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Jonathan de Vries is a Partner at Shillingtons LLP in London, Ontario and a PhD Candidate at Western University.
(2018) 48 Advocates’ Quarterly 1.
Excerpt: Sections 1, 4, 5 and 6
[Footnotes omitted. They can be found in the original via the link above.]
The practice of law is fundamentally about information: it involves locating, understanding and applying legal propositions and concepts to particular situations and problems. But the way lawyers and judges go about locating, comprehending and interpreting legal information, activities usually grouped under the rubric of “legal research”, can directly affect the substantive development of law. As Plunkett wrote in A Concise History of the Common Law:
It was by the constant use of the reports, registers, pamphlets and other works … that lawyers of former days gained their living, and, as in every other human creation, the peculiarities of the tools employed have left a permanent mark upon the finished product. A system of law therefore is largely influenced by the technical methods used by lawyers in going about their daily business. When faced with a difficult case, the advocates and the judges will have to undertake research in order to find what law will govern it. The method which they pursue, the character of the books and sources which they use, and the attitude of mind with which the approach them, all have their influence upon the shaping of the law, and upon their conception of the law itself.
Recently, though, there has been a fundamental shift in the way that lawyers access legal information. For over a century, legal research was normally conducted through a print-based medium of law reports, indexes, digests, textbooks and other forms of legal scholarship and finding aides. But in the past few decades this print-based system has been rapidly replaced by a new system based on the digital storage and retrieval of legal information which, at present, is almost exclusively conducted through internet-based sources. Modern statistical evidence suggests that a substantial majority of the legal research conducted by lawyers is done online, with the historic practice of research conducted with printed materials in a law library being generally abandoned.
The experience in law is consistent with the broad shift from print to digital media across society as a whole, with the rise of the internet as its most defining characteristic. This rapid shift to digital media has generated debate about its perhaps subtle or unconscious effects on the way that individuals acquire, process and understand information. This debate has been playing out in the narrower context of law and legal research. A significant body of thought has emerged suggesting (and even warning) that the transition from print to digital legal information heralds fundamental changes not only to legal practice but also to legal reasoning and the substantive content of law itself.
Plunkett’s observation was that the medium by which legal information is communicated is not a neutral factor, but is rather part of the institutional edifice of law itself. Legal media, legal reasoning and substantive law all participate in a reciprocal, co-causal relationship with each other. In Plunkett’s time, the dominant legal medium was print. The dissemination of legal information through print had a direct impact on legal method and legal reasoning: it encouraged and entrenched various idea, intellectual tools and modes of thinking about law that gave law organization, intellectual structure and internal coherence. And in a common law system, with its adversarial process and passive, non-inquisitorial judiciary, the way that lawyers think about law, and externalize such thinking in legal argument, is often the driving force of change within the common law. While judges have a duty to properly administer the law, the reality is that a combination of caseload pressures, limited judicial resources and a generalist judiciary often means that courts’ determinations of legal issues can be heavily contingent on what legal authorities and arguments they receive from lawyers who appear before them.
Today, digital media is coming to dominate legal information, but it presents different influences. Aside from not sharing many of the characteristics of print, digital media does not have the same tendency to create or maintain law’s organization or structure. Thus the transition from print to digital has the potential to be disruptive to both legal reasoning and the functioning of common law legal systems. This disruptive potential should be of particular concern for lawyers. Given their role in the production of new case law, they have a responsibility to be aware that how they locate, comprehend, interpret, and present arguments regarding case law directly impacts the law itself.
The purpose of this paper is to consider the transition from print to digital media in the specific context of Canadian law. It summarizes the existing scholarship on the interaction between legal media, legal reasoning and substantive law, much of which derives from the American and, to a lesser extent, English legal experiences, and applies this scholarship to the Canadian context. Despite the volume of sources on this topic in Anglo-American legal literature, Canada’s unique experience of print-based legal information has not been specifically addressed. This article’s thesis is that to whatever degree digital media poses a threat of disruption to a common law legal system, this disruptive effect will be more acute in Canada than in the United States or England. While Canada adopted the intellectual methods and legal reasoning of a print-based legal system, it lagged behind in the establishment of print-based sources of legal information, with the result that the intellectual and institutional structures that derive from print media, and which are being displaced by digital media, were nowhere near as entrenched in Canadian law as compared with other common law jurisdictions.
This article is divided into two parts. The first is a general history of legal information distribution in the common law world, with a particular focus on the reporting of judicial decisions. It will explain how the current print-based system of legal information came into being and how this system has begun to be displaced by a digital system. The second part explores the effect of this transition by looking at how two key aspects of the print system, selectivity in case law reporting and the curation of legal information, helped create the intellectual structures and internal organization of substantive law, and how these two aspects are not present in the emerging digital system.
