Should We Abolish Copyright in Academic Journal Articles?

scholarSome years ago, when I was on the Marquette Law Review editorial board, my responsibilities included obtaining a rudimentary copyright release from authors whose articles we had agreed to publish.  In fact, I signed the form myself when I published my Note.  If we did not obtain the release, we would not publish the article.  I presume this is still the Review’s policy, although current members can confirm or deny it, and I also suspect that many journals have a similar procedure.  If the “open access” movement continues to gather steam, however, one can wonder how long this and similar practices will continue.    For example, Professor Steven Shavell recently posted a draft, pre-publication article for public comment arguing that we should abolish copyright for all academic writings.

The open access debate goes well beyond the world of academia, and what follows is only a brief summary.  Many open access advocates support both free online access to works as well as the granting of a license that permits copying and redistribution of the work.  They underscore the broad societal benefits that would flow from broad public access to such information.  Opponents of the movement have argued that true open access is impossible because publishers could not then recover the costs of their work, and that all but a few scholarly journals would cease to exist.  The usual response to this criticism is that the journals could simply charge the authors fees to cover their costs in publishing such works (and, in turn, that the fees would likely be paid by the authors’ university employers).  Perhaps this counterargument is less attractive given the current global economic downturn.

I think the fundamental question is the following: what motivates academic authors to write and publish journal articles? 

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Commodifying Environmental Resources

grand canyonMany people value certain environmental resources even if they have never actually visited or “used” those resources.  For example, a person might assign what economists call “nonuse values” to the Grand Canyon, the Great Barrier Reef, or a particular endangered animal species even if she has never hiked the Canyon, gone scuba diving on the Reef, or personally encountered that endangered species.   Some scholars have categorized nonuse values into three types: the “option value” is the value a person places on preserving an environmental resource so that she has the option of using it in the future; the “bequest value” is the value the person places on being able to preserve the resource for the enjoyment of future generations; and the “existence value” is the value the person places on the mere knowledge that the resource exists. 

Consensus has proved elusive on whether and how nonuse values should be considered in cost-benefit analysis of new environmental projects or regulations.  In economic terms, such valuation will have the positive effect of incentivizing people not to destroy the resource.  But economists have struggled to assign actual dollar values suitable for use in such a calculus.  One widely used but controversial method called “contingent valuation” involves the use of surveys to find out what individuals would pay to preserve environmental resources.  Survey results are then averaged and generalized across entire populations.  The design of the survey questions is controversial, and the results are often rigidly contested or even rejected out of hand.  One famous CV study estimated the nonuse harm of the Exxon Valdez disaster at between two and eight billion dollars. 

Quite apart from the raging debate over the validity of contingent valuation, other scholars are waging a separate struggle over whether it is harmful for society to “commodify” or “commoditize” certain things. 

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The Real Value in Appellate Oral Argument

moot-court_trimmedDoes appellate oral argument still matter?  In some courts with exceptionally heavy caseloads, such as the Wisconsin Court of Appeals, oral argument is vanishingly rare.  But even in courts that regularly hold oral argument, some observers claim that it has devolved into a dog-and-pony show unlikely to move judges who have already reached unspoken decisions based on often-voluminous briefing.

It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4th District, 2nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages. 

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