Misunderstood? West Publishing as Content Provider

I read with interest this morning, Simon Chester's interesting post on SLAW about Thomson Reuters' Bold Leap to become a software company. It's an interesting piece that gives additional perspective on the announcements TR made at the recent blogger event in St Paul and blogged about by many worthy commentators, such as +Jean O'Grady, +Jason Wilson and +Greg Lambert, to name a few.

The over-arching theme of the reactions to TR's announcement that they now see themselves primarily as a "software solutions" company as opposed to a "content" company is that this is a departure from what West Publishing once was. While I agree the announcement is significant, it's also an interesting glimpse into their own self-image problems.

While it is true that on the surface, West has always been primarily a "content" company, there's a significant misunderstanding about exactly what that means in the context of West Publishing Company. Most observers, lawyers and librarians tend to see West as the producer of the National Reporter System, Digests and Westlaw as their bread and butter. And because each product is so large, it's easy to see them as the primary things they do, produce content. Encyclopedias, treatises, and educational materials pale in volume so seem minor within the West universe of business. It appears that West has always seen themselves in this light, too.

But if you look more closely at their catalog over the years, the most significant product of all is rarely mentioned or given the light of day. While the National Reporter System made West's millions and billions, it would have failed without a method for using the materials. From the start, West's Topic and Key Number System was the thing that actually made the reporters useable and made the company a success. At the turn of the 19th Century Chancellor James Kent complained about the proliferation of case law proclaiming that so many cases were being published that it was driving our legal system into ruin. The rise of the great treatises and encyclopedias of that century were partly a response to that general complaint. West Publishing in its early days was all about publishing more cases, not fewer, so there needed to be tools that facilitated the use of the case law. The Topic & Key Number System and Digests provided the indexing needed to make the case law accessible.  All the secondary materials that West produced over the years were crucial commentary that gave sense to the mass of cases produced by West.

The content produced by West, all the primary case law and statutes was not West's main product at all, it was their indexing, commentary and, later, computer algorithms (squirrelly as the are!) that facilitated lawyers and scholars access to the primary law that they needed. There are twelve million published cases. The fact is, without systems and services that facilitate their use, simply publishing twelve million cases is worthless. Therefore, West's main product over the years, wasn't primary law, or even the secondary materials, it was their indexing structure and systems that made that primary law useful.

Perhaps West was a service company all along and just didn't know it.... All along, West has been fighting with potential competitors who came along and tried to publish the cases. They defended their pagination in attempt to strengthen their hegemony in the field of publication of case law when all along it wasn't really their strong suit: it was their finding tools.

Waiting for the Other Shoe to Drop

I'm baffled by publishers' arrogance these days. Two recent events made me whack my head with the palm of my hand….

Law Journal Seminars Press is now rolling out a "fantastic" new program for their books. Instead of merely paying for the looseleaf supplements for their books (for the most part reasonably priced, by the way), we can now either opt to receive them in print and online, or online only. Print and online, of course, costs more than the print supplements alone. Online only costs about the same.

I'm in an academic law library and online has absolutely no interest for me - or my patrons. Apparently, each title would have to have a separate login. So, if I did opt for either option, I'd need to keep track of the various passwords for each title. Good grief. I can't imagine a more inconvenient process.

We're canceling all Law Journal Seminars Press titles.

The other situation is even more annoying. And it always has been. We subscribe to the Economist ($138/year) and route it among the faculty and put the routed one in the faculty lounge. They've got a pretty nice online service with email alerts, etc., and we looked into getting an online subscription. After six months, they finally got back to us with a "fantastic" deal: $1500 per year for online access for our library. Are they mad? Do they really think that only one person reads our single subscription to the print version?

Come to think of it, I wonder why they don't charge volume rates for the print version any way?

Actually, I'm pretty sure that that's coming….

A New Form of Cheeseburger: Modern Technology & the Development of the Next Generation of Secondary Materials

[With due thanks to Jason Wilson's brilliant post, "Secondary Materials are Like Cheeseburgers," I propose below, a concept of how law librarians, law review editors, scholars and bloggers can cooperate and build a better (well, new!) cheeseburger. These are random thoughts. I welcome feedback. RL]

The recipe:
Take Web 2.0 + Digital Commons + Durham Statement; Combine them, process until well-done and place between slices of WWW, Web 2.0 and app-technology.