In the print system, selectivity is a consequence of the medium used. Any physical document, whether a vellum manuscript or a copy of the Supreme Court Reports, carries with it attendant costs in terms of creation, distribution, storage and retrieval. As long as case law is made available through physical documents, some degree of selectivity is normally required with the result that some decisions will be more available than others to future legal actors. Under the print system, this choice was generally left to private publishers.
In England a high degree of selectivity was employed, with the ICLR publishing only a small percentage of decided cases. In theory, the task of the ICLR’s reporters and editors was to review decisions and to select for reporting those which were useful as precedents because they stated or clarified some particular point of law, while excluding those which simply repeated existing law, were limited to their facts or otherwise had no value for subsequent disputes. Practically, the process never worked with 100% efficiency. The selection of cases was not exclusively dictated by their precedential value, important cases would fall through the cracks and reporters were never free from editorial or professional pressures. The result was a system with a “dash of potluck and serendipity about it”.
In contrast, in the United States a far lower degree of selectively prevailed. This can be almost entirely traced to the publishing model created by the West Publishing Company. When West launched its law reports in 1877, it departed from prior American law reporting practices, which generally followed the English approach, and instead adopted a comprehensive approach of publishing all decisions from federal and state appellate courts. This was a business strategy and not necessarily one based on a supposed benefit to American common law. It also laid bare one of the interactions between the interests of legal publishers and lawyers that characterized the print system. Individual lawyers dealing with individual legal problems have an overriding interest in having access to all available cases that specifically address their situation. Not only do lawyers crave the “case on all fours” that will assist their position, they are often just as driven to locate cases that are adverse to their position so as to not be caught by surprise by the other side. A publisher of law reports thus had a captive market where the demand for reported case law is not just motivated by a desire for a new product but rather by the fear that one’s opponents may have an advantage. Publishers like West could, and did, exploit these fears to their profit.
In Canada, the level of selectivity employed in law reporting was generally closer to the English model, if only for the lack of resources and markets available to legal publishers. But given the nation’s fractured and uncoordinated legal publishing industry, there was never a single framework or set of criteria for the reporting of decisions. As late as the 1970s, there were complaints about lack of information as to how published decisions were selected, and the duplication of decisions across different reporters remained a problem. However, by 1980 there had been a significant expansion of law reporting, mostly as a marketplace response to the poor quality of reported case law. But uniformity and co-ordination remained elusive. Some jurisdictions were served by several different reports from different publishers and also by specialist reports for particular subjects. Publishers also employed different selection criteria, with companies such as Carswell and Canada Law Book following the English model of selecting cases based on their value as precedents while Maritime Law Book followed a model similar to the West Publishing Company and published reports that covered all available decisions from particular courts.
(1) The Effect of Selectivity
While selectivity was a consequence of the medium used to report case law in the print system, it was never seen as inherently problematic. To the contrary, selectivity had often been seen as essential to the efficient operation of a common law legal system because it allows for control of the volume and quality of available case law. Judges in particular have praised law reporters for restricting the availability of case law to a narrower subset of useful decisions and for supressing decisions that were either useless or problematic. In effect selectivity allowed the common law to be self-editing. As Roderick Munday has described it, selectivity was “one face of the collective forgetfulness which reduces an otherwise gargantuan body of precedent within our compass.”
The perceived importance of selectivity in law reporting was highlighted by the institutional reactions that occurred when that selectivity was disrupted, not only by new technology but also by the competing interests of the players in the print system. Well before the arrival of the internet, concerns were voiced about the increasing volume of case law being reported. In the United States, the culprit was West’s policy of comprehensive reporting. In England, the less comprehensive coverage afforded by the ICLR reports led to lawyers increasingly relying on decisions printed in commercially produced reports or obtained through other sources. The concern was not only one of volume, with ever more decisions being made available to lawyers and cited before courts, forcing courts (particularly appellate courts) to expend more physical and intellectual resources on a given case, but also with respect to how over-reporting could impact judicial decision making, feasibly leading to confusion and inconsistent decisions.
The solution was restrictive publication and citation practices. Through the 1960s and 1970s most American courts adopted the practice of identifying which of their decisions were authorized for publication in law reports and, starting in 1974, American courts began enacting “no-citation” rules, which prohibited the citation of unpublished decisions before them, effectively removing their usability as precedents. In England, courts used both judicial decisions and practice directions to impose a general prohibition on the citation of unreported decisions, save in limited circumstances. The general justification for these restrictions was preventing over-citation of case law while also recognizing that not every decision established a new principle of law.
Canadian courts were not immune from the issues facing their English and American counterparts, and they also began to institute practices allowing for summary disposition of simple or uncontroversial cases while reserving detailed decisions for more complex matters. Yet no attempt was ever made in Canada to prohibit the citation of certain categories of decisions as precedents. While courts would sometimes suggest that some decisions, usually short oral decisions or handwritten endorsements, might have limited precedential value, courts never formally designated their decisions as being authorized or unauthorized for future citation, and the general rule remained that all decisions had equal capacity for future precedential value.
