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Applying the Access Principle in Law: The Responsibilities of the Legal Scholar*

  • Richard A. Danner


This article discusses the responsibilities of legal scholars to make their published works openly accessible through the Internet, within the context of efforts to increase free and open access to legal information, and to improve access to scholarly literature in other disciplines. The article also considers the roles and responsibilities of the institutions that support the creation and communication of legal scholarship for improving access to legal information.



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1 A generally-accepted definition of open access is that of the 2002 Budapest Open Access Initiative, which defines open access in reference to scientific and scholarly research as:

free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself.

Budapest Open Access Initiative: Frequently Asked Questions: Open Access (last revised, Jan.31, 2008),∼peters/fos/boaifaq.htm#openaccess.

Another commentator suggests that any strict definition of open access may be too limiting: “Only by working with a loosely defined approach to open access archiving and publishing can one begin to capture the variety of and variation in the means that are now being used to increase access to scholarship and research.” John Willinsky, The Access Principle: The Case for Open Access to Research and Scholarship 211 (2006). Willinsky presents ten “flavors” of open access based on financing and the kind of access they provide. Id. at 211–216.

2 On the open access movements in law and in other disciplines, see infra Section II.

3 Michael W. Carroll, “The Movement for Open Access Law,” 10 Lewis and Clark L. Rev. 741, 743 (2006).

4 Id. at 755–757. On impact, see also Willinsky, supra note 1, at 22 (noting that the “research impact” of a work includes not only its impact on the work of others, but its contribution to the author's reputation).

5 Carroll, supra note 3, at 756 (emphasis added).

6 The full text of the book can be downloaded in PDF format without charge at: (last visited Feb.18, 2008). Willinsky is the Pacific Press Professor of Literacy Technology at the University of British Columbia, and Professor of Education at Stanford University. He is the founder and principal investigator for the Public Knowledge Project (PKP), a partnership of several institutions “dedicated to exploring whether and how new technologies can be used to improve the professional and public value of scholarly research,” (last visited Feb. 18, 2008). Among other products, PKP has developed free open source journal publishing software, Open Journal Systems (OJS), which is used by over 900 journals publishing in ten languages. See Open Journal Systems, (last visited Feb. 3, 2008). The OJS software is used by African Journals Online (AJOL), (last visited Feb. 18, 2008). AJOL is discussed infra, text accompanying note 143.

7 Willinsky, supra note 1, at xii (emphasis omitted).

8 Id.

9 Id. at 111.

10 Id. at 112–120.

11 Id. at 125.

12 Carroll, supra note 3, at 756. A well-attended session at the 2008 annual meeting of the Association of American Law Schools featured a panel of legal scholars offering examples of what law faculty could do to promote and facilitate the implementation of their ideas beyond the academy. The description for the program: “Implementing Scholarship” is available at: (last visited Feb. 18, 2008). See also David Hricik & Victoria S. Salzmann, “Why There Should be fewer Articles Like This One: Law Professors Should Write More for Legal Decision-Makers and Less for Themselves,” 38 Suffolk U. L. Rev. 761 (2005).

13 Willinsky, supra note 1, at 33

14 Id. at 34 (emphasis in original).

15 Id. at 94, quoting Colin Darch, The Shrinking Public Domain and the Unsustainable Library 12 (1998) (Paper presented at the conference on the Electronic Library: Gateway to Information: Resource Sharing and User Services in the Electronic Library, Lund, Sweden, 2–6 June 1998) (on file with author).

16 Id. at 104–105.

17 See Declaration on Public Access to Law (Oct. 3, 2002), http://www.worldlii.-org/worldlii/declaration/montreal_en.html.

18 In a paper tracing the development of the free access to law movement, Greenleaf, Chung, and Mowbray define “legal information institute” as:

a provider of legal information that is independent of government, and provides free access on a nonprofit basis to multiple sources of essential legal information, including both legislation and caselaw (or alternative sources of jurisprudence)…. They are therefore, in essence, aggregators of public legal information at a national or sometimes regional level.

Graham Greenleaf, Philip Chung & Andrew Mowbray, Emerging Global Networks for Free Access to Law: WorldLII's Strategies 5 (March 22, 2007),

19 See Declaration on Free Access to Law (Oct. 3, 2002, as amended), The history and development of the movement for free access to law can be found on the web site of the World Legal Information Institute (WorldLII) at (last visited Feb. 18, 2008) and in Greenleaf, Chung & Mowbray, supra note 18, 79. See also Daniel Poulin, “Open Access to Law in Developing Countries,” First Monday, Dec. 2004,

20 See WorldLII web site, supra note 19.

21 (last visited Feb. 18, 2008).

22 Greenleaf, Chung & Mowbray, supra note 18, at 6.

23 Id. In the U.S., see, e.g., Altlaw, a project of programs at the Columbia Law School and the University of Colorado Law School, which provides free access to opinions of the U.S. Supreme Court and the federal courts of appeal. See (last visited Feb. 18, 2008).

24 Declaration on Free Access to Law, supra note 19 (emphasis added). The distinction drawn between primary and secondary sources of law in the Declaration is probably more applicable to common law jurisdictions than to civil law jurisdictions. In common law countries such as the United States, legal scholarship is usually classified as “secondary” literature, and is distinguished from the “primary” sources of law issued by bodies with law- or rule-making authority: legislatures, courts, and administrative agencies. Secondary authority cannot bind a court, but can be cited to persuade the court of the soundness of an argument. For a discussion of the differences among sources of law in the U.S. written for international lawyers, see Jill J. Ramsfield, Culture to Culture: A Guide to U.S. Legal Writing 45–61 (2005).

