SarahGlassmeyer(dot)com

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April 9th, 2013 by Sarah

Disrupt My Industry. Please.

Disruption is definitely the hot term du jour.  It mostly is a fancy way of saying “change”, but that doesn’t quite do it justice.  Go read this wonderful post by Jordan Furlong on “What Disruption Really Means.”  Go on.  I’ll wait.

As with change, many people view disruption as one would a cloud of locusts on the horizon.  And react accordingly. Others,  on the other hand, are more like “disruption deniers” and refuse to believe that any significant change is coming to the industry any time soon and, oh by the way, anyone that tells you different is a loser that can’t hack it in the real world.

Listen.  If making fun of futurist, trend-spotting douchebags that wouldn’t know shit from apple butter when it comes to reality is wrong, then I don’t even want to take the time to learn to be right.   But most of the people predicting disruption are far from this and attacking the messenger isn’t always the best tactic.  Just saying.

So then there’s the third camp, which I happen to fall into.  I am waiting for disruption like a fat kid for the Easter Bunny, a Born-again christian for Jesus and Linus for the Great Pumpkin… COMBINED.   Disruption can’t hit my industry fast enough.

I have been vague in defining “my industry” thus far in this post because, as I have said before, my professional career has landed me in the square in the Epicenter of Suck.  I could be talking about legal education, the legal industry, academic publishing, legal publishing and information, or libraries.  For the sake of discussion, let’s take legal information and publishing as an example.   I was supposed to talk about this last week at Lexthink.1 last week, but had to bow out because 2013 has put me in the medical epicenter of suck as well.

As Sam Glover on Lawyerist points out, the switch to electronic legal publishing/research has not been disruptive.  I would agree with that – as far as it applies to lawyers.  It’s been hellishly disruptive to libraries and librarians, who have had to change the way they collect, access, distribute and pay for legal information, but for the end user it hasn’t really been too much of a change.  Disruption is in the eye of the beholder, I guess.  But that being said, legal publishing needs to be disrupted because legal publishing is broken.

Legal publishing is broken because it only serves to keep information locked away from people.  And, given the unique status of legal information (which we can define here as cases as well as laws and regulations passed by all levels of government bodies), you don’t even have to be one of those “information wants to be free” hippies to agree that there is no reason why this shouldn’t be free, open, accessible and preserved for all.

From the very beginning of our nation, government outsourced some of the publishing of its information products to private publishers.  I’m not so much of a socialist that I think all privatization of government services is automatically bad.  Actually, hats off to John West for coming up with the Key Number indexing system and making it easy in pre-computer days to do cross jurisdictional research.  Even today editorial content additions to primary law – such as in the recently released DC code – have value for researchers billing in six minute increments.  But having to pay for primary law without editorial content is wrong.

Allow me to double down on that.  Not only is it wrong, but I truly believe human rights – if not U.S. constitutional rights – are being violated by the government not providing access to legal information.  Hopefully someone with more time, energy and patience than I can write a brief or law review article drawing a line from the 6th Amendment to Gideon to a Right to Legal Information Access.

And then sometimes the corporations won’t even sell you the law.  Lexis is the Official Publisher of the Georgia Code.  Another publisher, Fastcase, asked quite reasonably to purchase a copy – after all West buys one.  Lexis said, ” Nope.  Hit the bricks, Ed.” While on one hand this is a very understandable business tactic, on the other….isn’t the idea that a corporation has the final say on who can access the law that governs us sketchy as Hell?

Of course, when government does publish its own law it sucks at it.  Bad formats, limited preservation and little to no authentication or even “official” status.    A PDF on a website is not open publishing.  It’s free to read, sure, but the information contained within that PDF is as locked away as it would be if it were a book on a shelf.  The whole purpose of making electronic information (aka “born digital” information) is that its creation is merely the starting point.  Each case, law or regulation is a building block which can be should be able to be remixed, reused and combined in new ways.    Imagine being given a pile of lego bricks and being told that you can build something with them but you’re not allowed to click them together.   That’s what a bunch of PDFs on a website is.

The preservation and authentication is no small matter either.  With so many jurisdictions switching to electronic publishing because it’s “cheaper”, yet not authenticating or preserving it properly, it is not beyond the realm of possibility that one day in the future we will have no idea what a law was on a certain date.   Sure, it might be something “minor” like what the zoning code in Valparaiso, Indiana was in 2014, but I personally am not ready to accept that only “major laws” that affect people that live in cities in the east coast are the only ones worth preserving.

