University of Technology, Sydney Law Review
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University of Technology, Sydney Law Review |
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Sean Doran[2]
Reader in Law, Queen’s University Belfast and
member of the Bar of Northern Ireland
s.doran@qub.ac.uk
A ursory examination of the conference programme reveals the extent to which Web technology has revolutionised the provision of legal information. The Internet has conveyed to the lawyer’s desk a virtual library of limitless resources and has changed the face of legal research for the academic, practitioner and student alike. Closer inspection of the programme suggests that it is in the provision of “hard” legal information that the impact of technological developments has been at its strongest. Several speakers have addressed the challenges of converting volumes of statute law, judicial decisions, government publications and other legal resources to an electronic medium and of ensuring the facilitation of access to and navigation of such materials by the legal consumer. Other contributors to the conference have looked beyond the pure provision of information and explored the use of the Internet as a tool for innovation in the courtroom, in the classroom and in legal professional practice.
In this paper, I propose to consider another (arguably less fully developed) use of the Internet, namely the development of an online legal journal. International Commentary on Evidence (ICE)[3] was launched in April 1998 as a specialist journal devoted to the publication of scholarly writing on evidence law and theory. The choice of evidence as the subject area of the journal was obviously determined by the editors’ field of specialism, but the present paper is less concerned with that field than with the general concept of an online legal journal (or, indeed, a journal in any academic discipline).
Publishers of legal journals have utilised the Internet in a variety of ways to engage the reader. A perusal of legal journals published in the United Kingdom[4] reveals that certain journals have home pages giving basic details about the publication, some including lists of contents of current and past issues; others go further and provide abstracts of articles or full copies of published articles online, some offering full electronic versions of the paper journal[5]; finally, there are electronic journals which have been launched and developed online.[6]
ICE falls within this last category. The electronic format is fundamental to the rationale behind the journal and is the key element in differentiating it from traditional legal academic publications. ICE can, however, also be differentiated in an important way from the electronic journals identified above. As we shall see, rather than emulating the format of a conventional journal through an electronic medium — as those journals have tended broadly to do[7] — we have attempted in ICE to exploit fully the interactive possibilities of the Internet in order to fashion a style of publication that is clearly distinctive from its paper counterparts. It should be noted at the outset that, while ICE has been online for more than a year now and has published a reasonable volume of material, the journal is still in its developmental stages, and we have found it important to keep the journal’s features under constant review and adjust them where necessary to ensure the smooth functioning of the site.
The launch of ICE, in April 1998, was timed to coincide with an international conference hosted by the School of Law at Queen’s University, Belfast, on the judicial role in criminal proceedings.[8] The conference attracted around 150 delegates from 17 jurisdictions, including judges, academics and professionals working in the criminal justice field, many with a particular interest in the study of evidence. The conference was organised by Professor John Jackson, Head of Queen’s Law School and a co-editor of ICE, and myself, and crucially, one of the speakers at the event was our editor-in-chief, Professor Craig Callen of Mississippi College School of Law, USA. The timing of the conference was useful, in that it gave us a date on which to focus throughout the preliminary period of planning and technical development which was necessary to prepare the site for the launch. The ethos of the journal also fitted well with that of the conference, prior to which we had made extensive use of Web resources to publicise the event and to publish biographical details of speakers and abstracts of papers.[9] In addition, the conference itself provided us at the outset with a body of academic material on evidence to publish on the site, giving ICE the necessary impetus to go “live”.[10]
The potential of the Web as a forum for scholarly writing and discussion had been apparent to the editors for some time. Professor Callen in particular played a leading role in the development of the website of the Association of American Law Schools Section on Evidence.[11] While primarily devoted to the dissemination of information regarding developments within the field of evidence — in particular, recent publications and forthcoming conferences — the Law Schools site also publishes commentary on relevant recent developments in different jurisdictions. There are also a number of electronic discussion lists devoted to evidence,[12] and in 1994, Professor Callen ran an online conference on hearsay evidence, which attracted contributions from scholars in several jurisdictions and which was ultimately published in paper form in a special issue of an American law journal.[13]
In the months prior to the launch of the journal, the editors had engaged in a protracted trans-Atlantic electronic discussion to oversee the technical development of the site, which was designed, created and tested on the Internet. The Law School at Queen’s in Belfast was the first in the United Kingdom to have its own website, and we were fortunate to have the services of the school’s Network Manager, Chris Martin, to develop the site on the school’s home pages, and the assistance of a postgraduate student in our LLM in Computers and Law programme to design the cover page. Mr. Martin also liaised with colleagues of Professor Callen who provided technical support and advice from the United States. Considerable time and effort was expended by all concerned in the process of translating what the academic editors viewed as essential features of a journal into the medium of a website. Indeed, throughout the first year of the journal’s existence, we have found it necessary to adapt the site in various ways, and to develop new features, the need for which has only become apparent in the period since the launch. An example is a facility for the editors to group items published on the site into different categories on the contents page. In retrospect, such a mechanism seems essential to facilitate navigation of the journal, but prior to the launch, the idea had simply not occurred to the architects of the site.