One possible explanation for why Canada never developed no-citation rules is that the ramshackle nature of law reporting through much of Canadian history meant that any attempt to enforce such rules would hamper or stultify the development of the common law, particularly in smaller jurisdictions or in fields of law where available case law was thin on the ground. Whatever detriments may have been suffered by allowing citable case law to be available through sources other than printed law reports was likely outweighed by the benefits to the legal system and society as a whole by having more case law available.
Regardless of the reason why, the lack of no-citation rules in Canada meant that there have not been formal measures in Canadian law to preserve the effects of selectivity inherent in the print system. No-citation rules provided a formal, if not necessarily an effective or enforced, limitation on the scope of case law with which lawyers and courts were expected to engage when arguing or deciding individual cases. It did so via binary, superficial labels (reported/unreported, published/unpublished) that signaled to lawyers that certain decisions could be ignored without any expenditure of effort to read or analyse the content of the decision itself. They reinforced the intellectual structure that was a by-product of the selectivity inherent in the early print system. In their absence, lawyers must deal with the whole body of available case law.
(2) The Digital System: Selectivity Ended
Digital media virtually eliminated all the storage, transmission and access restrictions that the print system imposed on case law. Decisions were often available in digital form long before they appear in print, with many present-day decisions being available within only a few days (or even hours) of their release. A major practical effect of the transition to the digital system was an increase in the volume of case law that lawyers employed in practice and cited before courts. Given past judicial attitudes towards over-citation, the judicial response to this trend was quite predictable. It is perhaps best summarized by the comments of Laddie J in Michaels v Taylor Woodrow Developments Ltd:
In this case reference was made to a number of unreported decisions which have been obtained from legal databases or from the mechanical recording department of the law courts. This is not new, but the recent growth of computerised databases has made it an even more frequent and extensive occurrence. There are now significantly more judges, more cases and more databases than there were even two decades ago. Until comparatively recently, this was not a substantial problem. The courts were only taken to cases which had been published in a limited number of sets of law reports after selection by legally qualified editors. Even in the 1970’s, there were no readily available and cheap means for copying unpublished reports, even if they could be found. The lawyers who attended court had to bring with them those volumes of the law reports containing the particular reports on which they intended to rely. Logistics problems helped to lessen the enthusiasm for over-citation of authority.
Now there is no pre-selection. Large numbers of decisions, good and bad, reserved and unreserved, can be accessed. Lawyers frequently feel that they have an obligation to search this material. Anything which supports their clients’ case must be drawn to the attention of the court. This is so even when it is likely that the court which gave the judgment probably never intended it to be taken as creating a new legal principle. … Further it is a fact of life that sometimes courts go wrong, or at least not conspicuously right. That is why we have a system of appeals. A poor decision of, say, a court of first instance used to be buried silently by omission from the reports. Now it may be dug up and used to support a cause of action or defence which, without its encouragement, might have been allowed to die a quiet death. Thirdly, it is a common experience that the courts are presented with ever larger files of copied law reports thereby extending the duration and cost of trials, to the disadvantage of the legal system as a whole. It seems to me that the common law system, which places such reliance on judicial authority, stands the risk of being swamped by a torrent of material, not just from this country but from other jurisdictions, particularly common law ones.
In fairness, predictions of common law systems drowning under the weight of their case law are not new, and may be exaggerated. Links between an increased volume of available case law and the underlying theory and justification of legal systems were being identified well before the arrival of the digital system. American scholars had directly linked the high volume of cases being printed in West’s reporters, laying bare an ocean of often inconsistent decisions, with the abandonment of formalist theories of law in favour of legal realism, and being a direct motivation for the codification movement. Also, the selectivity created by the print system may have been doing more than burying isolated, problematic decisions, and instead may have actually concealed underlying trends in common law systems, with the consequence that the transition to the digital system may unmask new or conflicting principles of substantive law within a legal system.
The increased volume of case law made available by the digital system also has the potential to alter the idea of precedent. Some have argued that the modern system of stare decisis based on a single judicial decision is a product of the print system that cannot survive the mass of case law being output by the digital system. While stare decisis could not work without the standardized reporting of case law provided by the print system, it required there to be a limit on the volume of available case law. With too much available case law the ideas underlying stare decisis, such as fairness, certainty and predictability are undermined as it becomes increasingly difficult to reconcile the available body of case law.
Various ideas have been offered as to what precedent will look like under the digital system. Martin has suggested that the digital system may trigger a breakdown of the dichotomy of mandatory and persuasive authority, with the precedential value of decisions not being contingent on their source but on the cogency and persuasiveness of their content or on the reputation of certain courts and judges. Another theory holds that precedent will shift to a more quantitative basis, with the force of a particular proposition being contingent on the number of times it has been endorsed or followed. One rationale for this theory is that the digital system has allowed for more reporting of trial decisions and interlocutory matters.
