After law libraries as we know them first began appearing in the mid-19th century, they looked and operated with little change for nearly 150 years. Then came the 1990s. Since then, public and private law libraries have undergone a revolution that the profession is still trying to understand. What does the future hold for law libraries? How will their collections and users continue to change? The last few years have seen many law libraries close their doors amid budgetary bloodlettings. How can the law library as an institution survive?
As you saw in Chapter 1, prices for law-related publications have exploded in recent years. Expect that trend to continue, especially as more and more libraries cancel their print subscriptions in the face of budget stagnation or outright cuts. Consolidation among legal publishers has created the Big Three (see Chapter 1), and while consolidation ensures some revenue growth, that growth will not keep pace with print cancellations. At some point, the Big Three must consider silencing the presses on some of their oldest but least-used print titles, such as digests and case reporters (West), Shepard’s Citations (Lexis), and Common Clearing House looseleaf services (WoltersKluwer). Treatises and practice guides, however, especially those focused on one jurisdiction or covering an emerging area of law, will continue to be published and used in print format.
One way that West has tried to help libraries manage costs is through library maintenance agreements, which guarantee a limit on price increases in exchange for the library’s promise to maintain its subscriptions. The idea is a good one, though most librarians have been dissatisfied with West’s implementation.1 Expect other publishers to perfect this idea or to develop their own contractual innovations.
As publishers retrench on print materials, they are going ahead full tilt on electronic ones. Lexis, West, Hein, and other vendors are deepening their mainstream databases, and they are also creating new products such as WestlawNext and Lexis Advance. These new interfaces use Google-like technology to make searching easier. Vendors are also creating apps for cell phones, tablets, and other mobile devices (see Chapter 6), which are always becoming more widespread and sophisticated.
Like commercial vendors, university law journals are also taking advantage of the economies of electronic publication. More than 400 full-text journals are available through the ABA Free Full-Text Online Law Review/Journal Search (www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/free_journal_search.html), which has an oafish name but sweet functionality. Powered by Google, the site searches the articles on all the member journal websites. The online articles would include only those published in the last few years, so for older issues, you would still need Westlaw, LexisNexis, or HeinOnline. However, the database is growing fast: Between 2010 and 2012, it went from 350 journals to over 400.2
Arguments over print versus electronic publication of law journals have grown more heated in recent years thanks to the Durham Statement, a 2009 manifesto written at Duke University in Durham, North Carolina. The statement called for law schools to provide access to their journals in “stable, open, digital formats” and to stop publishing them in print.3 This second demand set off a controversy within the law librarian community. Its proponents complain that hard-copy journals are expensive to print, mail, buy, and store. New issues are already digitized on Westlaw, LexisNexis, and HeinOnline, so why keep printing them? Detractors point to the word “stable” in the manifesto, arguing that no other format is as stable as print.
To me, stability is not those detractors’ real gripe. Their real gripe is the death of print, which is ironic. Law librarians routinely chuckle at living-in-the-past attorneys who insist on keeping print reporters and digests. Yet here is a subset of the librarians doing the same with a secondary source, one that is not superior in print format. For now, the print enthusiasts win because the legal field isn’t ready for a major law journal to suspend physical production. Eventually, though, one of them will take this step. Ironically, it will most likely be one—Harvard, Yale, Columbia, Duke, etc.—that does not need the cost savings. Its motive will be to start a trend, and in the copycat world of law schools, that is what will happen. Within a decade, most of the other journals will have followed its lead.
Attorneys will always need law journals for reflection and analysis. But for news on legal developments—a role once played by law journals—they are turning to noncommercial outlets such as blogs (see Chapter 9 for blog finding aids). The so-called open law movement has also given us more providers of free primary sources. FindLaw and LexisOne (now LexisNexis Communities) were among the first, and they had their limitations: FindLaw had no search engine and didn’t include any federal district cases, while LexisOne went back only 10 years for all jurisdictions except the U.S. Supreme Court. Newer sites include Public Library of Law (www.plol.org), Justia (www.justia.com), and Google Scholar (www.scholar.google.com).
