Will Old Law Reports Ever Die?

From the earliest days of online legal research, the death of the traditional law report in print was predicted. Online access to cases would make print unnecessary. In the paperless world that was imminent, there would be no need for the traditional law report. Storage problems for sets of law report series would be eliminated and the cost of searching cases would be greatly reduced.

That was the vision for online legal research in 1973 when Lexis Nexis and Quicklaw pioneered in offering commercial online access to case law. It was going to be just a matter of time before the last law report would be published in print, or so we were told in the late 70’s, and again in the 80 ‘s and 90’s. Several times over three decades, I actually believed the end was at hand, as the number of paying subscribers for print law reports tumbled with each economic downturn.

To cover costs and make up for lost revenue, legal publishers increased the prices for their remaining customers. More bound volumes were published every year to maintain revenue and costs were reduced by the elimination of paper parts. Much to the surprise of the legal publishers, enough customers continued to subscribe to maintain profit margins.

As a result, here we are in 2008 and the list of the law reports series published in print is virtually identical to the list as it was in the 70’s. At the same time, online has become the primary means of searching case law and every case now reported in print is available online.

How can this be?

One little known fact is that the development of online legal research in Canada actually coincided with a dramatic expansion of the number of published print law report series. Maritime Law Book took the lead beginning with the New Brunswick Reports in 1969. Over the next decade, the company published a law report series for every Canadian jurisdiction. In the same decade, the Carswell Company launched more than a dozen series of topical law reports, covering virtually every area of legal practice.

Online research gained a foothold in the Canadian market and became economically viable only after the legal publishers licensed their content to Quicklaw and made their print law report series available online. Print law reports made online search credible and helped gain acceptance for online research among lawyers who were trained in legal research using print sources.

Clearly print law reports continue to meet a specific need of the legal profession that online does not. What is it?

Law reports have always provided access to the full text of court decisions with headnotes, with key word indexing and with statutes and cases judicially considered.

Online services now do the same and they do it faster than ever before and for many more cases than were ever reported in print. In addition, the storage problems for print collections of law reports have been eliminated. In many instances, the cost of an annual subscription for access to all cases in an a major online services compares favourably to the annual cost of a single law report series in print. In short, online is doing all that it was expected to do.

What is it missing?

What online services have failed to do is to provide a credible filter for identifying cases relevant to the practice of law. When a case is published in print, it is assumed that the case adds something new to the development of the law. When a case goes online, it is just another case.

On line services have become vast archives of cases. Year after year, tens of thousands of cases of little or no value are added to databases making it increasingly difficult to find a case of any use to a lawyer or legal researcher. While almost all of the cases have summaries attached, no real effort is made to separate the wheat from the chaff. The result is too much irrelevant information.

Law reports, by contrast, are selective. Experienced editors review thousands of cases and publish only those that add something to the development of the law. For this reason, the legal profession knows that a case reported in print is more useful than one that is simply made available online.

Is the death of print at hand?

We are now at the beginning of another major economic downturn. Another round of print cancellations is expected as lawyers and law firms tighten their belts. As before, legal publishers will increase prices yet again to compensate for lost subscription revenue.

Many of the existing law report series are of marginal utility and have just enough subscribers to keep them afloat. With this downturn, we can expect that some of these series will be terminated. By way of making a dignified exit, some legal publishers will make electronic versions of their law reports available to subscribers at the same time as they cancel print. Being proactive rather than reactive in migrating print law reports to an electronic only format with the same expert selection and value added content as the print may be the best way to ensure a future for the law reports that have formed an integral part of legal research for generations.

Will old law report series ever die? It really depends what you understand a traditional law report to be. If you see it as simply a publication whose essence is that it is cases published in a print format, then yes law reports will die and reasonably soon. If you see law reports as something more, a collection of cases carefully selected by someone who can appreciate their significance to legal practice, with all of the accompanying value added content, then the answer is no.

Sooner or later, however, old law reports in print, like old soldiers, really will fade away, while the law reports themselves may live forever.

