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: Edjurist

More on Going Online with Law Journals.

By Justin Bathon

A week or so ago I wrote a post about Publishing 2.0 and about how the faculty of the Harvard University Faculty of Arts and Sciences voted to retain the copyright of their work so that it could be posted freely online.  At the time I advocated for electronic, peer reviewed journals as a possible way to meet both needs. Anyway, Mitchell Rubinstein at the Adjunct Law Prof Blog (who somehow manages to post much more frequently than I do and frequently on better topics - check out this one from a day or two ago on a student class rank case), picked up on it, agreed and disagreed (I am willing to conceded his point on advertising on electronic journals if that is undesirable - I am not a big fan of it either, but I was just suggesting it if money was the problem kind of thing...), but, more importantly, triggered my thinking further, which I posted in a comment response to his post. Anyway the comment became a bit long and convoluted, but I thought it was important enough to share here. So here is my response:

Thanks for the thoughts, and obviously I agree with your position that most should be available online and searchable by google's algorithms. Probably, the LII or a similar entity should house them in a database that is searchable in itself so that people wanting legal scholarship have a single resource to trust. Obviously, we are a long way from that happening, but we should be making movement in that direction and the more movement the better. But, there is a circle of law schools, publishers, law libraries that exists that generates dollars (funded by law student tuition and state allocations ultimately, if not by client billing). Clearly a lot of publishers and law schools have a vested interest in keeping this circle going, so it will be hard to break.

But, therein lies the true rub. Whose interest is being represented by continuing this system in its present form when possibly superior alternatives are available. Is the interest of the publishers and law schools superior? Or is the interest of the public superior? At this point, I would find it very hard to fathom an argument that the public's interest is served by keeping this offline. Even if you make the financial woe-is-me argument that some law journals would have to close in light of this new economic frame and thus the total amount of scholarship would be reduced (and the kids capable of contributing to that - something we need to remember)  -- I still think even in light of reduced scholarship and law journal positions, the public would be much better served (much, much better) if the remaining scholarship went online.

Consider the barriers to law. There are lots of barriers that an average person has in trying to understand how the law applies to him or her (believe me, I teach undergraduate, pre-service teachers - breaking down barriers to the law is what I do for a living). High on that list of barriers is the fact that the law is highly dispersed. On any given topic (say education, my favorite) there are hundreds of applicable statutes, thousands of applicable regulations and hundreds of thousands of applicable cases. Even assuming they somehow had access to this dispersed information (say they happened to live in the same town as a law library) how is the average person to set about understanding that morass in any meaningful way? How do they even know what to look for? Where do they start?

There are 3 major law journals in K-12 school law (South Carolina, BYU and West's Education Law Reporter). Those journals contain the best information the educational law scholarly community can offer. I know the educational law scholarly community and they are brilliant people with brilliant ideas. Those journal articles could really be helping teachers and the whole system condense, collate, and comprehend that morass of educational law. But, as it is, they are off limits to teachers (and most of the education system). In order for your average teacher to have access to that information, it has to be filtered through multiple parties. First the teacher has to take that problem to the principal, then the principal has to consider it important enough to pass along to the superintendent level, then the superintendent level has to consider that problem important enough to use the school attorney for, then the school attorney will get back to you in 3 days (for a price). This legal information obtained by the school attorney from a scholarly article (that one of my friends wrote) then has to pass back down the chain before it reaches the teacher. That is most frequently the basic filtering mechanisms that take place from the teacher's legal issue to the teacher getting an answer. Maybe it takes 3 days, maybe it takes 3 weeks. Maybe information is corrupted in the filter, or maybe it is not. Anyway, in light of the possibility of the teacher obtaining the necessary information in a matter of minutes, this whole filtering process looks rather silly (in today's world, our gut reaction to these multi-step, multi-filter, mutli-middle man mechanisms is distasteful - and this is no different). Of course I recognize that serious legal problems will still need to filter to the legal counsel, but there may be a whole host of minor ones that releasing the 3 K-12 school law journals could resolve or at least provide better information for. If nothing else, it gives the teacher the confidence to pursue the legal issue to the legal counsel to get the right answer ... instead of just making an uninformed judgment call. That could help, right? Better information in the hands of these street level bureaucrats would be good, that's the idea as I understand it, right? Now, imagine if we did that not only for education, but for health care, for bankruptcy, for traffic accidents, for insurance, for wills ... well, that would almost be like democracy in action ... right? If we say, honestly and literally, that ignorance of the law is no excuse, well, than anything to make the general population better informed is a good thing in a democratic society.  

In the end, I don't write scholarly articles for school attorneys. I write scholarly articles about educational law for the education system. Now, school lawyers are part of that education system, but so are principals, board members, policy makers, teachers, parents and even students. All of those members of the education system do not have access to the work that I spend hours and hours doing, which is incredibly frustrating to me (especially when I know I can post that same scholarly article here and get lots more readers). If there were no communication device capable of bridging that gap, fine, the school lawyer filter/chain is the best we can do and I can live with that. Before the net, that argument might have been plausible. But, given the communication device that does exist, to keep this information out of the hands of these end users is absolutely ridiculous and either an extreme case of laziness, ignorance, or if neither of those, than unethical.

I think eventually they will get around to it. As Web 2.0 savvy folks get into leadership positions at law schools, I think you will see more and more go online. So, it is not like there is no reason to hope. We are making progress, it is just excruciatingly slow. Meanwhile, when my teachers as me where they can find information on education law after they leave my classroom, I am going to continue to have to tell them not much is available and certainly nothing peer reviewed. I don't want to have to be making those same kind of statements at the end of my career.     

Full post as published by Edjurist on March 02, 2008 (boomark / email).