of Creative Commons) has an Open Access Law Program (“OALP”) that is intended to foster open access to legal scholarship by permitting authors to retain sufficient rights in their published works to enable those works to be hosted in open-access repositories.[1] Several law journals have committed to honor the principles of open access in works published in their pages,[2] and authors may obtain similar results even when publishing in journals that have not formally committed themselves to the OALP’s principles.[3]
B. Open Access to Primary Source Materials
As important as the movement to open access to legal (and other) scholarship is, the public may derive still greater benefit from making primary legal source materials—statutes, regulations, case law, and the like—more broadly accessible.[4] Positive law directly regulates individual behavior, and partly for that reason, individual due process interests in access to the law have long been recognized.[5] Principles of democratic legitimacy also favor open access by citizens to information necessary to police the functioning of government.[6]
Although open access to primary legal source materials would appear to present an uncontroversial imperative, both legal and practical obstacles remain. The Copyright Act places federal statutes and judicial decisions in the public domain.[7] But the absence of any comparable statutory provision regarding the copyright status of
- ↑ See Science Commons: Open Access Law Program, http://sciencecommons.org/projects/publishing/oalaw/ (last visited Feb. 12, 2010).
- ↑ See Science Commons: Open Access Law: Adopting Journals, http://sciencecommons.org/projects/publishing/oalaw/oalawjournals/ (last visited Feb. 12, 2010).
- ↑ See, e.g., infra note 149 and accompanying text.
- ↑ Cf. Michael W. Carroll, The Movement for Open Access Law, 10 Lewis & Clark L. Rev. 741, 742–43 (2006) (arguing that open access to legal scholarship also confers public benefits by lowering litigants’ costs of access to novel legal theories that may persuade courts to rule in their favor).
- ↑ See, e.g., id. at 746; Justin Hughes, Created Facts and the Flawed Ontology of Copyright Law, 83 Notre Dame L. Rev. 43, 77–78 (2007) (considering several justifications for open access to court decisions); Nash v. Lathrop, 6 N.E. 559, 560 (Mass. 1886) (“it needs no argument to show that justice requires that all should have free access to the opinions, and that it is against sound public policy to prevent this, or to suppress and keep from the earliest knowledge of the public the statutes, or the decisions and opinions of the justices.”).
- ↑ See Timothy K. Armstrong, Chevron Deference and Agency Self-Interest, 13 Cornell J.L. & Pub. Pol’y 203, 273–74 (2004). For an argument that principles of governmental accountability support the adoption of data transparency practices by federal agencies, see David Robinson, et al., Government Data and the Invisible Hand, 11 Yale J.L. & Tech. 159 (2008–2009).
- ↑ See 17 U.S.C. § 105 (2006).