This flexibility to adapt quickly to changing needs and circumstances could be said to be one of the advantages of the electronic format over the paper journal. While it is important to maintain the overall style and identity of the journal, modifications to the mechanics of the site can be made without having to consult a publisher in advance of the next issue of the journal, and if the modifications prove unsatisfactory, they can be undone in an equally expeditious manner. Before looking more closely at the ICE journal itself, it is worth considering generally the advantages which the online forum offers over its paper counterpart. Most obviously, in contrast to the delay which tends to accompany publication in a conventional academic journal, which is constrained by a set number of issues per year and which will often have a “queue” of items awaiting publication, the electronic medium can offer extremely speedy publication. In our “information for authors” section, we indicate that it is quite possible for a piece of work to be reviewed, edited and published within weeks rather than months of submission, and experience to date has generally validated this claim. It might be added that this ease of publication has the potential also to work in a negative way, in that authors will generally not be under the usual pressure to meet definite publication deadlines.
As well as offering flexibility in terms of enabling the journal to be modified when necessary, the electronic format also enables us to react quickly to developments within the field of interest, without the degree of formal planning that would be entailed prior to publication in a paper journal. Thus, just as we used conference papers to launch the site, the journal will be able to publish papers from similar events in the future with a minimum of effort. The same applies to commentary on important judicial decisions and legislation, or significant publications of interest to scholars of evidence. Just recently, for example, we have published an essay on the decision of the United States Supreme Court in the Kumho Tire[14] case, on the admissibility of expert evidence at trial.[15] Similarly, we have published a review article on the recent book The Crime of Sheila McGough,[16] and we expect shortly to publish a different perspective on the same work.
The commentary on the Supreme Court decision in Kumho Tire was by an English author, and we have solicited a contribution by an American author on the same decision, for publication in ICE in the near future. This points to another advantage of the electronic format — namely, that it lends itself particularly well to bringing together authors from different jurisdictions to write on matters of common concern. In fact, the international dimension of ICE, as suggested by the journal’s title, was for the editors one of the most attractive aspects of the electronic medium. The use of the word “international” in the title of the journal was intended to connote not simply the various residences of contributors but also the journal’s concern with subject matter that would capture the interest of readers from more than just one jurisdiction. The editors’ experience of legal publishing suggests that, while there are conventional legal journals that are international in scope,[17] most tend to be sustained mainly by contributions from the jurisdiction in which they are based. The Internet offers an ideal opportunity to break this mould and to aspire to a truly international forum for academic discussion. In a similar vein, the journal is committed to crossing academic boundaries, and it is hoped that individuals whose background lies in disciplines beyond the law will use and contribute to the site to a greater extent than might be the case with a conventional publication.
