There has been much discussion on SLAW on the state of print case law reporters in the age of online judgments (click here for some of these posts).
For other research I am conducting, I obtained a photocopy of an article by Paul Perell (now a judge) from 1991 in the Legal Research Update quarterly newsletter (circa 1986 to 1996, RIP) called "Selecting Cases for the Ontario Reports." In that article, (the now Mr. Justice) Perell lists out the six criteria for case selection as suggested by a Butterworths editor in England:
A case will be reported if:
- it makes new law by dealing with a novel situation or by extending the application of existing principles
- it includes a modern judicial restatement of existing principles
- it clarifies condlicting decisions of lower courts
- it interprets legislation likely to have a wide application
- it interprets a commonly-found clause, for example, in a contract or will
- it clarifies an important point of practice or procedure.
Perell sums up these criteria by stating "that if a case is to be reported, then it must be important or significant beyond the resolution of the dispute between the immediate parties."
Are these criteria still applied by editors of print case law reporters? I found Perell's insights interesting on how potential cases were distributed to the subject experts and classified from "A" to "D" with "A" being "must be reported" to "D" being "should not be reported (with the editors challenge then being what to do with the "B"s and "C"s).
I love this quote by Perell of R.M. Willes Chitty in a 1924 letter to the editor of the Canadian Bar Review complaining about the proliferation of case law reporters:
Somebody must take the initiative in quelling this riot of printed cases that is being showered on the lawyer from every angle. Its results are deplorable. The Bar of Canada is steadily giving up the practice of reading the case-law of Canada because they do not know where to begin, and when they have begun they find they do not know where to end.
I may pursue with colleagues whether we could get copyright clearance to digitize the set of the Legal Research Update. The article I got a copy of happened to have the Table of Content to that issue (December 1991), which contained among other things, the following intriguing content:
- "Computerized Legal Data Bases: The Thrill is Gone" by Eric Gertner (I need to know: which databases? Which thrills? Where did the thrills go?)
- "Computer Searching Will Become More Important than Manual Searching" – Ken Chasse (Will SLAW posts appear to be old-fashioned 20 years from now?)
- Minutes from both the Legal Research Network (LRN) meeting of 17 May 1991 and of the CBA-BC Legal Research Section – I would love to know what was on their plate in 1991 (I joined the LRN in what must have been their last year or so in the mid 90's).
It's not a well-kept secret that, in contemporary Canadian published law reports, the rule is "quantity over quality". I think the problem started years ago when Quicklaw began to include unreported cases in its databases. Since we'd never had so many cases available to us in Canada before, and enchanted by this ebarrassement de richesses, we embraced the concept of "quantity" before we were overwhelmed by the volume and before the consequences could be addressed in our court rules (as they have been in the States). Then, for good measure, as a not-well-considered response to the online challenge, the Canadian Abridgment began to include digests (or increasingly-abbreviated squibbs, really) of unreported cases — not to mention the ACWS and WCB (where the digesting is fuller and more consistent). And what better way to validate all these cases than by reporting more of them in our increasingly less selective (and costlier) law reports? Quarterly paper parts became monthly, monthly became weekly, until we've reached the point where we now really must question (as Ted has) — if there are criteria for reporting cases, is anyone applying them? What is the value in "reporting" a case if the case itself has no objective value? Have our publishers compromised the value of law reporting by opting for volume over selection? I firmly believe there is real value in "reporting" cases; but how do we realize and communicate the value of selectively "reporting" cases in a digital environment?
I would add a seventh item to the list of criteria for case reporting in print:
There are relatively few A cases. Law reports are priced on a per volume basis and a certain number need to be published in every quarter and in every year in order for any publisher of law reports to meet its revenue targets. Revenue targets in turn must be met if a law report series is to continue to be published. There is no mystery to it. This can only be done by publishing what are thought to be B and C cases.
This is no surprise to the legal practitioner who frequently has a very different opinion as to whether or not a case is worth publishing. Topical law reports exists because of the demand for cases that the editors of jurisdictional law reports believed to be C or even D cases.
Comprehensive online reporting of cases should by now have made it unnecessary to quote long dead curmudgeons on the subject of the proliferation of case reporting, except possibly from the perspective of comic relief. They were wrong.
New mechanisms are needed to identify cases of relatively greater value to the legal profession. The fact that a case was reported in a print series just doesn't cut it anymore. In his comment, Louis Mirando raises the question as to just how that should be done. It is the question that needs to be addressed as the crutch of whether or not a case was reported in print passes into history.