One impact of the digital system that is already measurable is the effect of the increased speed of reporting decisions. The idea of precedent is based on the idea of a measured, incremental pace of change within law. This was facilitated by the print system with its selective publication and slower pace of dissemination. But the digital system, with its far more rapid distribution of information, allows legal change to occur much more quickly.
This shift has been felt in Canada. In the 1993 decision of Buchanan v Wassef, Master Funduk rejected the argument that an appellate decision on point should not be followed because it was 12 years old, wryly commenting that “it can forcefully be argued that judgments of the Court of Appeal are like a good wine and improve with age”. But a nearly contemporaneous study of citation practices of provincial appellate courts revealed the opposite attitude towards jurisprudential vintage: the average age of prior precedents cited in appellate decisions had been consistently dropping. Historically, publication delays for printed law reports (often lengthy in Canada) meant that it took time for lawyers and judges to become aware of and adjust to a new decision. Yet there is always a perceived value in referring to the most recent judicial pronouncement. With the arrival of the digital system’s comprehensive and nearly instantaneous reporting, the length at which a decision can be considered recent is significantly shortened. The downside to this attitude is an increased willingness to question or re-examine past precedents, a tendency not necessarily consistent with traditional theories of precedent or stare decisis.
(3) Selectivity’s Legacy
Selectivity has not been totally defeated just yet. It continues to fight a rearguard action in the form of restrictive citation practices. While these rules have come under increased criticism, given that digital reporting has removed many of their original rationales, and indeed made the whole distinction between reported and unreported cases quite meaningless, they continue to exist in many jurisdictions. As recently as 2010 the English Court of Appeal insisted that counsel should be able to “justify” every single case they cite before that court. No-citation rules have fared less well in the United States, where they became increasing controversial into the 1990s given massive increases in the rate that courts were designating their decisions as non-publishable. The controversy culminated in 2000 and 2001 with challenges to the constitutional validity of no-citation rules in the federal court system. Subsequently, many American jurisdictions relaxed or abandoned rules prohibiting the citation of unpublished decisions, although many courts continue to treat their unpublished decisions as non-binding, meaning that counsel may only cite them as persuasive sources.
As a result, some degree of the intellectual structure created by selectivity is still preserved by the increasingly anachronistic but binary labels of reported/unreported or published/unpublished. Despite the increased volume of case law made available by the digital system, the legacies of the print system allow lawyers in England and the United States to be able to identify a smaller body of decisions to focus their attention on.
No such guidance exists in Canada. Selectivity was solely the result of the limits of Canada’s legal publishing climate and was never formally entrenched via restrictive citation practices meaning that there is no intellectual structure remaining to guide lawyers in the digital system. The result is that lawyers and legal actors need to deal with the total, increasingly larger body of case law made available through the digital system.
For a common law system based on precedent to function, means must exist to make past judicial decisions available to subsequent lawyers and judges. A decision that cannot be known or applied in a subsequent legal dispute cannot have any influence on the outcome. Absent a legal system where an individual could obtain personal and unmediated knowledge of all prior decisions, the usability of prior case law is contingent upon the organizational structures, finding aids or other assistive tools that facilitate the identification and retrieval of individual decisions, and upon the texts and scholarship that condense and summarize existing case law. These structures, aids and tools, what today we would refer to as secondary sources (indexes, digest, abridgements, treatises, etc.), constitute a layer of externally created curation that facilitates and mediates individuals’ interactions with the raw data of judicial decisions.
The role of curation in the print system and its future in the digital system has been the subject of considerable scholarly attention, much of it being highly cautionary. One body of opinion holds that the curation that accompanied the print system did not simply constitute a neutral research infrastructure. Instead, it created an intellectual structure of law that allowed it to be both external comprehensible and internally coherent. With the transition to the digital system, which is displacing not just print-based curation but the whole idea of curation, there is a risk that the structure of law will weaken or collapse, with law becoming less predictable and feasibly losing its legitimacy.
(1) Curation in the Print System
Perhaps the most influential scholarship on the role of curation in a common law legal system is Robert Berring’s work on the role of the American Digest System. First published in 1887, only three years after West’s reporters started nationwide coverage, the idea behind the West Digest was to create a comprehensive legal taxonomy that would allow for every decision published in West’s reporters to be classified and searched according to the legal issues with which the decision dealt. West’s editors would identify the legal issues discussed in reported cases and then connect those issues to the various topics within the West Digest’s hierarchy of topics, sub-topics and key numbers. These topical connections were summarized through the use of headnotes attached to the text of individual decisions.
The West Digest was not entirely novel, given that digests had been produced as far back as the 15th century. Nor was Berring the first to identify a link between the structure of substantive law and a digest of cases. A century earlier Frederick Pollock had quipped that “the state of English case-law as a whole might not unfairly be described as chaos tempered by Fisher’s Digest”. Yet Berring’s analysis of the West Digest is useful beyond the specific American context it was used in. Given West’s near dominance of law reporting the United States and the significant role West’s publications played in both American legal practice and legal education, the West Digest is almost a paradigmatic example of curation in the print system.
