November 20, 2003
Missteps @ Cal. L. Rev.
Posted by Gordon Smith

If you are not a lawyer or part of the legal academy, you may be surprised to learn that most legal scholarship is not peer reviewed, at least not in the traditional sense of that term. Our premier scholarly journals are edited by our students. While there are some advantages to this system (e.g., our articles are published much more quickly than articles in most peer-reviewed journals, and reviewer conflicts and machinations are eliminated), the disadvantages are significant. Law students who run these journals -- for one year terms, mind you -- show repeatedly why they are out of their depth. The latest evidence comes from the California Law Review at Berkeley.

Over the past few years, the Social Science Research Network has become the preferred method for law professors (and professors in other social sciences, particularly economics and finance) to distribute working drafts of their papers. From a consumer's standpoint, it is an incredibly useful and efficient means of obtaining the latest research. From an author's standpoint, it provides a means for reaching audiences previously unavailable through traditional law review publication.

Apparently concerned that their royalties were being impaired by this free service, the California Law Review recently asked its authors to remove their papers from SSRN. One of the authors, Dan Hunter of the Wharton School, decided not to take this request lying down. He composed the following letter (reprinted with Dan's permission) to the editor-in-chief of the California Law Review. I join whole-heartedly in Dan's views:


An Open Letter Protesting the Removal of Publicly-Accessible Online Documents

I write to you regarding the status of draft papers on the Social Science Research Network (SSRN) which the California Law Review has subsequently published. You have requested that any drafts on SSRN be removed upon publication by your journal. I ask you to reconsider your decision.

I take the unusual step of laying out here all of the details of this matter, since I want some greater record of the situation than email affords. I also intend to circulate this letter to other stakeholders in your decision in an effort to have them encourage you to change your decision.

My apologies for repeating information of which you are already aware.


I have, over the last three years, agreed to publish three articles with the California Law Review. Two articles � �� and �Cyberspace as Place and the Death of the Digital Anticommons� � have been published with your journal and one other article � �The Laws of the Virtual Worlds� (written with F. Gregory Lastowka) � is to appear in your January 2004 issue. In agreeing to publish with you I have not made any amendments to your standard form publishing contract which provides, inter alia, for an assignment of copyright in the articles to your journal.

Prior to publishing with any journal, in order to make my work known to the academic and general community, I post drafts of my articles on the Social Science Research Network. This network, as you know, makes academic work freely available to the public for download, and provides a number of other reputational benefits for faculty members and academics. First, it provides a simple, online, publicly-accessible repository for academic literature in the social sciences. Second, it provides a notification service by email (for subscribers) of newly deposited work, arranged by discipline and specialty. And third, it provides an indication of the number of downloads for any given paper, so that authors might gain an indication of the popularity and significance of their work. So important is SSRN as a repository that I know of no researcher in my area (cyberlaw and intellectual property) who does not post there, and who does not use it as the basic online source for drafts of their work.

On November 6, 2003 you emailed me indicating that you had requested the removal of the drafts of my papers from SSRN. You allowed that abstracts of the articles might remain on SSRN, but suggested that if the members of the public were interested in reading the article then they should be directed to the commercial database providers, Westlaw, Lexis, and Hein Online.

By return email I asked you (1) whether I was being singled out for special attention, (2) why you were taking this action, since it seemed so counter-intuitive, and (3) whether you have commercial relationships with the three commercial publishers whom you mentioned in your earlier email.

On November 7 you responded that all authors were being treated in the same way. You also provided the basis for your decision:

�The reason we have this policy--which most other major law reviews share � is that we want to give our authors the chance to make drafts of their articles available during our long publication process, but we also want people to read the final versions of the articles, once published, not drafts and we want them to do it in a way that keep our revenue flowing. We get no funding from our law school (outside of space) and almost all our revenue comes from our contracts with electronic subscriber databases (e.g. Lexis), not from our print issues, and often on a "per hit" basis. That's the rationale behind our policy and our enforcement of it.�

Your Decision

With all due respect to your decision-making processes can I suggest to you (1) that this is a decision that fails on its own terms, (2) that it is a decision that means that you are using the position of the California Law Review to assist commercial interests, and (3) that it is a decision that places the California Law Review squarely against the widespread social movement seeking to unlock public access to information.

