[Guest Post – Michael Ginsborg]

Mark Gediman questions the need for an AALL Caucus on Consumer Advocacy. His comments deserve a prompt reply as we circulate our petition to gain AALL recognition. I have not had time to confirm that my reply represents the view of Caucus members. I also write with much more haste than I prefer. So I represent just my own view of the Caucus, even though I am also its chair.

Mark is President of the Southern California Association of Law Libraries (SCALL). I admire Mark for his record of leadership and his service to SCALL and the profession. I therefore find myself disappointed over his reaction to the Caucus. He appears to misunderstand our purpose. I hope that these clarifications will prove helpful.

First, in our relations with legal information sellers (LIS), Mark appears to think that we have a Hobson’s choice: we can be LIS partners or LIS adversaries. But why should we characterize our business relationships as if this charged dichotomy applies? We can instead let the facts provide any neutral characterization that we need. What are the facts? As consumers, our parent institutions buy legal information products and services with a reasonable expectation. They expect that sellers will not engage in unfair business practices, and will not use such practices to stifle competition, because such conduct, on a large scale, would significantly harm all consumers and competitors, whether directly or indirectly. The Caucus presents a sample of unfair and anti-competitive business practices in the legal information industry. We also describe some of the harmful consequences to law libraries. I am not aware that the Caucus regards any seller as a partner or as an adversary. We support sellers who engage in fair, competitive business. Some of them are our members. In fact,  we welcome participation by all sellers who are AALL members, and not just because we value transparency and inclusiveness for their own sake. Over the long-term, we hope that our transparency and inclusiveness will positively influence sellers whose business practices harm consumers. That hope may sound naive. But reformers tend to harbor hopes that, at the outset, sound naive (or worse) to their critics.

Second, while I admire Mark for his advocacy on behalf of his employer, consumers have shared interests that exemplary individual efforts like his can not advance. The Caucus proposes a simple purpose that AALL’s leadership had provisionally approved before reversing itself.  We want to recommend to AALL that it petition government entities to remedy large-scale, anti-consumer conduct in the industry. Of course, the Caucus does not propose substituting a government petition for doing what Mark rightly understands to be his job. We rather believe that legal information consumers have shared interests; that they incur significant, shared harms from anti-consumer practices; and that they deserve the full protections of consumer, copyright, and antitrust law.

Third, AALL members can reasonably disagree about whether our Caucus would answer the needs of our profession. Over 50 Caucus members believe it would. The available evidence shows that our concerns have not just a rational basis, but importance for the sustainability of our profession. The Caucus seeks to develop a robust factual record to prepare its recommendation to AALL. Mark is right that no Caucus has undertaken a comparable purpose. Industry circumstances warrant the new approach that our Caucus represents. Besides, we have important precedents. In 1969, AALL member Raymond Taylor wrote a seminal article on consumer advocacy – Law Book Consumers Need Protection, 55 A.B.A. J. 553 (1969).  His article ultimately led to the adoption of FTC Guides for the Law Book Industry. His example inspired Ken Svengalis, Joe Stephens, Jack Montgomery, and other AALL members in the 1980s and 1990s to build on his legacy.

Finally, I regret the impression Mark attributes to the Caucus or its supporters – that we insist on being right – when our fallibility should be as obvious as human nature. We just want the opportunity, as an AALL Caucus, to test our fallibility against the evidence and its implications for legal information consumers.