Law Librarian Blog

Incorporation by Reference: Private Control Over Access to Public Law

Here's the abstract for Michigan Law prof Nina A. Mendelson's Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards [SSRN], Michigan Law Review, Forthcoming:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Highly recommended. [JH]

Extended Student and Law School Grad Access to Lexis Advance

As a follow-up to this LLB post, I have received information about LexisNexis programs for students and law school grads. First, there is the new Summer Associate "All Access" program. Law students can use their law school ID this summer for academic and work purposes from the date classes end in May through August 8, 2013. Graduating 3Ls also have unlimited access from the date their classes end in May through July 31, 2013 (when their law school Lexis Advance accounts expire). Registration is not required.

Second, graduating students can have extended access to Lexis Advance after graduation until December 31, 2013 for educational, bar review and job search purposes only. Participation requires completing a registration form to obtain a new Lexis Advance ID.

Finally, the ASPIRE access for public interest program offers an alternative for students conducting verifiable 501(c)(3) public interest work to maintain access to Lexis Advance. Law Students and recent graduates need to complete a registration form and once approved will receive an ID. [JH]

Got to "Spend" Money to Make Money: Extending Law Student WEXIS User Accounts Over the Summer and Beyond

Graduates who extend their password will receive access to WestlawNext and Westlaw Classic through November 2013 instead of just through July. The exact number of monthly access hours is not available, but is at least 40 hours per month. -- Quoting from Extended Westlaw Access for May 2013 Grads published by USF's Dorraine Zief Law Library.

"I'm wonder[ing] who will be the first grad to put on his or her resume that 'if you hire me, I'll have 40 hours of free Westlaw searching I can bring with me'??" wrote 3 Geekster Greg Lambert at Even Westlaw Knows It's a Tough Market – Law Graduates Can Keep Access Through November. He added "Please, don't be that person!!"

Hell, since the USF Law Library announcement doesn't say being an unemployed Class of 2013 grad is a requirement, I'm wondering if the extension does not also benefit Thomson Reuters by exposing Class of 2013 grad employers to its research platforms, etc. Who knows. However, it is unclear to me that Class of 2013 grads really can use their school's Westlaw account in all employment settings. Usually that is not the case. See Cleveland-Marshall's announcement at Bloomberg Law, Lexis, & Westlaw: Student Summer 2013 Access.

BLaw does allow all law school students to use their school user accounts for performing research during summer employment with no restrictions on for-profit work-related use. I'm thinking WEXIS should follow that example. It's a good idea for marketing purposes. Got to "spend" money to make money in today's market for online legal search. [JH]

The Big Whoop-de-do of Current Services: Why vendors should not forget that the Google Generation is also the YouTube Generation

"In a presentation to advertisers this week Google Executive Chairman Eric Schmidt declined to forecast that Internet video would replace television, Schmidt said, 'That’s already happened, the future is now for YouTube,'" wrote Kevin O'Keefe in his May 4th, 2013 post titled Google’s Schmidt: YouTube has replaced TV. What’s it mean for law firms?

Referring to YouTube both as a specific delivery platform as well as a metaphor for electronic video content generally, I believe the interesting question is what does that mean for our commercial legal publishers, professional legal services, legal solutions (whatever) vendor? If the focused user population is the so-called Google generation and it certainly is, this user population is also the "YouTube" generation now. This applies not only to webinars but to vendor search platforms, productivity platforms, specific practice-centric offerings, "news and developments" coverage, and enhanced eBooks' current status quo.

BLaw's video productions -- easily do-able because the tech infrastructure was already in place -- has resulted in other vendors scrambling to catch up in some areas. Any vendor which might be resistant to the idea that multimedia is not going to be an essential add-on component in all their law-related inventory of e-content is in denial.

But I am not refering to training webinars! Nor am I merely referring to just enhancing legal research and eBook platforms. Today's Google-YouTube generation will also want to incorporate official video proceedings (problematic due to the source's encoding formats) and their own in-house produced videos in work product using licensed "legal solutions."

