part of future of legal scholarship.  For legal scholars seeking to write about on-going developments in rapidly changing fields, a print venue supplemented with early and rapid on-line publication is a valuable asset.  When one considers that Beyond Guantánamo, Obstacles and Options deals with the law and policy related to: detainee cases that are currently working their way through the D.C. District and Circuit courts;  the ongoing scholarly debate over the future of Guantanamo, the expected appeal of Hamdan’s military commission conviction; and the ongoing hearings in Congress— the system Northwestern has in place demonstrates how law reviews can provide a forum for timely scholarship that aims to have an impact beyond the halls of the academy.

Of course, all of this got me thinking.  Why would any law review wait until they build an entire issue before making the .PDF of an article available on line?  It seems allowing the publication process to be driven by when an issue is “full” is an unnecessary limitation in this age of .PDFs, blogs, and print-on-demand.  While having a printed issue and reprints is nice, and perhaps required by some, that technical limitation shouldn’t define the publication process.

In a post tomorrow I’ll share some thoughts about how electronic publication and print publication can be reconciled…thoughts which I’ll keep to myself for now, given the length of this post.