First, it's expensive to maintain journal titles in both print and electronic formats. As time passes, more students simply expect articles to be available online. This preference for electronic materials is often so strong that they give up a line of research when informed that it's only available in print. Conversely, many faculty still strongly prefer print materials, whether due to personal preference or because a title's electronic version sometimes doesn't include everything found in the print copy (e.g., photos, graphs, etc.). Making both groups happy means devoting institutional resources to redundant collections, which sacrifices a library's ability to collect a wider scope of materials — in any format.
Second, given that electronic access to law journals, even those edited by a law school's own students, is usually provided only by commercial vendors on a subscription basis, there is little guarantee of permanent electronic access to a title. With print, however, so long as the library takes care of its periodical collection, a title will be available in perpetuity, regardless of whether the publisher (or even the publishing law school) folds or the subscription is cancelled.
Library directors at 12 leading law schools raised these concerns when drafting the Durham Statement on Open Access to Legal Scholarship, "which calls for all law schools to stop publishing their journals in print format and to rely instead on electronic publication coupled with a commitment to keep the electronic versions available in stable, open, digital formats." As should probably be the case in such a call to action, the Durham Statement leaves open the question of what format is best suited for creating "stable" and "open" repositories, though given economic pressures and digital solutions that vary from school to school depending upon the preferences and expertise of an institution's IT staff, a lack of guidance on this issue could lead to delayed progress or incompatible systems.
In recent years, many law reviews have already begun posting PDFs of their articles online for free. This is hardly a universal movement, and such open availability can vary wildly even among publications produced at the same school. Access is often limited to browsing tables of contents, with no search functionality to be found. In most cases, these efforts are taken on by the journals themselves. While the initiative of such student staffers deserves our praise, there are certainly limits to what they can realistically accomplish. For example, given the transitory nature of law review staffs, there is little incentive to look beyond the digitization of the current volume, let alone establish a consistent system for subsequent years or plan a long term effort to digitize previous volumes. In addition, the easy solution is PDF-only, which is hardly a well-structured data format for any purpose other than sending a document to the nearest printer. Even when the time is taken to OCR these documents, or when the PDF itself is generated through a word processor (eliminating the need for OCR), one's ability to find anything is still nearly impossible without robust metadata. One needs to look no further than the latest Google Books kerfuffle to understand the importance of metadata for online research.
If metadata, structure, and permanence are vital to the success of the Durham Statement's desired action, librarians must do more than simply ask their institutions to create digital access systems for law reviews. What the Durham Statement asks schools to create are digital libraries. If librarians willingly cede the design, implementation and maintenance of these new libraries to IT staff and law students, it's a troubling statement about the future of our profession. Far too many commercial research vendors have bypassed librarian expertise in the creation of their online systems, and we end up with expensive databases that are difficult to use and fail to take into consideration how the content itself is utilized in research. By allowing this creative process to spread within our own walls, we are effectively putting our stamp of approval on it and relegating ourselves to increasing irrelevance in a digital world. In a world where "cutting out the middle man" is desireable enough to researchers that it becomes a marketing point, digital library design becomes a far more important aspect of our profession.
Many will be tempted to look to institutional repositories as the great hope for open electronic access to law reviews, but they're not. IRs serve a vital importance as preservers of a law school's scholarly and cultural output, and the IR efforts of institutions like Duke and Georgia should be models for every other law school in the country. IRs don't address reputational economies, nor should they. What defines an article's inclusion in an IR has nothing to do with who publishes it. It's about who wrote it. Thus, in an IR articles from Yale Law Journal should arguably have equal standing to working papers that never receive publication elsewhere.
However, in a world where electronic access to legal scholarship is limited to institutional repositories, where there is no measure for the prestige of an article, a tenure track faculty's worst nightmare is realized. A common criticism of electronic only publication is that it is inherently less prestigious than print. Non-tenured faculty are often advised to shun blogging for this very reason. But this argument only applies to electronic publications that lack a rigorous editorial process. If Harvard Law Review changes nothing other than its publication medium, keeping intact all its selection and editing processes, will the articles it publishes lose their prestige simply because they're electronic? That seems rather arbitrary.
(In a perfect world that makes me drool at the possibilities, each law review could simply be a UI layer that pulls its articles from the author's original institutional repository, but that's a tangent for another post. As is a discussion of why data standards are essential to both.)
When it comes to the Durham Statement, let's do more than sign it. Let's put our money where our mouths are. Assuming that permanent, open access to electronic law reviews is a desirable goal, librarians are the best professionals to make that happen.