At the annual meeting of the Canadian Association of Law Libraries last May in Moncton, one of the keynote sessions was on The Future of Legal Publishing. The keynote speakers were Robert McKay and Jason Wilson, moderated by Gary Rodrigues – all fellow Slaw columnists. The opinions offered by these legal information industry experts were informed, insightful and fascinating, and the audience – a roomful of law librarians – was completely engaged. Though each of the speakers had his own vision of law publishing’s future, all were unanimous on one point in particular: there is no future for loose-leaf publications, a publishing format on life support that should have died a natural death years ago.
The loose-leaf, a publishing format almost unique to legal information, is the curse of Canadian law publishing. I can think of no other country where this moribund publishing format is so preponderant – literally hundreds of loose-leaf titles continue to be published here – and that is still so dependent on it for almost all its basic and standard legal texts. Susan Munro published her Slaw column “Death to Loose-Leaf?” in 2012; yet, in the intervening three years, not one Canadian loose-leaf publication has been discontinued . What makes the loose-leaf’s continuance even more incomprehensible is that it is so contrary to the interests of everyone – to the consumers, the publishers and even the authors of legal commentary.
The Rise of Loose-leaf
If convenient, the loose-leaf was never an efficient publishing format. Regardless, in the days before digital text, loose-leaf was the favoured format for complex and rapidly-evolving areas of law when a new edition every five years was insufficient for the busy practitioner, sparing her the inconvenience of having to update her research. The convenience of regularly updated commentary with current references to recent cases and consolidated legislation may have been worth the expense of the subscription and the considerable effort of filing the loose-leaf pages. The number of loose-leaf titles proliferated. Not only were all new titles published as loose-leafs, but long-time standards were converted to the loose-leaf format. Publishers convinced us – and possibly even convinced themselves – that, rather than publish a new edition every five years, it was better to convert a title to loose-leaf and update it annually: the currency of the information was worth the cost of subscribing to the supplements and the effort of interfiling them. Title-by-title, a publisher’s entire list was converted to the format. No title was exempt from conversion to the loose-leaf format, whether the content or the topic merited that particular treatment or not. Some legal topics – tax law, securities law, municipal law – certainly merited it; but Hogg’s Constitutional Law of Canada? Brown on Defamation? For publishers, every book was a candidate for loose-leaf, so long as practitioners and libraries would pay.
Frequency and Cost of Loose-leaf Supplementation
And what law publisher wouldn’t prefer a publishing model that enables them to sell you a book annually instead of every five years? Or even twice a year? Or more? So the annual supplements became semi-annual, then quarterly, then bimonthly, then monthly. And because the cost of each supplement remained the same, a loose-leaf text that was once updated annually for $150 suddenly cost $1,800 when updated monthly, and the hardbound treatise that once cost $100 to buy in a new edition every five years cost was now a loose-leaf, available only at the same inflated annual price.
In fact, it was unlikely that the subscriber would notice the cost inflation because one key to the success of the loose-leaf formula is the practice not to sell an annual subscription but instead to charge for each supplement separately as issued, hence obscuring the total cost. I have spoken with lawyers who believe the annual cost of their loose-leaf subscription is the price indicated on one single invoice, not the multiple of twelve of those monthly invoices. Of course, law publishers will argue that it is impossible to price an individual supplement in advance because they cannot predict how much the law will change in any given year: one simple legislative act or Supreme Court reversal can mean a larger, more expensive monthly supplement. In reality, the pricing of loose-leaf supplementation is based not on the progress of the law but on the publisher’s desired revenue stream. In all likelihood, all that supplementation is not even necessary; and in fact, the publishers find it difficult to keep up with the supplementation schedule they’ve devised for each publication, a schedule determined not by legal developments but by profit. What motive other than revenue could explain five or six monthly supplements all being issued and shipped in December in a desperate effort by the publisher to meet year-end projections.
Relevance and Hidden Costs of Loose-leaf Format
A further problem with loose-leaf supplementation is that the changes or updates to the text are invisible and impossible either to quantify or qualify. Those 12 monthly supplements, often comprising fewer than 20 revised pages, could most likely be consolidated into six bimonthly supplements, two semi-annual supplements or even one annual supplement without exposing the practitioner to research malpractice.
