Blackman v. SSRN, Round 3: “My Own Theory of the Law” Re-Exiled to SSRN Purgatory

December 4th, 2012

On November 27, 2012 SSRN exiled my article, “My Own Theory of the Law” (a critical commentary on Orin Kerr’s “Theory of Law”) to the land of “privately available articles.”

I resubmitted it that day, with further justification of why it meets the criteria for a publicly available article. Here was my comment:

Hello, This is a piece of scholarly satire. Orin Kerr published a piece in the Green Bag offering an easy way to support any footnote: http://www.greenbag.org/v16n1/v16n1_ex_post_kerr.pdf The Green Bag is hosting a Micro-Symposium on Kerr’s article. http://www.volokh.com/2012/11/26/call-for-papers-micro-symposium-on-a-theory-of-law/ I have been asked to contribute to this symposium. Please leave this article as publicly available. See footnote 1 🙂 Thanks, Josh

Today, SSRN responded to my request–but with two caveats.

First, SSRN approved my paper to be publicly available as a form of “satire.”

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.

Satire? Comments make like these make me think all of scholarship is simply just a joke–not the least of which Orin’s seminal article.

But the second comment is where things get fun.

The only PDF file that SSRN allows to be attached to a submission is one which includes the full text of the paper or papers described by the abstract. The PDF file attached to this submission does not fulfill that requirement and has been removed. To include a PDF for download, please revise and upload a full-text PDF at your convenience.

“My theory of the law” most definitely included the full text of the paper. Here is a screenshot:

That is the “full text of the paper.” There’s a title, notation of the author, body of the articleand support below the line (in proper Bluebook formatting might I add). What more could there be?

But let’s break this decision down. Not since King Solomon has there been a more noble attempt to cut the scholarly baby. In a holding worthy of John Roberts, SSRN said my paper can be publicly available, but my paper will not be available for download. This saving construction allowed SSRN to take the right stand on promoting the free distribution of paper, but ultimately my challenge failed. Maybe I’ll write about SSRN’s use of the avoidance canon in publication decisions.

I’m not done here. Necessity is the mother of invention. I’ve spent some time mulling over my changes, and resubmitted my article, a third time.

Here is the opening (and closing):

A theory of law is only as theoretical as the theory that supports it.1

1.  See generally Orin S. Kerr, A Theory of Law, 16 GREEN BAG 2D 111 (2012). This article meets the criteria set by SSRN for public availability, see id.

I added this comment:

Thank you for your consideration of my previous paper. I trust this paper will meet all of your requirements. (See footnote 1).

I considered submitting my paper to Law & Society or the AALS Hot Topics panel, but I don’t it would have been considered in time.

Let’s see if this works.

I would note that this article has nearly 3,000 abstract views (currently ranked 3rd on my list of papers).