The big whoop-de-do of "shared folders," etc. is so last century to our vendor's targeted demographic market that it borders on absurdity. I can hear our vendors say "but our focus groups aren't asking for that!" Well, the grim reaper of innovation is making decisions based on focus groups. [JH]

What Other Courts Have Said About This Case: Applying Negative Treatment Analytics to Court Opinion Data by way of Fastcase's Bad Law Bot

Mindful of the forthright caveats expressed in the below video, Fastcase's Bad Law Bot sounds like a very interesting programming experiment using a dataset of files that are not enhanced with court treatment metadata. Hopefully someone will produce a comparative study of Fastcase's Authority Check, now including Bad Law Bot, with BLaw, Lexis and West citation services for negative treatment results. Signal confirmation by actually reading cited opinions will be required, as it always should be.

Remember when KeyCite was still indicating that Michigan v. Jackson, 475 U.S. 625 (1986) was good law some two weeks after being overruled by SCOTUS in Montejo v. Louisiana? See Maybe Westlaw thinks Scalia was wrong, but… (LLB, June 12, 2009). Shepard's got it right almost immediately. Would Fastcase's Bad Law Bot have?

For details about Bad Law Bot, see this Fastcase Blog post. See also, Greg Lambert's Fastcase's Bad Law Bot: "Big Data Applications For Legal Research" on 3 Geeks (and the comments to that post) and Jason Wilson's Building a citator through indirect crowdsourcing: Fastcase’s Bad Law Bot.

From the YouTube description:

Bad Law Bot is an enhancement to Fastcase's Authority Check feature that helps you determine whether your case is still good law. Fastcase CEO Ed Walters discusses the new feature and how to use it.

Bad Law Bot algorithmically scans citations in judicial opinions -- where a citation shows that a case has been overturned, Bad Law Bot plants a red flag to tell you so.

[JH]

Legal research is "fun, light, easy, and all with just a few simple swipes and taps."

Only if you believe Thomson Reuters' marketing videos for WestlawNext. I wonder if all the Company's "legal solutions" are so carefree. See Jason Wilson's Legal research should be hard, shouldn’t it?

Of course, online legal research is difficult, time-comsuming, and complex even for something as "simple" as finding the statutory definition of a term. See, for example, this Legal Solutions Blog post by Steve Hainlen, TR Reference Attorney and training team member, Tips for Finding a Definition on WestlawNext. (NB: while the post's title references WLN, the post's opening statement reads "Finding definitions in statutes can be tricky, but a well-crafted Westlaw search can make it much easier.")

For something more enlightening than the typical marketing nonsense about West Search, see Qiang Lu and Jack Conrad's Next Generation Legal Search - It's Already Here (VoxPopuLII, March 28, 2013 post). Having worked with Thomson Reuters R&D on the WestlawNext research team, one may want to excuse the authors' obligatory high praise for WLN. But, what the heck, there's nothing wrong with the authors being proud of their work. [JH]

Does WestlawNext Cost Almost Twice as Much as Classic Westlaw?

According to Emily Marcum's findings, the answer is "yes." Her article, The Quest for Client Savings in Online Research: WestlawNext v. Westlaw Classic, is now available from Legal Reference Services Quarterly. Here's the abstract:

The cost to the client of Westlaw versus WestlawNext was assessed using two research methodologies. One methodology reflected real-world questions over time across categories. The other methodology had artificially generated questions broken down by category and evenly numbered across platforms. In both experiments, WestlawNext cost the client roughly double the cost of Westlaw Classic. Simplified pricing plans were cheaper for primary law and expert materials but were more expensive for other categories.

Highly recommended. [JH]

Automation and Its Discontents: A Review of The Case for Curation: The Relevance of Digest and Citator Results in Westlaw and Lexis

Susan Nevelow Mart has recently completed a seminal study, “The Case for Curation: The Relevance of Digest and Citator Results in Westlaw and Lexis.” [forthcoming publication in Legal Reference Services Quarterly] She found that curation, or human indexing, makes Key Numbers  (KN) significantly more precise than the largely automated, “Lexis Topics” (LT), and significantly more precise than an entirely automated Lexis application, “More Like This Headnote” (MLTH)  She also found that Shepard’s outperforms KeyCite when the user applies either to identify cases citing a targeted case for the same point of law.

