Over the years I heard from librarians that case law publishing should be regulated. I heard from lawyers who suggested that governments should publish case law reports. I heard a chief justice in Saskatchewan complain about the duplicate publication of judgments of the Supreme Court of Canada.
In the 1970s decisions of the Supreme Court of Canada were published by the Government of Canada in the Supreme Court Reports but many times it took up to two years for a case to be published. In response to a need for the timely publication of Supreme Court of Canada cases our firm, Maritime Law Book Ltd., commenced publication of the National Reporter in 1974 and it became our best seller. The National Reporter published Supreme Court of Canada cases in approximately two months compared to the two year delay by the Supreme Court Reports. Today all decisions are published immediately on the Internet and the issue of timeliness has been overtaken by the technology and speed of the Internet.
Today the free availability of judicial decisions from multiple sources has also overtaken any complaint that the same decision is available in several series of law reports.
As to the suggestion that case law publishing should be regulated, there is not much left to be regulated. Print subscriptions to case law series have been decimated by the free publishing of decisions by governments on servers on the Internet.
Today when a judicial decision is made available on a government server the decision is published, that is, the decision is made public. So governments are now publishing judicial decisions, but mostly without any summaries or headnotes.
The creation of indexes, summaries and headnotes is today the main business of case law publishing, for either a print or an electronic product, and is done mostly by the private sector. Such enhancements save time and money for the researcher.
In the pre-Internet era, it was the private sector that created the needed jurisdictional and topical law reports. The success of these products confirms their need and their timely usefulness. Maritime Law Book created several series of reports for the Atlantic provinces and for the Prairie provinces. At Carswells Gary Rodriques was responsible for creating their topical and other reporters. In the 1970s and 1980s there were many trial and appeal decisions that were not published anywhere. For example, the Ontario Appeal Cases, which commenced publication in 1984, was the only series that included all the decisions of the Ontario Divisional Court. When the New Brunswick Reports (2d) commenced publication in 1969 virtually no New Brunswick cases, trial or appeal, were published anywhere.
Thanks to government servers and the Internet, judicial decisions are now available immediately to all at all times – free!
Thanks for this short piece. It gives a very interesting glimpse into a previous stage in the evolution of legal publishing. There is too few of this sort of material on this blog. As most if not all of the people gravitating around this blog, I have a good deal of respect for the work which is done by those preparing the printed reports (To such a point that in a previous post, I even compared this art to the Kobe beef industry).
This said I cannot do otherwise than to think that the time of the printed law reports is coming to an end. I am careful here, being involved in internet publishing, I do not want to appear looking forward for the disappearance of printed reports by narrow commercial interest. However, as many others, I think that printed reference books, the books that we don't read for one cover to the other, will soon be replaced by digital products. I don't have any science to support that but I believe that most of the law reports in Canada will disappear in the years to come.
I guess that Eric's ambiguous final sentence means that he shares this view. Then, what will happen? Where the art will be going? Will it disappear? I do not know. I like to believe that those who master the edition of legal cases will continue to be in high demand by the companies that sell case law. The trade does not depend on the choice of media, a good abstract stays useful in a computerized system. Human editors will remain central in the production of commercial products. What can threaten this field of occupation though is the constant progress of search engines, machine produced abstracts and the other similar developments of the information technologies.
Today everybody (or a very large majority of users) do their legal research with digital tools; the exception being the consultation of treatise and secondary material not available online. This phenomenon, the general adoption of the digital media, is the other main factor which will provoke the extinction of printed law reports. Printed law reports are going down not only for the abundance of free stuff, but more generally for the triumph of the electronic stuff.
Very interesting overview indeed. For a bit more of a glimpse into the past, I present the words of lawyer Robert Dick propounding on the powers of micro fiche to cure the ills of caselaw (un)reportage by commercial interests. From \Micro Fiche Reasons for Judgement\, published in the Advocate, 1979 vol. 37: 525-526:
\[S]ociety at large and the profession in particular should not have to depend upon the decisions of publishers, based upon commercial factors[...]. It would be preferable to have an index and digest and the full text of all Reasons for Judgment of each County Court, the Supreme Court and the Court of Appeal in British Columbia made available to each practicioner. This could be accomplished by the publication of such Reasons for Judgment on micro-fiche cards [...]
If each decision is digested and indexed at the time of its pronouncement then the porfession is no longer dependent upon any publisher's view of what is commercially saleable [...]
It has been suggested that the capability of computer law, when it comes available, will not include the full text of the Reasons for Judgment but rather will include only a digest or \keyword\ synopsis of the case. [...] It is submitted that the marriage of the B.C. Unreported Decision Service to the micro-fiche publication of the full text Reasons for Judgment of each Court would constitute the ideal legal reporting service in this Province.\