In 1984, Dr. Egon Spengler gave birth to a proverbial booger on the end of your finger—a meme that simply cannot be shaken off:
Print is dead.
It’s been a rallying cry of technologists for decades, but when I hear it today, the meme sounds more like a Stuart Smalley daily affirmation. Doggonit. But I suppose that’s just the print bias in me speaking.
A few years after Dr. Spengler’s quip, Thomas Woxland asked 20 legal publishers and 4 law librarians to reflect on the role of a law publisher and what each of them saw to be the future of the legal publishing industry. He collected the responses in his centennial reprise of the American Law Review’s 1889 Symposium of Law Publishers. There were some important names in the business who responded, and from those responses Woxland identified several recurring themes, one of which concerned the future of print:
The first recurring theme is that the occasionally prophesied ‘death of the book’ is not going to soon occur. No publisher, even those who are substantially involved in electronic publishing, see books relegated to the museum of quaint oddities of the past, along with buggy-whips and bustle-dresses, 3-D glasses and hula-hoops. Collections of books—or as we call them, libraries—do have a future; they are not expected to become just arcane reliquaries visited only by adamant Luddites and unreconstructed bibliophiles. Libraries and books will continue to be central to the legal information needs of the legal profession and our society as a whole. [¶] But books are no longer the sole format for legal information. The new information technologies are on the minds of all the publishers; either they are already involved in electronic publishing or they are considering entry into that field very shortly. Again though, a common cautionary theme is present: technology is not an end, only a means to deliver to the legal profession the information that the profession needs in ways that are faster or more comprehensive or more inexpensive or more accessible.
Twenty years later, where are we? More importantly, is print finally dead?
Sure, we (and that is the royal We, meaning law librarians, practitioners, professors, law students, paralegals, etc.) have been talking about the decline of print for those twenty years. And yes, library listservs are now riddled with the ubiquitous “free books with postage” emails. And, of course, there’s no shortage of law libraries reporting that they are dumping print subscriptions due to the high costs of maintaining serials. And the largest legal publishers continue to report a decline in print sales. All the while, technology has continued to evolve, becoming more … human. But does all of this spell the end of the future for print in law?
Before we can answer this question, we should probably consider how we got here.
***
For well over a hundred years, publishers of legal content have been trying to answer the same question: what is the authority for that point? Historically, it would seem that the principle disagreements between the publishers have been over what is authority and how do lawyers find it because they were (and remain) in the business of collecting, packaging, and selling authority. And by authority I mean cases, codes, statutes, regulations, etc.
Perhaps the most significant debate occurred before the 20th Century, and concerned the matter of whether authority should be curated for lawyers. James Briggs, who founded Lawyers’ Cooperative Publishing the same year West Publishing was incorporated, took one view of the problem:
There is a generally felt and frequently expressed regret, on the part of the bench and bar here and in England, for the unlimited production of law books, whether of reports or text-books, which, instead of simplifying and facilitating a knowledge of the present state of the law on any given question, complicate and embarrass it by the very quantity of matter presented for examination and reconciliation. [¶] It is a fact that no one, working industriously ten hours a day, could simply read all the published opinions—hence, the publisher’s duty to render them quickly accessible.
Symposium of Law Publishers at 160. John West, who founded West Publishing, took a decidedly different view of the problem:
It is the work of the National Reporter System to make most available to the legal profession the law as the courts enunciate it, – to collect, arrange in an orderly manner and put into convenient and inexpensive form in the shortest possible time, the material which every judge and lawyer must use. The Reporters with their attendant digests are making the knowledge of the law more certain, diffusing it more widely and equally, and … doing much to unify it, by enabling the courts to harmonize conflicting decisions.
Symposium of Law Publishers at 159. If you’re unfamiliar with the outcome, Briggs lost, West won, and the implications of that victory have had an enormous impact on the practice of law since. At the very least, the outcome made finding the solution to the question how do lawyers find the authority a bit more interesting (and imperative).
To accomplish the goal of finding authority, publishers have, over the years, offered up a “feast of formats,” taking us from print to digital vis-a-vis microforms, floppy disks, CD-ROMs, and online web sites. Our progression through these formats seems to have been compelled principally by problems of complexity (increasing volume of data), speed (retrieval), currency (perception of real-time needs), and fear (I’m missing something, opposing counsel may have it or know of it). And as we embraced electronic search as a savior, we took to the wheel and went around and around—search, scan, review, print, search, scan, review, print—in our never ending quest to find the authority. If there were ever a truly iterative process (with no happy ending), it is modern legal research.
Today we have access to tens of thousands of databases of authority. We can call up in a second, hundreds of cases to answer the question, what is the authority for that point? Our powers for finding authority are limited only by the bandwidth of our service provider, our online research platform of choice, and our ability to structure effective queries (although WestlawNext seeks to eliminate this hurdle as well).