Susan’s evidence represents a milestone achievement, not least by establishing a rigorous empirical standard. Her study involved review of “over 450 [landmark] cases to find 90 suitable cases, in addition to the ten cases from [her] previous study.” Students reviewed the Westlaw and Lexis versions of each of these cases for a Westlaw-Lexis pair of comparable headnotes. They used the KN and LT assigned to paired headnotes to find other cases classified under the same KN or LT. The students also applied MLTH to Lexis headnotes in the 90 cases. Finally, the students limited KeyCite and Shepard’s results to just those cases citing each of the 90 cases with respect to the designated headnote pair. The students followed an instruction on relevance that the headnotes supported, together with jurisdictional and other restrictions. They reviewed over 4000 cases for relevance. An additional statistical review ensured that their judgments of relevance were reliable.

62% of cases found through KN were judged relevant, while about 63% found through LT – and 52% found through MLTH – were judged not relevant. Susan concludes that editorial indexing in KN gives that system a decided advantage over LT and MLTH in precision, or the percentage of total cases retrieved that are relevant. MLTH and LT each showed a third or less of unique and relevant cases when compared to KN. These findings suggest to me that users of a digest would do to better to start with KN than with LT or MLTH, if they have a choice and have limited time.

KeyCite’s and Shepard’s respective algorithms assign citing cases to headnotes. Susan identifies a winner in this “battle of the algorithms”:  Shepard’s had “the edge” by about 15% in helping the student researchers identify relevant cases. But at precision rates of about 43% and 28%, respectively, neither Shepard’s nor KeyCite appear to work at all well for the application at issue. Moreover, Susan found that Shepard’s yielded “twice as many unique relevant results as KeyCite.” These findings suggest to me that users of either, if pressed for time, should start with Shepard’s, but otherwise use both.

No law librarian has undertaken a study of this scale. Her sample size and statistical review provide evidence that appears generalizable. So we now have good reason to believe that automation has far from superseded the human indexing that distinguishes KN from LT and MLTH. And where automation has taken over, the evidence on Shepard’s and KeyCite hardly encourages enthusiasm about its effectiveness, even if Shepard’s has an “edge” for results limited to headnotes. Susan’s groundbreaking study should inform instruction everywhere in the use of these services.

Michael Ginsborg

Open States: A non-profit, non-partisan public resource for monitoring state legislative activity

"If you're interested in your state lawmaker, you'll be able to get notifications for their actions, a map of their district, voting records, committee assignments, campaign finance records from Influence Explorer, local news articles and contact information. If you're curious about a particular piece of legislation, Open States allows you to check on its status, find the sponsors, break down votes, view bill text and all supporting documents. Our powerful search capabilities allow you to find similar topics across states and view overview pages for each state, chamber and committee." --- Nicko Margolies, Open States: Find and Follow Your State Capitol (Sunlight Foundation Blog, Feb. 14, 2013)

In February of 2009, the Sunlight Foundation announced that its next big goal was "The Fifty State Project." The objective was to provide the same sort of access to legislative data and related information OpenCongress did but for all 50 states from one website. Not an easy task but the Foundation stayed the course. Last month the Sunlight Foundation announced the launch of the full Open States site.

After more than four years of work from volunteers and a full-time team here at Sunlight we're immensely proud to launch the full Open States site with searchable legislative data for all 50 states, D.C. and Puerto Rico. Open States is the only comprehensive database of activities from all state capitols that makes it easy to find your state lawmaker, review their votes, search for legislation, track bills and much more.

Let's add that Open States data is available for bulk downloading.

Give Open States a test drive. Some may want to toss it into an ALR lecture on researching state legislation. Others may want to add the resource as an alternative to very expensive research offerings for monitoring state legislation. And some may even want to experiment with repurposing the data made available by bulk downloads. For an introductory tutorial, see Exploring State Legislative Data.