In other legal systems, distinctions between primary and secondary sources of law are less clearly drawn. See Claire M. Germain, Germain's Transnational Law Research § 2.07.3 (1991-) (The common law distinction between primary and secondary authority “does not exist in civil countries which give more respect to commentary on the law in books and articles.”) See also René David & John E.C. Brierley, Major Legal Systems in the World Today: An Introduction to the Comparative Study of Law 148 (3d. ed. 1985) (noting that in Romano-Germanic legal systems the “relationship between legislation and doctrinal commentary … is much more complex, much more delicate,” and that “[l]egal scholarship is thus of fundamental importance because it creates in different countries the various working tools of jurists.”). On the role of scholars, see John Henry Merryman & Rogelio Pérez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America 56–60 (3d ed. 2007) (“The teacher-scholar is the real protagonist of the civil law tradition. The civil law is a law of the professors.” Id. at 56). See also Mary Ann Glendon, Michael W. Gordon & Paolo G. Carozza, Comparative Legal Traditions in a Nutshell 89–94 (2d ed. 1999). On academic legal writing (la doctrine) in France, see Eva Steiner, French Legal Method 179–182 (2002). Thanks to Claire Germain for her help with these points.

The LII definition of legal information seems to follow the common law approach to classifying legal materials. A recent paper about the establishment of the Asian Legal Information Institute (AsianLII), however, notes that an Asia-wide legal information system will need to consider a full range of legal systems, and presumably other approaches to classifying legal materials. See Graham Greenleaf, Philip Chung & Andrew Mowbray, “Challenges in Improving Access to Asian Laws: the Asian Legal Information Insitute (AsianLII),” 9 Aust. J. Asian L. 152, 155–157 (2007).

25 Declaration on Free Access to Law, supra note 19.

26 Greenleaf, Chung & Mowbray, supra note 18, at 11 (“Governments may or may not publish the information themselves, but competition will help ensure that one or more versions are available for free access.”).

27 Willinsky, supra note 1, at 133 (“To move academic research more thoroughly into the public domain is to create a substantial alternative source of public information.”)

28 Declaration on Free Access to Law, supra note 19.

29 Greenleaf, Chung & Mowbray, supra note 18, at 25.

30 The phrase “essential legal information” is not used in the Montreal Declaration.

31 Greenleaf, Chung & Mowbray, supra note 18, at 5, n. 9.(emphasis added)

32 (last visited Feb. 18, 2008).

33 (last visited Feb. 18, 2008). For a description of these tools, as well as WorldLII's “Law on Google” search option, see Greenleaf, Chung & Mowbray, supra note 18, at 38–41.

34 Budapest Open Access Initiative (Feb. 14, 2002),

35 Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities (October 22, 2003),

Issued at about the same time as the Budapest and Berlin documents, the June 2003 Bethesda Statement on Open Access Publishing focused on practical matters: “significant, concrete steps that all relevant parties–the organizations that foster and support scientific research, the scientists that generate the research results, the publishers who facilitate the peer-review and distribution of results of the research, and the scientists, librarians and others who depend on access to this knowledge–can take to promote the rapid and efficient transition to open access publishing.” Bethesda Statement on Open Access Publishing (Apr. 11, 2003, released June 20, 2003),∼peters/fos/bethesda.htm.

36 Budapest Open Access Initiative: Frequently Asked Questions: Research Literature (last revised Jan. 31, 2008),∼peters/fos/boaifaq.-htm#literature.

37 In contrast to the open access statements, the International Federation of Library Associations and Institutions (IFLA) Statement on Libraries and Intellectual Freedom includes a declaration “that human beings have a fundamental right to access to expressions of knowledge, creative thought and intellectual activity, and to express their views publicly.” International Federation of Library Associations and Institutions, Statement on Libraries and Intellectual Freedom (approved Mar. 25, 1999),

However, like the other open access statements, IFLA's 2003 Statement on Open Access to Scholarly Literature and Research Documentation does not attempt to argue for a right of access to information. Nor does it refer back to the right of access declared in the IFLA Statement on Libraries and Intellectual Freedom. Instead, the IFLA open access statement “affirms that comprehensive open access to scholarly literature and research documentation is vital to the understanding of our world and to the identification of solutions to global challenges and particularly the reduction of information inequality.” International Federation of Library Associations and Institutions, Open Access to Scholarly Literature and Research Documentation (adopted Dec. 5, 2003),

38 Universal Declaration of Human Rights Article 27 (1), G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948), available at

39 International Covenant on Economic, Social and Cultural Rights Article 15, §1(a), Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); 6 I.L.M. 360 (1967), available at

40 International Covenant on Civil and Political Rights Article 19.2., Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); 6 I.L.M. 368 (1967), available at Access to scientific information is emphasized in the 1999 declaration of the World Conference on Science, sponsored by the United Nations Educational, Scientific and Cultural Organization (UNESCO) and the International Council for Science. See U.N.E.S.C.O., World Conference on Science, June 26-July 1, 1999, Declaration on Science and the Use of Scientific Knowledge, para. 4.42, U.N. Doc. 30 C/15, App. I (August 18, 1999), available at (“Equality in access to science is not only a social and ethical requirement for human development, but also a necessity for realizing the full potential of scientific communities worldwide and for orienting scientific progress towards meeting the needs of humankind.”).

41 Willinsky, supra note 1, at 143. Willinsky bases his position in Richard Pierre Claude's arguments for a “right of access to the advancement of science” and those of Jacques Derrida for a “right to philosophy.” Id. at 143–154. See also Peter Johan Lor & Johannes Britz, “Knowledge Production from an African Perspective: International Information Flows and Intellectual Property,” 37 Int'l. Info. & Libr. Rev. 61, 67 (2005) (basing the argument for information rights on “the assumption that essential information is a basic resource in any society that needs to survive and develop.”).