The Next Generation of Secondary Materials
It is generally understood that secondary materials serve two very important purposes (beyond earning money for publishers and money and prestige for authors): First, a secondary resource, such as a treatise, practice material, looseleaf or scholarly article, provides users with clear statements of the meaning and application of the legal principles or concepts that are reflected in court opinions, statutory and administrative materials. They are essentially syntheses of rules and ideas expressed in these disparate resources, which are created and published by necessarily disparate entities for necessarily disparate audiences with necessarily disparate interests.
Second, they provide important indexing of these disparate resources through citation and analysis of the various materials. For example, if you are interested in finding the most significant cases that explain the difference between civil and criminal contempt, one need only read the relevant chapter of Wright and Miller’s Federal Practice and Procedure, because it is there that recognized experts in the field not only express their opinions as to those differences, but they also provide citations to the authorities that support their conclusions and analysis. Indeed, there may well be more cases available on the topic, but we trust that the ones cited by the authors of this treatise are the most important and most significant.

As publishers grapple with a variety pressures from shareholders and corporate boards as well as with changes in the technology and practical aspects of publishing, they have tended to respond with practices and policies that have actually served to run contrary to their underlying function which is to offer research tools to lawyers, students, practitioners and lay people who come to them for answers to pressing legal questions. Instead of, as once was the case, of serving the legal community by offering helpful tools and distributing them as widely as possible, they are narrowing their distribution to customers who can and must pay.

It is my opinion that several recent advances in “technology” generally can provide us with a new mode of secondary materials that may be as useful as traditional secondary materials, but that may be available for free for all.

The New Mode of Secondary Legal Materials
OK, here's the idea. What we're seeking is modern indexing to help the researcher focus on the most important cases - and, if possible clear commentary about what the cases mean.
Law review articles and blogs can give us a glimpse of which cases are important by examining which cases are written about and mentioned in articles and blogs. It is possible that wire services, too, can help identify which cases are important by analyzing the frequency with which cases are reported and commented upon. (There are significant problems with using data on cases reported in commercial media sources, but the problems can be accommodated for in various ways.)
The proliferation of digital law reviews in digital commons and services like SSRN, as well as articles and commentary on blogs can provide the substance for building a free database that consists of analysis of primary materials and commentary on policies and procedures.

Given the disparate forms of materials that are readily available on the web already, it is my opinion that new technology can be developed that can efficiently mine them to give researchers valuable information as they conduct research on any topic. Essentially, this new form of research tool would aggregate material from many sources, index them and offer searching and sorting in forms and of the most benefit to researchers.

In order for such as project to be successful, several foundational things should happen:

1. Law reviews should adopt the practice of asking authors to not only supply abstracts of articles, but should tag them with an approved list of subjects headings. They should also agree to tag digital articles with metadata that accurately reflects author and copyright information.

2. An approved list of metadata tags could also be circulated among bloggers and periodicals that produce digital editions.

3. Articles should be mined for citation data, including references to cases, courts, judges, scholars, etc.

4. Search results should be able to be ranked based on a variety of factors, including reputation and productivity of the authors and citation frequency.

5. Full text of cases should be indexed by computer and archived in a secure location. Search results should be available either as full text or as citation lists.

Fantasy or Possibility?
Is it possible to build a research tool that aggregates and searches information from such disparate sources? What’s more, what will such a service look like, and will it actually be valuable to researchers?
It is clear that collectively, blogs, law reviews, digital commons and various websites that report and comment upon legal matters cover a substantial portion of the most important cases of the day. A systematic method of crawling and indexing this content should provide researchers with a viable starting point for researching any current legal topic.
With Google Scholar and efforts on the part of law reviews and digital commons to build retrospective collections of secondary materials, the potential exists to build a rich, publicly accessible free resource.
Looking forward, legal scholars and other experts may endeavor to regularly comment upon breaking cases and other developments, thus providing a continuing source of present commentary about modern legal matters.
Modern developments in AJAX and HTML5, as well as new functionality of apps on iOS and Android platforms and their respective hardware platforms have the potential for the development of entirely new research tools. Unlike the present generation of online databases that are essentially flat text files built from print treatises, these new tools can give people access to a new concept of secondary materials in ways that would have been hard to imagine just a few years ago.
We’ve often heard of the difficulty of building a better mouse trap. Is it possible to build a better cheeseburger?