Berring argued that the West Digest wasn’t just a tool to find the law: in many ways the West Digest became law itself. The categories, concepts and labels the West Digest’s editors employed to classify the cases published in their reports (which may have been entirely arbitrary to begin with) were adopted, with the passage of time and continuous use, by the legal community as being internal to law itself. The topic system merged into legal reasoning, becoming a “world of thinkable thoughts” that lawyers would use to not only find old cases but also to assess and classify new legal problems.
At a more foundational level, Berring argued that the West Digest did something more than just explain and organize law’s internal structure and taxonomy. It went further and enshrined the idea that it was possible for law to even have a structure. The West Digest was premised on the assumption, by no means axiomatic, that every past decision, and any future one, could somehow be fit into a coherent taxonomic hierarchy:
This subject arrangement lent its structure to American law. Because it was a universal subject thesaurus, locating every point in every case by subject, then placing the case in a location in the printed Digests, it imposed a continuing structure on the law. Language and concepts were normalized as the West editor prepared the headnotes for each case, (remember West published a print version in its National Reporter System of every decision published), which helped to make the law comprehensible and lent overall structural coherence. Though West might adjust its subject structure, the fact of a structure remained.
But the West Digest is very much an artifact of the print system, and its prominence among American lawyers is fading away.
The decline of the West Digest is not simply the result of a loss of interest in one particular publication. Rather, it epitomizes a declining influence of traditional legal secondary sources more generally. This is not to say that the digital system lacks secondary sources. Large numbers of pre-existing print works (including the West Digest) have been migrated to digital platforms. Going forward though, it is unlikely that the digital system will continue to produce, encourage or value traditional forms of secondary literature. Practically, the digital system is simply outputting too much case law for any form of curation to viably incorporate and manage it in a manner that would be practically usable and economically viable. Instead, new legal literature under the digital system has been emulating digital models such as blogs or wikis, models not necessarily comparable to traditional legal scholarship. However, the question of whether or not purely digital models of legal scholarship could perform a curation function similar to print legal scholarship may be moot. From its inception, the digital system has had a marked tendency to reject curation.
(2) The Digital System: Search Engines, Not Curation
The defining feature of the digital system is the search engine. From its earliest days, legal research in the digital system was designed to have users directly interact with the text of judicial decisions. It was to be “nonindexed, full-text, on-line, interactive, computer assisted legal research”. In short, searching in the digital system is unmediated: users are not locked into any pre-existing topical or conceptual framework and can invent their own searches based on the specific words or text they are looking for. Moreover, the forms in which searches are conducted in the digital system are fundamentally different than the print system. While the print system offered several different search tools, all of which resulted from human mediation and were generally organized around concepts, searching in the digital system is dominated by the “precision guided weapon” of free text searches where a user is taken to the exact point in a document where a searched-for term or collocation of text is found.
Many predictions have been made as to what this change portends, but it will be useful to identify several propositions that generally cover the field.
(a) Loss of Structure
Berring foresaw the collapse of the intellectual structure created by the West Digest as heralding a crisis in legal thinking. Free-text searches would allow individuals to “order legal doctrine as it suits their needs” and would reveal that there was “no underlying rational structure to law”. Because the digital system is premised on researchers directly interacting with the text of case law, the intellectual structures created by secondary sources are by-passed and lose their influence. The result is that the free-text searching that characterizes the digital system results in disintermediation: a researcher has no assistance in the form of pre-existing indexing or organization of the information being searched. While the searcher may be liberated from the constraints such indexing or organization might have imposed on searches, this does not mean that the searcher is free from his or her own biases or, more likely, their own ignorance of the full size of the body of information he or she is searching. A particular problem with digital searching more generally is that the ability to obtain large amounts of research results quickly encourages a false sense of security that a researcher has located not only relevant material but all the relevant material available.
Another effect of free-text searching is the “disaggregation” of results. Unlike searches conducted through secondary sources, the documents found via free-text searches do not necessarily have any meaningful connections with each other. As Hanson notes, a classification system like the West Digest is “a ‘top-down’ device, where the relationship between particular items is intelligible in terms of general principles”. In contrast, free text searching is simply the act of matching selected symbols (key words) with those in particular documents without conveying any idea as to the connection between those matches and other material in the database. As a result, the searcher loses the benefits of being able to understand information within larger structures. Disaggregation is a particular problem for searching legal materials, especially case law, where connections between various sources (subsequent judicial treatment, citation history, or judicial consideration of statutory text) are crucial.The digital system presents case law in an unstructured way, but neither case law nor the common law system that employs and creates it are unstructured. Quite the opposite: a common law legal system is predicated on structures. Decision making occurs within judicial hierarchies, legal power is distributed across different jurisdictions, and there are complex relationships between courts, legislatures and administrative agencies.
