@SSRN and the (Arbitrary) Determination of "Scholarly" Merit

Yesterday Brian Frye (@brianlfrye) (Kentucky) tweeted:

I am sad. @SSRN has decided that my article about Gremlins (1984), "In re Patentability of the Peltzer Inventions," does not qualify for "public" status because it is "opinion, advocacy, or satire." Why judge? Oh well.  You can still download it here: http://www.ssrn.com/abstrac_id=3371989.

I followed Brian's direct link to the piece. The abstract refers refers to the many inventions of the movie's Randall Peltzer character, and explains, "This essay takes the form of an opinion letter valuating the patentability of Peltizer's inventions." I don't teach IP, but I like Brian's work and so I downloaded the essay. It struck me as funny and as an excellent teaching tool.  But if you go to Brian's author page on SSRN, you wouldn't be able to access the paper.  You wouldn't even see it.

I myself have posted material that apparently doesn't meet SSRN's criteria for a "scholarly paper," including this interview with the principal drafter of some important state trust legislation (and the interview itself has been cited in subsequent scholarship) and this short piece for Tax Notes reviewing estate and gift tax law review articles published in 2016 (even though SSRN published my similar pieces reviewing scholarship for the years 2015, 2014, 2013, 2012, 2011, 2010).

When I posted my Information for Submitting to Online Law Review Companions (a submission guide modeled after Nancy Levit and Allen Rostron's useful Law Review Submission Guide), SSRN reviewer "TyD" responded:

We have accepted your paper to appear in the "Other Papers" section of your Author Page, which is where opinion, advocacy and satirical papers are displayed as per SSRN policy. It will not be searchable by the SSRN eLibrary search engine but will be searchable by public search engines, and you may share the URL.

I asked SSRN for reconsideration, and got this from SSRN reviewer "Katie M":

We have recently reviewed your submission to SSRN. Our classifiers have determined that this submission is very useful information, however would still be considered non-scholarly. Because of our acceptance of your previous paper 1019029 [the Levit/Rostron paper, which isn't "my" paper -- BC], we have made the decision to allow the public viewing of this paper. In the future, similar submissions will be processed to appear in the "Other Papers" section of your Author Page, which is where submissions that are not full scholarly research papers (including submissions such as data tables, summary book reviews, opinion, advocacy and satirical papers) are displayed as per SSRN policy.

I don't even bother thinking that Information for Submitting to Specialty Law Reviews and Journals in Gender, Women & Sexuality will be a searchable public paper. 

So what exactly are SSRN's rules for what is "publicly available" and what is not? What I could find appears below the fold.

• From SSRN's frequently asked questions page (here):

Is my paper eligible for inclusion and public display in SSRN's eLibrary?  

A paper must be part of the worldwide scholarly discourse covered by one or more of SSRN's subject area networks to be eligible for inclusion and public display in SSRN's eLibrary. Every submitted paper is reviewed by SSRN staff to ensure that the paper is a part of the scholarly discourse in its subject area. SSRN does not provide peer review for papers in the eLibrary.

An author may submit a paper that is not scholarly – for example, an editorial or opinion paper. The author must have a scholarly work accepted to SSRN before a non-scholarly work will be accepted. These non-scholarly works will be given an "Approved-Private" status (rather than "Approved"). The author can choose (on their My Papers page) to have the private papers appear on their Author page in the "Other Papers" section. These private works will not be searchable from SSRN's Search page and will not appear within any network on the Browse page. The private papers are, however, searchable by external search engines (e.g. Google) if the author included them on their author page. The author may also post the URL elsewhere for download or send the URL of their private paper to readers.

• From SSRN's Terms of Use (here):

Content may not be illegal, obscene, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or otherwise injurious or objectionable.

• Then there's the info under the "Privately Available Papers" heading on my own author page:

This section contains papers that are not displayed on your Author Page unless the "Include on Author Page" checkbox is checked. They are not available in the public SSRN eLibrary or to the SSRN search engine due to an author request, submission restriction (e.g. restricted conference), or SSRN policy (e.g. paper is an opinion/advocacy paper or is not a scholarly research paper covered by one of SSRN´s networks). If you want a private paper to display in the "Other Papers" section on your SSRN Author Page and as a result be searchable by external search engines (such as Google), click the paper´s "Include on Author Page" checkbox below (if available). Downloads of these papers are not included in computing the total downloads shown on your author page.

So it looks like SSRN divides submissions into "non-scholarly" and "scholarly" work.  Fair enough.

What can we deduce about the definition of each category? As for non-scholarly work....

• We know from the FAQs that "non-scholarly" work includes "an editorial or opinion paper." 
• We know from Brian Frye's submission that a non-scholarly work is "opinion, advocacy, or satire."
• We know from the comment on my law review submission guide that non-scholarly work includes "data tables, summary book reviews, opinion, advocacy and satirical papers."

