The Special Case of Law Reviews

From: Stevan Harnad <>
Date: Thu, 20 Nov 2003 19:50:37 +0000

Peter Suber has forwarded this very interesting letter from Professor Dan
Hunter, assistant professor of legal studies at the University of Pennsylvania's
Wharton School to the student-editor of the California Law Review

The letter is of interest for several semi-independent reasons:

(1) Law Reviews are a very unusual special case among research journals.
They are edited by law students! It is hard to know whether this means
that they can be classified among peer-reviewed journals. Law students
are clearly not their professors' peers. (And it seems paradoxical that
on tuesdays and thursdays the professors may be evaluating the students'
papers, and on wednesdays and fridays the students may be evaluating the
professors' papers!) Students may (or may not) be sending the papers to
qualified expert referees, and they may or may not be weighing and using
the referee reports the way a qualified expert editor would, but it does
make you wonder!

(2) Like all journals, however, the Law Reviews, and especially the
most prestigious ones among them, exert a good deal of influence:
Appearing in -- or failing to appear in -- them can have significant
effects on authors' careers -- just as serving on or not serving
on them can have a significant effect on students' careers. This is
evident in the cautious and deferential way Professor Hunter is writing
to the student-editor to indicate his objections and his intention to
stop submitting articles to the California Law Review until it changes
its policy.

(3) Although we have been hearing a good deal lately about universities
(e.g., University of California) threatening to cancel Elsevier journals
because their subscription tolls are too high; and although there was
a very big petition a few years ago, with over 30,000 signatories
threatening to boycott biomedical publishers unless they became open
access ("gold") publishers, this particular letter is merely asking the
California Law Review to become "green," which is to formally support
author self-archiving, as 55% of journals surveyed by Romeo already do
(and many of the rermaining 45% "white" will agree to do if asked):

(4) Becoming "gold" entails making substantial sacrifices and taking
substantial risks at this time. No one should be surprised that the
23,400 out of 24,000 research journals do not elect to become "gold"
at this time. (There are have been 600 gold journals since 1990.)
Becoming "green" (self-archiving-friendly), on the other hand, allows
a publisher to show its support for open access, and for its benefits to
research and researchers, without having to make any sacrifice and with
very little risk. (Most physics journals are green and in several areas
of physics nearly 100% of articles are self-archived and hence open
access for over 12 years now, yet the physics journals have felt no
revenue losses (and one prominent born-gold journal, JHEP, even made a
successful transition backwards to green last year, despite all of
its articles being, and continuing to be, self-archived and hence open

(5) It would be extremely odd, then, if -- in
there, along with the New England Journal of Medicine
and most of the American Chemical Society Journals (the journals
that will surely be the last of the whites to turn green!)
-- should be the student-run Law Reviews! What this shows is that having
a "white" vs. a "green" policy has little to do with whether a journal
publisher is non-profit or commercial (the 1500+ Elsevier journals are
"blue" -- supporting preprint self-archiving, but probably also "green,"
because what they mean by the "preprint" is the author's version of the
peer-reviewed final draft, i.e, the "postprint," and the only one they
don't allow to self-archive is the publisher's own PDF).

(6) I suspect, though, that the California Law Review may be in a minority
among Law reviews in this regard, as Bernard Hibbitt's influential
article in 1996 went a long way toward encouraging a "green" policy
among Law Reviews.

    Hibbitts, B. J. (1996) Last Writes? Re-Assessing the Law Review
    in the Age of Cyberspace. New York University Law Review 615

Stevan Harnad

---------- Forwarded message ----------
Date: Thu, 20 Nov 2003 12:21:21 -0500
Reply-To: SPARC Open Access Forum <>
To: SPARC Open Access Forum <>
Subject: [SOAF] Public access to legal ideas

[Forwarding an open letter from Dan Hunter of the Wharton School. --Peter.]

Wednesday, November 19, 2003

Ms Jean Galbraith
California Law Review
592 Simon Hall
University of California
Berkeley, CA 94720

By physical mail, email, and facsimile 510-642-3476

Dear Ms Galbraith

An Open Letter Protesting the Removal of Publicly-Accessible Online Documents

I write to you regarding the status of draft papers on the Social Science
Research Network (SSRN) which the California Law Review has subsequently
published. You have requested that any drafts on SSRN be removed upon
publication by your journal. I ask you to reconsider your decision.

I take the unusual step of laying out here all of the details of this
matter, since I want some greater record of the situation than email
affords. I also intend to circulate this letter to other stakeholders in
your decision in an effort to have them encourage you to change your decision.

My apologies for repeating information of which you are already aware.


I have, over the last three years, agreed to publish three articles with
the California Law Review. Two articles-- "" and "Cyberspace
as Place and the Death of the Digital Anticommons"-- have been published
with your journal and one other article --"The Laws of the Virtual Worlds"
(written with F. Gregory Lastowka)-- is to appear in your January 2004
issue. In agreeing to publish with you I have not made any amendments to
your standard form publishing contract which provides, inter alia, for an
assignment of copyright in the articles to your journal.

Prior to publishing with any journal, in order to make my work known to the
academic and general community, I post drafts of my articles on the Social
Science Research Network. This network, as you know, makes academic work
freely available to the public for download, and provides a number of other
reputational benefits for faculty members and academics. First, it provides
a simple, online, publicly-accessible repository for academic literature in
the social sciences. Second, it provides a notification service by email
(for subscribers) of newly deposited work, arranged by discipline and
specialty. And third, it provides an indication of the number of downloads
for any given paper, so that authors might gain an indication of the
popularity and significance of their work. So important is SSRN as a
repository that I know of no researcher in my area (cyberlaw and
intellectual property) who does not post there, and who does not use it as
the basic online source for drafts of their work.

