Where Law Books Are Made, Illustrated

“West’s Words, Ho! Law Books by the Million, Plus a Few” 

Green Bag 2d, Vol. 14, No. 3, pp. 301-339, Spring 2011
George Mason Law & Economics Research Paper No. 11-25

ROSS E. DAVIES, George Mason University School of Law, The Green Bag

This essay introduces an interesting but nearly invisible artifact of American law: A promotional pamphlet titled Law Books by the Million: An account of the largest law-book house in the world, the home establishment of The National Reporter System and The American Digest System. It was produced by the West Publishing Company in 1901 and is reprinted in its entirety below at pages 311 to 339 of this issue of the Green Bag. Professor Robert Jarvis has quite rightly bemoaned the meager public information about John West, founder of the West Publishing Company and an important figure in American legal history. A similar, albeit less severe, paucity of information plagues the West Publishing Company itself (now owned by Thomson Reuters). There isn’t much out there about the company’s early years, and what little there is can be strangely difficult to get hold of. For example, the biggest single source of West history – William Marvin’s 1969 book, West Publishing Company: Origin, Growth, Leadership – is out of print, rare, and not available on the Internet. The same goes for The Publications of West Publishing Company and The Romance of Law Reporting: Serving the Bench and Bar, pamphlets published by West in 1901 and 1934 respectively. Law Books by the Million is nearly as hard to find, but at least it is in the library and in the public domain, and therefore susceptible to reproduction here. And it is worth the trouble and expense. Law Books by the Million provides a readable, richly illustrated narrative of the processes West used to create and disseminate its products in the early years (that is, the late 19th and early 20th centuries) of those simultaneously democratizing and costly, mutually reinforcing revolutions in American law: the expansion of the bar and the legal information explosion.

 

Source: LSN Legal Education eJournal Vol. 8 No. 35, 06/13/2011

The supremely expensive Supreme Court Reporter Advance Sheets Service

 

Our friend Carl Malamud just sent out a tweet:

If law librarians remain content to be purchasing agents, law libraries will die. *do* something! talk is easy, action requires effort.

Carl’s tweet arrived while I was reviewing our latest West monthly invoice.  I see that the Supreme Court Reporter advance sheet subscription has jumped up 34% from $ 547 last year to $ 730.69, and that’s with a $ 120.83 “Product Dependency Discount” (whatever that is).  Apparently the full sticker price for this subscription is $ 851.52.

I remember well when professors would sit in the faculty library,  smoke their pipes and read the advance sheets.  But those days are long, long gone.  Arguably SCOTUSblog.com and its wiki have more up-to-date information than the West advance sheets.  And SCOTUS itself does an admirable job of posting opinions.

Isn’t this service really quite obsolete?  If you think otherwise, I would welcome comments posted as we mull over whether or not we will cancel.

John B. West and other non lawyers who have revolutionized legal research

The latest issue of The American Journal of Legal History just landed on my desk.  It includes an article by Robert M. Jarvis, “John B. West:  Founder of the West Publishing Company.”   There are all sorts of fascinating facts about Mr. West in the article, including (and maybe everyone knows this but me) how he called for uniform citation way back in 1908.  From a footnote:

. . . [West] calls attention to the necessary multiplication of citations caused by the different unofficial publication of reports . . . [and] contends that reports of decisions are simply official documents which should be filed in numerical order and cited with reference to their numbers.  Under this system no matter how many decisions or systems of reporting be adopted each case can be readily found and cited by reference to this official number, entirely regardless of the volume and page of the particular publication.

The article details West’s (the man) falling out with West (the company).  “John called for the elimination of unofficial case reporters . . . [and] likewise derided the West digest system . . . ”

In his conclusion to the article, Professor Jarvis remarks:

In thinking about John, two matters particularly stand out.  One is the pure randomness of his life.  If he had not moved to St. Paul and gotten a sales job with D.D. Merrill, he would not have met the lawyers he did and ended up inventing the case reporter and the digest.  It is possible, of course, that someone else might have done these things, but if not, the legal system would have developed along very different lines.

Second, there is the question of how a man who did not go to college, and was untrained in law, was able to devise methods that revolutionized legal research and, by extension, legal practice.  Why was no judge or lawyer able to see what he saw?  Perhaps the answer is that they were not looking, or perhaps it took an outsider to see what the cognoscenti could not.

This question of how a non lawyer can be such a leader in legal research struck me last quarter while we were teaching advanced legal research.  Two of our guest speakers are true revolutionaries in legal research — Carl Malamud from public.resource.org and Tom Bruce from the Cornell Legal Information Institute.   Both men are leading the free law revolution (and if Law.gov takes off, legal research will never be the same), and neither are lawyers.  Or law librarians, for that matter.

Here’s the cite to the article:

Robert M. Jarvis, “John B. West: Founder of the West Publishing Company,” The American Journal of Legal History, Volume L, Number 1, pages 1-22, January 2008-2010 (2010)

Shedding West

There’s been quite a flurry of e-mails on the law librarians listserv with the subject line “West thinks you shouldn’t know your librarian’s name.”    It traces back to a marketing campaign by West which wanted to convey the notion that attorneys need West, and only West, and not librarians. “All it takes is West” was the message. It caused quite a stir, commented about on the Law Librarian’s blog here.  

