Solum on Open Access Legal Scholarship

Lawrence Solum (that's me!) has posted Download It While Its Hot: Open Access and Legal Scholarship on SSRN. Here is the abstract:

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.

A central theme of this paper is that "disintermediation" and "open access" are crucially important to the future of legal scholarship.  I am, of course, very interested in comments, and have opened the comments feature for this post.

Comments

[Mark Spottswood]

A very enjoyable read. I think you are absolutely right about the virtues of short-form scholarship (not as a replacement for long-form, but as a very useful supplement to it) and about the importance of open-access.

I think, however, that disintermediation should be approached carefully. As you noted, there are real limits to the sophistication of search engines as search tools, and there is a very real possibility that a totally disintermediated world for scholarship would result in good work getting lost in the noise. I think that law review and peer editors serve really important functions in terms of verifying content and applying selection criteria that reduce search costs for scholars. Neither tool is perfect. And of course, tools like survey articles can work to provide subsitutes for editorial selection and review. But these sorts of substitutes are unlikely to serve as an adequate substitute for editorial review.

I think Alvin Goldman's thoughts on this subject are particularly useful (although he was writing in what has already become a radically different era of information technology). See Goldman, Knowledge in Social World, Ch. 6.

I think what is already emerging, and what is likely to be the norm going forward for quite some time, is a world combining some disintermediated scholarship by established people that gets read and respected, some disintermediated scholarship by unknown people that struggles to achieve recognition despite being of decent quality, due to search problems, and intermediated scholarship hosted by student or peer-reviewed journals that continues to be read because the editorial processes involved help to assure readers that it is of some utility.

But I suppose that in the end, we'll just have to wait and see.

[Max]

Prof. Solum,

I'll say this: as a practicing litigation and trial attorney (and not an appellate attorney), I have neither the time nor the inclination to read long-form, focus-audience approved articles hidden behind some expensive firewall. It's not because I don't care what some pointy-headed professor thinks -- I get some of my best arguments and ideas from pointy-headed professors. I just can't invest the time, money and energy into digging through what some editorial board thought was unique, not too controversial, and from a prestigeous enough author to publish in their little journal.

So, I read professor blogs, and I stay on top of the latest arguments. For instance, I have my fair share of cases alleging fraud. With your blog, I can see a new "the place of reliance in fraud" post and, presto, DIY CLE.