Just as OpenCongress has evolved since 2009, my hunch is Open States also will. [JH]

What Not To Do When Submitting A Legal Memorandum To A Court

Here's a piece of legal research  and writing advice for law students an attorneys alike:  Don't copy stuff willy-nilly and submit it to the Court as part of a memorandum of law.  Oh, and Shepardize (or KeyCite, or whatever Bloomberg uses as a verb for their citator) your cases.  The ABA Journal reports on a case where Lindsey Lohan sued a rapper for using her name in a song.  She claimed it violated her rights of publicity.  The trial court found that using a name in an artwork was protected speech under the First Amendment.  The defendants, however, asked for sanctions because significant portions of the memorandum in opposition was taken from another brief in an unrelated case (and not really on point) along with uncited portions of web content and articles.  Here's what the Court said in footnote 6 of its opinion:

Defendants also assert, correctly in this Court’s view, that the Opposition was “rife with irrelevant discussion, . . . did not meaningfully address a single case cited by the [defendants] in support of their motion to dismiss, cited a case without disclosing it had been reversed, and essentially ignored every argument made by the [defendants].” (Defs.’ Sanctions Mem. at 11 (internal citations omitted).) According to defendants, the reason that the Opposition did not address the salient points raised in their motion to dismiss was because it was actually taken “nearly entirely and verbatim” from a legal memorandum plaintiff filed in an entirely different case. (Id. at 16 (emphasis omitted) (noting that approximately 14 or 15 pages of the Opposition were copied from a prior legal brief).) Plaintiff does not dispute this assertion.

The Court fined counsel $1,500 for the filing a false representation to the Court.  Sanctions were not paid to the defendants who apparently knew about the plagiarism early on but did not inform the Court about it until much later in the proceedings.  The Hollywood Reporter provides the opinion and order in the case.  [MG]

OMG-ing About Content No Longer Being King

An interesting coincidence is occurring tomorrow. On the very same day, in very different locations, the nation’s two leading legal publishers are both staging day-long summit meetings, to which they have invited a variety of legal bloggers, journalists, industry analysts and "influencers". -- Bob Ambrogi in his LawSites post published the day before the January 16, 2013 events.

Indeed, very interesting. Bob does an excellent job reporting about the Thomson Reuters event at Thomson Reuters Unveils New Tools for Litigators, Corporate Counsel and Small Firms. LTN's technology editor, Sean Doherty, does the same for the LexisNexis event at LexisNexis Overture for LegalTech New York. Neither account was "influenced" as questioned in Kevin O'Keefe's Theatrical of the Absurd post about both events at Who's Influencing Who. (Kevin, if you ever do get invited to one of these events someday and decide to attend, note well they can be an "uninfluenced" grind unless you consider being "influenced" to make the go-to decision because you are desperately seeking a real hot pastrami sandwich or want to visit Diamond Jim's the night before or after the day-long event.)

One statement at the Thomson Reuters meeting struck a cord (update oops -- I meant to write nerve) with some. Quoting from Bob's post:

"We have decided that our long-term vision is not information, it is software tools, solutions, ways to enable attorneys to practice in a more cogent way," Mike Suchsland, president of Thomson Reuters Legal

Jean O'Grady found that to be jaw-dropping. See Thomson Reuters Legal Announces New Strategic Direction: Content no Longer King, Shift to Client Centric Platform. Blogging with tongue-in-cheek, one may reasonably conclude that Jason Wilson was "OMG-ing" this "revelation" at Legal publishing is dead! Long live software solutions! See also Jason's follow-up post, The Cupcake: A new editorial paradigm for legal publishing? because he asked and Mike Suchsland responded to Jason's follow-up request for clarification.

The same long-term vision statement could have been made at the LexisNexis event too. It is nothing more than recognizing what have been WEXIS strategic objectives for a fairly long time now. As Outsell's David Curle said many years ago, our major vendors view themselves as being players in the professional legal services marketplace. They do not and have not for quite sometime self-identified as "legal publishers" in the 21st century "New Normal".

So why the OMG-ing shock? Core legal content and online search have been commodized. The WEXIS research platforms (i.e., WestlawNext and Lexis Advance) next current gen user interfaces and user experiences are so similar that a user population can be switched from one platform to another with relative ease -- meaning the Rx has turned from a brand name to a generic equivalent.

