Open by Default, Not by Design: The Problem of "de facto" Open Access in Legal Scholarship

For the past fifteen years, I've had the privilege of working in legal scholarly communication during a period of real change. I've helped build repositories and watch scholarship that used to sit in bound volumes on a library shelf become something a researcher anywhere in the world could find and read for free. There's a specific satisfaction in knowing that a piece of legal scholarship is reaching someone who wouldn't have had access to it otherwise, without a paywall, a subscription, or an institutional login standing in the way.

I usually use the term "Open Access" (OA) to describe our approach to putting scholarship online, but as time goes on I feel less confident in that description. True OA is not just shorthand for "free," it is a standard and a publishing model, one that carries real requirements: licensing, durable commitments, sustainable infrastructure. Most law journals don't meet this standard. And the more I've sat with that gap, the more I've come to believe that we as academic law librarians have both the capacity and the responsibility to close it, to make the content we're already providing actually live up to the term we're using for it.

A few years ago, John Beatty, of the University of Buffalo, put empirical weight behind my unease. His 2023 study of 648 student-run law journals found that nearly all of them post at least some content online for free, yet the formal commitments that would make that access durable — self-archiving policies, reuse licenses, persistent identifiers — are largely absent. To describe this pattern, Beatty borrowed a term from the broader open-access literature: Bronze OA, meaning access that's free to the reader but comes with none of the guarantees that make free access reliable over time. This framing crystallized something for me: law journals are open by default, not by design. And access that exists by default has no built-in answer to a basic question: whose job is it to keep it that way? A designed system assigns that responsibility somewhere. A default system doesn't assign it anywhere at all.

Because I've always disliked the OA color scheme anyway, I am going to call this situation "de facto open access": access that exists because nothing stands in its way, rather than access that exists because someone built it and committed to keeping it standing.

The landscape of de facto open access for law journals is a bit of a mess. Beatty found that fewer than one in five journals in his study had a publicly posted self-archiving policy, meaning the overwhelming majority of journals have never actually said, in writing, what happens to an article after it's published, or what an author or a third party is permitted to do with it. Further, among journals that invoke the term "open access," few had adopted the Creative Commons licensing that would actually define what "open" permits. The label gets used far more often than the infrastructure behind it does.

What strikes me most is how fragile the underlying inputs are. Getting a journal's content online and keeping it there isn't a single decision — it depends on institutional will, dedicated staff time, technical resources, and sustained attention, all held together at once. Beatty's data points to why that combination is so unstable: journals mostly moved online for pragmatic reasons — declining subscription relevance and a citation advantage that student editors have reason to want — rather than any institutional commitment to preservation. Add to this the growing budget pressures on libraries and journals, and it becomes clear that ongoing free access to this information is tenuous. Free access to law journals isn't the product of a deliberate standard being applied consistently — it's the product of several fragile conditions all happening to hold at once, for as long as they do.

This fragility underlines two separate but equally important aspects of setting up and maintaining open access across law journal scholarship. The policy question — getting journals and schools to commit to open access — is a genuine collective action problem. It requires coordinating distributed stakeholders across hundreds of independently run journals and their law school administrations, building interest where none currently exists as a shared priority, and assigning responsibility in a way that outlasts any one person's tenure. This important work is slow, uncertain, and realistically could take years to show results. But the technical challenge of OA is different in kind. Because access already exists, however haphazardly, there's nothing to wait on. We can start now, building towards the strongest possible technical foundation within current constraints, and in the process generate exactly the kind of visible, concrete progress that can build support and interest behind the harder policy work still to come.

So what does that implementation work actually look like? It starts with a different premise than most open access conversations assume. The usual OA project builds something from nothing — negotiating a license, standing up a repository, convincing a journal to change its behavior. Here, we have infrastructure and momentum already. Something is already online, for most journals, in some form, and there are already journal editors and repository managers across the country who are posting new issues regularly. The task isn't to create access — it's to find where that access is thin or missing and close those specific gaps with whatever a given school actually has to work with.

"Technical implementation" isn't one action. It's several distinct layers, and each one can fail independently of the others.

Basic infrastructure — a stable place to host material where it can be linked to and read freely, whether that's a repository or a well-maintained journal website.

Descriptive metadata — consistent field naming, structured data, and machine-readable tagging as new work is uploaded. Strong metadata is the prerequisite for discoverability.

Exposure to discovery systems — those of us who are posting new work online must be better versed in how search engines, aggregators, and AI systems crawl, syndicate, and surface article metadata to searchers.

Interoperability — protocols like OAI-PMH that enable repository discovery by aggregators and search tools, the mechanical link between infrastructure and discovery.

Persistence — persistent identifiers like DOIs, so a citation outlives the platform it was built on.

Beyond these, questions of preservation redundancy and format/version control matter too, and deserve their own fuller treatment elsewhere, but they're a step removed from the more immediate work of getting content found at all.

From my perspective, the more realistic path is to work with the patchwork as it exists rather than wait for it to consolidate. This means: bring the links we already have together into something resembling a map of the field, survey where the real gaps are, and help every journal or school optimize its own metadata and discoverability on its own platform. Standardizing and unifying the technical backbone across institutional repositories, OJS, Scholastica, and a hundred bespoke journal websites is at least as difficult as the policy question Beatty's data points to. To wait for a policy structure to emerge first means waiting indefinitely and putting off a chance to improve access now. My own goal for this work is modest to state, even if it won't be modest to achieve: every law journal volume published in the last twenty-five years, available via a free full-text link, and just as easy to find through online search methods as its paywalled counterpart. This milestone is a floor, not a ceiling, since full coverage should be the real aim wherever our capacity allows. Progress towards these OA coverage goals builds the kind of visible, shared proof of what's possible that makes the harder consolidation and policy questions easier to take on later. The collective action policy problem will always be there when we're ready, but if we can make measurable progress towards technical implementation and broad OA coverage, there will be less distance left to cross when someone is finally ready to solve it.

(Thank you to Genevieve Tung for valuable feedback and editing on this piece)