THE HYPERLAW REPORT
March 6, 1996
WEST’S AMERICANISM CAMPAIGN: CAUSES AND EFFECT:
"YOU WANT TO HAVE A DEBATE GET MR. OPPERMAN AND LORD THOMSON UP HERE TO DEBATE
CITATIONS."
THE AMERICAN LAWYER'S 1983 ARTICLE “INSIDE THE WEST EMPIRE. ”-- WHY WEST WENT
MAD.
*************************************************************
I. WEST’S AMERICANISM CAMPAIGN: CAUSES AND EFFECT
THE CAUSES:
On October 19, 1994, West Publishing Company, placed a full-page advertisement
in the Washington Post (page A-19) and other major newspapers. This was the
day that Jamie Love's Tax Payers Assets Project held a meeting to discuss that
most un-American of subjects, “public domain citations.” This was but one
example of a West public realtions campaign to head off public domain citaitons
and court publication of opinions.
The West Advertisement entitled “Trick or Treat” was accompanied by a cartoon
of shadowy business types with trick or treat bags. The advertisement was
signed: “A MESSAGE FROM AMERICAN-OWNED WEST PUBLISHING COMPANY AND ITS 6,000
EMPLOYEES”
Here is the text of the article:
“Today, a handful of legal publishers are meeting to try to persuade the
Department of Justice to spend millions of taxpayers’ dollars to create an
‘official’ electronic public domain legal citation systems and legal
information database. But, if they get their treat, the trick will be on you
-- the American taxpayer.
“The member of this masquerade call themselves “public-interest” advocates.
But who’s kidding whom? They desperately want to drag big government into the
legal publishing industry to artificially tilt the market in their direction --
and drive out one of their competitors, the employee-owned West Publishing
Company.
“Here’s the really scary part. If these “trick or treaters” get what they
want, thousands of Americans may find themselves thrown out of work by the very
tax dollars they put to the federal government.
“If successful, this collusion would wreak havoc in a now healthy and
competitive industry of more than 175 providers of more than 700 different
caselaw sources -- a greater than 350 percent increase in product choices in
the last two years. Clearly, the private sector is already meeting the
public’s need for legal information.
“A government-controlled legal citation system and database will also create
horrors in the legal community, by eliminating the innovation and choice
provided by free enterprise.
“There’s only one response to this ghoulish trick on the American taxpayer --
bag it.”
That was the advertisement. Was it sent to all federal judges? ... Only the
shadow knows. But, what happens when this kind of stuff does get sent around.
Well, here is the type of effect one might get.
EFFECT:
The following comments were made by The Honorable Norman W. Black, Chief Judge,
United States District Court, Southern District of Texas, at the American
Association of Law Libraries annual convention panel “Judicial Information
Policy” held Monday morning, July 18, 1995 at the Pittsburgh Convention Center.
This is what Chief Judge Black said:
“The real battle is between West and what I understand is the American
Association of Legal Publishers -- I notice that it is not the Association of
American Legal Publishers. You want to have a debate get Mr. Opperman and Lord
Thomson up here to debate citations.”
That was an interesting idea at the time, Judge Black! The tape recording of
this session (C2) may be obtained from: Mobiltape Company, Inc., 905-295-0504
Interestingly, another Texas federal court, the Northern District of Texas,
according to a February 16, 1996 report in the New York Times Internet edition,
is considering placing it opinions on a Internet FTP site to be hosted by SMU
Law School. Like almost all of the 94 federal district courts, the Northern
and Southern Districts of Texas do not make electronic versions of their
opinions available electronically [whether West still gets them electronically
we do not know.]
West is the only publisher, in its Federal Supplement and Federal Rules
Decisions, of all federal district court opinions in print form. Because of
the West monopoly of federal district court citations, it is the only CD-ROM
publisher with the court sanctioned Federal Supplement citation (the West
license to Lexis prohibits Lexis from using the internal page citations on
CD-ROMs.) West, therefore, would be the only CD-ROM publisher that could meet
a bid from, say, the United States Department of Justice or the Administrative
Office of United States Courts, to provide CD-ROMs of federal court opinions
with the Federal Supplement citation.
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II. “INSIDE THE WEST EMPIRE.”
THE AMERICAN LAWYER 1983 ARTICLE RE WEST AND THE DEPARTMENT OF JUSTICE
We just re-read the October 1983 American Lawyer article on West Publishing
Company “INSIDE THE WEST EMPIRE.” We are not sure that it is available in
on-line databases; for sure, it has been ignored by journalists and others who
have written about West the past two years.
Despite its thirteen year vintage, like good red wine, the article is still
robust and flavorful.
After this article appeared, West apparently pulled all of its advertisements
from American Lawyer publications. Except for one New York Times article a few
years later, there resulted a virtual news blackout on coverage of West until
1994 when the Wired article and another American Lawyer article appeared.
What was it exactly that caused West to become so outraged with the American
Lawyer in 1983 that it resulted in a decade long West boycott of American
Lawyer? What was the hottest button? Here are a couple of extracts showing
what West may have wanted to bury for good:
“‘No one else tries to report all judicial opinions,’ says Arnold Ginnow,
editor in chief of West’s reporters and supplements. ‘We’re the only one to
attempt being comprehensive.’ Lawyers Co-op, for example, prints only the court
decisions it deems to be significant. West, on the other hand, makes no
selective editorial decisions and prints all of the 200 to 600 judicial
opinions it receive in the mail each day. (The grand total for 1982 came to
more than 56,000 state and federal opinions.)”
* * *
“In a letter, West invites all new judges to become ‘contributing editors’ to
its publications by sending in their opinions. In return, West offers judges
free copies of some of its publications ...”
* * *
“‘We don’t edit the language or delete anything,’ say Ginow. “We don’t alter
the punctuation. If a judge like semi-colons, that’s fine too.’”
* * *
“If a judge sends West an opinion West prints it. ‘It’s strictly a matter of
judgment on the judge’s part,’ says Ginnow. ‘West does not decide what [it
will] publish.’”
And the United States Department of Justice (DOJ) ... the article describes a
1976 LEXIS anti-trust action against West. The action was later dropped by
LEXIS -- in part the article suggests because LEXIS would have had to seek
testimony from federal judges. In the article DOJ is described as being an
active participant in anti-competitive activities which hurt LEXIS, revolving
partly around the government’s 1974 funding of the transfer of West books to
electronic versions. DOJ has been West territory ever since.
The article also discussed other matters involving the history of West, the
competition from LEXIS, and the ownership of West.
But what was it that West did not want to have bandied about in the legal
press? Well, we think some of what is excerpted above. Post-Feist, we can see
why West is happy that the 1983 American Lawyer article does not show up in
database searches and that it was able to shut the legal press down for over
ten years from stirring up these facts.
Assuming DOJ approves the merger of West and Thomson (we prefer the words
merger ... because, West may very well turn out to be the dominant partner), we
wonder how many years will go by again until legal publications funded by
advertising revenues will start poking around again in anything that would
upset the mega-advertising power ofWest/Thomson.
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Alan D. Sugarman Federal Appeals on Disc tm CD-ROM ::
President Opinions of US Courts of Appeals ::
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