Bombardier makes trains and planes. Courts and tribunals make judgments. Decisions are the main product of the judicial activity. Why are then courts not more enthusiastic when it comes to assuming the responsibility to publish their product on their own? The responsibility to run an open court lies with the court itself and today access to digital case law on the Internet can definitely be seen as a requirement of the open court principle.
With regard to self-publishing information, the judiciary has been overtaken by other branches of government, such as legislatures and Queen’s printers. The reliance of courts on external publishers is not a digital era phenomenon. Courts have counted on third parties to publish their decisions for centuries. In Canada, only the Supreme Court and the Federal Courts were publishing official reports themselves. In the US, only about 12 States run court-sanctioned law reporting, due essentially to West winning the competition with courts when it comes to case law publishing. Even when digital publishing became possible, courts and tribunals continued their reliance on the third party. The disclaimer “The decisions of the tribunal are available on QuickLaw” or “chez SOQUIJ” became a standard across the courts’ web.
Fortunately, as Internet technologies became largely available, the barriers to courts communicating directly the product of their work have dissolved. Courts have been tremendously supportive of open access by adopting the neutral citation, by using reproduction-friendly templates and by adopting favourable dissemination policies.
However, even though some initiatives are extremely encouraging, courts and tribunals still hesitate to take ownership of disseminating their decisions by themselves. Here is a brief overview of the situation in Canada based on a rapid examination of over 200 court and administrative tribunal websites.
Close to 60% of courts self-publish and over 40% do not. Among the self-publishers, over 50% have good publishing systems – with convenient browsing and searching – and the balance runs poor publishing sites. At the administrative tribunal level, there are 50% of self-publishers with only one fifth of them offering reasonably good access to decisions. Forgive the simplification, but rest assured that my criteria for good and poor publishing are not very stringent.
What am I asking for? Not much, really. It could be an easy-to-use section of the court website giving access to decisions, full-text search, access to documents in native format and a presentation suitable for people with disabilities. At a later stage, a programmatic access could be offered as well, via a web service for example, similarly to what is starting in other sectors of government. But let’s secure the basics for now.
The benefits for self-posting courts and tribunals are numerous:
- The court/tribunal communicates directly, from its own website, with citizens and stakeholders thereby emphasizing its commitment to openness and transparency.
- The court/tribunal is in a position to quickly post high-profile cases, correct a decision or withdraw an erroneously published one.
- The court/tribunal can devise the resource in a way that best reflects the browsing and searching patterns of users, especially in highly specialized administrative tribunals, for example by assigning topics specific to their core domain.
- The court/tribunal can enhance the resource by adding other types of data, such as webcasts, docket information or help for self-represented litigants.
- And of course, the many benefits accruing from opening the data right at the source…
Let’s finish with a sketchy economic argument. The cost of trial to the taxpayer (not the litigant) is perhaps as high as $20,000, said the Ministry of Justice of Ontario in 1995. I personally think that this amount is underestimated and the figures can certainly vary across jurisdictions, court levels, administrative law domains and methodology used to calculate. The cost of publishing a decision online could exceptionally be in the bottom range of the two digits but most often, for a few extra dollars per case, court and tribunal decisions can be made accessible to anyone to search, read, take, use, add value to, and so on. This is not to say that courts and tribunals cost too much to our societies. It is just that court and tribunal self-publishing online has never been cheaper, yet it is so important for access to law and access to justice. In many cases, it would be a way to leverage the money spent to solve a specific litigation to benefit the whole society.