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Some people just can't let go of things. Just yesterday, I was confronted by a progressive friend who corrected me when I referred to a certain airport in Washington, DC as "Reagan".  For better or worse, they changed the name over a decade ago, and no amount of beating could possibly make that horse any deader.  I didn't think much of Reagan, but I also don't think any debate benefits from the sort of childish pushback-at-all-costs that seems to characterize so much public discussion in the US these days.  I don't want to be one of those single-issue people.

Nevertheless.... there's more to say about the West marketing video that features Bob Berring.  That's an awkward way to refer to it, but it's deliberate.  I think we can assume that West's much-vaunted talent for selecting, ordering, and presenting information applies to video footage as much as caselaw.  In Paul Lomio's class at Stanford the other day, I remarked that one thing the LII and West videos have in common is that neither of the front men were completely in control of the use and presentation of their words.  And in fact what I have to say here is more about the music than the lyrics, and the music would seem to be entirely West's. So let's at least move on from "Berring kerfluffle" to "West video"-- while, I guess, remaining firmly inside "tempest in a teapot", which is how one law librarian characterized it.   Teapot or no, they've opened the door for long-overdue and important discussion of a number of issues that have been waiting for attention, so... let the discussion commence.

I can think of at least three points raised by the video that need some serious attention from the library profession.  (That, folks, is a cheap rhetorical gimmick. On a sunny afternoon in November, with the leaves unraked, I only have time for one today. You'll just have to remain in suspense on the other two until I can get around to them in some future post).  Today I want to talk a little about one of  the video's anthems: the virtues of the free market, and the presumed triumph of muscular, well-funded capitalism over a bunch of uploadin' hippies with short attention spans and no money. Heroic uploadin' hippies, that is.

An historian might find in that song some odd resonances with the West of the mid-90's, the one where Vance Opperman talked about "copyists" in much the same way that the video talks about "volunteers", the West that wrapped itself in the flag as the "last American caselaw publisher" shortly before selling out to a Canadian company.  There is nothing so American, after all, as the free market, and few things as virtuous.  An ironist might wonder how sure the fire of that particular pitch is, nowadays.

But West lives in a distorted economic arena.  It sells its goods in a cul-de-sac separated from the agora of the free market by a series of barriers. Before the Internet came along, and even until quite recently, the hurdles raised by the difficulty of collecting source material were protection enough from competitors.  Government release of raw, bulk legal data threatens to remove many obstacles that discourage private-sector competition with West.  And despite what Professor Berring says, government is quite competent to do that, and has done so for many years in other venues, including some that feed West the grist for its mills. Second, West has historically protected itself from competition by vigorous pursuit of expansive claims of copyright in the apparatus of citation. Third, it has profited hugely from the conversion of the law creator's "soft" natural monopoly in legal information into rigid commercial advantage via the economic alchemy of official publication  status (or, as it is now known, authenticity).   Fourth, in a turn our ironist would find amusing given recent events in the "free" market, West has benefited from the inattention of those who are supposed to regulate the market in which it operates. Finally, it exists in what is for all intents and purposes a duopoly market where pricing advantages depend hugely on a lack of transparency.  That does not suggest the same open competition normally associated with a "free" market.

There's little more to be said on the first or second points. The relative ease of collecting legal data these days is evident, as is the scrappiness of potential West competitors like FastCase.   West's use of copyright claims in official citation to prevent market entry by competitors is a matter well known to legal information professionals.  So is their bartering around official status; Peter Martin published quite a good paper that deals with it (among other topics) in 2000, and you can read one such contract from 2001 here (the interesting stuff appears under "other considerations", and similar headings).  In 2009, the law library profession still struggles to find a position on authenticity that will avoid hardening the natural monopoly of legal information that law creators enjoy into rigid commercial monopoly by legal publishers.

The fourth point -- that West has benefited from the inattention of regulators, particularly at the time of the West-Thomson merger -- is perhaps more controversial.  But, as a 1997 article in the Connecticut Law Tribune explained, that merger got remarkably little scrutiny for one that, in the words of one amicus, converted a three-giant industry to a two-giant one.  The products that West and Thomson divested, most of which lay outside the integrated systems of books and databases that provide real utility to practitioners, were all sold to Lexis.

Which segues nicely to a final point.  To be sure, low-cost legal information providers like FastCase, VersusLaw, and LoisLaw are doing pretty well, and Justia.com and other open-access providers chip away at the edges of West's business. But for all intents and purposes commercial legal information is a duopoly, as it has been for many years. And duopoly markets have very good reasons to avoid price wars, since theoretically these end with profits spiralling down toward marginal cost; that is the classic "gas war" between gas stations on opposite corners of an intersection. The price  of peace is that actual pricing has to be kept secret from the community of buyers and from the competition.  Otherwise, each competitor will attempt to undercut the other until the actual marginal cost is reached and there is no profit. This may explain, first, why West's pricing agreements with large law firms are as highly confidential as they are, and second, why West would refuse participation in AALL's price index, even at the expense of being barred as sponsors of AALL's annual meeting.

