Category Archives: Publishing Industry

Swedish research libraries cancel journal contract with Elsevier

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

Early coverage of AALL-LexisNexis anticompetitive tying controversy — updated (again)

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

 

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

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

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

Sagi’s A Comprehensive Economic and Legal Analysis of Tying Arrangements

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

AALL issues press release calling on LexisNexis to stop its anticompetitive tying sales policy

“This policy has a detrimental impact on every AALL member using LexisNexis. We have a responsibility to come to the aid of our members and make their voices heard.” — Greg Lambert, AALL President, June 11, 2018 press release.

After failed attempts to discuss LN’s anticompetitive tying sales policy in a substantive way, our association issued this letter to Mike Walsh, CEO of LexisNexis Legal last week. On June 11th, AALL reinforced its position by releasing this press release. Read more about it. — Joe

AALL issues Dear Mike letter calling LexisNexis Legal’s tying sales policy anticompetitive [text]

June 7, 2018

Mike Walsh
CEO Global Legal Business
230 Park Ave, Suite 7
New York City, NY 10017

Dear Mr. Walsh:

On behalf of the American Association of Law Libraries (AALL), I am writing to ask that LexisNexis cease its recently enacted policy of tying access to its electronic and print publication products to the purchase of a license to its Lexis Advance search product. AALL believes this practice is anticompetitive and detrimental to the long-term relationship between LexisNexis and AALL’s constituents.

As you may know, AALL is a national association representing the interests of legal information experts, and is focused on supporting its members’ efforts to provide timely and relevant information to their professional colleagues. Its members include law librarians, Chief Knowledge Officers, marketing and business development research analysts, web content and materials managers, judges, and other information specialists. Many of these members work for law firms and in similar corporate settings, supporting the work of practicing attorneys.

Historically, law firms have been able to purchase from LexisNexis publications and search services that fit the needs of their practice. This practice allowed firms to license access to specialized materials, such as Moore’s Federal Practice, leading treatises such as Nimmer on Copyright, Chisum on Patents, or Collier on Bankruptcy, relevant trade publications such as the various Law360 titles, or analytical tools such as Lex Machina, without necessarily licensing Lexis Advance, LexisNexis’ legal search product.

Since July 2017, however, AALL has received numerous reports from law firm-affiliated members that LexisNexis has adopted a new sales policy. Under the new policy, firms are required to purchase a license to Advance before they can purchase access to other LexisNexis publications and products. And those firms that do not wish to purchase Advance, for whatever reason, have been foreclosed from accessing other products they have used in their practice for years and, in some cases, for decades.

It is evident that LexisNexis has elected to leverage the demand for certain products and publications to extract purchases of its Advance search product. Such conduct is anticompetitive and likely prohibited by law. Equally as important to AALL, this new policy is detrimental to its members and the law firms they serve.

It also has put LexisNexis at odds with standards AALL has promulgated for its members and publishing professionals. The AALL Guide to Fair Business Practices for Legal Publishers describes standards for the business practices of publishers that most directly affect librarians and other legal information consumers. These recommended practices are premised on the belief that good customer service and positive customer relations benefit legal publishers as well as customers. With this aim of mutual benefit in mind, Section 3.2 of the Guide provides that “Publishers should engage in open and fair negotiations with customers regarding licensing agreements and other contracts.” LexisNexis violates this standard by coercively tying access to publications regularly used and relied upon by legal professionals to a subscription to Advance. Likewise, by refusing to consider granting the type of stand-alone licenses it previously provided, LexisNexis fails to provide its customers an opportunity to negotiate contract terms as required by Section 3.2(c). Through its violation of these standards, LexisNexis has placed itself in apposition to the interests of the very law firms that it and AALL seek to serve.

The AALL Committee on Relations with Information Vendors (CRIV) his attempted to open a dialogue with LexisNexis regarding the impact of its anticompetitive policy on law firm libraries and on law firms. But, to date, LexisNexis’ response has been vague, incomplete, and unsatisfactory, evincing. no interest or intent to revoke or otherwise modify the practice in question.

