Don’t Blame the Law Students [redux]: A Reply to Hunter

Dan Hunter recently posted a paper called “Walled Gardens”:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=635141 on SSRN. Although the paper has received some attention from legal bloggers (“here”:http://lsolum.blogspot.com/archives/2005_01_01_lsolum_archive.html#110494748452395983 and “here”:http://volokh.com/archives/archive_2005_01_00.shtml#1105044769), it’s been all praise so far. Hunter argues that law reviews should allow open access to the papers they publish. And what legal academic could disagree with that? As Hunter says, academics are interested in the widest possible dissemination of their ideas.[1] And free or open access certainly promotes the value of spreading information and ideas.

Hunter’s basic position is that law reviews should permit and indeed encourage authors to self-publish. Journals should also make articles available on-line for free consumption. I’m generally sympathetic to this position. I’ve only published one “paper”:http://ppe.sagepub.com/cgi/content/short/3/2/191 (forgive the shameless plug), but it’s not easy to get access to it. It’d certainly be nice if everyone could read it for free. But I’ve also spent most of the last year working for a law review, and, from the perspective of a student editor, I think Hunter’s criticisms are somewhat harsh. I also think he underestimates the long-term costs of doing business—even on-line. What follows is a first pass at Hunter’s argument. I put these thoughts forward tentatively, and I hope they’ll be received that way. I think Hunter’s paper is important and provocative. It raises lots of interesting questions about what (legal) academic publishing should be like, especially in a paper-free world. But those questions appear to me far more open than Hunter sometimes suggests.

First, to show that there is, in fact, a problem with restrictive access in law review publishing, Hunter presents some survey evidence to suggest that law reviews don’t already publish their articles on-line or allow professors to post on SSRN. From what I’ve learned about law reviews over the last two years, I’m generally skeptical about Hunter’s survey. As new as these issues are, there is likely to be considerable flux in the positions of many, if not most, law reviews. First, although it is celebrating its tenth anniversary, SSRN has only recently (within the last couple years) come into its own as the primary means of self-publishing in legal academia. Law students—and indeed the faculty who teach them—are just beginning to appreciate its importance. In this regard, Hunter’s article may help to raise awareness, which indeed is its stated purpose. Second, Hunter presents little evidence indicating that top journals pose a serious obstacle to posting on SSRN. One would expect a much larger outcry from faculty if the problem were as serious as Hunter says it is. But I suspect that, at this point, most reviews don’t object much, if at all, to authors who want to self-publish. (And I’ve never heard of a law review asking a professor to remove an article from his or her own website—although I’d be interested to know if there are such cases.) Third, as for publishing their own material on-line, many journals simply haven’t devoted the resources to on-line publishing. I would venture that this is a matter of institutional neglect rather than an effort to stymie access. It’s not that student editors are trying to restrict access to articles (although some might). They just don’t have the money, time, or technical ability to meet demands of on-line publishing and archiving. Where Hunter sees a malicious network of greedy commercial databases and complicit law reviews, my hunch—and that’s all it is right now—is that law reviews simply lag behind in technological development. After all, most law reviews are student organizations with very little institutional memory, low funds, and enormous paper-publishing responsibilities. As professional as their product may be, these are not paid organizations. (So it might help to lighten up on the criticism some.) Many reviews are facing the issue of open access for the first time, and I have little doubt that they will make important adjustments. But professors and the academic community still expect a professional hard copy journal—and on time.

Here I might note that, for the most part, this generation of students could care less whether something appears in print. We’d happily move to a paper-free world.[2] But the fact is that many, if not most, legal academics are still unwilling to accept offers from journals that publish exclusively on-line. This will no doubt change in the near future. But, as I argued in “response”:https://www.crookedtimber.org/archives/002740.html to Posner, the criticisms here are somewhat misdirected. After repeatedly informing us about his anger toward the “California Law Review”:http://www.law.berkeley.edu/journals/clr/, Hunter offers some polite suggestions about what legal academics and law schools should do to make open access possible. Academics shouldn’t sign copyright agreements that are restrictive; they should post their papers on-line; and “deans, faculty and law librarians should begin discussing open access amongst themselves and with their law review.” Since the bulk of costs to law reviews stems from their printing responsibilities, I find it rather strange that Hunter isn’t also angry with his fellow academics about their unwillingness to publish on-line and only on-line. Certainly, this is one of the greatest obstacles to the Revolution. Instead of framing the issue almost entirely in terms of what law reviews must do, it might help to start by asking legal academics to give up the paper-fetish. Here’s a start: no more off-prints.

Up to this point, I haven’t really addressed Hunter’s main arguments for open access legal publishing. I’ve just tried to put things in a slightly different perspective. Insofar as Hunter is arguing that law reviews should permit authors to post their work on SSRN, I think his article will probably be obsolete before it is published. But the long-term effects of an open access policy, and its sustainability, are a different matter. As Hunter notes, the major objection from law reviews is that open access destroys their source of funding from commercial databases and subscriptions. Hunter has two responses:

1. There is no substitution effect from open access publishing. SSRN is not in competition with commercial databases. The fact that people download from SSRN doesn’t pose a threat to the interests of commercial databases, and so it doesn’t pose a threat to the law reviews that rely on those databases for revenue. So law reviews will not lose income by allowing open access. If law reviews think there is some danger here in loss of funding, it is only because they have been duped by Lexis or Westlaw.