Bob Berring believes in the market system.  So does West, for as long as the market system in play is one with externalities that protect it from the peskier aspects of competition.  And in such a scheme it is important to keep market barriers high by, for instance, restricting your competitors' access to the raw materials needed to create competitive products.  Government may not be able to create the finished legal-research systems that West does.  But it can certainly release bulk data to those who can produce products that will compete with West, and in time it will.  Is the West video a sort of legal-info-Harry-and-Louise?  No.  But it would be naive to say that it is unaware of, or unresponsive to, serious competitive threats that West will face in the near future, from people who are not volunteering at all.

[ Note: this piece is part of a trilogy on the West video:  1, 2, and 3 .  Kind of like the Lord of the Rings, only longer, with a less confusing plot, and very few cute hobbits.]

scotus-scaffold1.jpgSomewhere between 13 and 22 seconds after the first offering of free content on the Web, the publisher asked herself, "How am I going to pay for this?".  And web publishers have been asking that question ever since.  The current economic meltdown makes it a more urgent question, but it's always been there.  We sum it up in a slogan:  this service is free, but it is not costless.  We spend a lot of time and effort trying to resolve that conflict between our aspirations and the need to buy groceries.

The open-access-to-law community (particularly in the US) has had trouble with this.  There are a variety of solutions, few if any complete in themselves.  Most open-access providers originally depended -- as we have -- on grant funding, and on extensive support from a parent institution or a consortium.  Most have added consulting income to the mix.  And many get income from commercial partnerships, often based on the sale of back-end bulk data services.  The most stable model is CanLII's, which is financed by a head tax on Canadian lawyers.  An excellent paper by Graham Greenleaf (abstract here, slides here), offered at the recent Law via the Internet conference in Florence, describes one prominent free-access provider's experience in keeping the doors open.

In any case, open access to law presents some unusual sustainability problems.  And those problems vary a lot from place to place. Institutional and political settings are very different, particularly in transition countries ( no doubt some of our problems here at the LII would no doubt be seen as high-quality problems by others).   Here's a brief catalog -- full treatment would need a very long article indeed:

First, open-access providers don't really do research, in the sense of either basic science, or quantitative social science, or any of the things funded by research-oriented outfits like the NSF.  We can sometimes make a plausible case for ourselves as testbeds or helpers on grants that go to others (as the LII has with its participation in the CeRI project).

Second, we are continually faced with rising costs of innovation. The new legal information products and services we imagine, and hope to build, are significantly more expensive to produce than the things we imagined when we began 16 years ago. This is partly the result of the Web's technical evolution and partly the result of more sophisticated needs and wants -- a slow but steady revolution of rising expectations that we share with our users.  In 1993, we could significantly raise the sights of everyone in the legal information world by spending a snowy afternoon putting Two Pesos v. Taco Cabana into HTML -- a one-person task that created the first web-published judicial opinion.  These days, it takes many more people a lot longer to come up with something that interesting and useful.

Like other not-for-profit projects, we have more trouble finding operating money than we do finding startup funds.  A lot of people would like to see their law (or someone else's) put online. Very few are willing to pay to maintain it.  This is a particular problem with legislation, which requires frequent updating.  It also distinguishes legislation and regulations from scholarly publishing, and from many open-access repositories, which (like judicial opinions) gather material that is relatively static once mounted.

Some deep-rooted reluctance surrounds the funding of legal information, perhaps based on the idea that free legal information is just lawyer subsidy, or only answers the information problems of the rich (as Dan Dabney once put it).  Who wants to feed the sharks?

Open-access providers could do more than they have to dispel this distrust.  For the most part, we've made the case for open access in highfalutin' normative terms:  support the rule of law, level the playing field for human rights, force the state to meet the transparency/publishing obligations implied by the idea that ignorance of the law is no excuse.  That's a regime where success is hard to measure, if only because assessment is often self-referential. We declare our results to be good because our intentions are noble. We are Doing the Right Thing, and who would question that?  We are now starting to see some work on evaluation of open access in much more hardheaded terms -- how does it contribute to lawyer competence, support economic development, level the playing field between one-shot litigants and repeat players?  These are important questions that will, if we are able to answer them rigorously, provide us with a strong case for support.

