Column

The Changing Availability of Case Law

Young Canadian lawyers will have trouble understanding a time when only a few judicial decisions were published and access to decisions was difficult.

In 1965 Maritime Law Book was founded in response to a need, namely, access to judicial decisions.

In 1965 the Maritime Provinces Reports (a Carswell publication) published one volume per year and the volume contained 40 to 50 cases from the four Atlantic provinces. The Dominion Law Reports (a Canada Law Book publication) was very selective and contained very few cases from the Atlantic provinces.

A New Brunswick lawyer might find less than five New Brunswick cases published in a 12 month period. In 1965 all New Brunswick Supreme Court judgments were filed in the Registrar’s office in Fredericton. But most of these judgments were not published anywhere.

In the 1970s Carwells and Maritime Law Book commenced a number of provincial and topical reporters that remedied in part the lack of availability of judicial decisions.

Enter the Internet in the 1990s!

The Internet enabled the publication of all judicial decisions and many sites provided the decisions free of charge. That is, the federal government and many provincial governments set up web sites where judicial decisions were available free. Most of these web sites did not contain any editorial additions such as headnotes.

This free access to judicial decisions resulted in a marked decrease in demand for print case reporters. And as cancellations of print reporters increased the cost of print volumes increased.

As a result many law libraries now rely on digital versions of judicial decisions rather than books in print. This change is despite warnings about the instability of digital data.

In 2009 Robert Darnton wrote The Case for Books in which he argues that nothing preserves texts better than ink embedded in paper. Darnton is the Director of Harvard University’s many libraries (between 40 and 140, depending on the definition of a library).

Darnton states that the best preservation system ever invented was the pre-modern book.

Darnton states that all texts “born digital” belong to an endangered species because of the problems of digital preservation.

Darnton states that the digital preservation of books is an unresolved problem. He says that electronic bits become degraded over time and that owing to the obsolescence of digital media, documents are lost. Media that are gone are magnetic cards, microfilm, floppy disks, CD-Rom. Darnton says that we have lost 80% of silent films and 50% of all films made before WWII.

The providers of digital case law can overcome the problem of the obsolescence of digital media by migrating to the latest media. Here at Maritime Law Book, our “latest media” includes portable hard drives. But the problems of digital degradation, corruption and accidental destruction present a risk to the preservation of book content.

Online publishers of case law maintain backup systems that enable the correction of errors resulting from accidents, corruption or viruses.

The problem of the preservation of digital texts is informed by the recent book titled Broken Ballots by Douglas Jones and Barbara Simons (2012). Barbara Simons is a computer scientist and teacher; she argues that, because of the stability problems of digital voting machines and online voting, paper ballots are required to allow an audit of voting results. She says that banking online and voting are not the same. She says that when a bank’s software regarding customer accounts is corrupted the bank can remedy the errors but ballot errors cannot be checked and corrected unless there exists a paper trail. Also she says that the risk of computer corruption is growing partly due to new and more powerful viruses.

The full text of most judicial decisions without enhancements is now available free on a number of web sites. Publishers are grateful that some libraries continue to purchase print volumes of case law.

Darnton states that book professionals, such as editors, provide services that will outlast all changes in technology.

The editors of case law reports prepare case law enhancements in the form of headnotes and indexing which are available in print and on the Internet.

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Comments

  1. I don’t accept the argument that books are better for preservation. Darnton seems to be comparing books that are actively preserved with bits that are not. I imagine that we’ve lost just as much printed word as we have any other medium (think of every book, newspaper, pamphlet that nobody saw the use in preserving). It’s a question of the effort you put into preserving it.

    The only advantage that books have in terms of preservation is that their inefficiency requires that many copies be made whereas it’s tempting with digital content to have a single copy accessed on demand. It’s more likely that single copy will be ruined than that every copy of Catcher in the Rye will be caught in a flood.

  2. I suspect that Mr Darnton had the multiplicity of printed copies in mind as well as the fixing of the medium when he said that print is better for preservation than digital media. Digital media also may present authentication problems; can one verify a password, much less a digital signature (one that uses encryption), 20 or 30 or 100 years later? (The National Archives used to have a policy – maybe it still does – to refuse digitally signed e-documents for this reason.) One can still read Sir John A McDonald’s signature today – who knows about the one on an email.

    Re voting: I agree with Barbara Simons. Here is what I wrote on Slaw about that a couple of years ago. Still true, so far as I know.

  3. While I agree that print books are better for preservation, one has to be cognizant of certain realities: (1) probably 95% or more of people want to find cases electronically. To be honest, the only people who have come into my library in the last five years saying they would rather use print are an older History PhD student who didn’t want to learn to use the databases, a retired lawyer in his 80s who still does some consulting work, an older government employee who is a lawyer but hasn’t worked as a lawyer in 10+ years, and an older woman who came in to do some research on a case for her son. Everyone else wants it electronically; the only time they use print is if the case is not available electronically. (2) Library budgets have been slashed in the last five years. There is no way we can justify purchasing databases such as BestCase, CCH, Quicklaw, Westlaw Canada, MLB National Reporter System AND buying the same cases in the print reporters. Absolutely no way possible to justify it. Law libraries are not archives, they are living institutions that have to change to meet the needs of clients. The needs are not in print, they are in electronic. I agree that the preservation of electronic materials is flawed, but that is not going to change the fact that when we buy print reporters, they go on the shelf untouched for years, while our electronic resources are increasingly in demand.