Legal Citation: Beyond the McGill Guide

This past summer, the Canadian legal profession was presented with yet another edition of the Canadian Guide to Uniform Legal Citation/Manuel canadien de la référence juridique, aka the McGill Guide. This new edition, the 8th in 28 years (an average of one edition every 4 years since its first publication in 1986) was expected, though not anticipated with any enthusiasm. Fellow Slaw columnist Susannah Treadwell has recently posted a review of the work. It seems to me that the changes to the previous edition are few, inconsistent, and not obviously necessary (Another colleague has told me that most of the typos from the previous edition have been corrected). Regardless, this new edition is 100 pages longer than the previous edition – a weight-gain of 20%. How is this possible?

There are two basic problems with the McGill Guide: the first is its authors, the other is its publisher.

Problem 1: Compiling the McGill Guide

The authors of the McGill Guide are the student editors of the McGill Law Journal/Revue de droit de McGill. The problem is that they are students. As law students, however intelligent and well-intentioned, they are information tyros at best, with little-to-no possible understanding or appreciation of the manifold bibliographical, publishing, technological, professional, historical, archival, retrieval and other competing considerations inherent in citation practice, and only a basic grasp of the stylistic requirements of scholarly writing and publishing. Though their skills may be appropriate to the editing and production of a student law review, one would question their competency to the establishment of a model for professionals. Further, the students responsible for the work change every year, allowing little scope for continuity of vision or process, much less time to develop a genuine understanding of or expertise in the subject. At a very elementary level, the students’ initial involvement is not a desire to advance citation practice (something they were probably unaware of before their first legal research and writing course) but more likely the pursuit of an extra-curricular credit, one to which the glamour of “law review” can be attached. The consequence is that the ongoing development of the McGill Guide is driven not by the needs of citation practice but by the needs of its student editors to make a mark during their year of tenure.

Problem 2: Publishing the McGill Guide

The publisher of the McGill Guide is Carswell, a Thomson Reuters company. I can’t say whether Carswell first approached the editors of the McGill Law Journal to publish their in-house style guide or whether the students approached Carswell; in either case, it is a commercial arrangement. As with any commercial arrangement, it is only sustainable if there is a regular income stream to both parties. The only way the income stream can be maintained is by the production of regular new editions. The immediate and continuing consequence of this is the quadrennial flow of new editions, driven not by need but by the publisher’s publication schedule. The student editors are, in effect, working for the publisher. For the most part, these new editions are unnecessary and unjustified, lightly sprinkled with gratuitous and often ill-considered changes that fail to advance citation practice, confuse and sow uncertainty and even disagreement among even seasoned legal writers, editors and instructors, and generally make citation practice even less uniform and uniformity more difficult to realize. The publisher and the McGill Law Journal might profit from the arrangement, but the Canadian legal information community and consumers do not.

Pricing the McGill Guide

Carswell is a successful, publicly-held company and it is natural that its first objective in publishing the McGill Guide is profit. This might help account for the significant price increase for the new edition: in May, a copy of the 7th edition in paperback was priced at $54; one month later, the new 8th edition was priced at $66, a price increase of 22%, hardly justified solely by the additional 100 pages in the new edition. Another rationale for this not inconsiderable cost is that the book includes both the English and French editions of the Guide. Though the Canadian market has been asking Carswell for years to publish the French and English editions as two separate, less expensive publications, Carswell has refused, claiming on the one hand that a bilingual and bijuridical legal culture requires both languages in one volume (the high road) or that bilingual production is possible only with the higher price to subsidize the additional expense of producing it in two languages (the low road). Both arguments are equally questionable.

Carswell may further counter that purchase of the new 8th edition in print now includes access to the long-anticipated online edition. It is unclear from Carswell’s website (November 2014) whether the purchaser is granted online access in perpetuity or only for one year. By comparison, the purchaser of the American Bluebook Online pays only $32, but that’s for an annual subscription, clearly stated on their website. Regardless, online access is a benefit that has effectively been denied to Canadian law schools and law students. Until a few weeks ago, the publisher’s website specifically stated that the print-plus-digital offer was not available to Canadian law students. Though this statement has recently been removed from the site, the restriction still applies. Carswell has determined that law students can have access only if their entire school is licensed, achieved by purchasing print copies for all first year students at the school. In the case of my school, the cost would be just shy of $20,000 annually – an absurd price for access to a simple reference work. When Carswell told us we could effectively license our schools for free by requiring all first year students to purchase a print copy of the Guide themselves (rather than the school buy it for them), we felt a line had been crossed. No publisher, however respected, can dictate the content of our program or required texts, least of all as a prerequisite for licensing. The consequence has been that, with only a few exceptions (one of them McGill), Canadian law schools have not licensed the online version of the McGill Guide and have removed it from the list of required texts for their first-year legal research and writing classes. And maybe that’s a positive development.

