PUNY LAWYERS. PUNY LIBRARIANS. HULK SMASH! a Brief Comment on Fighting Words & Legal Publishers

You can’t swing a dead cat [Fn. 1] on the Internet these days without hitting a lawyer or law librarian complaining about the never ending escalation of prices for legal content (print or digital), the unscrupulous business practices of certain legal publishers, and the ineptitude of member associations to address these problems (and more). [Fn. 2] And while all of this may seem new, it isn’t.

I don’t know when the distrust between lawyers and law librarians and legal publishers actually began, but the late Professor Roy Mersky once stated that lawyers’ displeasure with the tools of their profession reached back to at least 1894 when the American Bar Association set up a committee to study law reports and digests. [Fn. 3] Anyone who searches through the ABA Reports or Law Library Journal will find them stuffed with committee reports, panel discussions, articles, and, at times, thesis reviews chronicling the mistrust between lawyers and law librarians and legal publishers. [Fn. 4] 

Although most of the commentary has been decidedly one sided, publishers have tried to make their issues understood. One of the best defenses of legal publishing came from Burdett Rich of Lawyers Co-op Publishing in a 1921 article that attempted to explain the many and varied problems of legal publishers, many of which continue to resonate today. In the piece, Rich reminds us all of the importance of the efforts of private industry to make the law accessible:

How worthily the law publishers have met the needs of the legal profession, the courts, and of the nation in these matters is a question on which opinions might not agree. Ideal service is not to be expected in such a field, in which any person is at liberty to engage at will; but, allowing for all the failures and imperfections with which the publishers may have been charged, it cannot be denied that through their service the knowledge of the laws of this country has become very widely diffused and made easily accessible to laymen as well as lawyers everywhere, to an extent rarely if ever equaled in any other country. The importance of this in a republic needs no comment.[Fn. 5]

But I suppose as noble as high speech can be, there is only so long you can ride that horse.

So let’s turn our attention to one of the more spirited (and publicized) debates between the haves and have nots. In 1956, the American Association of Law Libraries (AALL) held its 50th annual convention [Fn. 6], during which the AALL held a panel discussion titled The Case of the Librarian v. The Publisher. [Fn. 7] Opening for the librarians was Ernest Breuer, a law librarian for the New York State Law Library:

When [I was] asked to be a member of this panel and [told] what it was all about, I thought at first that the panel opposites would have a choice of knives, swords, or pistols. I am very happy, however, that we did not have to resort to such dangerous extremes.

Parenthetically, I might add that I feel like the proverbial parent who is about to spank his child, the child in this case being the law book publishers. After all, they come here, we accept their hospitality, most of us will take their drinks, and then we turn around and do this to them—but just like the spanking, it is absolutely necessary so there will be harmony in the family. And after it is all over I am sure that the publishers will accept our constructive criticisms in the spirit in which they are offered, but by the same token I hope that the publishers will bare their gripes so that greater cooperation can result in the publication, sale and distribution of legal material.

Ouch. [Fn. 8] Following these opening remarks, Breuer went on to note that law librarians had been discussing and considering the problems of law book publishing practices since 1922, which up to 1956 included duplication, high costs, low discounts, padding, poor editorial work, numerous editions, misleading advertising, and on. Sound familiar? It should. [Fn. 9]

Not to be bested by Breuer’s comments, Mayo Coiner of Matthew Bender delivered a rejoinder:

Advertising—and this is strictly a matter of viewpoint. You people must realize that the law book publisher’s advertising is not aimed at you. You are not the market which is going to determine whether any given book or set of books is successful. That advertising material is aimed at lawyers, lawyers and accountants, or similar groups. [¶] I think you would do well to get your information, insofar as possible, from other sources.

* * * * *

Accurate information. What does 1955 pocket part mean? I don’t know and, as Mr. Breuer again said, I don’t think anyone knows. But what would you have us do? We admit that we follow inconsistent practices. What do you want? You pick that pattern and tell the publishers what it is. I can’t conceive that you would get any really serious arguments on it.

* * * * *

Indexing. Now, just what is good indexing? If each one of us sat down to index any publication, we would come up with about two hundred different indices. Miles Price, who is a master at indexing, and I have discussed this many times. We have never been able to agree upon an index and I don’t think any two of you could sit down and come much closer to agreement than Miles and I do.

Table of cases. As librarians, you like tables of cases. You would be amazed at how many lawyers look upon a table of cases as padding. I think the day of the table of cases in a good many types of materials is gone.

* * * * *

Continuing orders. We really like them, although some of you may not believe it, but when do we have a continuing order? I could make a file at least two inches thick by just going back over the past year and pointing out letters which I have received from librarians where we have automatically shipped material on a continuing order, only to have it returned with the notation, “We did not order this.” This, to me, is a field where you must first clean your own houses. We are wary of continuing orders, at least in our company, because, as I said, we never know when you mean them.

Of course, Coiner saved the best for last:

I would like to say one thing, however, which has not been said to you before. I think much of [the problem between law book publishers and law librarians] is your own fault. I think you people should make yourselves heard, both individually and as a group. Many of the problems which have been mentioned here are capable of easy solution. Decide what solution you would prefer as a body and make it known.