Perhaps.

Reflections on the End of the World Wide Web and the Future of the Internet as an Information/Service Resource

[This post is in an essay written in preparation for the December 10, 2010, Episode 16 of "Law Librarian Conversations," a podcast about all things law library.... This week's podcast with guests Tom Boone, Reference Librarian, Loyola Law School; Jason Wilson, Vice President Jones McClure Publishing; Ed Walters, CEO, Fastcase.

If you are reading this before Friday, 12/10, you can join us by clicking on this link:
https://www2.gotomeeting.com/register/537047386

Title: LawLibCon 16 - Future of Interface Design (12/10/2010)
Date: Friday, December 10, 2010
Time: 2:00 PM - 3:00 PM CST
After registering you will receive a confirmation email containing information about joining the Webinar. Follow the conversation in the chat room during the live broadcast athttp://lawlibcon.classcaster.com/chat.

Subscribe to LawLibCon on iTunes here: http://u.cali.org/2jwf . Enough shameless self-promotion.... RL]
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I've been fascinated recently by a new trend in consumer use of the internet.

The internet itself has remained pretty stable as a continuing backbone for the electronic exchange of information. It has been surprisingly robust and scalable. Embarrassingly, I was one of those people who, in the early 1990's was predicting that the internet would soon break from the volume of usage as it spread from academic to commercial users. At the time, it seemed that as usage - especially, graphical intense usage - would fill the capacity of routers and cables of our national infrastructure. Surprise, surprise. Hardware manufacturers and ISPs have somehow figured out to meet the demand. (And have they ever….)

But while the internet backbone has scaled up and provided one and all with (potential) capacity for the mammoth amounts of bandwidth. A well wired home could (does?) have a wireless access point that supports at least ten simultaneous devices on the same router at speed and capacity to allow all ten users to stream music while surfing the web with several tabs open.

So the internet itself supports surprisingly intense usage. But the people who make money on the sale of this usage are the ISPs. What about the information providers who provide the information or services that consumers use? In order for content and service providers to make money for their information or services, they need two things: Unique, high quality information or services, and, eyeballs. Service or information providers either make money on the information that they sell to users, or they give their information or services away for free and sell advertising to others. This much is obvious. It's also the great challenge of being in business on the internet.

Either way, the vendor has a vested interest in holding the users' attention as long as possible. One way that they are doing that is by creating new "platforms" for access to, or usage of information or services available on the internet. If you think about it, this basic concept underlies nearly all recent developments in cyber-business. The creation of the iOS and its use of apps to access the internet was one of the very first examples of a way to lure users away from the wide-open world wide web and into a world where use of the internet was now carried out completely from within an application. This provided us with excellent, robust access to and usage of the information or services, while at the same time, keeping us in that very location for focused, discreet periods of time.

But as Mobile Safari began to become a major source of internet activity, other service and information providers began to see the potential for customized, focused internet experience. Google keeps developing more and more products and services and makes them available for free to all-comers - and yet makes billions. And they make that money without ever sending you a bill! The strategy is simple, get users to click into the world of Google for search, mail, documents, RSS feeds, phone, etc.; And keep them there! Google is striving to extend their reach even further by developing its mobile platform, Android and its forthcoming operating system, ChromeOS. Once in the Google world, a user will be able to stay in that world. FaceBook, too, making plays to become the one-stop source of all your internet life and activity.

Developments such as these may ultimately serve to make the intent a series of walled gardens where users can't easily move from one application or platform at will, at least not easily. Examples of how fine these walled gardens have become can be seen in two recent announcements of publishing ventures which have begun entirely as applications on the iPad. For example, Rupert Murdoch's announcement of the creation of an iPad based newspaper called "The Daily," and Richard Branson's new magazine called, "Project." The Daily isn't yet released (as of this writing) but Project is. And it is stunning in nearly every respect. It's beautiful, packed with features and utility. But it is limited in one important respect.

