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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.]

I haven’t rushed a response to Bob Berring’s comments on free legal information, partly because I wanted my response to be thoughtful rather than rushed.  I also felt that I’d made most of my rebuttal points in a previous response to a VoxPopuLII post by Dan Dabney, a West Group employee.  And if you’re looking for substance, I’d suggest that you read it now. These observations are more scattered.

I’ll make no bones about it: I felt that the tone of Bob’s piece was more than a little dismissive, and his use of the term “volunteers” reminds me of nothing so much as Vance Opperman’s use of “copyists” to describe West’s competitors back in the early 90′s.  It’s a convenient, minimizing label from West’s point of view — why else play it up in the interview material chosen for their web site? — but I’m not sure exactly what it means.

I’m not a volunteer in the ordinary sense of the word.  I draw a regular paycheck — very possibly not as large a one as I would if I worked for West Group, but a paycheck nevertheless.  Most of the folks I know in the open-access law game are getting paid by somebody to do what they do.  And the competition that West must fear most — the lowering of entry barriers to the law publishing marketplace by government release of bulk data — will not be the work of volunteers either.  Many of us are information professionals, and have been for a long time.  Some of us  — notably in Canada and Australia — have built open-access systems that are the de facto national resources for their respective countries.  Others, like SAFLII or Kenya Law Reports, are bringing law publishing to places which are simply too unprofitable for the larger companies to touch.  Like a lot of local courts and municipal governments in the US, for instance.

No doubt, though, there are a lot of passionate amateurs out there, and I’m sure they would qualify as volunteers.  Innovation breeds short-lived projects, and passion does not always go hand in hand with the dotting of T’s and the crossing of I’s.  And I have no doubt that there are many projects underway right now that will not be with us in a few years.  Others will learn from them, if there’s anything to learn, and build on what was learned, and so on.  It is remarkable, in some ways, that West has profited as little from such efforts as it has, except in areas like its core search and retrieval technologies, the automated classifiers that lie at the heart of the systems it uses to maintain its taxonomies,  the  web technologies it now uses to deliver its products, and so on.  The key discoveries on which those were based were largely the work of “volunteers”, at least within Bob’s meaning of the word, which seems to be anybody not working at a for-profit company.  Many were the product of publicly funded research.  No doubt West devoted many dollars to perfecting them.  But innovation tends to start with volunteers, people who have itches to scratch and no ability to resist the urge to do so.

Bob, of course, very much knows what he’s talking about when it comes to indexing and librarianship generally, and I would not argue with his conclusion that law unassisted by finding aids of various kinds is not as well suited to professional, specialist use as law that has those aids.  He leaves us to conclude all by ourselves that law that does not have those things, done as West has done them,  is of no use to anybody. That’s a silly idea, and maybe it isn’t what he really thinks, but his arguments outline a void into which it can rush all unbidden.

But in his defense, I have to say that Prof. Berring is not the only law librarian guilty of price insensitivity.  I would never argue with anything the library profession has to say about the relative utility of various legal information products if cost were never an issue for anyone.  What is remarkable is how little cost considerations enter these discussions, even as law firms and academic law libraries are slashing budgets and personnel.  No doubt there are times that it is appropriate to talk about quality in a way that is independent of price  — for example, when you’re trying to teach fledgling legal researchers how to recognize quality and how to “do it right”, whatever that may mean.  Most people end up doing it only as right as they can afford.  The public can’t afford West’s products, and increasingly large swaths of the profession are questioning whether they can either.

The questions we ought really to be considering have nothing to do with whether legal data collections are made by volunteers, unpaid spokespersons, pug-dogs, or space aliens.  They have  to do with the nature of the legal information business in 2009.  Suppose that the public and profession are patsies,  unable to resist the siren song of the volunteer efforts. Suppose, as the old showbiz saying goes, they start staying away from more expensive products in droves? Does that mean that legal information is like the newspaper business, victim of a soon-to-be-regretted shift of public attention from high-quality products to cheap, cloying informational junk food?  Or is it more like health care, where there is no price sensitivity because, much of the time, someone else is paying and the professionals are telling us to buy as much as we can?

That’s what us paid, long-term “volunteers” are thinking about.  The library profession should be too.