When "new" features are added to today's platforms, some in-house corporate prophets confuse that with "innovations." They are nothing more than tweaks. And some of those tweaks are nothing more than decades old wine being poured into new bottles. Hell, those software architects who have been around longer than their corporate prophets know that -- let's just call it in-house "reverse" software engineering.

About the only real difference between WEXIS is that one vendor has built its platform for the ground up in-house and the other's platform has not -- meaning one vendor's platform development cost is higher (and more costly to the subscriber base) than the other.

"Long live software solutions!" I feel Jason Wilson's professional pain. That's because he is not in the "professional legal services" business, Jones-McClure is a legal publisher that produces high editorial content in the form of annotated federal and some state code deskbooks. Hell, I buy Jones-McClure's federal code titles for our little county law library instead of TR Legal ones and would buy them even if they cost more than TR Legal's over-priced titles. Frankly, I just wish there were more annotated topical code deskbooks to buy from Jones-McClure including Ohio-specific titles because I would cancel all my WEXIS annotated (read regurgitated analytical content) Ohio code handbooks (with or without "free" eBook companions).

However whether WEXIS explicitly states or implicitly demonstrates by roll-outs that productivity and business-of-law solutions is their primary business plan focus, that is not "news." What once were just upsell opportunities for sales reps from the law library institutional buyer perspective simply is maturing at WEXIS to the point of consolidating their already-on-the-market many tools offerings with the addition of new tools. This will eventually lead to suites of solutions as being the primary focus of the professional legal services vendors once known many years ago as "legal publishers".

Here about the only current difference between WEXIS is one vendor's next current gen user interface for productivity solutions is a familiar screen display. Whether or not that is an important selling point for end users remains to be seen. Eventually WEXIS users will launch into their WEXIS suites from a "My WEXIS" integrated solutions interface which links to desktop and mobile vendor-specific licensed productivity, business-of-law, database search and eBooks products and services based on user population, practice-centric specific plans acquired by institutional buyers.

What about law library institution buyers? Both LexisNexis and Thomson Reuters are following the same game plan. Core legal content and online search are commodities. Their platforms are generic. Commoditized "Content+Search" is just one among many "solutions" and no longer is the most important one while some offered productivity solutions do embed "content+search" inside them.

The indoctrination model is and increasingly will be addicting law school students to productivity solutions some that to repeat and repeat again and again offer commoditized  "Content+Search" embedded within them. That's because legal skills training is "hot" in the legal academy now and WEXIS has (finally) realized that is the case.

The traditional "stuff" of law librarianship in this regard is not and has not been "king" because it is and has been nothing more than a pawn for years. That makes law librarians nothing more than pawns too. So where does all this leave those law librarians and their professional association who are in denial about this? In the dustbin of history unless law librarians and AALL decide they don't want to be watching the game from the bench.

End Note. I seriously doubt Jean O'Grady is a law librarian in denial. Her post, however, does speak to not being influenced by Thomson Reuters, Kevin. It's not like any of the Land of 10,000 Invoices or Garden of Eden Big Apple attendees have either the Shower Drain or Knowledge Bubble Burst corporate logos tattooed on their butts. Well, at least none of non-WEXIS employed ones. [JH]

Law's Information Revolution: On the advent of quantitative legal prediction in the professional legal services industry

Hat tip to Edward Bryant's The Intelligent Solutions Blog post for calling attention to Quantitative Legal Prediction – or – How I Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry, 62 Emory Law Journal ___ (Forthcoming 2013) [SSRN] by Daniel Martin Katz (Michigan State College of Law). Here's the abstract:

Do I have a case? What is our likely exposure? How much is this going to cost? What will happen if we leave this particular provision out of this contract? How can we best staff this particular legal matter? These are core questions asked by sophisticated clients such as general counsels as well as consumers at the retail level. Whether generated by a mental model or a sophisticated algorithm, prediction is a core component of the guidance that lawyers offer. Indeed, it is by generating informed answers to these types of questions that many lawyers earn their respective wage.