42 Willinsky, supra note 1, at 146.

43 The Declaration on Free Access to Law places public legal information within “the common heritage of humanity,” supra note 19; the Budapest Initiative states that open access to the literature of scientific research will “lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge,” supra note 34; and the Berlin Declaration defines “open access as a comprehensive source of human knowledge and cultural heritage that has been approved by the scientific community,” supra note 35.

44 The Declaration states that public legal information “should be accessible to all on a nonprofit basis and free of charge” (emphasis added), and does declare the right of “Independent nonprofit organisations … to publish public legal information.” Declaration on Free Access to Law, supra note 19.

45 See supra text accompanying note 24.

46 See supra note 24.

47 See David & Brierley, supra note 24, at 148 (“What troubles the French jurist when he studies German law is the difference in form, rather than of substantive law, between the legal works of French and German jurists. The latter, as well as the Swiss, prefer a form of annotated codes (Kommentaire) …. The preferred instrument of the French jurist is the more systematic treatise (traite) or manual….”).

48 See A.W. B. Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature,” 48 U. Chi. L. Rev. 632 (1981) (discussing the changing roles of legal treatises in common law jurisdictions, focusing on England and the U.S.).

49 There is a large literature on Langdell and on legal education at Harvard. A useful critical review of much of the Langdell literature is Bruce A. Kimball, “The Langdell Problem: Historicizing the Century of Historiography, 1906–2000s,” 22 Law & Hist. Rev. 277 (2004). Kimball also provides a detailed portrait of legal education at Harvard during the early years of Langdell's deanship in Bruce A. Kimball, “Students’ Choices and Experience During the Transition to Competitive Academic Achievement at Harvard Law School, 1876–1882,” 55 J. Legal Educ. 163 (2005).

50 This was not the first student-edited law journal. Frederick C. Hicks, the foremost bibliographer of U.S. law, considered an 1822 publication of a law school in Needham, Virginia to be “the first law school publication with a periodical title.” See Frederick C. Hicks, Materials and Methods of Legal Research 206 (3d rev. ed. 1942). For descriptions of efforts to establish journals at the Albany and Columbia law schools prior to the start of the Harvard Law Review, see Michael I. Swygert & Jon W. Bruce, “The Historical Origins, Founding, and Early Development of Student-Edited Law Reviews,” 36 Hastings L.J. 739, 763–769 (1985). The University of Pennsylvania Law Review dates its origins (under other titles) to 1852, but was not edited by students until 1896. See Edwin J. Greenlee, “The University of Pennsylvania Law Review: 150 Years of History,” 150 U. Penn. L. Rev. 1875, 1880 (2002). The earliest U.S. law journal is considered to be the American Law Journal and Miscellaneous Repertory, which was published irregularly from 1808 to 1817 and included reports of decisions, plus some commentary. See Hicks, supra at 197–198.

It may be worth noting that in its first issue, the student editors of the Harvard Law Review stated that their journal was “not intended to enter into competition with established law journals, which are managed by lawyers of experience.” “Notes,” 1 Harv. L. Rev. 35, 35 (1887). Rather, their primary objective was “to set forth the work done in the school with which we are connected, to furnish news of interest to those who have studied law in Cambridge, and to give, if possible, to all who are interested in the subject of legal education, some idea of what is done under the Harvard system of instruction.” Id. Thanks to Bob Berring for this reference.

51 See Swygert & Bruce, supra note 49, at 779–787, for a history of early student-edited law journals at other U.S. law schools.

52 There is a large critical literature on the institution of the student-edited law journal in the U.S., extending back at least to the often-cited Fred Rodell, “Goodbye to Law Reviews,” 23 Va. L. Rev. 38 (1936). Some of this literature is referenced and critiqued in Leah M. Christensen & Julie A. Oseid, “Navigating the Law Review Article Selection Process: An Empirical Study of Those With All the Power – Student Editors,” 59 S.C. L. Rev. 175 (2008). For a pointed recent critique of law reviews and legal scholarship, see Michael J. Madison, “The Idea of the Law Review: Scholarship, Prestige and Open Access,” 10 Lewis & Clark L. Rev. 901 (2006).

53 One count suggests that 597 of 889 law journals published in the U.S. are student-edited. See Law Journals: Submissions and Ranking, (last visited Feb. 18, 2008). The site, maintained at the Washington & Lee Law School, excludes “[m]ost bar journals, magazines, and newsletters.”

Thomson Scientific calculates impact factors for 100 law journals, published at law schools and by commercial or university presses. A journal's impact is based on later citations to articles published in the journal. For 2006, 17 of the 20 journals with the highest impact factors were published at law schools and edited by law students. The data are available at: Journal Citation Reports, available through (last visited Feb. 18, 2008) (password required).

54 See, e.g., Journal of Legal Studies (1972-), a peer-reviewed journal edited by members of the University of Chicago Law School faculty; Law and History Review (1983-), published by the University of Illinois Press for the American Society for Legal History; Law & Social Inquiry (1988-), published by Blackwell Publishing for the American Bar Foundation.

55 But see, e.g., Bucerius Law Journal (2007-), (last visited Feb. 18, 2008), a student-edited journal published at the Bucerius Law School in Hamburg, Germany. The relative ease of publishing journals on the web may make student-edited journals more common. See those cited infra note 79.

56 See Simpson, supra note 48, at 662 (“Although legal periodicals had been in existence for some time, they did not provide an outlet for scholarly writing [in England] until the Law Quarterly Review was inaugurated in 1885 ….”). According to Hicks, the first English law journal was the Lawyers’ Magazine, which was published from 1761–1762. Hicks, supra note 50, at 197. In South Africa, the South African Law Journal began publication in 1884 under the title: Cape Law Journal.