PS: Two other excellent rebuttals from our Canadian colleagues Daniel Poulin and Catherine Best have appeared today.  I recommend them highly.

[ 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.] 

The facts, at least, are simple:  Joe Arpaio, the controversial sheriff of Maricopa County, Arizona, claimed that Federal law lets him arrest suspected illegal immigrants during street sweeps.  He provided a press handout that quotes extensively from “8 USC 1324(a)(1)(A)(iv)(b)(iii)”. He said that this text gives him authority to continue those arrests, despite the fact that Federal officials had explicitly rescinded an agreement that once allowed him to do so.

He claimed the LII as the source of that law. There is no such sub-section in the US Code. No such text appears on our web site, or ever has — a fact easily discovered by reporters who went to our site.  Instead, the text in Arpaio’s presser was made up by an anti-immigration group in Connecticut.  It looks awfully official, though.  You can read this story in newspapers and blogs here, here, and here — and you probably should, because this is the Internet, and who’s to say I’m not making things up, too?  I thought Stephen Lemons’ story in the Phoenix New Times gave a good account of the legal-information side of the story.

I spent last Friday morning dealing with media reaction to all this. I was delighted.  I was delighted that Sheriff Arpaio thinks that the public finds us so authoritative that he can use the LII’s name as the shiny scaffolding for a Big Lie. In fact, I wanted to call my mother and tell her that the LII had finally reached that pinnacle of American success, the name brand, just like the legal-information services that the big guys use.  It is often hard for me to avoid cracking wise.

Not so this time. I am proud, seriously proud, that we have helped shed light on a blatant abuse of authority.

Sheriff Joe has powerfully reminded us of why we do what we have done for the last 17 years.  We do it because we believe that everybody should be able to find out for themselves what the law is, without bias or interference.   That goes for the people of Maricopa County, for Joe Arpaio, and for journalists. It goes for the Border Patrol officers at the Field Operations Training Center in Glynco, Georgia — where one of our donors tells us that LII resources are regularly used as part of the curriculum.

We can’t know how many of the 100,000 people who visit our web site each day come here because they are looking at an official statement and saying, “Wait a minute — that can’t be right.”  I think that’s rare.  I hope that it’s not often necessary.  But just as the power of the Internet is an accretion of small things, so too the power of a service like ours is described by a lot of little stories about people, and what they can do, and what they know that they can do.

That is not a noisy drama.  It shouldn’t be.    It is not as glamorous to publish the boring details of 17 USC 107  as it is to dress up in a mask, cape, and green tights, call yourself a “copyfighter“, and set off to save the world.  Instead, we strive to be accurate, timely, and boring.  The fairy tale of how Robin Hood Beats the Bad Sheriff and Saves the Little Guys is exciting. Hundreds or thousands of ordinary  stories about how reading and understanding a government regulation can help a family-owned business are not — unless, of course, it’s your family, and your livelihood.  The five of us are in the quiet, mostly invisible business of putting the law where everyone can find and understand it, each for her own small purpose. That runs both wide and deep.

Four centuries ago Sir Edward Coke took the radical step of translating law books and writing commentary on English law in English, rather than the “law French” that was the language of lawyers.  He did so in order that “the nobility and gentry of the realm…may understand … seeing
that ignorance of the law is no excuse.” It was Coke’s Institutes that formed the basis of John Adams’ and Thomas Jefferson’s legal training. All of us have heard the phrase about ignorance of the law. Few know the part of the quote that talks about understanding, or about a history in which law was something that most could not read.

We’re with Coke.  People need to be able read and understand the law.  The issue of what Joe knows, and what Joe claims he knows, and what average Joes can know, is too important for things to be otherwise.

[NB:  I’m compelled to tell you that the opinions expressed here are strictly my own and not those of the Legal Information Institute, the Cornell Law School, or Cornell University. Or my mother, even if she was mentioned in this post; she’s a nice lady who mostly thinks well of authority. They are most certainly not those of Sheriff Joe Arpaio.]