Secondly, don’t wait for the convention each year to tell us your difficulties. Those of us who are here are generally the men within the companies who are sympathetic to your problems. I can carry tales back to the office but if, as these things occur, you can write to me and make your difficulties known and I have something tangible which I can lay in front of our Executive Committee, I can be much more effective on your behalf when I agree with you.

Coiner obviously said much more than I quoted, but a recurring theme was “you people,” a phrase that probably did not ingratiate himself to the audience. Given the tone, I suspect his comments reflected some institutional bias that law librarians simply weren’t adroit enough to determine what was valuable to the modern attorney. And as we would learn later, apparently neither was the attorney. [Fn. 10]

Fast forward to 1970. The inestimable Julius Marke wrote an article titled The Gentle Art of Making Enemies or Law Book Publishing Revisited and captured the modern sentiment between the groups as follows:

In a sense, the ensuing confrontation [between law librarians and legal publishers] is paradoxical. After all, law book publishers’ income and success depend largely upon their integrity and the good will of their customers. By the same token, law librarians who can depend on friendly, considerate, and cooperative law book publishers can more effectively serve their own readers. Over the years, the relationship between law librarians and publishers has been quite unique. Both groups are comparatively small in number and most contacts between them have been more personal than not. The pages of the Law Library Journal abound with gratuitous, albeit well-meaning advice offered by law librarians to law book publishers on the need to improve their trade practices. Publishers have replied in kind, suggesting how ill-founded law library practices have prevented them from serving these institutions properly. Yet, it is obvious that something has gone amiss. Despite the years of meaningful dialog and friendship, there still appears to be a failure of communication. Do publishers realize how some of their practices, whether intentional or not, have been an aggravating source of deception and concern to law librarians? On the other hand, are law librarians sufficiently sensitive to the internal problems of law book publishers that constrain them to adopt certain policies? [¶] It is my thesis that actually we are more concerned with misunderstandings than with skullduggery. Perhaps an accounting of these misunderstandings might be of value in suggesting the issues that eventually must be recognized and resolved. [Fn 11]

And as best as I can tell, we’ve spent the last 40 years taking an accounting of the misunderstandings—many of which have been the same for over 70 years—but that’s about it. [Fn 12] That goes for the latest Vendor Colloquium as well. Just more accounting of grievances and misunderstandings (read: lip service).

So where does this leave us?

Well, we should be honest with ourselves. In reviewing the literature and considering publisher practices (before, during, and after the FTC guidelines), it would seem that two conclusions can be drawn. First, lawyers, on the whole, have simply abandoned their grievances. Second, AALL cannot change publisher practices for the simple reason that it is such a diverse organization that no consistent message on what law librarians want can be agreed upon. Big, medium, and small law don’t share the same interests among themselves and don’t share them with academic. Add to this the problem of having publishing representatives as members of AALL and you can see why it doesn’t work.

What I’m saying is this: lawyers and law librarians are tilting at windmills. The publishers won, and you lost. One hundred years of literature has proven this.

Ah, but is there hope?

In 1971, Professor Edwin Schuck of Columbia University School of Law had this to say (and it applies with equal force 40 years later):

One of our members, righteously indignant at a piece of blatantly deceptive advertising he had received through the mails, circulated it to all members of the committee recently, with the comment that we must take prompt action on the proposed code [regulating law book publishers] in order to stop this kind of advertising. I submit to you that a publisher who knowingly and deliberately violates Federal law by deceptive advertising will not be deterred by the knowledge that he is also violating the AALL’s code. Only action by an enforcement agency of Government will provide the necessary deterrent. [Fn. 13]

And perhaps that is where the answer lies, at least for some of the more egregious violations.

The Florida Attorney General in 2009 entered into a settlement with Matthew Bender & Co. concerning the shipment of unordered merchandise and negative option plans, which required the payment of $2 million and change and an agreement to change their business practices nationally. Not surprisingly, in the same year as the Matthew Bender settlement, the Attorney General opened an investigation into West Publishing for “receipt of unordered merchandise.” The AG’s office cannot comment on ongoing investigations, but as a legal publishing consumer and vendor, I am very curious to know the scope of the investigation and what has been learned so far. I hope the resolution of the civil investigation will help us all, and I would encourage anyone with knowledge about the investigation to comment.

While government action may be cold comfort to many of us in this business, whether consumers or vendors, it is probably the only thing that will make a difference. I know that many readers of this column believe their online words can effect change, but I’m here to tell you they can’t. That’s not to say stop writing, but just recognize that in one way or another lawyers, law librarians, and legal publishers have been exchanging pleasantries and barbs for over a hundred years, and not a lot has changed. Just the technology. 

As always, I invite your comments.