Comments

  1. Even though electronic commercial offerings were, and still are, far more efficient than print in terms of information retrieval and convenience, print had one advantage: books – you buy; QL, LN and the others – you rent. When buying books, people were under the impression (probably right) that they were building informational assets. Once you have purchased a book, you can consult it as many times you want without someone getting back to you asking you for more money than what you initially paid.

    As far as commercial electronic services are concerned, no matter how much you have spent and over how many years, when you decide to walk away, you walk away with nothing… But things are changing again, so let’s wait and see…

  2. In my use of Canlii, I don’t find the “chaff” to be a big problem. Recent cases that don’t develop the law are often useful simply to point to the leading cases that did develop the law.

    Although Canlii doesn’t go back as far as the fee services, the “cited by X cases” in search results helps point out the important cases.

    It’s also not much effort to follow a few blogs and information services like Lexology to get an idea of what cases are being identified as important by practitioners.

  3. Gary, thank you for posting this. For some time now I have been concerned about the demise of the print law report — not because of the print format, but because decisions that make it into print law reports are those that someone has looked at thoughtfully and decided are important. It is a point I make in every legal research orientation that we do here. Writing not only as a law firm librarian but as current Chair of the TALL Publisher Liaison Committee, I believe it is important to convey to publishers that although we may not be able to justify keeping print on our shelves, we do not want this to mean that selectivity disappears. Those of us who were around when Quicklaw was introduced in the major law firms were thrilled as it made our research faster and easier and all but eliminated one of the banes of our existence — the unreported case. What we find now is exactly what you have said — each researcher has had to become his or her own editorial board each time they log on.

    I hope that publishers monitor what is posted on SLAW and will understand that as much as many of us have found it necessary to cut our print subscriptions, there is still a market for selective law reporting. We still want and need some kind of signposts as to which cases are important. These signposts used to be multiple citations in print law reports, but in my view, a similar model needs to be developed for online law reports, where cases are chosen and highlighted by a respected editorial board, to help us serve our clients in the most cost-effective manner possible.

  4. A similar selection function could be achieved in large databases by ranking cases based on citations by other cases and in the literature, and also by tracking user behaviours, such as search terms used, and items downloaded. In conjunction with expert selection, this might produce better results. I know in studies of librarians, expert cataloguers have been shown to be inconsistent in the application of descriptors and the classification of materials, and I suspect legal experts would be subject to the same realities of human variability. I think these variables are best overcome by getting more inputs.

  5. At Maritime Law Book we have selectively reported decisions in print and online for a long time. And our Key Number System is a time saver for the researcher.

    A vote of thanks to Gary R. for interesting blog. Gary may not be right that print law reports will fade away.

  6. Gary, welcome to Slaw. Your first post is a very interesting one. I guess the big question is whether legal researchers will appreciate and value a selected collection, whether online or not. Do new legal researchers even know this is available to them?

    Michael, your idea of tracking user behaviour works for items that have a history. But what about new materials? It is still helpful to have a human intermediary to evaluate it.

  7. From Zacharias v Leys 2005 BCCA 560, per Southin JA

    [33] There are two aspects of this litigation I find troubling.

    [34] The first is the learned trial judge’s approach to the issue of liability. The appellants have not asserted any error in that approach, but I would not wish it thought that by this judgment I accept it.

    [35] Before the practice developed of posting all judgments of the court below on the internet and thereby saving them for posterity, I would not have considered it necessary to express such a caveat, as the reasons for judgment below would have disappeared into obscurity.

    Apropos chaff and one consequence of online databases publication of everything that is sent by the courts to the publishers.

  8. I agree that the Law Reports are unlikely to disappear, as you would lose the quality and authority elements that has already been discussed. Essentially, by a case being published in a report it is being classified as an advancement in the law by an expert relevant to the domain. I’m not convinced general legal editors for online services would not approach and add value a general pool of caselaw in the most beneficial way.