Legal scholarship: To print or not to print? (full article)

February 27, 2009Duke Law News

Feb. 27, 2009 — This week, a group of directors at 12 of the country’s top university law libraries publicly released a proposal for law schools to stop publishing law journals in print form. Conceived when the group met at Duke last November for the dedication of the J. Michael Goodson Law Library, the “Durham Statement on Open Access to Legal Scholarship” calls for law schools to rely on electronic publication in stable, open, digital formats.

“It’s something that we feel should be discussed, recognizing that each law school will decide how to proceed with it,” said Richard A. Danner, Senior Associate Dean for Information Services and Rufty Research Professor of Law. “The proposal is primarily aspirational at this point.” Among the motivating factors for the library directors’ statement, he said, were the strain the current economic downturn has put on law schools and law libraries, the cost to law schools of printing journals, and changing research norms. Also relevant, said Danner, is scholars’ interest in making — and their obligation to make — their scholarship widely available, an issue he explored in his article Applying the Access Principle in Law: The Responsibilities of the Legal Scholar.

Danner discussed the Durham Statement on Open Access to Legal Scholarship with Duke Law Magazine.

Duke Law Magazine: What was the genesis of the Durham Statement?

Danner: There are a number of things that have come together. First there is the growing importance of publishing law journals electronically, which is something we’ve done at Duke on our web site for more than 10 years. Duke has been the leader in electronic publishing, but we’ve continued to publish the journals in print as well.

Then there’s the idea of open access. When you publish your scholarship electronically and also make it freely available on the Internet, it is potentially available to people who won’t otherwise have access to it. Open access has the big advantages of taking your work internationally, taking it to scholars in disciplines outside law who wouldn’t see it otherwise, and creating new audiences or markets for it. It’s searchable on Google. Perhaps most importantly, open access makes scholarship more readily available to scholars in underdeveloped countries who can’t afford to buy print journals or the commercial databases through which they are available electronically. Scholars world-wide gain both access to new research and scholarship and the ability to participate in the discourse by posting their own works.

Many open access advocates believe that all scholars have an obligation to make their work as freely and as widely available as possible. Since the Internet makes it easy and inexpensive to post their works, scholars who are creating knowledge for benefit of the world should do all they can to make their work freely available.

What brings these questions to a head right now for law schools is the financial situation in higher education. Like all libraries, law libraries in particular have been for many years under pressure from administrators to cut costs. Libraries are expensive and are natural places where deans look for cost savings: “Since all of this stuff is available electronically, why do we need to spend so much money on the library now, when money is extremely tight?” Those are reasonable questions.

However, what should law libraries cancel? What do you stop getting and what do you stop doing? One thing we have control over in law is our scholarly literature. The journals in most other fields are published by commercial publishers, but in law most of our scholarly literature is published by us — by the law schools in law journals. By most counts, there are now over 570 student-edited journals published at U.S. law schools.

Law journals are published relatively cheaply, and cost comparatively little for libraries to purchase, but most law schools lose money publishing them because the market is so small — for many law journals, it is almost exclusively other law libraries at other law schools. So most law schools are losing money publishing journals in print and additionally, their law libraries are spending money buying those journals, processing them, binding them, and preserving them. It’s one area in which law schools have some ability to control costs and save some money on both the publishing and library ends of the process.

If law schools are in increasingly difficult times financially and if there’s some way we can control expenditures for this, how can we not consider reducing our reliance on print journals?

DLM: What are the implications of this proposal for law faculty?

Danner: It is important for law faculty to publish their work in the best journals they can for tenure and promotion, and to be recognized for their work. But, in reality their articles in most instances are probably not being read in the traditional print journal package, but rather in an electronic format on a screen, or in a printout from that version. New papers in law are posted on services like the Social Sciences Research Network (SSRN), often well before they appear in print, and are available in Lexis, Westlaw or some other commercial database, or for free on a web site as we do at Duke. Often, by the time it shows up in a print journal, the article it has already been read by those most interested in it.

All of these things, together, combine for at least some consideration of the question, “Why do we want to keep maintaining the print versions?” This is something that we feel ought to be talked about in each school, and decisions made about how to proceed.

DLM: What are the implications for law students? Journals are a big part of law school culture.