Even if I wanted to share with you the wonderful cover story in Project, I couldn't. First off, there is no URL. Second, even if I could, somehow send you a link to the article, because Project was developed on an app built especially for the iPad, you need one in order to view it. And there's no end in sight. Such applications are bound to appear in all major platforms.

The irony is that well-executed applications provide outstanding experience for the user and many people prefer the experience of browsing Twitter, Facebook, RSS feeds and databases through available apps over accessing the same information with a browser.

What's a developer to do? The hope, from a user's point of view is that developers will focus their efforts on building good services and databases and make them available on every available platform. It is also important for a new system of link locators be developed so that links from within a ChromeOS application will be able to find the same article or information in an iOS application or from within a browser.

Such challenges are so subtle and nuanced as to be nearly invisible today. Tomorrow they may well be extreme obstacles for cross-platform use and may make today's successful platform the preferred one for distribution of tomorrow's information and services….

Two Observations About the State of Modern Law Book Publishing

First, things cost too much and the prices keep increasing at rates that are out-stripping inflation and funding for libraries. It's almost as though publishers don't want law libraries to buy law books any more. Second, while the quality of online services, and, indeed, even print resources get better and better, there is still an indication that publishers aren't developing their materials for what people need, but, rather, what they can profit from.

Think that the reason that we're in these predicaments is at least partly because most of our publishers are so far removed from their customers that they simply don't understand who their customers are, or how or why they are using them.

For the most part, the executives of the big three publishers of materials about American law are not lawyers, nor publishers. Even if they have law degrees, they usually also have MBA's and come from business backgrounds. They are corporate types who see their companies as manufacturing widgets! They don't appreciate the grave responsibility that they have as publishers. (Seriously.)

Think about it. Without publishers, we'd have no idea what the law is. After all, the law is ideas, and it doesn't become static or fixed in any way, shape or form until it's captured in some form or other. The government and the courts have traditionally done a half-a**ed job of publishing legal materials, but that's about it. The only two government publications that are effectively published are the Federal Register and the CFR. Everything else they publish is poorly done: slow, bizarre formats and classification systems, etc. Without commercial publishers, we wouldn't have a workable USC, US Supreme Court Reports, federal court reporters, etc. What's more, even if we did have all that it wouldn't be worth much without looseleafs, treatises and law reviews to tell us what it all means. (See Jason Wilson's excellent post on why Secondary Sources are Like Cheeseburgers. The work of publishers isn't just like manufacturing hub caps or widgets, it's a vitally important role in our whole legal system. It's the lynchpin of our understanding the law.

But publishers and executives who come to the law publishing industry thinking that they are publishing widgets, will view their work differently than those who realize that they are not publishing widgets. This is the first problem: the new publishers are not serving us, they're serving themselves. They think they're making widgets.

Second, in the aftermath of the enormous mergers of the Ninties, the companies have merely grown more dense at the top. People who make decisions about what should be published and what shouldn't, or how they should serve their customers or how they shouldn't are now made by people who are so far removed from their customers, that they can't really hear what's being said. Sales people don't know who to communicate with inside companies in order to pass along good ideas. (Librarians are full of good ideas, by the way. No fooling.) I had an experience recently in which a single title published by a single publisher was available in both print and electronic formats. Managers of the print format didn't even know there was an electronic format available! The left hand didn't merely no know what the right hand was doing; the left hand didn't even know the right hand existed!

There are a couple publishers still around who are independent and produce good materials, and they succeed, in part I think because they are still small enough where actual customers can talk to the publishers and the product development people. But with the likes of the big three (or four, depending on how you count), you can't get any face time with a person who matters unless you can deliver.... profits.

Now, lest this sound too pessimistic and negative, please understand that I'm simply trying to be objective with this post. All this is understandable and remediable. Publishers must realize that their roles are critical components of our legal system and take a broader, bigger view of what they do. And, we customers must be more understanding about who were are dealing with; and we must continually strive to inform them. Especially the those newest to the field. If they don't get it, we must work to explain to them why we care so much, and why they should care about why we care.

Hitting the Wall, Technologically Speaking

Note, this is a draft of a column to be published in Legal Information Alert. RL]

Well, ok. It happened. I hit the technology wall.

