Volume 10 / Number 4 / Winter 2006

 

TRIBUTE TO OUTGOING DEAN JIM HUFFMAN

A Tribute to Outgoing Dean Jim Huffman, including comments
by Brian A. Blum, Edward Brunet, and John R. Kroger

 

  SYMPOSIUM: OPEN ACCESS PUBLISHING
AND THE FUTURE OF LEGAL SCHOLARSHIP

Foreword: Why Open Access to Scholarship Matters

Joseph Scott Miller

10 Lewis & Clark L. Rev. 733 (2006)

The Movement for Open Access Law

Michael W. Carroll

10 Lewis & Clark L. Rev. 741 (2006) 

Access to primary and secondary legal materials is a necessary condition for an attorney to provide effective representation, a client to receive such representation, a scholar or student to study the law, and a member of the public to understand and critique the law. The Internet enables quick, broad, and inexpensive distribution of law and legal scholarship. Despite the Internet’s potential to greatly increase access to legal materials, the copyright licensing practices of many legal scholars and legal publishers stand in the way of realizing the potential for open access to law. The Author demonstrates why the current situation is unsatisfactory and argues that society should further embrace the movement for open access law and allow for the free distribution of legal materials over the Internet.

The Author first outlines the origins and development of the movement for open access to law, beginning with a focus on the growth of increased access to primary materials. The Author then turns attention to legal scholarship, exploring the impact of law reviews on the legal environment in the United States, from the early days when law review articles were dismissed as the “work of boys,” to today when courts, including the United States Supreme Court, cite to law review articles regularly and periodically have adopted novel theories of law originating in such articles. Finally, the Author ties together the concepts of the established movement for open access to primary materials, the general open access movement, and the noted impact of law reviews. The Author concludes that the time is ripe for legal scholars and scholarly legal periodicals to fully join the movement for open access to law. Even though progress has been made in the movement, more work remains to be done before all legal scholars provide open access to their work for lawyers as well as other readers.

Open Access to Infinite Content (Or “In Praise of Law Reviews”)

Dan Hunter

10 Lewis & Clark L. Rev. 761 (2006) 

This Article is about legal scholarly publication in a time of plenitude. It is an attempt to explain why the most pressing questions in legal scholarly publishing are about how we ensure access to an infinity of content. It explains why standard assumptions about resource scarcity in publication are wrong in general, and how the changes in the modality of publication affect legal scholarship. It talks about the economics of open access to legal material, and how this connects to a future where there is infinite content. And because student-edited law reviews fit this future better than their commercially-produced, peer-refereed cousins, this Article is, in part, a defense of the crazy-beautiful institution that is the American law review.

The Economics of Open Access Law Publishing

Jessica Litman

10 Lewis & Clark L. Rev. 779 (2006) 

The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. Recently, we have seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they’ve attacked the viability of the open access business model.

If we are examining the economics of open access publishing, we shouldn’t limit ourselves to the question whether open access journals have fielded a business model that would allow them to ape conventional journals in the information marketplace. We should be taking a broader look at who is paying what money (and comparable incentives) to whom, for what activity, and to what end. Are either conventional or open access journals likely to deliver what they’re being paid for?

Law journal publishing is one of the easiest cases for open access publishing. Law scholarship relies on few commercial publishers. The majority of law journals depend on unpaid students to undertake the selection and copy editing of articles. Nobody who participates in any way in the law journal article research, writing, selection, editing and publication process does so because of copyright incentives. Indeed, copyright is sufficiently irrelevant that legal scholars, the institutions that employ them and the journals that publish their research tolerate considerable uncertainty about who owns the copyright to the works in question, without engaging in serious efforts to resolve it. At the same time, the first-copy cost of law reviews is heavily subsidized by the academy to an extent that dwarfs both the mailing and printing costs that make up law journals’ chief budgeted expenditures and the subscription and royalty payments that account for their chief budgeted revenues. That subsidy, I argue, is an investment in the production and dissemination of legal scholarship, whose value is unambiguously enhanced by open access publishing.

Open Access in a Closed Universe: Lexis, Westlaw,
Law Schools, and the Legal Information Market

Olufunmilayo B. Arewa

10 Lewis & Clark L. Rev. 797 (2006) 

This Article considers issues of open access from the context of the broader legal information industry as a whole. The structure and contours of the legal information industry have shaped the availability of legal scholarship and other legal information. The competitive duopoly of Lexis and Westlaw is a particularly important factor in considerations of open access. Also significant is the relationship between Lexis and Westlaw and law schools, which form an important market segment for both Lexis and Westlaw. This Article begins by considering the important role information plays in the law. It then notes the increasing industry concentration that has occurred over the last 10–15 years among legal and other publishers. This industry concentration is believed to have contributed to significant price increases for scholarly publications in scientific and other nonlegal fields. This industry concentration has potentially significant implications for questions of access, particularly in the current environment of increasing electronic dissemination of legal information. In addition to examining characteristics of the legal information industry, this Article also looks at the role of dominant players, such as Lexis and Westlaw, and the ways in which information dissemination has changed with the advent of electronic legal information services, including through new publication models such as SSRN and bepress. Consumers of legal information, including commercial users, law school users, and the general public are also considered, particularly with respect to the implications of legal information industry structure for questions of access to legal information in the digital era.