A latecomer to the legal industry, Google has immediately become a major player due to its trademark search engine, which West and Lexis have emulated with WestlawNext and Lexis Advance. It has already squeezed out one competitor, AltLaw.org. “While we could see [Google] as the 800-pound gorilla stomping on our pet project,” read a farewell message on the AltLaw homepage, “the truth is that we—a small academic group within Columbia Law School—were never really equipped to handle the challenges of building and maintaining a state-of-the-art search engine.” Look for Google to expand its coverage until it rivals PLOL, Justia, and other free providers.
In fact, look for more free providers as part of an expansion of the open law movement. Carl Malamud, founder of Public. Resource.Org (see Chapter 6), isn’t going away. In addition to digitizing the Federal Reporter, his foundation is working with numerous federal and state agencies on digitization and accesss projects. In a 2010 interview with Library Journal, he says “[a]ccess to the law in particular in the United States is a $10 billion a year industry, and it’s a very inequitable system in which government lawyers and solo practitioners and a lot of different groups don’t have the same access to the legal materials that those who are more well heeled have.”4
That is not true, of course. Most government lawyers and solo practitioners subscribe to Westlaw, LexisNexis, Fastcase, or one of the other alternatives. The coverage is smaller than that of large firms, but the small entities are not lacking government information—cases, statutes, and regulations. Even the scantiest subscriptions include these. What they are missing are secondary sources—encyclopedias, treatises, journals, magazines, newspapers, newsletters, and other commercial publications. These are what you pay for when you pay for Wexis.
You also pay for easy access. Malamud calls access to knowledge “a universal human right,” going on to say that “[o]ur copyright laws are clear that works of the federal government shall be public domain.”5 Well, yeah. Westlaw and LexisNexis do nothing to alter information’s public domain-ness. If an attorney wanted to, on her own, obtain every opinion from every American court every day of her career, organizing and storing the opinions in a way to make retrieval efficient, she would be free to do so. Or she can pay for this service, and do what she does best—represent clients—and leave the storage and retrieval to the specialists.
To me, information is the universal human right, not knowledge. Information is cloth; knowledge is clothing. One becomes the other through desire and hard work, which are not mandates. To make knowledge is to make meaning, and there is nothing universal about that: Each person’s meaning is sui generis. The materials, the information, are and should be free, but how many of us can make meaning from them? We pay others to assemble all sorts of consumer goods, so I don’t see the antidemocracy of paying others to organize information.
Still, the open law movement is here to stay, and I see it growing, especially with librarian support. Joe Hodnicki, editor of the invaluable Law Librarian Blog (see Chapter 9), wrote a series of companionable articles on the open law movement in 2009–2010, which are available on the Future of Law Libraries wiki (www.cyber.law.harvard.edu/futurelawlib/Main_Page) along with other suggested readings.
I teach freshman English at a college part-time. As part of my students’ library orientation, I have them do a scavenger hunt. One of the questions is to tell me which pages of David Remnick’s book Lenin’s Tomb discuss Ronald Reagan. Easy, right? Just find the book in the stacks and look up Reagan in the index.
One student tried a different approach, one which I suppose was more natural to him. He called me over to the computer where he was sitting, pointed to the question, and said he wasn’t sure how to find the answer. I saw he had typed into Google what pages discuss ronald reagan in lenin’s tomb by david remnick.
Across America, 19-year-olds are making plans for law school, and when they get out in 2021 or so, who knows what the internet will make possible? However, they will still need print research skills because some things, a lot of things, will not exist electronically. Ebooks have flourished in the last few years, but it would take forever to digitize all the monographs back to the invention of the printing press. At my first law firm, an attorney asked me to find Theodore Roosevelt’s senior thesis at Harvard, which I got a Harvard librarian to copy and fax to me. There is no guarantee that document will ever be digitized.