57 A recent ranking of U.K. law journals indicates that the twenty most highly ranked journals are all published by commercial presses. For the list of journals, see Kevin Campbell, Alan Goodacre & Gavin Little, “Ranking of United Kingdom Law Journals: An Analysis of the Research Assessment Exercise 2001 Submissions and Results,” 33 Journal of Law and Society 335, 356 (2006) (Table 6: Ranking of Law Journals by the Implied Rating Metric). For an historical perspective, see George S. Grossman, Legal Research: Historical Foundations of the Electronic Age 287–288 (1994). Similarly, all the South African journals examined in this article are issued by or in association with commercial presses.

58 Glendon, Gorman, & Carozza, supra note 24, at 91.

59 Id. at 92. The discussions of doctrinal writings in the Parker School's standard guides to foreign legal materials each include representative periodicals for topics covered. See Charles Szladits, Guide to Foreign Legal Materials: French, German, Swiss 477–493 (1959); Charles Szladits & Claire M. Germain, Guide to Foreign Legal Materials: French 108–142(2d rev. ed. 1985); Timothy Kearley & Wolfram Fischer, Charles Szladits’ Guide to Foreign Legal Materials: German 135–140 (2d rev. ed. 1990); Paul Graulich, Paulette Guillitte, Jan F. Glastra van Loon & L. E. Van Holk, Guide to Foreign Legal Materials: Belgium, Luxembourg, Netherlands 67–84, 197–255 (1968); Angelo Grisoli, Guide to Foreign Legal Materials: Italian 118–230 (1965). For a discussion of notes d’ arrets in French legal scholarship, see Steiner, supra note 24, at 183–185.

60 See, e.g., Harry T. Edwards, “The Role of Legal Education in Shaping the Profession,” 38 J. Legal Educ. 285, 291 (1988) (“Law professors seem more and more often content to talk only to each other–or perhaps to a few colleagues in other academic disciplines–rather than deal with the problems facing the profession.”)

61 Trends in Federal Judicial Citations and Law Review Articles (Mar. 8, 2007),

62 Adam Liptak, “When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant,” N.Y. Times, Mar. 19, 2007, at A8. The press coverage of the Cardozo program tended to highlight the comments that the judges made about law reviews (e.g., “Judges use them like drunks use lampposts … more for support than illumination.”). Id. (quoting Judge Robert D. Sack).

63 Stephen I. Vladeck “The Law Reviews vs. the Courts: Two Thoughts From the Ivory Tower” 8 (May 1, 2007),, available in PDF at (emphasis in original). Page references here and in the following footnotes are to the PDF version.

64 Vladeck suggests that the decreasing citation of law review articles in judicial opinions is explained not by the quality or relevance of contemporary legal scholarship, but by changes in the work that twenty-first century judges are asked to do. Because “judges in general-and appellate judges in particular–are held to increasingly narrow resolution of the substantive legal issues before them … these jurists are encountering fewer opportunities today to consider the novel legal theories or interpretations of doctrine for which legal scholarship has traditionally been valuable.” Id. at 3.

65 See, e.g., The Yale Law Journal Pocket Part, (last visited Feb. 18, 2008); PENNumbra,, (last visited Feb. 18, 2008). See generally Ken Strutin, “Guide to Short Form Open Access Legal Publications” (July 27, 2007),

Readers of legal journal articles from countries other than the U.S. are aware that legal scholarship can be written in much “shorter form” than the lengthy and heavily-referenced articles typical of U.S. authors. See, e.g., Richard A. Danner, “Applying the Access Principle in Law: The Responsibilities of the Legal Scholar, 35 Int'l. J. Legal Info. 355 (2008). The lead articles from the current issues of the U.S. law journals examined below average 64 pages in length; those from the U.K., 22 pages; those from South Africa, 23 pages. See Shane Tintle, Note, “Citing the Elite: The Burden of Authorial Anxiety,” 57 Duke L.J. 477 (2007) (arguing that legal authors use excessive citations as a means to “manage the impression” of their works).

66 As of this writing, Vladeck's own piece, posted on May 1, 2007, has attracted no comments or responses on the Conntemplations web site.

67 See, e.g., Brian Leiter's Legal Philosophy Blog, (last visited Feb. 18, 2008); The Volokh Conspiracy, (last visited Feb. 18, 2008). See generally Margaret A. Schilt, “The Future of Legal Scholarship” Legal Times, July 9, 2007, at 27; Some Evidence for the Assimilation of Blogs into the Structure of Legal Literature, (Feb. 5, 2008).

68 A well-known example is the collaborative wiki used by Lawrence Lessig in writing his book Code: Version 2.0 in 2006. The wiki can be found at: (last visited Feb. 18, 2008). A discussion of legal wikis and a representative list is at Robert J. Ambrogi, “Legal Wikis Are Bound to Wow You,” Law Tech. News, May 7, 2007,

69 See, e.g., Duke Law and Technology Review, (last visited Feb. 18, 2008), which publishes short “issue briefs.” DLTR also publishes iBlawg, a blog intended to facilitate discussion of its articles. See (last visited Feb. 18, 2008).

70 See, e.g., “Blogs and Scholars: The Impact of Legal Blogging on the Bench and Bar,” Nat'l. L.J., Oct. 8, 2007, at 22 (discussion among legal educators, judges and practitioners).

71 See Brian Leiter, “Why Blogs are Bad for Legal Scholarship,” 116 Yale L.J. Pocket Part 53 (2006),, available on the cite in PDF format. Page references are to the PDF version. Although a prominent blogger himself, see supra note 67, Leiter argues that “blogs have been bad for legal scholarship, leading to increased visibility for mediocre scholars and half-baked ideas and to a dumbing down of standards and judgments.” Id. at 57. In law, unlike other disciplines, scholarly discourse is mediated by student journal editors and (for the public) by journalists, making it easier for legal blogs to facilitate “the repeated and systematic broadcast of non-expert opinions,” which then gain credibility through repetition. Id. at 53.

