On the Durham Statement

In November a group of library directors from well-known and respected law schools, meeting in Durham, North Carolina on the occasion of the dedication of the renovated law library at Duke University, adopted the “Durham Statement on Open Access to Legal Scholarship.”  The statement calls on law schools to stop printing their journals and instead to make a definitive version of them available online in a stable, open format.  Correspondingly, law libraries should stop collecting law school journals in print.  It further calls on the schools to make all their scholarship available online in repositories which the school operates by itself or in partnership with others.  It is fair to say the statement has generated some controversy.  Richard Leiter has made an impassioned plea for the preservation of the printed journal.  As I explained to many of our faculty two weeks ago, I am a signatory to the Durham Statement, and feel obliged to give my reasons for being such.

First and foremost, I am a proponent of the open scholarship movement.  The movement’s aim is encapsulated in the Budapest Open Access Initiative. Quoting, “Removing access barriers to this literature [scholarly research publications] will accelerate research, enrich education, share the learning of the rich with the poor and the poor with the rich, make this literature as useful as it can be, and lay the foundation for uniting humanity in common intellectual conversation and quest for knowledge. “Open access” means “its free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.” Note that the statement is referring to literature “which scholars give to the world without expectation of payment. Primarily, this category encompasses their peer-reviewed journal articles, but it also includes any unreviewed preprints that they might wish to put online for comment or to alert colleagues to important research findings.”

Law schools are about the business of making new lawyers, but most law school faculty are also involved in the tenure process, and as part of that produce articles, preprints and other scholarly research. (This is not the only reason law scholars publish – most continue to do so after being granted tenure.  My point is that in academia law faculty publish scholarship as much as other faculty do.)  By committing to open access, law schools would move toward the goals enumerated in the Budapest Initiative.  (For another open access statement, see the Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities.)

Limiting law faculty scholarship to printed law reviews denies easy access, and in many cases free access, to students, other faculty, and the public. Without schools themselves undertaking to publish online, the commercial services Lexis and Westlaw, and later in the process Hein, would be the primary and often only source of online access to the journals and their contents. Those of us sitting in a law school may assume easy access to the printed journal in the law library, but that is not the case for the rest of the potential readers, and there is no longer a rational basis for a school’s undertaking the costs of printing whole runs in paper when making the journal available online can be accomplished at the same, or in many cases, a lesser incremental cost. On this point, see the Budapest Initiative and Brian D. Angell and Gabie E. Smith, “Print Versus Electronic: Editors’ Insights on the Costs and Benefits of Online Journals,” 24 Journal of Technology Studies 55 (Winter-Spring 1998).  I am confident that for most law reviews published by most American law schools, the journal is not a profit center.  The publication of the journal is part of the school’s scholarly and teaching enterprise, i.e., distributing scholarly writing of its and other faculty and providing its students with the opportunity to read and edit that scholarly writing.  Schools can accomplish these aims with exclusively online journals as well as they can with printed ones.  (My purpose here is not to argue the paradigm of law school journals being edited by students, as compared to the peer review found in most other disciplines.)

Turning to the part of the call to action that the journals be published in an “open, stable, digital” format, while there is not yet a general consensus that such a format exists, this may be changing.  “Open” means a non-proprietary technical means that is available for all to use without legal or cost restriction.  “Stable” means permanence, a reliability that we can read the item in the future using commonly available technology.  Ink on non-acidic paper is considered a paragon of stability.  “Digital” means electronic binary format as used in modern computing and networking.  HTML is an example of an open digital format.  Adobe’s Portable Document Format (PDF) format began as a proprietary one but became open when Adobe transferred the protocol itself and the responsibility for its further development to the ISO in 2008. On June 1, 2009, Paul Lomio, editor of the Columbia Science and Technology Law Review, declared that the review was now in compliance with the Durham Statement, by publishing in the “relatively open PDF format.”

The Durham Statement includes the call to publish “the definitive version” of the journal. Some are concerned about how a reader will determine which version of an article in multiple online locations is the definitive one, similarly to how fans of the original Star Wars trilogy may argue with George Lucas about which edition is the true canonical one. I believe that in general deference to the author is appropriate, but in the case of an article submitted to a journal, the journal’s editor decides which version the journal itself will consider definitive. Once that decision is made, the journal’s online version can readily declare it to be the definitive version, and a several methods for authenticating that declaration exist, including the use of the MD5 hash or x.509 certificates. See John Joergensen’s excellent discussion of this at the VoxPopuLII blog.

Richard Leiter, noted above, argues for the intrinsic value of the printed journal as an object. Regardless of such value, printed journals are largely sitting unread on library shelves. Most researchers search online and whenever possible look at the source document online. Those who want a printed copy of the journal can be satisfied by the publisher making print copies at cost, on demand, or the reader obtaining a digital copy and ordering a printed version from a commercial service. Simply put, bookshelves of unread copies of printed law journals paid for twice by law schools – once as the publisher and once by the library – is an anachronism whose time has passed. Let us urge our library and faculty colleagues and our students to bring law review publishing into the present century.

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