Innovation and Unbundling in Legal Research

In a recent post on Westlaw’s (and Thomson Reuters’s) Legal Current Blog, one of the elder statesmen of legal information theory, Professor Bob Berring discusses free legal information, and why he believes that it does not pose a threat to traditional legal publishers.
The topic raised quite a kerfuffle (see posts in the comments, as well as here, here, here, and here) among legal research services, both paid and free, perhaps especially over Prof. Berring’s description of free law’s pioneers as “volunteers” whose services his law students “play with” in his advanced legal research and writing glass. The criticism led to Prof. Berring’s reply on slaw, in which he reiterated that he did not think that free services would replace the editorial services of the traditional publishers.
This is a very thought-provoking topic. Since my earlier offer on Legal Current to host a beer summit in Washington, many more people have asked to participate, so this may be a better topic for an unconference instead. Again, happy to host in DC, or perhaps in Denver during AALL 2010?
Fastcase is in a somewhat unique position on both sides of this discussion. We are a commercial publisher with more than 380,000 subscribers — but we are also the publishers of one of the largest free law libraries online, the Public Library of Law (PLoL), and we collaborated with (and Justia) on liberating U.S. Supreme Court and Court of Appeals decisions online in bulk. With that perspective, we offer two observations:
1) The question of whether free services will replace commercial ones is a bit of a strawman. To me, the bigger issue is whether the bundling strategy of traditional publishers — to wit, bundling services like headnotes, key numbers, or citators with primary law — can long survive.

Because Westlaw and LexisNexis have traditionally bundled these “editorial” services with primary law, consumers who only needed access to primary law had to pay premium prices for access. When we democratize primary law, new competitors (like us) will innovate and build smarter services, perhaps even bettering the older editorial services — just like Google’s search algorithm replaced Yahoo’s “editorial” taxonomy of the Web. (As a self-serving example, many people prefer Fastcase’s citation analysis and data visualization tools to the older taxonomic tools.)
Free law makes this innovation possible. Some users need the traditional “editorial” services. But many do not — they buy the editorial enhancements because they have to — editorial services they don’t need are bundled with the primary law. As Bob notes, there will always be a market for the editorial services — but it’s likely much smaller than the existing market, and inflated by bundling.
So a better question might be: If the law is democratized by the government, universities, and public-spirited companies; and if innovators build smarter tools to search primary law, won’t that cut deeply into (or end?) the bundling business model of traditional publishers?
Or more concisely: Isn’t free law the end of duopoly profits in legal research?

2) I love Bob’s Tinkerbell analogy in his slaw post: Legal services have authority not because of some exogenous metric, but because people put their faith in them, like the belief of children and their clapping hands saved Tinkerbell in Peter Pan.
It’s exactly right. The clapping sound in this market is money, and as long as everyone keeps clapping (or paying) for bundled research, Tinkerbell is going to be just fine. But what happens if people stop clapping?

Superb topics for an unconference! Denver 2010?

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