But wait, if SSRN doesn't publish "advocacy," why is an amicus brief by Orin Kerr, for example (here), publicly available? (The easy answer would be because amicus briefs are scholarly, but so are ... oh, let's not get started....I'm not picking on Orin's brief. It's just the first one that came up in my search; go Orin!).

And as for scholarly work, here's what I can tell ....

• Bibliographies like this one apparently are "scholarly," as is anything published in the Green Bag, including a 4-page explanation of what the Green Bag folks will be publishing in the future (no hate: I love it all -- just seeking clarity). 
• And there seems to a selective "grandfathering" rule, so that my online law review companion submission guide could be "publicly available" because Nancy Levit and Allen Rostron's is, but my own review of estate and gift tax articles from 2016 could not be "publicly available," even though my own reviews of a similar nature published in each of 5 prior years were).

How do these definitions of "non-scholarly" and "scholarly" work map on legal scholarship? (I guess there's "advocacy" and then there's "normative" scholarship, and the two aren't the same, but can be.) How many of the inconsistencies (as I see them) are related to (or a consequences of or arise from)  Elsevier's 2016 acquisition of SSRN? If I were interpreting SSRN's self-stated rules, I'd be a little more relaxed and look favorably on "appeals" or requests to reclassify, upon a showing of the scholarly or pedagogical value of material. 

SSRN's self-describes its mission (here):

SRN's objective is to provide rapid worldwide distribution of research to authors and their readers and to facilitate communication among them at the lowest possible cost. In pursuit of this objective, we allow authors to upload papers without charge. And any paper an author uploads to SSRN is downloadable for free, worldwide.

Does the classification of publicly-available "scholarly" papers and privately-available "non-scholarly" papers as applied serve SSRN's mission?  To me, the answer is no. Brian Frye's patentability piece, which strikes me as a great teaching and learning tool, has an easy home in the "Law Educator: Courses, Materials & Teaching eJournal," if not the substantive IP eJournals (not my field).  Oh, but wait, are "Courses" scholarship?  They must be.  So must be "Materials," because they are publicly available and only "scholarly" works are publicly available.  But Brian's piece isn't "teaching material" in SSRN's universe? That doesn't make any sense to me.

Like others, I have been (and remain) skeptical of Elsevier's acquisition of SSRN. Since then, I've noticed that papers tend to take longer to get "approved" (the longest wait I've had is 6 weeks, and even then, I had to contact customer service to point out that it had been 6 weeks since submission, and could SSRN pretty please post the piece). I find useless the JEL Classificiation Codes (not an Elsevier invention), at least in the case of the "Law & Economics" (or "K") codes applied to most law review scholarship. These sort codes are so blunt as to be useless for my research, at least. Maybe the codes work better in Economics (after all, the classification system was developed by the Journal of Economic Literature).

Like others, I'm waiting to see if an alternative to SSRN develops.  Until then, the SSRN downloads remain the coin of the realm in many subsdisciplines in law (see, e.g., here).  For now, I think the answer to Brian Frye's, "Why judge" question (above) is, "SSRN does because it can."

 

Comments

[James Grimmelmann]

Apparently, SSRN doesn't consider every paper published in the Green Bag to be a "full
scholarly research paper[]." I received a similar email about my essay Renvoi and the Barber. It may not be a long paper (16 pages), but I certainly sweated every word and it makes, in my opinion at least, an original contribution to legal theory. I opened a support ticket a week ago to inquire on what basis SSRN thinks that it is not scholarship, but I have received no reply.

If it is any consolation, being placed in SSRN's "Other Papers" section seems more insult than injury. As long as you check the box to make them publicly available, the only material drawback is that Other Papers don't show up in SSRN search results. But who uses SSRN's own poor excuse for a search engine? Everyone I know either uses Google or browses papers by author.

Regular readers of blog comment sections will know that I agree fully with your critique of SSRN. I strongly recommend self-archiving, law-school hosting of faculty publications, and open alternatives like LawArXiv.

[Federico]

I didn't know SSRN was moderated this way. Do you *prefer* to use a repository which has some kind of moderation, or would you rather be on an unmoderated repository? There are a few unmoderated repositories like Zenodo, where discoverability and selectivity is delegated to "communities" (sort of sub-repositories). Otherwise, as people have pointed out, the arXiv model works for the humanities as well, with SocArXiv, LawArXiv etc.

[Peter Hook]

Thank you James Grimmelmann for mentioning LawArXiv in the comment above. http://lawarxiv.info/ LawArXiv is the only the only non-profit, community owned and managed legal scholarship repository. We have a much more expansive conception of scholarship!