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The Lexis/Westlaw Duopoly and the Proprietization of Legal Research |
| | LexisNexis and Westlaw share duopolistic control of the U.S. market for legal information. Lexis/Westlaw's stranglehold on legal information is founded on the unfortunate circumstance that American law is not freely and publicly available. U.S. courts charge 8 cents per page. Some state courts offer recent opinions, but older precedents are mostly unavailable. Statutes and regulatory orders are generally available online, but even these sources are relatively difficult to access, and they lack the metadata offered by Lexis/Westlaw. To varying degrees, then, the law is virtually proprietized, sold at a profit by Lexis/Westlaw. |
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< | Of course, Lexis/Westlaw don't legally own the law. Statutes, regulations, and opinions are produced by agents of the democratic government and enter immediately into the public domain, regardless of public availability. |
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> | As democratic theory and traditional copyright theory would have it, Lexis/Westlaw don't own the law. Statutes, regulations, and opinions are produced by agents of the democratic government and enter immediately into the public domain, regardless of public availability. This is true of federal publications, but legal documents by individual American states can be copyrighted. Massive libraries of these documents are proprietized and sold for profit by Reuters, West;aw’s corporate owner. Attempts by congress to address this offense to democracy have died in committee. |
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- Not of course. This is true of federal publications. But state legal publications 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.
- -- 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.
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| | 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.
The Lexis/Westlaw duopoly's proprietary internment of legal information imposes grave social costs. From the standpoint of political theory, American citizens do not have public access to the laws that are supposed to be influencing their behavior and for which violation could mean punishment by the state. The costs of civil litigation are distorted upward, precluding the pursuit of socially optimal lawsuits. When a wide income gap separates the parties to a dispute, the wealthier party has a superior research advantage. Most ironically, courts must pay Lexis/Westlaw for access to the fruits of their own labor--and the American taxpayer foots the bill. |
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| | For the individual researcher, the use of Lexis/WestLaw produces platform-specific human capital (analogous to firm-specific human capital). By using a particular research platform, a user becomes habituated to and proficient with that platform, and the resultant efficiency surplus 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.
- 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.
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- 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.
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| | The Role of the Law School
During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with Westlaw and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on Lexis 13 months ago as part of my Legal Research course, I have received 56 emails from Lexis--about one per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task. |
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- Requiring use of proprietary services to deliver education is an objectionable practice. We should have discussed this with the instructor.
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| | The purpose and effect of Westlaw's TWEN services and Lexis's bribes, of course, are to habituate me to working on their respective research platforms. By purchasing Lexis/Westlaw access for students and faculty--as well as participating in the aforementioned habituation schemes--Columbia is complicit in the services' later abuse of law graduates' platform-specific human capital. There are decent commercial alternatives? to Lexis/Westlaw, as well as irreproachable free services, but Columbia's legal-research curriculum ignores them. |
| | The free legal-research platform requires two centralized structural components: 1) a central catalog , and 2) a uniform citation protocol. The catalog will be a centralized record of every document in the decentralized database for search purposes. The decentralized Legal information can be stored and distributed anarchistically via peer-to-peer file-sharing networks, with the centralized catalog keeping track of where the information resides. |
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- 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.
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| | The uniform citation protocol will be a rationalized system of citing and locating legal documents, with authorial attribution, time of publication, etc., plus a digital code that allows instant access to the document from the platform's search interface. Reporter paginations--an obsolete relic from the old library days--can be phased out in favor of paragraph numbers. |
| | The social benefits of a free alternative to Lexis/Westlaw are incalculable. The free alternative described above should be pursued with all deliberate speed. |
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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
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| | *-- JohnPowerHely - Daniel - I'd agree that The Public shouldn't be able to change the text of opinions, but just as WestLaw? has KeyCites? and Lexis has Headnotes (or is it Header Notes?), an open source wiki version could have its own case notes and synopses.
- Elliot - "non-functional digital goods (like legal information) are superiorly distributed anarchistically" - legal information is a non-functional good more akin to music than coding? I'm not saying you're wrong or right, but I'm still a little shocked (and kinda wondering why we are all putting in so much time and money here at CLS if that is the case). |
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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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