Have Law Libraries Found Opportunities To Save Money Due To Soaring Costs of Print Legal Subscriptions?

An Addendum To Michael Ginsborg’s Forthcoming Article, “Raising Hell To Protect Consumers of Legal Publication” (August 6, 2010) Do Thomson's Library Maintenance Agreements save most qualified libraries more money than they cost? No one knows. Consider what Kendall Svengalis says in his Legal Information Buyer's Guide and Reference Manual (2010): "the longer a library falls under the terms of an LMA, the more divorced it will become from the real costs of the products to which it subscribes, and the true nature of the savings achieved." As a result, Lorelei A. Broskey, director of the Lehigh County Law Library in Pennsylvania, describes a “Hobson’s choice” she faces when deciding whether to renew an LMA: I am stuck with a sort of Hobson's Choice of continuing the LMA to control the total percent increase, OR dumping the LMA and knowing MY costs of the individual products, but being unable to predict the increases to my government funding body in this time of short funds and difficult budget negotiations simply makes me want to walk away from the entire job and let someone else have the stress. (http://listproc.ucdavis.edu/ archives/law-lib/law-lib.log1007/0079.html) If we could track increases in LMA costs among individual libraries over time, the varieties of LMA terms may complicate, or preclude, comparison with increases in “retail” costs for the same titles during the same period. At any rate, as Rutgers Law Librarian John Joergensen observes, confidentiality clauses “completely change the situation and eliminates the ability of ALL potential buyers to make intelligent choices.” (http://listproc.ucdavis.edu/archives/law-lib/ law-lib.log1007/0083.html) Collections have contracted much faster than preference for online formats can explain, even where it has been cheaper to cancel seldom-used publications, and instead use "out-ofcontract" equivalents on Westlaw and Lexis. Besides, "there are still all manner of wacky licensing and bundling schemes out there" for online subscriptions, as Alan Cohen reports in his September 3, 2009, American Lawyer article, "Law Librarians: 'No More Sacred Cows'." (http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202433539782) Because these contracts usually have non-disclosure clauses, we can not know whether online subscriptions have achieved significant savings for most contracting libraries. Online contracts may have redirected previous costs from canceled print subscriptions, while adding new costs from "wacky" terms. In "A Survey of Electronic Research Alternatives to Lexis and Westlaw in Law Firms," Laura K. Justiss recently found evidence that increasing use of "competitively priced" alternatives represents a "flattening of the online legal research marketplace." (http://papers.ssrn.com/ sol3/papers.cfm?abstract_id=1649471) She also found widespread use of flat-rate contracts for Westlaw and Lexis, at least among large law-firm libraries. But Justiss did not try to show

that firm libraries have achieved savings through these contracts, regardless of firm size. Furthermore, she did not try to show that firm libraries have spent less on Westlaw and Lexis by using “alternative” services, such as online BNA subscriptions. And she did not try to show that firm libraries have achieved overall savings in spending on online legal publication, even if they may have moderated the rate of online spending increases. If large firm libraries save money on flat-rate contracts for Westlaw or Lexis, they may do so at cost to smaller firm libraries. Of the Survey’s 167 respondents, 69% work for firms with more than 125 attorneys. Among these firms, "Lexis and particularly Westlaw remain the dominant players." Most Survey participants said that their firms have flat-rate contracts with Lexis or Westlaw, or both - a result that appears to reflect disproportionate response by librarians of large firms. Non-disclosure clauses may have prevented Justiss from considering the number and types of databases the contracts cover. But given their volumes of use, large firms appear more likely than smaller ones to have flat-rate contracts, and to enjoy flat-rate coverage of more treatises and other secondary sources. Smaller firms may tend to pay steep, undiscounted prices for secondary sources, even where they have flat-rate or “discount-rate” contracts, because their contracts have narrower coverage of these sources. If the facts support these claims, then smaller firms typically pay more for secondary sources on Westlaw and Lexis than large firms, and thus help subsidize whatever savings large firms achieve with flat-rate contracts. Moreover, “topical BNA newsletters and reporters” ranked highest for use among Survey respondents in the most expensive category of legal research - "secondary sources for topical research, periodicals, etc." Do online BNA subscriptions help BNA’s library subscribers of any firm size - save money from reduced use of Westlaw or Lexis? Probably not. BNA Libraries include the newsletters and reporters, and provide unique, integrated treatments of their respective areas of law. Westaw and Lexis do not have comparable research systems. Even where BNA, Westlaw and Lexis have individual publications that sustain (rough) comparisons, one comparable publication does not serve as a substitute for another. So, notwithstanding preferences, environmental practitioners may sometimes use any or all of the following: (1) the biweekly, Westlaw Journal Environmental http://west.thomson.com/productdetail/125119/ 40213517/productdetail.aspx); (2) a Lexis monthly, Mealey’s Pollution Liability Report (http:/ /www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?&prodId=41086); or (3) BNA’s biweekly, Environment Reporter (http://www.bna.com/products/ens/ercr.htm). In fact, growing use of “Wexis” alternatives may have increased a firm library’s overall spending on online legal publication. According to the 2010 Survey of AmLaw 200 firm librarians, 55% of respondents reported an increase of at least 5% in 2009 spending on alternatives to Westlaw, Lexis and Bloomberg Law. (http://www.law.com/jsp/tal/ PubArticleTAL.jsp?id=1202462829220) But the 2009 and 2010 Surveys also show that spending on Westlaw and Lexis services increased, if modestly, between 2008 and 2009. Of course, as long as database vendors continue to require non-disclosure provisions in licensing agreements, we can not resolve uncertainty about whether alternative providers bring savings to

all types of law libraries, of all sizes.

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