Therefore, I ask 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.

Sincerely,

MICHAEL BEST & FRIEDRICH LLP

/s/

James P. Fieweger

Source Document

It’s a start in the right direction. — Joe

Nominations for 2018 class of Fastcase 50 due by June 10

Each year, Fastcase honors the most inspiring, courageous, and noteworthy innovators in law with the Fastcase 50 award. To make a nomination, due by June 10th, go here. Award winners will be annouced just ahead of AALL’s 2018 annual meeting in July. — Joe

Tips on writing for a peer-reviewed law journal

For almost five years now, Christopher Schmidt has been the editor of the peer-reviewed journal Law & Social Inquiry. In Tips on Writing for a Peer-Reviewed Journal on Legal History Blog, he offers sound advice on submitting scholarship to a peer-reviewed law journal, concluding “The peer review process provides information. More often than not, this information—the work of an overwhelmingly conscientious group of reviewers and editors—is quite valuable. But like all information, it can be flawed. It’s subject to interpretation. If your reviewers are divided, and the journal editors choose not to accept your article, then your job is to make use of the information you’ve gained. Figure out which critiques are valid and which ones are not. Then revise the manuscript and send it off to another journal.” — Joe

Shake-up in Thomson Reuters Legal’s executive suite as parent company downsizes

In a shake-up of Thomson Reuters Legal executive suite, TR Legal’s president Susan Taylor Martin is out at the end of this month, and Brian Peccarelli, president of Tax & Accounting, and Neil Materson, EVP and chief transformation officer, have been appointed Co-COOs. These changes are taking place in the context of TRI’s “plans to de-layer the business and reduce its cost base to reflect a smaller organization when it closes the sale of a 55% interest in its Financial & Risk business to private equity funds managed by Blackstone (expected in the second half of 2018).” Here’s the press release.

H/T to this LawSites post. — Joe

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

Some six or seven (or eight?) years ago I attended an annual LexisNexis sales force meeting held in Las Vegas, having been invited to speak to inside print sales reps about being an LN customer in one session. While at the annual meeting I sat in on a general meeting of all inside and outside account reps. From this meeting I remember Keith Hawk, then SVP of Sales, speaking about the ethical obligation LN and its sales force had to the company’s customers, an ethical imperative defined as providing lawyers with the professional grade legal resources they need to practice their profession. That was refreshing to hear. It implied that the Company’s sales reps weren’t being instructed to cram down sales of unnecessary legal resources in unwanted formats as a matter of corporate sales policy.

My, how times have changed. Keith Hawk has left LexisNexis. The ethical sales imperative he spoke of appears to have left LN too. This is evident from reports that allege LexisNexis has a new sales policy that finds expression in LexisNexis negotiation ultimatums which tie print and/or ancillary products to licensing Lexis Advance. (LLB posts here, here and here.) Such ultimatums result in law firms and government libraries buying what they don’t need if they can afford to do that, or not being able to acquire what they need for their user population because they cannot afford the additional expense of the tie-in being offered in what appears to be a take it or leave it basis. In those situations, the ethical imperative of selling only those legal resources lawyers need in the formats the buyer chooses has been violated by the seller. That’s just not how to successfully maintain and grow stable win-win vendor-law library relationships in the context of B2B sales.

But are LN’s reported tactics really a new sales policy? What may have happened, at least some instances, was that LN was getting push back from law libraries that didn’t want to transition from Lexis.com to Lexis Advance and LN decided to do some of its own push-back by denying those libraries print and ancillary products. That’s purely speculative on my part, but if true, it is no excuse for violating what had been an ethical imperative that once defined LN’s relationship with its client base. Remember when Thomson Reuters was the “evil” vendor?

