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• I don’t advocate that the text of legal documents should be wiki-ized – the metadata, like headnotes and linking between cases and categorizations, etc, should be wiki-ized. And, John, I think you are confusing the role of law school education. We aren’t learning legal documents (which are digital information), we are learning reasoning skills, etc. (which are not). I think in an ideal world, the law is something like computer code, and in some areas of law this is truer than others. But in the end political gamesmanship is going to dominate the efficiency/effectiveness goals that would be furthered by treating law as a functional digital good.

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• First, will allowing American citizens--many of whom assume that statutes are the entirety of what makes up the law--to view caselaw freely solve the problem of being influenced and controlled by laws they don't have access/understanding of? On the other hand, Wikipedia has entries for some cases where the cases are (minimally) synthesized. If your concern is about getting the citizenry information about what cases are out there, is that equally helpful? Differently helpful? Second, I'm pretty sure that Lexis and WestLaw? are forced to have non-mimicking platforms because they keep suing each other for (what they perceive as) copyright violations, not because of collusion. -- JoshS

• Why are you pretty sure, Josh? Could you help us be pretty

• • Why yes, Eben, I would be happy to. E.g., West Pub. Co. v. Mead Data Center, Inc.. -- JoshS - 11 Dec 2008

• -- JohnPowerHely - There have been some halfhearted attempts to fix this. See H. R. 1584, 104th Congress. In the past 56 years only this and a companion bill have been proposed, and neither made it out of committee.

• -- JohnPowerHely - What of the fact that the two platforms are not completely equivalent in terms of database coverage? I would be interested in seeing some data on whether or not the difference in coverage of briefs and secondary legal materials has an effect on legal scholarship, and if individuals who are more proficient with one than the other will cite to sources from that product.

• Some think that wikis would be well-used for, say, treatises. I think there's not much value in putting all our caselaw in wikis--a special-purpose annotator might be better, because there shouldn't be any reason for The Public to go around changing the text of opinions. -- DanielHarris - 15 Nov 2008

• Not of course. This is true of federal publications. But state legalpublications can be copyrighted. Thomson/West/Reuters' predecessor in interest, West Publishing Company, was the proprietary publisher of state reports from the 1880s, which is how the company built its fortune.

The value added by Lexis/Westlaw is research efficiency--an electronic search of an online database is infinitely cheaper than scouring filing cabinets at a courthouse or library. The Lexis/Westlaw duopoly does not face a serious rival entrant because the costs of building a minimally comparable database from scratch present a prohibitive barrier to entry. At the same time, digital databases operate at increasing returns to scale, so the existing incumbents can easily underprice rival entrants and put them out of business.

• This assumes a degree of difficulty in learning how to perform searches that could only be itself the result of ignorance. It is easier to learn enough about databases to make learning to search productively with either (or with something else) largely transferrable.

• There are too many reasons for this sort of design to accept this analysis on faith, and you give no reason to believe that these are causal relations. It is true that making a generic user interface is not in either's interest, but the real point is that neither has an incentive to get rid of web interfaces altogether in favor of a semantic web approach that would be superior for all users.

• Requiring use of proprietary services to deliver education is an objectionable practice. We should have discussed this with the instructor.

• You are trying to invent the semantic web. You won't do better than all the people working on it have already done, and the lawyers won't need more than the others working with much larger problems need.

• Why are you pretty sure, JoshS? ? Could you help us be pretty sure too?

• First, will allowing American citizens--many of whom assume that statutes are the entirety of what makes up the law--to view caselaw freely solve the problem of being influenced and controlled by laws they don't have access/understanding of? On the other hand, Wikipedia has entries for some cases where the cases are (minimally) synthesized. If your concern is about getting the citizenry information about what cases are out there, is that equally helpful? Differently helpful? Second, I'm pretty sure that Lexis and WestLaw? are forced to have non-mimicking platforms because they keep suing each other for (what they perceive as) copyright violations, not because of collusion.

• First, as I'm sure you know, many American statutes have been made available by the relevant legislative authorities, which means I take your argument to be primarily concerned with the unavailability of caselaw. If that's true, will allowing American citizens, many of whom assume that statutes are the entirety of what makes up the law, to freely view caselaw solve the problem of being influenced and controlled by laws they don't have access/understanding of? On the other hand, Wikipedia has entries for some cases where the cases are (minimally) synthesized. If your concern is about getting the citizenry information about what cases are out there, is that equally helpful? Differently helpful? Second, I'm pretty sure that Lexis and WestLaw? are forced to have non-mimicking platforms because they keep suing each other for (what they perceive as) copyright violations, not because of collusion.

