Here’s the abstract for Corporate Speech and the First Amendment: History, Data, and Implications, ___ Constitutional Commentary ___ (2015) by Harvard law prof John C. Coates, IV:
This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.
Interesting. — Joe
Here’s the abstract for David S. Rubenstein’s Taking Care of the Rule of Law, George Washington Law Review, Forthcoming:
The multi-generation project of squaring the rule of law with executive governance is coming to a head. Hardly a week passes without commentators summoning the rule of law to pass judgment on the legitimacy or desirability of some executive action. But the more we talk about the rule of law, the further it seems to slip away. Rather than look to the rule of law for answers, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, the Article explains why even well-intended efforts to square the rule of law with trends in executive governance can be counterproductive. To anchor these points, the Article presents comparative case studies of President Obama’s and President Trump’s signature immigration policies and the rule of law debates surrounding them. The Obama-Trump juxtaposition offers a portrait of some disquieting trends, not only for presidential administration, but also in how we think and talk about the rule of law ideal. This Article intervenes with some prescriptions moving forward — including away from rule of law talk, and towards doctrines and institutional arrangements that could more effectively check presidential power.
In Days of Future Past: A Plea for More Useful and More Local Legal Scholarship (2017), Frank Bowman “describes how the population explosion in American law schools during the 1990s and the simultaneous rise of the U.S. News rankings mania created a kind of tulip bubble in legal scholarship – a bubble that is rapidly, and properly, deflating. I make several concededly retrograde recommendations for dealing with a post-bubble world, including changing law school hiring practices to favor professors with more legal experience than has long been the fashion, assessing scholarship more by effect and less by placement, and devoting more of our scholarly attention to questions of state law and practice.” From the abstract:
These suggestions all flow from the basic premise that we should more consciously encourage, even if we do not limit ourselves to, producing legal scholarship that has practical value to legal and business professionals and to policy makers at every level of American government. That premise, in turn, is based on the conviction that a modestly more pragmatic approach to the scholarly project is good for society and is, in any case, a sensible response to the parlous state of the legal education industry.
NB: This paper is one of a set emerging from a conference on “The Fate of Scholarship in American Law Schools” at the University of Baltimore in late March 2016. The entire set will be published as a book by the Cambridge University Press.
From the abstract of Heather Field’s A Taxonomy for Tax Loopholes, 55 Houston Law Review __, 2018 Forthcoming:
[T]his article demonstrates that people have widely divergent views about what tax loopholes are. Thus, people criticizing loopholes often talk past each other and engage in the tax equivalent of schoolyard name-calling. The response to this problem is not, however, to try to define the concept of “tax loopholes” with precision. Such an endeavor is pointless. Instead, this article provides a taxonomy for translating the rhetoric of “tax loopholes” into meaningful tax policy discourse. This taxonomy posits that any reference to a “tax loophole” should be understood in two dimensions — the tax policy objection and the target of the criticism. Using numerous examples from the popular/political discourse and the academic literature, this article catalogs alternatives on each dimension. Categorizing any purported “tax loophole” using this taxonomy provides a more productive framing of whatever critique is implied by any use of the “loophole” label, thereby enabling the elevation of the quality of the conversation about the individual tax preference. This taxonomy may be particularly useful now, as our political leaders embark on efforts to reform the tax law, because the taxonomy can help us better understand and advance the debate that will certainly surround those reform efforts.
Interesting. — Joe
In Legal Research in Search of Attention: A Quantitative Assessment, 27 King’s Law Journal 170 (2016) Mathias M. Siem writes
[T]he Social Science Research Network (SSRN) is a good platform to test which research is more or less appealing. In the study reported in this article, 1107 papers of SSRN’s Legal Scholarship Network were analysed in order to identify the main determinants of SSRN downloads, abstract views, and downloads per abstract views. This analysis fills a gap in the growing literature that deals with the impact of published research. It is also suggested that examining SSRN is important because its open nature reflects the general trend from offline publications in domestic journals to global availability of publications online.