Somewhere in the snowdrift of paper on my desk is a program from an opera performance I attended a few months ago.  Among other things, it’s a document that tells you what the opera company is doing and who, specifically, is doing it.  It  also tells you — less directly — who’s paying, and how.  Among other things in it, I found:

  • a roster of individual donors arranged by the level of support they’ve provided
  • a roster of corporate sponsors
  • a featured list of corporate sponsors who are underwriting particular activities or programs
  • advertisements for various businesses, small and large, often with music-related slogans that are pretty dumb (“our pastries hit a high note”)
  • a notice of a business-networking event — a kind of meetup — jointly sponsored by the opera company and the local chamber of commerce

You’ll find similar things in the programs of every large and small opera company, symphony, and theater organization — any arts non-profit, really — in the country.  That’s not new; all of those things have been around for as long as I can remember.

What’s that got to do with the LII?  Well, in some form or other, all of these things are coming to the LII web site.  Some already have.  Other things that opera companies have — like admission fees — never will.  Here’s why.

The LII’s core staff consists of six people, augmented by a  pool of student editors, programming interns, and others who help us run a web site with over a quarter-million documents and 100,000 unique visitors every day. At any given moment, those same core staffers are responsible for one or two funded research projects, a series of consulting jobs, a guest blog, and occasional writing on policy and other matters of academic and public interest.  As continually as we are able, we improve our services and our technology.  We are spread very thin.  About a year ago, we realized that the LII had no prospect of either expansion or field-leading innovation so long as our core staff remains the same size.  We had more than fully committed ourselves to the maintenance and continued development of those collections we currently offer.  And to some of us it looked very much as though we might end up spending our careers watching others — people with more resources that we can command –  doing work that we knew how to do five years ago but could not fund.   At a time when there is more need than ever for our expertise and for innovation in the field, this seemed like a pretty bleak prospect.  By nature, most of us here are better pioneers than settlers.  And we have a lot of unrealized ideas that we would like to bring to you.

So for us the question was not really one of how to stay afloat; we could, we think, tread water indefinitely, although the Internet is usually unkind to those who lose momentum.  The problem was, and is, how to move forward, to continue our longstanding traditions of leadership in the field of legal informatics and service to the public.  As a practical matter, this amounts to asking, “How will we get more money?”  Real leadership demands not only that we support ourselves as we are now, but that we grow.  We need more people to carry on our existing programs even as we innovate in new areas.  The answer, it seems to us, lies in making use of our considerable traffic and other assets to support our activities, as well as relying on the continued generosity and commitment of our supporters.  So we began thinking about what our opportunities might be.

There are, of course, a lot of answers to those questions.  We got very interested in what might motivate people to help us.  We have always had a loyal core of supporters (thank you, and thank you again!) who believe in the idea of open access to law, and give us money out of pure belief and generosity.  We think that some among our donors are partly reimbursing us for a service we offer to their law practice (yes, all you law-firm librarians and small-firm practitioners — we know you’re out there and we very much appreciate your help).  And we think that many, many more might take advantage of an opportunity to do well by doing good.

Right now, such folks can help us — and themselves — by listing themselves in our lawyer directory and buying a badge showing their support for the LII; this (not coincidentally) causes them to be shown more prominently in the directory.  Very soon, we will begin recruiting sponsors for specific pages in WEX, everybody’s legal encyclopedia, for the LII’s Supreme Court Bulletin, and for our larger collections (if any of these interest you, contact us).  And right along we have been making use of a modest Google AdSense presence to bring in some revenue — right now, those little ads are paying for about half a staff person.  When we put the AdSense blocks in place, we half-expected to get some negative reaction from our audience.  That has not happened. Indeed, a few people have privately told me that they think that our pursuit of more commercial opportunities is just good stewardship of our donated income.  I think so too; that’s because I come from the “pray to God but row toward shore” school of assistance-asking.

No doubt this raises some questions.  For instance, what about grants?  We seem to fall somewhere in between the agendas of those organizations that support basic science (our work tends to involve applications rather than basic research) and those which have social or policy objectives (which tend to have more urgent priorities than legal information).  Almost none provide operating support.  So it is a small population indeed. We continue to look for good fits (as we have for many years), but we think that these are very infrequent opportunities that will not provide a reliable base.  A second, logical question is whether we are contemplating any kind of user fee.  The answer to that is a simple “no”.  We are building a business model by which we can find reliable ongoing support for open access to legal information, for practical work in legal informatics, and for the promotion of public understanding of law — at no cost to the consumer. Finally, no, this was not a decision prompted by the recession, or by any drying-up of support from other sources.  In hindsight, it looks prescient — but we were driven entirely by our collective need for professional fulfillment and our desire to offer more and better services.

