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ElliottPaper1 13 - 08 Nov 2008 - Main.ElliottAsh
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The Lexis/Westlaw Duopoly and the Proprietization of Legal Research
The Political Economy of Legal Research | |
<
< | Lexis and Westlaw share duopolistic dominance of the United States' market for legal information. The corrupt circumstance enabling the existence of the Lexis/Westlaw duopoly is that the law isn't free. Despite so-called fundamental precepts of The U.S. judiciary's online record system, PACER, charges [[http://pacer.psc.uscourts.gov/faq.html#GP8][8 cents] per page revealed in a search. State courts might offer recent opinions, but older precedents are mostly unavailable. What is freely available online does not have the meta-operability that makes Lexis/Westlaw materials far more valuable. The rest of the cases--what isn't freely available--might still be law (enforced by state violence), but it is constructively proprietary information, hoarded and sold by Lexis/Westlaw. | >
> | LexisNexis and Westlaw share duopolistic control of the U.S. market for legal information. Lexis/Westlaw's stranglehold on legal information is founded on the unfortunate circumstance that American law is not freely and publicly available. U.S. courts charge 8 cents per page. Some state courts offer recent opinions, but older precedents are mostly unavailable. Statutes and regulatory orders are generally available online, but even these sources are relatively difficult to access, and they do not have the meta-operability offered by Lexis/Westlaw. To varying degrees, then, the law is virtually proprietized, sold at a profit by Lexis/Westlaw. | | | | |
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< | Of course, Lexis/Westlaw don't "own" the law. Statutes, regulations, and cases are produced by agents of the people's government--they are public property, regardless of public availability. The value added by Lexis/Westlaw is research efficiency--an electronic search of a massive database is infinitely cheaper than scouring physical records at a courthouse, legislature, or library. | >
> | Of course, Lexis/Westlaw don't legally own the law. Statutes, regulations, and opinions are produced by agents of the democratic government and enter immediately into the public domain, regardless of public availability. The value added by Lexis/Westlaw is research efficiency--an electronic search of an online database is infinitely cheaper than scouring filing cabinets at a courthouse or library. The Lexis/Westlaw duopoly does not face a serious rival entrant because the costs of building a minimally comparable database from scratch present a prohibitive barrier to entry. At the same time, digital databases operate at increasing returns to scale, so the existing incumbents can easily underprice rival entrants and put them out of business. | | | | |
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< | It is difficult to overestimate the social costs imposed by the Lexis/Westlaw duopoly's proprietary internment of legal information. It distorts the costs of civil litigation, precluding the pursuit of socially optimal lawsuits. This distortion is amplified when a wide income separate the parties, where the wealthier party has a superior research advantage. Criminal defense attorneys with inadequate resources cannot mount satisfactory defenses. | >
> | The Lexis/Westlaw duopoly's proprietary internment of legal information imposes grave social costs. From the standpoint of political theory, American citizens do not have public access to the laws that are supposed to be influencing their behavior and for which violation could mean punishment by the state. The costs of civil litigation are distorted upward, precluding the pursuit of socially optimal lawsuits. When a wide income gap separates the parties to a dispute, the wealthier party has a superior research advantage. Most ironically, courts must pay Lexis/Westlaw for access to the fruits of their own labor--and the American taxpayer foots the bill. | | | | |
<
< | The use of Lexis/WestLaw produces platform-specific human capital. By using a particular platform, a user becomes habituated to and proficient with that platform, the benefits of which cannot be recovered on alternative platforms. To the extent that platform-specific human capital has been vested, Lexis/Westlaw can extract rents from their users; as long as the monopoly-rent tax is less than the costs of rebuilding platform-specific human capital for another platform, the user will remain loyal and pay the tax. With attorney wages what they are, a 10 or 20 percent cut in research efficiency will deter most from moving to a different platform. The platform-specific investment also discourages users of the existing platforms from | >
> | For the individual researcher, the use of Lexis/WestLaw produces platform-specific human capital (analogous to firm-specific human capital). By using a particular research platform, a user becomes habituated to and proficient with that platform, the benefits of which cannot be recovered on alternative platforms. To the extent that platform-specific human capital has been vested, Lexis/Westlaw can extract rents from their users; as long as the monopoly-rent tax is less than the costs of rebuilding platform-specific human capital for another platform, the user will remain loyal and pay the tax. With attorney wages what they are, a 10 or 20 percent cut in research efficiency will deter most from moving to a different platform. The platform-specific investment also discourages users of the existing platforms from investing in free alternatives. | | | A side effect of the duopoly model is that Lexis and Westlaw share an incentive to differentiate their platforms. If they had identical interfaces, then habituated users could costlessly change systems, and market competition would preclude the extraction of monopoly rents. This dynamic can be observed in the functionally equivalent but symbolically differentiated search terms implemented by Lexis and Westlaw.