Here’s the abstract:
In today’s world it is easy to make research publicly available by putting it online. But this improved availability raises the question how to produce research that actually gets attention. Bibliometrics can contribute to this debate. Based on a sample of 1107 papers of SSRN’s Legal Scholarship Network, this article finds that a short title, a top-20 university affiliation, US authorship, and writing about topics of corporate law and international law have a positive effect on downloads and/or abstract views. The article also reflects on the implications of these findings, in particular how they may be related to contentious attempts to identify what is “good” legal research through metrics and peer review.
The Berkman Klein Center for Internet & Society released a comprehensive analysis of online media and social media coverage of the 2016 presidential campaign. The report, Partisanship, Propaganda, and Disinformation: Online Media and the 2016 U.S. Presidential Election (Aug. 16, 2017), documents how highly partisan right-wing sources helped shape mainstream press coverage and seize the public’s attention in the 18-month period leading up to the election.
From the Executive Summary:
In this study, we analyze both mainstream and social media coverage of the 2016 United States presidential election. We document that the majority of mainstream media coverage was negative for both candidates, but largely followed Donald Trump’s agenda: when reporting on Hillary Clinton, coverage primarily focused on the various scandals related to the Clinton Foundation and emails. When focused on Trump, major substantive issues, primarily immigration, were prominent. Indeed, immigration emerged as a central issue in the campaign and served as a defining issue for the Trump campaign.
We find that the structure and composition of media on the right and left are quite different. The leading media on the right and left are rooted in different traditions and journalistic practices. On the conservative side, more attention was paid to pro-Trump, highly partisan media outlets. On the liberal side, by contrast, the center of gravity was made up largely of long-standing media organizations steeped in the traditions and practices of objective journalism.
Our data supports lines of research on polarization in American politics that focus on the asymmetric patterns between the left and the right, rather than studies that see polarization as a general historical phenomenon, driven by technology or other mechanisms that apply across the partisan divide.
The analysis includes the evaluation and mapping of the media landscape from several perspectives and is based on large-scale data collection of media stories published on the web and shared on Twitter.
Recommended. — Joe
From the conclusion of Kellen Funk and Lincoln Mullen’s The Spine of American Law: Digital Text Analysis and U.S. Legal Practice (July 12, 2017), American Historical Review (February 2018):
[W]e have shown how digital history can also operate by starting with specific historical questions rather than particular sources. We have shown how a collection of methods from computer science, including minhash/locality-sensitive hashing, affinity propagation clustering, and network analysis, along with the concept of text deformance from literary studies, can be used to good effect in tracking the changes in the law, as well as any other discursive field whose texts can be readily divided into sections. Finally we have shown how it is possible to work on different scales, using network analysis, visualization, and algorithmic close reading, and thus to gain both a broad overview of the law’s migration, as well as a highly detailed view of the changes in the law.
Here’s the abstract:
In the second half of the nineteenth century, the majority of U.S. states adopted a novel code of legal practice for their civil courts. Legal scholars have long recognized the influence of the New York lawyer David Dudley Field on American legal codification, but tracing the influence of Field’s code of civil procedure with precision across some 30,000 pages of statutes is a daunting task. By adapting methods of digital text analysis to observe text reuse in legal sources, this article provides a methodological guide to show how the evolution of law can be studied at a macro level—across many codes and jurisdictions—and at a micro level—regulation by regulation. Applying these techniques to the Field Code and its emulators, we show that by a combination of creditors’ remedies the code exchanged the rhythms of agriculture for those of merchant capitalism. Archival research confirmed that the spread of the Field Code united the American South and American West in one Greater Reconstruction. Instead of just a national political development centered in Washington, we show that Reconstruction was also a state-level legal development centered on a procedure code from the Empire State of finance capitalism.
A very interesting contribution to an emerging field of digital text history of law. H/T to beSpacific. — Joe
Here’s the abstract for A Psychological Profile of the Alt-Right by Patrick S. Forscher and Nour S. Kteily (Aug. 10, 2017):
The 2016 U.S. presidential election coincided with the rise the “alternative right” or “alt-right”. Although alt-right associates wield considerable influence on the current administration, the movement’s loose organizational structure has led to disparate portrayals of its members’ psychology. We surveyed 447 alt-right adherents on a battery of psychological measures, comparing their responses to those of 382 non-adherents. Alt-right adherents were much more distrustful of the mainstream media and government; expressed higher Dark Triad traits, social dominance orientation, and authoritarianism; reported high levels of aggression; and exhibited extreme levels of overt intergroup bias, including blatant dehumanization of racial minorities. Cluster analyses suggest that alt-right supporters may separate into two subgroups: one more populist and anti-establishment and the other more supremacist and motivated by maintaining social hierarchy. We argue for the need to give overt bias greater empirical and theoretical consideration in contemporary intergroup research.
