The Lexis-Westlaw Duopoly and the Proprietization of Law

Introduction

The Political Economy of Legal Research

Lexis and WestLaw? do not provide services to public libraries.

Open Access in a Closed Universe: Lexis, Westlaw, Law Schools, and the Legal Information Market

An Open Model for a Web-Based Semantic Case Law Repository

Legal Information Management in a Global and Digital Age: Revolution and Tradition

The Long Tail of Legal Scholarship

Neutral Citation, Court Web Sites, and Access to Case Law

Forbes, The Law Goes Open Source

http://www.antitrustreview.com/archives/1111

http://www.nytimes.com/2007/08/20/technology/20westlaw.html?_r=1&oref=slogin&pagewanted=print

http://legalblogwatch.typepad.com/legal_blog_watch/2007/11/competition-bet.html

http://en.wikipedia.org/wiki/Duopoly

http://en.wikipedia.org/wiki/Wexis

WinterSpring? +2003" target="_top">http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+147+(WinterSpring? +2003) (Arguing for the merit of proprietary legal databases. Pg. 152-53)

http://www.crl.edu/content/DigArc/DigArc2/LexisNexisprofile.pdf (LexisNexis? has 23% profit margins)

http://www.lexis.com/research/xlink?app=00075&view=full&searchtype=get&search=39+Ariz.+St.+L.J.+20

[[http://www.lexis.com/research/buttonTFLink?_m=31179fc816dce014ff540cfd65848bac&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b62%20Wash%20%26%20Lee%20L.%20Rev.%201553%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=372&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b266%20F.3d%201155%2cat%201169%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVlW-zSkAb&_md5=b5a6a6414575b90cf751100ce709de0b][

Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts

Outing the Judicial Epistemology of Hart v. Massanari

HOW NEUTRAL CITATION AND AMERICA'S LAW SCHOOLS CAN CURE OUR STRANGE DEVOTION TO BIBLIOGRAPHICAL ORTHODOXY AND THE CONSTRICTION OF OPEN AND EQUAL ACCESS TO THE LAW

"This article addresses the challenge facing law students to preserve some sense of individual voice and ownership of their writing as they enter a professional discourse community and negotiate its formal structures and idioms."

"The writer must adhere to this format despite having found and read the opinion using Westlaw, Lexis, Casemaker or some other digital source"

"Because many legal materials are increasingly available only online, and because judges are showing a greater willingness to rely on non-legal information available on the web, the Article concludes that a lawyer cannot competently represent a client without going beyond Westlaw and Lexis and conducting research on the internet."

[[]["The open access movement espouses the principle that access to all scholarly communication, including legal scholarship, should be made available to the world at no cost via the Internet. ... Further, this Article examines in detail the effects of applying open access principles to legal scholarship, current options for law schools wishing to establish a repository, and the growing number of law school repositories currently in existence"]]

"I would like to suggest that the law reviews that publish the bluebook have an incentive to engage in excessive innovation. This is not a prediction of a race-to-the-bottom, but a prediction of excessive innocuous change. The inefficiency comes in the need to learn arbitrary new rules, not in the quality of the rules themselves. The bluebook publishers have this perverse incentive because every new edition of the bluebook generates a large one-time demand as lawyers and legal libraries are driven to buy the authoritative source. It is not surprising that the bluebook is now in its fifteenth edition. Of course there may be pressing aesthetic reasons why a certain reference needs to be put in large and small capital letters instead of italics, 47 but along with these aesthetics is the knowledge that each new edition will reap an economic windfall. 48"

"The well-financed efforts of an entrenched interest group to resist open access in most disciplines means that the broad open access movement has a long row to hoe before we can reap the benefits that the Internet promises for scholarly communication. The one discipline where conditions are ripe for more rapid evolution to open access is law in the United States. Scholarly communication in American law also is channeled primarily through the medium of the journal article. But the editorial and economic structure of American legal scholarship is sufficiently different from other disciplines that no group stands to gain from resisting open access other than commercial legal publishers, who lack direct leverage to sabotage the movement for open access law."

"The Science Commons approach also provides for attribution of first publication by the law review, something that is not mentioned in any of the standard accounts of open access. ... The move to peer refereeing tends to carry with it a move to commercial publishing, and in so doing destroys the open access opportunity that student-edited law reviews generate.

THE ECONOMICS OF OPEN ACCESS LAW PUBLISHING

"...legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations)." (Solum)

"While the Internet provides access to many free sources of legal information, they are likely to be substantially less useful and efficient than fee-based legal resource providers."

The Future of the Casebook: An Argument for the Open-Source Approach (see pg. 10 on Wexis)

"An open access approach would mean new pools of course materials for professors to draw on, new means of interaction and collaboration between professors and students, and new possibilities for restructuring the law school curriculum."

[[]["For other academic disciplines, commercial publishing has the significant drawback of making it really expensive for scholars to get access to what's happening in their fields. Open access reduces the cost of access dramatically, whether or not it encourages scholars to read the work. In law, scholars already have ready access to their colleagues' work. And they still don't read it. What's the point of making the work ... free?]] ... Once LexisNexis? and Westlaw started putting full texts of law reviews on their databases, the authority of print started to recede, leaving the authority of the publisher and, to a lesser extent, the authority of limited access. A lot of law professors these days never actually handle original physical copies of law review articles...

Law as Intellectual Property

It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators and compiled by the organs of the executive and judicial branches of the government. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process.

Discussion

Heller, The Gridlock Economy

Stake, "The Property Instinct"

The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and WestLaw?

A promising up-and-comer is Precydent. Its parsimonious interface is superior to Lexis/WestLaw. But my first search query, "hamer v sidway" did not turn up the result that I obviously wanted.

Columbia's revolting relationship with Lexis and WestLaw?

A rarely considered alternative to the proprietary Lexis/WestLaw systems would consist of a vast wiki-ized database of legal materials, with meta-information about connections between cases filled in by the lawyers and law professors. A not insignificant objection to this is that it would not be as reliable as Lexis/WestLaw but see the Nature study demonstrating Wikipedia's comparable reliability to the Encyclopedia Brittanica.

The people behind FastCase estimate that scanning and transcribing every federal and state case and statute will cost them $6 million. Apart from the unionized-labor complication, the top ten Ivy League schools could easily fund a similar open-source effort.

Law journals should be the first organizations to sign onto the free-law effort. Since they are locked in libraries and . On the one hand, this circumstance protects them from being widely read and thereby condemned for incompetence. But, as demonstrated in Chris Anderson's The Long Tail, there is demand, however small, for a virtually infinite range of creative and functional content (pg. ). By unlocking the storage and meta-connection of law journal articles, the free-law effort would facilitate the synthesis of wider blocks of information and argument.

An alternative to a centralized free-law resource would be instead a uniform system of citation, pagination, and meta-data standards for legal materials that could be implemented on a wide range of information-hosting platforms. Part of the system would be

http://www.findlaw.com/