Law schools, generally speaking, have two products: new lawyers and legal scholarship. While some people are skeptical about the value of legal scholarship, I tend to believe that there are at least some useful articles out there for the legal world and layman alike. However, this only is possible if people can read and access the content contained within them.
In 2009, the Durham Statement on Open Access to Legal Scholarship was signed by a large number of people interested in making legal scholarship available in a free and open way. Specifically, they suggested the following:
- Law schools stop print publication of their law journals and make definitive online versions of them in stable, open formats.
- Law schools should maintain online repositories of their law journals.
- There should be a public index of the content in these law journals.
- Faculty should reserve copyright so that they can also publish their work in a repository.
They were rather prescient in their suggestion that authors retain copyright so that they can also publish their work in a repository. Earlier this year, popular repository SSRN was purchased by publishing giant Elsevier. This led to fears that many of the works published on SSRN would be removed and it appears that it is happening.
That got me wondering about the current state of open and free publication for law journals. Have they taken up the suggestions of the Durham Statement? If so, how are they publishing online and how much is available? I also wanted to look at how open the content was – not just if it was free. My personal definition of Open Access includes the rights of users to remix and reuse content – libre access, not just gratis access in the lingo used.
I looked at the online publication of 591 United States based student edited law journals as listed in the Washington and Lee University School of Law database. I chose student edited only because I thought they would have the lowest barriers to entry into the free and open publication market since they aren’t paying for a professional editorial staff. My spreadsheet (licensed CC BY-NC) is available here if you’d like specific results of what I found. Otherwise, read on for a review of my findings.
Of the 591 law journals that I looked at, 493 or 83.4% have made at least one issue available online for free.
WHAT FORMAT IS THE CONTENT PUBLISHED IN?
The great majority of law journals, 481 or 97.6% use PDF as their main publishing format. Only 12 use HTML or a combination of PDF and HTML.
TOOLS USED FOR PUBLICATION
Law journals used a variety of tools to publish online. Some of them were designed specifically for making scholarship available online but some were adapted to the use, such as in the case of WordPress sites. Many of these sites appeared to be hosted off of the institution’s servers, which causes me to worry about the permanence of them. Also worrying is the fact that it is unclear how searchable the content hosted on these external sites is; indeed, some did not even have a search box available.
On the plus side, I think the proliferation of wordpress sites shows that there is a real interest by law journals in making their content available online for free. There’s a huge opportunity there for academic law libraries to reach out and assist in these publication efforts, perhaps in a more sustainable and searchable way.
Of the 493 online journal sites, they used the following for publication.
- 165 or 33.5% used WordPress
- 145 or 29.4% used BePress
- 113 or 22.9% used Other, which was most often the CMS of the law school website
Other minor players were
- 19 Drupal
- 14 WordPress/BePress
- 7 California Digital Library eScholarship
- 6 DSpace
- 6 Open Journal System
- 3 Other/BePress
- 3 SharePoint
- 2 ContentDM
- 1 Omeka
- 1 Scribd
(Note, this is actually the platform which was serving up content. In cases where, for example, the journal had a public facing WordPress site but actually hosted the articles they linked to on a BePress repository, that was counted as BePress. In some cases, the journal hosted the same content on both the WordPress and BePress in which case they were counted as “WordPress/BePress”. )
Interestingly, of the types of platforms used, 197 or 40% were open source software.
HOW MUCH CONTENT IS AVAILABLE?
In total, the range of content available ran from 1910 – 2016. The average depth of content was 1998 and the median was 2005. However, when you break it down by the types of platform, it’s clear that the BePress hosted journals had much more content available, likely because they had professional assistance in surfacing it.
- Range: 1910-2016
- Average 1986
- Median 1991
- Range 1966-2016
- Average 2006
- Median 2009
- Range 1952 – 2016
- Average 2004
- Median 2009
HOW IS THE CONTENT LICENSED?
The far majority of law journals – 502 or 84.9% – provide no usage license for readers of their content. (Note: I’m using all 591 journals in these statistics because some journals, even though they don’t appear to provide anything online, still provide an educational license (for example) for their content.) Sixteen or 2.7% are Creative Commons licensed and 50 or 8.5% provide an educational usage exemption. These vary somewhat but in general state that copies of articles may be made as long as its for non-profit educational classroom use and only the cost of copying is charged.
Honestly, the state of licensing is a little confusing on law journal websites. This is exemplified by the use of the Open Access Law Principles by law journals. The OAL principles are a part of Creative Commons. Basically, the OAL signatories allow for authors to republish under a CC license and will provide an electronic copy to the author for reposting. In exchange, the author promises, to always cite the law journal. Interestingly, the signatories also state that they support “Open Access principles, as articulated in the Bethesda Statement on Open Access Publishing, the Berlin Declaration on Open Access to Knowledge, and the Budapest Open Access Initiative.” These are all libre access statements which grant users of content various licenses such as Creative Commons. Of the OAL signatories, I found that 18 of them didn’t provide any indication on their website that they granted any type of license to users. Part of me wonders if the student editors are even aware that they are signatories to this agreement.
US law journals definitely have room for improvement when it comes to making their content more open and available. There’s no reason in 2016 to not be publishing digitally and openly. As student run journals, they should concentrate on making knowledge available and not trying to turn a profit. Of course, I do have some concerns about the longevity of the (apparently) student created websites that are hosting over a third of this content. This doesn’t necessarily mean that schools should immediately sign up for BePress – there are other options open source options available if a true repository is desired. At the very least, the student websites can be monitored for issues of retention and usability.
Thank you to the Shuttleworth Foundation for providing me with a flash grant that allowed me to continue my research into open and free legal information this summer. And thank you to Waldo Jaquith for nominating me for the grant.