Professional Ethics Trumps AALL Acceptance of Vendor Cash Until the Status Quo is Changed

In a very rare instance, meaning the first time in recent memory, an official AALL publication has allowed publication of criticism of AALL policy by someone who has been practicing our profession long enough to have a well-informed perspective of AALL official actions in the context of vendor relations over the course of the last two decades. Younger law librarians who may be unaware, take notice. It's what some of us older law librarians have to offer with respect to how we got to this dismal current state of affairs and what some of us recommend for getting out of this mess we currently find our professional assocation in. The intention is not to lecture but to inform.

In the current issue of AALL Spectrum, see Ending our conflicts of interest to protect consumers of legal publication by Michael Ginsborg. I believe Ginsborg's emphasis that AALL has a consumer advocacy mission that extends beyond institutional interests to include public interest advocacy by recalling ethical standards that once were but no longer are the case for AALL's relationship with vendors due in no small part to revenue received by them is a much needed wake-up call. I professionally hope Ginsborg's article will be well received by younger law librarians who must take the necessary corrective measures that we older law librarians have, unfortunately, dumped in their laps.

Ginsborg characterizes all this as a "proposed ethical test." He writes

Our collective effort in a $4.4 billion market could make a difference, especially if we also engaged the largest share of consumers—attorneys. And we have effective options short of a boycott or other antitrust violation. For example, we could undertake mass education of attorneys on how exorbitant costs undermine the critical public value of commercial legal publications; seek renewed FTC guides for full and transparent disclosure of all ranges of subscription discounts and criteria for discounts; set up a website for reporting and tracking consumer complaints; forge alliances with national, state, and local bars and legal advocacy groups; and launch joint investigations of legal publishing practices as warranted by complaint trends. We have missed the mark in our current efforts at consumer advocacy, however, because we follow the wrong model for our business relations with publishers. Legal publishers divide us against one another as we try to negotiate less onerous print subscription costs for our respective employers.

The proposed ethical test requires AALL and chapters to ban cash and non-cash donations from legal publishers with anti-consumer practices. (It also requires us to ban meals, social events, ads, and exhibits by these publishers in all our professional venues... .)

It is a very sad state of affairs when we as professional librarians must be reminded about law librarianship ethics. Made worse when two former AALL presidents, Judith Meadows and Kay Moller Todd respond in counter-point fashion to defend AALL official actions. They write:

AALL is stalwart in its support for the general availability of primary source materials, but to argue this public right for secondary sources is without basis.

Our Association has made significant efforts to ensure the availability of legal information to the public, parity of access across rural and urban markets, and a market that is not dominated by one specific vendor. We are all better off when the marketplace includes large and small vendors.

I take Meadows' and Todd's opinions to be genuine expressions -- not scripted responses -- but I find their article full of utterly unconvincing arguments. Like it or not, an AALL official publication has selected this counter-point statement that in a nutshell states "the status quo for AALL is a good thing." The status quo, however, is a duopoly with monopolistic pricing tendencies, restrictive contracting practices and very questionable pricing schemes designed to guarantee revenue flowing to WEXIS without guaranteeing editorial quality in print and online legal resources. As our major vendors move forward with eBooks and later will move forward with enhanced eBooks with in-app purchasing, individual consumers will be facing the same eBook duopoly they and we institutional buyers are facing now in print and online resources. It is utter nonsense to be hearing from two former AALL presidents that the market is not dominated by one specific vendor since it most definitely is in many state jurisdictions. It is even worse to hear that "we are all better off when the marketplace includes large and small vendors" because that is hardly the case.

AALL and our major vendors may be enjoying a partnership of sorts but as Ginsborg argues in his article there is no such "partnership" between our major vendors and buyers, institutional or individual. We have been seeing the same sort of publisher abuses since the FTC revoked its Guidelines for the Law Book Publishing Industry in 1999 that were sufficiently serious to compel the FTC to prescribe appropriate practices that the legal publishing industry should follow in the publication, advertising, and sale of legal publications back in 1975.

There is, however, one major difference. Unlike 1975, the market dynamics is now and has been for quite some time, sufficiently more concentrated to the point of being a duopoly with the anti-competitive consequences that produces. Back in 1975, there were many legal publishing houses that have either disappeared completely or are nothing more than "brand names" of WEXIS. In the state of Ohio, for example, there once was Banks-Baldwin (now owned by West) and Anderson, which managed to survive until acquired by Lexis in the mid-2000s. Small vendors only remain in those state jurisdictions which have a sufficiently larger practitioner base to justify the risk of publishing titles, states such as California. I once asked a small publishing house executive why his company was not offering Ohio titles. His answer was they examine state bar association membership rolls by practitioner specialities as reflected in special interest group membership and in the case of Ohio, there simply was insufficient numbers to compete with WEXIS.

Let's add a second, not inconsequential difference. The move toward electronic primary and secondary resources dominated by WEXIS. In Time to Reinstate the FTC’s Guidelines for the Law Book Publishing Industry, Brian Carson observed

[S]ince [the FTC Guidelines] revocation, we have seen exactly those same abuses over and over again, including the now-common practice of not providing open and competitive pricing for publications and databases. In fact, many license agreements include non-disclosure clauses that prevent the open sharing of information, a necessary condition to ensure competitive and anti-monopolistic contracts.