Unfortunately, these days we really cannot forecast LN’s ultimate corporate objectives. Nothing much is long term at LexisNexis. LN’s almost annual tradition of corporate-wide reorganizations have taken its toll. Talent and institutional memory have walked out the door, sometimes voluntarily, oftentimes not. LexisNexis Legal is in an almost constant state of flux with chaos reigning in both the company’s cubicle farms and its executive suites. — Joe

Born digital only but not curated at BNA: Bloomberg BNA transforming its print and online topical news reporters into real time “news delivery portals”

On the Boston College law library blog, Mary Ann Neary reports that Bloomberg Law has notified BNA Premier subscribers that all print subscriptions will cease being published. She writes

Titles now available as electronic Resource Centers, such as Bankruptcy Law Resource Center, will cease publication and this content will be delivered via a “news delivery portal.”  Bloomberg presents this change as an  improvement due to news stories being published in real time with subscriber ability to customize e-mail alerts for user interests. What is apparently being lost in this transition is the added value of BNA’s content curation, namely its indexing features, such as searching by Hot Topics and filtering article searches to Key Features. Bankruptcy researchers depended on the ability to sort by industries and track these developments.

Neary also reports that the changes will be effective June 25, 2018, just in time for answering questions at AALL 2018 in July. Sounds to me like Bloomberg BNA is taking a step backwards in providing professional grade topical law resources. — Joe

Empirical analysis of Lexis and West headnotes in SCOTUS opinions from the 2009 term

“The data make clear that headnote assignments are far from scientific. In fact, they appear somewhat arbitrary, at least based on the discrepancies described in this article. Further study is warranted,” wrote Peter A. Hook and Kurt R. Mattson in Surprising Differences: An Empirical Analysis of LexisNexis and West Headnotes in the Written Opinions of the 2009 Supreme Court Term, 109 Law. Libr. J. 557 (2017). Here’s the abstract:

The number of headnotes assigned by LexisNexis and West are empirically examined for opinions of the 2009 Supreme Court Term. Additionally, Citizens United is examined in detail to determine the overlap of headnote-worthy language. Discrepancies in the number of headnotes assigned and disagreement as to headnote-worthy language call into question the rigor with which headnotes are created.

H/T to Legal Skills Prof Blog. Interesting. — Joe

The renaissance debate over printing English law: An intellectual history of law publishing

Here’s the abstract for The Commoning of the Common Law: The Renaissance Debate Over Printing English Law, 1520-1640, 146 Univ. of Penn. Law Review 323 (1998), by Richard J. Ross:

Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law “to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth.” Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print’s impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training.

This essay pursues an intellectual history of law publishing. It explores lawyers’ uncertain, divisive, and changing opinions about the effects and meanings of the legal press – their attacks, defenses, interpretations, aspirations, and warnings.

The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals.

The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the “anti-publicists,” questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of “publicity” inclined anti-publicists to disapprove of revealing the law’s inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion.

The third section explores the contexts engendering the debate and making plausible the disputants’ contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation.

The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the “commoning” of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild “ownership” of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

Interesting. — Joe

AALL’s 2018 New Product Award goes to BLaw’s Points of Law

According to today’s AALL eBriefing, Bloomberg Law’s Point of Law artificial intelligence solution has been awarded AALL’s 2018 New Product Award. For a review of the product, see Mark Giangrande’s LLB post.  — Joe

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

We have been reporting on recent LexisNexis tie-in attempts wherein the Company refuses to sell print or ancillary products in retaliation for cancelling Lexis Advance as if this may be a new company sales policy. Initially I thought a rogue LN sales rep may have created the reported situation involving a large law firm in Texas. Having now heard confidentially about similar tie-in negotiations, I and I have no doubt other invoice-paying law librarians are interested in finding out what is going on and what we are going to do about this to support member institutions. So is our association’s Executive Board.

