AALL and Thomson-West

Well, by now, James Duggan, the immediate past president of AALL has made his official statement on Law-lib listserve. And Anne Ellis of Thomson-West has made a reply on the ALL-SIS list-serve. As I understand it, the membership of AALL is split in their sentiments over the leadership's response to West. Some members, among them many firm librarians, think that AALL has cut off its own nose to spite its face. They don't see how West's refusal to supply price information for the AALL price index is a problem. And they especially think it was stupid to forgo the sponsorship money from Thomson West in a year when the money is tight (is there ever a year when it's not tight?!).

I can see how the issue may look different from the firm perspective. I believe that firm libraries have been given firm pricing on materials that allows them to plan ahead in ways that academics have not been given for decades. I was stunned many years ago to hear from a private library colleague that they were given the pricing for looseleaf updates for the entire year at the start of the year. Academic libraries were NEVER given this information, and often got BIG surprises as the year went along, when the publisher decided to juice up their bottom line. The publishers long assumed that the academics had some bottomless purse to draw on. And to tell the truth, it must have looked that way, from the outside. They did not see what kinds of scrambles were being made into the endowment income lines, or cuts happened in the supplies line, or trips or trainings were skipped in order to cover these sudden expenses. Or sometimes, the library just ran into the red, and the dean had to scramble in the same way and find the money in some line..., or the university had to do the same scramble because the law school ran into the red....

But suddenly, there is a lot less give in the university system than ever before. We have always had a duty to protect the interests of our patrons. And I, for one, think we have been very remiss as a professional organization, in this area. Where the ABA can at least point to efforts at improving justice and protecting the public from bad lawyers and judges, what has the AALL done about bad publishers and vendors who take advantage of the public? There has been a huge change in the publishing landscape -- where the companies publishing and archiving U.S. federal and state law are suddenly:

1) owned by non-U.S. multi-national corporations;

2) oligopolies -- that is, a very few companies that control the market in such a way that they manage the pricing and supply in the same way that a monopoly can do. For certain types of legal materials there is, in fact, a monopoly;

3) not over-seen in any meaningful way by any government agency. They gather publicly owned and government produced documents (constitutions, statutes, judicial opinions, regulations and other administrative documents, Presidential papers, ordinances, etc.), and publish them, reselling them to the very legislatures, judges, and other government offices that produced the original documents. Granted, the publishers often add a good deal of value, in the form of indexes, headnotes, searchable databases, with excellent search engines. However, in many cases, they also produce the "official" version for state statutes, and the online version as well, meaning that there is no "state-owned" version that is not paid for through one of these big publishers and/or vendors.

When the first sale of West to the Thomson Company happened, AALL told the Justice Department that this would be the better outcome, because there was fear at the time that some corporate raider like Carl Icahn might swoop in and buy West, strip it of its assets, and spin it apart. The fear was that the major publisher and vendor of American law would be torn apart for its immediately useable assets (like Westlaw) and the less attractive parts (like print) would be tossed away, trashing the interlocking system that produces so much of our legal literature.

The Justice Department's Antitrust Division worked out a careful agreement, requiring West's titles to be parceled out among to avoid having both encyclopedias, for instance, in the hands of one owner (at least I supposed this was the plan). As it turned out, both CJS and Am-Jur ARE held by the same publisher/vendor (West!), and are becoming more and more the same thing, slowly melting together. I am pleased to hear that the Justice Department seems open to re-examining the mergers and acquisitions that have resulted in such a very few, very large legal publishers and vendors.

In the meantime, there have been only one or two voices in the wilderness for the interests of consumers. Ken Svengalis has been a mighty worker on behalf of consumers of legal literature. And AALL's CRIV folks have been doing great work. Now AALL has appointed Marian Parker from Wake Forest as the new Vendor Liaison. These are good and important steps. But I believe the board's strong stand on West's participation in the Price Index is another important step in protecting consumer interests. It is all too easy to take the money that makes it easy to run our association. But that betrays our responsibility to all consumers of legal information. As the professionals who know the legal information landscape, it is our ethical responsiblity to stand between irresponsible publishers and the consumers, to press unethical publishers to behave better. Who will do it if not us?

Again, I say, Bravo to AALL, and that they are HEROES!