Hi Stevan, I've been following the open access discussion for a while now and may be writing a law review article on the subject in the not-too-distant future. I'll likely be reiterating some of the points you've been making in a number of fora. In the meantime, the answer to your question is difficult for American law reviews because these are student-edited publications with policies that can change year-to-year as each editorial board sees fit.
I'm assuming that you ask the question in response to the recent reaction to a proposed policy by the California Law Review to assert its copyright interest against the Social Science Research Network (www.ssrn.com), which is where law profs now post their pre-prints. My understanding is that the student editorial board, responding to the dust-up around this issue, has postponed a decision until the Spring. Scholarly communication in the American legal academy is less susceptible to capture than is such communication in other disciplines because control over print distribution is disaggregated among all these different student publications. Prices are quite cheap * less than $100 per year. The bottleneck is with electronic distribution, which is consolidated in the hands of three publishers * West (a division of Thompson), Lexis-Nexis, and Hein. These publishers provide a revenue stream to the student-edited law reviews based on the number of times their articles are accessed. For the elite law reviews, these revenues are hundreds of thousands of dollars. It is a (mis)perceived threat to that revenue stream that has caused the present dust-up. I say misperceived because legal practitioners and scholars have to provide pinpoint citations to the published page when citing an article in a legal brief or article, and we need access to the published version for that. We usually obtain such access through one of the commercial on-line services just mentioned, so I'm not persuaded that there's a real threat to that form of electronic access. The other reason an answer to your question about self-archiving will be difficult to answer is that authors with market power are able to negotiate different terms of the copyright agreement. So even if the law journal has a standard agreement that would prohibit self-archiving, in practice many agreements may not include that term. Most web-savvy legal academics I know self-archive, but there are many legal academics who are not web-savvy. That fact combined with the search function make SSRN a valuable resource. Best, Michael Carroll Terry Martin : >tm> I don't think you are correct. I suspect most law reviews are >tm> extremely reluctant to permit self-archiving, as many want the >tm> articles that have been submitted to pre-print services withdrawn >tm> before the reviews will accept them. Stevan Harnad: >sh> It would be nice to see the actual figures on Law Reviews' >sh> self-archiving policies, though. Does anyone actually have the data >sh> -- or a list of the email addresses that I could send a query to? Terry Martin: >tm> I'll save you the trouble. As incoming chair of the committee on >tm> libraries and technology of the American Association of Law Schools, >tm> this was an issue I hoped to address in the coming year. I'll >tm> report back in a few months.