Column

Law Reports, Digests and Public Access to Legal Information

[I begin this column with an aside. Because I will be discussing The Canadian Abridgment, the nonpareil of Canadian legal information, I want to give any non-Canadian readers some context. For American colleagues, The Canadian Abridgment (published by Carswell and now in its third edition) is similar to West’s digest system (General Digest, Decennial Digest), with Canadian counterparts of Shepard’s Citations and the Current Law Index included for good measure. The Abridgment’s Australian counterpart is the Australian Digest. The foregoing digest services are all published by that jurisdiction’s local Thomson Reuters law publisher. The closest British equivalent to the Abridgment is The Digest, published by LexisNexis Butterworths.]

It’s been raining a lot in Toronto this summer, so I’ve been thinking about The Canadian Abridgment, and for two reasons. First, this year’s budget planning process was especially long and extracted. I was required to think long and hard about almost everything we subscribe to; and the Abridgment, being by far the single most expensive print subscription we have, was top of the list. My library continues to subscribe to the Abridgment and all its peripherals: the Consolidated Table of Cases (billed separately), Key and Research Guide, Canadian Current Law, Canadian Case Citations, Canadian Statute Citations and the Index to Canadian Legal Literature. Cost is relevant only in the context of value, so I was forced to think about the value of these subscriptions, too; which brings me to the second of my of two reasons for thinking about the Abridgment.

One of my colleagues among the Canadian academic law library directors recently conducted a survey of our libraries to discover who continues to subscribe to The Canadian Abridgment in print and why. Of those of us who responded (and almost everyone did), only one has cancelled its subscription outright. Some have cancelled the “peripherals” but continue to subscribe to the “core” digest service in print. Our two newest members, at Thomspon Rivers and Lakehead Universities, have never subscribed to the Abridgment, though both have complete (though not current) sets, acquired second-hand, on their shelves. But even more interesting than the “who subscribes” question were the answers to “why do you subscribe”.

By far the most common reason for continuing to subscribe to the print Abridgment was that the subscription had simply never been questioned. The general assumption is that a Canadian law library must have the Abridgment in print to be taken seriously. Almost all Canadian law libraries outside of the law schools have rejected this belief, but the academic law libraries hold fast. This is especially curious because half of Canadian law schools no longer teach students how to use the Abridgment in print, providing instruction for the online version only. (All Canadian law schools have access to the Abridgment online through Westlaw Canada’s academic program and instruct students in using the online version.) Myself, I’ve long considered teaching the Abridgment in print to be a waste of effort, given that students will never see it again once they leave the law school. Further, everyone admitted that almost no one ever uses the print Abridgment in their libraries: it sits prominently displayed but ignored on our library shelves.

Were there any positive grounds given for continuing to subscribe to the Abridgment in print? Just about everyone insisted that the print Abridgment is the best and preferred place to start research into historical case law. I qualify this argument by pointing out that, if you cancel your print subscription, you can keep the cancelled set of the Abridgment on the shelf specifically for this for this type of research, without the carrying costs. The cancelled set can also be used for training purposes if you believe that students need instruction in using the Abridgment in print in order to understand the online version.

We at Osgoode continue to subscribe to the Abridgment (so far) for one chief reason: to ensure that we have a complete archive of the Abridgment in print for historical and print preservation purposes. Unfortunately, in light of the marginal utility of the print Abridgment and its increasingly insupportable cost, it’s getting to the point that we can no longer justify this expense, however public-spirited. Given the competition for our library’s steadily decreasing financial resources, a number of our faculty are actively campaigning for cancellation. Ideally, we would be agreed that there is no compelling reason to maintain a print subscription, even for archival purposes, in light of the Abridgment’s digital genesis and imminent reincarnation in WestlawNext.

However, a few of my colleagues did suggest one serious rationale for keeping the Abridgment in print in our public university law libraries; specifically, so that the public, and especially self-represented litigants, might have access to the major digesting service for Canadian law. Now, it’s debatable whether a non-professional would have sufficient understanding of the nature of case law and precedent, or of the concept of digesting case law and the “key number” structure of the Abridgment even to begin to make effective use of it; regardless, the public must be able to access the law in a way sufficient to build an intelligent case when they go to court representing themselves. In the absence of an alternative or ready public access to the Abridgment online, libraries may need to maintain a print subscription to the Abridgment if only to meet this obligation.

I have always argued in support of reported case law and digests of the reported case law. There is so much case law available that any service that eliminates the fat and then digests the meat is desirable and a boon to legal research. I have also argued that print formats of these resources have become irrelevant and insupportable and should be digital only. In my opinion, the beginning of the end for The Canadian Abridgment in print was when, with the support of the Canadian Association of Law Libraries, Carswell began to include digests of “all” Canadian cases, including “unreported” cases in the printed volumes. There is just too much to record, the Abridgment’s structure and updating practices cannot bear the load, and the cost has become prohibitive. For this and other reasons, the Abridgment in print is just not sustainable. But what alternatives do we have?

Canada Law Book’s (now Carswell’s) All-Canada Weekly Summaries (ACWS) for civil judgments and the Weekly Criminal Bulletin for criminal judgments have always been marvellous current-awareness services. But one of the features that makes them shine in the current-awareness role – namely, the user-friendly catchword indexing system and the summary provided for each case – add to their bulk and ultimate clumsiness for research. Also, they share with the Abridgment the disadvantage of digesting “all” cases, not just “reported” cases. This overabundance of case law is a barrier to effective, targeted research. Nor is there any public access that I am aware of to the online version of these services (the BestCase service).

