Tuesday, February 09, 2010

The 21st Century Law Library Conundrum: Free Law and Paying to Understand It

For years people have been predicting the death of books and the general demise libraries. The people who have been most passionate about them are those who stand to gain financially by their own predictions. And that’s not to say that we haven’t all benefited from digital developments in the world of legal bibliography. But in this past decade has seen some extraordinary technological developments. It looks like world of law libraries may finally be at the cusp of a fundamental change in how we collect, organize and distribute legal materials.

Primary Legal Materials
For the entire history of our Western legal system, the publication of primary legal materials (cases, statutes and regulations) was intimately tied up with tools that help lawyers understand the law. The nineteenth century saw the rise of the industrialization of case reporting when John B West created the National Reporter System, a reporting service that systematically and promptly reported every published case that came from the United States judicial system. The process for collecting and publishing them was strictly objective and so efficient that the volume of reported cases made research virtually impossible without an elaborate indexing system, or some sort of key to finding needed cases. West’s Key Number System, that purported to index every legal issue decided by the courts and was accessible through the encyclopedic digest system served two purposes: reporting cases quickly and authoritatively, as well as providing subject access to the courts’ rulings specific issues.

Over time, West Publishing was so successful at its business that it became the reporter of record for many jurisdictions. Even when a state published its own cases, the West reporter versions were preferred because of their widespread distribution, reliability and speed with which they were published, none of which the official reporters could compete.

West also eventually tackled publication of state and federal codes with the same zeal. Although they were considered “unofficial” versions, their annotated codes became well regarded and authoritative, and, in some cases were adopted as official versions.

Since for most practicing lawyers, West was the best possible source for case law, the company assumed a business model that relied heavily on sales of primary legal materials. This left us in the peculiar situation in which most primary legal materials, that are, in fact, free to everyone, were only available from a single (very expensive) commercial source. West Publishing found itself in the awkward position of being a virtual monopolist of a great deal of free, public legal materials, through no fault of its own. Since ours is a nation of laws, it is difficult to understand how states and federal courts and legislatures could not have made it a priority to publish its laws and cases, but it is a fact that the federal government’s official US Code is so slow to be published as to be virtually unusable; the same with the publication of the official reports of the United States Supreme Court. It is equally difficult to understand how or why the federal courts have never even attempted to publish cases from any other federal courts.

Of course, West also publishes a prodigious amount of important secondary legal materials such as encyclopedias, treatises, textbooks, practice materials and form books. It’s unknown what portion of West’s revenue came from secondary materials, but it is likely that it was a significant percentage, perhaps as much as fifty percent. In any case, publication and sales of primary legal materials constituted a significant source of revenue. The company also integrated many features of both enterprises into an environment in which lawyers could easily move between primary and secondary materials. West’s slogan, “Forever associated with the practice of law,” was descriptive; not merely aspirational.

The “Open Access” Movement
Regardless of the nature of their intentions, by the 1980’s there was a significant amount of activism against West’s de facto monopoly on the publication of primary legal materials. Also known as the “free law” movement, activists in the last two decades have been working to make all primary legal materials freely accessible and free to everyone. They reason that since case law, statutes and regulatory materials are the primary sources of the law that governs them, all citizens should have free, easy access to the materials. The fact is, much of the best sources of this material is published by the West Publishing company, which, as described above, was the source of substantial corporate profit. As calls came for governments and courts to freely release their cases and codes, many were unable to do so because they weren’t the publishers of their own materials!

In the early 1990’s the situation heated up intensely, and open access advocates eventually brought the matter to the attention of the Justice Department, alleging that West Publishing was in violation of a number of anti-trust laws and moral principles for refusing to freely turn over their editions of federal case law to the courts or to emerging publishers who wished to scan the contents of the National Reporter System and distribute it on CD-ROMs, microfilm or their own databases.

The issue settled before it was fully heard in the courts, and resulted in West being able to sell their collections of primary materials for licensing fees. Little is known about the specific terms of the settlement, but it is known that publishers pay West to use the volume and page numbers for cases. But the most significant result of the controversy was the sale of West Publishing to Thomson, a Canadian newspaper publisher. The 60 shareholders of West were fed up with the controversy surrounding their publishing of primary legal materials, they simply wanted to get out while the going was good. The company sold for more than 3.5 billion dollars. And the new company, The West Group, a division of Thomson Reuters, still publishes primary legal materials.

But the world is changing and West, as well as the other main publisher of primary legal materials, Lexis, are struggling to keep up. As the government and courts make increased use of the internet and various other online digital technologies to publish and distribute primary legal materials, it is becoming less necessary for researchers to buy them from West or Lexis. As legal researchers, we are not yet in a position a position to abandon altogether the outstanding primary law products from Lexis and West, which are enhanced with elaborate indexing, digesting and case-verification tools, but it is clear that individuals and organizations are working to develop new programming tools to make web-based legal materials affordable and useful. Two examples are Govtrack.us, and Google Scholar’s Legal Opinions and Journals. Govtrack.us is an example of an outstanding free service that gives researchers superior access to pending federal legislation. It has substantially outdone West and Lexis’ offerings for tracking federal law making. Google’s SLOJ, is brand new and, though clearly an inferior means of researching US case law, Google is clearly committed to continuing to improve it, in terms of it’s content and usefulness. With the resources that Google can through into the process, it’s potential is nearly limitless.

