Re: the purpose of law reviews?

"Earl H. Merry" writes:

:
:
: While reading Posner's Problems of Jurisprudence I am constantly
: stymied by the fact that I don't have access to Lexis-Nexis or
: WESTLAW. I work for a small software company and can't justify
: even asking for such an expensive resource right now. Everytime
: I see a footnote that interests me (often) I go to the Web and try
: to find the work cited: Often to no avail. =;-(.
:
: Can anyone on the list enlighten me as to the reasons why law review
: articles are not available online for free? My Alma Mater, UGA LAW,
: has <bold>NO</bold> access whatsoever. A quick and insignificant
: check of other Law Reviews and reveals <bold>AT MOST</bold> sporadic
: coverage.
:
: I would like to believe that the phenomenon of free peer-reviewed
: publishing, see e.g. Steven Harnard's article at
: http://www.dlib.org/dlib/december99/12harnad.html, in the scientific
: peer-reviewed world might have similarities that lawyers and legal
: academics can benefit from. For example, the primary purpose of both
: peer reviewed journals and law reviews seems to me to be the
: advancement of knowledge.
:
: The 2nd circuit, which as all on the list know is a force to be
: reckoned with and followed areas copyright, has ruled in Tasini that
: when free-lance authors granted serial publishing rights to media
: businesses, those authors reserved the duration of their rights which
: includes the right to license their works for digital publication. see
: http://www.nwu.org/tvt/tvthome.htm.
: Does anyone have an opinion on how this impacts the availability of
: law review material?
:
: I understand that law reviews might have to cover expenses, but I
: really doubt that the sales revenue they generate is significant.
: Correct me please if I am mistaken. Am I missing some
: large expense other than theactual cost of publication?

I am sure that with one--or maybe up to five--exceptions you are correct that the issue is not one of the revenue generated by sales.

The problem is in part that law reviews are edited by students who will serve for at most two years and do not have the authority nor the ability to enter into new publishing arrangements, while the law schools tend to be techologically incompetent and to have neither the interest nor the ability to put the materials in their law reviews on line.

A more serious part of the problem is that Lexis and Westlaw supply their services for free to law students and law faculties---just the way dope peddlars give away free samples---so that most law students and most law professors never think of the fact that the public does not have access to the legal literature. This part of the problem applies not only to public access to law review articles, but to public access to law cases and statute law.

Although more and more authors of law review articles---especially in areas like computing and the law---do arrange to put their articles on line, a final aspect of the problem is that there is no central archive of law review articles nor is there a central index pointing to the articles that are on line.

I do not think that copyright has anything to do with the problem, but I do think that lots of us may have a good cause of action against Lexis and Westlaw for publishing electronic copies of our articles without our permission. But, of course, like scientific authors, are interests are in being published, not in being paid royalties.

Could we perhaps develop a legal theory that would require Lexis and Westlaw to compensate us for infringing our copyrights by making out articles available to everyone?

That would still leave the problem that Lexis and Westlaw do a terrible job of archiving law review articles (and of cases). The scientist have an advantage when it comes to archiving decent copies of their articles on line, since many, if not most, scientific articles are written with EMACS and typeset using some version of the TeX typesetting software. That allows the articles to be published on the Web in PDF format.

Wouldn't it be nice of cases, statutes, and law review articles were all available on line in XML formats that could easily be converted to PDF or any other format that one wants to use for viewing?

--

Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists