[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.

  • I appreciate the opportunity to have a dialog on this issue. My rebuttal is simple: (1) My post represented my opinions, not those of my chapter, association or anyone else and (2) the phrase "unfair business practices" concerns me. It does not seem to me to be well-defined. As such, it will still be subject to the whims of those using the term at any given time. If this phrase is referring only to something that a person feels to be unfair, than I'm afraid I must refer the reader back to my original post. However, If this phrase is referring to alleged acts of collusion, there are legal remedies available. I'm still not sure this caucus is necessary, especially in neutral circumstances. Most vendors who specialize in selling their products to the Legal Community have advisory boards made up of Librarians. As someone who has sat on one of these boards, they take the feedback they receive very seriously. I remain unconvinced of the need for this caucus.

  • The proposed caucus could certainly make defining "unfair business practices" one of its first orders of business. Or more properly, one of its first recommendations to its members and AALL members. Quite franky, I think AALL's board, as a whole, has been too timid on this issue over the past few years.
    Put aside Mr. Hodnicki's well-intentioned but sometimes inflammatory commentary–that does not lessen the need for such a forum.

  • Mark,

    I regret any unforeseen implication that your view reflects any other party's. I rather meant to acknowledge your admirable record of service.

    Again, I represent just my own views of the Caucus. I have not had time to see if my views reflect the views of Caucus members.

    I am puzzled about your comment on "unfair business practices." Perhaps I should have been clearer. The phrase has specific definition and application under Section 5 of the FTC Act (at 15 U.S.C. §45(4)(A)) and under state laws, such as California's (at Cal. Bus. & Prof. §17200 and §17500, and Cal. Civil §1770(a)(1)-(23)).

    So, of course, "legal remedies" are available, if by "legal remedies" you mean lawsuits. The Caucus proposes to identify all types of government remedies that the nature and scale of anti-consumer practices warrant, including preventive remedies that strengthen consumer protections. The former FTC Guides on the Law Book Industry represent an example of a preventive remedy, whether or not we would agree on its adequacy.

    Advisory boards of legal publishers serve useful purposes, including the "feedback" you mention. But I doubt that you would expect these advisory boards to address the concerns that we are raising.

    AALL members can have reasonable disagreements about the need for our Caucus. But should AALL's leadership reverse itself on letting us proceed just because our purpose has lately been discovered to have a "negative tone" and to affect "policy actions"? We now have over 60 AALL members who believe that our concerns have strong basis in fact and importance to our profession. We want AALL as our ally, and we want an opportunity for fuller participation in AALL that the Caucus provides. Even if you dispute the need for our Caucus, would you also dispute our claim for AALL recognition just because other AALL members object to our purpose as "negative" in tone or as policy-oriented? At any rate, AALL recognition would allow us to present a fuller record of evidence on the need for our undertaking, even though available evidence convinces over 60 of us that we need to pursue our purpose with AALL's recognition. Our undertaking represents something of an experiment, but that tendency does not detract from its value.

    Michael Ginsborg

  • Mark Estes

    While I see value in the proposed caucus (I attended the organizational meeting in Philadelphia) the proposed purpose is far too narrow:

    “The AALL Caucus on Consumer Advocacy will recommend to AALL that it petition appropriate governmental bodies for specific remedies to anticompetitive and unfair business practices by legal information sellers.”

    Namely that purpose requires the caucus to dissolve once it recommended that AALL petition appropriate government bodies.

    The purpose suggested by AALL President Darcy Kirk:

    “The purpose of the Caucus on Consumer Advocacy is to provide a forum for AALL members to exchange ideas and information regarding the legal information industry and to represent its members’ interest and concerns within AALL.”

    Is broader and encompasses “petition.”

    I encourage everyone interested in the consumer advocacy caucus to drop the petition, accept the broader suggested purpose and move on to discussing multiple ways that we can address the challenges we face.

  • The word "petition" is important to me for many reasons, but I am nothing if not reasonable. Would one consider this, er, mashup? (Or is it a mish-mash? 🙂

    “The AALL Caucus on Consumer Advocacy will provide an open forum for AALL members to exchange ideas and information regarding the legal information industry, represent AALL members’ legal information consumer interests to AALL, and make recommendations to AALL leadership to petition appropriate governmental bodies for specific remedies to anticompetitive and unfair business practices by legal information sellers.”