E-Book

Legal Treatises in E-book Format

Legal E-treatises (treatises e-books) can be consulted without incurring incremental charges, they can be shared by multiple researchers, and they can be used with the full spectrum of online legal research services. These include the many smaller services in the U.S. (both free and fee) that have in recent years succeeded in securing respectable market or use share with collections of primary authority. While the likes of Fastcase, Casemaker, and Google Scholar don’t have online commentary nor are they the targets of electronic treatise links, they can be used together with electronic treatises published by others.

Yet, unless one also subscribes to the publisher’s online service, the target of an ebook’s citation links, a major feature of the format is rendered valueless. Furthermore, it is not at all clear that, in their present form and pricing, they offer enough of an advantage over print on the one hand or over online access on the other to achieve significant market penetration. So far law publishers have rejected the Amazon pricing model; the current edition of American Law of Zoning costs the same in print and ebook form ($896.00). For subscribers to the online service that already holds a treatise, the only advantages the new format offers are a fixed price and continued usefulness at times when network connections are unavailable. When accessible, the online format provides substantially greater functionality.

To begin, the standard ebook applications are not designed for the type of use that law treatises normally receive. They have instead been optimized for sequential reading, for starting at the beginning of a work and paging through to the end. Ready access to a linked table of contents and the ability to bookmark and to search on individual words or exact phrases provide their only ways to break out of that linearity.

The navigation features standard with online treatises and the, now disappearing, disc publications are markedly superior. Those modes of digital publication remove the barriers resulting from the arbitrary division of printed text into volumes and pages.

Readers are able to scroll as they examine an entire section, crossing page breaks with no loss of concentration. They can click through to content that, in print, resides in another volume.

With ebooks those print boundaries are back. The reader must choose a volume and then flip pages (sometimes back and forth if an important point is arbitrarily bisected). While ebooks accommodate cross-reference and footnote links, standard e-readers deliver the reader to a page, not a point. This is particularly problematic with footnotes. It means that when one touches or clicks on a footnote call one merely ends up on the page where the referenced note appears, having to remember whether it was note 34 or 37 that was the goal. In contrast, all of the major online services deliver the note to which a link has led at the top of the browser screen. One system goes further and highlights the note’s background. Another system places footnote content in a popup window whenever the cursor hovers over the call. All major services enable immediate access throughout to tables of contents that position the current paragraph or section in context. These are not flat tables through which one must page, but scrollable, interactive ones. Chapter headings can be expanded to show subchapters, subchapters to show sections and so on.

Far greater search capability and more useful display of search results also come with the
online environment. The Thomson Reuters ebook software, ProView, still a work in progress, does endeavor to address these shortcomings. In addition to providing reasonable boolean search capability, it places linked to material at the top of the screen and provides a table of contents that is both context sensitive and interactive.

Treatises embedded in the major online services are at once enhanced and diminished by their surroundings. A researcher who does not know of a work or its value may discover it in a set of search results. Those results will place it next to related primary and secondary materials. Once within a treatise the reader may be furnished pathways to related material beyond the author’s footnotes. The online versions of a number of the Thomson Reuters treatises now provide case law links that harness the West Key Number system and cross-reference links to discussion of the same topic in other treatises and practice guides held within the system. On the other hand, the merger of individual treatises into a vast ocean of content, alongside journal articles, practice guides, and directly competing works, ties their value ever more tightly to the database system of which they are a part.

The individual work’s distinct vantage point or analytic framework, even its quality and reputation, are inevitably submerged. Whatever their stature, all treatises sit on the same plain (or within the same results window) as student journal notes, ALR annotations, and legal encyclopedia entries. Indeed, they may fall
below the others in the service’s relevance ranking. WestlawNext does offer a sort by citation frequency but since it treats the company’s encyclopedias as single titles they are ranked ahead of even the most cited treatise.

Imagine, for a moment, an individual or a firm weighing which among major copyright
treatises to acquire for ongoing use. The candidates would include Goldstein on
Copyright, Nimmer on Copyright, and Patry on Copyright, published respectively by
Wolters Kluwer, Matthew Bender (LexisNexis), and Thomson Reuters. All are available
in print form, with regular updates, at a substantial subscription price. All three are also
available online. In that (more useful) form the choice would be heavily, if not
decisively, influenced, would it not, by the comprehensive database employed by the
individual or firm for case law and statutory research. An IP lawyer who uses Westlaw
would need a powerful attachment to the Nimmer treatise (far and away the most cited
treatise of the three) to switch to Lexis, its online home or even to justify acquiring and
maintaining it in print. Were LexisNexis to offer Nimmer as a stand-alone online
product, as Wolters Kluwer offers Golstein on Copyright that might well supplant the
print. Conceivably the publisher’s hope for the ebook version is that it could do the
same. At current pricing and functionality, that seems unlikely. (1)

Notes

1. Martin, Peter W., “Possible Futures for the Legal Treatise in an Environment of Wikis, Blogs, and Myriad Online Primary Law Sources” (2015). Cornell Law Faculty Working Papers. Paper 120.