Check out What’s the Mission of Law Reviews? on Susan Crawford Blog. I was particularly interested in the following passage, which follow’s Crawford’s discussion of the Duke Law Journal’s open access policy:
Duke’s editor pointed out that law professors with offers from his journal who profess to have a deep commitment to open access will publish articles with journals that are higher in the pecking order but don’t put their articles online. So the profession needs to support the idea that open access is important.
It seems to me that we are coming close to the point where legal academics will begin to discuss the question whether there is a professional obligation to publish only in open-access venues. Although there may be room for reasonable dissent, I should think that almost all scholars can agree that scholarship should be available to all students and scholars throughout the world at the lowest-possible cost. The open-access imperative can be grounded on at least three ideas: (1) the idea that scholarship and the emergence of truth is an intrinsic telic good–an end worth pursuing for its own sake; (2) the idea that the creations of new ideas (a special form of information) is a public good in the economist’s sense (because ideas have external social benefits and ideas cannot be rationed through price mechanisms); and (3) the idea that the fundamental moral equality of persons supports the maximization of access on reasonable terms of all persons to the realm of scholarly ideas.
We are currently in a period of transition. Although many open-access venues for the dissemination of scholarship have begun to flourish (e.g., SSRN, posting of papers on personal webpages, and journal-associated open access sites), a large realm of closed-access proprietary-rights publication still exists. Although some law reviews post open access versions of new articles on the web (including many of the most prestigious venues), other journals (some law reviews, many peer-edited journals) do not.
I believe that the benefits of open access are so compelling that in the long run, some form of open access will be nearly universal–although I am more confident that this will be true of serials publication than of monograph publication. But even if this is true, we are now in a period of transition.
During this period of transition, scholars as individuals and scholarly institutions as collectives can determine whether the transition is a very long one or a relatively short one. Faculties can encourage affiliated journals (e.g. law reviews) to adopt open access policies. Individual scholars can publish in open access venues.
One particular way in which the transition can be facilitated is the development of an "open access" norm. Such norms are likely to emerge in particular disciplines first and then spread across disciplines and within academic institutions. In particular, legal academics (who have special "early awareness" of the issue) can begin to foster a professional norm against publication in closed-access, proprietary rights venues. Various technologies of norm building are available. One is public discussion and debate. Another would be the creation of a public vehicle for pledging or vowing to publish in open-access venues whenever that is possible. A third technique would be to engage in polite but pointed criticism of closed-access venues and those who publish in these venues.
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