So, finally –  my thanks to those of you who have been loyal supporters all along.  We can’t do this without you, and we don’t think it’s fair to ask you to do it all for us.  To those who would like to work with us in other ways, I look forward to hearing from you.  And if any of you have questions or suggestions, I’m always eager to hear from you at tom {{dot}} bruce [[at]] cornell {{dot}} edu.

Lately, I’ve been tempted toward complicated prose that urges rethinking of legal-information fundamentals.  Why? Because the idea of public access to law in a global digital society makes some fundamental rethinking necessary.   It would be swell to explore those notions in some longwinded way, but I’m both lazy and out of time.  So instead I am going to offer two really simple propositions:

1) Simple fairness demands that the public have free access to legal-information systems that embed the same functionality and quality as the most advanced systems commonly available within the public body that creates or issues that legal information.

2) Authority in legal text ought to be judged simply (and exclusively) on the basis of accuracy, currency, and other objective quality measures.  The barter in “official status”  is unnecessary.

Please discuss in the comments.  The fun, of course, lies in cataloging all the ways in which our current situation does not match those ideals, and why.  Assuming, of course, that you think they are ideals.

Over in VoxPopuLII this week, Dan Dabney makes a number of good points about the proper role of LIIs and other public legal information providers. In his view, our useful purpose is to drive innovation up a ladder of value-added legal information providers.  West Group, unsurprisingly, occupies the top rung of his ladder.  I agree with him.  Duopolies are, in many ways, a terrible environment for innovation, because innovation is too often seen as a weapon to be used against the competitor rather than as a way of answering customer needs (I adhere to Guy Kawasaki’s view that your customers don’t care about eradicating your competition).   I am proud that the LII has contributed substantially to breaking the intellectual and engineering stranglehold that West and Lexis had on legal information twenty years ago.  And I think that we and our colleagues in the public sector have driven a great deal of innovation since.  You ain’t seen nothin’, yet.

Dan successfully makes the case — if I can equally reasonably shape his views into a different metaphor — that an average public-transit bus will never win a race against a Porsche Carrera GT.  And indeed it is true that LIIs have neither the holdings nor the editorial depth of Thomson Global.  Nor, I think, would we outpace them in any particular slice of American legal information. Though I might be willing to take him on in a street race with the US Code, for which I think we have better Web architecture, even though our edition is less speculatively up-to-the-minute than West’s.  But that is not my point. West is unquestionably winning the Grand Prix. The LIIs are just trying to help a lot of people get to work.

A couple of weeks ago, I started a draft article for this space with a self-conscious echo of Fred Rodell:

There are two things wrong with how we think about legal information. One is that we are not thinking about how it is produced, and the other is that we are not thinking about how it is consumed.  That about covers the ground. 

I want to concentrate on that second idea, because it would be fair to say that West and the LIIs are thinking about very different kinds of research consumers.

Dan Dabney imagines — as most law-school instruction in legal research seems to — that the aim of research is to support argument in high-stakes litigation, or in some other setting where potential hazard justifies the expense of a high-end service.  This echoes the position that John West himself took over a hundred years ago: the idea that legal information provides the lawyer with insurance against the loss of his case.  West was arguing for the superiority of comprehensiveness over selectivity in the publication of cases.  This is unquestionably true, and as West said the general policy of insurance is the best one.  It is equally true, however, that most people insure only to the value of the goods.  Few will throw $5000 worth of research at a $500 case.

Ken Svengalis has made himself endlessly popular with commercial publishers by making that point in the form of a buyer’s guide that stresses practicality over comprehensive acquisition.  And of course services like Findlaw and LexisOne are tacit nods to that principle, as are well-established, lower-cost commercial services like LoisLaw and FastCase. When we talk about those services, we are talking about services primarily intended for lawyers.  The aim of an LII — or at least this LII, for my colleagues elsewhere do very different things — is to provide legal information for everyone, something that they do by using technology in innovative ways.