Just as the journal can provide an efficient medium for publishing conference material and up-to-date commentary, so too can it serve as a vehicle for summaries of works in progress that might not easily be accommodated within a conventional journal. It is common practice for authors to distribute such work in hard copy to scholars working within the same discipline, for comments and suggestions, but this process can be costly and administratively inefficient, while the Internet offers an opportunity to present work in progress with ease to a wider audience. The publication of work of this kind presents a certain dilemma to the editors. On the one hand, as discussed below, ICE is committed to maintaining academic standards commensurate with those of a quality conventional publication. On the other hand, a conventional journal will generally not publish work until it has been finally polished. Our view is that, on balance, as long as we have a proper system of academic refereeing in place, we can safely publish work in progress without compromising standards. The publication of material of this nature relies for its success on what is arguably the most significant advantage which ICE enjoys over a conventional journal, and that is its interactive quality.
The invitation to readers to submit comments on material published in the journal offers the opportunity for ongoing and immediate academic interchange of a kind that would simply not be possible within the constraints of the paper journal. The comment feature on ICE allows readers who wish to respond to an essay or article to type in their responses on the site, or to prepare responses on their own word-processors, and send them to the editors using the pasting function in the readers’ browser. Comments are normally subject only to editorial review, as the involvement of full peer review at this point would arguably slow up unnecessarily a process which needs to operate quickly to be truly effective. Authors can respond to comments in turn, in similar fashion, the aim being to promote open academic dialogue on published material through the Web. Ensuring that ICE is fully publicised within the academic community will be essential to the success of this aspect of the site, and this is a matter to which I return below. As these are still relatively early days for the journal, it would probably be unrealistic to expect the comment feature to have been fully utilised, but there have been some very encouraging contributions, which illustrate the potential for exchanges of views to develop.[18]
On entering the site, the visitor is presented with the following links to the left of the cover graphic:
The editors administer the journal from the password-protected area of the site mentioned above. On entering this area, an editor is presented with the following options, which are for the most part self-explanatory:
The editors’ discussion forum was of particular value prior to the launch of the site, and enabled us and those involved in technical development of the site to engage in discussion and debate about the form the journal should ultimately take. As is evident from the above list, the editors’ area has the potential to enable us to carry out all of the “unseen” aspects of editorial work online, and ultimately, to publish a finalised manuscript, when it has been subjected to the refereeing and editorial processes. In practice, however, it must be conceded that we have tended to perform the heavier editorial tasks off-line, although the mechanisms are in place to permit the work to be done via the site.
Throughout the initial period of development, we attempted to make the site as user-friendly as possible, it being particularly important to ensure that the mechanism for submitting material to the journal would work smoothly. There have been some teething difficulties with the facility for converting manuscripts to HTML, but by and large, the site has operated effectively. Admittedly, to date we have not seen the mechanisms for posting material to the site working at their optimum level. As I have indicated, we are still at an early stage, and most of the manuscripts published to date have been solicited by us from individuals we thought would be interested in contributing to the journal, and we have tended to receive the manuscripts and conduct the editing process by e-mail attachment. In the future, hopefully with the site having been more widely publicised, the potential of the online submission features will be fully realised. One thing that we do stress in the introductory information is that ICE is an experimental project, and we explicitly invite suggestions on the journal. Indeed, it is hoped that an event such as the present conference will produce ideas for our development of the site in the future.
One theme which has been addressed in the course of the conference is the maintenance of standards in the provision of legal materials on the Web. In the context of statutory sources and judicial decisions, particular care is needed to ensure that materials are up to date, accurate, and easily accessible by users. A further demand in the context of an academic journal is for quality control of the contributions submitted for publication. In an era when academic research output is subject to ever-increasing external scrutiny and assessment, it is important that a journal — whether it be Web-based or in conventional form — should demonstrate its commitment to ensuring that contributions are subject to proper review prior to publication. Such a commitment serves not only to demonstrate the integrity of the publication itself but also enables authors to present their published pieces as having been subjected to review mechanisms.
As stated before, although ICE lends itself well to online discussion and debate, it is designed primarily as a journal rather than as an open-access electronic discussion forum. For these reasons, we are adopting a policy of peer review of the more substantial contributions to the journal, and as noted above, there is an online facility for reviewers to volunteer their services and for electronic delivery of manuscripts to reviewers. As I have indicated, most of the material we have published to date has been solicited and it has been subject only to review by the editors, but as the journal develops we anticipate that the broader peer-review system will be brought into operation. We have also assembled an international editorial board, comprising leading scholars in the field of evidence, on whom we can call for advice on individual contributions and for general advice on the development of the journal and maintenance of its quality.
