The Winter 2006 issue of Lewis & Clark Law Review is a symposium on a subject of interest to many law librarians: open access to scholarly secondary sources in the discipline of law.1 This column will survey the major points of that symposium: (1) the definition of “open access,” (2) why there is less of a push for open access to legal scholarship than there is for open access to other disciplines’ scholarly output, and (3) why legal scholars should care.
It is probably useful to begin this survey with a definition of “open access.” Several definitions appear in the symposium articles, but the following is one of the simplest:
The phrase “open access publishing” has come to describe disseminating material, usually over the Internet, both free of charge and free of conventional copyright restrictions on further dissemination. The most common flavors of open access publishing today are open access journals, which make their contents available for free over the Internet, and open access archives, which maintain free electronic copies of scholarship published in both conventional and electronic journals.2
In the legal field, the Legal Scholarship Network3 (“LSN”, which is part of the Social Sciences Research Network, “SSRN”) and the BEPress Legal Repository4 are examples of open access (or quasi-open access) archives of legal scholarship.5 These two institutions finance free downloads of legal scholarly articles by providing related fee-based services to law schools, such as email-delivered abstracting journals, sponsored research paper series, and law review submission assistance.6
Legal scholarship would appear to be an ideal candidate for open access distribution, since it
. . . rel[ies] on few commercial publishers. The majority of law journals depend on unpaid students to undertake the selection and copy editing of articles. Nobody who participates in any way in the law journal article research, writing, selecting, editing, and publication process does so because of copyright incentives. Indeed, copyright is sufficiently irrelevant that legal scholars, the institutions that employ them, and the journals that publish their research tolerate considerable uncertainty about who owns the copyright to the works in question, without engaging in serious efforts to resolve it.7
And in fact, LSN, at least, has certainly gained importance in the last several years: “[T]he number of articles in which either of two search strings - ‘www.papers.ssrn.com!’ or ‘ssrn.com!’ - appeared has grown from only one article prior to the year 2000, to [more than 400] articles . . . in 2006.”8
Nevertheless, the movement for open access to scholarship has grown far more slowly in law than in other disciplines, especially the “hard sciences.”9 This may be due to the relatively low cost of most scholarly legal journals. Scientific publishing is a $7 billion industry, and the movement for open access to scientific scholarship has been driven largely by rising journal costs.10 In contrast, as already pointed out, most scholarly law journals are nonprofit enterprises run by law schools. The mean cost of legal journals is only 17% of the mean cost of all scholarly journals, and the median cost of legal journals is only 8.5% of the median cost of all scholarly journals.11 Furthermore, most of these nonprofit law journals are available on Westlaw or Lexis, two services to which U.S. law professors and students have nearly universal and heavily subsidized access.12 In addition, the nonprofit law journals frequently rely upon royalties from the inclusion of their articles in for-profit databases to pay for at least some of their operating costs, and fear the loss of royalties in an open access environment.13
Since legal scholars already have cheap access to much of their discipline’s literature, why should they care about open access? Symposium participant Michael Carroll of Villanova provides four reasons “legal scholars should ensure that their work is available on the public Internet . . .:” (1) impact - research in other scholarly disciplines has shown that articles available on the public Internet are cited more often than articles not so available; (2) serving the underserved - many legal researchers, including pro ses and attorneys in small firms, cannot afford to subscribe to legal periodicals or the commercial databases that aggregate them; (3) improving interdisciplinary dialogue - legal scholarship is becoming more interdisciplinary and therefore of greater interest to scholars in other fields, who don’t always have access to Lexis or Westlaw; and (4) improving international impact and dialogue - globalization has increased foreign interest in U.S. legal scholarship, yet scholars in other countries typically lack access to Lexis and Westlaw.14
1 Symposium: Open Access Publishing and the Future of Legal Scholarship, 10 Lewis & Clark L. Rev. No. 4 (2006), available at http://www.lclark.edu/org/lclr/issue_10_4.html.
2 Jessica Litman, The Economics of Open Access Law Publishing, 10 Lewis & Clark L. Rev. 779, 784 (2006), available at http://www.lclark.edu/org/lclr/objects/LCB_10_4_Litman.pdf.
3 http://www.ssrn.com/lsn/index.html (last visited May 18, 2007).
4 http://law.bepress.com/repository/ (last visited May 18, 2007).
5 Litman, supra note 2, at 784-785.
6 Olufunmilayo B. Arewa, Open Access in a Closed Universe: Lexis, Westlaw, Law Schools, and the Legal Information Market, 10 Lewis & Clark L. Rev. 797, 808-811 (2006), available at http://www.lclark.edu/org/lclr/objects/LCB_10_4_Arewa.pdf.
7 Litman, supra note 2, at 783; see also Dan Hunter, Open Access to Infinite Content (or, in ‘Praise of Law Reviews’), 10 Lewis & Clark L. Rev. 761 (2006), available at http://www.lclark.edu/org/lclr/objects/LCB_10_4_Hunter.pdf.
8 Joseph Scott Miller, Foreword: Why Open Access to Scholarship Matters, 10 Lewis & Clark L. Rev. 733, 735 (2006), available at http://www.lclark.edu/org/lclr/objects/LCB_10_4_Miller.pdf.
9 Litman, supra note 2.
10 Arewa, supra note 6, at 804.
11 Id. at 807.
12 Litman, supra note 2, at 791.
13 Dan Hunter, Walled Gardens, 62 Wash. & Lee L. Rev. 607 (2005).
14 Michael W. Carroll, The Movement for Open Access Law, 10 Lewis & Clark L. Rev. 741, 755-757 (2006), available at http://www.lclark.edu/org/lclr/objects/LCB_10_4_Carroll.pdf.