Re: The Special Case of Law Reviews

From: Stevan Harnad <>
Date: Fri, 21 Nov 2003 17:45:51 +0000

On Fri, 21 Nov 2003, Michael Carroll wrote:

> I've been following the open access discussion for a while now
> and may be writing a law review article on the subject in the
> not-too-distant future. I'll likely be reiterating some of the
> points you've been making in a number of fora. In the meantime,
> the answer to your question is difficult for American law reviews
> because these are student-edited publications with policies that
> can change year-to-year as each editorial board sees fit.

You are right, but inasmuch as the the choice of a "green" vs. "white"
policy is in the hands of the current journal student staff (rather than
the adult professional managing editor, as I suspect it often is!),
it's their duty to come to grips with it. Serving on their Law Review
is a plum for the CVs of Law Students. While there, they should face
the same current developments that face other journals (who also find
the question difficult, by the way!) in our postgutenberg age.

> I'm assuming that you ask the question in response to the recent
> reaction to a proposed policy by the California Law Review to assert
> its copyright interest against the Social Science Research Network
> (, which is where law profs now post their pre-prints.
> My understanding is that the student editorial board, responding
> to the dust-up around this issue, has postponed a decision until
> the Spring.

Yes, that is the reason I asked, prompted by Dan Hunter's (Wharton/Penn)
critique, and Terry Martin's (Harvard) response in the American Scientist

Note, though, that there is a simple, legal alternative for SSRN in any
problem cases, and that is to archive only the metadata and URL, and have
the author self-archive the full-text in his own institution's archive.
That removes the possibility of invoking 3rd-party publisher copy-right
infringement against the central archive.

> Scholarly communication in the American legal academy is less
     susceptible to capture than is such communication in other disciplines
> because control over print distribution is disaggregated among all
> these different student publications. Prices are quite cheap * less
> than $100 per year. The bottleneck is with electronic distribution,
> which is consolidated in the hands of three publishers * West (a
> division of Thompson), Lexis-Nexis, and Hein. These publishers
> provide a revenue stream to the student-edited law reviews based
> on the number of times their articles are accessed. For the elite
> law reviews, these revenues are hundreds of thousands of dollars.
> It is a (mis)perceived threat to that revenue stream that has caused
> the present dust-up. I say misperceived because legal practitioners
> and scholars have to provide pinpoint citations to the published
> page when citing an article in a legal brief or article, and we
> need access to the published version for that. We usually obtain
> such access through one of the commercial on-line services just
> mentioned, so I'm not persuaded that there's a real threat to that
> form of electronic access.

That sounds reasonable, though I doubt that authors will omit the relevant
citation metadata from their home-grown institutionally self-archived drafts
just for this reason! They want to be cited by the users of the home-brew
too, and not just the high-fliers!

> The other reason an answer to your question about self-archiving
> will be difficult to answer is that authors with market power are
> able to negotiate different terms of the copyright agreement.
> So even if the law journal has a standard agreement that would
> prohibit self-archiving, in practice many agreements may not include
> that term. Most web-savvy legal academics I know self-archive,
> but there are many legal academics who are not web-savvy. That fact
> combined with the search function make SSRN a valuable resource.

All researchers -- whether legal or otherwise -- need to be made far
more savvy about the strong positive correlation and causal connection
between access and impact. Once they know, the decision will make itself.

Stevan Harnad

NOTE: A complete archive of the ongoing discussion of providing open
access to the peer-reviewed research literature online is available at
the American Scientist September Forum (98 & 99 & 00 & 01 & 02 & 03):
    Post discussion to:

Dual Open-Access Strategy:
    BOAI-2 ("gold"): Publish your article in a suitable open-access
            journal whenever one exists.
    BOAI-1 ("green"): Otherwise, publish your article in a suitable
            toll-access journal and also self-archive it.
Received on Fri Nov 21 2003 - 17:45:51 GMT

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