The Lexis/Westlaw Duopoly and the Proprietization of Legal Research

The Role of the Law School

Of course, Lexis/Westlaw don't "own" the law. Statutes, regulations, and cases are produced by agents of the people's government--they are public property, regardless of public availability. The value added by Lexis/Westlaw is research efficiency--an electronic search of a massive database is infinitely cheaper than scouring physical records at a courthouse, legislature, or library.

It is difficult to overestimate the social costs imposed by the Lexis/Westlaw duopoly's proprietary internment of legal information. It distorts the costs of civil litigation, precluding the pursuit of socially optimal lawsuits. This distortion is amplified when a wide income separate the parties, where the wealthier party has a superior research advantage. Criminal defense attorneys with inadequate resources cannot mount satisfactory defenses.

The use of Lexis/WestLaw produces platform-specific human capital. By using a particular platform, a user becomes habituated to and proficient with that platform, the benefits of which cannot be recovered on alternative platforms. To the extent that platform-specific human capital has been vested, Lexis/Westlaw can extract rents from their users; as long as the monopoly-rent tax is less than the costs of rebuilding platform-specific human capital for another platform, the user will remain loyal and pay the tax. With attorney wages what they are, a 10 or 20 percent cut in research efficiency will deter most from moving to a different platform. The platform-specific investment also discourages users of the existing platforms from

The Free Alternative

trash

When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons.

The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals.

The Lexis/Westlaw Duopoly and the Proprietization of Legal Research

Complicity in the Legal Academy

The Lexis-Westlaw Duopoly

The Political Economy of Legal Research

The Role of The Law School

The Free Alternative

Since registering as a Columbia Law student 13 months ago, I have received 56 emails from LexisNexis--just shy of one email per week. These emails consist in bribes to convince me to use their service--not for schoolwork, but for playing around on an artificial legal research task in exchange for "Lexis Points," which can be redeemed for merchandise. The purpose of this exercise, naturally, is to habituate me to performing legal-research tasks on their system. In addition to generalized legal-research human capital, use of Lexis or WestLaw? produces system-specific human capital being built here;

LexisNexis? and WestLaw? are responsible for [[][__ percent]] of the market for legal information.

• Elliott, you might want to check out the article "Who Owns the Law" for some more ammunition for your argument. -- RickSchwartz - 27 Oct 2008

What we do know, though, is that these publishers have manipulated their publications for monetary reasons. In 2004, Elsevier killed a medical journal article about the rates of cancer mortality of former IBM employees under pressure from IBM.

"While the Internet provides access to many free sources of legal information, they are likely to be substantially less useful and efficient than fee-based legal resource providers."

The Future of the Casebook: An Argument for the Open-Source Approach (see pg. 10 on Wexis)

"An open access approach would mean new pools of course materials for professors to draw on, new means of interaction and collaboration between professors and students, and new possibilities for restructuring the law school curriculum."

[[]["For other academic disciplines, commercial publishing has the significant drawback of making it really expensive for scholars to get access to what's happening in their fields. Open access reduces the cost of access dramatically, whether or not it encourages scholars to read the work. In law, scholars already have ready access to their colleagues' work. And they still don't read it. What's the point of making the work ... free?]] ... Once LexisNexis? and Westlaw started putting full texts of law reviews on their databases, the authority of print started to recede, leaving the authority of the publisher and, to a lesser extent, the authority of limited access. A lot of law professors these days never actually handle original physical copies of law review articles...

[[http://www.lexis.com/research/buttonTFLink?_m=31179fc816dce014ff540cfd65848bac&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b62%20Wash%20%26%20Lee%20L.%20Rev.%201553%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=372&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b266%20F.3d%201155%2cat%201169%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlW-zSkAb&_md5=b5a6a6414575b90cf751100ce709de0b][

Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts

Outing the Judicial Epistemology of Hart v. Massanari

HOW NEUTRAL CITATION AND AMERICA'S LAW SCHOOLS CAN CURE OUR STRANGE DEVOTION TO BIBLIOGRAPHICAL ORTHODOXY AND THE CONSTRICTION OF OPEN AND EQUAL ACCESS TO THE LAW

"This article addresses the challenge facing law students to preserve some sense of individual voice and ownership of their writing as they enter a professional discourse community and negotiate its formal structures and idioms."