A less obvious implication is that Lexis/Westlaw have a standalone incentive to complicate their platforms. The more complicated a platform, the more platform-specific human capital can be invested, and correspondingly the higher the monopoly tax that can be extracted. This hypothesis is confirmed by a passing glance at the staggering turmoils of clutter that suffice as the Lexis/Westlaw interfaces (Cf. Precydent's parsimonious appearance). This is a systemic problem related to that plaguing the "Blue Book," in which managers are incentivized to repeatedly deliver arbitrary changes so that lawyers and legal scholars are forced to purchase new editions. | |
<
< | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent Elsevier, meanwhile, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress.
| | | --+++ Columbia's Complicity | |
<
< | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with Westlaw and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on LexisNexis 13 months ago as part of my Legal Research course, I have received 56 emails from Lexis--about one per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | >
> | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with Westlaw and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on Lexis 13 months ago as part of my Legal Research course, I have received 56 emails from Lexis--about one per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | | | The purpose and effect of Westlaw's TWEN services and Lexis's bribes, of course, are to habituate me to working on their respective research platform. By participating in such policies, Columbia is complicit in the services' later abuse of law graduate's platform-specific human capital. There are decent commercial alternatives? to Lexis/Westlaw, as well as irreproachable free services, but Columbia's legal-research curriculum ignores them. Meanwhile, Columbia pairs this indirect subsidy with payment for academic use of the services. | | | The practical implication is the deproprietization of all legal information, its | |
<
< | The social benefits of a free alternative to Lexis/Westlaw are incalculable. A free legal research platform might consist of a public database of legal materials maintained by the nation's largest law schools. The meta-information linking cases will be a continual project undertaken by law professors and their students.
The people behind FastCase estimate that scanning and transcribing every federal and state case and statute will cost them $6 million. Apart from the unionized-labor complication, the top ten Ivy League schools could easily fund a similar open-source effort.
Law journals should be the first organizations to sign onto the free-law effort. Since they are locked in libraries and . On the one hand, this circumstance protects them from being widely read and thereby condemned for incompetence. But, as demonstrated in Chris Anderson's The Long Tail, there is demand, however small, for a virtually infinite range of creative and functional content (pg. ). By unlocking the storage and meta-connection of law journal articles, the free-law effort would facilitate the synthesis of wider blocks of information and argument.
An alternative to a centralized free-law resource would be instead a uniform system of citation, pagination, and meta-data standards for legal materials that could be implemented on a wide range of information-hosting platforms.
A free legal wiki would separate content from presentation, allowing users and groups to customize the presentation of information to meet particular goals and circumstances. The free platform can parrot the presentation systems of Lexis and Westlaw, allowing previously habituated users to recover the benefits of their platform-specific capital without paying the monopoly rents exacted by proprietary systems.