“All it takes is West” was, perhaps, more or less true MANY years ago, in the dark days of using the digests to find cases.  Today, all it takes is a good librarian to save the organization and its clients tons of money.   We are shedding West publications left and right (mainly because of, in my opinion, outrageous annual price increases), and our patrons (all of whom know our first names) are doing just fine, producing outstanding scholarship and achieving significant clinical victories.

Let me provide an example of an outrageous price increase for a title we are shedding:  Today we received Women and the Law, 2009 Edition, edited by Jane Campbell Moriarty.  It’s a paperback volume accompanied by a invoice for $ 569.75.  The volume starts with reproducing the Lilly Ledbetter Act, and also including some of that act’s legislative history.    The rest of the volume seems to consist mainly of reproductions of articles published elsewhere and readily available to us from a variety of sources.   Handy?, sure.  But worth it?  I’d love to know how that price was set.

Obviously the selection of the content took thought and effort.  And there is also a handy table of cases and what appears to be a fairly detailed index (e.g., looking up “assisted reproduction” led me to “Fetal drug laws” which led me to many topics, including “zona pellucida manipulation” which was not an obvious search phrase to me).  So there is most certainly added value to the compilation.  But  for $ 569.75 ?  I showed to a law professor who researches women’s issues and she said she didn’t need it.   

The previous edition cost us $ 495.00, so the price for the newer edition has gone up by about 15% (the same percentage I need to trim from my budget!).  Now that’s something to get up-in-arms about (not so much the bone-headed marketing campaign, which is really just the left hand of a big corporation not knowing what the right hand is doing).

A Westlaw Tale

Paul recently blogged here about a news headline: “Westlaw rises to legal information fame by selling free information.”  The readers at the Minneapolis/St. Paul City Pages have written in to the paper with a number of comments.  If true, what might be the most interesting comment was written by an alleged longtime employee of West Publishing.  He writes:

“We had a book that just wasn’t selling, and the sales department was going crazy trying to push them out the door. Finally, a suggestion was made to change the cover and make it part of the California practice series. There are a lot of lawyers in California and virtually all of them had this series, which resembled, as I recall, a green encyclopedia. So how could we send all these California lawyers this book that they hadn’t ordered and make them pay for it? Well, normally if you get something that you didn’t order in the mail you can throw it away without paying, but there is an exception if the item is part of a series that you already bought. In that case, the recipient must either pay for the unsolicited item or send it back. In order to keep these attorneys from sending back this expensive book that nobody wanted, a new kind of box was designed with a strange diagonal “zipper.” Once unzipped, the cardboard laid flat with many fold lines and became a real puzzle. Its purpose was simply to be impossible to put back together once the box was opened! After having their secretaries struggle with it for awhile, virtually every attorney in California gave up and decided it was easier to just send a check.”

Don’t give up so easy!

To read all the comments in full, visit the City Pages site.

Westlaw rises to legal publishing fame by selling free information

From the Minneapolis City Pages:  “Westlaw rises to legal publishing fame by selling free information,” by Erin Carlyle.

West makes its money by selling free, public information — specifically, court documents — to lawyers. On this simple model, the company raked in $3.5 billion in revenue last year, placing it on a par, sales-wise, with retail giant Abercrombie and Fitch. But its operating profit margin really impresses: At a whopping 32.1 percent, West outpaces that of tech giants like Google (19.4 percent), Amazon (3.4 percent), and eBay (20.8 percent). Westlaw excels at one simple task: saving lawyers time by making legal information more readily accessible. The company charges a firm of six to ten lawyers as much as $30,000 a year to access its state and federal databases. But since attorneys’ time is worth a lot of money, the service pays for itself. After all, the more work they can do, the more money they can make.

How did it do this?  According to the story, by following these eight rules:

Rule 1: Find a niche with growth potential

Rule 2: Organize information to make it useful

Rule 3: The internet is a distribution channel — not a product

Rule 4: Turn words into math

Rule 5: Separate the signal from the noise

Rule 6: Computers can’t do everything

Rule 7: Treat content like patented material

Rule 8: Print’s not dead, it just needs online help

Rudovsky v. West Publishing Corp. – Judge writes readers were “not informed that some cases cited in earlier volumes had since been reversed or modified.”

An earlier post here, “So Who Does Write Those Expensive Supplements and Updates to Big Name Treatises?, commented upon a lawsuit brought against Thomson West by the authors of one of their treatises.   Yesterday Judge Fullam (United States District Court, Eastern District of Pennsylvania) issued an opinion in the case that is the subject of a story in The Legal Intelligencer, “Judge denies injunction to law professors but seems to back some claims in defamation suit,” by Shannon P. Duffy.”  The story quotes from the judge’s opinion, Rudovsky v. West Publishing Corp.:

“Although plaintiffs had no role in authoring the pocket part, defendant West made it appear that they had indeed authored the pocket part, with aid from members of the publisher’s staff,” Fullam wrote.

