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October 13, 2006


Patrick S. O'Donnell

Excellent points. An open access norm is becoming entrenched in the natural sciences and, it seems, is spilling over into the social sciences (the sciences being in prior possession of the epistemic rationale for its justification) . Thus the impetus toward open access is compelling. I would suggest readers take a look at the arguments of Peter Suber and Steven Harnad on 'open access' in general, and then think about how this applies to the legal world. Harnad and Suber have been persistently and often eloquently arguing and advocating for open access for some time now and seem to have the market on addressing the conceivable objections. Knowing my predilection for composing bibliographies, you'll not be surprised to learn that I would suggest looking over 'Open Access Bibliography: Liberating Scholarly Literature with E-Prints and Open Access Journals:' http://www.escholarlypub.com/oab/oab.htm

And of course the various strategies you mention here for norm building have been and still are being (successfully) employed in the sciences.


I completely agree with you. Peter Suber's open access blog is chronicling the exciting ways in which scholars in many disciplines are demanding an open access norm; there's a great discussion of anthropologists at the 10/8 link on this page:


Bruce Boyden

I think the quote in its original context makes sense, but the proposal or suggestion that a "professional obligation" to publish only in open-access fora be created seems premature or perhaps wrong-headed to me. The Duke editor's observation was simply that scholars who profess to have a deep commitment to open access publishing appear to act inconsistently with their professed belief-set when they choose to publish in a journal that does not make free online copies available.

I would draw a sharp line, however, between that observation and a proposal to make publication online and for free (morally?) obligatory. None of Larry's three grounds appear to me to accomplish that goal. The "idea that scholarship and the emergence of truth is . . . an end worth pursuing for its own sake" does not, it seems to me, make other goals (enhancing one's scholarly status; making money through a book contract) unimportant or not worth pursuing. Similarly, while new ideas may have some public good aspects to them, that is not generally thought to give the public a right to access them without the creator's permission. For example, I have a draft of an article I'm not ready to share (at least not widely) yet. Will I be violating some professional obligation in the future if I choose not to post that draft on the Internet? How is a decision to publish in a non-open-access journal morally different? I think the third ground fails for similar reasons. I share my draft only with friends or colleagues I know well. But if all persons share a "fundamental moral equality," then why do I not have an obligation to "maximize access on reasonable terms" to my unfinished draft? And if I can do that, why can't I make money (or status-enhancement) and not friendship the price of entry?

Patrick S. O'Donnell

I don't see how a commitment to publish in an 'open access venue' in any way denies, ignores, or trivializes other goals, such as enhancing one's scholarly standing or making money through a book contract. Indeed, it's not inconceivable, indeed, may be highly probable, that publishing in such fora might routinely serve to further such goals. In my own case, the reading of articles on SSRN or elsewhere has often prompted me to buy a book or two by the author, and we all know of articles freely made available that became quite popular, no doubt enhancing the author's scholarly status. There's nothing in the proposals I know of that suggest or entail someone should (or would be under an ethical obligation to) circulate their drafts to indiscriminate publics, so this strikes me as a red herring. Of course it's perhaps prudent for scientists to circulate accounts of their experiments, proposals, and tentative findings among their peers, given the nature of scientific knowledge, but that has to do with the epistemic conditions and virtues of scientific knowledge, not all of which are generalizable outside the field of science itself. What you do with your drafts is your business, it's the finished product that is thought worthy of being democratically accessible.... There are myriad means for enhancing one's professional status, and writing well-received articles will remain one of those. Similarly, there are many ways of capitalizing (literally and figuratively) on one's legal skills and knowledge, and publishing well-received books (including texbooks) does not seem likely to disappear in the near or distant future.

Stevan Harnad

See the discussion thread "The Special Case of Law Reviews" (started Nov 2003) on the American Scientist Open Access Forum.

The only question to ask about Law (or any other discipline) is: "Does maximizing the usage and impact of our research articles make any difference (to progress and funding of our research and advancing our careers) in our discipline?"

If not, then there is no need for Open Access in our discipline. But if so, then we too should mandate self-archiving.

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