Free Law Kerfuffle

I am amazed that the three minutes extracted from an interview that I gave in the summer of 2009 with the thought that parts of it would be used in a tribute video to be shown at the 2009 AALL Convention has caused such a kerfuffle. [Ed. note: see Berring’s Scepticism on the Future of Free Legal Information, Berring, CanLII and Kobe Beef, Berring, free legal information, and making good choices] (Glad to see that someone used one of my favorite words). The context of the remarks matters because they were meant to be light in tone. My normal tone is glib, but this was informal even for me. Indeed, I had never seen the clip until it was posted on Legal Currents. That said, within limits I stand by what I said. One important caveat is that I was speaking only of the situation of legal information in the United States. Graham Greenleaf years ago showed me that Australia was far ahead of the U.S. in making its information freely available. As I have focused more on information heory in recent year, I have not followed the latest developments there, in Canada, or other jurisdiction for that matter. The education that I have received by reading the fascinating posts about the current state of affairs in Canada has impressed me. Ergo my remarks were not just glib, they were provincial.

Read in the context of the United States, I am willing to defend the substance of what I said. When I referred to those who are devoted to making the law freely available to everyone as heroes, I meant it. My remarks were not intended to be dismissive. They were informal, unscripted and glib, but not dismissive. But I do not think that the free systems will challenge the proprietary ones in the United States as the centers of legal research for lawyers in the foreseeable future. For years I have used the Tinkerbell analogy to stand for widely accepted cognitive authority. Certain research sources become accepted as reliable. Professional researchers trust them. The users do not question them cricially, they just rely on them. Think of Shepards Citators in the old days or the amalgam of official print reports of judicial opinions and the National Reporter System in print that ruled in the latter part of the 20th Century. When I graduated from law school no one questioned the accuracy or reliability of these tools. We just used them. They were Tinkerbells. Those print sources of authority are gone. This is not just true in law, but we feel its bite more keenly. As of this point in 2009, in my judgment, WESTLAW and LEXIS possess that form of authority. Those systems represent “reality” and authority to law students and young lawyers in the United States. For now the free systems have not replaced them for reliability or ease of use.

This fall we have 108 second and third year law students taking Advanced Legal Research at Berkeley Law School. On the first research assignment I asked them to use paper tools, WESTLAW, LEXIS and at least two freely available systems to examine a recent U.S. Supreme Court decision. The answers, in the form of 750 word essays, made for interesting reading. Many chose L.I.I., Findlaw or PLOL as the free version. Most saw the utility in the free systems, but all preferred WESTLAW or LEXIS when it really counted. (We have them try Loislaw and Bloomberg too, but not in this assignment). Someone has noted that I have the view of an information consumer, not an information producer. To that charge I plead guilty, I try to view it through the students eyes, or at least to inform the brains behind those eyes.

The day may come when the free systems will combine with sophisticated search engines and become that elusive “Tinkerbell” being granted status as an authority that is implicitly relied upon without question. But that day is not yet here. The free sites have value and I truly admire those who work to make them a reality. I could be wrong but I think that Finding the Law, the text that I co-author with Beth Edinger, was the first such book to discuss L.I.I. and, though Peter Martin and Thom Bruce have disagreed with me on many occasions, I think that they have been important players in the world of legal information over the last three decades. But is L.I.I. the first choice of most professional researchers?

Many questions remain. Are the proprietary systems too expensive? Will they weather the economic climate of these perilous times? Over a decade ago I wrote that both LEXIS and WESTLAW could not both survive into the 21st Century due to cost and redundancy, so it is pretty clear that I am no prophet, but I think major changes are on the way. I do not see the federal or state governments filling the role of Tinkerbell information sources in the United States for reasons I gloss in the video clip. Nor do I see the efforts to provide the information for free taking hold as the central source that is cited and relied upon by most lawyers. Will another player enter the fray? Bloomberg is trying to take on WESTLAW and LEXIS head-on. Systems like Lawnet and LoisLaw are trying to lure economy minded researchers. Will Microsoft or Google decide that the lucrative legal resarch market is worth taking on? A great deal is up in the air. We can disagree about where things are going, but in the end, only time will tell.


  1. Whatever the context of your remarks, they started an interesting dialogue, so thanks for that!

    There are two things that jump out at me about the difference between the Tinkerbells and the free sources: cost and audience.