And that means that we serve a type of legal research that is very different — not naive, necessarily, but different.  We primarily serve people whose aim is to manage risk using information, and to take bearings on the advice offered them by professionals.  In that respect, use of the LIIs closely resembles responsible use of something like WebMD.  And it continues a belief in responsible self-help that we have seen from diverse sources in the past — citizens advice bureaux, publishers like Nolo Press, trade- or interest-specific guides to the law, and so on.  This is not pro se representation, and it is not intended to take bread from the mouths of lawyers (my own belief, and Richard Susskind’s, is that it will increase the demand for legal services by lowering entry barriers).  It is simply a different activity (indeed, it was Dan who first clued me in to how different it really can be). It is aimed at those whose use of primary legal material is less rigorous because their aim is, perhaps, to get general orientation, or to make sense of the competing advice of professionals and pundits, or to fortify themselves for an initial encounter with a professional who, in their minds, represents a legal system that is scary and incomprehensible.

Of course, there are those with more sophisticated needs who cannot afford more highly priced services than ours.  In fact, most of our users are people making use of legal information in a professional context, not people having traumatic, episodic encounters with the legal system. An example I often use is that of a hospital administrator with a day-to-day need to know about public benefits law.  Many of our most supportive users are government lawyers, and I understand that in some agencies at least access to commercial services is at least limited by seniority if not altogether barred by the budget.  And quite recently the Permanent Bureau of the Hague Convention on Private International Law has become concerned with the high cost of legal question-answering across borders.  That is the problem with the Porsche:  it is fast as hell, well-made, and pretty, but far too expensive for a lot of people who need more ordinary transportation.

In a very recent paper , legal anthropologist Annelise Riles points out the existence of something she calls “the polycentric model of legal expertise”.  The idea, so far as I understand it,  is that there are benefits to be had from the distribution of a species of legal literacy throughout a population. She attributes some important aspects of Japanese legal culture to this phenomenon.  This, I think, is what LIIs are about in the long run: the promotion of polycentric legal knowledge.

That, and building shinkansen , which go almost as fast as Porsches, and carry a lot more people.  We’re starting to lay the track.

Our LIIBULLETIN publication is really two publications in one, delivered through the same e-mail channel.  It rapidly notifies subscribers of Supreme Court decisions, usually minutes after they are handed down.  More, it delivers sophisticated but accessible analysis of upcoming Supreme Court cases about two weeks before they are argued.  The analyses are student-written and student-edited, and so it’s tempting to think of them (and of the LIIBULLETIN) as a kind of law review.  That’s a little misleading, but not because the BULLETIN analyses demand any less of our students. I think it’s a different kind of experience, with unique strengths.

The LIIBULLETIN is written by 30 students. 24 are associate editors working in teams of two.  Each of four student “managing editors” supervises three or four of these teams.  An executive editor and editor-in-chief supervise them in turn, assigning cases to teams and performing a second review of the product. They are also responsible for a “print edition” that appears in the Federal Lawyer, the magazine of the Federal Bar Association, which reaches all members of the Federal Bar Association, all Article 3 judges, and all members of Congress.  Everything is aimed at producing high-quality writing and insightful analysis that remains accessible to non-lawyers.

The editor-in-chief and executive editor are chosen by the LII, usually with strong input from the current editor-in-chief.  The incoming editor-in-chief and executive editor participate in the choice of supervising (historically “managing”) editors.  All six then run a selection process for the associate editors, which consists of a written sample and an interview process. All involved are paid a very small stipend.

We ask the editors to do something hard:  to write for the person they would be if they weren’t law students. My slogan for that approach used to be  “write as though you were writing for your mother”.  I quickly discovered that an amazing number of law students have mothers who are lawyers. Now I just say “write for the person you were a year ago, and for the clients you’ll have two years from now”.  We stress that “non-lawyer” does not mean “unsophisticated”.  Where popular writing about the Supreme Court often consists in large part of human-interest stories about the parties, we ask students to produce thoughtful discussions of cases and their implications from a legal perspective, and to try to draw out the larger, non-technical implications of what the Court may decide.

This is different from law reviews in a number of ways:

  • The writing is by students, for attribution
  • The writing is pitched for people who will one day be their clients.
  • Deadlines are absolute, and frequent.
  • Teamwork and a mentoring process (particularly on writing) are built in.
  • Substantive consultation with faculty is frequent and rewarding.