Another, too-often-neglected alternative to the Abridgment is Maritime Law Book’s (MLB) National Reporter System of reported case law and accompanying digest volumes. I know several senior litigators who swear by MLB’s digests, commending not only their quality but also the fact that only reported cases are digested, simplifying their research. They also insist that MLB’s key-number indexing system is superior and easier to use. MLB may be humble but it is an independent, stalwart and often innovative publisher of high-quality law reports and a surprisingly (or perhaps not surprisingly) outstanding digesting service. If the digests are clumsy in print (because the volumes don’t consolidate), this shortcoming is remedied online, where the easy-to-use key-numbering system permits successful, filtered subject access to a focused body of edited case law selectively reported, all by clicking on a key number. What is most amazing is that all of this is made available to the public free on the web through MLB’s “raw law” online service. It’s difficult to see why this solution, readily available to all on the web and seemingly custom-made for public use by non-professionals, is so disregarded.

Like public access to justice, public access to legal information cannot be ignored. In this digital information age, I don’t think our “public” law libraries (law school and law society libraries) are the first place a citizen would think to go to access legal information; and I wonder if our libraries’ maintenance of expensive print subscription services – like published law reporters and law digest services – is justified when these print resources are no longer used by our own “expert” users (students, faculty and practising lawyers), are incomprehensible and effectively inaccessible to the non-expert public, unaffordable, and increasingly unmanageable. I wonder if our continuing subscriptions to these resources only encourage law publishers to continue producing them in print and to neglect the development of more effective digital alternatives. And I wonder if, just as law firm and law school libraries provide access to digital legal resources for our in-house users, we must ensure sufficient digital access is available to the public we have always insisted we serve.

In Canada, we can be proud of CanLII’s outstanding achievement in providing public access to legal information (statutes, judgments and a citatory). But I wonder if we can and should do more to facilitate not just public access to but also public understanding of the law. CanLII’s open-access eText on Wrongful Dismissal and Employment Law is a giant step in this direction. How wonderful it would be if CanLII could also provide subject access (in the form of case digests organized by key topical catchwords or key numbers) to an intelligent selection of significant case law (formerly known as “reported” case law). What a boon it would be to legal researchers, both professional and non, if CanLII could sometimes be more like Maritime Law Book.

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Comments

  1. Gary P Rodrigues

    In his post, Louis has hit upon a key idea for both the development of CANLII and the future of MLB. Simply put, CANLII should seek to acquire, integrate and maintain Maritime Law Book’s National Reporter System. It would enable CANLII to become a serious player in Canadian legal research market, while ensuring the future of the National Reporter System.

  2. Melanie Bueckert

    As one of those who “swear by MLB’s digests”, I wholeheartedly concur with the comments made by both Louis and Gary. I completely agree that CanLII’s acquisition and continued maintenance (in keeping with current MLB practices) of the National Reporter System would be a gigantic leap forward for high quality publicly-accessible legal research resources in Canada.

  3. Louis,

    “Just about everyone insisted that the print Abridgment is the best and preferred place to start research into historical case law.”

    This, from, law profs? You have to be f’ing kidding.

    Imagine a scene from long ago, updated to today. I’ve taken temporal liberties, too.

    Prof. Linden & Prof. Klar are discussing a tort question in L’s office. They’re not sure of an answer. (It happens.) Manqué prof. research assistant RA sitting on chair in corner of L’s office, listening, doesn’t know answer ether. (D’oh) All three trot down to old version of OHLS library planning to look in Cdn Abridgment, as opposed to (equivalents of ) Linden, Klar, Fridman, Fleming, Salmond, Charlesworth, Dobbs (in case any of our American friends are reading) … etc.

    As they’re waiting for the elevator, talking – it’s an overlapping apportionment, causation, and contribution issue – one of them recalls a now almost historical text on the subject. Unfortunately, none of them remember the author’s name, not even manqué RA, even though both L & K have signed copies gathering dust on their office shelves.

    Once they reach the library, rather than checking an index of published texts, or even walking over to the reserve section, going behind the counter, and looking on the shelf where there are (ahem) tort texts, they go to the Abridgment.

    The next day, all having realized that wasn’t tobacco they’d inhaled in the students’ common room ….

    As I said, you’re kidding, right?

    Cheers,

    P.S. I assumed the OHLS library still stocks something called textbooks, even the older editions. If not, I’m sure there are many of us who’d happily donate a “Dell” version or two – say with red plastic covers. Heck, even a real original.

  4. Gary P Rodrigues

    David, I vaguely remember a case in the early 70’s in which a judge in northern Ontario based his decision on a case summary from the Canadian Abridgment. You’re kidding, right?

    With regard to teaching students about case digest services, it might help if they were introduced to the LexisNexis Quicklaw Classification System developed by Alisa Posesorski and her team of editors, and Eric Appleby’s MLB National Reporter System, and not just to the Canadian Abridgment because it is available in print.

    The three services each offer a comparable case digest service online, with excellent classification systems. There are variations in the depth of the reporting, but the significance of this point becomes less important with every passing year. Depending on the need of the legal researcher, MLB might be preferable to the Canadian Abridgment, while in other cases the reverse might be equally true. Alternatively, LexisNexis Quicklaw may provide the answer that another service cannot. To conduct exhaustive research, it is necessary to search all three services in that each one has cases that the others do not.

    Personally, I have always been a firm supporter of maintaining bound volumes in print. For me, it is the only way to gain an understanding of the nature and scale of what is being searched. Everyone needs to see the Canadian Abridgment at least once in hardcopy. Whether it is necessary to keep it current is another question entirely.

  5. Gary – Last, or later, and at some point for the possibility of serendipity; just not first.