Vincent is “the first AI-powered intelligent legal research assistant of its kind. Only Vincent can analyze documents in two languages (English and Spanish) from 9 countries (and counting), and is built ready to incorporate content not only from vLex’s expansive global collection, but also from internal knowledge management resources, public sources and licensed databases simultaneously. How does Vincent do it, you ask? Well, it’s been trained on vLex’s extensive global collection of 100 million+ legal documents, and is built on top of the Iceberg AI platform.” For more information, see this vLex blog post.

On Medium, Fastcase CEO Ed Walters lists all the development work the company accomplished this year (so far): the release of Fastcase 7, the roll-out of the Docket Alarm Analytics Workbench and the AI Sandbox, the launch of Fasecase’s imprint, Full Court Press, and the growth of Fastcase’s digital collection of secondary works. That’s an impressive list of achievements. The last development, secondary law resources, is one that does not get as much attention as it deserves. It certainly does not get the kind of attention received by Fastcase’s other developments. But it is important because primary-law-only search services cannot really compete with WEXIS. And if anyone is going to compete more directly with Thomson Reuters, LexisNexis or BloombergBNA, Fastcase is.

Many years ago I asked Ed about secondary sources on Fastcase. Not now was the response. Back then, the company was focused on growing its primary law collection, particularly state statutes and codes. Now Ed writes “Fastcase has gone from a handful of secondary treatises to more than 400 secondary treatises in about 14 months, with lots more to come.” He adds “And while we’re talking about secondary materials, let’s not forget that Fastcase’s partnership with LexBlog incorporates more than 15,000 of the best blogs of legal analysis, and our partnership with HeinOnline includes the full run of every law review in America.”

What treatises have been added? Ed lists the sources: “Fastcase licensed more than 120 fantastic Aspen and CCH treatises from Wolters Kluwer, 79 labor and employment titles from Littler, and criminal law treatises from Carolina Academic Press. These are terrific, expert guides, like Barry Zalma’s insurance law series. We’ve also added several new state bar association deskbook collections.”

At 400+ secondary law titles, Fastcase’s digital collection is not competitively comprehensive with WEXIS, but it is growing thanks, no doubt, to the work of former LexisNexis executive Steve Errick who, as Fastcase’s first COO, is responsible for this development (among other things, of course).

Now try to imagine Steve’s task at hand. The best way to do that is to put on your bibliographer’s hat. Your largest user population is attorneys who access Fastcase via one of 30 state bar associations that have contracted with the company. They are solo practitioners, small firm attorneys and attorneys employed by large law firms. Information needs are similar but not identical. Some have access to search services offered by our very expensive legal information providers. Some do not.

Many users work for mid-size and large law firms that license WEXIS. With WEXIS in the picture, those attorneys may not consider Fastcase as their go-to search service because WEXIS has a more comprehensive catalog of secondary works. But to fulfill the information needs of mid-size and large law firms Fastcase has licensed titles from Wolters Kluwer publications and is probably looking to add even more titles to license.

Many other users work in small firms or are solo practitioners, some without WEXIS access. While most firms practice at both the state and federal level, small firms and solo practitioners tend to focus their practice on state law. So to fulfill the secondary information needs of small firms and solo practitioners, state law deskbooks, bar association publications and other practice-oriented topical secondary works are needed. Fastcase is building this part of its secondary law resources too.

At some point in the development of its secondary law collection, Fastcase’s materials will become sufficiently attractive to WEXIS users that they may replace WEXIS with Fastcase. Perhaps some already have. More to follow. When Fastcase reaches this critical mass (remember “lots more to come”) watch out WEXIS. In particular, watch out Lexis. Fastcase is rising.

— Joe

According to this Above the Law post, attorneys searching Casetext’s CARA completed their research 24.5 times faster compared to Lexis Advance. Annualized time savings using CARA adds up to between 132 and 210 hours a year. The survey also found that attorneys rated CARA’s results 20.8 percent more relevant than Lexis Advance. Interesting but I would prefer to see a similar study comparing Casetext’s CLARA and Westlaw Edge. — Joe

From Sarah Lamdan, When Westlaw Fuels Ice Surveillance: Ethics in the Big Data Policing Era, N.Y.U. Review of Law & Social Change (Forthcoming):

Legal research companies are selling surveillance data and services to U.S. Immigration and Customs Enforcement (ICE) and other law enforcement agencies. This article discusses ethical issues that arise when lawyers buy and use legal research services sold by the vendors that build ICE’s surveillance systems. As the legal profession collectively pays millions of dollars for computer assisted legal research services, lawyers should consider whether doing so in the era of big data policing compromises their confidentiality requirements and their obligation to supervise third party vendors.