Meadows and Todd state

[AALL's financial structure] is similar to many other professional organizations that enhance dues revenue by accepting donations and sponsorships. Our research confirms that comparable professional associations have protocols for sponsorship that are very similar to AALL’s. Mr. Ginsborg asserts that the level of these donations not only has affected AALL’s impartiality on issues but also causes our members to lose objectivity and critical decision making when faced with whether or not to purchase a legal title.

Three comments, my opinion because I do not want readers thinking I am speaking for Ginsborg. First, to the extent that members once could rely on CRIV, that is no longer the case. It is now well-documented that CRIV's mandate has been reduced to dealing with minutia by the insertion of a compensated Vendor Liaison between CRIV and our vendors and between CRIV and the membership.

Second, Ginsborg's suggested action plan is narrowly tailored to avoid antitrust boycott violations that all similarly situated professional associations must avoid while demonstrating to the membership that AALL is indeed impartial. Meadows' and Todd's reference to other similarly situated professional associations echos in maintaining the status quo and entirely misses the point of Ginsborg's article. Considering the credibility gap that exists between AALL and its institutional buyers, AALL's consumer advocacy actions are  questionable at best. Some would say they are so completely unproductive that ad hoc collective action outside AALL is needed because AALL has failed. 

Third, AALL's response to the revocation of the FTC Guidelines was the promulgation of its Guide to Fair Business Practices for Legal Publishers which has been ineffective because it is unenforceable under antitrust law. Any so-called "partnership" between vendors and buyers would be evident by vendors voluntarily complying with AALL's Guide to Fair Business Practices for Legal Publishers but we all know that has not been the case.

In the context of Ginsborg's call to action, Meadows and Todd write

The author’s other proposal that AALL should undertake mass education of attorneys; establish a website for reporting and tracking consumer complaints; forge alliances with national, state, and local bars and legal advocacy groups; and launch joint investigations of legal publishing practices is impressive but completely unrealistic. He presents no business plan for such an office, nor does he consider the financial and budgetary implications of such a proposal. Would our members really support the kind of dues increase to be expected by refusing all donations of any kind at the same time as establishing a new venture that would require additional staff?

Quite a telling statement. Vendor revenue vs. membership dues increase. That's how dependent AALL is on our major vendors. Have we utterly forgotten that A-A-L-L stand for the American Association of Law Libraries, not law librarians? We are an association of institutional buyers. We most definitely can justify increased dues to our employers if we can demonstrate that our association can produce results that benefit them specifically and also contribute to the common good. We can also cutback on other AALL activities until the status quo is changed.

I seriously doubt most of the membership agrees that the status quo is a good thing but at least Ginsborg's article was published in AALL Spectrum. See also his supporting documentation, Vendor Sponsorships and Related AALL Financial Data, 2005-2009 Data From IRS Form 990.  Hopefully, Ginsborg's article is the first crack in the wall -- the stone-walling tendency of our professional association, expressed by two former AALL presidents.

Prior to the official publication of his Spectrum article, Ginsborg guest posted Initial Thoughts on a Plan to Restore FTC Oversight of Publisher Trade Practices on LLB as a follow-up to Bryan Carson's insightful post, Time to Reinstate the FTC’s Guidelines for the Law Book Publishing Industry. Unlike this cranky old geezer-blogger, Ginsborg circulated his draft post to other law librarians for peer review input, incorporating many suggestions provided. That's not standard operating procedure for blog posts but he sought out unattributed input. My hunch is he did the same for his Spectrum article.

Required Reading for Those Outside AALL's Current Power Brokers. So here is a blog post, Ginsborg's, not this one, that was produced by "due diligence" in part from contributions from other law librarians dissatisfied by the current state of AALL's official policies -- the status quo. This is an instance where one law librarian has gone out on a limb to state his professional opinion which has been informed by other like-minded law librarians. I believe the above cited blog posts and Ginsborg's Ending our conflicts of interest to protect consumers of legal publication are required reading by all law librarians who (1) believe they represent their institutions as AALL members but (2) also believe our profession has an obligation to serve the public interest including the publication of secondary sources. Have we already forgotten about Rudovsky?

Ginsborg writes, and this aging and decrepit Boomer law librarian hopes Gen-X and Gen-Y law librarians agree, and will insist on taking up the challenge one way or another, inside or outside AALL because the actions of our profession association over the past 10 years have failed to do so:

To become stronger consumer advocates, we must restore consumer advocacy to our ethics, end our conflicts of interest, invite attorneys to join us as associate members, and, if necessary, amend AALL and chapter bylaws. We must be prepared to forgo all donations from specific publishers as we remake national and local organizations worthy of alternative donations from attorneys. Otherwise, we will continue to compromise ourselves, our constituents, our employers, and an important public interest.

Sorry, Future Leaders of AALL. At least those who have not utterly given up on AALL. This mess we leave you to correct. Those of us who have been around a while -- Ginsborg, Carson and others -- offer some need-to-know historical perspective. Ginsborg's call to action is a well-informed and thoughtful recommendation of what AALL can do under the current legal restrictions. It is something that is doable by our association right now. If it requires reducing other AALL activities until the status quo is changed, so be it. [JH]