Being on or Off Message in Law Publishing and Elsewhere

From the reassuring distance of not relying significantly on the professional information industry to pay my creditors, I can permit myself to comment, on or off message at whim, on the requirement, for some others, to remain on it, and always promote the party line. The obvious result, if this is the case, is that much of what we read and hear is likely to be public relations nonsense, and even lies.

I would also admit that, particularly over the period during which I have been writing and pondering on law publishing, and reflecting on the totality of the endeavour thus far, my leanings have even increased in the directions of a healthy degree of both cynicism and scepticism. By the former, I mean my inclination, with many obvious exceptions, not necessarily to trust the sincerity and expressions of goodness of law publishing businesses and other entities; by the latter, it is acquired from empathy with jurisprudential reasoning, that is moved to reject that which is not supported by strong and reliable evidence. Such an attitude can cause the proponent to be met with occasional accusations of bitterness and lack of optimism, as indeed this article perhaps might, to some, indicate. By way of defence, it would be argued that it reflects harsh truth and honesty, rather than the opposites of both. By way of example, only recently, we read of the allegedly unlawful tactics of the ostensibly high-minded and principled Lexis Nexis/RELX, in its ways of conducting trade union negotiations; it seems a far cry from the pillar of the legal establishment stance that is generally communicated by and about it.

Currently, and for some considerable time, it is impossible to avoid how artificial intelligence tools and systems are lauded as an optimistic future for legal and other professional advice and research worlds; this is underpinned by the immensity of investment into AI start-ups, primarily in N. America, and into existing businesses. Failure and/or disappointment are not options to consider, despite the frequent evidence of it. Furthermore, we have all seen many innovations and startups come and go. Personally, I am happy to be disinterested and indifferent either way; yet it is difficult to interpret, from vague, metaphoric and cliched rhetoric, just where the AI benefits are directed to have effect. In certain fields, such as medical research and diagnosis, clearly there is at least the possibility of positive outcomes to help patients, even if the biggest winners will be the technical companies and others of that ilk, as well as their shareholders. In other fields, arguably including law, purposes might be somewhat more nuanced. Again, where there is success, the producer and exploiter sides have everything to gain; for lawyers and other professional advisers in areas such as tax and accountancy, there is the possibility of lowering costs while retaining revenues, as jobs are cut among researchers, librarians (who have been progressively sidelined and devalued for years), support staff and others. The point is, when we speak about “benefits”, we should make it clear who are the beneficiaries and who might be the victims. The language used to describe the bright future tends to be obscure as to what precisely is meant by it; after all, partially automated contract and other document drafting is hardly new or especially revolutionary. That which is good for RELX, Thomson Reuters and others, as well as for my lawyer, accountant or tax adviser, is not necessarily of tangible benefit for me. The fees will not reduce and a machine, rather than an expert, will by my adviser, if the notion were to be taken to an extreme. Surely, the onus is on the proponents and resellers of AI technology to prove, at least on the balance of probability, that every development will genuinely, visibly, measurably and globally, be in the interests of clients, citizens, taxpayers, voters, society in general, and equally in the interests of law and justice; if not, they deserve to be viewed with cynicism and scepticism. In a world which increasingly favours “haves” over “have-nots”, profiting a growing number of Lex Luthoran, sociopathic, weird, billionaire fascists, there is no need of more of the same. Anyone with a modicum of integrity knows that trickle-down economics are a fraud, so why should we relish increasing profits and cost savings only for the benefit of those at the top?

