Legal Commentary

Scholarly articles should be freely available on the internet ? downloadable, without charge, at a click. And legal scholars should see that this happens for their articles.

Let?s face it. As academics, we are in an enviable position. Others pay us to engage in scholarship ? largely to write law-review articles. Our efforts are funded by tuition-paying students, alumni benefactors, and in many cases, the taxpaying public. It seems to me that the least we owe in return is making our scholarly articles available to everyone who wants to see them.

I would go so far as to say that I think there is something of an ethical obligation to do this.

Take you, for instance. You just finished the perfect law-review article:

The International Intersection of Intellectual Property and Constitutional Liberties in the Sports and Entertainment Industries: Implications for Race, Gender, the Environment, and Animal Rights

You?ve finally achieved your life-goal of being able to hit ?select all? on the ExpressO article-submission service. Now, are you really going to keep your carefully crafted masterpiece from the 99% of humanity that doesn?t have Westlaw, Lexis/Nexis, or a subscription to the Transnational Journal of Winter Sports Law?

If there is some good to be served by law professors writing scholarly articles, then that good is furthered by posting articles publicly. And if, as some argue, law professors are only out to obfuscate, confuse, and annoy, then those goals are necessarily furthered by public posting as well.

It turns out that I am not the only person who feels that it is important to make the fruits of research accessible. There is something of a movement specifically along the lines of what I am talking about. It?s called self-archiving. Yet it appears to be far more popular in the sciences than in the legal academy. I hope that changes.

Now wait a minute, you say. There is a potential copyright issue here, right?

Yes, there might be, if you signed over the copyright or certain exclusive rights to your publisher. But many law reviews are now putting a self-archiving right in their standard author agreements. And my sense is that most of those who don?t are open to the idea if asked. So if you are in the midst of law-review submissions right now, I urge you to try to secure the right to self-archive your work. And for articles you have already published without retaining the right to self-archive, why not e-mail the law review and ask for permission now. The worst they can say is no. And they will probably say yes.

Then, put your articles up on your webpage where people can get at them.