02 March 2005

Open Access

Over across the pond, the "open access" movement is steadily gathering steam. An item in today's Guardian indicates that there is an growing concensus toward archiving of academic materials on university-provided websites. This might resemble SSRN's system, or it might not. The stumbling block, as always, will be indexing; but that is primarily a technological issues, particularly if a central repository of abstracts becomes more available; again, this might resemble SSRN.

But is that really the only stumbling block? Actually, the real stumbling block—at least for lawyers—will be the law reviews at Columbia, Harvard, Penn, and Yale. More precisely, it will be their only shared product (no, not dead trees—that's a consequence, not a product): the Blue Book. Leaving aside the awkwardness form of citation to electronic materials required by the Blue Book (see, e.g., Rule 17.3.3)—that, I'm afraid, is a problem beyond anyone's control—there remains nonsense like this:

Citations to journals [and presumably to other materials, such as individual articles] that appear only on the Internet should include the volume number, the title of the journal, and the sequential article number. Pinpoint citations should refer to the paragraph number, if available.

There's our problem: pinpoint citations. This is in fact the real antitrust problem in publication of legal materials: That virtually everything requires a pinpoint citation. It's one thing to pinpoint cite to an actual quotation; I have no problem with that. However, freely available case law does not follow these rules, and does not provide adequate (or accepted, even by most of the courts that provide such material!) pinpointing. It's even worse with journals. Admittedly, the editorial process can—or at least should—result in refinement of the argument in question. It should also result in more-accurate pinpoint citation to other research sources, which itself creates an interesting bit of circular logic.

So, it's going to be interesting to watch this coming. And it's also going to be interesting to see how some of the more obstinate journals (such as the H______ L__ R_____) treat the potential copyright issues; or whether any of them have read or comprehended Feist. Or, for that matter, whether law journals care about treating law professors under the strictures of the law.