(b) Loss of Depth
There has been much debate over the impact of digital media, and the internet in particular, on individual cognition, reading and the distribution of information. Perhaps most succinctly summarized in Nicholas Carr’s 2011 book The Shallows – What the Internet is Doing to Our Brains, there is a growing concern that the internet, a system based on the delivery of large amounts of hyperlinked information at high speed is having a negative impact on reading and understanding. This is because digital media often over-taxes human cognitive faculties, interferes with the formation of memory and encourages skimming over deep reading. Transposing these concerns to the specific context of law, the fear is that the digital system will both encourage negative legal research habits and damage legal reasoning skills.
The impact of the digital system on research habits has been a particular concern in the realm of legal education. Students at present-day law schools are almost entirely digital natives, students whose intellectual and educational experiences are set against an almost entirely digital background. Familiarity with search engines, social media, and the instantaneous transmission and location of information is often accompanied by a disinterest in learning law or legal research skills through a curated process. This disinterest apparently extends to situations where students (or lawyers) have access to curation through digital sources. As a recent article on legal research training in Canadian law schools put it:
If an item is available in both formats, the digital resource is usually preferred; if it exists only in print, it is usually rejected. Training students on the use of the library catalogue has become a waste of time and it is even more difficult to get students to use one of the many online sources that attempt to organise the law by topic, sub-topic and issue in the same manner as their print progenitors. Apparently working one’s way through a series of online subject headings and sub-topics is too slow and cumbersome and simply tossing a few salient terms into Google is still better than relying on the intellectual efforts of others.
The problem is that, unlike Facebook status updates or tweets, case law is a complex form of information, one that requires a “methodology that encourages deep reading and mastery, rather than the process of rapid rule extraction that often accompanies texts located through the use of isolated word searches”. Moreover, the speed of the digital system encourages “uncritical and impatient” searching of legal sources and over-emphasizes obtaining a specific answer over the reasoning process or the surrounding context of information. The ability to obtain large search results in a short time also leads to uncritical acceptance of the first results one obtains. In general, the fear is that the digital system, and particularly free-text searching, is encouraging the replacement of classic legal reasoning by “lawbyte reasoning”: the over-reliance on bits of information and “kernels of phraseology” extracted from case law without any consideration of matters of context, theory, reasoning or policy behind case law.
On one level, such lawbyte reasoning focuses on search criteria that can more readily and consistently be identified by free text searches. The most prominent consequence is a shift in emphasis in legal research from legal concepts, rules and propositions to particular facts, since the latter are often more readily identifiable by particular words or collocations of text, and therefore are more amenable to free-text searching. Bintliff saw this shift as a complete inversion of traditional legal reasoning. According to Bintliff, in the print system the process of legal reasoning was based on the distillation of general principles from a review of decided cases and then applying those principles to the facts of a particular problem. In contrast, the digital system reverses this process: a digital researcher begins by searching out authoritative cases based on comparable fact patterns, with legal principles being secondary considerations. Others have argued that free-text searches based on facts deprive the researcher of the ability to engage in concept browsing, or the ability to see the place of individual cases within their larger contexts. The result is a myopia in legal research, which in turn undermines both accuracy and creativity in legal thought and legal argument.
On another level, perhaps a more fundamental level, the digital system’s encouragement of the search for “kernels of phraseology” in case law may challenge the traditional conception of precedent. According to the orthodox view, the precedential effect of case law is not discerned by finding particular verbal formulations in the decision but rather by a comprehensive analysis of the decision and the articulation of the principle or rule underlying the decision (often referred to as the ratio decidendi). While there has never been strict agreement on the definition or the means of determining a ratio of a given case, it is relatively uncontroversial that determining it requires a reasoned analysis of the decision in light of its facts, the issues in dispute, and the wider legal context in which it is decided.While the actual text of a judicial decision plays a role in determining a ratio, the actual words a court employs are not determinative nor are they binding by themselves.
But the orthodoxy may belie what is happening within the common law and how lawyers and judges are treating the text of judicial decisions. Tiersma argued that the concept of precedent, particularly in the United States, has been undergoing a process of “textualization”, with the legal force of case law being increasing found in its verbal formulation. Judicial opinions increasingly resemble statutory pronouncements, and courts are increasing engaging in a kind of textual exegesis of earlier decisions once reserved solely for legislation. This process was, in Tiersma’s view, well in progress before the arrival of the internet, but the transition to the digital system and free text searching is likely to only intensify it.