It didn’t hurt or anything, but it was kind of stunning, and it made me laugh. In the back of my mind, however, there’s now an ache, a melancholy low-keyed, distant panic is now resting there. Waiting. You’re gonna hit it, too. So be prepared.

Here’s the thing. Yesterday I got official word that I had just won a professional award for “distinguished” service to a special interest section (SIS) of the American Association of Law Libraries (AALL). It caught me completely off-guard because, while I’ve been a member for years, the last time I held an office in it was 1989. (It looks like it’s true, if you stick around long enough, eventually people notice....) The special interest section is called, Computer Services SIS. When I was president of the section, it was called the Automation and Scientific Development SIS, and the section’s newsletter, which I also edited, was called The Automatome. The title of the section and the newsletter each provide an interesting perspective of the state of technology back in the day. In fact, at my last meeting as chair of the section, I proposed that the section should no longer exist. My rationale was that since technology was becoming so prevalent in our professional lives, it was analogous to having a special interest section on paper!

The experience got me thinking nostalgically about the ‘old days,’ and I thought that it would be fun to bring copies of the old newsletter to the meeting and share some of the quaint observations it contained. For example, I remember writing a review of a new 20 megabyte hard drive and describing how it would change the world. I know there are other gems contained in those old issues. I’ve never been shy about commenting on technological developments and predicting the future, so I thought that it would be fun to resurrect The Automatome and have a laugh.

And then I hit the wall. I have a few paper copies of The Automatome in a trunk in my basement, but I don’t know if I have a complete set, and I don’t know what is their condition. Not to worry, I have them in electronic format, of course. In 3.5 inch floppy disks! Formatted in who knows what number Mac OS?! It could be system 4 for all I know. And who knows what version of Word for Mac I was using? (These are rhetorical questions, obviously, because, at this point, only I know the answers to these questions. But, simply looking at the discs won’t necessarily tell me how they’re formatted or what software I used. Perhaps I was still using MacWrite....) But in order to actually use the files to do anything, I’d need to boot up my old Mac, which hasn’t been turned on in nearly twenty years and see what happens.

But let’s suppose that I was able to fire up the old Mac Plus, load the software and open the documents; all of which is possible, I should add. Then what am I supposed to do with it? As far as I can remember, in those days, I was using Compuserve for email and haven’t kept up my account; so emailing a copy of the documents to myself wouldn’t work. The computer didn’t (doesn’t) have any USB ports or any way that I could use to transfer the documents from the computer to another kind of present day storage media.

I could try to print the documents. I still have the original Image Writer that I used for years. It was a cool, state of the art dot-matrix, Postscript printer. I’m sure that I don’t have any print cartridges, and I’m not sure where I could get one. I could try to use a new printer, but I am pretty sure HP doesn’t make a printer driver that for an old Mac OS computer.

See what I mean? I hit the wall. The best I can hope for at this point is to fire up the old Mac Plus and take photos of the screen! I suppose I could lug the computer around and fire it up when I wanted to show people the issues of the old newsletter. As a practical matter, many people don’t realize that one of the original accessories for the Mac was a canvas case that actually had a should strap and a pouch for an external disk drive; in short, the original Mac Plus, all 20/25 pounds of it was conceived of as a portable computer. Hauling the Mac around to show my friends and colleagues vintage computer newsletters on a vintage computer, has a certain elegance to it, doesn’t it?

In short, it’s a wall that we’ll all hit more than once, going forward. In fact, I’m sure that it’s happening with many documents, some of them even more important that old copies of Automatome. Is this a sort of personal morality play for law librarians, to be on guard against saving documents in formats that potentially may become obsolete?

Perhaps. In any case, be forewarned that taking any present format for granted may lead you into a narrow alley with no exits....

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.

Reflections on Conversation with Anurag Acharya, Google Scholar

Reaction to Google Scholar Legal Opinions and Journals (SLOJ) has been largely defined by our experience with extant legal databases. All online legal research tools that we're familiar with at present are databases filled with documents that we search using boolean operators or simple, character-by-character, word-for-word text searching. The main differences between, say, Westlaw and the ordinary "find" command when you search your documents or use Spotlight on your computer, is that Westlaw indexes the documents in ways that we take for granted. Things like proximity connecters, segment searches, etc., are all part of the indexing process and gives us extraordinary power to use the computer to conduct detailed and very precise searches of its database. Other vendors that we're familiar with use similar processes.