Download It While It’s Hot: Open Access and Legal Scholarship

Lawrence B. Solum

10 Lewis & Clark L. Rev. 841 (2006) 

This Article analyzes the shift of legal scholarship from the old world of law reviews to today’s world of peer reviews to tomorrow’s world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations between academics are expanding interdisciplinary legal scholarship and increasing the avenues of communication among legal scholars, practitioners and a wide array of interested laypersons worldwide. 

Open Access, Law, Knowledge, Copyrights,
Dominance and Subordination

Ann Bartow

10 Lewis & Clark L. Rev. 869 (2006) 

The concept of open access to legal knowledge is at the surface a very appealing one. A citizenry that is well informed about the law may be more likely to comply with legal dictates and proscriptions, or at a minimum, will be aware of the consequences for not doing so. What is less apparent, however, is whether an open access approach to legal knowledge is realistically attainable without fundamental changes to the copyright laws that would recalibrate the power balance between content owners and citizens desiring access to interpretive legal resources. A truly useful application of open access principles would require adoption of compulsory licensing regimes with respect to proprietary legal resources, and significant government subsidies as well. Because affluent individuals today are both more likely to gain access to information and more likely to have the resources to use it, this Article concludes that the open access construct currently does little to actually empower access to legal information. 

Open Access in Law Teaching: A New Approach to Legal Education

Matthew T. Bodie

10 Lewis & Clark L. Rev. 885 (2006) 

The concept of open access to legal knowledge is at the surface a very appealing one. A citizenry that is well informed about the law may be more likely to comply with legal dictates and proscriptions, or at a minimum, will be aware of the consequences for not doing so. What is less apparent, however, is whether an open access approach to legal knowledge is realistically attainable without fundamental changes to the copyright laws that would recalibrate the power balance between content owners and citizens desiring access to interpretive legal resources. A truly useful application of open access principles would require adoption of compulsory licensing regimes with respect to proprietary legal resources, and significant government subsidies as well. Because affluent individuals today are both more likely to gain access to information and more likely to have the resources to use it, this Article concludes that the open access construct currently does little to actually empower access to legal information.

The Idea of the Law Review: Scholarship, Prestige and Open Access

Michael J. Madison

10 Lewis & Clark L. Rev. 901 (2006)

This Essay is a rigorous and serious account of how the current economy of academic legal publishing thwarts efforts by authors and journals to supplant that economy via open access publishing and distribution models. Law professors, law schools, and universities generally like the system as it is. Instead, the Essay argues that open access models must complement that economy, rather than supplant it.

 

ESSAY

An Essay on the Challenges of Drafting a
Uniform Law of Software Contracting

Maureen A. O’Rourke

10 Lewis & Clark L. Rev. 925 (2006)

This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political issues that destined other efforts to disappointment. By incorporating lessons learned from the earlier efforts, Dean O’Rourke hopes that the Principles project will prove more successful.

 

  NOTES AND COMMENTS

The Domestic Role of the Military in America: Why Modifying
or Repealing the Posse Comitatus Act Would Be a Mistake

Daniel C. Bennett

10 Lewis & Clark L. Rev. 935 (2006)

Since the attacks of September 11th, many long-held beliefs about the proper balance between civil liberties and the role of the government in protecting its citizens have been called into question. Now, in the wake of the devastating flooding of New Orleans brought about by Hurricane Katrina, an important bulwark of liberty has been called into question. The Posse Comitatus Act, a 19th Century law that limits the manner in which the United States military can be deployed and used domestically, has come under assault. Ostensibly because the Posse Comitatus Act unnecessarily limited the federal government’s options in the aftermath of Hurricane Katrina, there have been calls to examine and revise or eliminate the Act. Further, President Bush has suggested the possibility that the role of the military will need to be modified in order to combat the threat of an avian flu epidemic. This Comment argues that such a revision is not necessary to ensure federal flexibility in the event of a disaster, and that the Act promotes important values and provides essential protections, and thus should be left unmodified.

Shocking the Conscience of Mankind: Using International Law to Define “Crimes Involving Moral Turpitude” in Immigration Law

Nate Carter

10 Lewis & Clark L. Rev. 955 (2006)

Immigration law dictates that resident aliens shall be removed upon conviction of a crime “involving moral turpitude,” but does not define “moral turpitude.” Courts and administrators have attempted for the last century to provide such a definition, but have largely failed due to a lack of objective criteria for moral turpitude. This Comment proposes that, when identifying crimes involving moral turpitude, courts and administrators should use objective sources from international law in order to determine the universal social values which moral turpitude violates. The use of such objective sources would allow for more defensible applications of moral turpitude as a standard of removal.

Sex Offender Probationers and the Fifth Amendment: Rethinking Compulsion and Exploring Preventative Measures in the Face
of Required Treatment Programs

Merrill A. Maiano

10 Lewis & Clark L. Rev. 989 (2006)

Sex offenders are often subject to mandatory probation conditions, including treatment programs designed to help offenders control their impulses. These programs frequently require offenders to divulge information about their sexual history and to admit to sexual offenses for which they may or may not have been convicted. This Comment considers how this aspect of conditional release may implicate the Fifth Amendment by violating the privilege against self-incrimination, as illustrated by the Ninth Circuit’s decision in United States v. Antelope. It will also consider various alternatives available for achieving greater balance between the competing interests of protecting the Fifth Amendment right and promoting meaningful treatment programs. Ultimately, the author concludes that the legislature is best suited to resolve the issue.