The story is in The Scholarly Kitchen. It’s pretty stunning news, especially after the acquisition of SSRN and the controversy over licensing that occurred shortly after that takeover. So, is the fate of successful open-access scholarly archives to ultimately turn into arms of large corporations? —Mark
It can be argued that Congress has significantly more constitutional power than we are accustomed to seeing it exercise and that by failing to make effective use of its power, Congress has invited the other branches to fill the vacuum, resulting in a constitutional imbalance. Sharing this point of view, Josh Chafetz’s Congress’s Constitution, 160 University of Pennsylvania Law Review 715 (2012) “considers a number of constitutional tools that individual houses – and even individual members – of Congress, acting alone, can deploy in interbranch conflicts.” From the law review’s abstract:
Although the congressional powers discussed in this Article are clearly contemplated in constitutional text, history, and structure, many of them have received only scant treatment in isolation. More importantly, they have never before been considered in concert as a set of tools in an ongoing interbranch power struggle. This holistic perspective is necessary because these powers in combination are much greater than the sum of their parts.”
Borrowing terminology from international relations scholarship, this Article groups the congressional powers under discussion into “hard” and “soft” varieties. Congressional hard powers are tangible and coercive; the hard powers discussed in this Article are the power of the purse and the contempt power. Congressional soft powers are intangible and persuasive; soft powers considered by this Article include Congress’s freedom of speech and debate, the houses’ disciplinary power over their own members, and their power to determine the rules of their proceedings. Each of these powers presents opportunities for Congress to enhance its standing with the public, and thereby enhance its power. This Article aims to demonstrate both the ways in which these powers are mutually supporting and reinforcing and the ways in which Congress underutilizes them. In doing so, the Article examines a number of examples of congressional use of, and failure to use, these powers, including the release of the Pentagon Papers, the 1995–1996 government shutdowns and 2011 near-shutdown, the 2007–2009 contempt-of-Congress proceedings against White House officials, and the use of the filibuster, among others.
See also, Peter Shane’s When Inter-branch Norms Break Down: Of Arms-for-Hostages, ‘Orderly Shutdowns,’ Presidential Impeachments, and Judicial ‘Coups’. 12 Cornell Journal of Law and Public Policy, 503 (2004). — Joe
US Supreme Court Opinions and their Audiences (Cambridge UP, 2017) by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions. For more, the work was reviewed in the April issue of Law and Politics Book Review here. — Joe
About The Rise of Robots and the Law of Humans, Horst Eidenmueller (Oxford) writes
The main theses developed in this article are the following: (i) robot regulation must be robot- and context-specific. This requires a profound understanding of the micro- and macro-effects of ‘robot behaviour’ in specific areas. (ii) (Refined) existing legal categories are capable of being sensibly applied to and regulating robots. (iii) Robot law is shaped by the ‘deep normative structure’ of a society. (iv) If that structure is utilitarian, smart robots should, in the not too distant future, be treated like humans. That means that they should be accorded legal personality, have the power to acquire and hold property and to conclude contracts. (v) The case against treating robots like humans rests on epistemological and ontological arguments. These relate to whether machines can think (they cannot) and what it means to be human. I develop these theses primarily in the context of self-driving cars – robots on the road with a huge potential to revolutionize our daily lives and commerce.
