“Open Access & Legal Scholarship” Revisited: Part I

In 2011, the TALL Quarterly published a brief article authored by John Bolan, Public Services Librarian at the Bora Laskin Law Library (University of Toronto). The article addressed the burgeoning open access movement for scholarly literature generally, with a focus on the lack and lag of open access literature within the discipline of law and potential areas of growth in the field. Bolan wrote, “As befits the field of law, there are, however, exceptions to the exceptions that are worth noting.” With more than 10 years since Bolan’s article was published, this post reviews the exceptions highlighted as potential areas of growth and summarises developments of open access legal literature in the Canadian context over the past decade.

1. CanLII

“The efforts of various LII’s to promote free access to primary materials shares many of the goals of the OA movement, if not its mantle.”

CanLII has been a revolutionary contributor for open access primary legal materials since the 1990s. They are a founding member of the Free Access to Law Movement, whose members provide and support free access to legal information and subscribe to the Declaration on Free Access to Law. One of the stated goals of the declaration is to:

“To help each other and to support, within their means, other organisations that share these goals with respect to: […] Academic exchange of research results.

To meet this goal, CanLII has established several programs including CanLII Connects, a commentary specific platform, and most recently the CanLII Authors Program. All items are open access and wide ranging in source type. CanLII Connects provides an opportunity for user generated content, often in the form of case summaries. The commentary platform was introduced in 2017 and includes books, articles, reports and research papers, journals, newsletters, and conference proceedings. The CanLII Authors Program was introduced in 2018 and allows legal professionals to submit their work for publication directly via CanLII. This program has resulted in the inclusion of eBooks and articles and promotes their discoverability and utility, as well as colocation of any primary sources available on CanLII through embedded hyperlinks. Authors are not asked to assign copyright, are permitted to publish the work elsewhere, and a Creative Commons license is suggested to encourage others to use and develop the work.

As of 2021 they had over 20 000 pieces of commentary available.

2. Commercial Repositories: SSRN & bepress

“Commercial repositories of law related articles like the Social Science Research Network and the Berkeley Electronic Press Legal Repository represent increasingly popular functional equivalents of official open access repositories.”

SSRN and bepress were both founded in the 1990s as small repositories for preprints, working papers, and other unembargoed, non-infringing academic literature. Their initial missions were aligned. They had visions of increasing the dissemination, discovery, and impact of scholarship to enhance the workflow and productivity of academic publishing. Essentially, they showcased legal scholarship (as well as other scholarship from other disciplines) online for free, with a subset of business models such as subscription-based notification systems, to generate revenue. SSRN is a preferred repository for open access publishing of legal scholarship by many legal scholars in Canada. Bepress as a repository platform is currently used by approximately 4 law schools in Canada for library-led collecting, curating, and showcasing of institution-affiliated works, but is significantly more popular in the US.

Elsevier, part of the RELX conglomerate, acquired SSRN in May of 2016 and bepress in August of 2017. Elsevier’s acquisition of bepress and SSRN brought concerns about the intentions of a large commercial entity and potential disruption to these platforms’ open access mandates. The copyright policy of SSRN did not change upon the acquisition, but having more resources available to monitor cases of infringement may have resulted in more consistent enforcement. Overall, Elsevier has seemingly maintained the same standard of openness and instead prioritised data analytics. Open scholarship generates valuable data and data is the trending currency for the knowledge economy.

While the injection of Elsevier’s cash flow into open access repositories has resulted in the development of infrastructure for scholarly communications generally, it would be wise to consider ongoing and future policy and governance issues around data collection. The commodification of individual author specific metrics gathered by Elsevier through bepress and SSRN is troubling. Metrics from commercial entities perpetuate the inaccurate idea that citations are the most prestigious impact a scholar can have. Universities should be wary of overreliance on this data, particularly for hiring, promotions, and tenure procedures.

3. Increase in Interdisciplinary Legal Scholarship

“Given OA’s worldwide momentum one can expect (and hope for) OA to gain resonance in legal studies moving forward, particularly in light of the increasingly interdisciplinary nature of legal scholarship.”

Interdisciplinarity has been a buzzword for as long as I have been in and around academia and, presumably, much longer. While I am not sure how to prove that interdisciplinary legal scholarship has increased without doing a survey of legal scholars, it follows the logic that if other disciplines were further along in adopting open access publishing and legal scholarship has seen advancement, there has been an increase in open access interdisciplinary publication.

The Tri-Council funding agencies released an Open Access Policy in late 2016 with the statement,

“As research and scholarship become increasingly multi-disciplinary and collaborative, both domestically and internationally, the Agencies are working to facilitate research partnerships by harmonizing domestic policies and aligning with the global movement to open access [emphasis added].”

The Tri-Council also requires researchers who receive funding make their work freely accessible within 12 months of publication. Canada saw 30% of its research published as OA in 2021. This statistic is not specific to legal scholarship, but it speaks to the likelihood of increased open access in the discipline as a result. Further, SSRN and bepress have metadata classifications specific to law and politics, law and economics, law and society, etc. indicating there is enough scholarship to require such classifications.

4. Access to Justice

Perhaps the impact of OA on legal scholarship will depend in part on the extent to which access to legal literature is seen as an issue of access to justice.”

CanLII has taken the lead on ensuring open access to primary and secondary sources have been considered in the access to justice debate. I think there are many other opportunities for access to justice to support open access initiatives for legal scholarship and this area will continue to see growth through communities such as the National Self-Represented Litigants Project and the National Trusted Intermediaries Legal Information Network.

Unidentified contributors to the open access movement in legal scholarship are, of course, law faculty, students, and librarians. Many faculty-published law journals (often run by students) have adopted their own websites or used platforms such as Online Journal Systems (OJS) to make their articles open access upon publication. There has also been a shift towards Open Educational Resources (OER) in law to improve access to textbooks and course-packs specific to cost, currency of content, and student engagement.

Clearly open access legal literature has seen significant growth and development over the past decade. While these advancements are notable, it may be worth considering why they have occurred identify areas for further growth and improvement. I’ll address these points in Part II.

The post “Open Access & Legal Scholarship” Revisited: Part I appeared first on Slaw.

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