Similarly, many U.S. Congressional documents are online, but many more are not. The gap seems to be from 1969, when the U.S. Serial Set ceased publication, to the beginning of the World Wide Web in the mid-1990s. It was a crucial time period—the Vietnam War came to a close, Title VII was amended, and major environmental, immigration, and energy bills were passed—and its documents are frequently cited. Currently, the only way to get them is hard copy. Other resources that may never see the light of a scanner are:
Librarians know the everything-is-online mentality to be a Google-fueled fiction. So do older attorneys, who shake their heads at the young associates’ digital overreliance. “When I am researching in the library,” writes Scott Stolley, a partner in a Dallas, Texas, firm, “I feel as lonely as the Maytag repairman.”7 Stolley describes his policy of requiring associates who research for him to begin with books, a burden I saw in the eyes of summer law clerks who trudged into my office to ask for help because so-and-so “won’t let me use Westlaw.”
Of course, Luddites like Stolley will be gone someday, leaving the fate of law libraries in the hands of the Google generation. Some have already closed from lack of use. In 2008, Justice Sharon Lee of the Tennessee Supreme Court defended the decision to shutter three court libraries by saying, “We were not getting our money’s worth out of it at all. Most of our research is online now.”8 In 2007, county commissioners in Miami voted to end the funding for the county’s 70-year-old public law library.9 Three years later, Indiana law librarian Zoya Golban turned off the lights and locked the doors at the Marion County Law Library for the last time.10 Patrons thereafter would have to use the county library, which agreed to take a portion of the law library’s collection. That same year, law libraries in the Connecticut towns of Milford, Willimantic, and Norwich were boarded up.11
One of the low points of my career was presiding over the closing of the Mecklenburg County Law & Government Library (MCL&GL) in Charlotte, North Carolina. MCL&GL had its roots in the Charlotte Law Library, a private membership library begun in the 1930s. Membership law libraries date back to the Law Library Company of Philadelphia, begun in 1802. Attorneys bought ownership in the collection at $20 per share, which enabled them to use the collection and “socialize with other prestigious members of the company.”12 The Charlotte Law Library had a similar structure. Members owned the collection and were the only ones with access to it.
But Charlotte, a growing city, needed a public law library, and by 1990, the attorney members needed help with the rising costs of library operation. Both goals were accomplished with a unique partnership between the law library and the Public Library of Charlotte & Mecklenburg County (PLCMC). The members would continue to own and pay for the collection, while the public library would provide full-time staff members, computer support, and other administrative needs. The renamed Mecklenburg County Law & Government Library would relocate to an unused county building and, in exchange for paying no rent, allow public access 9–5 on weekdays. Member access would be 24/7 and controlled by electronic key cards given to each member. Members would also retain their borrowing privileges.13
The arrangement worked well for the next 13 years, but by 2002, MCL&GL was in dire financial straits. One reason was the usurious publisher price increases (see Chapter 1). Another was that many lawyers had canceled their memberships, preferring to use Westlaw or LexisNexis. PLCMC considered a plan to buy the collection, contributing $25,000 to its upkeep for each of 4 years before taking it over in the fifth year, but this arrangement proved unworkable.14 In 2003, PLCMC withdrew its support, leaving the law library a shell of itself.
It did not close, however. In 2005, I became its director, and I tried everything to save it—brochures, promotions, cost-cutting, membership discounts, publicity events. I begged for county and state funds, wrote grant applications, and asked every agency in Charlotte about a possible partnership. No one came forward to help. Finally, the board of directors sold the 22,000-plus volumes to the new Charlotte School of Law. After selling the collection and laying off the staff—me and two part-timers—the board dissolved itself with a letter to the North Carolina Secretary of State. That was the end of an 80-year institution.
Law firm libraries have suffered from shrinkage as well. In 1995, Baker & McKenzie, one of the world’s largest law firms, made headlines by firing the 10-person staff in its Chicago headquarters library. The firm reasoned that outsourcing its collection maintenance to a law library vendor (see Chapter 4) would be cheaper. Plus, with Westlaw and LexisNexis at every attorney’s fingertips, who needed professional researchers?15 Four years later, it was déjà vu all over again as Pillsbury Madison & Sutro, a San Francisco firm, hired an independent contractor to handle its library operations. In 2003, the Fortune 500 company I worked for laid me off as the opening act of its law department library demolition. I ended up at a law firm whose spacious, skyline-view library (or so it was sometimes described) had been chopped and stuffed into an area half as big.