But despite all of this power and access, we are drifting farther away from appreciating the meaning of and understanding that authority because of one simple fact: lawyers don’t think or know to read good books anymore. And it is between the cover of these books that we can learn the relationship between the authority and practice, between content and meaning.
Why are these secondary sources needed? They are valuable in explaining the interaction between complex laws and regulations, e.g., the Internal Revenue Code and its related regulations and rulings. They provide an essential starting point for researching unfamiliar areas of law. And they synthesize the ever increasing number of decisions whose precedential value must be considered by legal professionals as they apply legal reasoning to any problem.
Symposium of Law Publishers at 84 (comments by L.W. Peterson, President & CEO of Matthew Bender & Co.).
In 1991, Evalyn Greene and P.J. Lucier of Banks-Baldwin Law Publishing made the following observations:
Electronic legal research focuses on word retrieval from primary sources, rather than the use of finding aids or secondary sources. LEXIS’s supposed initial advantage was that the researcher was no longer tied to the venerable West Digest System for case law access. This freedom, however, has created its own set of problems. Researchers on WESTLAW (using free text and digest searching) or on LEXIS (using free text searching) are not necessarily consulting secondary sources for access to relevant statutes or a line of cases. Beginning researchers training on the databases may miss the secondary sources all together. … Legal researchers are taught to seek quick answers to questions framed as character strings. Modern legal research methodology, the flood of information resources, and the infamous short attention span credited in part to television may be creating an environment where less is more.
Symposium of Law Publishers at 44. Those “legal researchers” back in ‘91 are today’s partners in law firms, which should tell you something about who is leading the charge these days. Now, fast forward fifteen years, and things have only gotten worse. In 2005, research conducted by West Publishing showed “associates are almost completely incapable of book research, unfamiliar with print resources, over-reliant on electronic resources, and arrive on the law firm scene with uneven skills and research capabilities.”
So why has this happened? Or more precisely, how has this happened?
The feast of formats following print and microform—specifically electronic search—have only been about finding facts in a virtual stack of documents. The movement to online search was merely to facilitate real time delivery of updates and allow for easier roll outs of new and undoubtedly more expensive databases for lawyers to consume. The entire online system was designed to give researchers access to information within the four corners of a single document, whether it was a case, statute, rule, or whatever. And the UI design followed suit. What the major publishers did was just slice the secondary content and shove it into their fact-finding, search-box, text-reading UI system. It was, and remains, one of the worst implementations of print to electronic ever attempted. The students, happy to not have to walk the stacks, accepted the compromise.
In other words, don’t blame Google for dumbing down legal research. Westlaw and Lexis were the ones that started to make you stupid; Google just finished it off.
Joe Hodnicki over at the Law Librarian Blog captured this problem quite nicely:
First and foremost, the display of secondary sources in itty-bitty content slices by most legal publishers has created a generation of legal researchers suffering from an online myopia, one that does not ’see’ the conceptual interconnectedness provided by the writers and editors of secondary sources and tools. Flattening of this structure by some next gen online services in an effort to be ‘more like Google’ is only making matters worse. This is not a problem that legal research instruction in online use is capable of solving because research instruction is dependent on the resources available. [¶] Essentially, WEXIS has been and is destroying the value created in their own secondary titles by how they are currently being delivered online. This may have significant consequences that future legal historians will discuss because, if not usable, secondary sources won’t be used.
***
So where do we go from here? I see two options.
The first option would be to convince Thomson Reuters, Reed Elsevier, and other publishers of secondary source material to create a new digital platforms and UIs for reading and researching secondary sources that take into consideration the importance and uniqueness of those titles. As a former designer from W. W. Norton & Co. observed,
[A book has a rhythm,] which remains relevant even as the book moves from paper to pixels. [¶] In order to create this rhythm, the book must be designed and composed for the screen. A beautiful digital text can no more be arrived at by ‘converting’ from a print design than a beautiful print book can be created by converting a Word file. The digital book will never come into its own so long as it is treated as a byproduct, unworthy of attention. [¶] Furthermore, digital books should no more adhere to identical designs than their print counterparts; different types of writing, different voices and tempos, require unique approaches to design. The current crop of ebook formats were designed for the novel, and on that they do a fine job; but countless other texts—cookbooks, technical books, graphic novels, books on art, plays, verse—are rendered unreadable by that conformity. If the form of the book is changing, it ought to lead to more variety, not less.
The challenge is to take print titles and put them at the forefront of electronic legal research. Make them important. Unfortunately, this option seems unlikely, particularly if WestlawNext is the future, which makes Joe’s prediction that thousands of secondary sources will continue to go unused most likely.
The second, and more radical, option is to build on the last frontier for print: the desk. Not your square headed girlfriend or boyfriend that sits on top of it, the actual desk; the thing made of wood. It is the only place left where lawyers will put eyeballs on a printed page before they get sucked into Westlaw, Lexis, or another search vendor. It is the only place where they can keep a physical book at hand. It is the only place they are captive. But to be successful, we are going to need three things: great curators, good design, and fair pricing. And maybe some luck.
