Column

Reality Check

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.

Retweet information »

Comments

  1. Great column on a subject close to my heart.
    I’d love to hear some feedback from lawyers and law librarians about the extent to which they refer to citations to print reporters. CLEBC style is to use the neutral citation in the text, but include all parallel cites in the table of cases. Increasingly we wonder whether tracking down all those parallel cites is worth it. Any thoughts?

  2. I would still vastly prefer a print citation to a proprietary commercial electronic database citation. It would be a shame to force researchers to subscribe to Carswell and Lexis just to be able to identify a case when a citation to a print source could allow one to find it in the library (if it is not available for free online).

  3. Susannah Tredwell

    Susan, this is just my view, but as long as the text includes the neutral citation, I don’t see the need for parallel citations. The one value that they have is signalling that someone thought the case was interesting or important enough to include in a law report.

  4. That’s interesting … does your courthouse library not subscribe to Lexis and West? I know that the British Columbia courthouse library does so.

  5. Thanks, Susannah; that’s helpful. (Note the simultaneous posting from downtown Vancouver!)

  6. in some cases the neutral cites aren’t the official.

  7. In addition to the point I made earlier, you will note that neither West nor Lexis (let alone CanLII) can look up each other’s citations with anything approaching a reliable level of accuracy, whereas if you have a print citation you can usually find a case in both databases. Rather than end a research session in Lexis and open one in West just to pull a single case that I only have a proprietary reference for, I would prefer a citation to a print reporter that will work in both (as well as CanLII) even if I don’t have any print reporters and subscribe to both West and Lexis.

    To prioritize citations to commercial databases over print reporters would be an unwarranted gift to the commercial publishers and would certainly be a hindrance to using CanLII as a citator as it continues to add historical sources and parallel citations.

  8. I prefer to use the neutral citation if one exists, however there is a vast body of law for which neutral citation does not exist. These items are housed in print law reporters and the print law reporters are the source that commercial databases of case law derived from.

    The original organizational structure of finding tools like the Canadian Abridgment was fist built in print, and I would argue that its electronic equivalent has enough foundation from the print that its origins cannot be dismissed and while it is likely that “Headnotes come from databases of case summaries,” there is still a significant value to pointing a researcher to a copy of a decision that has a headnote. If the headnote is in a reporter that has always been cited as [yyyy] # W.W.R. ppp, why should that change?

    I understand that periods make computers have fits, but surely we humans can overcome a little problem like that. I completely disagree with arbitrarily changing a citation to strip it of periods so that it looks consistent with a neutral citation.

    That being said, I think it is silly to require parallel citations at all and would rather see courts require a static URL in addition to one citation for a case, neutral cite first, any other citation second and in the form that the publisher of that second citation produced it in.

  9. Gary — An timely and well-considered column. I agree with you and would go even further (thus agreeing with Shaunna Mireau): the neutral citation, when available, should be used exclusively with no requirement to include parallel citations. In the contemporary context, to include parallel cites, whether to print reports or Lexis/Westlaw citations, is to extend to commercial publishers a role in the legal process that they no longer merit or deserve.

    As for Shaunna’s point about the “vast body of law for which neutral citation does not exist”, this can be addressed and remedied. AustLII is doing just that with the Australasian Colonial Legal History Library: As cases are added to the Library, they are provided with a neutral citation. All of this is, of course, in the open-access, free-law domain, as it should be. The Australians’ leadership in this area is commendable and inspiring. If they can do it, why can’t we?

    Gary, you begin your column by saying this could be a “breakthrough edition” of the Canadian Guide to Uniform Legal Citation. In my opinion, the only way in which the Guide could truly break through is by itself going open-access and making a digital version free to all on the web. They should not presume to present themselves as a Canadian standard unless they work within the free law movement. Again, the Australians and the British offer worthy models. Surely we in Canada can find a better model than the American Blue Guide and the restrictive means of digital access to it.

  10. Excellent, informative column. Thank you for the window in, Gary.

    I’ve also found the semi-official and unofficial report distinction confounding. The only reporter for which the semi-official mantle has made some sense to me is that which I receive from one of my law societies. (I’m not acquainted with whether any other law societies than Ontario give reports to their members.)

    When I was a young researcher the question of whether I “should” have been looking at a particular report series often sat in the back of my mind. As time went on and I realized these citation rules made little difference in real life, I began to ignore that question in most situations. The Guide is only a guide, after all, in real life, if not in law school.

  11. Lyonette Louis-Jacques

    Re omitting the period, I wanted to point out that the “Maroonbook” (2012, PDF) aka The University of Chicago Manual of Legal Citation, (2010 was the20th anniversary edition), has long omitted it so that U.S. is US.

    I always write U.S. as U.S., but it’s always UK for me. I don’t know why.

  12. Gary P Rodrigues

    More reality, or at least my perception of it:

    1. Parallel citations are needed to direct the reader to a source. The neutral citation is merely a case identifier.

    2. My understanding is that even CANLII was unable to use it as a case citation and developed a citation scheme similar to that used by the commercial publishers to remedy its deficiencies.

    3. Only Lexis and West have anything even approaching a complete collection of cases. At some point, older judgments may be given neutral citations, and complete collections made available by open access adherents, but that is not likely to happen in the near future.

    4. My understanding is that complete collections of law reports in print are not being maintained by more than a handful of law libraries. One may not like to have to resort to the commercial law publishers for access to cases, either in print or online, but it continues to be the only way that comprehensive legal research can be done in Canada.

    5. I agree with Louis that it would help everyone if a digital version of the McGill Guide was made available for free on the web. The fact that such a prominent university fails to support the free access movement in such an important matter is telling indeed. Clearly the free access movement has a long way to go before it becomes a serious player in Canadian legal research.

  13. A digital version of the McGill Guide would be fantastic. Even better would be some sort of citation converter service – plug in your case details, and out pops a completed citation. That seems like excessively wishful thinking, however…

  14. Joe Hodnicki, an Editor of The Law Librarian Blog, takes the matter of establishing legal citation protocols one step further in his post Living in the Past: who will take the lead in establishing legal citation protocols now that the end of the print era is in sight?

    His primary concern is the issue of adding paragraph numbers:

    Here in the US, legal publishers also could cut to the chase by adding paragraph numbering to court opinions in their e-text where pagination has not yet been officially eliminated for pinpoint cites. Who will be the first to take the bull by the horns by just doing it? Since what is and what is not a paragraph is a matter of interpretation, commercial vendors can copyright their individual paragraph numbering systems! Who will decide that a blockquote is (or is not a) new paragraph first just may win AALL’s Best Product of the Year award someday.

    He also suggests that citation protocols for statutory and regulatory resources should change now and, in the not too distant future, for secondary legal sources.

    Food for thought.

  15. When I was up in the Arctic a few years ago, the issues of citation and addressing the looming print/electronic bifurcation were some of the challenges faced.

    The hierarchy of citations that I advocated was neutral citation, official reporter, what could be accessed most easily by the library users (still print at the time, on the cusp of CanLII), which published headnote was most agreeable with the point being cited, and finally an online version at last resort. Two citations were preferred, with at least one in print in the library, internet connectivity being a consistent concern.

    The style guide that we developed also addressed the loss of context in the conversion from print to digital, hence the introduction of section headings and paragraph numbers, and other manual distinctions (footnotes comes to mind) between the PDF copy and the plain text copy.

    And, I would also echo the chorus for a digital version of the McGill guide.