Beyond the McGill Guide

The McGill Guide has been adopted as a standard by many Canadian law journals, primarily and significantly the student-edited law reviews. It has been adopted by very few courts (the more recent editions by almost none) and by no law publishers. Though it has been relied upon since its inception as a basic desktop reference text and even as a required text for LRW (legal research and writing) classes, this role and status are increasingly questionable. It is increasingly clumsy and cumbersome, covering much more material than any legal practitioner or law student needs to know. (How likely is it to need to refer to a Welsh statute or a Singaporean decision?) It is increasingly unacceptable as a “uniform” guide – witness the alternative citation guide recently published by the Courts of Saskatchewan. Because it is essentially a consolidation of in-house practice at the student-edited McGill Law Journal, it is increasingly irrelevant to the creators and consumers of professionally produced, globally accessed, born-digital legal information. The rationale for the new edition is so slight that law schools have specified that either the 7th or 8th editions can be relied on by students equally. All in all, the McGill Guide has not been responsive to our changing needs; it is neither the resource we need nor the guide we have been pretending it is.

Where do we go from here? How do we move “beyond the McGill Guide”, which has become an expensive, bulky tome, inaccessible and largely irrelevant to the legal information-consuming public? Though I have said this before, and at the risk of sounding like Cato the Elder, screaming “Carthago delenda est!” (Carthage must be destroyed!) at the end of every speech he delivered in the Roman Senate, I think we must “disestablish” the McGill Guide as the arbiter either of legal writing style or of legal citation practice in Canada. At least for student and desktop reference purposes, it should be replaced with a new, shorter guide, one that is first a guide to legal citation practice, not a compendium of arcane and international legal resources or a style guide manqué. Let it be a guide that is truly uniform, a standard for legal citation practice in publishing, in the courts, in practice and in the academy. Most of all, this new guide must be digital and freely accessible by all on an open-access basis, like its British and Australian counterparts, and with a Creative Commons licence. (By the way, I’m not proposing the British or Australian guides as models; indeed, they share many of the same shortcomings of the McGill Guide, not least of all that they are compiled by students. But they are free.)

How do we begin work on a citation guide that is uniform, relevant, professional and freely available? As has worked in the past, when the neutral citation system for Canadian courts was created and adopted, and equally a uniform naming convention for Canadian judgments, I would suggest the work be entrusted to a core working group supported by an advisory board representative of all the affected communities: the Courts (and the Canadian Judicial Council), the law publishers both print and digital (especially CanLII and Lexum), legal writing and research faculty, law librarians and practising lawyers from both our French and English legal communities. Their mandate must be clear and concise. If one of the goals is to promote access from all disciplines and all sections of society, I suggest the following points for the group’s consideration:

• Stick to developing uniform citation standards for specifically legal materials only (judicial, statutory and regulatory materials) and not “secondary” materials. If legal information is to be accessible to everyone, and if the legal academy is to become a fully participating member of the academy generally, we must lose our insular and exclusionary professional practices of mystifying references to non-legal materials.
• Remember that a citation guide is not a style guide. It’s immaterial if you cite Richard Risk as R.C.B. Risk (with periods) or RCB Risk (without): this is a question of style. But to cite the Dominion Law Reports as anything other than DLR (without periods) is an anachronism and no longer uniform practice. Let Chicago, MLA (Modern Language Association) or other qualified resource (but please not the new, grandly but inappropriately named Canadian Guide to Legal Style, compiled by the students of the Queen’s Law Journal and recently published by Carswell) be our guides for all matters relating to formatting, punctuation and style, as well as for citing non-legal materials and resources.
• Lose our fetishistic compulsion to abbreviate everything. Though the practice of centuries (and we love precedent!) may dictate that the titles of law reporter and statute series be abbreviated, let us please stop abbreviating everything else, especially the titles of law journals and names of online services. Our Australian colleagues have shown some leadership in this.
• Remember that legislative (Hansard, etc) and government documents are not exclusively legal resources and should not be subjects of “legal” citation practice. Please let’s conform to accepted “non-legal” practices.
• Can we think globally? Is it possible to co-ordinate uniform legal citation standards with our British and Australian colleagues? Or is that too great a challenge? Are the challenges of including the Americans (who are still using large-and-small caps in citations) insuperable?
• Several of our law schools – at the Universities of British Columbia, Ottawa, Toronto and Queen’s – have made a good start in this direction with their own web-based legal citation guides, giving students what they need at no cost. Let’s consolidate this good work, recognize their expertise and build on their good work.

Richard Susskind has said that “The legal profession has always been on the cutting edge of tradition.”

The work will not be easy and there are many barriers and traditional practices to overcome. Why are legal information specialists so obsessed with legal citation? I can think of no other profession that gives more than passing consideration to citation practice. Have we built up and aggrandized our legal citation practices to such an extent that, like procedural rules, only an initiate can understand them and they have become a barrier to access? At its most basic, legal citation, just as any other citation system, serves one purpose: to identify a document or part of a document to which the author refers while providing the reader with sufficient information to find it. Let’s abandon our exclusionary practices and, in the spirit of public service, of free access to law and open access to legal information, let’s reform our anachronistic citation practices.