A not insignificant objection to this is that, as a product of unpaid altruists, it would not be as reliable as Lexis/WestLaw. This is possible, but at the very least it will be a decent alternative for those who cannot afford or who are politically opposed to Lexis/Westlaw. Besides, the science journal Nature found that the facts presented in Wikipedia are just as reliable as those written in Encyclopedia Britannica. | >
> | The social benefits of a free alternative to Lexis/Westlaw are incalculable. Because the benefits of such a free platform would be widely distributed across society, it would be ideal if the project was government-funded. But such a course of action faces serious obstacles, not least of which is Lexis/Westlaw's lobbying efforts. It would be more feasible, I think, to establish the free legal-research database as an independent nonprofit in the tradition of Wikipedia. Funding would be provided mainly by leading law schools, supplemented by donations from cooperative law firms. The people behind FastCase scanned and transcribed every federal and state case and statute $7 million. The top ten Ivy League schools could easily fund a similar public-domain effort. Alternatively, the law-school coalition could pay Lexis/Westlaw/FastCase to release documents into the public domain. This might be more feasible than one would expect, because whoever does it first will make some money while remaining players will be out of business. | | | | |
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< | Another objection to the free platform is that private actors would manipulate the meta-information to sabotage opposing legal actions. Wikipedia, again, is a testament to the growth of internal safeguards against abuses. | >
> | The free legal-research platform requires two centralized structural components: 1) a central catalog , and 2) a uniform citation protocol. The catalog will be a centralized record of every document in the database enabling searches of the database. A centralized catalog does not require a single centralized server for all information, but rather enables the opposite. Legal information can be stored and distributed anarchically via all the world's networks, with the centralized catalog keeping track of where the information resides. | | | | |
<
< | trash
It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process. | >
> | The uniform citation protocol will be a rationalized system of citing and finding legal documents, with authorial attribution, time of publication, etc., plus a digital code that allows instant access to the document from the free platform's search interface. | | | | |
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< | When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons. | >
> | Apart from the catalog and citation, other aspects of the platform can be decentralized and customized anarchically. For starters, the search interface will be decoupled from the database searched, with the interface freely customizable. Users and groups will be able to release custom interface packages that meet particular objectives and circumstances. Interface packages mimicking the Lexis/Westlaw interfaces will become popular, because they allow previously habituated users to recover the benefits of their platform-specific human capital--without paying the proprietary services' monopoly rents. | | | | |
<
< | The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals. | >
> | Meanwhile, the meta-information linking legal materials will be continuously updated by law professors and their students. This will initially be an anarchical project, with gradually greater structure and restrictions built in as existing materials are exhaustively annotated. _Nature_'s finding that Wikipedia is just as reliable as the Encyclopedia Britannica suggests that the free legal-research platform can be as reliable as Lexis/Westlaw. With so many smart people using the database, abuses and manipulations can be cleared up quickly and the perpetrators exiled. In the long run, it is inevitable that the free platform would become superior to Lexis/Westlaw in both usefulness and usability. |
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ElliottPaper1 12 - 08 Nov 2008 - Main.ElliottAsh
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The Lexis/Westlaw Duopoly and the Proprietization of Legal Research
The Political Economy of Legal Research | |
<
< | The use of Lexis/WestLaw produces platform-specific human capital. By using a particular platform, a user becomes habituated to and proficient with that platform, the benefits of which cannot be recovered on alternative platforms. To the extent that platform-specific human capital has been vested, Lexis/Westlaw can extract rents from their users; as long as the monopoly-rent tax is less than the costs of rebuilding platform-specific human capital for another platform, the user will remain loyal and pay the tax. | >
> | Lexis and Westlaw share duopolistic dominance of the United States' market for legal information. The corrupt circumstance enabling the existence of the Lexis/Westlaw duopoly is that the law isn't free. Despite so-called fundamental precepts of The U.S. judiciary's online record system, PACER, charges [[http://pacer.psc.uscourts.gov/faq.html#GP8][8 cents] per page revealed in a search. State courts might offer recent opinions, but older precedents are mostly unavailable. What is freely available online does not have the meta-operability that makes Lexis/Westlaw materials far more valuable. The rest of the cases--what isn't freely available--might still be law (enforced by state violence), but it is constructively proprietary information, hoarded and sold by Lexis/Westlaw.
Of course, Lexis/Westlaw don't "own" the law. Statutes, regulations, and cases are produced by agents of the people's government--they are public property, regardless of public availability. The value added by Lexis/Westlaw is research efficiency--an electronic search of a massive database is infinitely cheaper than scouring physical records at a courthouse, legislature, or library.
It is difficult to overestimate the social costs imposed by the Lexis/Westlaw duopoly's proprietary internment of legal information. It distorts the costs of civil litigation, precluding the pursuit of socially optimal lawsuits. This distortion is amplified when a wide income separate the parties, where the wealthier party has a superior research advantage. Criminal defense attorneys with inadequate resources cannot mount satisfactory defenses.
The use of Lexis/WestLaw produces platform-specific human capital. By using a particular platform, a user becomes habituated to and proficient with that platform, the benefits of which cannot be recovered on alternative platforms. To the extent that platform-specific human capital has been vested, Lexis/Westlaw can extract rents from their users; as long as the monopoly-rent tax is less than the costs of rebuilding platform-specific human capital for another platform, the user will remain loyal and pay the tax. With attorney wages what they are, a 10 or 20 percent cut in research efficiency will deter most from moving to a different platform. The platform-specific investment also discourages users of the existing platforms from | | | A side effect of the duopoly model is that Lexis and Westlaw share an incentive to differentiate their platforms. If they had identical interfaces, then habituated users could costlessly change systems, and market competition would preclude the extraction of monopoly rents. This dynamic can be observed in the functionally equivalent but symbolically differentiated search terms implemented by Lexis and Westlaw.
