What place, you might reasonably ask, does this question have in a column on justice issues?
Bear with me. I’ll get there.
Slaw readers are more aware than the average legal professional about the roles of existing major legal information suppliers (let’s call them Dominos and Pizza Hut) and the efforts of upstarts to do law differently and offer tailored solutions to legal research needs. Though many believe (with some justification) that the pizza on offer from the “Big 2” is great, sometimes the pizza costs too much and sometimes what you need is a grilled cheese sandwich.
Here’s where we run into a challenge that has a negative, downstream impact on access to justice.
If the Big 2 are Dominos and Pizza Hut, think of the case law they collect from the courts as akin to the cheese acquired from dairy farmers. When they have the cheese, they can combine and refine it at their discretion to make a variety of dishes. Their main product remains pizza, but they have the ability to develop and deliver anything that makes use of the cheese.
The upstarts, on the other hand, can’t get the cheese from all the dairy farmers. It’s a lot of work for the farmers and many are suspicious of the upstarts’ intent. Even where the upstarts get a little from some, it falls well short of what they are after and of what they need to create the grilled cheese sandwiches (or whatever) that identifiable subsets of the public need and want.
Dominos and Pizza Hut continue to carry significant influence over how cheese is used and consumed as well as over the corresponding public and professional expense.
Maybe Dominos and Pizza Hut could share the cheese? Or even sell it to the upstarts?
It’s a nice idea and a request advanced by many upstarts. But since supplying the cheese to chefs capable of developing an extraordinarily varied and cost-effective range of dishes could have a negative impact on pizza sales, don’t look for that to happen anytime soon.
Lest you think I’m advocating that Dominos or Pizza Hut (or the Little Ceaser’s company funded by all the Canadian law societies) should be required by the dairy farmers to share or resell the cheese, I’ll direct you to the two-part “analogy-free” series I wrote on this subject last November.
My point, in fact, is that the very same dairy farmers that call on the primary customers of the Big 2 to help lower that cost of access to …. (Author’s Note: ok, all analogies break down at some point…here’s where this one breaks down, so I’m going to abandon it briefly) …justice actually reinforce the cost barriers when they refuse to facilitate efforts bring innovation to closed markets.
So what should they do? Follow the grain farmer’s example I say!
As dangerous as it is to introduce a second analogy so soon after stretching my last one to the breaking point…here goes.
If case law is the cheese, then statutes and regulations are the grain used to make the bread in the pizza. Some grain farmers, notably the Government of Canada and the Province of British Columbia, have developed technical and legal parameters that proactively facilitate and promote the use of their grain by upstarts. While there are good reasons to modify the open licenses used by those grain farmers to take account of the unique circumstances of the cheese, the underlying policy objectives should be the same: open access to support innovation and the public interest.
Unless and until the dairy farmers make it easier to acquire and use cheese in new recipes, our major pizza makers will continue to dictate what’s on offer in our cheese-based diets and dictate as well the price we…and, ultimately, the public pay.