While Tiersma sees a change in legal method, described as a shift from “legal reasoning to close reading”, others see a more ominous breakdown of legal reasoning. Several scholars have argued that one of the fundamental distinctions in legal reasoning, between ratio and obiter, is becoming confused and potentially disappearing. Replacing it is the superficial practice of understanding precedent as a search for “directive language” contained in key sentences or phrases within judicial decisions. The digital system has been identified as a cause of this shift towards directive language, as it encourages researchers to focus on particular text and also permits them to search for quotations within decisions that are helpful, regardless of whether the quotation is part of the ratio. Such a trend is by no means neutral. The delivery of reasons is not only the main vehicle by which case law is created, it is also one of the key ways that courts legitimate their decisions. Focusing on isolated extracts of judicial reasons, particularly extensive jurisprudential appeals, can lead to misapprehension of the law or the nature of a decision, especially if quotes are taken out of context or from a relatively unimportant part of a decision.
(3) Curation: The Canadian Experience
So far, much of the discussion of curation has involved the American experience. Yet the scholarship establishes two general propositions: first, the substantive character of law, the concept of precedent and legal reasoning were all influenced by the curation that existed in the print system; second, the digital system discourages the use of curation, and therefore will result in changes to substantive law, precedent and legal reasoning. Applying these propositions to the Canadian context, if we assume that the speed and pervasiveness of changes prompted by the digital system are inversely correlated to the strength of the print system being displaced in that legal system, then the speed and severity of the transition to the digital system should be more acutely felt in Canada than elsewhere. There are two reasons for this. First, the rise of the digital system has not been an exclusively legal phenomenon – it has affected all information-based activities – and so there is little basis to distinguish the Canadian experience of it from that found elsewhere. Second, and more importantly, when compared with other common law jurisdictions, Canadian law had very little curation under the print system and the intellectual and conceptual structures and habits created by the print system were nowhere near as entrenched as they were elsewhere.
(a) Historical Canadian Curation
It is an unfortunate fact that legal scholarship and print-based curation in Canada has historically been weak. Part of the cause was the geographical, jurisdictional, demographic and economic factors that negatively affected legal publishing in Canada more generally. Yet there were institutional factors as well. The lack of university legal education in Canada’s early history deprived it of fora for legal scholarship, and, until the mid-20th century, legal education was often not conceived of as anything other than the “teaching of a trade”. The functional merger of the profession of barrister and solicitor, and the absence of courts with specialized subject matter jurisdiction as could be found in England, all negatively affected the development of an indigenous Canadian law by depriving of it of scholars or specialists in particular fields of law. Into the 20th century, there continued to be a notable apathy towards legal research and scholarship in the Canadian legal community. A 1956 report by the Canadian Bar Association noted (and criticized) not only a general lack of research facilities, qualified individuals or funding for legal research but also a general lack of interest in legal research and scholarship, particularly on the part of the legal profession.
For the majority of its history, both Canadian case law and the tools for its curation were mostly imported from elsewhere. For nearly a century after Confederation, Canadian lawyers and courts drew heavily on English legal information. This was more than simply a tendency on the part of Canadian courts to follow the lead of their English counterparts, although this happened with a predicable regularity. It extended to an almost wholesale reliance on English legal scholarship:
To the ordinary Canadian practitioner, the common law of England is just as much his law, perhaps more so, than the common law of his own province. To look up a point of law, he turns first to Halsbury’s Laws of England and to the English cases; he then searches the English text-books; then only does he turn to the Canadian cases and the Canadian digests. The reason for this is not sentimental but necessity. The volume of reported Canadian case law is small indeed, and what there is of it assumes a vast body of English law as its background. To fill in the gaps, even to understand them, the Canadian lawyer must go back to the English text-books and digests. … Practitioners, provincial courts and the Supreme Court of Canada are therefore driven to make use of English cases, digest and texts and, as a result, come to regard English law as their own.
Even where Canadian legal writing was produced, it often tended to be what Bora Laskin called “useful parasitism for practitioners”: “a Canadian penchant for mounting Canadian material on non-Canadian texts”, usually English in origin.
Yet reliance on English legal information does not appear to have been entirely successful in providing Canadian law with effective curation, at least in the long term. It may have been a viable practice for a young dominion which still had the Judicial Committee of the Privy Council at the apex of its judicial hierarchy, but it would become increasingly ineffective as Canada matured as an independent nation and sought to develop its own law.
(b) Operation Compulex & Canadian Legal Publishing
The publication of Canadian legal writing, and the creation of truly Canadian forms of print based curation, increased significantly in the 1970s. At the beginning that decade, the state of curation of Canadian law was abysmal. There was a lack of basic research aids such as indexes, digests and treatises, and there was still heavily reliance on English texts. Change came in the form of a response to market conditions and a 1972 study commissioned by the Department of Justice into the research needs and practices of lawyers. “Operation Compulex”, as it was called, found that most lawyers found legal research tedious, difficult to conduct due to a lack of basic tools, and difficult to justify billing to clients. The state of Canadian legal literature, both in the form of law reports and legal texts, was the subject of particular complaints. What research was done was conducted through a series of ad hoc methods and shortcuts, “a complex network of informal mechanism in response to the deficiencies of the basic system”. Yet despite these problems, the actual conclusion of the study was that there was little value in trying to improve the print system, as it still functioned to some degree, and as any benefits would not be worth the effort expended.