A less obvious implication is that Lexis/Westlaw have a standalone incentive to complicate their platforms. The more complicated a platform, the more platform-specific human capital can be invested, and correspondingly the higher the monopoly tax that can be extracted. This hypothesis is confirmed by a passing glance at the staggering turmoils of clutter that suffice as the Lexis/Westlaw interfaces (Cf. Precydent's parsimonious appearance). This is a systemic problem related to that plaguing the "Blue Book," in which managers are incentivized to repeatedly deliver arbitrary changes so that lawyers and legal scholars are forced to purchase new editions. | |
<
< | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent Elsevier, meanwhile, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress. | >
> | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent Elsevier, meanwhile, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress. | | | | |
<
< | Complicity in the Legal Academy | | | | |
<
< | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with Westlaw and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on LexisNexis 13 months ago as part of my Legal Research course, I have received 56 emails from Lexis--about one per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | | | | |
<
< | The purpose and effect of Westlaw's TWEN services and Lexis's bribes, of course, are to habituate me to working on their respective research platform. By participating in such policies, Columbia is complicit in the services' later abuse of their graduate's platform-specific human capital. There are decent commercial alternatives? to Lexis/Westlaw, as well as irreproachable free efforts, but Columbia ignores them. Columbia's legal-research curriculum ensures that Lexis/Westlaw can tax Columbia graduates. | >
> | --+++ Columbia's Complicity | | | | |
<
< | Law as Intellectual Property
The corrupt circumstance enabling the existence of the Lexis/Westlaw duopoly is that the law isn't free. The free PDFs provided by federal courts do not have the metaoperability that makes Lexis/Westlaw cases that much more functional. The free PDFs provided by state courts--oops, well, actually, many state courts don't even provide free electronic versions of judicial opinions. In these ubiquitous cases, the law--the system of norms enforced by state violence--is constructive proprietary information, guarded and sold by Lexis/Westlaw. | >
> | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with Westlaw and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on LexisNexis 13 months ago as part of my Legal Research course, I have received 56 emails from Lexis--about one per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | | | | |
<
< | It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process. | >
> | The purpose and effect of Westlaw's TWEN services and Lexis's bribes, of course, are to habituate me to working on their respective research platform. By participating in such policies, Columbia is complicit in the services' later abuse of law graduate's platform-specific human capital. There are decent commercial alternatives? to Lexis/Westlaw, as well as irreproachable free services, but Columbia's legal-research curriculum ignores them. Meanwhile, Columbia pairs this indirect subsidy with payment for academic use of the services. | | | | |
<
< | When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons. | >
> | The Free Alternative | | | | |
<
< | The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals. | >
> | The defining feature of the contemporary legal-research market is that its product, legal information, is a zero-marginal-cost digital good. Digital goods are characterized by two unique properties, according to Eben Moglen: 1) functional digital goods are most efficiently produced anarchically, while 2) non-functional digital goods are most efficiently distributed anarchically. Whether legal information is functional or non-functional--and whether "functional" and "non-functional" are coherent and mutually exclusive categories--is an interesting question for a later day. In the present context, though, it is a reasonable expectation that both properties would be extant for legal information. | | | | |
<
< | The Free Alternative | >
> | The practical implication is the deproprietization of all legal information, its | | | The social benefits of a free alternative to Lexis/Westlaw are incalculable. A free legal research platform might consist of a public database of legal materials maintained by the nation's largest law schools. The meta-information linking cases will be a continual project undertaken by law professors and their students. | | | A not insignificant objection to this is that, as a product of unpaid altruists, it would not be as reliable as Lexis/WestLaw. This is possible, but at the very least it will be a decent alternative for those who cannot afford or who are politically opposed to Lexis/Westlaw. Besides, the science journal Nature found that the facts presented in Wikipedia are just as reliable as those written in Encyclopedia Britannica.
Another objection to the free platform is that private actors would manipulate the meta-information to sabotage opposing legal actions. Wikipedia, again, is a testament to the growth of internal safeguards against abuses. | |
>
> | trash
It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process.
When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons.