You can, of course, judge the product for yourself.  We know that the BULLETIN is widely read — and that we often hear from those representing the parties and from academic observers of the Court.  Their feedback is usually positive and always valuable for the editors, though there are always partisans who want to relitigate the case with us.  District of Columbia v. Heller provided a great example of how different an experience this can be. It was rewarding to watch the students patiently and persuasively defend the objectivity of their analysis  in the face of attacks from advocates on both sides of the issue. Via e-mail and blog posts, they made their case.

Last month we decided to find out more about the LIIBULLETIN’s audience, via review of the subscriber list, by reviewing the inbound-link census we get from Google Webmaster Services, and by means of survey. What did we learn?

First, we learned that we need to be careful with survey results.  It is sometimes hard to know whether respondents are talking about the LIIBULLETIN that is a notification service for decisions, or the LIIBULLETIN that provides pre-analysis of upcoming cases.  This is particularly the case because the analyses are a relatively recent addition — they were started in 2005, while the notification service has existed since 1993.  Still, we know that about two-thirds of the subscribers read the analyses in their condensed form, and roughly half of those read the full version on the Web.

Second, we learned that we are at least 15% more popular than we thought.  According to its subscriber list, the LII reaches about 18,500 people and has grown at the rate of 1,000 subscribers per year for the last 3 years.  In reality, we reach at least 3,000 more people than that via “rebroadcasting” from our subscribers.  Often they relay it to whole firms (the largest of which has 450 lawyers), or to professional-interest listservs (as with criminal-defense attorneys in Alabama); sometimes it’s just to five or ten other lawyers in a practice group or small firm.  But, like everything else on the Internet, it adds up.

Third, we learned that we have a very diverse audience.  We have subscribers in:

  • all 25 of the AmLaw top 25 law firms;
  • 12 US Circuit Courts and 65 District Courts
  • a slew of Federal agencies
  • many corporations, including media outlets
  • 589 colleges and universities
  • 63 foreign countries

They’re a diverse group, including many, many extraordinary citizens, lawyers and judges, a Senate staffer, an RV transporter, an advisor to the president of an African nation, a forensic psychologist, a prison warden, the president of a Christian women’s college in Japan, an American Shari’ah law judge, and any number of people who want to hear a clear and objective report of what the Court has done or is about to do.

It is, if I modestly say so, an impressive list of accomplishments for any law school publication.  But if you were to ask me what I’m proudest of, it would be a toss-up between the high value we’ve created for our audience and the management model that we’ve perfected over the last few years.  I think we’ve found a scalable, stone-soup-based way of making high-quality law content.

We are going to do a lot more with what students have taught us as we worked together to perfect  that model.  We have a plan that may surprise you…. and we’ll be revealing it soon (yes, this is a blatant attempt to heighten suspense).

If, after this,  you’re moved to subscribe to the LIIBULLETIN, you can do so here.

Over the last several months, I have spent an awful lot of time travelling. I met with a lot of people who work in legal information, both here in the US and abroad.  And I had every intention of filling this blog with posts about interesting things I’d seen and heard — a kind of travelogue of legal informatics.  It’s been slow in coming.  Actually, I’m not convinced that a travelogue per se is what’s needed.  Event-by-event reporting is easy.  Drawing a map of everything that’s going on out there in the world of legal information is not.

It’s a big world now.  People are doing legal informatics in a lot of places.  And that phrase — “doing legal informatics” — now includes a breathtaking number of disciplines and perspectives.  It used to be that we thought of ourselves as situated at the corner of law publishing and computer science.  Now we need to add big chunks of information science (itself a composite field), legal bibliography, digital librarianship, e-government studies, political science, and sociology of the professions.  At various times during the last six months I’ve had fascinating discussions with representatives from each of those academic disciplines, and from the practical side of librarianship, government, and publishing.  Each was working in a distinct context leading to different kinds of insights and solutions. Each worked within a different legal regime.  Each had mapped a different part of the world.

We badly need communication across borders — national, disciplinary, institutional. It’s important that we do that now.  We have opportunities — and challenges — of unprecedented scale and scope.  We can act on those most effectively if we can stitch together all the little maps, overlay them, get a more complex and mutually-informed view of the world. And stop reinventing the wheel in each of its out-of-the-way corners.