The Volokh Conspiracy’s Jonathan H. Adler writes about a new paper by Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), The Legal Academy’s Ideological Uniformity, “[t]heir bottom line: The legal academy is significantly more liberal than the legal profession, which is notable because the legal profession itself is more liberal than the public at large.” Here’s the paper’s abstract:
We compare the ideological balance of the legal academy to the ideological balance of the legal profession. To do so, we match professors listed in the Association of American Law Schools Directory of Law Teachers and lawyers listed in the Martindale-Hubbell directory to a measure of political ideology based on political donations. We find that 15% of law professors, compared to 35% of lawyers, are conservative. After controlling for individual characteristics, however, this 20 percentage point ideological gap narrows to around 13 percentage points. We argue that this ideological uniformity marginalizes law professors, but that it may not be possible to improve the ideological balance of the legal academy without sacrificing other values.
In Law, Belief, and Aspiration, Arden Rowell examines the relationships between what the law is, what people believe the law to be, and what people aspire for the law to be. The article takes seriously the possibility that people do not know perfectly what the law is, and tests the hypothesis that people’s beliefs about the law may sometimes be better explained by people’s aspirations for what the law should be, rather than what the law actually is. Findings from the study:
The study finds that people often do not know the laws under which they live, even when they themselves believe those laws to be important. For example, 1 in 6 participants held inaccurate beliefs about whether their state has a state income tax; 1 in 4 participants held inaccurate beliefs about whether their state has a death penalty; 1 in 3 held inaccurate beliefs about whether their state has a waiting period for purchasing handguns; and fewer than half of participants knew whether they are legally required to report felonies. Somewhat disturbingly, participants were no more likely to know the law when they indicated that the topic was important, although they were more likely to know the law accurately when they felt confident about their knowledge.
Furthermore, when people’s beliefs about the law are inaccurate, they tend to assume that the law reflects their aspirations for it: that the law already is whatever they believe it should be. In some cases, this wishful thinking is so strong that aspiration exceeds the actual rule in predicting people’s belief — or in other words, you can sometimes predict people’s beliefs about what the law is better by knowing what they think the rule should be, than by knowing what the rule in fact is.
These findings have important implications for developing behavioral models that predict how people will respond to law: for example, behavioral theorists might question whether anyone is deterred by a law that no one knows. The findings also points to normative and democratic concerns: where citizens rely on a mistaken belief that their aspirations are already reflected in the law, they may not push for legal change, and even widely-held aspirations might fail to find reflection in the law.
In his introduction to The Foreign Emoluments Clause and the Chief Executive, Iowa Law prof Andy Grewal writes “[t]he 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. … Donald Trump’s successful election has ignited public and scholarly interest in the Foreign Emoluments Clause and, specifically, the meaning of the term ’emolument.’” Here’s the abstract:
This article, forthcoming in the Minnesota Law Review, extensively examines whether and to what extent President Trump risks violating the Foreign Emoluments Clause through his continued interests in the Trump Organization. Numerous legal authorities show that the clause is narrower than is commonly asserted, but that serious constitutional problems will arise if President Trump becomes entangled in the organization’s business activities.
About some of the conclusions reached in his article, Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study [SSRN], co-authored by Dean Amy Mashburn (Florida), Jeffrey Harrison (Florida) stated in his The Cost of Scholarship (and Peeps) blog post that law profs produce an estimated 8,000 law review articles per year at an aggregate cost of about $240,000,000 annually. That’s approximately $30,000 per law review. Harrison adds in his blog post:
I read that the average student graduates with $140k in debt. That is about 4.5 articles or, if all scholarship money were devoted to reducing student debt, 1700 students a year could graduate without debt. Personally, I am not that comfortable writing 4.5 articles and making the case that they are worth the same as asking a 24 year old to start his or her life with 140K in debt.
Here’s the abstract to Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study:
Recent pedagogical, economic and technological changes require law schools to reevaluate their resource allocations. Although typically viewed in terms of curricular changes, it is important also to focus on the very significant investment in legal scholarship and its impact. Typically this has been determined by some version of citation counting with little regard for what it means to be cited. This Article discusses why this is a deeply flawed measure of impact. Much of that discussion is based on an empirical study the authors conducted. The investigation found that citation by other authors is highly influenced by the rank of the review in which a work is published and the school from which the author graduated. Courts, on the other hand, are less sensitive to these markers of institutional authority. Perhaps more importantly, when the purpose of the citation is examined, a very small handful of those citing a work do so for anything related to the ideas, reasoning, methodology, or conclusions found in the cited work. This is slightly less true for judicial citation compared to citations by other authors. Given the level of current investment in legal scholarship and findings that reliance on it is far lower than citation counts would suggest, the authors offer a number of recommendations designed to increase accountability of legal scholars and the utility of what they produce.
