[This is the third in a series of articles about the trends, theories, principles and realities that have influenced the redesign of the new library of Osgoode Hall Law School – part of the renovation and rebuilding of the law school currently underway. This instalment is written in response to Eric Appleby’s recent post on “The Future of Headnotes”.
When you walk into an academic law library, the first that meets your eye is row upon row of bookstacks as far as the eye can see, filled with published law reports. It’s an impressive sight; and, in the 21st Century, an anachronism. Fact is, our extensive collections of bound law reports are no longer used. Osgoode’s have been in storage for over a year as the new library is being built, and no one has missed them. Almost all the information contained in printed law reports is now available online. Law firms are already disposing of their collections. The plan for the new Osgoode Hall Law School library and my advice to my colleagues is to “let them go!”
The judgments of our courts are now born digital – written, distributed and stored in electronic format. The printed volumes of published law reports are offshoot of a digital production process; consequently, it is curious that the publication of law reports, simultaneous in both print and online formats, is structured in such a way that the print market subsidizes the online market, despite the fact that the online formats are used almost exclusively. As subscriptions to the print editions of law reports are cancelled, the ever fewer remaining subscribers must bear the cost not only of printing and binding the published reports, but of editorial and other production costs. As more subscribers cancel, subscription costs go up and up (as much as 20% annually in some recent years) to protect publishers’ revenues. Most series of law reports now carry annual subscription costs in the thousands of dollars. It’s considerably more expensive for a small firm to subscribe to a series of print law reports than to subscribe to Quicklaw or Westlaw Canada.
One reason some law firms continue to subscribe to print reporters is for photocopying, out of fear that online formats will not be accepted by a court or especially because they need to document page-specific references. If the imaged PDFs of law reports were available online for printing, I wonder how many libraries would continue to subscribe to print. Though Canada Law Book provides PDFs of its law reports on the BestCase service, other publishers are holding back. Carswell continues not to make imaged PDFs a printing option on Westlaw Canada, as it is for all West reporters on Westlaw; they say it is too expensive an undertaking in the small Canadian market – even though the PDFs are available to print subscribers and Westlaw Australia, serving an even smaller market, has made PDFs of its law reports available.
Rather than embrace digital formats as a chance to re-invent and revitalize law reporting, publishers go to extremes to protect existing revenues from a declining print subscriber base. The Canadian market already offers proportionately more series of law reports than any other country. On top of this, as print subscriptions have declined, publishers have doubled and then redoubled the number of cases reported and the number of volumes published in those reporters. I was surprised to read in Eric Appleby’s recent post that fully 70% of judgments received from the courts are selected for reporting in Maritime Law Books’ print reporters; I would be interested to know what the proportion is for Ontario judgments and the Ontario Reports. The Dominion Law Reports now comprise fully 10 volumes per year (while England gets by with five slim annual volumes in The Law Reports). With so many cases to analyze and digest, publishers (some more than others) have attempted to control their costs by standardizing and minimizing the headnotes and other critical apparatus provided in their reports; in other words, more equals less.
Is there any value in the fact that a case has been reported? Someone from Quicklaw once told me that an absurd proportion of the Ontario cases viewed and/or printed from Quicklaw (more than 80%?) were from the “reported” Ontario Reports (ORs) database, the remainder from the “unreported” Ontario Judgments (OJs) database. Of these latter cases, the majority of cases were recent and ultimately reported in the ORs. Obviously, there is a reason a case is reported or not – and subsequent reference bears that out.
Is there a future for law reports? The Canadian market can no longer support the number of law reporters and the volume of cases being reported in print. If General Motors can cease production of half its marques, then our publishers can easily eliminate some of the reporters published and the cases reported in them. Then, print must be put to rest and online must be the official version of record, as is now the case with law journals. All case identifiers, references and citations must be vendor-neutral, in order to eliminate any systemic dependency on print. The selection of cases for reporting should be more restrictive and probably, as in England, delegated to an independent council of law reporting. Possibly, our rules of procedure should be revised to restrict references to reported cases only. And I believe that, now more than ever, we need professionally-written, quality headnotes with extensive critical apparatus (including a topical numbering system) for all “reported” cases. A mechanism for delivering these reported cases to the profession might look like Canada Law Book’s CaseAlerts service, with distribution by email, blog, RSS or tweet, customizable by the end user by jurisdiction and/or topic. Such a model would serve the needs of individual current awareness as well as provide researchers with value-added tools for discovery and evaluation of relevant law and precedent.
Law reporting has always served three purposes: to bring significant new decisions to the profession’s attention (the “current awareness” function); to build and preserve a record of precedent for the common law (the “precedent” function); and to facilitate researching case law precedent (the “research” function). All of these functions are best served by quality, selective law reporting in a digital environment. Freed from the burden of collecting, authenticating and preserving judgments, our libraries can concentrate their increasingly straitened resources on assisting researchers to access legal information rather than warehousing unused print volumes and risking becoming irrelevant. For more on this, I would refer you to a recent, thought-provoking lecture by John Palfrey, Director of the Harvard Law Library, on “The Path of Legal Information”, presented on the occasion of his appointment as Henry N. Ess III Professor of Law at Harvard Law School.
In the new Osgoode library, our extensive collections of law reports (some 20,000 linear feet, almost four miles of shelving) will either be sent to a collaborative offsite storage facility, put into compact mobile shelving in the library’s basement, or transferred to the rare book room. We are currently deciding whether we shouldn’t cancel our subscriptions and stop collecting law reports in print. (Harvard no longer collects law reports in print.) When you come into the rebuilt Osgoode library from the new Gowlings Hall, you will walk straight into the Harris-Taylor Reading Room, with windows on one side, group study rooms on the other, and direct access to the information desk and reference librarians. You will see no law reports; if you’re looking for them, you will naturally go online.