Every single day lawyers and law firms are providing predictions to their clients regarding their prospects in litigation and the cost associated with its pursuit (defense). How are these predictions being generated? Precisely what data or model is being leveraged? Could a subset of these predictions be improved by access to outcome data in a large number of 'similar' cases. Simply put, the answer is yes. Quantitative legal prediction already plays a significant role in certain practice areas and this role is likely increase as greater access to appropriate legal data becomes available.

This article is dedicated to highlighting the coming age of Quantitative Legal Prediction with hopes that practicing lawyers, law students and law schools will take heed and prepare to survive (thrive) in this new ordering. Simply put, most lawyers, law schools and law students are going to have to do more to prepare for the data driven future of this industry. In other words, welcome to Law's Information Revolution and yeah - there is going to be math on the exam.

[JH]

CALL Illinois Legal Research Guide

This comes from our friends at the Chicago Association of Law LIbraries:

Finding Illinois Law: A Librarian’s Guide for Non-Lawyers

The CALL Government Relations Committee is proud to publish Finding Illinois Law: A Librarian’s Guide for Non-Lawyers . Recognizing that legal research is a specialized skill practiced by attorneys and law librarians, but that the general public often has a need to locate and understand legal information, the Committee presents this guide as a tool to aid non-lawyers.

Download the whole guide (pdf):

Finding Illinois Law: A Librarian’s Guide for Non-Lawyers

Download individual chapters (pdf):

Chapter 1: Introduction to U.S. Legal System by Konya Lafferty

Chapter 2: How to Read Legal Citations by Maribel Nash

Chapter 3: Statutes by Ramsey Donnell

Chapter 4: Cases by Jamie Sommer

Chapter 5: Administrative Law by Deborah Darin

Chapter 6: Municipal Law: The City of Chicago and Cook County, Illinois by Walter Baumann

Chapter 7: Researching outside of Illinois: The Laws of Indiana and Wisconsin by Heidi Frostestad Kuehl

Chapter 8: Free vs. Fee-based Resources by Tom Keefe

Chapter 9: Avoiding the Unauthorized Practice of Law by Tom Gaylord

Chapter 10: Where to Seek Additional Help by Victor Salas

Chapter 11: Recommended Publishers and Resources by Joseph Mitzenmacher

If other chapters have anything like this, send them in.  [MG]

The Coming Second Citation War

Thomson Reuters "has not given permission to LexisNexis for the use of Westlaw citations to unpublished decisions on the Lexis Advance research service." -- Bruce Knudson, VP Large Law Business, Thomson Reuters.

The above quote is from a letter republished on 3 Geeks in Mark Gediman's post Citation Wars...or Mine! Mine! The post also publishes a response by LexisNexis. Quoting from Mark's highly recommended post:

Although I am sure that Westlaw feels that this response [to a LexisNexis advertising campaign] is justified, I think that to respond to what is really a common industry practice indicates a surprising degree of desperation.

Indeed it is for the moment. However my hunch is Thomson Reuters is preparing the stage for an anticipated new normal when West is not the official publisher of federal and state court opinions. Then all decisions may be "unpublished" as defined by the outcome of the First Citation War and vendor database file citations (i.e., WEXIS file number cites) may require permission to be used by a competitor.

Clearly the coming new normal will be court opinions which are officially published in electronic format at the court level that will be vendor neutral. Vendor specific database file citations may very well be proprietary. Just imagine the consequences for citation indexing and the practice of parallel citations provided in commercial research platforms.

We are in the very early stage of official electronic distribution of primary legal materials like court opinions. UELMA is just the start. If a uniform system of official neutral citation format is not adopted by federal and state courts, will commercial vendors just provide their own and arguably proprietary database file cites? Could you blame our commercial vendors if they do? [JH]

Now You See It, Now You Don't: Plan for Contingencies When Negotiating Legal Research Services Licenses That Include Distribution Agreements Involving Outside Publishers

It's been about a month since it was announced that PLI content was no longer available on Westlaw. Missing Westlaw's PLI content? Apparently PLI and Thomson Reuters were unable to reach an agreement for providing PLI materials on Westlaw. Was PLI asking for too much money? Was Thomson Reuters offering too little cash? Were other factors involved? Remember some PLI content is available on Lexis and Bloomberg Law (but for how long?). 