Despite this gloomy outlook in the decade after Operation Compulex was published there was a significant increase in the volume of Canadian legal publishing. One key area, one which allows for direct comparison to be drawn between the Canadian and American experiences of curation, is the increased availability of Canadian indexes and digests. One key finding of Operation Compulex was with respect to complaints among Canadian lawyers about the lack of indexing of Canadian law:
Indexing was the most frequent complaint by lawyers. This may be related to the fact that lawyers have other indexing systems to compare with those in Canada. Invariably when a complaint was lodged the lawyer would recommend the [West Digest] in the same breath. Lawyers would like to have standard terminology among indexes. They would like the terminology to be oriented toward the needs of the practicing lawyer. They would like comprehensive cross referencing with much more detail than typically exists at present.
The call for better digests was responded to: between 1970 and the early 1980s, the number of Canadian digests available roughly doubled151 and one publisher, Maritime Law Book, made a specific attempt to reproduce a national reporter system and digest directly modelled on West’s publications. Yet no single index or digest would come to dominate Canadian law the way the West Digest did. Moreover, the traditional curse of duplication and lack of co-ordination across publishers continued to be a problem. A legal research handbook published in 1983 noted that a researcher might have to “consult four of five different digests just to be assured of reasonable case law coverage within a single province.”
In the realm of case law, a similar reaction occurred with increased volume but not necessarily increased co-ordination. Between 1977 and 1987, the number of current series of law reports more than doubled, from 32 to over 70. Similarly increases were seen with legal texts and legal periodicals.
(c) Probably Too Much and Certainly Too Late
Looking backwards from the 1980s, the West Digest, what Berring saw as the foundation of the structure of American case law, had been in place for over a century alongside a well-established, uniform system of organizing and reporting case law. In contrast, Canada had no such single, dominant method of organizing its case law, and while the breakout of legal publication in the 1970s could have provide some basis for print-based curation of Canadian law, it likely occurred too late to lay down any significant roots before the arrival of the digital system.
In some ways, the arrival of the digital system may have been seen as a solution to the perennial problems Canadian law experienced under the print system. In a published summary of Canadian legal research practices in 1989, Marshall claimed that since 1985, the legal database services provided by QL Systems Ltd (a legal research system developed in Canada and the forerunner to Quicklaw) had established enough online content to “provide reasonable access to Canadian law” and was also the most current source for case law. It was even suggested that access to digital legal databases had “alleviated the need” to acquire subscriptions to the increasingly large number of Canadian law reports. Such sentiments could only have gotten stronger as the years went by.
6. Conclusion: The Effect of the Digital Transition in Canada
The Canadian experience of the print system was one of weakness in legal information. But this does not mean that Canadian common law did not participate in the print system. This essay began by suggesting that legal media, legal reasoning and substantive law all participate in a reciprocal, co-causal relationship with each other. In the print system, the print-based dissemination of case law was co-causally linked with both legal reasoning and substantive law itself. Canadian law did not develop independently of the print system – Canadian law fully adopted the methods, reasoning and institutions of the print system. Stare decisis, the concept of precedent and legal reasoning based on the ratio decidendi are all hallmarks of the print system and all are part of the Canadian orthodoxy. Canada’s difficulty, of course, was with respect to the media part of the print system as it failed to building effective structures and sources of legal information. But Canadian law never attempted to develop an alternative legal media or alternative legal methods. Rather it laboured along using its small pool of law reports and imported treatises, emulating as best it could the methods of other common law legal systems. Yet while Canadian law used the print system, it did not become as invested in it as other common law jurisdictions. There was not an unbroken line of multiple generations of lawyers who were trained in and used a single authoritative organizational source for law, such as American lawyers’ with the West Digest. Canada did not have a single system of authoritative law reports. When selectivity in law reporting began to break down, there was no institutional reaction in Canada in the form of restrictive citation practices. And, finally, when an alternative to print-based legal information appeared in a digital form, there was a degree of receptivity to it and certainly no significant fear that it represented any kind of existential threat to the Canadian legal system.
The end result is that as the digital system emerges as the dominant form of legal information dissemination, jurisdictions like England and the United States have a significant history of printbased practice to fall back on. While digital may displace print as the source of legal information, the legacy of print leaves behind an intellectual architecture that can act as bulwark against the disruptive effects of the digital transition on legal reasoning and substantive law. No such bulwark exists in Canada.
In closing, there is a strong temptation to uncritically see the transition from print to digital systems of legal information as the exchange of functional equivalents: the delivery of the same content but simply in a different mode. Such an assumption would be mistaken. There is a very real and very consequential difference, one that lawyers need to be aware of if they are to properly discharge their professional obligations.