I suspect that most people in workplaces remain publicly on message, towing the party line and chanting the same mantras, because they are obliged so to do for fear of losing their jobs. It was cheering, therefore, to read one informed insider recently writing to me: “This is how the much-vaunted AI seems to work – sucking up the work of actual creators and passing it off as something it has come up with itself. AI seems to me just a clever packaging tool – clever, but not actual intelligence or creativity – just repackaging other people’s work. But the tech bosses get richer, so that’s okay”; I wonder if that view is more prevalent in reality? The Pandemic, “working from home” and the emergence of a new style of younger employees seems to be breaking the myth of employee loyalty and conformity, as they learned to join video conferences with formal shirts visible above the waist and pyjama bottoms below it. I would like to think that their actual experience increasingly encourages the idea that they can reject the traditional warnings by their predecessors of career risks in speaking off-message. They might be less inclined than their elders, at training courses and workplace meetings, for example, to believe that work and career are not about the salary, benefits and prospects, but rather the camaraderie (which is surely reduced since WFH), their love of customers, financial success of their company, etc. They probably can calculate that they would not stay in their jobs if they were not paid and that there is little personal pride in being defined primarily by one’s job title. At the same time, obviously, people rarely want to be fired at a time and in a way that is not of their choosing. Of course, I might be wrong, but I think that the evidence exists, at least in part, that because the behaviours of employers and providers of goods and services tend not to achieve the standards required and recognised to earn respect from employees and consumers, the era of singing the company song may be over. This might be the case for the employees of FindLaw, with its extensive body of free content, as Thomson Reuters agrees to discard that business. Regarding the transaction, Hugh Logue, of Outsell, opines, “in divesting FindLaw, Thomson Reuters is streamlining its portfolio for higher growth areas but is also severing links to the growing small law firm market – just as the market is showing signs of growth”.

However, for so long as, and to the extent that it is obligatory, on-message utterances are what can be expected, serving in part to denigrate the significance and importance of law publishing. I share the guilt, remembering a time when it became expedient not even to refer publicly to it as law or legal publishing but rather as the likes of “professional information provision” or, worse “workflow solutions”, for fear that any reminders might be given to others of the printed word, paper, learned authors, diligent and well-trained legal editors and suchlike. Just as the victors in armed conflict see the need to eradicate memories of their conquests’ past, the party line has to be that the new dawn must mean the eradication of the previous one. Therefore, being on message means that open access, workflow tools and regulated artificial intelligence are good for everyone, and that saving paper is about saving the planet rather than saving money. It seems, and indeed sounds good, to be told that learned law books, journals and legal dictionaries are not useful after all, that blogging does the same thing, at little cost, and, controversially, that the use of plain English somehow delivers the intricacies of judicial and legislative thinking better than legalese, thanks to its lack of precision and failure to be held accountable through intentionally woolly language, particularly by those not well-schooled in such matters. The apparent need to seek to compete simply by trying, unsuccessfully, to trash works of quality and value, is prevalent, and somewhat risible.

At the same time, one has to question whether or not, in the interests of democratic societies based on laws, it has been considered appropriate, certainly in developed jurisdictions, to have available several competing learned tomes, each several hundred pages or more, to explain, analyse, challenge, contextualise and evolve massive bodies of case and statute law, together with an interminable body of secondary and other sources, in each of the countless fields of law, we can set them aside. Without law books and the authors and editors to write and edit them, as research shows that scholarly book authorship is in decline, they will not appear, by magic, through AI tools, blogs and journal articles alone. The existing volumes have not, in my opinion, lost their purpose in training and sustaining lawyers and in separating mediocrity in advice from billable excellence, so, by implication, if they have served a useful purpose in contract, tort, criminal law, revenue law, equity and trusts and every other field, how can the major legal disciplines of the future be presented and analysed? Yet, the research article to which reference is made above cites Lord Burrows, in his 2021 Lionel Cohen lecture, commenting that “The sad truth is that the sort of practical legal scholarship that I am describing – which can directly help a judge in deciding a case – is now regarded by many in academia as old-fashioned and dull”. It seems to me that there needs to be a framework and means by which to initiate such work, regardless of the ways in which it might be presented. I do not regard this as an example of crude Luddism, and recognise that complex ideas, once effected, cannot, realistically, be suppressed, but rather of the common-sense view that if something is done, better that it be for the greater good rather than for the lesser one. Perhaps it would be on somewhat more thoughtful messaging to suggest that high quality and learned written research has value and that artificial intelligence should not be too disconnected from actual intelligence.