— Joe

Following up on this LLB post that asks “Does WEXIS use legal search user data in their surveillance search platforms?,” Sarah Lamdan reports via email about what transpired at CRIV’s Vendor Roundtable on Sunday. Sarah reports that LexisNexis denied using legal search user data in their surveillance search platform and Bloomberg Law stated it doesn’t save user data. “Thomson Reuters/Westlaw was notably silent,” Sarah observed.

Not discussed at CRIV’s vendor roundtable Sunday was the thornier issue for librarian professional ethics, namely that these companies are bidding on and contracting with ICE for surveillance purposes. See Sarah’s Surveillance and Legal Research Providers: What You Need to Know. — Joe

Yesterday, LexisNexis launched Lexis Analytics. From the press release:

The suite consists of new and enhanced products fueled by smart content from Lexis Advance and the strategic acquisitions of Lex Machina, Intelligize and Ravel Law, and integrates the most powerful technologies in the legal space, including machine learning, artificial intelligence (A.I.) and visualization tools.

Most powerful? Thomson Reuters’ Westlaw Edge is offering stiff competition for analytics. For a review of the launch, see the following stories:

LexisNexis Launches Lexis Analytics, Putting A ‘Stake in the Ground’ to Claim the Legal Analytics Space, Bob Ambrogi, LawSites, uly 13, 2018

LexisNexis Launches Lexis Analytics, Leveraging Collective Power of Recent Acquisitions, LegaltechNews, July 12, 2018

— Joe

 

Calling Westlaw Edge the most significant release since WestlawNext in 2010, Thomson Reuters announced the launch of Westlaw Edge just in time to create a lot of buzz at AALL’s annual meeting. Is it buzz worthy? Well, I haven’t seen it but initial reports indicate that the AI-enhanced Westlaw Edge is more that just an incremental upgrade.

To dive into this new development ahead of AALL 2018, check out the below articles:

Move Over Westlaw – Meet the Next-Generation Westlaw Edge, With Advanced AI and Analytics, Bob Ambrogi, LawSites, July 12, 2018

Thomson Reuters Launches Westlaw Edge, West Search Plus, Analytics, Enhanced Citator and More, Jean O’Grady, Dewey B Strategic, July 12, 2018

A Deep Dive Into the Tech Upgrades in Thomson Reuters’ Westlaw Edge, Legaltech News, July 12, 2018

Westlaw Edge will be offered as an upgrade from Westlaw for current Westlaw subscribers. Westlaw will be phased out in 2024. I wonder if Thomson Reuters is going to repeat the pricing mistake the company made at the launch of WestlawNext by trying to charge a 10% premium for Westlaw Edge? It didn’t work for WestlawNext. I doubt it will work with Westlaw Edge. — Joe

As Sarah Lamdan has documented both Thomson Reuters and RELX are supplying search solutions for their compiled surveillance data to law enforcement agencies, including ICE. She has also called attention to the ethical issues information professionals face in light of this development.

One issue that affects law librarians who use WEXIS legal search services is the extent to which, if any, there is cross-pollination of usage data from WEXIS legal search platforms to their surveillance search platforms. One would think our WEXIS representatives would be able to answer one simple yes/no question — Does WEXIS use legal search user data in their surveillance search platforms?

Hopefully this question will be asked and answered straightforwardly at CRIV’s Vendor Roundtable Sunday. That assumes WEXIS will send company representatives to the roundtable to serve as participants, not just observers, and further assumes that WEXIS responses will not hide behind a “proprietary information” response.

This matter may lead to further investigations by CRIV and, perhaps may require AALL Executive Board involvement. This Sunday’s vendor roundtable may be one of the most interesting roundtables in recent memory.