The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals. |
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ElliottPaper1 11 - 07 Nov 2008 - Main.ElliottAsh
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< | The Lexis-Westlaw Duopoly | >
> | The Lexis/Westlaw Duopoly and the Proprietization of Legal Research | | |
The Political Economy of Legal Research | | | A side effect of the duopoly model is that Lexis and Westlaw share an incentive to differentiate their platforms. If they had identical interfaces, then habituated users could costlessly change systems, and market competition would preclude the extraction of monopoly rents. This dynamic can be observed in the functionally equivalent but symbolically differentiated search terms implemented by Lexis and Westlaw. | |
<
< | A less obvious implication is that Lexis/Westlaw have a standalone incentive to complicate their platforms. The more complicated a platform, the more platform-specific human capital can be invested, and correspondingly the higher the monopoly tax that can be imposed. This hypothesis is confirmed by a passing glance at the staggering turmoil of clutter that suffices as the Lexis/Westlaw interfaces (relative to Precydent's parsimony). This is a systemic problem related to that plaguing the "Blue Book"--that is, the editors are incentivized to repeatedly deliver arbitrary changes in new editions so that lawyers and legal scholars are forced to purchase the newest copy. | >
> | A less obvious implication is that Lexis/Westlaw have a standalone incentive to complicate their platforms. The more complicated a platform, the more platform-specific human capital can be invested, and correspondingly the higher the monopoly tax that can be extracted. This hypothesis is confirmed by a passing glance at the staggering turmoils of clutter that suffice as the Lexis/Westlaw interfaces (Cf. Precydent's parsimonious appearance). This is a systemic problem related to that plaguing the "Blue Book," in which managers are incentivized to repeatedly deliver arbitrary changes so that lawyers and legal scholars are forced to purchase new editions. | | | | |
<
< | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent, Elsevier, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress. | >
> | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent Elsevier, meanwhile, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress. | | | | |
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< | The Role of The Law School | >
> | Complicity in the Legal Academy | | | | |
<
< | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with the Westlaw legal research system and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on LexisNexis 13 months ago as part of my Legal Research Workshop, I have received 56 emails from Lexis--just shy of one email per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | >
> | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with Westlaw and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on LexisNexis 13 months ago as part of my Legal Research course, I have received 56 emails from Lexis--about one per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | | | The purpose and effect of Westlaw's TWEN services and Lexis's bribes, of course, are to habituate me to working on their respective research platform. By participating in such policies, Columbia is complicit in the services' later abuse of their graduate's platform-specific human capital. There are decent commercial alternatives? to Lexis/Westlaw, as well as irreproachable free efforts, but Columbia ignores them. Columbia's legal-research curriculum ensures that Lexis/Westlaw can tax Columbia graduates. |
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ElliottPaper1 10 - 07 Nov 2008 - Main.ElliottAsh
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< | The Lexis-Westlaw Duopoly and the Proprietization of Law | >
> | The Lexis-Westlaw Duopoly | | | | |
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< | Introduction
During my first semester at Columbia, my Legal Practice Workshop instructor required his students to register with the Westlaw legal research system and submit classwork via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. I suppose I would have failed the course had I not so registered. | >
> | The Political Economy of Legal Research | | | | |
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< | Since registering as a Columbia Law student 13 months ago, I have received 56 emails from LexisNexis--just shy of one email per week. These emails consist in bribes to convince me to use their service--not for schoolwork, but for playing around on an artificial legal research task in exchange for "Lexis Points," which can be redeemed for merchandise. The purpose of this exercise, naturally, is to habituate me to performing legal-research tasks on their system. In addition to generalized legal-research human capital, use of Lexis or WestLaw? produces system-specific human capital being built here; | >
> | The use of Lexis/WestLaw produces platform-specific human capital. By using a particular platform, a user becomes habituated to and proficient with that platform, the benefits of which cannot be recovered on alternative platforms. To the extent that platform-specific human capital has been vested, Lexis/Westlaw can extract rents from their users; as long as the monopoly-rent tax is less than the costs of rebuilding platform-specific human capital for another platform, the user will remain loyal and pay the tax. | | | | |
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< | LexisNexis? and WestLaw? are responsible for [[][__ percent]] of the market for legal information. | >
> | A side effect of the duopoly model is that Lexis and Westlaw share an incentive to differentiate their platforms. If they had identical interfaces, then habituated users could costlessly change systems, and market competition would preclude the extraction of monopoly rents. This dynamic can be observed in the functionally equivalent but symbolically differentiated search terms implemented by Lexis and Westlaw. | | | | |
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> | A less obvious implication is that Lexis/Westlaw have a standalone incentive to complicate their platforms. The more complicated a platform, the more platform-specific human capital can be invested, and correspondingly the higher the monopoly tax that can be imposed. This hypothesis is confirmed by a passing glance at the staggering turmoil of clutter that suffices as the Lexis/Westlaw interfaces (relative to Precydent's parsimony). This is a systemic problem related to that plaguing the "Blue Book"--that is, the editors are incentivized to repeatedly deliver arbitrary changes in new editions so that lawyers and legal scholars are forced to purchase the newest copy. | | | | |