So if an institutional buyer killed all or most of its PLI print titles because "it was on Westlaw," deal with it. Content licensed from an outside publisher and distributed by way of one of our major vendors is not something one can depend upon. It is not necessarily a per se material breach of one's license for Westlaw, Lexis or BLaw unless an institutional subscriber makes it one.

Plan for contingencies by modifying boilerplate licenses. First. try to obtain a written assurance that all content licensed from an outside publisher that is redistributed by your search vendor will be accessible for the duration of your next license. If that doesn't fly, see where you get when licenses come up for renewal by insisting on a clause that stipulates that if X, Y or Z disappears, the subscriber has the option to cancel the license or to reduce its fixed costs by a certain amount for the duration of the research platform license.

Reduced costs by how much? The cost paid to the vendor or the replacement cost incurred by the buyer to acquire the content in print or electronic format? Start planning for contingencies. For example, how long do you think BNA will be available from anyone except BLaw-BNA? It just does not make sense to sell a competitive advantage to another research vendor by way of a distribution agreement.

What's going on here? The era of distributing expert secondary resources via Lexis and Westlaw to fill in the deficiencies of their commodized content is coming to a close. One or the other or BLaw but not "all or some of the above." In the No Sacred Cows era of legal research platforms, my hunch is distribution arrangements will become single vendor exclusive agreements that go to the highest bidder. And that bidder may change when the distribution agreement is up for renewal.

I'm not sure one can read the future by recent vendor eCommerce sites but clearly vendors like Lexis are already supplementing their in-house pBooks by offering expert print treatises published by other publishers (e.g., ALM) and professional and trade associations (just like BLaw is providing online). This is private sector demand-driven content sales and distribution in p- and e-formats. High quality speciality titles, something WEXIS lacks in quantity, are now "hot properties" in print and electronic formats for the supply chain.  Remember when Sears switched from just selling its own goods to becoming "Brand Central" a couple of decades ago?

Was BLaw's acquisition of BNA a wake-up call for WEXIS? [JH]

What May Become the Next Normal in Pricing Online Legal Search in the 21st Century?

In the "good old days" when we aging and decrepit Boomer-gen law librarians were bright young things, very expensive legal search vendors only offered "everything." At that time, everything in the databased content inventory wasn't all that much. Soon enough, "everything" was limited to the non-academic law library market because certain resources were excluded from academic law library licenses.

Early on database vendors' pricing mechanism generated very high variable search costs in the private and government sectors. While the private sector was then still able to charge back costs to clients, the government sector could not afford this model because, well you know, government entities have budgets to maintain. The call went out for some sort of in-plan access. "Impossible!" was the vendor responses based on false technology claims. Citing the differences in academic plans compared to the entire database universe model in private and government sectors plans, "impossible" became "possible."

Thus arrived the era of in-plan access with fixed costs with an out-of-plan option that included a variable cost component. Of course, fixed costs were and still are based on a mysterious pricing matrix that takes into account database selections, number of user accounts, number of legal professionals and various print tie-in arrangements at the institutional buyer's level. Ultimately, however, it boiled down to an institutional buyer's purchasing power, the negotiation skills of that buyer's representative, and, in the private sector, the consultants sometimes employed because the NDAs incorporated in licensing agreements prohibit sharing pricing data.

Those were the "select your database, then perform your search" days. With the next gen current gen WEXIS platforms, it is perform your search  and then filter your results largely by data elements that once were segment or field searches in former menu-driven database categories. Eliminating the marketing nonsense about how this or that vendor's metadata-enhanced SE is better than the "other guy's," buyers are still left with to options: (1) in-plan only negotable fixed rate or (2) in-plan with out-of plan variable rate. Of course what is "out-of-plan" does not necessarily mean "everything else." Access to "out-of-plan" databases is negotiable and oftentimes excludes much of the vendor's databased inventory to reduce variable costs. The clear trend, however, in the private sector is in-plan only licenses for a selected set of resources at a fixed rate for classic or next gen current gen WEXIS licenses.