CRIV Vendor Roundtable
Sunday, July 15
1:00 p.m.-2:00 p.m.
Hilton Key Ballroom 9

— Joe

By Sarah Lamdan

Legal research companies are selling surveillance data and services to law enforcement agencies including ICE. Their participation in government surveillance raises ethical questions about privacy, confidentiality and financial support: How private is your search history when your legal research vendors also sell surveillance data? Are you funding products that sell your patrons’ and clients’ data to ICE and other law enforcement agencies?

Historically, librarians have protected people from unwanted surveillance and safeguarded intellectual freedom. How do librarians uphold their privacy and intellectual freedom standards when they rely on surveillance companies for their research resources?

Thomson Reuters, RELX, and ICE Surveillance

Since September 11, 2001, permissive surveillance laws and improving data technology have created a huge market for big data policing products. Thomson Reuters and Reed Elsevier (now branded as RELX), the companies that own Westlaw and Lexis, are competing for contracts to supply troves of personal data and search technology to the government. Both companies have expanded their product lines to take advantage of lucrative surveillance opportunities. Since 2017, Thomson Reuters and RELX have bid on contracts to help ICE track hundreds of thousands of immigrants and target them for arrest.

Thomson Reuters and RELX have quietly been developing surveillance tools for years. In 2004, Reed Elsevier purchased Accurint, a huge personal information data system. By 2006, Lexis had the world’s largest electronic legal, news, and public records collection. In 2015, Reed Elsevier rebranded itself as RELX and moved further away from traditional academic and professional publishing. This year, the company purchased ThreatMetrix, a cybersecurity company that specializes in tracking and authenticating people’s online activities, which even tech reporters saw as a notable departure from the company’s prior academic publishing role.

Thomson Reuters, Westlaw’s company, has also changed its business to compete in the surveillance data and technology market. Thomson Reuters Special Services (TRSS) was developed to sell surveillance products, and TRSS CEO Stephen Rubley joined the board of the ICE Foundation. Thomson Reuters has signed three contracts to provide ICE with surveillance services totaling over $26 million. The contracts include:

  1. A contract to provide ICE access to Thomson Reuters’ Consolidated Lead Evaluation and Reporting (CLEAR) system, which contains information that ICE uses to identify and target suspects, businesses and assets for arrest, seizure, and forfeiture.  CLEAR provides access to billions of records, sourced from both government agencies and private suppliers. RELX’s Accurint is CLEAR’s main competitor. The product interfaces with law enforcement agency databases in real-time, feeding data through Palantir’s FALCON analysis system, Peter Thiel’s “automated policing” technology that decides whether people should be targeted for investigation.
  2. A contract to integrate license plate recognition (LPR) data into the CLEAR system. LPRs are roadside cameras that automatically photograph passing license plates and convert the images into a computer-readable format, creating a “read” that contains license plate numbers and registration data, vehicles’ makes and models, camera IDs that include passenger IDs in some cases, GPS coordinates, and the time and date each photograph was taken to pinpoint peoples’ locations. The International Association of Chiefs of Police has warned that using LPRs could violate the First Amendment, and in 2015, the DHS cancelled its bid for LPR services after a privacy impact assessment raised red flags. However, in 2017, the agency went ahead and purchased LPR services from Thomson Reuters and a company called Vigilant Solutions.
  3. A contract to give ICE “subscription data services” that continuously monitor and alert ICE about changes to immigrant’s FBI numbers; State Identification Numbers; jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; payday loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records. (RELX also expressed interest in this contract, but lost out to Thomson Reuters, according to the Sole Source Justification records.)

More surveillance contracts are likely on the way to help ICE reach its goal of generating at least 10,000 leads per year for deportation and visa denial. Thomson Reuters and RELX will likely bid on those contracts, too. Representatives from both companies attended ICE’s investor day event for its controversial Visa Lifecycle Vetting Initiative (VLVI), or Extreme Vetting program. ICE wanted to hire a data company to surveill social media profiles and predict who should be allowed in the U.S., but ICE shelved the program because the companies had not yet developed the technology the agency wanted. Once the companies make the right surveillance tools, ICE will probably want to pay for them.

Why does this matter to law librarians?

