Northern Kentucky Law Review, volume 26, 181-209 (1999)
The Internet: “Full and Unfettered Access” to Law – Some Implications
Peter W. Martin1
Introduction – Multiple or Alternative Futures
This past year I was asked to contribute an essay covering the impact of technology, most notably the Internet, on legal education to a book that has since appeared in Austria2 – a reminder that the issues at the center of these reflections concern legal scholars everywhere. I gave that piece the working title “The Digital Futures of Legal Education,” intending by use of the plural "futures" to express the view that the relationship of digital technology to activities and actors as complex as those involved in legal education was far from that of simple cause and effect – technological determinism, if you will. While technology propels change it also, in my view puts challenging choices in front of key institutions and individuals – through which they shape the future, whether consciously or by default. In any event, the book's editor who also had the burden of translating my piece reported back that he had serious difficulty rendering the title's notion of alternative or contingent futures with a single German word. It is a disquieting notion but one absolutely central to the ideas I want to share today. To throw it in bolder relief I shall in this talk not rely on such nuance but will instead explicitly sketch multiple visions of the future.
One reason I am loath to predict a particular future for law and the legal profession is born of recent experience. In 1988 I set out to prepare a Social Security treatise that would take full advantage of and be designed specifically for electronic delivery (as different from a traditional law text, as a movie is from a novel, I said to myself with only the most general notions of what that meant). It seemed to me self-evident that a complete and integrated specialty law library organized by and accessed through expert commentary -- all contained on a single CD-ROM held such powerful advantages over print that once I had solved the intellectual and technical problems publication and distribution would be assured. That prediction hugely underestimated the resistance to change in the large commercial organizations that then comprised law publishing. While my CD-ROM was in time published and today enjoys substantial use in the field of Social Security law,3 its path to publication has been (and continues to be) a turbulent and uncertain ride because of dramatic changes in the commercial publishing sector about which I had no clue in ten years ago.
A second experience leading me to be cautious about prediction began in 1992. At that time, pursuant to the belief that law schools were uniquely positioned to be centers of research on and experimentation in the use of technology to distribute law, my colleague Tom Bruce and I established the Legal Information Institute at Cornell University.4 Our strong suspicion was that digital technology would permit law schools to be serious publishing centers. But did we anticipate how rapidly the Internet would become a pervasive communication medium or the range of users, content, and providers it would bring together in five short years? No. As a reminder, I recently thumbed through Ed Krol's The Whole Internet User's Guide and Catalog,5 published in September 1992. It describes the Cornell Law Gopher (our initial Internet experiment),6 introduces the World-Wide Web as a brand new information service,7 encouraging readers to “check it out,”8 and purports to provide an exhaustive catalog of information sites of all types on the Net.9 Krol's understanding of the Net was and is far deeper than mine. But his few lines in that 1992 book on “Where the Web is Going”10 bring a laugh today – for they undershoot the mark by miles and millions.
These experiences prompt me, as I have said, to see the future as plural in its possibilities, heavily contingent on institutional factors, and devilishly hard to read. That leads me to attempt to ground these speculations about the future solidly in the present. I have a strong sense that the future is already here, at least as much of it as one can hope to foresee – recognizable if we can but tease its strands out of their tangle with the far more familiar strands of the past.
To aid in that disentangling process I want to begin with a case study that those of us in law can approach with some detachment because it lies outside that field.
A Suggestive Case Study – The Encyclopedia Britannica
A. The Case Study
This year the Encyclopedia Britannica celebrates its 230th anniversary.11 It was founded in Edinburgh in 1768 (a full century before the former West Publishing Company and before the birth of our nation). For most of this century the Britannica has been privately owned and operated in the U.S. – held by a foundation with all revenues flowing to the University of Chicago. Secure in print, it was totally blind-sided by the information revolution.