“To make matters worse,” Fullam wrote, “the quality of that particular pocket part was not up to standard.”

Fullam found that “few if any relevant court decisions were included in the publication,” and that readers were “not informed that some cases cited in earlier volumes had since been reversed or modified.” ‘

Here’s the full opinion:

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID RUDOVSKY and : CIVIL ACTION
LEONARD SOSNOV

v.

WEST PUBLISHING CORPORATION, :
WEST SERVICES INC., and :
THOMSON LEGAL AND REGULATORY :
INC. t/a THOMSON WEST : NO. 09-cv-00727-JF
MEMORANDUM
Fullam, Sr. J. April 23, 2009

Plaintiffs are well-known law professors who, in 1987, contracted with the defendant West Publishing Corporation to publish a book on Pennsylvania criminal procedure, entitled “Pennsylvania Criminal Procedure: Law, Commentary and Forms.”  They also undertook to provide annual updates (“pocket parts”), and such updates were in fact provided each year until 2007, with the exception of the year 2000, when a second edition of the entire publication was issued.

When the time came for a 2008 update, the parties were unable to agree upon the financial terms pursuant to which plaintiffs would provide the pocket part, and the contractual arrangement between them was terminated.

Defendant nevertheless issued a 2008-2009 pocket part, in December 2008, but that publication was entitled “By David Rudovsky … and … Leonard Sosnov.” Below their names, in smaller print, were added the words “and the publisher’s staff.”

Thus, although plaintiffs had no role in authoring the pocket part, defendant West made it appear that they had indeed authored the pocket part, with aid from members of the publisher’s staff. To make matters worse, the quality of that particular pocket part was not up to standard. Few, if any, relevant court decisions were included in the publication; and the reader was not informed that some cases cited in earlier volumes had since been reversed or modified.’

Plaintiffs thereupon filed this lawsuit, seeking equitable relief as well as damages. By the time of the preliminary injunction hearing, the defendants had taken some further steps to remedy the situation. Eventually, defendants informed their subscribers that the plaintiffs had not had any part in the preparation of the 2008-2009 pocket part, and that the pocket part contained errors and omissions which would be remedied in the subsequent pocket part. Subscribers were also advised, in rather small print, that upon request, they would be given a financial credit against subsequent pocket parts.

The issue now before this Court is whether further interim relief should be ordered.

On the basis of the evidence thus far available, it seems clear that plaintiffs have established a right to some form of remedy — damages to reputation come to mind — but it would seem that the harm has already been done, and that, if plaintiffs do require further injunctive relief in order to complete their remedy, such relief would be just as effective after final hearing.

Plaintiffs argue, for example, that the defendant should be required to disclose more prominently and with greater clarity and emphasis that plaintiffs were not involved in the preparation of the offending pocket part. Plaintiffs also argue that the defendants should be required to extend to all subscribers an offer to refund the cost of the offending pocket part. But I am not persuaded that plaintiffs’ entitlement to this kind of relief is so clear that it would be appropriate to order it preliminarily.

In short, I am inclined to believe that the likelihood of further irreparable harm pending final outcome of this litigation has not been established with sufficient clarity.

I recognize that reasonable minds might well differ as to whether the corrective measures taken by the defendants were adequate. And it may well be that the defendants may, in their own self-interest, decide that further interim corrective measures should be taken, in order to minimize plaintiffs’ claims for damages. But I am not persuaded that the situation is sufficiently clear as to warrant further preliminary injunctive relief. An Order will be entered.

BY THE COURT:
/s/ John P. Fullam
John P. Fullam, Sr. J.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID RUDOVSKY and : CIVIL ACTION
LEONARD SOSNOV
v.

WEST PUBLISHING CORPORATION, :
WEST SERVICES INC., and :
THOMSON LEGAL AND REGULATORY :
INC. t/a THOMSON WEST : NO. 09-cv-00727-JF
ORDER
AND NOW, this 23rd day of April 2009,upon consideration
of plaintiffs’ Motion for Preliminary Injunction, and defendants’
responses, IT IS ORDERED:
That the motion for preliminary injunctive relief is
DENIED.
BY THE COURT:
/s/ John P. Fullam
John P. Fullam, Sr. J.

So Who Does Write Those Expensive Supplements and Updates to Big Name Treatises?

Here’s a story from The Legal Intelligencer, “Law professors seek injunction over ‘sham’ treatise supplement that raises the question:

Law professors seek injunction over ‘sham’ treatise supplement
The Legal Intelligencer

Shannon P. Duffy

April 16, 2009

An ugly dispute has erupted between West Publishing and two law professors who claim they were falsely identified as the authors of an annual supplement to a treatise on Pennsylvania criminal law even though they had nothing to do with writing it.

In a federal lawsuit, professors David Rudovsky of the University of Pennsylvania and Leonard Sosnov of Widener Law School claim that the December 2008 supplement, or “pocket part,” to their book, “Pennsylvania Criminal Procedure — Law, Commentary and Forms,” was so poorly researched that it will harm their reputations if allowed to remain on library shelves.

. . .