Danner: Being a journal editor is an important part of their legal education for many students. Law firms look at graduating students’ resumes to see whether they worked on a journal while in law school. But, granting the importance of the journal experience to law students, why must the journal published in print?

If you consider the educational and credentialing benefits for law students, it’s hard to figure out what would change were we to end end print publication. It might mean less work for students, if anything, in formatting and getting issues ready for printing. In electronic form, published scholarship can still look exactly like it does in print, and it can be printed on an article-by-article basis as needed. And electronic formats allow easy access to the texts of cited material and to video and audio. If you start deconstructing the process, what is the magic of print? It is nice to hold the issue that has your article. It’s nice to see your name spelled correctly in print. And print has served well as a means to preserve published scholarship. The Durham Statement makes it clear that a shift away from print must include a commitment to ensure that the electronic versions are preserved.

However, in many other disciplines, the most prestigious journals have remained print-based (though with electronic versions) and it has been difficult for all-electronic journals to be accepted as appropriate places to publish articles for tenure and promotion. In the long term, this is likely to be a transitional issue, but it could well apply in law as well as in other fields. The most prestigious law journals are more profitable than the rest and have fewer incentives to do away with print. As long as they stay in print, others will feel the need to as well.

DLM: Is moving to an electronic format suitable for all law journals? Could people still skim journals just to see what they are publishing?

Danner: If new issues are published on law school web sites, interested faculty can be notified when new issues are available and tables of contents can be skimmed online as readily as by thumbing through print issues. In addition, services like SSRN send out highly targeted subject journals to faculty. …You don’t have to browse through each issue of a general law review, such as the Harvard Law Review, or the Duke Law Journal, to find that one article that might be of interest to you, when the other three or four may not be at all.

These ideas might apply differently to symposium-based journals, such as Duke’s Law & Contemporary Problems. There are stronger reasons for publishing symposia in print form. They are valuable because they package new articles on specific topics that are useful together. But that is not the case with most journals. Why couldn’t a general law journal, such as the Duke Law Journal, publish electronically for most of its issues, and print only their symposium issues?

DLM: Tell me about Duke Law School’s pioneering experience in open-access publishing.

We’ve been putting our journals on our website since 1997. One of the things we were trying to do then was to use the Internet and other electronic tools to leverage what we were doing here at Duke in new ways. We bet that by making these articles available on line and accessible through search engines, someone outside of law doing scholarship on a subject such as gender issues or environmental policy would turn up an article in one of our law journals. They would learn about the journal, be interested, and pay more attention to it and to Duke Law in the future.

For our smaller journals, once we made them available electronically, their subscription numbers went up a little. … The numbers for the established journals, such as Law & Contemporary Problems and the Duke Law Journal have gone down over the years, primarily because libraries have stopped subscribing to more than one copy and law firms subscribe to fewer law journals than in the past. We don’t believe it is because we’ve put them on the web.

As other law schools began thinking about open access and the importance of making scholarship widely available, we were already there. Our experience with the journals provided the basis for what we started doing a few years ago — putting all of our faculty’s works, no matter where they were published, into our Faculty Scholarship Repository. It applies the same principles: The articles in the repository are available electronically in the same ways as our journals are, and can be found using whatever tools you use to do research on the web.

Our approach to electronic publishing supports the interests of our intellectual property faculty in the public domain and access to information. They all do a lot of work in this area, so promoting open access is an area in which it makes sense for Duke Law School to be a leader.

DLM: The Durham Statement proposes that the author should retain copyright in their works. Why did you and your colleagues include that provision?

Danner: In any discipline, including law, publishers prefer to take as many rights from author as they can because the works may be are valuable in unknown ways in the future. We understand the need for publishers to retain appropriate rights in what they publish, but we also believe there is a responsibility on the part of authors to retain the rights to make their works freely available electronically to audiences who might not otherwise have access to them.

DLM: What implications are there for academic publishing in general if law schools took the lead on phasing out print? The head of Duke University’s Scholarly Communication’s Office, Kevin Smith, also intimated that this might have wider implications for academic publishing.

Danner: Again, law is relatively unusual in that all scholarship is published by journals at law schools. But if the discipline of law favored electronic publishing, it would offer a model others could follow. Open access publishing in other disciplines is increasing, but it’s always under attack by publishing houses.
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