Until the early 1990s the Britannica prospered with an army of direct-sales agents selling its bookcase load of print – a set of volumes that cost $200 to produce which those agents sold on commission for figures ranging up to $1,500 a set (the exact amount depending on binding and paper stock).12 All of that crashed during the brief period which saw the Internet explode and CD-ROMs (including the Microsoft digital make-over of the Funk and Wagnall’s Encyclopedia re-christened Encarta) begin to enter many American homes. Britannica sales plummeted. In five years the company lost twenty-five million dollars. It finally responded with a CD-ROM version of the encyclopedia in 1994, but because of concerns that it might step on sales of print sets this CD was limited to identical content, given the same sticker price, and deprived of such critical functions as printing. A year later, in early 1995 the Britannica (name, content, and editorial staff, and sales force) was sold to a European investment group. The sales force and network of independent sales agents (totaling over 400 in the U.S.) was disbanded the following year. Today, those who wish can still buy the 32-volume print edition for $1,500, but more content, including video and audio clips, can be acquired for $79 (post rebate) on CD-ROM. The Britannica also offers this multi-media content via the Internet on a subscription basis, with both individual and educational site licenses, alongside substantial material that updates and extends the core collection and carries no charge.13 Whether or not this is “too little, too late” remains to be seen. The current CD is far more competitive than the original offering. But disc Britannica still has some distance to go, according to reviewers, in such critical areas as ease of installation, quality of presentation and user environment when compared to Encarta which now dominates the multimedia market. The new owner’s recent use of the Britannica brand name to enter the Internet search engine business reflects its ongoing search for a profitable place in this new information world.
If Britannica survives for another century it will be as a very different enterprise selling information in a radically different way than it did but a few years ago. In a truly brief span of time its centuries old, high-quality information product, sold essentially on capital investment terms, was been ripped apart by information being distributed in much greater volume through consumer channels on CD-ROM and offered via the Internet at zero or near zero prices.
B. Implications for the Law and the Legal Profession?
Does this tale have implications for law or the legal profession? There are, of course, evident parallels between the Britannica’s fate and the sale and transformation of commercial law publishing in the U.S. Ten years ago the West Publishing Company, Shephards, LEXIS, and Lawyers Coop seemed strong, distinct, and enduring features of the law scene. Today, they are merely brand names that have been acquired and merged with their associated products into two competing international conglomerates.14 Might such displacement and ignominy threaten law or the legal profession? Both public law-making bodies and the legal profession hold apparent monopolies. This would suggest that while they may be sluggish in adapting to a digital networked world, their future is secure. In fundamental respects the respective monopolies and any consequent security are increasingly an illusion. Even if survival is not the issue, stature and effectiveness are unquestionably at stake. Immense social costs, including both unnecessary expenditure and opportunities lost, will be the consequence of law’s assuming the “Britannica” posture. For law firms and the profession as a whole, the Britannica’s experience poses the blunt question: “Are you selling services that are over-priced and outmoded for a digital world?”
C. One of a Swarm of Piranhas – The LII
With true humility let me shift from the Encyclopedia Britannica to Cornell Law School’s Legal Information Institute (LII) and our experience over the same period of time. While I am startled saying it, it is, today, not ridiculous to discuss the Britannica and LII's activities in the same breath. It is fair to say, for example, that while our information services are far narrower, our history a scant 5 years, not 230, and our brand name still being established, in 1997 Cornell's LII distributed information to more individuals and institutions than the Brittanica.15 Each time the U.S. Supreme Court hands down a decision, the LII’s e-mail bulletin goes out to over 18,000 individual and institutional subscribers (more than subscribe to the Britannica on-line).16 On a day when a high profile, high impact decision is released tens of thousands download the opinion from our Supreme Court web-server.17 In the course of a week, the servers and search engines of the Institute respond to roughly two million data requests.
More to the point perhaps, the LII is but one of a swarm of piranhas that have ripped the Britannica apart and forced the reconfiguration of law publishing. For the price of the Britannica’s print set a family or school library can today acquire a multi-media computer, Internet connection plus a clutch of reference CD-ROMs. Cumulatively this digital alternative furnishes access to far more information than the most comprehensive encyclopedia could ever aspire to. With that computer the high school student studying the work of the Supreme Court or the impact of Brown v. Board of Education18 can access the Court’s decisions in full text, plus related material, at our Institute’s web site.19 In increasing numbers, the student will find the same material on the LII CD-ROM of historic decisions in the school library. By either route, our institute together with other law sources offer depth in this one field with which the Britannica cannot compete. And field by field, the story repeats.
A comparable story of new entrants with low or no price legal information, including the LII, underlies the tectonic shift that has occurred in commercial law publishing. Lawyers and other consumers of legal information will not continue to pay Britannica level prices for information that is available without charge on the Net or that can be purchased at consumer level prices on disc.