Thomson Reuters’ and RELX’s expansion into big data surveillance products has changed their relationships with law librarians. The new business models mean that law product purchasers are no longer the companies’ top priority customers. As Thomson Reuters and RELX work to entice law enforcement customers, law librarians have been moved down the queue. Westlaw and Lexis have become less flexible and forthcoming about contracts while providing less customer service.

Even as customer relations decline, AALL treats the companies like colleagues rather than service providers and censors librarians’ conversations about their surveillance contracts.  But not talking about these issues does not change the fact that Lexis and Westlaw are no longer mom n’ pop law companies. Like other companies, they operate less like publishers and more like data supercenters. Westlaw and Lexis legal product packages now sit on virtual megastore shelves next to the law-adjacent “risk solution” law enforcement surveillance products, and the legal products help the companies leverage surveillance product sales to law enforcement agencies. Law librarians no longer have a clear understanding of their vendors’ practices as law libraries are one of many profit sources for corporations that also sell data to entities whose ethical practices might violate librarians’ professional codes.

Librarians protect their patrons’ privacy. The American Library Association’s Code of Ethics requires that librarians safeguard people’s personal information and ensure that people seeking information do not become surveillance targets. Moreover, the Code says that librarians must not advance private interests, including those of vendors, at the expense of library users. Librarians are responsible for protecting intellectual freedom against surveillance efforts.

Librarians also support the ethical use of information. The ACRL Framework for Information Literacy emphasizes the ethical use of information, data, and scholarship. The AALL Legal Research Competencies and Standards state that a successful legal researcher “distinguishes between ethical and unethical uses of information” and the Boulder Statement on Legal Research Education specifies that legal research instruction should include “an ongoing examination of professional standards, including the identification of ethical responsibilities.”

Lexis and Westlaw’s companies’ expansion into surveillance products implicates librarians’ ethical obligations in several ways:

  1. Confidentiality and Privacy: When legal research vendors sell surveillance data to enforcement agencies, they risk the confidentiality of the data collected by their legal research product. If surveillance is their market, what happens to data tracking Westlaw and Lexis log-ins, search histories, and document views? Client confidentiality is a cornerstone of the legal profession. With few exceptions, lawyers are obligated to keep client information from enforcement agencies’ reach. While product reps may say that searches on their law products are private, neither company has issued any official assurances that they would not funnel lawyers’ search histories into their other products. Thomson Reuters’ privacy statement says that the company can use subscribers’ information (which includes browsing history and search terms) “for the prevention, detection or investigation of a crime or other breach of law or requirement, loss prevention or fraud” or “to comply with requests from courts, law enforcement agencies, regulatory agencies, and other public and government authorities.” Without affirming a commitment to search confidentiality, Westlaw and Lexis users cannot be sure that either product would defy their government clients’ requests for legal research data.
  2. The Ethical Use of  Information: When law librarians and legal professionals buy legal research services from vendors that are developing surveillance products for ICE and other enforcement entities, chances are high that the money funds surveillance research and development. Buying Westlaw’s legal products gives Thomson Reuters ample overhead to build a “digital deportation machine” for ICE. Contracting with research vendors that fuel government surveillance and help ICE carry out ethically fraught programs raises critical information literacy issues ripe for discussion by law library professionals.

ICE surveillance data may be used to target noncriminal residents for denaturalization and to locate and arrest people at schools, at courthouses, in hospitals, at work, and at their homes. Some companies are refusing to use and work with companies that build ICE surveillance systems as ICE’s surveillance and enforcement practices raise numerous ethical and legal concerns. Lawyers, including the ABA, have called ICE’s practices unconstitutional and unethical.

Editor’s Note: I want to thank Sarah for calling her article to my attention and allowing me to republish it on LLB. The article was originally published on Medium on July 6th. See also Sarah’s earlier LLB post on this subject here. — Joe

Here’s the text of the eBriefing emailed to AALL members today:

In response to the June 7 letter sent by AALL’s attorney to LexisNexis, AALL and Lexis leadership met in Chicago on July 2. Those in attendance were Greg Lambert, AALL president, Kate Hagan, AALL executive director, James P. Fieweger, AALL counsel, and Lexis representatives Sean Fitzpatrick, managing director of North American research solutions, Paul Speca, vice president, large law & law school markets, Jeffrey Pfeifer, vice president, product management, and Logan Breed, counsel.

