Why Isn’t Legal Publishing Pushing Past Content?

“[To compete with Bloomberg Law’s BNA coverage and now Lexis’ Law360 coverage, Thomson Reuters] will have to do better than its [current legal news website, newsletters, and blogs] to ratchet up the synergy between legal current awareness and legal research.”
Hodnicki, It’s Official, LexisNexis Has Acquired Law360 (March 20, 2012).

To believe the Crowd, the legal publishing giants are in a race, chasing after all the undulating streams of current legal reporting and writing either through acquisition or search enhancements. I suppose it is vital for them to be focused in this way, as current conventional wisdom is suggesting that law firms will soon choose only one giant, and the giant that corrals the most ephemeral writing (read: open web) and integrates it into their research results is the winner? After all, the giants are committed to providing “critical legal and business content to help customers increase productivity and achieve better outcomes for their organizations and clients.”

For an industry that spends so much time looking at and studying precedent, the giants’ singular focus on providing urgently needed (read: present) legal content is a little puzzling, if only because they don’t seem to be acknowledging the communal spaces for historical research are disappearing. More to the point, the giants aren’t doing enough to exploit—in their respective digital commons—earlier editions of valuable treatises, hornbooks, practice guides, and the like. So, while the giants chase currency, I would argue they are losing it by ignoring the past.

While there may be a few publications that have past editions available to subscribers of Westlaw or Lexis [FN. 1], the earlier editions of most legal treatises, hornbooks, manuals, and dictionaries are not. Once updated, there is no digital “rollback” feature to a publication. Surely every user of these services, has at one time or another asked rhetorically, “Why can’t I slide over to {insert date} and see what the commentator said then about what I’m researching?” This frustration has led me to hoard certain titles, such as the Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth editions of Black’s Law Dictionary. After all, you never know when you’ll need the “correct” version. And this goes for many, many other titles as well (e.g., Witkin’s California Procedure 3^rd, 4^th, and 5^th editions, Texas Jurisprudence 1^st, 2^nd, or 3^rd editions, and on). When the libraries are gone, the only thing left available will be the now, and whatever I’ve manage to sack away as part of my physical collection.

For the last five years or so, I’ve been waiting for some publisher to implement the magical “rollback” button, for analytical material. [Fn. 2] It seems to me that our technology has matured to a point that we can implement such a feature for commentaries elegantly. And if you thought it exists already, it doesn’t principally because the content isn’t there. [FN 3]

As a small publisher in the very early 90s, we had the good fortune of being born digitally, but still only produced physical books. Like so many others who started at that time, our early editions are no longer accessible because they reside in old Quark, InDesign, or Framemaker files. These files are not highly structured documents like the XML files we’ve been producing over the last few years and it would take a great deal of effort, time, and expense to make them work nicely in our search platform. And yet, I understand the value each edition of our books might have to researchers looking for historical analysis of a particular rule or statutory change as it happened. Much of this information will simply be lost to the community or has been already because the libraries no longer carry our older titles unless we can find a way to convert them. If not, the last of the past paper editions will waste away in our library.

But what of the giants, those publishers who might not suffer from the same technological or cost limitations as a smaller publisher? What about the publishers who have been selling me digital access to their analytical titles for well over a decade, titles that are or were read digitally? What became of all the past editions? Surely, those enriched resources weren’t just cast aside once the annual supplement was incorporated? It is hard to imagine they’ve been locked in a legacy database and no one is left with a key.

I’ve floated over the financial and technological hurdles to making this happen simply to emphasize the point that throwing away past digital editions is foolish. While the authors and editors of these titles may not care what happens to words written long ago, there are many researchers who do. Perhaps as libraries disappear, legal publishers will recognize their unique role in preserving precedent, both primary and secondary. Maybe then the past will become as important and profitable as the present. Until then, I would encourage the Crowd to take a moment and stockpile as many print titles as it can.

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[FN. 1] Bloomberg might be included if publishers like PLI offer older editions through BLaw, but I don’t know.

[FN. 2] Compare features are a great start. Consider, for example, Xcential’s “As Amends the Law” legislative comparison feature. I’d love to see more features like this being implemented within the giants’ platforms for analytical material. We’ve already seen what they are capable of doing with statutes, e.g., WestlawNext’s “Versions” for selected statutes. I can see an earlier version of a statute when I’m actually reading the current one. This is a very helpful feature that could work well for analytical.

[FN 3] Okay, okay, rollbacks and revisions for written content have existed for a long time, but we typically associate them with a CMS. Take WordPress as an example. At the bottom of every post within the platform, there is a revisions section that allows you to rollback to earlier versions of your drafts. Something like this should exist for digital legal content.