Michael Madison comments on the idea that an ethical obligation to publish in open access venues may emerge:
Larry [Solum] is right, but I think that there’s more to the story. Scholars aren’t going to give up the reputational benefits of publishing for prestige. An open access norm isn’t likely to stabilize, at least in law, unless both journal editors and authors somehow incorporate the prestige economy into the open publishing economy.
That’s not necessarily a Herculean task. Faculty know it. Students get it. At Pitt, I talked the other day with the current Editor in Chief, who reported to me that the number one topic of discussion for his board is how to improve the law review’s citation rank. How do you do that? Get the content out there. Allow authors to post to SSRN and BePress (which the law review does), and put its content on the Web in a timely way (which the law review knows that it needs to do).
Madison is that a conflict between recognition and open access is likely to slow open access publishing. If I can just add one more bit of information. It seems to me that the battle has already been won so far as student-edited law reviews are concerned. It just so happens that I currently have nine articles in production in nine different venues. Seven of the nine are student-edited law reviews, and all of these agreed to open access publishing. Because most of the top journals (including Harvard and Yale) facilitate open access, it seems unlikely that there will be many hold outs.
The more difficult arena today is the peer-edited serial, published by a University Press or a private, for-profit press. These publishers sell access to libraries and hence are more reluctant to permit open access. Although pre-publication of "drafts" is a partial solution, the norms of academic citation mean that access to the "final published version" is still quite important. This problem is a tough nut to crack, because the major academic publishers have built the infrastructure for subscription and "pay per download" sales of scholarship. They have no apparent incentive to open their databases, and strong incentives not to do so. On the other hand, authors are pressing for some form of openness, because authors want to be able to share their articles. Some academic presses have responded by providing authors with a "private" open access link–which they allow the author to post on their own website but not in a public database.
Read Madison and also Susan Crawford, whose post started this current round of discussion.