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< | The Political Economy of Legal Research | >
> | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and Westlaw--In 2005, Lexis managed revenues of $8.94 billion with a 23.1% profit margin. Lexis's corporate parent, Elsevier, spent [$12.5 million between 1998 and 2006 lobbying the U.S. Congress. | | | | |
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< | Lexis and WestLaw? do not provide services to public libraries. | >
> | The Role of The Law School | | | | |
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< | The ventures are profitable. LexisNexis? , for instance, managed a 23.1% profit margin in 2005. Lexis's parent corporation, Elsevier, spent http://rafaelsidi.blogspot.com/2006/01/reed-elsevier-among-top-uk-spenders-on.html? lobbying the U.S. Congress. | >
> | During my first semester at Columbia Law School, my Legal Practice Workshop instructor required his students to register with the Westlaw legal research system and submit all graded work via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. Since registering on LexisNexis 13 months ago as part of my Legal Research Workshop, I have received 56 emails from Lexis--just shy of one email per week. These emails offer me "Lexis Points" in exchange for using their service--not for schoolwork, but for playing around on an arbitrary legal-research task or tutorial. | | | | |
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> | The purpose and effect of Westlaw's TWEN services and Lexis's bribes, of course, are to habituate me to working on their respective research platform. By participating in such policies, Columbia is complicit in the services' later abuse of their graduate's platform-specific human capital. There are decent commercial alternatives? to Lexis/Westlaw, as well as irreproachable free efforts, but Columbia ignores them. Columbia's legal-research curriculum ensures that Lexis/Westlaw can tax Columbia graduates. | | | Law as Intellectual Property | |
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< | It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators and compiled by the organs of the executive and judicial branches of the government. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process.
When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An empirical investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties have statistical differences in the database's meta-information would be helpful in this regard. | >
> | The corrupt circumstance enabling the existence of the Lexis/Westlaw duopoly is that the law isn't free. The free PDFs provided by federal courts do not have the metaoperability that makes Lexis/Westlaw cases that much more functional. The free PDFs provided by state courts--oops, well, actually, many state courts don't even provide free electronic versions of judicial opinions. In these ubiquitous cases, the law--the system of norms enforced by state violence--is constructive proprietary information, guarded and sold by Lexis/Westlaw. | | | | |
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< | What we do know, though, is that these publishers have manipulated their publications for monetary reasons. In 2004, Elsevier killed a medical journal article about the rates of cancer mortality of former IBM employees under pressure from IBM. | >
> | It would be argued that law has expressive, aesthetic content and is thus deserving of copyright. By virtue of the fact that some judges, as composers of legal materials, [[cite]evidently believe this, there is some truth to the argument. But it is an unfortunate attitude, and it has deleterious effects on the quality of the fruits of legal enterprise. Law should be conceived as software code rather than poetry, written by legislators, compiled by the executive, and debugged by the courts. This metaphor offers hints as to how problems with the legislative versus executive versus judicial process should be dealt with. For example, as illustrated in [[cite][Anarchism Triumphant], anarchical production of software code is a superior strategy, and it should be applied to the production of legislation. The [[cite][GPLv3 process] is a preliminary example of an anarchical legal drafting process. | | | | |
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< | Discussion
Heller, The Gridlock Economy | >
> | When law is proprietized, an obvious concern would be manipulation of the law by its private owners for their personal benefit. It would be rational, supposing low probability of the infraction being publicized, for Elsevier/Thomson to tamper with case law concerning company litigation. In a competitive legal-information marketplace, objectivity would be an overriding concern, because competitors would publicize infractions and keep each database honest. But here, we have duopoly, and that invites collusion. There has been little, if any, investigation into whether Thomson and Elsevier have attempted such manipulation. An investigation into whether cases in which Elsevier/Thomson (and subsidiaries) are parties are characterized by statistical differences in the database's meta-information is in order. What we do know, in the meantime, is that Elsevier has, at least once, manipulated a scientific medical publication for economic reasons. | | | | |
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< | Stake, "The Property Instinct" | >
> | The problems with Lexis and Westlaw are representative of the more general problems associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals. | | | | |
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< | The effectiveness of a distribution system can be measured by its cost. The ineffectiveness of the old-world music distribution system was illustrated by the share of its revenues that went to feeding the distribution system, rather than the content-production system. The same can be said of Lexis and WestLaw? | >
> | The Free Alternative | | | | |
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< | A promising up-and-comer is Precydent. Its parsimonious interface is superior to Lexis/WestLaw. But my first search query, "hamer v sidway" did not turn up the result that I obviously wanted.