H/T to ATL’s Stats Of The Week: Law Review Sticker Shock. — Joe
What is the scholarly impact of providing open access to law reviews? In The Open Access Advantage for American Law Reviews, Edison 2015-03A (2015) [SSRN], James Donovan (Kentucky), Carol Watson (Georgia) and Caroline Osborne (Washington & Lee) provide the answer.
In answer to law faculty questions about how participation in an open access repository will affect the works’ impact, the present research offers a definitive reply. When looking at citation by other law reviews to all the author’s work, the averaged increase in citations in flagship journals is 53%. In general, half of these cites will be dispensed in the first six years after the article’s publication. OA articles will attract more attention earlier in the lifecycle of the publication, and endure longer on the intellectual stage.
For authors, the message is clear: The open access advantage is real, sizable, and consistent. The minimal effort to upload an article onto an OA platform such as SSRN or a school’s repository pays rich dividends in the currency of subsequent citations in law reviews and court decisions.
Here’s the abstract to this very informative article:
Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and institutions can expect.
Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a lower OA advantage (11.4%) due to the attention such prestigious works routinely receive regardless of the format. When focusing on the availability of new scholarship, as compared to creating retrospective collections, the aggregated advantage rises to 60.2%. While the first tier advantage rises to 16.8%, the mid-tiers skyrocket to 89.7%. The fourth tier OA advantage comes in at 81.2%.
Citations of legal articles by courts is similarly impacted by OA availability. While the 15-year aggregate advantage is a mere 9.5%, new scholarship is 41.4% more likely to be cited by a court decision if it is available in open access format.
Recommended. — Joe
In Takedown and Today’s Academic Digital Library [SSRN], a report to be presented at The Future of the Library in the Digital Age Conference on March 25, 2016 at Ohio State University, Moritz College of Law, Brianna L. Schofield and Jennifer M. Urban suggest that managers of academic digital repositories will likely see an increase in formal DMCA takedown notices as their digital offerings grow.
The authors found that academic libraries have not yet developed shared norms and best practices for handling DMCA takedown requests. “As libraries continue to digitize collections and grow open access repositories, their long experience with less-formal requests and their relatively well-developed norms for handling those requests can serve as a foundation for handling the potential growth in DMCA notices,” write Schofield and Urban (both UC Berkeley). “In addition, the growth itself might be curtailed if stakeholders take steps to limit the need to use the DMCA notice and takedown process.” Towards that end, the authors make the following recommendations:
- Academic libraries should continue to educate authors about author-friendly publishing practices, and authors should retain more control of their own works.
- Publishers, authors, and academic libraries should take steps to make the terms of publication agreements transparent.
- Academic libraries should continue to support—and authors should embrace—open access policies.
- Academic libraries should consider developing shared norms and best practices for DMCA notice handling similar to those they have developed for non-DMCA requests.
- Academic institutions should ensure that librarians receive any DMCA notices targeting library materials that are sent to DMCA agents in other departments, and that library-developed best practices are followed in handling these notices.
- Publishers should develop and publicly communicate reasonable notice-sending policies.
- Publishers should ensure that REOs [rights enforcement organizations], if used, comply with publisher notice-sending policies.
- Academic libraries should consider creating educational materials about the counter notice process and tools that make it easy for authors whose works are challenged to send counter notices if their content is inappropriately targeted for take down.
Ask most legal professionals where the Bluebook originated and they will likely say “Harvard Law School.” In The Secret History of the Bluebook (Minnesota Law Review, Vol. 100, No. 4, 2016 Forthcoming) [SSRN], Fred R. Shapiro (Yale) and Julie Graves Krishnaswami (Yale) beg to differ. They trace the origin of the Bluebook to Yale. As proof, the authors point to a 1920 one-page set of citation rules covering court opinions, law reviews, and treatises prepared for the use of the editorial board of the Yale Law Journal by William Murray Field under the direction of Karl Llewellyn, both YLS grads. In 1921, the Yale Law Journal expanded the Llewellyn-Field rules with the publication of “Abbreviations and Form of Citation”. Seven of the tiny 3-1/2″ x 5-1/2″ pages covered citation formats with seven additional pages being a table of abbreviations. (A second version of the “Abbreviations and Form of Citation” pamphlet containing only minor additions was printed in 1924.)