It has taken well over a decade to reach this point.  Legal and government information showed up on the Web in the early 90′s — our own efforts here at the LII and Carl Malamud‘s liberation of the EDGAR database were leading examples.  Those were quickly followed by open-access projects in Canada and Australia.  Digital-government projects began in the US around 1995 or 1996, including many self-publication projects in courts and legislatures.   These efforts created significant pools of data based on open standards, and the availability of that data made it possible for information-science researchers to pay far more attention to legal data than they could when it was behind proprietary barriers.  Now we’re seeing lot more work  on legal data by computer scientists working with language technologies, database specialists, semantic-Web engineers, and others. In Europe, work on integration of government information was propelled (and, ultimately, funded) by the requirements of unification.   Everywhere, more and more courts, legislatures, and agencies are putting information on the Internet in more and better ways using improved technologies.

A condensed narrative like the preceding demands oversimplification, and I apologize if I’ve slighted anyone out of sheer middle-aged forgetfulness.  And this tale no doubt has its beginnings much earlier — you could, for example, point at the long cooperation between the statistical arms of various government agencies and academia and industry as part of the story.  But as with so many other things the rise of the Web was the start of a new wave.  That long, slow groundswell — the product of many individual efforts over a decade and a half — is now peaking.

The American press first saw fit to remark on it about a year ago, with the release of extensive caselaw datasets by public.resource.org — Carl Malamud’s latest effort.  A community has started to form.  Just within the last year or so, we’ve seen:

It’s time.

But … we need to be talking to each other much, much more.  We need the kind of efficiency that we can only get by learning from one another.  We need to make informed choices between inexpensive automated approaches that work by brute force and the hand-crafted, highly-accurate approaches of legal bibliography that are not always scalable or affordable.  We need to recalibrate what we mean by “authority”, and begin to think about measures of quality and reliability for legal text that avoid the creation of  unnatural monopolies in legal information.

Okay, so I admit I was having a kind of Tom-Friedman-sings-kumbaya moment there, and I’m over it now.  Really.

We do all need to be talking more, and this week the LII starts a modest effort in that direction. Our new guest blog, VoxPopuLII,  is designed to help the conversation along with biweekly posts from folks you may not have heard from before.  They’re from all different tribes in all different places on the intellectual and global map. We’ve asked for their big ideas — and if you’ve got big ideas of your own, I’d invite you to get in touch with me about writing something for us. And of course we invite your comments and suggestions about what you find there.

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A recent tweet reminded me that, almost 15 years ago, Peter Martin and I spent the day with members of the Bar Association of the City of New York.  As I recall, the best moment of the day was an extended peroration from Chris Locke (a/k/a rageboy) on the subject of lawyers and the Internet which, in his mind at least, had something to do with dinosaurs calling to one another in a swamp (yeah, I know, and for the life of me I can’t remember what it had to do with the subject at hand, either — but one of Chris’ great virtues is that he can suspend that kind of disbelief, apparently by holding his mouth right).

Second best (sorry, Peter) was Peter Martin’s presentation on why lawyers belong on the Internet.  Perhaps it might have better been titled “What the Internet offers lawyers”.  Peter mentioned five things:

  1. clients and potential clients are there
  2. other law firms are establishing themselves on the Net (there were only two, at the time)
  3. conversation among lawyers and maybe clients is taking place there
  4. cost-effective access to (legal) information
  5. cost-effective global communication of data of all sorts

These may seem obvious now.  At the time, they weren’t.  And maybe they’re not so obvious even today, or maybe each new technology that comes along makes us revisit these same arguments:

  1. clients and potential clients? Kevin O’Keefe gets rhapsodic about LinkedIn (6/2008)
  2. other law firms? Muzeview’s law firm Internet presence rankings for December are here.
  3. conversation among lawyers and maybe clients?  See Justia’s LegalBirds, LexTweet, and maybe just plain old Twitter itself.
  4. cost effective access to legal information? o hai, westlawz [1, 2, 3….].  And there are over a million inbound links to the LII alone.
  5. cost effective global communication of data? heh.

So… these things just keep coming around again and again, getting stronger in each cycle.  Fifteen years from now?  (kthxbye, westlawz….)

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.]