The purpose of the meeting was to discuss member concerns regarding a recent LexisNexis sales practice that ties access to its electronic and print publication products to the purchase of a license to Lexis Advance.

AALL had a series of questions it wanted addressed regarding the new policy. Specific questions included the terms of the policy, why the policy was put in place at this time, and why members who were able to purchase stand-alone Lexis print and electronic products in the past are now required to purchase Lexis Advance for access to those products.

Lexis advised AALL it is unable to discuss any product packaging or pricing matters, except with their customers, since each relationship is customized to meet the firm’s needs, and because Lexis has negotiated NDAs with all of its customers.

They also reiterated their earlier statement: “As we retire Lexis.com this year and upgrade users to Lexis Advance, we will more fully leverage our platform that consolidates all content and tools to one ecosystem.”

AALL also could not confirm what markets the new sales policy affects, but to date, we have only heard from law firm members regarding this change.

AALL President Greg Lambert strongly urged Lexis leadership to reconsider the new practice. While we do not anticipate that will occur, he further urged that they communicate fully to the membership and to their individual customers at the local level the specifics of this new sales practice and how it will affect them when renewing their Lexis contracts.

AALL will continue to pursue any rights we might have in addressing these product-tying policies. In the meantime, it is important members are aware that the Lexis strategy of tying its print and electronic products to the purchase of Lexis Advance is an issue affecting the legal information marketplace. Members, especially those working in law firms, should work with firm leadership to inform them of these changes and the implications for the firm’s legal information and research needs. Members should also communicate directly with their assigned Lexis representatives to discuss what terms and conditions may or may not be available to them as customers of Lexis.

— Joe

 

On July 2nd, AALL representatives met with LexisNexis representatives to discuss the company’s anticompetitive tying sales strategy. No official word on the outcome. (Not sure one should even expect an outcome after only one meeting. ) Until members hear something, this matter can be viewed as a work-in-progress. However, what if it wasn’t?

In its letter to LexisNexis CEO Mike Walsh, AALL called for an open dialog over the company’s anticompetitive tying sales strategy. If that failed, our association warned of taking “legal or commercial action” against the company. Assuming for this post that dialog does not produce our association’s desired outcome, the cessation of tying print and ancillary products to a Lexis Advance license, then taking legal or commercial action would be costly to AALL’s treasury.

It goes without saying that legal action would be very expensive (unless an AALL-member law firm would take the matter pro bono). The outcome would be unpredictable.  But this option is more likely in getting Lexis to change its sales policy.  Only someone with expertise in antitrust law (meaning not me) can evaluate this option.

Less unpredictable but also less likely to be as effective as legal action is taking “commercial action.” Commercial action could range from no longer accepting Lexis advertising revenue in AALL publications like LLJ and Spectrum, to a ban from AALL’s annual meeting and its exhibit hall, to a complete ban from all sanctioned activities of AALL and its chapters. Commercial action could be fairly expensive for our association too in some instances.

Using FY2018 budget data as a basis for illustrating future consequences, estimated total advertising revenue from Spectrum is $60,000 and from LLJ is $3,800.  That’s hardly a large amount. Spectrum and LLJ are already costing AALL more than the total revenue generated with an estimated annual net deficit of $114,928 for both. Not knowing what portion of Spectrum-LLJ ad revenue comes from Lexis, let’s just assume that the company pays AALL about $30,000. If so, simply banning Lexis from advertising would not hurt AALL’s bottom line that much. AALL would still end up with an estimated adjusted total budget surplus of $50,000 because AALL’s estimated total annual surplus for FY2018 is only $82,260. For such an egregious violation of fair business practices and possible antitrust violations simply banning LN from advertising just does not seem a proportional response. More is needed.

What’s needed in this what-if scenario is denying LN participation in our annual meeting and its exhibit hall until LN changes its sales policy. Not allowing LN a presence at our 2019 annual meeting (and later annual meetings as well) is justified. The company’s tying ultimatum deserve a similar take it or leave it action from AALL.

I cannot estimate what this annual meeting ban would cost AALL (but AALL administrators could). However I believe the ban would negatively impact our association’s annual budget surplus, turning a surplus of $82,260 into an annual net budget deficit amounting to low six figures. And if AALL decided to ban the company from our annual meeting, AALL would have to raise income some way, most likely in ways that directly affect rank-and-file law librarians.