We recognise that the electronic medium may not yet have been fully embraced by the academic community and we are conscious also of the need to minimise inhibitions which authors may have about committing their work to ICE. We have, therefore, adopted a policy on rights in published material which strikes a balance between our interest in publishing original material and authors’ interests in retaining the opportunity to place their work elsewhere after it has appeared in ICE. Authors are required to assign publication rights to ICE and to assign exclusive rights to publish for a period of six months or, in the case of works in progress, a period of two months. After this period, authors are free to publish the material elsewhere, with an expectation that they will acknowledge ICE as the original locus of publication. For safety’s sake, we have also built in a warranty requirement, whereby authors guarantee the originality of their contributions and agree to indemnify the publishers of ICE against liability incurred through publication of the material.
ICE has been in operation for just over a year now, and in the period since its launch, we have attracted a range of impressive contributions, as evidenced by the table of contents as it presently stands. This early phase in the journal’s existence has, however, been more a period of learning for the editors and consequent fine-tuning of the site than a period of generating publicity for the journal. We are aware that the next phase of the journal’s development will have to entail publicising it to a wider audience. Some interest in the journal was generated at the conference in Belfast last year at which it was launched, and we have made efforts since to bring the site to the attention of interested parties — for example, through the electronic discussion lists mentioned before. In addition, the subscriber alert feature will hopefully provide a mechanism for “hooking” readers to the journal, and prompting them to revisit the site as new material is published online. The next steps will then be to register the site with major search engines and to approach electronic services such as Lexis and Westlaw, in order to ensure that we attract visitors from outside the (relatively small) academic community we have already targeted. That we have not taken such steps already is attributable to a reluctance on the editors’ part to seek a wider audience until all of the initial teething difficulties encountered in these early stages of development have been rectified. It is, in fact, to the credit of those in the academic community who have had material published on the site so far that they have been willing to participate in the knowledge that the mechanics of the journal have yet to be perfected.
An important point to be made concerning the future of the site is that the journal depends for its continuing existence on the commitment of the editors and the technical support team to its maintenance and development. The journal is not backed by a commercial publisher,[23] nor does its specialist field lend itself readily to commercial sponsorship,[24] and those involved in its administration have a limited time to devote to the venture. If the volume of material and commentary submitted to the site were to increase substantially, consideration would have to be given to involving a larger editorial team in the running of the journal. As the journal develops, the occasions on which we have to call upon technical expertise may become less frequent, but one point the project has illustrated to date — and it is one with resonance for other sessions at the present conference — is the importance of technical support within the modern law school, provided by individuals trained in Web technology. The expertise of the editors lies in the subject matter of the journal, and the fashion in which the site has been constructed has enabled us to run the journal fairly effectively despite our limited grounding in computer technology, but we will continue to rely on technical support for making adjustments to the mechanics of the site and rectifying any malfunction in the journal’s features.
As legal resources on the Web expand and the virtual library increasingly rivals its physical counterpart as the first port of call for the legal researcher, whether student, teacher or practitioner, it may be that legal publishers will seek to develop journals in a similar mould to ICE on a paid-subscription basis. As I indicated in the introduction, journal publishers have already used Internet resources in different ways to engage with their readership. Indeed, it may be that the future will at some point see the eclipse of the conventional paper publication. As emphasised before, however, it is the interactive possibilities of the Web which offer the opportunity to develop an academic journal online — hopefully, without compromising on quality — that is quite different in nature to its paper precursors. One idea that we have considered is the possibility of approaching a publisher to have the contents of ICE issued in paper form at periodic intervals. Somehow, however, to proceed down that road would seem almost disloyal to the electronic ethos of the venture.
