The Lexis/Westlaw Duopoly and the Proprietization of Legal Research

The Political Economy of Legal Research

Lexis and Westlaw share duopolistic dominance of the United States' market for legal information. The corrupt circumstance enabling the existence of the Lexis/Westlaw duopoly is that the law isn't free. Despite so-called fundamental precepts of The U.S. judiciary's online record system, PACER, charges [[http://pacer.psc.uscourts.gov/faq.html#GP8][8 cents] per page revealed in a search. State courts might offer recent opinions, but older precedents are mostly unavailable. What is freely available online does not have the meta-operability that makes Lexis/Westlaw materials far more valuable. The rest of the cases--what isn't freely available--might still be law (enforced by state violence), but it is constructively proprietary information, hoarded and sold by Lexis/Westlaw.

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

A side effect of the duopoly model is that Lexis and Westlaw share an incentive to differentiate their platforms. If they had identical interfaces, then habituated users could costlessly change systems, and market competition would preclude the extraction of monopoly rents. This dynamic can be observed in the functionally equivalent but symbolically differentiated search terms implemented by Lexis and Westlaw.

A less obvious implication is that Lexis/Westlaw have a standalone incentive to complicate their platforms. The more complicated a platform, the more platform-specific human capital can be invested, and correspondingly the higher the monopoly tax that can be extracted. This hypothesis is confirmed by a passing glance at the staggering turmoils of clutter that suffice as the Lexis/Westlaw interfaces (Cf. Precydent's parsimonious appearance). This is a systemic problem related to that plaguing the "Blue Book," in which managers are incentivized to repeatedly deliver arbitrary changes so that lawyers and legal scholars are forced to purchase new editions.

The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent Elsevier, meanwhile, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress.

--+++ Columbia's Complicity

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 LexisNexis 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 or tutorial.

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 platform. By participating in such policies, Columbia is complicit in the services' later abuse of law graduate's 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. Meanwhile, Columbia pairs this indirect subsidy with payment for academic use of the services.

The Free Alternative

The defining feature of the contemporary legal-research market is that its product, legal information, is a zero-marginal-cost digital good. Digital goods are characterized by two unique properties, according to Eben Moglen: 1) functional digital goods are most efficiently produced anarchically, while 2) non-functional digital goods are most efficiently distributed anarchically. Whether legal information is functional or non-functional--and whether "functional" and "non-functional" are coherent and mutually exclusive categories--is an interesting question for a later day. In the present context, though, it is a reasonable expectation that both properties would be extant for legal information.

The practical implication is the deproprietization of all legal information, its

The social benefits of a free alternative to Lexis/Westlaw are incalculable. A free legal research platform might consist of a public database of legal materials maintained by the nation's largest law schools. The meta-information linking cases will be a continual project undertaken by law professors and their students.

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.

A free legal wiki would separate content from presentation, allowing users and groups to customize the presentation of information to meet particular goals and circumstances. The free platform can parrot the presentation systems of Lexis and Westlaw, allowing previously habituated users to recover the benefits of their platform-specific capital without paying the monopoly rents exacted by proprietary systems.

A not insignificant objection to this is that, as a product of unpaid altruists, it would not be as reliable as Lexis/WestLaw. This is possible, but at the very least it will be a decent alternative for those who cannot afford or who are politically opposed to Lexis/Westlaw. Besides, the science journal Nature found that the facts presented in Wikipedia are just as reliable as those written in Encyclopedia Britannica.

Another objection to the free platform is that private actors would manipulate the meta-information to sabotage opposing legal actions. Wikipedia, again, is a testament to the growth of internal safeguards against abuses.

trash

It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process.

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.