Columbia's revolting relationship with Lexis and WestLaw?
A rarely considered alternative to the proprietary Lexis/WestLaw systems would consist of a vast wiki-ized database of legal materials, with meta-information about connections between cases filled in by the lawyers and law professors. A not insignificant objection to this is that it would not be as reliable as Lexis/WestLaw but see the Nature study demonstrating Wikipedia's comparable reliability to the Encyclopedia Brittanica. | >
> | The social benefits of a free alternative to Lexis/Westlaw are incalculable. A free legal research platform might consist of a public database of legal materials maintained by the nation's largest law schools. The meta-information linking cases will be a continual project undertaken by law professors and their students. | | | The people behind FastCase estimate that scanning and transcribing every federal and state case and statute will cost them $6 million. Apart from the unionized-labor complication, the top ten Ivy League schools could easily fund a similar open-source effort. | | | An alternative to a centralized free-law resource would be instead a uniform system of citation, pagination, and meta-data standards for legal materials that could be implemented on a wide range of information-hosting platforms. | |
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< | A powerful objection to the proposal for a publicly editable open-source legal-information platform is that private actors would manipulate the meta-information to sabotage opposing legal actions.
The problems with Lexis and Westlaw are representative of the more general problematics associated with the proprietization of functional knowledge. Bergstrom (2001) showed that nonprofit economics journals were generally superior to commercial economics journals, despite the fact that similar commercial journals charged almost ten times as much for subscriptions to their journals. | >
> | A free legal wiki would separate content from presentation, allowing users and groups to customize the presentation of information to meet particular goals and circumstances. The free platform can parrot the presentation systems of Lexis and Westlaw, allowing previously habituated users to recover the benefits of their platform-specific capital without paying the monopoly rents exacted by proprietary systems. | | | | |
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< | | >
> | A not insignificant objection to this is that, as a product of unpaid altruists, it would not be as reliable as Lexis/WestLaw. This is possible, but at the very least it will be a decent alternative for those who cannot afford or who are politically opposed to Lexis/Westlaw. Besides, the science journal Nature found that the facts presented in Wikipedia are just as reliable as those written in Encyclopedia Britannica. | | | | |
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> | Another objection to the free platform is that private actors would manipulate the meta-information to sabotage opposing legal actions. Wikipedia, again, is a testament to the growth of internal safeguards against abuses. |
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ElliottPaper1 9 - 07 Nov 2008 - Main.ElliottAsh
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The Lexis-Westlaw Duopoly and the Proprietization of Law
Introduction | |
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> | During my first semester at Columbia, my Legal Practice Workshop instructor required his students to register with the Westlaw legal research system and submit classwork via [[lawschool.westlaw.com][TWEN], Westlaw's proprietary online courseware. I suppose I would have failed the course had I not so registered.
Since registering as a Columbia Law student 13 months ago, I have received 56 emails from LexisNexis--just shy of one email per week. These emails consist in bribes to convince me to use their service--not for schoolwork, but for playing around on an artificial legal research task in exchange for "Lexis Points," which can be redeemed for merchandise. The purpose of this exercise, naturally, is to habituate me to performing legal-research tasks on their system. In addition to generalized legal-research human capital, use of Lexis or WestLaw? produces system-specific human capital being built here;
LexisNexis? and WestLaw? are responsible for [[][__ percent]] of the market for legal information. | | | The Political Economy of Legal Research
Lexis and WestLaw? do not provide services to public libraries. |
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