November 10, 2009
The Recipe for Better Legal Information Services Will Be Concocted by the "Invisible Hand" of Competition
In his now famous video, Bob Berring argues that free legal information does not pose a threat to traditional legal publishers, that free access to primary legal resources will not replace the editorial services of West and LexisNexis (well, actually Berring failed to mention LexisNexis by name in the West-sponsored video), that the bundling of primary law and editorial content provided by WEXIS is here to stay. In a nutshell, legal information consumers shouldn't bother trying to do better than WEXIS. See LLB's Don't Waste Your Time Trying to Do Better Than WEXIS: Responses to Berring on Open Access Law. If that's the case, then welcome to the status quo: duopoly profits in legal publishing with innovation defined as the trivial tweaking of fee-based services offered by WEXIS based on antiquated database designs.
The recipe for better legal information services is not going to be concocted by WEXIS. Absent competition, there is no motivation to change the status quo. But competition exists and it is only going to increase. We are in the midst of a transformative change in the structure of legal publishing. The national LIIs led the way by starting a worldwide movement to make legal resources freely available online following the pioneering example set by Cornell's Legal Information Institute. Free and low-cost web-based online search services, some with innovative research tools, have increased user options. The Law.gov project offers to consolidate these early developments by proposing a government-supported open source platform for an authenticated registry and repository of primary US legal materials that once was the corporate domain of West and LexisNexis. Do not believe for a second that WEXIS doesn't see this as a threat and won't do everything in their power to delay this transformation in legal publishing from happening.
Change is already underway. In response to the question, "Will the current economic situtaion be 'good' for free and low cost online legal research services -- do you see or expect to see patrons use them more frequently than in the past?" 84% of the responses to an LLB poll answered in the affirmative. 71% of those who answered "yes" to the question believe usage of free and low cost legal research services will be permanent. It will remain even after the economy improves. See Should LexisNexis and Thomson West Be Worried About the Economy's Turbulence? Results of the LLB Poll (April 20, 2009). While not a great threat to WEXIS this does give some indication that legal information consumers are seeking ways and means to move beyond the status quo. Law librarians dissatisfied with poor customer service [link to LLB's survey findings] and unreasonable pricing practices [link to LLB's survey findings] of some legal information vendors are adding momentum for rejecting the statuo quo at the institutional consumer level.
The repository proposed by the Law.gov project, which I personally believe will be up and running in the next 5 or so years, will be available to anyone creative enough to offer better legal information services. Who will concoct the recipe? In Some Thoughts on the Bob Berring Video Comments, Mark Giangrande suggests it could be Google. "It’s obvious they have no plans to create a legal database, at least as of now. But if their mission is to organize all of the world’s knowledge in an easily findable form, then it’s a natural for them to take on a project such as this. Moreover, they are probably the only company who has the capital and the mindset to upset the status quo for organizing legal literature online. If Google gave us Boolean search (something it does not have now) and organization (something it can do) it can give Westlaw and Lexis a run for their money." I personally believe that "Google US Law" is on the Company's long-range to-do list. It's a no-brainer once Law.gov's proposed repository of authenticated primary legal materials is available.
In It's Time for Law.Gov, I suggested that legal information professionals "imagine a world where choosing to use LexisNexis and Westlaw is based primarily on their online secondary legal resources, interfaces and research tools after the duopolist market structure in the legal publishing industry has been smashed because authenticated primary legal information is available from multiple sources." This will be a world where "competition" is not defined as West vs. LexisNexis. Competition in the marketplace for legal information will be analogous to the situation the Big Three auto makers faced in the late 1970s-early 1980s when US consumers began buying Japanese (and later Korean) cars and trucks in mass instead of buying over-priced poorly engineered and assembled gas guzzlers from Detroit.
This will be a world of consumer options defined by value-added services far beyond late 19th-early 20th century editorial contributions like headnotes and key numbers, and the shoehorning of publication formats like the legal treatise into WEXIS databases that were neither designed nor intended to accomodate them. The primary reason to buy WEXIS products will likely be the quality of the secondary legal products they offer, whether they will offer them in usable digital formats, and something legal information professionals really haven't seen in a very long time, market-based competitive pricing. The need to be innovative will be forced upon WEXIS by the marketplace because WEXIS will have lost its stranglehold on primary legal materials.
Competition may very well be defined as involving West and LexisNexis and BNA and Wolters Kluwer and probably something like "Google US Law" plus start-up companies taking advantage of the return of the "Invisible Hand." This market will eventually settle on redesigned products and services, modern, that is to say, more sophicated methods of distribution, plus licensing options and pricing that is more beneficial to all members of the legal information community, namely, end users and those institutional providers (read law libraries) and legal publishers who are agile enough to accept the challenge.
Those of us who have been in this profession long enough to remember the advent of online legal research services can recall the early negative reaction to them and that reaction's lack of foresight. Too bad we didn't put some in a time capsule 30-plus years ago. Perhaps someone will put the Berring video in a time capsule with a note that reads, "Open in 2040." Considering the pace of change, perhaps it should read "Open in 2020." [JH]