Harvard's open publishing policy and the outlook for law schools

As covered elsewhere, Harvard's Faculty of Arts and Sciences adopted an open-access policy last week, which obligates faculty to grant the College a license to their publications and to deposit an electronic copy with the College. [Full text of the resolution] Contrary to rumor, the faculty member retains any copyright s/he may have in the publication; the College asks only for a non-exclusive, non-commercial, irrevocable license to the work, with an opt-out possible on individual cases.

Unlike the status quo in the arts and sciences, legal scholarship is largely published in student-run, and therefore law school-owned, law journals. Thus, law schools have largely avoided the escalating fiscal spiral in which their colleagues have been trapped, wherein publishers extract larger and larger fees from schools' libraries for printing works that the schools themselves have largely subsidized. Law schools' journals, while not always the most timely of publishers, don't engage in this degree of profit-extraction. Furthermore, many faculty deposit articles in SSRN or BePress regardless of the paper's actual (or virtual) publication.

The openness of law schools' journals is largely due to history rather than deliberate planning. It gives law schools a huge potential leg up in entering the digital knowledge network, but because it's arisen by happenstance, it's also vulnerable to being undermined. It would be ironic indeed if, as the rest of academia moves towards openness that law schools could be at risk of being hemmed in.

There are, I believe, a few things that schools can do to take advantage of their head start:

1. Formalize their commitment to open publication to remove any doubt about the open (public accessibility) status of law journals. See Open Access to Infinite Content (Or 'In Praise of Law Reviews') and the Open Access Law Project.
2. Commit to a world where not only is all scholarship openly available, but also easily searchable, well-cataloged, and easily repurposed for educational or other uses. (While that may not mean storing the articles in full-blown XML, it almost certainly means no PDF).
3. Execute that vision by leaning on SSRN to become more open and/or networking all law libraries together to create a bigger, better, badder legal research hub. To that end, lay down basic standards (common metadata fields, etc) and a technology platform. To the extent that law journals continue to self-publish, ditch the ad hoc approach and adopt a standard, easy-to-use, fully-supported system made freely available to all journals. Web technology has reached a point where we should no longer be reinventing the wheel across institutions.

In the digitally networked age, legal scholarship enjoys significant advantages over other disciplines in being largely based on public-domain texts. The value of breaking open our research without a third-party mediator (e.g. publishers) is enormous. Let's not squander our advantages here.

- Gene Koo