"The writer must adhere to this format despite having found and read the opinion using Westlaw, Lexis, Casemaker or some other digital source"

"Because many legal materials are increasingly available only online, and because judges are showing a greater willingness to rely on non-legal information available on the web, the Article concludes that a lawyer cannot competently represent a client without going beyond Westlaw and Lexis and conducting research on the internet."

[[]["The open access movement espouses the principle that access to all scholarly communication, including legal scholarship, should be made available to the world at no cost via the Internet. ... Further, this Article examines in detail the effects of applying open access principles to legal scholarship, current options for law schools wishing to establish a repository, and the growing number of law school repositories currently in existence"]]

"I would like to suggest that the law reviews that publish the bluebook have an incentive to engage in excessive innovation. This is not a prediction of a race-to-the-bottom, but a prediction of excessive innocuous change. The inefficiency comes in the need to learn arbitrary new rules, not in the quality of the rules themselves. The bluebook publishers have this perverse incentive because every new edition of the bluebook generates a large one-time demand as lawyers and legal libraries are driven to buy the authoritative source. It is not surprising that the bluebook is now in its fifteenth edition. Of course there may be pressing aesthetic reasons why a certain reference needs to be put in large and small capital letters instead of italics, 47 but along with these aesthetics is the knowledge that each new edition will reap an economic windfall. 48"

"The well-financed efforts of an entrenched interest group to resist open access in most disciplines means that the broad open access movement has a long row to hoe before we can reap the benefits that the Internet promises for scholarly communication. The one discipline where conditions are ripe for more rapid evolution to open access is law in the United States. Scholarly communication in American law also is channeled primarily through the medium of the journal article. But the editorial and economic structure of American legal scholarship is sufficiently different from other disciplines that no group stands to gain from resisting open access other than commercial legal publishers, who lack direct leverage to sabotage the movement for open access law."

"The Science Commons approach also provides for attribution of first publication by the law review, something that is not mentioned in any of the standard accounts of open access. ... The move to peer refereeing tends to carry with it a move to commercial publishing, and in so doing destroys the open access opportunity that student-edited law reviews generate.

THE ECONOMICS OF OPEN ACCESS LAW PUBLISHING

The people behind FastCase estimate that scanning and transcribing every federal and state case and statute will cost them $6 million. Apart from the unionized-labor complication, the top ten Ivy League schools could easily fund a similar open-source effort.

Law journals should be the first organizations to sign onto the free-law effort. Since they are locked in libraries and . On the one hand, this circumstance protects them from being widely read and thereby condemned for incompetence. But, as demonstrated in Chris Anderson's The Long Tail, there is demand, however small, for a virtually infinite range of creative and functional content (pg. ). By unlocking the storage and meta-connection of law journal articles, the free-law effort would facilitate the synthesis of wider blocks of information and argument.

An alternative to a centralized free-law resource would be instead a uniform system of citation, pagination, and meta-data standards for legal materials that could be implemented on a wide range of information-hosting platforms. Part of the system would be

http://www.findlaw.com/

The Lexis-Westlaw Duopoly and the Proprietization of Law

Introduction

The Political Economy of Legal Research

An Open Model for a Web-Based Semantic Case Law Repository

Legal Information Management in a Global and Digital Age: Revolution and Tradition

The Long Tail of Legal Scholarship

Neutral Citation, Court Web Sites, and Access to Case Law

Forbes, The Law Goes Open Source

http://www.antitrustreview.com/archives/1111

http://www.nytimes.com/2007/08/20/technology/20westlaw.html?_r=1&oref=slogin&pagewanted=print

http://legalblogwatch.typepad.com/legal_blog_watch/2007/11/competition-bet.html

http://en.wikipedia.org/wiki/Duopoly

http://en.wikipedia.org/wiki/Wexis

Law as Intellectual Property

Discussion

Stake, "The Property Instinct"

http://www.precydent.com/

http://www.fastcase.com/

Columbia's revolting relationship with Lexis and WestLaw?

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