So… is it still worth it? Yes. — Joe

Michael Feit looks at the AALL-LexisNexis controversy about the company’s strategy of tying print and ancillary products to a Lexis Advance license, noting that Lexis Advance is a mature product at a competitive disadvantage with Westlaw in a saturated market. From this vantage point Feit calls the company’s tying sales strategy an attempt to preserve a revenue stream that may decline in the coming years. — Joe

From the about page for Metrics Toolkit:

The Metrics Toolkit provides evidence-based information about research metrics across disciplines, including how each metric is calculated, where you can find it, and how each should (and should not) be applied. You’ll also find examples of how to use metrics in grant applications, CVs, and promotion dossiers.

There are two ways to use the Toolkit. Explore metrics to browse the metrics you want to learn more about. Or, you can choose metrics that will be best for your use case by filtering via our broad discipline, research output, and impact type categories.

Interesting. — Joe

AI in Law and Legal Practice – A Comprehensive View of 35 Current Applications explores the major areas of current AI applications in law, individually and in depth. Current AI applications fall in six major categories:

  • Due diligence – Litigators perform due diligence with the help of AI tools to uncover background information. We’ve decided to include contract review, legal research and electronic discovery in this section.
  • Prediction technology – An AI software generates results that forecast litigation outcome.
  • Legal analytics – Lawyers can use data points from past case law, win/loss rates and a judge’s history to be used for trends and patterns.
  • Document automation – Law firms use software templates to create filled out documents based on data input.
    Intellectual property – AI tools guide lawyers in analyzing large IP portfolios and drawing insights from the content.
  • Electronic billing – Lawyers’ billable hours are computed automatically.

— Joe

More bad news for RELX. Swedish research libraries are cancelling their journal contract through Bibsam Consortium with the academic publisher Elsevier. The contract will terminate as of June 30, 2018. Researchers from the participating organisations will continue to have access to articles published between January 1995 and June 2018 under the terms of the current contract, but Elsevier will not provide access to subscription content published after 30 June 2018. — Joe

On June 7th, AALL sent Mike Walsh, CEO of LexisNexis Legal, a letter calling for the company to cease tying the acquisition of its other print and digital products to licensing Legal Advance. [Text of letter here ; text of press release]. Early coverage of this development include Jean O’Grady’s The Law Librarians Revolt: AALL Accuses LexisNexis of Engaging in Unfair Business Practices – Possible Antitrust Violations, Dewey b strategic, June 7, 2018 and Dan Packet’s Law Librarians Accuse Lexis of Anti-Competitive Bundling, American Lawyer, June 7, 2018 (behind paywall).

More… .

That AALL Letter Addressed To Mike Walsh CEO Lexis Nexis, House of Butter, n.d.

AALL Accuses LexisNexis of Possible Antitrust Violations, Legal Skills Prof Blog, June 8, 2018

Why Lexis’ Sales Approach Should Concern Law Firm Management and Leadership, Greg Lambert, 3 Geeks and a Law Blog, June 11, 2018

Answering the call for AALL consumer advocacy: 10 years after the Great Recession AALL is living up to its potential — what’s next?, LLB, June 13, 2018

Law Librarians Accuse LexisNexis of Anticompetitive Sales Practices, Bob Ambrogi, LawSites, June 14, 2018

LexisNexis must talk with customers to show it cares, Kevin O’Keefe, Real Lawyers, June 14, 2018

AALL Quarrels With LexisNexis, Information Today NewsBreaks, June 19, 2018

Lexis’s Legal Pricing Strategy Has Haters, But Might Be a Risk Worth Taking, Michael Feit, Legaltech News, June 25, 2018

 

Related background coverage prior to letter’s issuance… .