72 See Carroll, supra note 3, at 755–757.

73 Joseph Scott Miller, “Foreword: Why Open Access to Scholarship Matters,” 10 Lewis & Clark L. Rev. 733, 735–738 (2006).

74 Id. at 737.

75 James Boyle, “The Irony of a Web Without Science.” Financial Times, Sept. 4, 2007, at 11 (discussing the impacts of the costs of peer-reviewed scientific journals).

76 Some portion of the output of legal scholars may be so specific to the law of a particular jurisdiction that it will be of limited interest to researchers outside the jurisdiction. Yet, substantial amounts of the literature may be of broader use. See supra text accompanying notes 133–134 for geographic spread of downloads of papers in the Duke Law School Faculty Scholarship Repository. See also Greenleaf, Chung & Mowbray, supra note 24, at 155–157.

77 For comparative journal subscription prices in the sciences and other disciplines, see Lee C. Van Orsdel & Kathleen Born, “Periodicals Price Survey 2007: Serial Wars,” Libr. J., Apr. 15, 2007, at 43. Van Orsdel and Born's figures indicate that in 2007, the average subscription cost was US$3,429 for 209 journal titles in chemistry, US$2,865.00 for 214 titles in physics, and US$1,676 for 213 titles in biology. Id. at 44.

78 The most recent edition of the American Association of Law Libraries Price Index for Legal Publications, 4d, (last visited Feb. 18, 2008)(password required), lists a 2006 annual cost of US$285.86 for 167 “commercial” legal periodicals (“association journals, bar journals, and joint ventures with academic institutions”) and an average cost of US$39.43 for 147 “academic” periodicals, published at law schools or in other academic settings. Van Orsdel and Born found the average subscription cost for 74 U.S. law journals to be US$247.00. Van Orsdel & Born, supra note 77, at 44.

79 Washington & Lee's Law Journals: Submissions and Ranking web site, supra note 53 (last visited Feb. 18, 2008) lists 94 online only law journals, some of which are web companions to print journals. See E.g., Potchefstroom Electronic Law Journal (1998-), (last visited Feb. 18, 2008); Freilaw, (last visited Feb. 18, 2008); Unbound: Harvard Journal of the Legal Left (2005-), (last visited Feb. 18, 2008).

80 E.g., Akron Intellectual Property Journal (2007-); Legisprudence: International Journal for the Study of Legislation (2007-).

81 The U.S. journals are those with the highest 2006 impact factors as calculated by Thomson Scientific in its Journal Citation Reports. Alphabetically, they are: American Journal of International Law, California Law Review, Columbia Law Review, Harvard Law Review, Michigan Law Review, New York University Law Review, Stanford Law Review, Texas Law Review, Virginia Law Review, Yale Law Journal. See Journal Citation Reports, supra note 53.

82 The U.K. journals are those ranked 1–10 by Campbell, Goodacre & Little, supra note 57. Alphabetically, they are: Cambridge Law Journal, Law Quarterly Review, Common Market Law Review, Oxford Journal of Legal Studies, International and Comparative Law Quarterly, Journal of Law and Society, Lloyd's Maritime and Commercial Law Quarterly, Modern Law Review, Civil Justice Quarterly, Industrial Law Review.

83 The South African journals are those listed in Amanda Barratt & Pamela Snyman, Researching South African Law (Mar. 2005),, as updated in November 2007 by Amanda Barratt. Alphabetically, they are: Comparative and International Law Journal of Southern Africa, Industrial Law Journal, South African Journal of Criminal Justice, South African Journal on Human Rights, South African Law Journal, SA Mercantile Law Journal, Stellenbosch Law Review, SA Publiekreg / SA Public Law, Tydskrifvir die Suid-Afrikaanse Reg /Journal of South African Law, Tydskrifvir Hedendaagse Romeins-Hollandse Reg / Journal of Contemporary Roman Dutch Law. Annuals and yearbooks listed by Barratt & Snyman are not included. Email from Amanda Barratt to Richard Danner (Nov. 6, 2007, 09:27 EST) (on file with author).

84 See (last visited Feb. 18, 2008).

85 See (last visited Feb. 18, 2008). JSTOR does not include either current issues or usually the most recent completed volumes for many of the journals it covers.

86 See, e.g., the law journals listed on the Cambridge University Press web site at (last visited Feb. 18, 2008).

87 See Sabinet Law Collection, (last visited Feb. 18, 2008). Sabinet provides access to 42 South African legal journals via pre-paid subscriptions.

88 HINARI, the World Health Organization's Health InterNetwork Access to Research Initiative, provides free or very low cost online access to journals in biomedical and related social sciences, but only 20 of HINARI's present 3,750 journals deal with law. See (last visited Feb. 18, 2008). AGORA (Access to Global Online Research in Agriculture), a program of the Food and Agriculture Organization of the UN provides access to resources in the fields of food, agriculture, environmental science and related social sciences, but does not include a subject category for law and includes only one or two law journals under the heading Economics/Social Sciences in its current list of over 1,100 journals. See (last visited Feb. 18, 2008). OARE (Online Access to Research in the Environment), a consortium coordinated by the United Nations Environment Programme (UNEP), provides free access to about 1,300 environmental science journals, only five of which focus on environmental law. See (last visited Dec. 16, 2007).