How can law libraries survive? They must adapt, something they are loath, yet well-suited, to do. Library services are an “open system,” in the jargon of systems theory. “In other words,” according to the scholar Michael Buckland, “activities that take place in the provision and use of library services are not isolated from the rest of the world.”16 Buckland goes on to say that
[a]n important property of systems is their ability to respond to changes, to adapt themselves to their environments, and to maintain sufficient stability to survive. The characteristics of library services in this regard seem contradictory. Library services are generally regarded as being weak on the features needed for adaptation and stability—feedback on what is happening in library use is generally weak, incomplete, or lacking; the goals of library services are usually vague; library services are often criticized for being rather unresponsive; and librarians have little or no control over the environment. On the other hand, library services do exhibit some of the characteristics of systems that are adaptable: library services may have serious problems but rarely dramatic crises; and the popular stereotypic image of libraries is as safe, suitable places for timid persons to work rather than adventurous, action-oriented “change agents.” Even more significantly, library services do, in fact, survive. In other words, there is a paradox: library services do not appear to have the usual characteristics of adaptability, but they do share the crucial feature of adaptive systems—survival.17
In other words, law libraries must open themselves further. Historically, law libraries have focused on building collections, not doing outreach or creating innovative services. But innovation has become the watchword in legal research. Firms have embraced the digital world, but law schools still require students to use print materials for some projects. Public law libraries may provide access to legal databases, but most offer no training on how to use them. It would be a simple matter to hold one free public seminar per month on electronic legal research. Small firm attorneys would show up in droves, as would pro se litigants.
There is more to innovation, however, than a few seminars. Law libraries must reinvent their services.18 For example, by partnering with state bar associations, libraries can host events such as North Carolina’s 4ALL Statewide Service Day, when volunteer lawyers give free advice to anyone who calls.19 The Clark County (WA) Law Library found new revenue sources by selling form packets, booklets, and notary services, while the Collin County (TX) Law Library began using the inmate commissary fund to support the jail library.20 In Madison, Wisconsin, the Dane County Law Library transformed itself into the Dane County Legal Resource Center, collaborating with the county bar, small claims court, and other organizations to “meet user needs through the most useful resources and assistance.”21
Law firm librarians need to innovate as well, starting with the way they are viewed. Librarians of old “took up the profession because they loved learning and they wanted to be of service to the common good. The work that went on in the library supported the firm’s needs but often the work was done answering today’s needs without thought to tomorrow.”22 Today’s professionals must look at the library as a business-within-a-business. We are a service business, with strategic plans, revenue projections (see Chapter 8), and measures for success. The chief measure is customer satisfaction. “When we lost control of the mystery,” writes one librarian, referring to patrons’ ability to conduct their own research using the internet, “we became vulnerable to the classic problem of service entities: the customer does not always understand quality service or what is required to provide quality service.”23 For law firm librarians, this means constantly educating attorneys, paralegals, and other staff not just on the library’s holdings, print and electronic, but on the capabilities of the library staff. Without this campaign, librarians “are in danger of being the next strike-through on a CFO’s balance sheet.”24
The good news is this: Law librarians are survivors. For generations, we have stayed vital to the profession, and as the practice of law changes, we innovate along with it. Yes, the headlines blare with law library closings, but not every institution is headed for shrinkage. In 2005, a major law firm in my city moved to a new building, where it constructed a larger library with more books. Law schools have expanded their libraries in recent years, and in 2013, in Houston, Texas, a new $600,000 county law library was opened, complete with a coffee bar, computer kiosks, and free legal services sponsored by the Houston Bar Association.25
Twelve years have passed since my first day at the library of Haynsworth Sinkler Boyd, and despite the struggles I have seen and been a part of, I have no regrets. Not one. The law is fascinating, and as a librarian, I stand at the t-junction of its past and future, ready to walk down any corridor to help my patrons. Sometimes I wonder what becomes of them. Do they get their expunctions, settle their custody arrangements, or win their lawsuits? Did Dan receive what he wanted from the North Carolina Right of Way Division? I guess I’ll never know. All I can hope is that, if things didn’t work out, he will come back to the library. I found a few North Carolina Law Review articles he will want to peruse.
