Needed: A Repository for Canadian Legal Scholarship

The time is ripe for the creation of an online repository and clearinghouse for Canadian legal scholarship in digital form. There are perhaps 70 Canadian journals publishing articles on or immediately relevant to law, making for a manageable supply of material. And the software and associated technology is readily available for free or at a very low cost. Of course, the labour necessary to construct and manage such a resource is not free, and may be less than readily available; but it seems to me that the major obstacle at the moment is simply the lack of will. Someone — some institution — needs to “pull the trigger” to launch the thing.

And launching would entail beginning the task of persuading authors and journals to submit material to the repository or, at least, to licence the use of a copy obtained otherwise. I don’t mean to imply that this task would be easy. But I believe it could be accomplished. The willingness of authors now to publish drafts or “preprints” via the Social Science Research Network suggests that there is an appetite to make their work available in a professional setting.

It’s hard to judge exactly how much of Canadian legal scholarly output is online at the Legal Scholarship Network within SSRN. Most is submitted by authors from the Faculty of Law at the University of Toronto and Osgoode Hall Law School, York University, two of the top contributors among non-US law schools. There are, however, ten Canadian law schools among the top 100 non-US law school contributors. (Top contributing law schools are divided into “US law schools” and “International law schools”; “foreign” is what’s meant, or, perhaps “non-US”.) But so far as I can see, there are no means of isolating articles by national origin or principal jurisdictional focus from the pool of 100,000 LSN items.

While the availability of some Canadian research in the LSN is an unalloyed good, a repository such as the one I’m advocating would have a broader purpose than that served by the Scholarship Networks. It would aim to develop a catalogued, rationalized and searchable collection, creating the sort of metadata likely to prove useful in the foreseeable, technological future. And, of course, the articles along with their metadata would be made freely available online for use by anyone, according to an appropriate license. Once the repository had current publications under sufficient control, there could be a program to bring into the repository material from the past, akin to that pursued by CanLII with respect to older judgments.

It might be that a project such as this would work best as a cooperative venture among a number of law schools. This would help to spread the cost, of course, and to encourage adoption by scholars in the contributing institutions. Too, it would seem a project likely to appeal to various funding sources — law foundations, governmental research councils and the like.

But these are details, capable of being worked out by someone — some institution — willing to take the plunge.

Comments

  1. Colin Lachance

    Simon,
    I agree completely with your assessment that the time is ripe for the creation and exploitation of such a repository. Outside my day job, I’ve been chipping away part-time since last September at an LL.M. at the University of Ottawa. While I have found open access sources like SSRN, Google Scholar and others extraordinarily useful, I must admit to having spent less time and effort looking in my own back yard in part because of the difficulty of searching Canadian legal scholarly output in an organized and efficient manner. Of course, you can chalk at least part of that to my own deficiencies as a researcher.

    A repository that is open, sophisticated and free to scholars and the public alike would be a wonderful thing. The will of the institutions and authors, and the funding support from as yet unknown benefactors could certainly get things moving. Your article also mentions CanLII as an example of a repository that has incorporated old material (judgments) into current databases. This is very true. For example, over the past two years and thanks to generous funding of Alberta Law Foundation, the tremendous support of the Alberta Courts and the technical prowess of the team at Lexum, CanLII has incorporated an additional 12,000 historical decisions of the Alberta Court of Appeal and the Alberta Court of Queen’s Bench, enabling continuous coverage to the present of decisions of these courts from 1982 and 1971, respectively.

    One time funding grants are and have been extremely important to CanLII over its first decade, as they no doubt would be to any initiative focused on electronic publication of legal scholarship. That is part of the equation; permanent operating funding is the other part. For example, through their law society fees, Canadian lawyers provide the overwhelming majority of CanLII’s annual funding. (Note to non-lawyer CanLII users: if you haven’t already, please hug the nearest lawyer in gratitude!!)

    Simon, since you were so kind as to post on Slaw the announcement of my appointment, I know you are aware of how recently I’ve come on the scene. But even in that short time, the opportunities to enhance CanLII for the benefit users through the incorporation in some manner of secondary materials generally and Canadian legal scholarship in particular have been abundantly clear. In this regard, I cannot claim novelty in the observation as many before and around me have seen the opportunity well before my own dawning realization.
    With your indulgence, I’d like to ask Slaw readers to comment (via this blog or via Twitter @CanLII) on what manner of legal scholarship they want to see and what role if any they see for CanLII. For example:

    -Electronic versions of existing law school reviews/journals or all submitted articles whether published or unpublished?

    -Standalone resource or integrated with existing electronic resources?

    I would also be very interested in thoughts on challenges and how to overcome them.

    Thanks for the opportunity to comment on your thought-provoking post.

    Colin Lachance, CanLII

  2. Michael/Lawviathan

    Hi Mr. Fodden,

    I am a UBC law student with graduation just a few weeks away. I am also a web developer. So, I am the necessary labour to build such a platform and am readily available.

    If you, an institution you know, or someone reading this really is interested in working on this project, please contact me: malexis@gmail.com

    Thank you.

  3. SSRN is ideal for this — it already has a ton of legal scholarship online. How can we encourage Canadian legal scholars and journals to submit their content to SSRN? And what kind of APIs and interfaces are available for third parties to build windows into the legal scholarship warehoused there?

  4. On CanLII’s possible role, I don’t see much point in it trying to be all things to all people. But I would love to see the ability to “note up” cases in scholarship, i.e. to locate articles that talk about cases. It seems to that some of SSRN’s hooks could allow something like this — and that they might be willing to provide more, given how open they have been to this sort of thing.