See generally Willinsky, supra note 1, at 101–103. There is some sense that noncommercial (professional and society) publishers are less aware of these programs than large commercial publishers. See E-journals: Developing Country Access Survey, 2002 at 6 (2003),

89 (last visited Feb. 18, 2008). INASP works with about 50 international publishers to facilitate access to their publications in over 40 developing countries. Publishers with significant law content include: Blackwell Publishing, Cambridge University Press, Oxford Journals, Project Muse, and the University of Chicago Press. See Publishers Working with INASP, (last visited Feb. 18, 2008).

90 (last visited Feb. 18, 2008). – negotiates electronic journal subscriptions on a multi-country consortial basis, working with nearly 50 member countries and nearly 30 publishers and aggregators including Cambridge University Press, Oxford University Press, and Project Muse. See (last visited Feb. 18, 2008).

91 (last visited Feb. 22, 2008). According to its web site, the DOAJ “aims to be comprehensive and cover all open access scientific and scholarly journals that use a quality control system to guarantee the content.” (last visited Feb. 18, 2008).

92 In addition to their income from print subscribers, law school journals also generate some income by licensing their content to the commercial data bases; the licenses are non-exclusive, but the income might be threatened if the content were made freely available as well as through the databases. For the circulation totals of some U.S. law journals, see Paul Caron & Rafael Gely, “What Law Schools Can Learn From Billy Beane and the Oakland Athletics,” 82 Tex. L. Rev. 1483, 1535 n. 296 (2004) (book review). Subscriber counts for Duke Law School's print journals are in Table 2, infra at p. 386.

95 See, e.g., the links to law journal sites in the WorldLII journals catalog, (last visited Feb. 18, 2008), and those linked from Washington & Lee's Law Journals Submissions and Ranking page, supra note 53.

96 I considered the lead article to be the first full article printed in the issue. I did not include memorials, notes, editorials, or short pieces in cases and comments sections, all of which appeared on the first pages of one or more of the journals.

97 (last visited Feb. 18, 2008).

98 The Google, Google Scholar, and Oaister searches also found links to versions of some articles that had been posted by their authors to one of the primary repositories for scholarship in law: the Legal Scholarship Network (part of the Social Science Research Network (SSRN) and the bepress Legal Repository (a product of Berkeley Electronic Press). Google searches linked to repository versions of 11 of the 30 lead articles, while OAIster linked to three. Repositories are discussed in greater detail infra, Section V. SSRN and bepress are both based in the U.S. but aim to disseminate scholarship to worldwide audiences. Papers in law that are posted to SSRN and bepress are generally, but not always, freely available on the sites.

99 Although the term “self-archiving” is frequently used by proponents of this approach to describe authors’ posting of their works in open access sites, it is important to note that “archiving” is defined to include access to and usage of the works, but not long-term preservation. See, e.g., Stevan Harnad, Against Conflating OA Self-Archiving With Preservation-Archiving, (July 11, 2006).

100 See generally Jean-Claude Guedon, “The “Green” and “Gold” Roads to Open Access: The Case for Mixing and Matching,” 30 Serials Rev. 315 (2004). Without those labels, the two strategies are also set forth in the Budapest Open Access Initiative, supra note 34.

101 Herbert Van de Sompel, et al, “Rethinking Scholarly Communication: Building the System that Scholars Deserve,” D-Lib Mag., Sept. 2004, Van de Sompel identifies the functions of scholarly communication as: registration, certification, awareness, archiving, and rewarding, basing his classification on Hans E. Roosendaal & Peter A. Th. M. Geurts, Forces and Functions in Scientific Communication: An Analysis of Their Interplay (1997), available at Roosendahl and Geurts define the main functions of scientific communication as registration, awareness, certification and archiving. Compare with Christine L. Borgman, Scholarship in the Digital Age: Information, Infrastructure, and the Internet 65–68 (2007) (identifying the functions of scholarly communication as legitimization, dissemination, and (taken together) access, preservation, and curation).

102 The full texts of many of Hamad's numerous publications on author-archiving and open access can be found at: (last visited Feb. 18, 2008). See, e.g., Stevan Harnad, India, Open Access, the Law of Karma and the Golden Rule (2007),

103 (last visited Feb. 18, 2008).

104 The uses of repositories and other means for sharing documents and other information vary by discipline. See Borgman, supra note 101, at 180–226, for a comparative discussion of disciplinary practices for disseminating information in the sciences, the social sciences, and the humanities. Borgman does not discuss law.

105 Raym Crow, The Case for Institutional Repositories: A SPARC Position Paper 4 (2002). For a current picture of institutional repositories in the U.S., see Soo Young Rieh et al “Census of Institutional Repositories in the U.S.: A Comparison Across Institutions at Different Stages of IR Development,” D-Lib Mag., Nov./Dec. 2007,

106 See Crow, supra note 105, at 6. See also Robert Mitchell, Harvard to Collect, Disseminate Scholarly Articles for Faculty, Feb. 13, 2008, (describing a decision by the Harvard Faculty of Arts and Sciences to make each faculty member's scholarly articles available in a free openaccess repository maintained by the university).

107 See Clifford A. Lynch, “Institutional Repositories: Essential Infrastructure for Scholarship in the Digital Age,” ARL Bimonthly Report (Feb. 2003), http://www.arl.-org/resources/pubs/br/br226/br226ir.shtml.

