Re: The Special Case of Law Reviews

From: Michael Carroll <carroll_at_law.villanova.edu>
Date: Fri, 21 Nov 2003 17:44:33 +0000

Hi Stevan,

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.

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 (www.ssrn.com),
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.

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.

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.

Best,

Michael Carroll

Terry Martin :

>tm> I don't think you are correct. I suspect most law reviews are
>tm> extremely reluctant to permit self-archiving, as many want the
>tm> articles that have been submitted to pre-print services withdrawn
>tm> before the reviews will accept them.

Stevan Harnad:

>sh> It would be nice to see the actual figures on Law Reviews'
>sh> self-archiving policies, though. Does anyone actually have the data
>sh> -- or a list of the email addresses that I could send a query to?

Terry Martin:

>tm> I'll save you the trouble. As incoming chair of the committee on
>tm> libraries and technology of the American Association of Law Schools,
>tm> this was an issue I hoped to address in the coming year. I'll
>tm> report back in a few months.
Received on Fri Nov 21 2003 - 17:44:33 GMT