2. Even if law reviews lose income, law schools or authors should pay the relatively small costs of open access publishing. Public access to scholarship is sufficiently valuable, and sufficiently in line with other interests (mainly reputational) of law schools and law reviews, that they should foot the bill if it turns out that open access diminishes commercial returns.

In short, law reviews won’t lose any money, and, even if they do, law schools should pay the costs of publication. I’d like to think that both of these claims are true, but I’m not fully convinced by Hunter’s arguments for them.

1. Perhaps law reviews will continue to make money from commercial databases because of low or non-existent substitution effects. But as search technologies improve, it is also likely that competition from open access publishing will increase. I’m also not convinced that some level of competition isn’t already in place. I would guess that most hits on SSRN for legal papers are by law professors, law students, or other academics and bloggers. Those sufficiently sophisticated to access SSRN also probably have relatively easy access to commercial databases (though I might be wrong about that). They use SSRN instead because it’s more convenient, because they saw the paper there first, or because they’ve linked to the paper from a source on-line. Furthermore, people who read papers on SSRN don’t usually re-read them in their canonical form. So I think, in the long term, there is real competition from SSRN. It may not be serious now, but I doubt Lexis and Westlaw have misunderstood the threat.

2. Hunter argues that even if open access has costs, law schools should pay them. Given that law professors have the most to gain from publication, one might think that they should pay for publication. One can imagine an argument like the following: the salaries of law professors at top schools are vastly disproportionate to those of other academics in other non-professional disciplines. Even considering the costs of education, law professors have significantly greater incomes over their tenures. They can reasonably be expected to pay for their share of publication costs. I’m not sure Hunter would disagree with this proposal. In exchange for law reviews granting open access, law faculties should enter into long-term contracts to guarantee their funding. But is this a good idea? Is it a good idea for those being published to control the purse strings of those doing the publishing? Since law reviews aren’t peer reviewed, I think financial independence is important. But even where peer review exists, there ought to be some level of insulation.

Another point: I would expect libertarians to raise an objection here. In effect, Hunter is proposing that legal institutions pay for publication costs, if there are any. For public institutions, this means the taxpayer gets the bill (or, I suppose, funding comes out of the salary of the faculty). The question becomes: should legal academic publishing be publicly financed for the purpose of providing open access? I don’t have any philosophical problems with answering “yes.” But I’m not sure it’s such an easy case for libertarians.

Hunter’s likely response would be that taxpayers already pay for access because they pay for subscriptions to journals. If access were free, then they wouldn’t have to pay for (on-line) subscriptions. Assume, for the moment, that without such subscriptions, law reviews also wouldn’t make any money. Law schools would have to pay the entire costs of publication. This situation seems open to free-riding. Everyone would have access, but only those who publish will pay. Maybe reputational costs will drive law schools to subsidize journals, but I’m not sure they’ll fund the diversity of journals that currently exists. That might not be a bad thing. Some people think there are currently too many law journals. But Hunter favors the widest possible dissemination of ideas, and a reduction in the number and diversity of journals should be unwelcome news. As things stand, many top-tier journals are financially self-sufficient. This makes it possible for law schools to fund numerous other journals. If all law schools had to fund all journals, some of those schools would probably consolidate their efforts to produce a quality flagship journal. They might decide that less prestigious journals simply aren’t worth the money. This would produce an overall reduction in published scholarship. This is all highly speculative, but I’m not sure it’s any more speculative than Hunter’s claims about what the world would be like under open access. If we assume that law reviews remain a significant part of publishing in legal academia, we need to know more about the actual costs of publication—even in a paper-free world. And it would help to begin theorizing in non-ideal terms about what it would be like for law schools to have nearly complete control over the financing of the institutions that publish the ideas they produce.

fn1. Actually, I’m not sure it’s true that, as Hunter says, “Scholars seek the widest possible distribution and impact of scholarly work” (p. 7). Or at least that is not all that they seek. Another plausible hypothesis is that legal academics are interested in the widest possible dissemination of their ideas to those who (they think) are in a position to appreciate their ideas and (perhaps?) enhance their reputations. If you don’t think this is the case, consider X, who is faced with the following publishing opportunity: (a) X can publish with journal J1 which has the highest possible reputational value but a significantly lower readership, or X can publish with journal J2, which has medium or low reputation value but significantly larger readership. Is it obvious X chooses option (b)? Maybe reputational value and size of readership track each other, but that is not always the case. It won’t be where reputation is based on demonstrating technical expertise to a small audience of elite scholars. (Consider the fact that law professors are much more likely to write law review articles that span hundreds of pages, rather than books or popular articles that might disseminate their most important ideas to much larger audiences.)

fn2. See, for example, the Virginia Journal of Law & Technology (“VJOLT”:http://www.vjolt.net), which publishes “exclusively on-line”:http://www.vjolt.net/about.php and is a great example of open access publishing. It’s also worth noting that VJOLT is supported by authors and readers who are more likely to see the value of publishing exclusively on-line. In that sense, they’re in the vanguard of legal publishing. It would be interesting to know more about how their funding is structured.