No less burdensome than the cost of paying for a loose-leaf subscription is the labour required to maintain it. Many of the same lawyers who are unaware of the total cost of their loose-leaf subscriptions are also unaware that expensive supplements are piling up somewhere unfiled, because their assistants no longer have time to keep up with the supplementation. The filing of loose-leaf supplements is in fact a full-time job in some libraries. I recently visited a colleague in a major university law library and was shocked to see a wall of bookshelves filled with what is likely several years’-worth of unfiled loose-leaf supplements for scores of services. Of course, when the supplements aren’t filed, what limited value they have is completely lost.
Loose-leafs and Libraries
The combination of cost and labour is unsustainable for libraries, with the result that all libraries, both private (law firm) and public (law schools and courthouses) are cancelling them en masse. The decision to cancel is difficult for many private law librarians because the lawyers who use their libraries, unaware of the cost, are still attracted to the apparent convenience of the format and convinced of its reputed currency. In truth, the information in loose-leaf publications has never been very current; and in practice, many lawyers are finding that newsfeeds, emails, blogs, and other digital media keep them far better informed. Given the variety of access to other sources of information, both lawyers and librarians are beginning to re-evaluate the continued relevance of and need for the loose-leaf format. With general access by the profession to CanLII and even Quicklaw, it’s easier and more reliable to update a cited case than to depend on a loose-leaf footnote, while online consolidations guarantee ready access to current legislation at no cost.
The decision to cancel is much easier in public law libraries because the money and the staff required to maintain loose-leaf subscriptions are simply no longer there and the directive to cancel comes from above. In laws schools, absent the practice imperative, we are learning to live without loose-leaf and finding that the transition is not difficult.
Loose-leaf’s Loss of Authority
As the cost of subscribing to loose-leaf becomes more unsustainable and more lawyers and libraries cancel their subscriptions, the works themselves are beginning to lose the reputation and credibility they once had as authorities on the law. It’s interesting how our perceptions of authority can be influenced by publishing formats. A recognized authority, when published as a hardcover monograph or treatise, retains its authority over time. We turn to the book repeatedly over the years and anticipate the next edition with increasing eagerness but with no loss of respect for the edition in hand. Our attitude towards loose-leaf, however, is quite different. Once a loose-leaf subscription is cancelled, no one will look at it with anything but the greatest suspicion and distrust. It’s as good as dead; and whatever authority it might once have had is lost to those users.
Publishers and the End of Loose-leaf?
Unfortunately, Canadian law publishers are so dependent on the revenues generated by their loose-leaf publications that they are reluctant to let the format go, seemingly oblivious to an increasingly restless legal information market that is no longer unable to support the cost. Some publishers are now so intent on preserving the revenues from loose-leaf publishing that they have introduced penalties for cancelling. Recently in our library, we had to cancel a subscription because of the cost. When we decided to bind the cancelled publication to preserve it, we discovered that many pages, even entire chapters, had been stolen by students (another disadvantage of the loose-leaf format). When we contacted the publisher to purchase replacement contents, we were told we would need to pay the equivalent of two years’ subscription costs – over $5,000 – to replace the contents. The volumes are now in the garbage and our students not only have no access to them but are unaware of that the title exists.
Loose-leaf publication persists, with no regard to content or value. The consequence has been a consistent deterioration in the quality of loose-leaf publications and a considerable loss of integrity. Subscribers are not blind to these realities and are abandoning the publications in increasing numbers. The fewer the subscribers, the higher the cost is to the remaining subscribers. The smaller the audience, the less authority rests in the publication. Ultimately, everyone – consumers, authors and publishers – loses. This is the curse of the loose-leaf. How much longer can this poisonous situation be allowed to endure?
This dependency has blinded our law publishers to alternative formats to loose-leaf. Our largest publisher of loose-leafs imagines that reproducing the loose-leaf in digital format but with no reduction in cost is a valid and technologically adept response to the challenge. However, with Canadian loose-leafs, format is neither the problem nor the answer. The problem is a complete mismatch between product and value. Honestly, in most cases, the logical alternative is “back to the future” – ie, the hardbound treatise, re-issued in a new edition every five years. If truly necessary, optional paperback supplements can be issued (on the model of Sweet & Maxwell’s Common Law Library). But whether or not the format is replaced, whether print or digital, and whether or not the publishers are prepared to deal with the blow to their revenues, the loose-leaf will go.