1. John P. Joergensen, “Deal or No Deal? Are LMAs Really in the Best Interest of law Librarians?” AALL Spectrum 15, no. 5 (March 2011): 13, 17.
2. Richard A. Danner, Kelly Leong, and Wayne V. Miller, “The Durham Statement Two Years Later: Open Access in the Law School Journal Environment,” Law Library Journal 103, no. 1 (2011): 39–54.
3. Ibid.
4. Debbie Rabina, “Public Information for All: An Interview with Carl Malamud,” Library Journal, November 1, 2010, accessed November 29, 2012, www.libraryjournal.com:80/lj/communitycopyrightfairuse/887221-420/public_information_for_all_an.html.csp.
5. Ibid.
6. A main source of law-related microfiche is the Law Library Microform Consortium. See www.llmc.com.
7. Scott Stolley, “Corruption of Legal Research,” For The Defense 39 (April 2004): 40.
8. Hillary Baker, “Battling the Economic Bully: How Tough Times Are Affecting Law Libraries, and How You Can Fight Back,” AALL Spectrum 13, no. 8 (June 2009): 15.
9. Calvin Godfrey, “Law Library Checks Out,” Miami New Times, October 18, 2007, accessed November 29, 2012, www.miaminewtimes.com/2007-10-18/news/law-library-checks-out.
10. Francesca Jarosz, “Budget Cuts Force Law Library to Close,” Indianapolis Star, January 2, 2010, accessed November 29, 2012, tinyurl.com/ccaxxvq.
11. Christian Nolan, “April Comes, and 3 Conn. Law Libraries Close,” Connecticut Law Tribune, February 24, 2013, accessed April 5, 2010, tinyurl.com/d4d8mhe.
12. Deborah S. Panella, Basics of Law Librarianship (Binghamton, NY: Haworth Press, 1991), 2.
13. This arrangement is detailed in a Memorandum of Understanding dated December 6, 1990 between PLCMC and MCL&GL.
14. Michele Wayman, “Funding Crunch May Imperil Public Law Library; Drop in Memberships by Lawyers Puts Burden on City-County System,” Charlotte Observer, September 22, 2002.
15. Apparently, Baker & McKenzie did, hiring a new library staff within 2 years.
16. Michael Buckland, Library Services in Theory and Context, 2nd ed. (Berkeley, CA: SunSITE, 1999), accessed November 29, 2012, sunsite.berkeley.edu/Literature/Library/Services/index.html.
17. Ibid.
18. Baker, “Battling the Economic Bully,” 15.
19. Russell Rawlings, “4ALL Statewide Service Day Record-Setting Success,” NCBA News, March 4, 2011, accessed November 29, 2012, www.ncbar.org/about/communications/news/2011-news-articles/4all-statewide-service-day-record-setting-success.aspx.
20. Paula Seeger, “Finding Hope in Funding Shortfalls,” AALL Spectrum 12, no. 6 (April 2008): 22–25.
21. Ibid.
22. “The Future of Law Firm Libraries,” Strategic Librarian, (blog), July 22, 2007, accessed November 29, 2012, www.strategiclibrarian.com/2007/07/22/the-future-of-law-firm-libraries.
23. Kay Moller Todd, “Law Firm Libraries in the 21st Century,” AALL Spectrum 10, no. 9 (July 2006): 12.
24. Ibid.
25. Mike Morris, “County Law Library Gets New Look, Amenities,” Houston Chronicle, November 26, 2012, accessed February 25, 2013, www.chron.com/news/houston-texas/houston/article/County-law-library-gets-new-look-amenities-4065719.php.