[1] I am indebted to the following for their comments on a preliminary draft of this paper: Professor Craig Callen, Mississippi College School of Law, USA, editor-in-chief of ICE; my other co-editor and Head of the Law School at Queen’s, Professor John Jackson; Chris Martin, Network Manager at Queen’s Law School and technical manager of the site; and my colleague Tony McGleenan, barrister and lecturer in the School of Law.
[3] The journal is housed at the home pages of the School of Law, Queen’s University Belfast, at http://www.law.qub.ac.uk/ice. It is best viewed using Netscape Navigator Gold or Internet Explorer 3 (or better).
[4] Such a perusal in itself is facilitated by the excellent electronic directory of UK journals maintained at the University of Warwick home pages: http://elj.warwick.ac.uk/ . The site contains a comprehensive list of and information about UK law journals, as well as links to Web pages related to the journals.
[5] For examples of these types, see home pages of Kluwer (http://www.wkap.nl/kaphtml.htm), Blackwell Publishers (http://www.blackwellpublishers.co.uk), and Deborah Charles Publications ( http://www.legaltheory.demon.co.uk/lib_abstracts.htm).
[6] The two best examples are the Journal of Information, Law and Technology and the Web Journal of Current Legal Issues (http://elj.warwick.ac.uk/jilt/ and http://webjcli.ncl.ac.uk/ respectively).
[7] Although note the Journal of Information, Law and Technology’s excellent news feature, updated weekly, which would not work as effectively in the conventional format.
[8] The conference was funded primarily by a fellowship which I was awarded by the Airey Neave Trust, and also attracted sponsorship from the Bar Council of Northern Ireland, the Judicial Studies Board for Northern Ireland, and Servicing the Legal System (Northern Ireland). A collection of essays based on contributions to the conference will be published by Hart Publications, Oxford, in 2000.
[9] The conference site may still be visited on Queen’s home pages at the following address: http://www.law.qub.ac.uk/conferences/Judge_Crime.htm.
[10] It should be noted that, although the journal was officially launched in April 1998, it was not until August that the first items were actually published on the site.
[11] http://www.law.umich.edu/thayer
[12] For example, Professor Roger Park at University of California-Hastings, manages a forum for law faculty members interested in discussing the law of evidence (information on subscribing may be obtained by sending a message with the words “subscription information” in the “re” line to Professor Park at parkr@uchastings.edu); a forum for discussion of the application of Bayesian methods in the presentation and analysis of evidence is managed by Tony Vignaux at the Victoria University of Wellington, New Zealand (information may be obtained by contacting him at Tony.Vignaux@vuw.ac.nz).
[13] Symposium on Hearsay and Implied Assertions: How Would (or Should) the Supreme Court Decide the Kearley case? (1995) Miss C L Rev 1. There are contributions from scholars in the United States, the United Kingdom and Israel.
[14] Kumho Tire Co v Carmichael [1999] USSC 19; (1999) 119 S Ct 1167.
[15] Paul Roberts, “Tyres with a “Y”: An English Perspective on Kumho Tire and its Implications for the Admissibility of Expert Evidence”.
[16] Michael Ariens, “A True Crime: A Review of Janet Malcolm”, The Crime of Sheila McGough (1999).
[17] A good example from our own discipline is the International Journal of Evidence and Proof, published by Blackstone Press, London.
[18] The best example to date in the journal is the commentary on Professor Callen’s article, “Adams and the Person in the Locked Room”, by Ron Shapira of Tel Aviv University, Israel, followed by Professor’s Callen’s reply.
[19] http://www.abanet.org/crimjust/
[20] See footnote 10 above.
[21] http://www.law.umich.edu/thayer
[22] The conversion is made possible by the Law School’s Citrix Winframe Server, which allows Windows applications (in this case, an HTML converter) to be executed remotely over the Internet.
[23] For an example of such an arrangement, see the Web Journal of Current Legal Issues, which is published in association with Blackstone Press.
[24] Contrast the possibilities in other fields: it was reported in The Times Higher Educational Supplement recently that the world’s largest scientific body, the American Chemical Society, has launched an online journal, priced at a fraction of the cost of competing journals produced by commercial publishers (4 June 1999).
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