Is There a "Future" for Law Libraries Without Gov 2.0 and Competition in the US Market?: An Observation on Tomorrow's "The Future of Law Libraries: The Future Is Now?" Conference Hosted by Harvard Law School Library

The Conference announcement poses a provocative question:

This is supposed to be the future of law libraries. A decade into the 21st century, how is it working? Is the digital utopia all it's cracked up to be? What's taken off like a rocket? What's misfiring? Join us on June 16, 2011 for a day of reviewing where we've come from, looking at how the predictions panned out, examining what's going well, and dissecting missteps. We'll also discuss and critique blueprints for the next iterations of our future.

(Emphasis added.)

With presentations like the following:

• The Open Law Movement
• The Open Access Movement
• The Open Collections Movement
• Working Together
• Hacking the Casebook: eLangdell and other Studies in Cases
• Developing Human Resources: The Skills Needed for Law Librarians of Today and the Future

Plus break-out groups covering suggested topics (or a lightly moderated discussion during the same time slot); it should be a very interesting meeting.

The keynote speaker will be Bob Berring, always interesting and perhaps in the context of the conference's theme we will hear some of his thoughts on the history of legal publishing, which he is rumored to be writing. Talk about capping off one's career in a very big way. (Mine will be a "Good-bye World" LLB post, LOL). If true, get in line behind me for obtaining a copy because I always learn something "reading Berring."

Suggested Readings for the Conference. The conference organizers have compiled a suggested reading list. At least two should be elevated to "recommended" reading status, IMHO. They are:

• Danner, Kauffmann and Palfrey's The Twenty-First Century Law Library, 101 LLJ 143 (2009)
• Palfrey's Cornerstones of Law Libraries for an Era of Digital-Plus, 102 LLJ 171 (2010)

One would hope all law librarians interested in the future of law libraries have already read them.

You Can Join the Conference. Do note that this is not an AALL-sponsored event. So the organizers subscribe to open access to all, including those interested law librarians who cannot attend. The intention is to live webcast as much of the proceedings as possible and blogging and tweeting are encourage. The hashtag for the event is #FoLL2011. I'm speculating that the break-out sessions may not be live webcasted but certainly will be blog and tweat-able by attendees. I'm thinking the informal "lightly" moderated discussion that will be taking place at the same time as the break-sessions may be webcast.

In the free exchange of ideas, I believe Harvard Law School Library's organizers give off-site viewers more credit that AALL certainly did for the Vendor Colliquium by recognizing viewers are intelligent enough to distinguish between professional opinions and expressed opinions representing the speakers own institutions. Check back here for the webcast link.

A Few Thoughts about the Harvard Conference Theme. Having lived through the last "future of law libraries" by which I mean the transition from print-only research to the introduction of what became very expensive online legal search by Mead Data Central (aka Lexis Global Legal) in 1973 and West (aka TR Legal) in 1975 to the widespread acceptance of online legal search's in the mid to late 1980s, my perspective is that we will only fully understand the "future" after it has become well-entrenched in the "present." We are not "there" yet; we are not close to being "there" yet.

This is indeed the first decade of the 21st century but the future of law libraries is still a "work-in-progress." My take on the situation is fairly straightforward. Perhaps myopic. But the future will be more like the present if the current WEXIS-dominated market structure continues to exist. It is going to take Gov 2.0 exemplified by the the bulk-distribution of well-formed legal e-materials proposed by LAW.GOV to change the status quo. In the 30-odd years since I left library school, this is is the best opportunity we have to structurally transform the provision of legal resources, not just primary but also secondary legal literature, not just "free" but also "for profit." Not merely replicate current research tools, but also provide the basis for the invention of new ones by new players, non-profits and commercial ventures.

Berring has observed many open access primary legal resources sites are not stable. True. Many have disappeared. At least one "free" access site I know of was launched for commercial purposes -- to prove and offer licensing opportunities for its very good search engine. It's also dead. But for LII's, much in the open access to law movement remains uncertain. While I like what CALI is doing with its use of RECOP for its The Free Law Reporter, only time will tell whether this is something more that a "proof of concept" experiment. This requires cold hard cash to remain a stable e-resource. So does the RECOP distribution system, for that matter. In fact, shouldn't open law -- the e-distribution of primary legal materials in stardardized mark-up -- be the responsibility of the public sector in the Gov. 2.0 era? 

Call Me a Capitalist Pig. But if I am, I am one who believes that the market for primary and secondary legal resources must become competitive again for law libraries to move into the future. As institutional buyers we are consumed by duopolists with monopolistic tendencies. Price escalation since the mid-1990s far exceeds common consumer price and purchasing power indexes. Quality deterioration can be seen in the increasing reliance of in-house authors. While it would be damn hard to prove collusion (and I think WEXIS is too smart to leave smoking guns), it is very clear that for years both TR Legal and Lexis have been imitating each other in pricing and content commoditization. Our current situation is not a recipe for structural transformation in US legal publishing.

It would be a hard case to make that TR Legal and Lexis Global Legal restrain trade under Section 1 of the Sherman Act. But Section 2 of the Act, which focuses on unilateral or monopolistic practices that create barriers to entry for other competitors, might be worth examining. Certainly a consumer-based approach to antitrust in the context of the current WEXIS duopoly should be pursued at the federal and states level. However, I suggest there is an alternative that may be more effective: implementation of LAW.GOV's principles by governmental bodies for bulk distribution of e-legal materials will encourage innovation in the legal information market by reducing barriers to entry. As law librarians the task at hand is what we do best, advocate for access, for access to materials the documentation community provides (Gov 2.0 generally, LAW.GOV specifically).  By doing so in a concerted manner, we can help reduce the barriers of market entry which in turn can increase competition. With competition, comes innovation in UI, search and not just for primary legal materials. We can also expect to see new secondary titles from publishers who are driven by editorial quality and innovative uses of technology. We can expect to more competitive pricing from WEXIS because the market entry barrier has been smashed.

The Nexus of Law Libraries and the Legal Publishing Industry. The future of US law libraries is clearly tied to the future of the US legal publishing industry. Until the status quo of the latter changes, there will be much talk about the future of law libraries but little more than isolated silos of innovation which will have little impact outside the law library community. Least we forget, legal literature is a professional literature. It is first and foremost intented to be used by practitioners -- members of the bench and bar and government agencies. By now it should be clear to all that our major vendors have and are deploying e-commerce sites in Amazon-like fashion to execute a strategy they have dreamt about for years -- sell to the individual consumer, out-flank the institutional buyer that employs "librarians whose names are known."

A structural transformation of the US legal publishing industry does not happen in "Internet time." I firmly believe it can happen. Progress cannot be stopped when the technology needed to "make it happen" is already available. Budget cutbacks in the public sector certainly can slow down the deployment of Gov 2.0 initiatives. So, perhaps, the first step is to recognize that in the first decade of the 21st century eGov websites and technology for providing public services and disseminating information must be viewed as essential government functions. [JH]