Curators
Authors, editors, and other legal writers, who haven’t been gobbled up by the giant publishing machines, are getting harder to come by these days. There are only a few companies left, like mine, that have an entire legal staff solely dedicated to writing books. Some startups like SpindleLaw are trying their hand at managed curation online, a form of crowd sourcing. Carl Malamud, founder of Public.Resource.Org, recently suggested that grants be offered to authors to write treatises in areas where they are needed. Others have suggested that with a good taxonomy we could create content by paying the crowd to put it together one piece at a time wiki-style, another crowd sourcing idea. Still others have suggested that networked blogs can provide the content for us.
Whatever the model or models, the new curators have to know this: writing a desktop treatise or manual is fucking hard. That’s it. This is why I equate writing books to creating software. Writing and coding share similar problems: you have absolutely no idea what you’re going to come across. Such is the nature of the codes and the common law and computers and users. But it can be done. And when you get the right people headed in the right direction, it is an awesome experience.
Design
I speak often about the virtues of good book design when it comes to legal print, particularly with treatises and practice manuals. And I’m not just referring to traditional ideas about design, such as book sizing, paper selection, binding, typography, typesetting, text blocking, and so forth. It’s also about the content creator’s word choices, sentence and paragraph lengths, construction, and taxonomy. There are many moving parts to a well-designed book, but when they all come together you get two things very quickly: meaning and understanding.
There are so many things to talk about when it comes to design, but in the history of working with so many other analytical resources and authors, let me offer an opinion on something I think is fairly basic to desktop book design: secondary source material must be designed in a way that satisfies reader expectations. Many secondary resources have a very loose taxonomy, and authors allow the information to dictate the structure and content. A book’s taxonomy should be built based on the way lawyers practice. When covering the same types of subject matter over many pages, the reader should expect to see a consistent, reliable structure. For example, if you write a subchapter on one type of motion, then the structure of that subchapter should be designed so that 90% of it is replicated for other motions: general information, the motion (who can file, deadlines, form, contents), the opposition (who can oppose, deadlines, form, contents), the hearing, the ruling, the review, etc. This rigid, consistent approach tells the reader they can expect to find answers to the same types of questions for everything else (with deviations based on the subject matter of course). This rule can be extended to just about every aspect of practice, particularly from a multi-jurisdictional viewpoint.
When this rule is violated over and over, however, the reader can’t trust that the product will answer her question or help define it the next time around. When lawyers question the time they will have to put in looking for the answer in a printed secondary source, the author will undoubtedly lose them to search. This philosophy is actually quite hard to put into practice, but pays enormous rewards in terms of research efficiency.
Price
How much to price a book is something that all publishers are sensitive to. Unfortunately, how that pricing gets set seems to have no rational relationship to the actual cost of producing the content, plus author’s royalties, marketing and printing costs, etc. Here’s an anecdote for you.
Big Publisher A (BPa) decides that it wants to compete with Big Publisher B (BPb) in State Z. BPa conducts “extensive” market research to determine that practitioners in State Z really like caution notes and practice tips with their manuals, so they have loaded their new product up with them, even more than BPb’s product. BPb’s similar multi-volume manual sells for $350.00, with annual supplements at $187.00 per year. BPa prices its book at $315.00 per year initially, with annual supplements expected around $150.00 per year. It was determined that the cost of the new product should be about 10% less because “the market supports that price point.” Everyone is silent because the lawyers in the room are dumbfounded by the idea that product content is decided by the marketing department, and pricing is determined by perceptions of market tolerance.
I understand the system, but I’m disgusted by it. There is no fidelity to the ideals Briggs and West held: a genuine debate on how to make the practice of law better. Does anyone even think about how secondary sources once were informed by jurisprudence? For example, the effects of Langdellian legal theory on Williston on Contracts, or Holmesian legal theory on Corbin on Contracts. At some point, publishers forgot this calling, and along the way fair pricing went out the window, with lawyers and clients getting screwed right to the end.
If there is to be a future in print, then publishers should charge a fair amount for a book and customers should expect publishers to make a reasonable, but not excessive, profit off it. As long as we can agree to that, then we can be happy. And the practice (and clients) will be better off for it.
***
In January, graphic designer Michael Johnson was kind enough to respond to Dr. Spengler and the print doomsdayers with a meme of his own. It came in the form of a title to a post he’d written on his agency’s blog, Thought for the week:
In my opinion, the “long goodbye” captures, quite nicely, the relationship between people and print. It has been, after all, a very long affair. And the fact that it took a graphic designer to say it suggests something else about the nature of that relationship: we like a well-designed book.
I would like to extend the goodbye because I see a future for print in the law. I know we will eventually part ways and move to a digital-only environment. Hopefully by then, though, we will have found a way to recreate the rhythm of our books on whatever device we’re holding in our hands.
[Image (cc) Prodromos Sarigianis']
You must log in to post a comment.