Fact, Fiction, and Case Citations
The time is approaching for work to begin on the new edition of the Canadian Guide to Legal Citation. The next edition could prove to be a breakthrough edition if the editors choose to end the fiction that print law reports still matter in legal research.
Just as the current edition took a major step forward by elimination of the heretofore sacrosanct, but totally useless period, in legal citation, the editors of the Guide to Canadian Legal Research are able to introduce reality into the practice of citing court decisions by a few simple changes to the recommended Hierarchy of Sources for case law.
The era of the print law report really is over
The purpose of a print law report citation is to enable a reader to access a physical copy of a judgment that has been published in a print law report. That is nice, but why? Except on an occasional basis, case law is almost invariably accessed in digital formats.
Access to print sources is becoming increasingly difficult if not impossible. Law firms have been scaling back their collections for years. In the major law libraries such as the Osgoode Hall Law School at York University, print series of law reports have been banished to the stacks. It is only a question of time before other law libraries follow suit. In the case of the Great Library at Osgoode Hall itself, aesthetics continues to be the primary deterrent in relocating print law reports to the stacks. No one really knows what will take their place and they do look great on the shelves.
Students are not being taught to use print law reports in conducting case law research, and are increasingly unaware of their existence. Many have never even used a print index. This trend will grow as print law reports are banished from the main reading rooms in law libraries. In time, students will not even recognize a print citation.
Students use electronic sources for case law and citation practices should reflect that reality. For that matter, so does the profession at large. Yet the print citation is viewed as mandatory and given priority attention in court documents and secondary treatises. Why? Indeed, why should they be included at all? What is the point of referencing a increasingly inaccessible source?
Fact, Fiction and Law Reports
The most widely stated reason for continuing to reference print law reports sources is a widespread belief among legal researchers that there is some intrinsec value in print law reports that is lacking in electronic sources. Is it really true?
What is this intrinsec value. Some would say that it is that the editors of the law reports provide a curator or selection service for legal researchers by highlighting the important cases. Some believe that production values make a print source qualitatively superior to an electronic source, while still others believe that one print source or the other is vested with superiority by virtue of the endorsement or imprimatur of a law society or bar association.
As a former insider, I would suggest that there is more fiction than fact behind these beliefs.
The curator or case selection function
If one pauses to reflect, the curator role of print law reports is a fiction, but not because of any lack of effort on the part of well qualified and experienced editors. The reality is that a combination of the sheer number of law reports, combined with the staggering number of cases published every year in print, has made the curator function of little or no value. Any case of real merit is buried among hundreds and thousands of less useful cases and marginal cases. The wheat is lost in a mountain of chaff that can only be found by using case citators and academic writings.
In the case of one of the most respected law report series, the key issue that the editors face is in identifying cases to meet the volume requirements of the publisher. The editors of the series categorize judgement by A, B and C. More often than not, there are no A cases to publish, and Bs and Cs are selected so as to ensure that no Parts are missed and no advertising revenue, or subscription revenue, based on the volume and frequency of publication, is lost.
Whether the editors use an alphabetical classifying system or some other case selection process, the same issue arises for every series of law reports with the possible exception of the Supreme Court Reports. Think only of family law where hundreds of cases are reported every year but where the law remains virtually unchanged from year to year. As a consequence, law reports in family law can offer nothing more than an endless array of different fact situations.
Print is qualitatively superior to digital
In the early years of electronic databases, print was unquestionably superior to digital copies of judgments. Judgments were delivered in hardcopy to the publisher where they were reviewed and selected for publication in one or more series of law reports. Headnotes were written. Prior to publication, the publisher checked statute and case references, frequently completing or correcting them to ensure that they conformed to established practices. On the other hand, judgments destined for electronic services were scanned from the same hard copy judgments using comparatively primitive scanning equipment and mounted directly on a database, often without being proofread.
At this point, the opposite is true. Print merely reproduces the digital content. The judgments are received from the courts as an email which are then processed and integrated into a database which in turn becomes the source of the judgments published in the print law report. Cases are selected by editors as before, but the judgments themselves are rarely edited by the publisher. Headnotes come from databases of case summaries. In short, mistakes are more likely to appear in the print rather than the electronic source. If one source must be said to be either authoritative, or superior to the other, it would be the electronic source.
Official and semi official law reports
The notion that one law report series has greater authority because of a loose association with a law society or bar association is one that I have never really understood. Apart from the Supreme Court Reports and the Federal Court Reports, no law reports can truly be said to have official status from the court that issues the judgments.
The law reports classified by The Guide to Legal Citation as semi-official law reporters are in reality commercial publications prepared by legal publishers in the exactly the same manner as any other law report. The only difference is that the publisher has obtained the endorsement of a law society or bar association, usually for the payment of a fee or royalty. It is a marketing device plain and simple and does not in any way warrant the designation semi-official, whatever the term may mean. Good marketing is not the same thing as good law.
The Guide to Legal Citation needs to catch up to reality
The change can easily be made in the next edition. The current text sets out the following Hierarchy of Sources: The Neutral Citation followed by Official Reporter (SCR, FC or Ex CR), followed by Semi-official Reporter followed by Other Sources (electronic services, unofficial reporters, etc.).
All that is required is to reverse the order as follows: Neutral Citation followed by Official Digital Citations, followed by Commercial and Open Access Electronic Services. Print citations should be listed as Optional Sources.
Legal Publishers need to catch up too
Of course, the legal publishers can cut to the chase and get ahead of The Guide to Legal Citation. Citations to electronic sources for the commercial publishers now appear in print publications for their own digital sources together with print citations.
Where it is unavoidable, citations for competing electronic databases are also referenced, i.e. where a judgment specifically refers to a competing electronic source. Ideally, legal publishers should follow the print model and provide all possible correlative electronic citations in every print publication. Without a doubt, the fear of giving a competitor an advantage makes that unlikely in the foreseeable future.
Fear of change will also delay decisions to drop print citations. Academics in particular will worry that their words will look less scholarly and less authoritative if they are not heavily footnoted by print citations. No publisher will want to be first for fear of being criticized by those living in the past. On a transitional basis, print citations could be located in the Table of Cases that usually appears in the preliminary pages of a legal treatise or monograph.
In any event, the endorsement of electronic sources by The Guide to Legal Citation could be the tipping point in addressing this issue and encourage the introduction of reality into legal citations. How about it.