108 (last visited Feb. 18, 2008). For background, see MacKenzie Smith et al., “DSpace: An Open Source Dynamic Digital Repository,” D-Lib Mag., Jan. 2003, Large institutional repositories can also be hosted by outside services such as bepress's Digital Commons. See (last visited Feb. 18, 2007). bepress Digital Commons customers include universities in Australia, Japan, New Zealand, and the United Kingdom, as well as colleges and universities in the U.S., and some U.S. law schools. See (last visited Feb. 18, 2008)

109 (last visited Feb. 18, 2008). Like DSpace, EPrints is an open source software product. School- or departmental-level repositories can also be established using outside hosts. Selected Works, (last visited Feb. 18, 2008), hosts customized pages for smaller institutions, such as law schools, that wish to showcase and provide fulltext access to the works of their faculties without maintaining their own on-site repository. See, e.g., , (last visited Feb. 18, 2008). See generally Mark Sutherland & Peta Hopkins, Open Source or Off-the-Shelf: Establishing an Institutional Repository for a Small Institution (2006),

110 (last visited Feb. 18, 2008). In her discussion of variations in disciplinary practices regarding distribution and sharing of documents, Borgman notes that few of the social sciences have the resources to invest in large scale disciplinary repositories. See Borgman, supra note 101, at 207

111 (last visited Feb. 18, 2008).

112 At present, however, neither repository provides the sorts of opportunities for collaboration and comment provided by law review companions and other short form legal publications. See Beth Simone Noveck, “Wikipedia and the Future of Legal Education,” 57 J. Legal Educ. 3, 3–4 (2007) (describing how SSRN's policy against including links to wikis or other outside sources in the abstracts for posted papers changed the author's plans for using her draft article as the basis for readers to share experiences about using wikis in law teaching).

113 Although it did not occur in the searches for these articles, Google searches for law journal articles sometimes turn up links to SSRN that lead to abstracts for the article on the SSRN site, but to the full text. Occasionally, the abstract pages list download counts for the article, suggesting that the full text had been posted to SSRN, but was withdrawn from the repository when the paper was accepted for publication in the journal.

114 See supra, note 32.

115 SSRN hosts working paper series in law for about 20 law schools or other legal institutions outside the U.S.

116 See SSRN's Objective and Commitments to Users (Aug. 2007),

117 See Adam L. Penenberg, “Time to Kill the Embargo” (Dec. 23, 2004),

118 On December 17, 2007, the Scientific Council of the European Research Council (ERC) released an open access policy requiring that:

all peer-reviewed publications from ERC-funded research projects be deposited on publication into an appropriate research repository where available, such as PubMed Central, ArXiv or an institutional repository, and subsequently made Open Access within 6 months of publication.

ERC Scientific Council Guidelines for Open Access (Dec. 17, 2007), available at In January, 2008, the United States enacted legislation stating requiring that: all investigators funded by the [National Institutes of Health] submit or have submitted for them to the National Library of Medicine's PubMed Central an electronic version of their final, peer-reviewed manuscripts upon acceptance for publication to be made publicly available no later than 12 months after the official date of publication.”

Consolidated Appropriations Act of 2008, Pub. L. No. 110–161, § 218, 121 Stat 1844, 2187

For new developments on matters of open access publishing, see Open Access News: News from the Open Access Movement,∼peters/-fos/fosblog.html (last visited Feb. 18, 2008).

119 SSRN also publicizes lists of its most frequently downloaded papers. See Top 10 Papers for Legal Scholarship Network, (last visited Feb. 18, 2008).

120 Association of American Law Schools, Model Author/Journal Agreement para. 2.b.iii (May 18, 1998) (Deans Memorandum 98–24),

121 See supra text accompanying notes 93–94.

122 Although both SSRN and bepress are “.com” sites, SSRN's stated objective “is to provide worldwide distribution of research to authors and their readers and to facilitate communication among them at the lowest possible cost.” SSRN's Objective and Commitments to Users, supra note 116; bepress's mission statement says that its “portfolio of products and services … reduces the costs of, and barriers to, access.” Berkeley Electronic Press, Mission Statement, (last visited Feb. 18, 2008).

123 They are: the Duke Law Journal (1951-); Law & Contemporary Problems (1933-); the Alaska Law Review (1984-); the Duke Journal of Comparative & International Law (1991-); the Duke Environmental Law & Policy Forum (1991-); and the Duke Journal of Gender Law & Policy (1994-).

124 They are the Duke Law & Technology Review (2001-), supra note 69, and the Duke Constitutional and Public Law Journal (2006-), (last visited Feb. 18, 2008) which publishes an annual print volume in addition to its electronic postings.

125 (last visited Feb. 18, 2008)

126 See supra text accompanying notes 91–94.

127 Totals for the Alaska Law Review exclude copies purchased by the Alaska Bar Association for distribution to its members.

128 See Legal Scholarship Network Research Paper Series, (last visited Feb. 18, 2008).

129 (last visited Feb. 18, 2008).

130 (last visited Feb. 18, 2008).

131 A search for “law” in the Registry of Open Access Repositories (ROAR), (last visited Feb. 18, 2008), turns up three active registered legal repositories in addition to that at Duke. Two run EPrints software; one uses DSpace. Two of the three are at law schools in the United States (the University of Georgia Law School, (last visited Feb. 18, 2008); the University of Maryland School of Law), (last visited Feb. 18, 2008). The other is in Africa at the University of Cape Town (UCT) Law Faculty. The UCT LawSpace repository “holds a selection of LL.M. Minor Dissertations in full text. Dissertations (including Ph.D. and Masters Dissertations), publications and conference papers will be added regularly.” (last visited Feb. 18, 2008).

132 The raw download figures should be treated cautiously. Our analysis of the statistical program used for the Duke repository suggests that it does a reasonable job at eliminating counts of spider-generated downloads, but any of a number of other automated processes could inflate the totals. Because of the difficulties in ensuring accurate counts, I present them here primarily to suggest trends and for showing the breakdown between U.S. and non-U.S. downloads. Because it is difficult to ensure accuracy, I have not provided the names of authors or titles of the papers. One source, with an interest in ensuring accurate download figures suggests that “By the end of 2007 …, without filtering, one out of every two logged downloads from academic sites will be made by machine or mistake.” See bepress Download Totals:

Numbers You Can Count On, (last visited Feb. 18, 2008).