At last week’s meeting, the Executive Board heard a request from CRIV to issue “a statement of disapproval of the LexisNexis policy.” Instead of issuing the statement, the Executive Board has decided to gather “more facts in order to determine how to effectively respond” according to AALL Member News for the Week of April 9, 2018. No word on who is performing the investigation, when it will commence and conclude, whether the results will be reported to the membership in a timely manner, and what AALL will do with the results of its investigation.

OK, our association isn’t exactly known for its consumer advocacy efforts on behalf of all institutional members but I hope AALL’s statement means that it will solicit additional information, this time from all law librarians who have been confronted with LN’s tie-in ultimatum. If your law library has been the recipient of LN’s ultimatum, I think the best people to inform right now are the members of CRIV. The more instances of similar negotiations, the better.

Let’s not let LexisNexis get away with giving the Executive Board the same sort of “answers” the Company gave CRIV when CRIV asked LN three times for an explanation. Here they are:

First attempted explanation — “Our pricing is different in each market and varies depending on which products and solutions work best for each customer. Accordingly, we sit down with customers and explain the pricing for their firm, including what products are sold together and which are sold separately. If any of your readers want to discuss, we are happy to do so directly with them.”

Second attempted explanation — “Keep in mind that Lexis has been selling integrated products as a package with Online for many years with notable examples such as Lexis Search Advantage, Lexis for Microsoft Office, Verdict and Settlement Analyzer, Profile Suite, LN Publisher, and Digital Library. 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. This affords considerable benefits to users including being able to navigate seamlessly between products, have answer sets surfaced across products, and gain access into the central Online content repository, that formerly would have been restricted by product.”

Third attempted explanation — “It is impossible for us to answer this specific question with a blanket statement since all markets have unique pricing plans suited to buying preferences. What does apply at a broad level is that we are continuing to integrate products into Lexis Advance where all global content and tools will be housed and maintained to the highest level of accuracy and currentness. We are
exploring pricing and packaging options that offer a seamless experience across products and access to related answer sets not possible with satellite products. Please refer to related information provided in the LexisNexis/CRIV conference posted on CRIV Blog, Dec. 20, Again, If any readers wish to discuss, we encourage them to contact their account team directly.”

I call BS.

Hopefully, our association will aggressively pursue what may be the most serious complaint about LexisNexis in at least a decade. — Joe

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

Yesterday I reported that CRIV has been unsuccessful in attempting to resolve a dispute involving LexisNexis and a large law firm in Texas over LexisNexis’ refusal to sell its print products unless the firm renewed its Lexis Advance license. (Since then I have heard about how LexisNexis has coerced other law libraries using the same negotiations tactic.). At 1:00 PM CDT Friday, the Executive Board will consider CRIV’s recommendation that AALL issue “a statement of disapproval of the LexisNexis policy.” If issued, what should the statement say?

How about a strongly worded condemnation of what may be anti-competitive tying because (1) two separate products or services are involved, (2) the sale or agreement to sell one is conditioned on the purchase of the other, (3) the seller has sufficient economic power in the market for the tying product to enable it to restrain trade in the market for the tied product, and (4) a not insubstantial amount of interstate commerce in the tied product is affected. Enumerating the elements of a per se violation of antitrust law might be a good start for advocating for our institutional membership base. — Joe

What! Is LexisNexis discriminating against law libraries that cancel Lexis Advance?

The following complaint was reported by CRIV to the Executive Board for the Board’s Spring 2018 meeting.

In July of 2017, an AALL member (a librarian at a large law firm in Texas) submitted a help request to CRIV regarding a change in LexisNexis sales policy that she felt was detrimental to her firm, and requested that CRIV mediate the situation with LexisNexis. Specifically, the librarian’s complaint alleged that when her firm decided not to renew its subscription to the Lexis Advance database, LexisNexis retaliated by stating that they would no longer be willing to sell any LexisNexis print materials or ancillary online legal products (such as Law360) to the firm.