Google, on the other hand, as a search engine, is unlike any other in our experience. There is really no full text searching going on. Google's search philosophy is very adequately discussed in James Surowiecki's, "The Wisdom of Crowds." Google does not really search cases or articles for the terms used in your query. Rather, it uses the terms in your query in a variety of ways. It will recognize which are names of parties, which are legal principles, or author's names, article titles, etc. It then uses it's vast network of data which links cases and articles together and returns results based upon frequency of linking and cross-referencing. This is a gross over-simplification, but it suffices to illustrate that the search results are not the objective kind of results that Westlaw, Lexis and others produce. Searching in Google is quite subjective by comparison. Not, of course, in the sense that it is anticipating or evaluating the meaning of the query and returning results accordingly, but in the sense that based on your query, the results returned are based on a document's popularity. The more times a document is cited, the more important the search engine assumes it is.

This approach to searching for law is completely different from other search engines and poses very distinct problems for legal researchers who are tempted to use it as a substitute for "Wexisberg". (Thanks to Greg Lambert for this new portmanteau of Westlaw, Lexis and Bloomberg.) When understood, Google will produce stunning results. The fact is, it does exactly what it says it does. Many criticisms of it as a legal research tool are based upon comparisons of it to Wexisberg, which is something like comparing apples and oranges.

This is not to say that Google SLOJ doesn't need to improve. There are many things that Google can do to make it more palpable to lawyers and legal academics. Clearly defining the content of the databases being searched for one thing. At this point, it all seems very mysterious.

Law Firm Librarians Speak Out About the Real World

Last Thursday's BlogTalkRadio show was very informative. Particularly because we had a lively group of law firm librarians who were quite willing to share their ideas about the skills that law students/recent graduates lack. The firm librarians were Liza MacMorris, of Wilson, Sonsini, Mary Staats, of Farella Braun & Martel, Kathy Skinner, of Morrison Foerster, Sara Paul, of Paul Hastings, Camille Reynolds, of Nossaman, and Peg LaFrance of Orrick. (Many, many thanks to them all.) The message was loud and clear:

First, we need to be very focused on teaching students the value of secondary materials. To a person, they were very concerned that students understand that beginning research with an appropriate secondary source can save them not only a great amount of time in conducting their research, but it can save their clients lots of money, too, because it will mean more precise and more efficient online searching later in the research project. The group was also adamant in this regard that it doesn't really matter whether they are beginning their research with a secondary tool that is in print, online or otherwise. The consensus seemed to be that many firms were still keeping the key treatises and practice materials.

Second, we were admonished to spend more time instructing our students about cost-effective online research techniques. Things like strategic use of research trails, tabs, etc. The message here is clear, CALR in law firms is costly! And any techniques that can be used to reduce the costs is something to be strived for. Since we academics have no reason, let alone day to day incentive to utilize such things, we need to make an extra effort to do so. Here's a situation where calling upon our Wexis representatives to conduct specialized training in these issues. I know that I will be attending them, too.

Third, several of the librarians said that new lawyers and summer clerks need to better understand how to use the librarian. Many come in firms unsure what they can ask librarians, and, then fail to do so. Not only are firm librarians willing and able to assist with help on research products, but often they can help locate experts within the firm. For example, if someone is given the task of researching an issue, sometimes a firm librarian can tell the researcher that another attorney in the firm is either an expert in that topic, or has recently conducted similar research. That person may be the best place to start. The bottom line is, new attorneys and summer clerks shouldn't be shy about asking the firm librarian for help and advice.

Finally, there's been a number of requests for a transcript of the chat room discussion that consisted of nearly 80 participants.
Click here for a copy of that transcript.

In the meantime, I think that the discussion will benefit any librarian who teaches legal research. It can be listened to at the show's website, here, or it can be downloaded from iTunes here. Of course, you can click on the box to the right and listen to it right here, right now.

There's also a discussion begun at the show's Facebook page: http://tinyurl.com/nouem4/. Please feel free to join in.