First, the decision appears to fail to meet the interests which you provide as justification for your decision. Your argument supposes that SSRN is a commercial competitor to legal database providers like Lexis or Westlaw. I would be interested to hear of any empirical evidence you have of this, but it is surely unlikely. The subscribers to online legal databases are largely confined to law firms and law schools. Since law schools have free access to these services, then the only meaningful market for commercial legal databases is in law firms. The articles on SSRN are in pdf format and therefore not fulltext searchable, and moreover they are generally preliminary drafts. Your argument therefore is that practicing attorneys will spend hours searching through the SSRN database for unfinished articles in preference to the easily-searchable, published version on the commercial databases. Even given the ridiculous sums charged by these providers, it is entirely implausible that SSRN competes with Westlaw/Lexis/Hein in this market.

Second, there is the issue of your capture by the commercial providers. On the face of it, your decision to remove my drafts cannot help but appear to be motivated by the interests of the commercial online database providers. Even if you are happy acting as the stalking horse of these commercial interests, the practical effect of your actions is to remove public access to information. Thanks to you, if people want access to my ideas then they can pay Westlaw or Lexis or Hein monopoly rents to get it. This was literally your suggestion in your first email message. You said that my articles were ��available through a number of online subscriber services, including Westlaw, Lexis, and Hein Online, and we encourage you to direct interested readers to these services.� You�ll have to forgive me if I think that this is the single most appalling statement I have ever heard from a law student. You may be happy with the idea that the general public cannot access my ideas without paying for them, but I think it is outrageous.

Finally, it is remarkable that you are seeking to reduce public access to material published in your journal at a time when other law schools and universities are championing greater public access to information. Harvard Law School is pushing open source legal materials, and Stanford Law School has created the Creative Commons, to name but two. It is ironic that computer scientists at Berkeley created the backbone of the Internet � bind and sendmail, for example � and gave it away for the betterment of all. Law review editors at Berkeley, on the other hand, appear to be committed to improving the quality of the cigars in the boardrooms at Lexis and Westlaw.

Congratulations. You must be very proud.

My Response

I consider this issue to be one that goes beyond my specific situation. I happen to be unusually sensitive to the effect of your decision, since I have published with you multiple times, and I am an untenured professor who is particularly attuned to the reputational benefits of SSRN. Moreover my speciality is in cyberlaw and intellectual property, and I am professionally opposed to locking up information behind the walled gardens of commercial database providers.

I believe this to be a matter that affects the public access to ideas which are published in law reviews across the country. I am therefore going to take the following actions:

1. I will not submit articles to the California Law Review while you have the current policy in force. Moreover, I will do everything in my power to organize a submission boycott of your review by other law professors while you have the policy in force.

2. I will circulate this letter to your Dean and the Deans of other law schools, in an effort to encourage them to set a policy of open access to ideas generated within law schools.

3. I will take this issue up with the American Association of Law Schools, the
professional association of the legal academy, for the same reason.

4. I will advertise the policy of the California Law Review as widely as possible within the open-access community, so that the general public might be made aware of your actions.


May I say, in closing, that I wish that this letter were not necessary. I have enjoyed publishing with the California Law Review. In each case you have been professional, and extraordinarily hard-working. Your efforts have clearly improved the quality of my work. (Indeed the bitterest irony in this matter is that the draft articles available on SSRN are inferior to the final published work, thanks to the work of the editors at the California Law Review). It genuinely pains me that, in the same week in which I sent you the final edits on my latest article, I should be forced to write this letter to you.

However, your decision is profoundly wrong-headed and is corrosive to the wider social interest in broad public access to information. Your decision is indicative of a wider problem within the American legal academy. This problem is one that must be stopped before you allow commercial considerations to obliterate public access to legal ideas.

I hope that you will reconsider your decision.

Yours faithfully

Dan Hunter
Robert F. Irwin IV Term Assistant Professor of Legal Studies
The Wharton School
University of Pennsylvania

UPDATE: Dan reports that the editors of the California Law Review have decided to defer a final decision on pulling material from SSRN until a meeting in Spring. He believes that pressure from the legal academic community was instrumental in their decision. Yeah!

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