  5. Tracy Thompson-Przylucki

    Great post Simon. I’d recommend reaching out to your consortia to see if they are interested in developing something collaboratively. We have done so within NELLCO and you can see our Legal Scholarship Repository at lsr.nellco.org. Several Canadian Law Libraries belong to NELLCO and I’d be happy to talk with them about this if they had an interest. NELLCO underwrites a part of the cost of the repository for participating members and the remaining cost is shared by the libraries. I’ll be in Calgary and would have time on Sat. morning to meet with anyone to discuss our efforts on this front.

  6. The idea of a Canadian repository for legal “scholarship” (presumably meaning journal articles and similar works) is something that’s been discussed by many parties at several levels. I know it’s on CanLII’s radar, and both the Council of Canadian Law Deans and the Council of Canadian Academic Law Library Directors are onside; regrettably, no progress has yet been made. I firmly believe CanLII is the right place for this. I disagree that SSRN is a good place for it. SSRN is for individuals, not for collectives, and does not lend itself to the institutional, collective nature of a true research repository. Also, “legal scholarship” does not belong exclusively to the legal academy, and SSRN is not very friendly to non-academic users. Finally, there have been some discouraging signals within SSRN towards more restrictive access to the documents deposited there.

    In my opinion, such a repository can never be realized if input depends on individuals (which is the level at which SSRN operates). It can only ever succeed of there is a collective mandate for an institution’s scholarly output to be deposited in an open, freely-accessible medium. Here in Canada, our record is abysmal: with only a few exceptions, none of our law school law journals is available on the web. Their law school administrators and student editors must be held accountable for this lack of progress. I can happily report that one of the exceptions is my own institution’s law review (Osgoode Hall Law Journal), which is now published open-access, though the archive is not complete and and the website could be better. American law schools have made much greater progress moving their law reviews to open access platforms — but that’s still not the aggregated repository you recommend in your post. The best model — which I believe we in Canada would do well to emulate — is AustLII’s collection of Australasian scholarly law journals.

  7. I looked into this a few years back, and did some conceptual work, fleshing out the idea, exploring possible structures and feature sets in consultation with some other people. I’d be happy to share the results, old as they are.

  8. Gary P. Rodrigues

    Not Needed: Yet another repository for Canadian law journals

    I don’t mean to be a naysayer regarding the proposed creation of an online repository for Canadian legal scholarship in digital form, but it is worth noting that both Lexis Nexis Quicklaw and Carswell West have already done so. More importantly, both companies provide free access to students, law professors and the judiciary, and low cost access to the legal profession through law society libraries and law firms. The National Library also gathers digital copies of law reviews and journals in its Digital Collection.

    There has been no interest in Canada in creating the digital equivalent of the law journal collection on AustLII for the simple reason that there is no need for one. Any proposal to create another one would not survive a realistic cost benefit analysis. There are many other more worthy ventures that should occupy the minds and energies of online visionaries.

  9. Gary is quite right that the commercial publishers maintain databases of Canadian legal scholarship in digital form, and that they make these available to law faculties and law students free of cost. That doesn’t, in my view, do away with the need for a repository such as I’ve described, however. Here are some reasons why it would be desirable to build such a respository despite the databases on Lexis and Westlaw.

    • Least persuasive to many might be the matter of principle: scholarship should not be the possession of commercial enterprises. Larry Lessig makes a related point (more directed at copyright laws that enable this possession) in his talk to CERN on scientific publishing, a video of which is available.
    • Legal scholarship is not just of interest to law faculties and law students. The university studies law from a wide variety of angles, and I suspect (but don’t know) that scholars in history, or economics, or sociology may not have free or easy access to the Lexis and Westlaw databases.
    • Moreover, scholarship is not just of interest to other scholars. Ordinary citizens might, from time to time, want to be able to search Canadian legal scholarship efficiently and read what they find. And let us not forget those un-ordinary citizens, lawyers who wish to stay abreast of an area of law but don’t have a flat rate plan with the commercial databases and who find it financially burdensome to pay for access.
    • Within the academy there are limitations on how some commercially delivered articles can be used. As I recall, Lexis and Westlaw either maintain that they have a copyright in the material they provide or have as a term in their academic license that it be used only in certain ways. The license is generous, I believe, but not so generous as the Creative Commons license I envisage for a repository.
    • And the construction of electronic casebooks, where linking to articles and deep linking to parts of articles should happen smoothly within a student’s browser, is not as easy as it could be with an open access repository.
    • There is some, perhaps, small concern about archival security. I imagine that the commercial publishers take great care to ensure that their databases are backed up six ways to Sunday. Even so, survival of scholarly literature in digital form would be enhanced by having it in a repository that could, and should, be mirrored in a wide variety of universities and other institutional settings.

    Many of these arguments are similar to those that justify the creation and existence of CanLII, and, conceding that scholarship is less central to the rule of law (and perhaps less riveting), persuade me even so that building a repository for Canadian legal scholarship would be a game worth the candle.

  10. Wendy Reynolds

    I wonder if there is an opportunity here to do a “proof of concept”-like project which could index sources that the legal publishers are not currently indexing (like the blogosphere). [I can almost see the eyes rolling].

    It would be unfortunate to duplicate efforts if the audience for the material is already accessing it through existing sources. But there exist no good indexes for the legal writing that goes on in blogs like SLAW, All About Information, Finding Legal Information, and others.

    I suppose the success of such a project would be determined by the willingness of law schools and others to consider a blog post as legal scholarship. Are we there yet?