    Those who do not have to worry about the cost of Westlaw or LexisNexis are more likely to use it. The future of free legal information is strong because lots of lawyers, and others, are having a hard time paying for the increasing costs. The Tinkerbells are no longer just information tools, they are being redesigned as workflow tools. The information component that exists both in the free providers like the LIIs, mid-tier providers like Fastcase, and Westlaw and Lexisnexis, is becoming a commodity. The cost of the workflow improvements is making the research component less available, because lawyers or others can no longer afford the cost. There is no question that the free resources do not provide the same workflow or citation tools available in the Tinkerbells. But the shift is already occurring, with lawyers moving either directly to free resources, like CanLII or state bar or state government-supported sites, or starting to migrate towards them through the mid-tier products as the free resources approach a Tinkerbell-status and the costs of Westlaw and Lexisnexis outstrip their perceived value.

    This availability issue is only likely to grow. The major publishers are gearing their electronic products towards revenue generation – no surprise there! But law libraries and lawyers are looking at this information-to-workflow shift and wondering why they have to pay the workflow costs for access to the information. Free resources are already a substantial part of what lawyers use, and as Westlaw and Lexisnexis become targeted to larger law firm budgets and work processes, the free efforts will only become more viable and citable as they make available the commodity information that is duplicated in the Tinkerbells.

    The hurdles to Tinkerbell status don’t seem to be the same as they were, nor as high. It will be interesting to watch this change.

  2. This is a very thought-provoking topic. Since my earlier offer on Legal Current to host a beer summit in Washington, many more people have asked to participate, so this may be a better topic for an unconference instead. Again, happy to host in DC, or perhaps in Denver for AALL 2010?

    My company Fastcase is in a somewhat unique position on both sides of this discussion. We are a commercial publisher with more than 380,000 subscribers — but we are also the publishers of one of the largest free law libraries online, the Public Library of Law (PLoL), and we collaborated with (and Justia) on liberating U.S. Supreme Court and Court of Appeals decisions online for free in bulk. With that perspective, two brief observations:

    1) The question of whether free services will replace commercial ones is a bit of a strawman. To me, the bigger issue is whether the bundling strategy of traditional publishers — to wit, bundling services like headnotes, key numbers, or citators with primary law — can long survive. Because Westlaw and LexisNexis have traditionally bundled these “editorial” services with primary law, consumers who only needed access to primary law had to pay premium prices for access.

    When we democratize primary law, new competitors (like us) will innovate and build smarter services, perhaps even bettering the older editorial services — just like Google’s search algorithm replaced Yahoo’s “editorial” taxonomy of the Web. (As a self-serving example, many people prefer Fastcase’s citation analysis and data visualization tools to the older taxonomic tools.) Free law makes this innovation possible.

    Some users need the traditional “editorial” services. But many do not — they buy the editorial enhancements because they have to — editorial services they don’t need are bundled with the primary law. As Bob notes, there will always be a market for the editorial services — but it’s likely much smaller than the existing market, and inflated by bundling.

    So a better question might be: If the law is democratized by the government, universities, and public-spirited companies; and if innovators build smarter tools to search primary law, won’t that cut deeply into (or end?) the bundling business model of traditional publishers?

    Or more concisely: Isn’t free law the end of duopoly profits in legal research?

    2. I love Bob’s Tinkerbell analogy. It’s exactly right. The clapping sound in this market is money, and as long as everyone keeps clapping (or paying), Tinkerbell is going to be just fine. But what happens if people stop clapping?

    Superb topics for an unconference! Denver 2010?

  3. Initiatives like LII or Law.Gov, etc., if successful, will only get us part way there. I don’t think that LII or Law.Gov are in competition with West, Lexis, BNA or CCH. And West and Lexis shouldn’t be seen as merely organized versions of primary legal materials. The value that they bring to the market is not only well-indexed databases (or books) of primary materials, but their remarkable catalogs of secondary materials bring analysis and synthesis, as well as practice tips and forms.

    I think that Lexis and Westlaw could give away all their primary legal materials for free and still be critical players in the field, for the value that their catalogs of treatises, form books and encyclopedias bring to the work of conducting legal research. I’d go so far as to say that without secondary materials, legal research is virtually impossible.