Since late last year, a groundswell of opinion seems to be developing in favour of open and free access to legal scholarship and secondary sources.
Sean Hocking’s recent column speculates that “someone will see that a Wikipedia type solution to the cataloguing, editing and free distribution of legal information is of benefit to a functioning democracy in the 21st century.”
Who will do this work? He suggests that this role will be taken on by “unemployed or at least underemployed legal editors, academics and dare we say it, lawyers, out there who’d be willing to initiate the process of getting case law and legislation up onto the site.”
Sarah Glassmeyer also tackled this topic recently (I encourage you to read her entire column).
Louis Mirando encourages us to expand open access to legal scholarship.
Gary Rodrigues identifies a decline in editorial quality in the larger commercial legal publishers, leading to an opportunity:
With the reduction in editorial staffing and with it, editorial enhancements, one can see the day coming when the free services are able to challenge the major legal publishers. This can be easily be done by combining secondary and primary content in similar manner to the major legal publishers.
I don’t like to rain on the parade, especially since I support the open law movement. However, my up-close, first-hand knowledge of what it takes to create secondary legal material tells me that it isn’t as easy as all that.
What does it take to create and maintain a reliable, trusted, authoritative source? We’ve had nearly 30 years of experience with this at CLEBC. Our publishing program was created in the mid-1980s. Before then, only a limited number of BC-specific legal titles, published by Carswell, Canada Law Book, and Butterworths, were available.
Our Law Society’s insurers provided early support for the creation of a series of practice manuals in the core practice areas; they were interested in reducing the number of complaints and claims against lawyers. We now have a list of nearly 50 BC-specific titles, most of which are published online. We cover all the major practice areas (family, real estate, business, litigation, wills and estates) and many others too. I was lucky enough to join the department in the late 1980s; I’ve had a front row seat as we’ve developed all these books.
And so the question that springs to mind when I read proposals and ideas for open access or free access to secondary legal information … where’s the money going to come from? Because in fact it takes significant resources to publish authoritative content for the legal profession.
Most importantly, you need to pay for editorial and production staff.
I’m aware that there’s some question about how much value is added by editorial staff; Sarah Glassmeyer has highlighted a couple of egregious examples in which no value was added at all. But when the job is done properly, enormous value is added.
How do legal editors add value? They check to ensure that all statements are accurate and supported by authority; they smooth and clarify language; they ensure that statutory and case law references are correct; they rewrite as necessary; they question when needed; and so on. If this work is not done consistently and systematically, users cannot rely on the accuracy of the content.
We use volunteers to write and review our publications. Our volunteers do wonderful work, but they need support. Legal editors also manage the editorial review process; they ensure that submissions arrive; and they determine what needs to be updated and by when. They also ensure that a publication has a life beyond its current volunteers; none of our publications has had the same cast of characters throughout its life. Volunteers retire, change practice areas, get busy, become preoccupied with personal circumstances, become ill, or worse. The legal editor and the publisher can ensure that a publication continues despite any setbacks with its authors.
Gary Rodrigues has an interesting take on the issue of editorial quality. He specculates that the big legal publishers are losing their advantage as they cease to support editorial staff and standards decline.
There is no doubt that an advantage comes from consistency and high standards; that’s where the value is added. When it really matters (that is, when your client is relying on your advice), there’s an advantage when the user doesn’t need to double-check every statement. There’s an expense associated with inconsistency; if the lawyer or researcher or librarian can’t be certain that every statement has been checked; then they’ll have to do the checking themselves.
There’s no doubt that creating a stable, comprehensive, accurate source of legal information costs money. So where will that money come from? Gary Rodrigues suggests:
… this can be accomplished by alliances between the smaller commercial and academic publishers with LexUM and/or CanLII. LexUM in particular could transform the Canadian market by licensing or acquiring secondary content from smaller commercial legal publishers ….
As we all know, the Federation of Law Societies supports CanLII. Other possible funders include for an open secondary source project may include the law societies, law foundations, or even the government. Do we believe that any of these bodies is willing to support development and maintenance of secondary legal content?