On November 6, 2003 you emailed me indicating that you had requested the
removal of the drafts of my papers from SSRN. You allowed that abstracts of
the articles might remain on SSRN, but suggested that if the members of the
public were interested in reading the article then they should be directed
to the commercial database providers, Westlaw, Lexis, and Hein Online.

By return email I asked you (1) whether I was being singled out for special
attention, (2) why you were taking this action, since it seemed so
counter-intuitive, and (3) whether you have commercial relationships with
the three commercial publishers whom you mentioned in your earlier email.

On November 7 you responded that all authors were being treated in the same
way. You also provided the basis for your decision:

"The reason we have this policy--which most other major law reviews
share--is that we want to give our authors the chance to make drafts of
their articles available during our long publication process, but we also
want people to read the final versions of the articles, once published, not
drafts and we want them to do it in a way that keep our revenue flowing. We
get no funding from our law school (outside of space) and almost a l l our
revenue comes from our contracts with electronic subscriber databases (e.g.
Lexis), not from our print issues, and often on a "per hit" basis. That's
the rationale behind our policy and our enforcement of it."

Your Decision

With all due respect to your decision-making processes can I suggest to you
(1) that this is a decision that fails on its own terms, (2) that it is a
decision that means that you are using the position of the California Law
Review to assist commercial interests, and (3) that it is a decision that
places the California Law Review squarely against the widespread social
movement seeking to unlock public access to information.

First, the decision appears to fail to meet the interests which you provide
as justification for your decision. Your argument supposes that SSRN is a
commercial competitor to legal database providers like Lexis or Westlaw. I
would be interested to hear of any empirical evidence you have of this, but
it is surely unlikely. The subscribers to online legal databases are
largely confined to law firms and law schools. Since law schools have free
access to these services, then the only meaningful market for commercial
legal databases is in law firms. The articles on SSRN are in pdf format and
therefore not fulltext searchable, and moreover they are generally
preliminary drafts. Your argument therefore is that practicing attorneys
will spend hours searching through the SSRN database for unfinished
articles in preference to the easily-searchable, published version on the
commercial databases. Even given the ridiculous sums charged by these
providers, it is entirely implausible that SSRN competes with
Westlaw/Lexis/Hein in this market.

Second, there is the issue of your capture by the commercial providers. On
the face of it, your decision to remove my drafts cannot help but appear to
be motivated by the interests of the commercial online database providers.
Even if you are happy acting as the stalking horse of these commercial
interests, the practical effect of your actions is to remove public access
to information. Thanks to you, if people want access to my ideas then they
can pay Westlaw or Lexis or Hein monopoly rents to get it. This was
literally your suggestion in your first email message. You said that my
articles were "…available through a number of online subscriber services,
including Westlaw, Lexis, and Hein Online, and we encourage you to direct
interested readers to these services." You’ll have to forgive me if I think
that this is the single most appalling statement I have ever heard from a
law student. You may be happy with the idea that the general public cannot
access my ideas without paying for them, but I think it is outrageous.

Finally, it is remarkable that you are seeking to reduce public access to
material published in your journal at a time when other law schools and
universities are championing greater public access to information. Harvard
Law School is pushing open source legal materials, and Stanford Law School
has created the Creative Commons, to name but two. It is ironic that
computer scientists at Berkeley created the backbone of the Internet --bind
and sendmail, for example-- and gave it away for the betterment of all. Law
review editors at Berkeley, on the other hand, appear to be committed to
improving the quality of the cigars in the boardrooms at Lexis and Westlaw.

Congratulations. You must be very proud.

My Response

I consider this issue to be one that goes beyond my specific situation. I
happen to be unusually sensitive to the effect of your decision, since I
have published with you multiple times, and I am an untenured professor who
is particularly attuned to the reputational benefits of SSRN. Moreover my
speciality is in cyberlaw and intellectual property, and I am
professionally opposed to locking up information behind the walled gardens
of commercial database providers.

I believe this to be a matter that affects the public access to ideas which
are published in law reviews across the country. I am therefore going to
take the following actions:

1. I will not submit articles to the California Law Review while you have
the current policy in force. Moreover, I will do everything in my power to
organize a submission boycott of your review by other law professors while
you have the policy in force.

2. I will circulate this letter to your Dean and the Deans of other law
schools, in an effort to encourage them to set a policy of open access to
ideas generated within law schools.

3. I will take this issue up with the American Association of Law Schools,
the professional association of the legal academy, for the same reason.

4. I will advertise the policy of the California Law Review as widely as
possible within the open-access community, so that the general public might
be made aware of your actions.


May I say, in closing, that I wish that this letter were not necessary. I
have enjoyed publishing with the California Law Review. In each case you
have been professional, and extraordinarily hard-working. Your efforts have
clearly improved the quality of my work. (Indeed the bitterest irony in
this matter is that the draft articles available on SSRN are inferior to
the final published work, thanks to the work of the editors at the
California Law Review). It genuinely pains me that, in the same week in
which I sent you the final edits on my latest article, I should be forced
to write this letter to you. However, your decision is profoundly
wrong-headed and is corrosive to the wider social interest in broad public
access to information. Your decision is indicative of a wider problem
within the American legal academy. This problem is one that must be stopped
before you allow commercial considerations to obliterate public access to
legal ideas.

I hope that you will reconsider your decision.

Yours faithfully

Dan Hunter

Robert F. Irwin IV Term Assistant Professor of Legal Studies
The Wharton School
University of Pennsylvania
Received on Thu Nov 20 2003 - 19:50:37 GMT

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