133 Two papers deal with medical malpractice in individual U.S. states; the others with uses of presidential signing statements, the “filibuster” (a parliamentary technique used in the U.S. Senate), and measures for ranking U.S. law schools.

134 These papers deal with individual rights before the European commission, appearance regulation in the workplace, transaction cost economics, the history of drinking water, and the competitive structure of the accounting industry.

135 The use of the phrase “long tail” to describe this phenomenon is usually attributed to Chris Anderson, “The Long Tail,” Wired Mag. (Oct. 2004),

136 For a generally optimistic view of worldwide developments in access to information and communications technologies see World Information Society Report 2007: Beyond WSIS (2007). For information on efforts to improve bandwidth capacities for academic institutions in Africa, see The Bandwidth Consortium: Opening the Power of the Internet to African Universities, (last visited Feb. 18, 2008); IFC Invests in Landmark Project to Improve Telecommunications Access for 250 Million in Africa, Aug 2, 2007, But see Michael Wines, “Toiling in the Dark: Africa's Power Crisis, N. Y. Times, July 22, 2007, at A10; Ron Nixon, “Africa Offline: Waiting for the Web,” N. Y. Times, July 29, 2007, at BU. 1; Calestous Juma, Give African Universities Free Internet Access (Oct. 11 2007), See generally Ezra Ondari-Okemwa, “Scholarly Publishing in Sub-Saharan Africa in the Twenty-First Century: Challenges and Opportunities,” First Monday, Oct. 2007,; Y.Z. Ya'u, “The New Imperialism & Africa in the Global Electronic Village,” 99 Rev. Afr. Pol. Econ. 11, 16–17 (2004).

137 See, e.g., Subbiah Arunachalam, “Information for Research in Developing Countries-Information Technology, a Friend or Foe?,” 35 Int'l. Info. & Libr. Rev. 133, 135–137 (2003); Paul Tiyambe Zeleza, “Manufacturing and Consuming Knowledge: African Libraries and Publishing,” 6 Development in Practice 293, 296 (1996) (“basic infrastructural development is essential, and … in themselves the advanced technologies offer no magic solution to the challenges of information dissemination and scholarly communication facing Africa.”). See generally Ya'u, supra note 137.

138 See supra text accompanying notes 88–90.

139 Arunachalam, supra note 137, at 137. See also Lor and Britz, supra note 41, at 71–72.

140 Pippa Smart, “Increasing the Visibility of Published Research: African Journals Online,” Africa Today, Winter 2005, at 39, 42. For a discussion of the obstacles faced by authors from the South wishing to contribute to international journals in the sciences, see Johannes J. Britz & Peter J. Lor, “A Moral Refection on the Information Flow from South to North: An African Perspective,” 53 Libri 160, 163 (2003). See also Ondari-Okemwa, supra note 136.

141 Smart, supra note 140, at 43.

142 Diana Rosenberg, “African Journals Online: Improving Awareness and Access,” 15 Learned Publishing 51, 55 (2002). See also Britz & Lor, supra note 41, at 164 (“Local journals play an essential role in the ecology of scientific communication. They publish material which, while not necessarily of interest in the developed North, may be of direct relevance and utility to the country of origin and its neighbors.”).

143 See generally Smart, supra note 140, at 44–49; Rosenberg, supra note 142, at 52–55. Smart and Rosenberg were affiliated with INASP, the original sponsor of the AJOL project, at the time their papers were written.

144 See About SAFLII, (last visited Feb. 18, 2008).

145 Leslie Chan & Barbara Kirsop, “Open Archiving Opportunities for Developing Countries: Towards Equitable Distribution of Global Knowledge,” Ariadne (Dec. 2002), See also Arunachalam, supra note 137, at 140–142; Lor & Britz, supra note 41, at 72.

146 See supra text accompanying note 103.

147 Chan & Kirsop, supra note 145.

148 Open Access Leadership Summit, (last visited Feb. 18, 2008).

149 See Allison Fullard, AHERO: Harvesting for Access (Nov. 20, 2008), (describing the development and programs of African Higher Education Research Online, the “1st OA disciplinary repository in Africa”); Hussein Suleman, Institutional Repositories: Why They are Important for African Research (Nov. 21, 2008),; Susan Veldsman, Africa: Setting up Institutional Repositories (Nov. 21, 2008), (describing's repository programs, which have led to development of 96 institutional repositories in 20 developing countries, including 13 in Africa).

150 See Duke Law Journals, (last visited Feb. 18, 2008).

151 See Gene Koo, Harvard's Open Publishing Policy and the Outlook for Law Schools, (Feb. 19, 2008).

152 See Peter Suber, “Journals: Please Post Your Access Policies,” SPARC Open Access Newsletter, Nov. 2, 2004,∼peters/fos/newsletter/11-02-04.htm#postpolicies.

153 Willinsky, supra note 1, at 104–105.

154 Darch, supra note 15, at 12.

* Richard A. Danner © 2008. Based on papers presented at the program: “Open Access Law, Free Legal Information, Democracy, and Human Rights” at the IFLA General Conference Council 73rd World Library & Information Congress, Durban, South Africa, August 19, 2007; and at the Starr Workshop on Tapping into the World of Electronic Legal Knowledge, Cornell Law Library, Ithaca, N.Y., U.S.A., October 10, 2007.

** Rufty Research Professor of Law and Senior Associate Dean for Information Services, Duke Law School, Durham, N.C., U.S.A. Thanks to Amanda Barratt, James Boyle, Michael Carroll, Tom Bruce, Gene Koo, Terry Martin, and John Willinsky for their comments on earlier versions of this article, and to Katherine Topulos for her research assistance.

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