And then there is the "Tweed Ring" challenge -- illustrated handsomely by this Thomas Nast cartoon.  Everybody thinks that free legal information is the next guy's problem. Private foundations think government should do it. Government thinks that it is doing it (via weak services like PACER), and that anything it isn't doing must be some kind of value-added service that the legal profession should pay for, or a matter of interest only to academic researchers.  The legal profession would like to pass research costs on to the clients, and increasingly can't (small and solo law offices probably never could).  And so on.

Nobody thinks that free legal information is a bad thing, or unworthy.  It's just not at the top of anyone's list.  The US is a particularly severe case because (unlike the countries of the European Union, where partnerships like ITTIG are fairly common) we have never thought that work in legal information was a matter for cooperation between government and academia. Partnerships have been almost exclusively with private industry, though private industry sometimes relied on basic research produced by information scientists.

This circle may break soon.  Government transparency-by-web will no doubt get a lot of attention from the new administration; expectations among the "hack-the-gov" crowd are already very high, and there is good reason for this optimism.  We are seeing what amount to open-access legal information projects of this kind demanded by assessments like the recent ABA committee report on e-rulemaking and realized in the efforts of people like the Sunlight Foundation (GovTrack.us is a good example).  And certainly the economic crisis is pushing us toward greater awareness of global interdependency and with it the need for global transparency of regulatory and other legal regimes.

At the LII, we are moving toward sustainable self-support; we're not there yet. We get about 20% of our current budget from the generous contributions of private individuals who think we're worthwhile (and if you're one of them, let me thank you again on behalf of all six of us here).   We recently added Google ads to many of our pages; we're seeking sponsors for others.  And this week marks the launch of a new service offered in partnership with our friends at Justia.com : a lawyer directory service that offers great value, and an opportunity for us to give reciprocal benefits to those who help us out either financially or with donations of their expertise in the form of wiki content and other things that benefit our audience.

We have great hopes for it.  Talk it up.

[ Guilt-inspired author note:  apologies for the long absence.  It's been an unusually busy six or seven months, even by LII standards.  With luck, this will be the first in a series of posts reporting on what I've seen and learned in that time.]

bigdog.gifAlong with LII Editorial Boss Sara Frug, I spent yesterday morning with the folks at the Sunlight Foundation -- an organization with a compelling mission and a growing set of activities that reflect it. Founded with the idea of using Web 2.0 techniques to bring transparency to Congress, Sunlight is now becoming a rallying point for a diverse community of folks who share the idea of making government better by making the information it generates and consumes more accessible.

That's an idea we find really attractive. We've been amazed -- shocked, really -- at how little access government has to its own work product (never mind the public). We recently learned that some branches of the Federal courts limit access to the commercial legal information services based on seniority; we understand that the same is true of Federal agencies, where junior people don't have access to Lexis and Westlaw [note to legal research teachers: "junior" would pretty much describe our recent graduates, wouldn't it? Think we should be teaching them more about free online sources? ] Our e-mail is chock-full of questions and testimonials from government attorneys who rely on our edition of the US Code and our Federal rules collections. Our most successful projects over the last fifteen years have involved improving or re-mixing the presentation of Federal data to make it more easily used and understood by a broad audience.

So our question for John Wonderlich at Sunlight was "how can we help?".

Turns out there are a number of ways. We have a lot of expertise in the arcana of Federal data online, experience with data standards, software tools that have remained in-house because we didn't think anyone else had any use for them, and so on. There are a lot of ways that the LII can and will participate in the growing community of technologists who want to "hack government". One of the best ways we thought of involves some help from you... particularly if you are a law librarian, legal scholar, or anyone else with experience working with government documents.

We know from experience that some online documents are especially useful to people building new services on top of government information. Here are some examples of these "linchpin" documents:

These are documents that provide important information about the context and structure of government, or that link isolated pools of legal information together. For example, the classification tables form the basis of our US Code updating features; we parse them into a database that is then used to power both clickable update links and RSS feeds. As published by the government, they are difficult to use; they would be near the top of our list of documents the government should be publishing in easily processed XML form. Put another way, they are the documents that are most useful in building online services that make legal information more transparent. They would be a good focus for our efforts here at the LII, for the growing community of government-transparency hackers, and for lobbying of (and cooperation with) the GPO's FDSys effort.

We think that it should be possible to build a list of (let's say) 100 such documents -- the Big Docs that those who develop these kinds of services would most like to see placed online in a form that is both easily processed by machines (ie. XML) and continuously updated by the official body that creates them. What would your suggestions be? Put 'em in the comments, please.

[editorial note: this week's post is a bit later than usual because of my stay at the 2008 CALI conference, about which more next time. The posting schedule will no doubt continue to be spotty throughout the summer -- I'm travelling and talking more than usual -- Tb.]