Open Access Law Launch

Congratulations to Dan Hunter, Mike Carroll, and the Creative Commons board on the launch of the Open Access Law Program for legal scholarship.


The project home page.

Dan Hunter’s initial post on the announcement.

Larry Lessig’s post.

Ernie Miller’s post, somewhat less optimistic than Larry about the prospects for quick and painless adoption of the program on a broad scale.

Ernie is skeptical after talking with some law review editors; I share some skepticism after talking with some colleagues. As to faculty, resistance is partly inertia, and partly ignorance. At schools where faculty involvement in journal governance is the norm, faculty who know little or nothing about information law, business, and policy — to say nothing of the impact of electronic networks on distribution patterns for their own scholarship — will need to learn something about those things before they can get comfortable with modifying the traditional print-based publication model.

UPDATE (6/10): Be sure to read Dan Hunter’s comment below. I’m not going to take the bet, because — notwithstanding my skepticism — I’m hoping that he’s right.

An interesting side note: It strikes me that the politics of persuasion in this Open Access project differ a bit from the politics of persuasion in Creative Commons as a whole.

CC works because its leaders proselytize effectively; the grass roots take that energy and the tools that’s they’re given (which are exceedingly well-designed for this) and mobilize themselves accordingly. Borrowing an analogy from electoral politics, I’ll call CC “California”; for better or worse, this is how initiatives out there succeed, by tapping into reserves of unmet political demand, using the media to whip up interest, and letting the grass-roots take over and run with the ball. This was Jarvis/Gann, better known today as Prop. 13, which absolutely transformed the state. (Howard Jarvis, by the way, is the guy who is left sitting in the taxicab in Airplane! when Robert Hays gets out and runs after Julie Hagerty.)

OA/Law will work, in the long run, via old-fashioned one-on-one retail politicking. I’ll call OA/Law “Iowa”; for better or worse, this is what generates success in the caucus system. Precinct captains, door-knocking, and driving seniors to rec rooms at the public schools, in February, in the dark, in 20 degree weather. Caucuses aren’t really about dialogue among neighbors in the caucus room; caucuses are really about identifying all of your people beforehand and making sure that they show up at the right place, at the right time, and stand in the right corner. Jimmy Carter rode that system to the presidency in 1976; John Kerry used it to whup Howard Dean in 2004.

One thought on “Open Access Law Launch

  1. Hey Mike:

    You’re right that there is inertia against open access archiving; but as you indicate, this is more a reflection of how hard it is to change the status quo, and the lack of knowledge on the part of faculty and editors. But Ernie Miller is just wrong to suggest that there are structural or economic reasons against OA in law reviews, or that the inertia is going to pose a problem. I’ve spoken with a lot more law reviews than Ernie, and in the space of about 2 months got agreement from 21 of them. And this was at the beginning of summer, when they’re off at law firms and not really focussed on their law reviews. I’ve argued elsewhere that there are no substitution effects between OA versions and the Wexis duopoly, so law reviews can be comfortable that they’re not going to take a hit on their income. The only issue is alerting them to the possibilities of OA, and getting them to connect these possibilities to the law reviews’ educational/intellectual mission. So far we’ve been pretty successful at this, and over the next year (with help from people like you, in your role as involved faculty-member) we’ll get lots more. I’m happy to bet you a fancy dinner that we’ll have half the general US law reviews onboard within a year. And I’m low-balling here because the numbers are a function of how much time I have to discuss the issue with each individual law review. Going house-to-house is time-consuming, but it works.

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