Following Yale’s lead in what we would call today, the uniform citation movement, Harvard Law School produced its own guide for the Harvard Law Review editioral staff in 1922, “Instructions for Editorial Work.” Many have pointed to the Harvard document as being the precusor to the first edition of the Bluebook which was published in 1926. The authors argue that the claim is unjustified because the Bluebook’s first edition only contains one sentence from HLS’ “Instructions for Editorial Work” while approximately 30 sentences from YLS’ “Abbreviations and Form of Citation” are found in the Bluebook’s first edition. Other similarities between Yale’s “Abbreviations and Form of Citation” and the Bluebook exist, e.g., the size and design and layout of the covers of the early editions of The Bluebook mimic Yale’s 1921 and 1924 pamphlet editions of “Abbreviations and Form of Citation.” There is much more historial detail in this highly recommended article that cannot be covered in this brief post. The article, for example, details workloads, copyright ownership and revenue sharing of the proceeds of the various editions of the Bluebook.
With the recent publication of the latest edition of The Bluebook, we can expect numerious articles by Bluebookologists for Bluebookologists about our current edition of the Bluebook as has happened when prior editions were first released. This time around, Shapiro and Krishnaswami set the record straight about where and how this work began. Highly recommended for Bluebookologists and anyone else interested in the adoption and use of standardized citation practices and advances in legal bibliography. — Joe
The University of California System issued a directive near the end of October that require faculty to place their scholarly works in open access sources:
Each Faculty member grants to the University of California a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, for the purpose of making their articles widely and freely available in an open access repository. Any other systematic uses of the licensed articles by the University of California must be approved by the Academic Senate. This policy does not transfer copyright ownership, which remains with Faculty authors under existing University of California policy.
* * *
To assist the University in disseminating and archiving the articles, Faculty commit to helping the University obtain copies of the articles. Specifically, each Faculty member who does not permanently waive the license above will provide an electronic copy of his or her final version of the article to the University of California by the date of its publication, for inclusion in an open access repository. When appropriate, a Faculty member may instead notify the University of California if the article will be freely available in another repository or as an open-access publication. Faculty members who have permanently waived the license may nonetheless deposit a copy with the University of California or elsewhere for archival purposes.
Notwithstanding the above, this policy does not in any way prescribe or limit the venue of publication. This policy neither requires nor prohibits the payment of fees or publication costs by authors.
That last line is interesting. There are two articles at the Chronicle of Higher Education worth reading that relate to the issue of fees. One is What Open-Access Publishing Actually Costs by Ellen Wexler, and the other is What a Mass Exodus at a Linguistics Journal Means for Scholarly Publishing, also by Wexler. Both are pretty good examinations of issues surrounding the hidden costs of open-access publishing. The first article (later in date) points out that placement of scholarly articles even for open access can require a publication fee. Comments there point out that someone is paying for the time to peer review (usually the university or college employing the reviewer through salary), or providing the server space, or other elements that go between the publication and its editorial and distribution network.
The other article tells of the mass resignation of the editorial staff for the journal Linqua, published by Elsevier. The staff had asked that the journal become open-access and given to them to pursue that goal. Elsevier unsurprisingly said no. The company has said that it continue publishing the title under a new team. The article states that authors currently must pay some $1,800 per article to make it free to readers among other costs.
This isn’t necessarily the model for law reviews. They are edited by students and usually not peer-reviewed. The trend is to make content available for free via the law journal’s web site. Even still, the University or Law School has underlying costs to make this happen by paying for the underlying technical equipment and/or subsidizing the loss of subscriptions. The takeaway from Wexler’s articles is that free really isn’t really free. Costs shift to someone else. Whether that model is sustainable remains to be seen.