I saw the last installment from the West series showcasing Bob Berring. Bob Berring is no stranger in this field. He significantly contributed to the law librarianship over a quite long career. His decade long professional connections with West Publishing are also well known. All this said, this short video constitutes nice blog stuff. Simon’s reference to it is an irresistible invitation to prepare a first posting on Slaw. I intend to seriously contest the premature obitary for the free access to law initiative. Here are some of my points.

The market and the production of social goods

Berring’s first argument towards the support of big legal publishers sounds like this: the Wexis’ way is preferable because “market dynamics entails corporate responsible attitudes while government endeavors are notoriously flimsy” (my words). Well. This is not exactly what I am seeing on TV these days.

But what is the point? Legal publishers try hard to make profits, so they know better how to make the law accessible? Let’s try to figure that out.

As it happens, I’m also a believer in the market system. To me, the system of markets means that all of us can try to make it. You can try to do better and if you get it right, you will be successful. The market system has many more specific consequences for the legal information system. It means that West and Lexis clientele will eventually try to break free if there are cheaper and better troves of legal information elsewhere. In a market system, an unknown initiative may be made king tomorrow while today successes can slip into oblivion. Finally, markets are crazy enough so that individual corporations, like West or Lexis, may decide to drop a product or a service anytime and there will be nothing to prevent it. That’s the market and that’s why we have governments.

Berring says that governments cannot be trusted with legal information, for they just don’t have the incentives. While it is true that governments do not have a fundamental role in providing the tools needed by lawyers, one must realize that governments are much more reliable than corporations to protect the long term interests of society. If something must be preserved or done forever it must be made a responsibility of the state. Governments are the only ones able to take on such mandates. The Canada Gazette started publication in 1841, Quebec’s one in 1869, and both are being published uninterruptedly eversince. To sum up, contrasting global corporations “reliability” with governments commitments’ flimsiness is bizarre.

The volunteers’ efforts

Berring’s statements that “volunteer’s effort” to make the law accessible for free even though admirable could not last long epitomize big publishers strategy towards disruptive inovation .

Let’s skip rapidly the lecturing about the requisite structure, the needs for finding tools and the importance of reliability for legal material. All those things are understood by all significant players in Canada and certainly by CanLII’s makers. This is not kids’ stuff; you are in the legal publishing business or you are not. And those who are in the field, be it at Cornell or LexUM (in the case of CanLII), have had no other choices than to learn rapidly to be reliable and relevant or to get out of there. Actually, this is another nice market effect: if you are incompetent and going from mistakes to blunders, you don’t last.

The fact is that “free access to law” promoters are serious about publishing. The systems we build are much more exposed to scrutiny. Anybody can leisurely look at our tools without incurring usage costs. Such a constant public scrutiny induces a lot of caution and this is a good thing. Beyond avoiding errors, the “free access to law” publishers are innovative. LexUM started publishing for free on the Internet the SCC judgments in 1993. Later on, CanLII introduced among other innovations easy multi-databases search, support for images in judgments, systematic use of RSS and, more recently, comparison of statute versions.

Are CanLII and the likes, AustLII, Cornell, BaiLII, viable? Berring thinks they are not, but this leads to my last point.

Berring’s consumer view of legal information

Berring indulges in pleasant recollections … his first visit at the West Corporation in the seventies and what he saw then. The man’s eye is still sparkling at the evocation of discoveries then made. He was meeting with the actual people producing the tools used by librarians and lawyers.

It is then that I identified what was troubling me with this whole commentary. I suddenly understood why the respected law librarian was telling us not to bother to try to do better than West and Lexis. The guy was looking at legal information tools not as a producer but from the outside, as a consumer. That difference of point of view matters.

Despite their proximity, law librarianship and legal publishing are very different disciplines. Legal publishers do not use other people tools to help lawyers, they design them, and they build them. This is especially true for the LIIs (CanLII and all the others). Being small and young organization, they have to create new tools. Legal publishers have huge concerns about the cost of production versus the value of product. Librarians do not. Let’s illustrate that.

The CanLII citator, Reflex, has been built very efficiently. It permits CanLII to integrate all its content with hyperlinks. Reflex is not perfect, but nothing could have produced more benefits at that price point. Citators offered by commercial publishers are more complete and much more sophisticated; they include information about subsequent judicial treatment of cases. In such a context, any consumer could say that Quickcite is better than Reflex. Law librarians will do, and they will be right on that. However, what if Reflex is providing one hundred times more benefits by dollar invested than comparable products? To the consumers this may be irrelevant, but for those who want to understand what will be the legal publishing future, this is an important piece of information.

Let’s talk now about the viability or the sustainability of the likes of CanLII. We must firstly recognize that we frequently mix viability and size. Big corporations seem eternal, smaller ones likely to come and go. But real life shows us a different story. When I moved to Montreal in the seventies, I was doing my groceries at Steinberg’s and my shopping at Eaton. I miss both of them today.

CanLII is a very small operation, but it can as viable as anything around in legal publishing. With a handful of people, CanLII updates weekly statutes and regulations databases for all jurisdictions in Canada. Also weekly, it publishes around three thousand judgments. For the rest, the team works on preparing innovations on the future versions of CanLII. CanLII is lean and cheap. As a consequence, in hard times, it could be the only thing a lawyer can pay for. In better times, CanLII’s very low operating costs make it an even bigger bargain. You never know the future, but that beast is designed to be resilient.

In many situations observing from the outside could be an advantage. One could benefit from the distance. However, sometimes being limited to measuring outputs obscures things, especially when trying to appreciate sustainability.

Kobe beef is clearly superior to the more ordinary meat that enters my house. It cannot be concluded that we will all end up eating Kobe hamburgers and that there is no future for any other beef production. For, as tasteful this delicacy is, growing Kobe beef is hell: the steers drink large quantity of beer and they demand their daily sake massage. This may look like fun farming, but it makes the output too costly for most of us.

To conclude, here is my illustrative video: Kobe Beef Production – An insider point of view

Daniel.