This move to free access to primary legal materials appears to be inevitable. The major problems with digital access to primary legal materials are reliability and permanence. At present, there are no standards that can guarantee that any particular document retrieved from the internet at any point in time is the authoritative version of the underlying law or case. Neither is there a standard for for collecting, compiling and preserving electronic versions of this kind of material. These are huge obstacles, but many groups are presently working on developing such standards, including, among many others, the National Conference of Commissioners of Uniform State Laws and the American Association of Law Libraries, and there is every reason to think that some meaningful standards will be forthcoming. In the end, everyone with an internet connection and a web browser will be able to have instant access to all primary legal materials from every jurisdiction, court and legislative body in the land.

“Not Free” Law
That means that law libraries and law books will simply disappear in a digital mist, right? Not quite. Every lawyer knows that having access to all needed primary materials doesn’t always help you solve a research question. What’s more helpful is a work that interprets the cases and describes the procedures and rules that come from them, or a system that provides you access to only the most important, instructive cases. Books that not only describe, discuss and criticize the laws, but provide practical information about how they are applied, plus forms and examples of practical documents, are the most valuable resources that publishers publish, and that libraries collect.

In the old, analog world, libraries could purchase a copy of a book and maintain, and make it available to all patrons and unlimited amount of time. In this environment, secondary materials, the most valuable materials to legal researchers, were distributed extremely broadly. A public library could purchase the materials it could afford and make them available to anyone. A law firm library could purchase a single copy of a treatise and not only make it available to all attorneys in the firm, but the could loan it to other firms, too.

The great revolution in legal research and publishing came not simply because online gave quick access to materials, it allowed publishers the ability to sell access to the materials based on a new paradigm: the volume of time the materials were used. This changed the landscape in fundamental ways by making publishers see the sale of online access to legal materials as the real way to increase profits. Essentially, the sale of online legal materials represents a second sale where libraries purchase online subscriptions to materials they already owned in print. And the sale of secondary materials is really a lease. Westaw and Lexis, as publishers sell two things: primary and secondary legal materials. Under this new paradigm in the present economic climate with shrinking budgets for legal materials, there is increased incentive for discontinuing paying for access to primary materials.

What all this means for today’s lawyers and libraries is that at some point we will be able to gradually discontinue our reliance on commercial publishers as sources for primary legal materials. Logically, this means that we’ll have to purchase less materials from Lexis and West. Sadly, while it may be the case that we won’t have to subscribe to as many titles as before, we will continue to pay them more, for less content.

This is how it will work. Even if we cancel the entire National Reporter System and all the annotated codes published by West, we will still need the indexes, digests and Key Numbers that they publish. Without West’s indexing system and catalog of secondary materials, legal researchers are lost. (Imagine sitting down at your computer and launching a service that has access to all cases ever published and inputing a query designed to retrieve all relevant cases on the subject of when a minor can commit to a binding contract. Would you really want every single case ever decided on the subject, or just the ones that are most influential?) As West and Lexis see their revenue decline from sales to primary materials, they will (and are) increasing their prices for access to their secondary materials to make up the difference.

The Revolution
Will increased access to free primary materials make libraries disappear, or become cheaper? It is unlikely that as demand for premiere versions of primary law, such as that available from Westlaw and Lexis declines, the cost for the enhanced, secondary materials will increase in order to account for the anticipated loss of revenue. Of course, part of the irony is that West has had decades to develop and enhance their primary offerings with annotations and cross references to encyclopedias, form books and treatises, such that it’s nearly unthinkable that someone can practice law with only access to free law resources.

For the last fifteen years, prices of materials have increased at rates steadily ahead of inflation or reason. The digital revolution, that once upon a time promised free access to legal materials, will deliver on that promise; it’s just that the free materials it will deliver, even if it comprises the sum total of all primary law in the the country at every level and jurisdiction, will amount to only a minor portion of the materials that lawyers need in order to practice law, and the public needs in order to understand it.


Paul Magrath said...

Open access is good. But expertise should also be prized, and paid for (at a reasonable price). As an editor and publisher of law reports I am reassured by your prediction that the virtues of selectivity and reliability will continue to be valued, while those who wish to obtain their law in its primary, unmediated state, will be able to do so, subject to caveats as to reliability and up-to-dateness.

Daniel said...

Actually, as long it's accompanied by some basic citation tools, access to "every single case ever decided on the subject" is exactly what I want. To take an example, I can put in a simple search on Austlii for words like 'age' 'capacity' 'enter into contracts', find which cases were cited by Magistrate Jones on the issue, click on the hyperlinked citations, and by following the stars on LawCite (which signify frequency of citation) arrive in very short measure at Gibbons v Wright, the leading Australian case on capacity to enter into contracts. Then by looking at that case's LawCite page, I can find further development of principle and perhaps even a lower court case which is exquisitely on all fours with the point I am seeking to answer or argue.

In many cases it's even easier, as Magistrate Jones himself will have given a nice textbook summary in his reasons for decision (and I trust him as much as I trust the 'law librarians' at Lexis and Thomson/West).

The citation tools provided by Lexis and Thomson/West's in-house staff have been 'good enough' for a long time, but they'll never be as good as having your own sharp research skills and a comprehensive machine-compiled index to use them with.

Daniel said...

I should clarify, my above comment was not meant to imply that the ability to search effectively through case data is any replacement for secondary material. Far from it. What it is a replacement for is the old providers' classification and citation systems for cases. In other words, legal commentary will always be useful, but with a good public access system you no longer need their curation of the primary materials at all.