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Ed Walters love to mention that information and data can be ‘elequent.’ The ideas behind the eloquence is finding innovative ways of collecting, indexing, searching, recalling, and interfacing with the information in a way that captures the attention of the user, and gives them the ability to take action based on that interaction. It might sound like a lot of buzz-words, but when you think about it, the reason we conduct legal research is to obtain a result that allows us to take action, or advise others on what they should do next.

As I was watching Ed Walters retweet a number of messages today on the issue of alternatives to Lexis and Westlaw driving legal information to commodity status, there was a comment from The Raveller (@ravellaw) that caught my attention.  “The trend isn’t commoditization of research, it’s the reinvention of it.”

First off… let’s look at the definition of commoditization:
1:  commodify; specifically:  to render (a good or service) widely available and interchangeable with one provided by another company
2:  to affect (as a brand or a market) by commoditizing goods or services <fierce competition threatened to commoditize prices>

In this case, we tend to think of legal information as the products that our courts, legislatures, and administrative offices produce that guide our society on issues ranging from basic rights and wrongs, to how we conduct business in a uniform way. In the researcher’s world, we tend to think of it as primary law materials.

The comment from The Raveller on reinvention versus commoditization could be interpreted a couple of ways. First, have we already tipped the scale toward primary law being a commodity? Second, does it not matter that the massive primary law pool of information become a commodity in order for other vendors to create inventive ways of presenting the information? Can you get to this second option without first achieving commodity status? I sent a tweet back out to The Reveller and Ed Walters asking.

Ed responded with “Data — esp. primary law — should be (is?) a commodity. Software to make sense of it will be very competitive.”
David Houlihan answered with “Primary law is effectively a commodity. Access was the differentiator, but eroding fast.”

Having just gotten off of an hour and a half phone call on BigData, my brain was buzzing with possibilities of what new technologies, and different approaches to raw information like primary law could bring to the legal research community. We have thought of primary law very linearly for centuries. We are just now coming to grips with the possibilities that a non-linear, even chaotic, approach might unveil the hidden values buried in the raw data, simply because we’d never thought to approach the information that way. Much like technologies have accomplished in the electronic discovery industry.

I think that eventually someone will take the billions of dollars spent on e-discovery technologies and predictive coding, and will turn its focus on massive amounts of information like primary law and discover ways of retrieving actionable information that we never thought possible. Who knows… perhaps there will eventually be products spun out of the NSA that will have commercial use when it comes to primary law? Or, perhaps there is some kid in his or her parent’s garage right now working on the next great process that will take us in a way that no one predicted in 2014. It is very exciting to think about all the possibilities.

So back to my question of reinvention without commodity status. Does commodity status drive invention, or does invention drive commodity status? I think there are arguments for both sides, but I’d say that we’ve probably hit a tipping point where reinvention and the promise of more elequent methods of making primary law into something new and unique and useful in unexpected ways will drive whatever information has not slipped into commodity status into that category very soon.

  • The commoditization of Primary Law is creating a new discipline within the law – that of a " Legal Knowledge Engineer," which Legal Futurist & Law Professor Richard Susskind describes as follows: "When legal service comes to be standardized and computerized, talented lawyers will be required in great numbers to organize and model huge quantities of complex legal materials and processes. The law will need to be analyzed, distilled, and then captured as standard working practices and embodied in computer systems. The result of this might be, for example, an online legal service, or it could be that the law is seamlessly embedded in some broader system or process (see Chapter 5). Developing legal standards and procedures, and organizing and representing legal knowledge in computer systems, is irreducibly a job of legal research and legal analysis. More than this, it is often more intellectually demanding than traditional legal work, largely because it is more taxing to create a system that can solve many problems than to find an answer to a specific issue. It is plainly wrong to imagine, as many conventional lawyers do, that the development of standards and systems is a task that can be handed over to junior lawyers, professional support staff, or even systems analysts. If a modern legal business intends to compete on the strength of its first-rate standards and systems, then it must have first-rate lawyers engaged in building them. These lawyers will be legal knowledge engineers." (See
    Susskind, Richard (2013-01-10). Tomorrow's Lawyers: An Introduction to Your Future (pp. 109-118). Oxford University Press, USA. Kindle Edition.)

    A company like Practical Law comes to mind. Its full time legal staff (recruited from BIGLAW firms) digests massive amounts of Primary Law and complex information and then distills it into practice forms and systems easily useable by lawyers. Hence, I opt for "Commodity status driving invention"…

  • You can follow a good Twitter time line of a friendly debate between David Whelan, Jeffrey Brandt, Ed Walters, and me. Click here for the timeline.

  • A question might be as to whether or not existing major legal publishers, PLC notwithstanding, have the will to take their own core activities to a next stage or leave it to others who see more opportunity,
    I think they may have lost their ability to develop non-commoditized content while not having the vision to exploit the primary sources,

  • The PLC team actually avoided and largely ignored primary sources for most of their time as independents. It was simply not a priority that their user base wanted or needed. Transactional lawyers are very focused, and not on search protocols. The fact that primary sources were becoming freely accessible through valiant teams like BAILII and others was entirely co-incidental; and very welcome. I'm not sure publishers still 'get' the way law firms work now as PSLs, transactional lawyers, litigators, etc differ significantly; and non bear any real relation to the librarian.

    And beware of Suskind on engineers; he's right – they've been around for decades now, but from the cloud he's up on its easy to elide three or more markets where the drivers for these skills are very different. GCs buy very differently from CIOs, law firms are different from software teams, and the standards that stick best are often conferred through usage, not enforced from on high.