Now comes the silliness. What is the point of next gen current gen WEXIS federated search engines if WEXIS doesn't provide its entire databased content inventory at a fixed rate? Why not stop applying a 20th century pricing scheme to a 21st century platform? "Impossible!" WEXIS will say but not for a psudeo-technological rationalization. Why then? Because WEXIS is still applying last century's revenue generation model to the 21st century as if the legal services industry has not changed permanently.

Will the "impossible" become possible as the next normal pricing scheme for very expensive online legal search if BLaw's flat rate pricing for that Company's entire database universe becomes a competitive threat to WEXIS?  That may depend on BLaw reducing its per seat flat rate for something less than institution-wide licenses.

For a little background on what may be the next normal in the 21st century from the institutional buyer's side of this equation, see The No Sacred Cow Models: Sole Provider, Primary Provider, or Multiple Narrow-Focused Providers for Online Legal Search in the Private Sector. [JH]

New and Updated Research Guides from GlobaLex

Recent international, comparative, and foreign law research guides published by GlobaLex include:

New Guide

• Research Guide of the Legal System of Kingdom of Nepal by Md. Ershadul Karim and Sirjana Sharma Pokhrel.

Updated Guides

• An Overview of the Egyptian Legal System and Legal Research by Dr. Mohamed S. E. Abdel Wahab.
• A Guide on the Harmonization of International Commercial Law by Duncan Alford.
• Basic Primary and Secondary Information Online Sources for the North American Free Trade Agreement (NAFTA) and the United States Central American Free Trade Agreement-Dominican Republic (CAFTA-DR) Research by Francisco A. Avalos and Maureen Garmon; Update by Francisco A. Avalos.
• Researching the United Nations: Finding the Organization's Internal Resource Trails by Linda Tashbook.
• The Austrian Legal System and Laws: a Brief Overview by Johannes Oehlboeck and Immanuel Gerstner; Update by Johannes Öhlböck.

[JH]

JAG's The Operational Law Handbook 2012

From the Preface to The Operational Law Handbook 2012:

The Operational Law Handbook is a “how to” guide for Judge Advocates practicing operational law. It provides references and describes tactics and techniques for the practice of operational law. The Operational Law Handbook is not a substitute for official references. Like operational law itself, the Handbook is a focused collection of diverse legal and practical information. The handbook is not intended to provide “the school solution” to a particular problem, but to help Judge Advocates recognize, analyze, and resolve problems they will encounter in the operational context. Similarly, the Handbook is not intended to represent official U.S. policy regarding the binding application of varied sources of law, though it may reference source documents which themselves do so. The Handbook was designed and written for Judge Advocates practicing operational law.

The size and contents of the Handbook are controlled by this focus.

Did I mention that the PDF version provided in the above link is 576 pages long? To order copies call (434) 971-3339; or email usarmy.pentagon.hqda-tjaglcs.mbx.clamo-tjaglcs(at)mail.mil.

Hat tip to beSpacific. [JH]

How Open? Survey of Online State Primary Legal Resources

This is the sixth annual Open Access Week so it seems appropriate to see just how far states have progressed to provide open access to their primary legal resources online.

AALL: 2011-2012 Preliminary Analysis of AALL’s State Legal Inventories (September 2012; Updated October 2012)

Sunlight Foundation: State Regulations Online wiki page and Matt Rumsey's blog post, Survey: How Many States Publish Rules and Regulations Online?

[JH]

Zillman's Statistics Resources and Big Data on the Internet

Marcus Zillman's LLRX feature, Statistics Resources and Big Data on the Internet, is a comprehensive listing of statistics and big data resources and sites on the Internet. "This bibliography of sources", writes Zillman, "is taken from my Subject Tracer™ Information Blog titled Statistics Resources and is constantly updated with Subject Tracer™ bots." 

These sites will help you to discover a wide range of avenues through which you may locate and leverage the latest statistics resources applicable to many different types of projects, programs and research. As this site is constantly updated it would be to your benefit to bookmark and return to the above URL frequently.

[JH]