The nascent open access movement in legal scholarship attracted a good deal of attention last fall, including from the three of us — Bill’s October roundup of recent law-blogger posts is still a good resource, and you can also find some pertinent stories through our open access and peer production tags. Legal scholars seem to be embracing open access publishing of scholarship, not only by posting their works on sites such as SSRN and BePress, but also by policing those sites’ commitment to open access principles.
Open access to primary source materials (cases, statutes, and the like) is a little more hit-or-miss, particularly below the federal court of appeals level and in many of the states, but strides have been made in this area, too. Opinions of the Supreme Court and the federal appeals courts are all available through their respective web sites and through some third-party sites like FindLaw, but we’re still waiting for an open access resource that even begins to approach the comprehensiveness of the large commercial legal databases.
This is unfortunate. One of the things I liked about the class Derek and I co-taught last spring is that we were able to dispense entirely with a textbook and rely entirely on online readings, some of which were updated mere days before the class in which they would be taught. It lent an air of immediacy to the course content that I think was particularly appropriate in view of the au courant subject matter. The day of doing that routinely and easily in a law school setting may still be a ways off (although some bold cyberprofs have taken the plunge), but it’s still an ambition of mine.
In the spirit of living up to my own principles, I made a couple of very minor contributions to the world of open access primary legal source materials in the fall. The process of preparing the handout for my fall IP survey course left me with electronic versions of several recent cases that I wanted to cover in class, so I picked a couple of them and put them online at Wikisource. Here they are: BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (a case I’ve briefly mentioned on this blog a couple of times); and Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004) (which I’ve blogged about here and here). I wrote up a short summary of the Gonzalez case for Wikipedia, and minimally edited this already very thorough entry on the Lexmark decision.
The question I’m interested in is: should I (and by extension, other law professors) do more stuff like this? It’s good to expand the pool of freely available content online, I suppose, and dashing off a quick Wikipedia entry after lunch takes a lot less time (and yields a lot more immediate results) than slaving away over a lengthy law review article. But do the benefits exceed the costs? The question strikes me as surprisingly difficult. Let me try to unpack some of the issues.
(1) Expertise, Part 1: Where Is the Audience? Last fall, Professor Suzanna Sherry delivered the 2006 Taft Lecture on Constitutional Law here at UC. It was a thoughtful presentation, although fundamentally wrongheaded in a number of respects. (Professor Sherry, among other things, drew precisely the wrong conclusions from Wikipedia’s Seigenthaler controversy, which in reality proved much more about the capability of peer published media to correct, rather than to promulgate, factual errors as compared with traditional media. But she is hardly alone in missing the key point of this story.) Professor Sherry’s basic point was that the very notion of expertise has been wrongly devalued as elitist, and that we do a disservice to the truth by trumpeting the virtues of resources (like Wikipedia) that don’t rely on experts to filter content before it is released into the world. The ideal world for Professor Sherry would be one in which Wikipedia has been supplanted by projects like Nupedia (Wikipedia’s own now-defunct predecessor) and Scholarpedia, sites in which editors’ expert credentials are inspected at the door.
We can readily quibble with overreliance on “expertise” as a necessary credential online; indeed, the internet’s hierarchy-leveling, democratizing influence carries many more pluses than minuses. Sometimes so-called “experts” are merely self-appointed experts, and the Web provides handy tools, not readily available in the offline world, for assessing their real worth. (Will you learn more about the present situation in Iraq from reading the Iraq Study Group Report, or from reading any given collection of posts by Iraqi bloggers? Sometimes the self-proclaimed experts can lead you astray.) Moreover, the track record of by-experts-for-experts sites is rather poor thus far; there’s presently at least as much evidence for the proposition that Scholarpedia is an embarrassment as for any other conclusion. But let’s assume for the moment that expertise is as valuable, and we should be valuing it, as much as Professor Sherry thinks. What does that mean for experts and the open-access movement?
SSRN and similar venues are, I think, channels for expert-to-expert communication. We law professors post our works on LSN with the hope and expectation that they will be seen by other professors and, perhaps, legal professionals. While every now and then some scalawag will garner absurdly inflated download counts by posting something that crosses over into the non-legal world in a big way, that practice is certainly the exception rather than the rule.
But experts, particularly (but certainly not solely) those of us who work at public universities on the taxpayer’s dime, have an obligation to share what we’ve learned with the world outside the academy, too. Public service is the one part of the university’s mission that reaches beyond the sometimes insular community of colleagues and students. As I’ve already suggested, engaging seriously with the university’s public-service function calls for a broader understanding of who our “audience” is, or should be, as legal experts. Embracing open-access principles for legal scholarship is fine as far as it goes, but it does very little to broaden access to (or understanding of) legal materials for the broader public, which is why, at the end of the day, it’s not enough.
If I’m a legal expert who believes in open access, then, it seems to me that I can’t limit myself to posting on sites like Scholarpedia that allow only experts to contribute content. The weakness of expert-only sites, which I think Professor Sherry doesn’t appreciate, has nothing to do with who the writers are, but with who the readers are. Expert-to-expert communications channels are already robust online (including specialized mailing lists and the like); communications channels between experts and non-experts are far less so. The reason to favor projects like Wikipedia over projects like Scholarpedia is: that’s where the people who aren’t already reading your writing are.
(2) Expertise, Part 2: What’s My Value-Add? On the other hand, there’s a much simpler problem with relying on experts to add content to Wikipedia and similar projects, and it’s again directly connected to the issue of expertise. To the extent that I have a unique competency to offer by virtue of my position, it lies not in description, but in analysis. Analysis, however, is exactly what Wikipedia (rightly, in my view) doesn’t want. Posting encyclopedia entries about particular court decisions is well and good to the extent that it makes the content of those decisions available to a wider audience, particularly if the encyclopedia entry strips out or intelligibly summarizes what may strike a lay reader as impenetrable legalese in the original text. But an encyclopedia entry makes a poor vehicle for evaluating the correctness of a court decision, or for tying multiple decisions together in an effort to illuminate the way that legal doctrines have developed. Encyclopedia-writing is far enough removed from the academic competencies of legal specialists that there’s reason at least to wonder whether it’s a worthwhile use of our time. Which brings me to:
(3) Institutional Support: Can You Get Tenure For It? There was an interesting discussion at last week’s 4th Annual IP and Communications Law and Policy Scholars Roundtable on the perceived value (or lack thereof) for junior faculty of focusing on writing books (including books intended for popular consumption) versus writing law review articles. The tenor of the discussion sounded an awful lot like the discussion, at last year’s Bloggership conference, of the career value of law professor blogging. The short answer, at both events, can be boiled down to: one must have a very good reason for stepping off the proven path to tenure. Blog, write popular books, contribute to Wikipedia; nobody is saying not to, but don’t expect to see such activities rewarded as scholarship. Time will tell whether that policy is shortsighted, but in the interim, spending lots of time contributing to the open access legal movement isn’t for the risk-averse.
So where’s the bottom line? My general sense is that, to the extent that I can add to the supply of primary source materials that are available online, it’s not a bad idea to do so, but not at the expense of producing more analytical or scholarly materials (such as this blog on the one hand, or law review articles on the other). It’s something I can imagine continuing to do as time permits, but despite my full agreement that the peer production phenomenon is worthy of acclaim and study, I can add my own contributions to the mix on at best a sporadic (and likely infrequent) basis. Would love to hear how other legal academics (particularly of the non-tenured variety) see it, however. Is anybody contributing to any of the Wikimedia projects (or other similar projects on other platforms) with any regularity?