____________

[Fn. 1] The best guess I could find for the origin of this phrase is from Mark Twain, The Innocents Abroad, pt. 1, ch. 2 (1869) [http://www.gutenberg.org/files/3176/3176-h/3176-h.htm]: “We selected a stateroom forward of the wheel, on the starboard side, “below decks.” It had two berths in it, a dismal dead-light, a sink with a washbowl in it, and a long, sumptuously cushioned locker, which was to do service as a sofa—partly—and partly as a hiding place for our things. Notwithstanding all this furniture, there was still room to turn around in, but not to swing a cat in, at least with entire security to the cat. However, the room was large, for a ship’s stateroom, and was in every way satisfactory.” [back]

[Fn. 2] See, e.g., Join the New AALL Caucus on Consumer Advocacy, Information Vendors, Librarians, Associations, and Antitrust, Vendor Relations. [back]

[Fn.3] Law Publishing Under Attack, 64 Law Libr. J. 533, 539 (1971). In 1937, one ABA committee charged with investigating the problem of law report duplication studied the issue and offered some suggestions for addressing the problem, but with this caveat:

The publishers of the [unofficial] reports might take advantage of their monopoly to increase prices, to cheapen the materials and typography of their volumes, and to prepare inadequate head notes, all to the disadvantage of the legal profession. Such a scheme should not be promoted by the bar unless safeguards are provided. One of these safeguards might be the formation of a joint committee of the American Bar Association, the American Law Institute, the Association of American Law Schools, and the American Association of Law Libraries, the four nationally organized groups representing the consumer interest, and insist that the publisher or the group of publishers putting out the volumes of decisions work with such joint committee, and make decisions as to publishing matters only after consultation with it. [

Report of the Special Committee to Consider & Report As to the Duplication of Law Books & Publications, 62 Annual Rep. A.B.A. 912, 916 (1937). After reading these types of reports, I really get the sense that lawyers thought legal publishers were (or would) stick it to them. [back]

[Fn. 4] Mersky also noted,

Lawyers generally seem to feel that publishers take unfair advantage of the ‘captive’ position of their customers with respect to the reporters, encyclopedias, statutes, and other sets of law books that lawyers have in their libraries.

I don’t think this sentiment has changed one iota in a hundred years.

[back]

[Fn. 5] Rich, Present Problems of Law-Book Publishers, 14 Law Libr. J. 87, 88 (1921) [back]

[Fn. 6] There was some debate as to whether it was actually the 49th or 51st meeting. See Proceedings of the Golden Jubilee Meeting of the American Association of Law Libraries, 49 Law. Libr. J. 375 (1956). [back]

[Fn. 7] The Case of The Librarian v. The Publisher—A Panel, 49 Law Libr. J. 467 (1956). [back]

[Fn. 8] For those of you familiar with Joe Hodnicki’s writings on the Law Librarian Blog, you will understand Breur’s “spanking” sentiment. Here are some gems: (1) Raising the Bar for “Publisher’s Staff” Content After Rudovsky? On some really bad decisions made by West and its many and varied consequences for not being “proud” of publishing a “sham” pocket part; (2) Product Development Thomson West-Style, or (3) “Powered by Service:” Not TR Legal’s Library Relations Model. I have to say, Joe Hodnicki is one of few remaining out-spoken critics of legal publishing practices in the United States, and it will be a sad day when his critical eye is no longer turned on the relationship between vendor and customer. [back]

[Fn. 9] This past May, for example, one law librarian listserv had a discussion breaking down why they thought West Publishing indexes were so poor. It was an insightful discussion, and if I could link to it, I would. [back]

[Fn. 10] Over a decade after the 50th Annual Meeting, Raymond Taylor would write an article that became an integral part of the FTC debate concerning the regulation of law book publishers, and in it, he argued that lawyers were too busy to be careful:

A word of explanation is appropriate for those who might wonder how lawyers possibly could be naïve consumers, particularly to the point of becoming victims of the unfair practices of the producers of their most important working tools. The reason lies in the fact that the time of the modern lawyer usually is too valuable for him to devote much of it to the examination and selection of new books and the careful scrutiny of advertising circulars, invoices and even the books that publishers send to him. These duties often are left to those whose experience and interest do not qualify them to detect the true nature of publishers’ practices. It frequently is a junior partner, new associate, bookkeeper or recently employed secretary who handles incoming shipments from publishers and the payment of bills. Rather than being done by a lawyer or librarian, putting in pocket parts and loose-leaf material often falls to the lot of a disinterested secretary and is the duty that she least likes to perform.

Taylor, Lawbook Consumers Need Protection, 55 A.B.A. J. 553 (1969). [back]

[Fn. 11] Marke, The Gentle Art of Making Enemies or Law Book Publishing Revisited, 63 Law Libr. J. 3, 3-4 (1970). [back]

[Fn. 12] For example, the AALL held a panel discussion in 1999 between legal publishers and law librarians titled Meeting of the Minds at the Crossroads of Legal Information. I have been unable to locate any information concerning the outcome of the meeting, which I interpret as nothing substantive. So just more accounting of the misunderstandings with little to no action. [back]

[Fn. 13] Law Publishing Under Attack, 64 Law Libr. J. 533, 547 (1971). [back]