Finally, in a move that really chaps my ass as both a lawyer and a librarian, both corporations and governments slap copyright notices on law.  Not just, for example,  the statute headings which some corporations have had to fill in because governments never bothered to do that.  That’s understandable.  Sort of a dick move, but understandable.  No, I’m talking about the actual text of the law.  Copyrighted.  Look at the Wyoming Statutes page.  LOOK AT IT.  What the Hell is wrong with those pe0ple?  Ed Walters, CEO of Fastcase, breaks it down better in this VoxPopulii post “Tear Down This Pay Wall.”

Of course, even though all of the above have been issues for a while, libraries have always been the work around.  Can’t afford Wexis?  Go to a library.  They’ll have everything on the shelves.  Unfortunately, the consolidation of the legal publishing market has had the same effect that most monopolies have – libraries simply cannot afford to keep primary law available, let alone any the secondary materials necessary to understand what the primary law means.   While that now is hitting libraries and only poor people use libraries so who cares, I don’t think its unthinkable that soon small and solo practitioners will have difficulty practicing in certain areas because they simply cannot afford the research costs.

So, think about it.  At the present time, 80% of people who want legal representation aren’t able to afford it.  However, if they do want to help themselves, they are unable to access the information they would need to do so.  They have two strikes against them and that’s before they even set foot into the legal system.  That will soon work its way up and lawyers on the bottom of the economic ladder will soon be knocked out as well.

In my dream world there will be a government run Digital Public Law Library of America.  It would contains all the primary law from every jurisdiction in the United States and allow for front end cross jurisdictional searching by the public as well as bulk downloads in malleable formats for developers.

So yes, I would LOVE for my industry to be disrupted.  There is a huge market out there of people who need to access legal information and new technological advances are happening every day that will easily replace the old editorial content additions.   But disruption in legal publishing will never happen until the raw material – aka law – is made open and accessible from the government.

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Comments

4 Responses to “Disrupt My Industry. Please.”
  1. Kama Siegel says

    SLOW CLAP

  2. I looked at the Wyoming site – I had no idea Wyoming had any statutory law at all. wow!

  3. Paul E. Merrell says

    Re your envisioned Digital Public Law Library of America, it also needs to include international law sources at least insofar as the U.S. is a member of the relevant treaties. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996) (“a treaty ratified by the United States is … the law of this land, see U. S. Const., Art. II, 2″); Restatement of the Law, Third, Foreign Relations Law of the United States, 114 (1987) (“w]here fairly possible, a United States statute is to be construed so as not to conflict with international law or an international agreement of the United States”) (Charming Betsy rule). In international law, there are also so-called “peremptory norms” in human rights law that apply even to nations that have not ratified a relevant treaty.

    This branch of law in the U.S. just may be the most sorely neglected in regard to public digital access to the law. The official repository of a given treaty is set by the treaty itself and the official repository is frequently not available on the Web. And treaties in the U.S. must always be interpreted subject to any reservations made by the U.S. during the ratification process, but reservations are even more difficult to find than treaties and frequently are not available.

    There is a further problem with implementing statutes that (almost?) invariably incorporate the treaty by reference, without repeating its text and usually without information as to reservations, producing what should be absurd, large swaths of the U.S. Code that are not contained within that Code.

    Even worse, you frequently hit formerly very large paper documents that have been scanned into PDFs that defy searchability. A good portion of the U.N.’s treaty reservations records are available online only in such form, often hundreds of pages in a single scanned PDF. So to search them, one needs to download them, use some program capable of converting the scanned PDFs into a searchable format, e.g., a recent version of WordPerfect, and then index them prior to conducting the search.

    I could go on and on about the difficulties of searching international law that either governs directly or should be taken into account when interpreting U.S. statutory law, but my point is that any Digital Public Law Library of America of necessity needs to include international law.

    Paul E. Merrell, J.D.

  4. The Legal Industry is being disrupted. Disruption comes because the incumbents don’t recognize the disruption. Thus most attorneys, even those wanting change, don’t recognize the disruptions that already exist. Further disruption is not quick, it happens over longer periods of time and starts at the low end of the market. One clear example of this is Online Dispute Resolution, like Modria. The started out resolving consumer disputes on eBay. Now they have spun off into Modria and are resolving small insurance claims, small legal disputes, and other low margin work. They will go up market slowly but in 10 years time many of the small claims the courts see might be resolved via Online Dispute Resolution solutions. There has also been discussion of companies using these in their service contract rather than mandatory arbitration. These would likely be the greatest disruption to the legal industry because they disrupt the courts and the lawyers at the same time. Their are many more disruptions, I suggest you google it to find them.

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