In the Spring Meeting Board Book 2018 (Tab 14, PDF pages 186-188), CRIV reports to the Executive Board that our representatives were given unsatisfactory answers when they questioned LexisNexis about this complaint. Still waiting for an explanation… . — Joe

Susan Nevelow Mart’s Results may vary in legal research databases published in ABA Journal

“Call me naive,” wrote Bob Ambrogi about the conclusions reached by Susan Nevelow Mart in her excellent research found in The Algorithm as a Human Artifact: Implications for Legal {Re}Search, “but I would have thought that entering the identical search query on, say, both Westlaw and Lexis Advance would return fairly similar results.” I was somewhat shocked that Bob hadn’t realized what law librarians have known for 40 years, an insight made even more important since WEXIS implemented “black box” searching because it won’t release proprietary information about the construction of their search algorithms.

Perhaps the editors of the ABA Journal thought their readers might also be naive because the Journal published a summary of Nevelow Mart’s research results in the March issue. See Results may vary in legal research databases by Susan Nevelow Mart. Here’s a snip:

At first glance, the various legal research databases seem similar. For instance, they all promote their natural language searching, so when the keywords go into the search box, researchers expect relevant results. The lawyer would also expect the results to be somewhat similar no matter which legal database a lawyer uses. After all, the algorithms are all trying to solve the same problem: translating a specific query into relevant results.

The reality is much different. In a comparison of six legal databases—Casetext, Fastcase, Google Scholar, Lexis Advance, Ravel and Westlaw—when researchers entered the identical search in the same jurisdictional database of reported cases, there was hardly any overlap in the top 10 cases returned in the results. Only 7 percent of the cases were in all six databases, and 40 percent of the cases each database returned in the results set were unique to that database. It turns out that when you give six groups of humans the same problem to solve, the results are a testament to the variability of human problem-solving. If your starting point for research is a keyword search, the divergent results in each of these six databases will frame the rest of your research in a very different way.

Highly recommended. This ABAJ article should be assigned reading for law school students — all law school students, not just 1Ls taking their LRW courses. — Joe

Information wants to be expensive, not free

From Dieter Zinnbauer’s Information Wants to Be Expensive, Not Free! And this is Bad for Justice, Democracy, the Economy (Mar. 1, 2018):

This essay is rather speculative. I argue that there is a very much overlooked characteristic of information goods, particularly digital information goods – that leads to a substantive, yet rarely discussed market failure with far-reaching consequences for important classes of information related to our education and research system, the judiciary, markets and democracy at large.

This overlooked feature is the positionality of many information goods. Positionality means that the utility of a specific information item for user x depends on the level of consumption of the same item by other users. Specific types of information are more valuable (or at times only valuable), when they are very exclusively available only to a small band of users. Or more intuitively, the fewer other people have a specific piece of information at a given point in time, the more valuable it may be to me.

Surprisingly, this simple characteristic is rarely discussed in the information literature or perhaps seems just too obvious to merit deeper analysis. Yet, as I will try to show, the positionality of information has far-reaching implications for the functioning of information markets and for the actual incentive systems of different players that all too often seem to be mis-construed as overly pro-social. And putting a focus on positionality also highlights the relevance and urgency for revisiting related regulatory policies, in order to ponder possible corrective interventions to tackle the ensuing informational imbalances and exclusive practices that positionality-oriented pricing structures for such information will generate.

Recommended. — Joe

The Legal Toolkit podcast: Legal print isn’t dying, just changing

“Is using paper out of style? There are a lot of advantages to making things digital but that doesn’t have to make paper obsolete. In this episode of the Legal Toolkit, host Jared Correia talks to Ed Walters [CEO of Fastcase] about the role of print mediums in law. They reexamine when to use paper versus digital mediums; both printed paper and digital copies have their own quality and characteristics that are useful in different cases. Ed also nerds out about font and classic printing methods, which is useful if you want to make your printed documents beautiful.” Transcript and audio broadcast. — Joe