The Lexis-Westlaw Duopoly and the Proprietization of Law

Introduction

During my first semester at Columbia, my Legal Practice Workshop instructor required his students to register with the Westlaw legal research system and submit classwork via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. I suppose I would have failed the course had I not so registered.

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.

The Political Economy of Legal Research

Lexis and WestLaw? do not provide services to public libraries.

The ventures are profitable. LexisNexis? , for instance, managed a 23.1% profit margin in 2005. Lexis's parent corporation, Elsevier, spent http://rafaelsidi.blogspot.com/2006/01/reed-elsevier-among-top-uk-spenders-on.html? lobbying the U.S. Congress.

Law as Intellectual Property

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 and compiled by the organs of the executive and judicial branches of the government. 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 empirical investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties have statistical differences in the database's meta-information would be helpful in this regard.

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.

Discussion

Heller, The Gridlock Economy

Stake, "The Property Instinct"

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?

A promising up-and-comer is Precydent. Its parsimonious interface is superior to Lexis/WestLaw. But my first search query, "hamer v sidway" did not turn up the result that I obviously wanted.

Columbia's revolting relationship with Lexis and WestLaw?

A rarely considered alternative to the proprietary Lexis/WestLaw systems would consist of a vast wiki-ized database of legal materials, with meta-information about connections between cases filled in by the lawyers and law professors. A not insignificant objection to this is that it would not be as reliable as Lexis/WestLaw but see the Nature study demonstrating Wikipedia's comparable reliability to the Encyclopedia Brittanica.

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 powerful objection to the proposal for a publicly editable open-source legal-information platform is that private actors would manipulate the meta-information to sabotage opposing legal actions.

The problems with Lexis and Westlaw are representative of the more general problematics 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.

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