LexisNexis/AALL CRIV Conference Call November 28, 2017, 4:00 p.m., CRIV Blog, Dec. 20, 2017

What! Is LexisNexis discriminating against law libraries that cancel Lexis Advance? Law Librarian Blog, April 3, 2018

At 1:00 PM CDT Friday, AALL may decide to issue a “statement of disapproval” over one very expensive legal information provider’s tie-in negotiating tactics, LLB, April 4, 2018

“The Board will be gathering more facts in order to determine how to effectively respond” to LexisNexis’ tying ultimatum, LLB, April 10, 2018

Acquiring only what we need and can afford: Getting to “yes” with a vendor behaving like LexisNexis requires one shared imperative that is missing right now, LLB, June 1, 2018

Read more about it. — Joe

The Great Recession sent AALL into a tailspin with members over consumer advocacy. Rank-and-file members’ calls for AALL to commit to consumer advocacy due to numerous complaints about price inflation and unscrupulous vendor business practices were pushed back by successive AALL executive boards during the Great Recession and its library-related aftermath, the “Shed West” (print) era, 2008-2013. Push backs? Sure, (1) the vendor liaison fiasco usurped CRIV’s traditional jurisdiction and authority; (2) the Vendor Colloquium and its (in)action plan left consumer advocacy almost entirely unaddressed and (3) the issuance of AALL’s Antitrust FAQ, our association’s stringent interpretation of antitrust rules, heavy-handedly reminded AALL members that “AALL cannot be used by any of its members as a vehicle for engaging in collective action that would be anticompetitive.” There was also the short-lived Consumer Advocacy Caucus which died on the vine due in part to the animus certain AALL executive board members had toward the group (and due to leadership changes within the caucus).

But that is in the past. Now AALL is living up to its potential in consumer advocacy. “Law librarians revolt,” said executive board member Jean O’Grady in her Dewey B Strategic post. The anticompetitive tying controversy with LexisNexis also demonstrates that our association can commit to consumer advocacy for AALL’s institutional members, the employers of firm, government and academic law librarians. AALL president Greg Lambert reminds readers that this controversy is not just about law librarians at Why Lexis’ Sales Approach Should Concern Law Firm Management and Leadership, 3 Geeks and a Law Blog, June 11, 2018 (“It is definitely an issue which those outside the law firm libraries should take notice, and be very concerned. This is something that affects the entire law firm, not just the law librarians.”)

What’s next? “[AALL legal counsel] ask[s] on behalf of AALL that representatives of LexisNexis commit to a meeting with AALL leadership, which prefers and encourages open dialogue on this issue, as opposed to legal or commercial action,” is how AALL closed its letter to LexisNexis’ CEO Mike Walsh. While AALL did not stipulate a drop-dead deadline for discussions before taking legal or commercial action, it would be wise for LN C-suite occupants to meet with the executive board members and CRIV representatives before or at AALL 2018 in Baltimore next month. It most certainly would be a good idea to conduct this meeting (and hopefully resolve the controversy) before CRIV’s annual vendor roundtable which is scheduled for July 15, 2018. Remember, all members (and vendors) are invited to attend and participate in the roundtable discussion. I bet anticompetitive tying demands by Lexis will be a hot topic at the meeting. The roundtable may also learn of questionable tying practices by other very expensive legal information vendors. As CRIV explains “This roundtable discussion can often inform CRIV’s activities for the upcoming year.” So what’s next in my opinion is that all interested AALL members attend CRIV’s vendor roundtable.  — Joe

CRIV Vendor Roundtable

Sunday, July 15

1:00 p.m.-2:00 p.m.

Hilton Key Ballroom 9

From the conclusion of Guy Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements, 38 Seattle University Law Review 1 (2014):

There is currently a gap between the economic theory and the prevailing law regarding tying arrangements. These arrangements, which used to be considered essentially harmful, have been shown to possess limited potential for harm—certainly less significant potential than was previously thought. Moreover, tying arrangements have been shown to hold the potential for great and essential benefit. This Article has presented the main accepted modern economic insights, and has proposed the appropriate legal rules for analyzing the various tying scenarios. When the tying arrangement does not lead to a significant closing of the tied product market, and so it does not affect this market’s competitive structure, the legal per se rule should be applied. In contrast, when the tying arrangement leads to a significant closing of the tied product market, the rule of reason test should be applied, but not in the format that assumes that tying arrangements in these scenarios are harmful. Rather, it should be applied in a format that requires the plaintiff to prove the existence of real potential to harm competition significantly. If the existence of harmful potential is proven, the defendant will have to prove a significant efficiency justification. Then, the onus returns to the plaintiff to show that the anticompetitive potential of the tying outweighs its procompetitive potential.

— Joe