What is behavioral economics?

Behaviorial economics studies the effects of insights from psychology on economic decisions.

Daniel Kahneman, a psychologist, was awarded the Nobel prize in economics in 2002, for his work in judgment and decision making. Kahneman's work is the subject of his 2011 book, titled Thinking, Fast and Slow. He is the only non-economist to receive the Nobel prize in economics.

Kahneman in his book refers to intuition as operating automatically and quickly with little or no effort. In contrast, are effortful mental activities demanding attention, including complex computations. Two plus two requires no effort, but 17 times 24 requires attention and some thought. Kahneman in his book makes the case that at times a person's intuition must be modified or corrected by a thought process.

A summary of subjects from Kahnerman’s book is as follows:

- Circumstances can have material effects on individual decision making. In the supermarket signs and product placement on shelves affect decisions by buyers;

- In organ donation, some countries have very high participation rates by requiring a negative choice on driver's licenses. That is, the default choice is to donate organs;

- Our minds are susceptible to systematic errors ;

- We now understand the marvels as well as the flaws of intuitive thought;

- The accurate intuitions of experts is explained by the effects of prolonged practice, e.g. chess masters;

- Emotion is a part of intuitive judgment;

- We are prone to overestimate, and we underestimate the role of chance in events;

- Attentive thinking, including self control, takes over when things get difficult;

- Biases cannot always be avoided because attentive thinking may not recognize the error;

- Jumping to conclusions is risky when the situation is unfamiliar;

- Uncertainty and doubt are part of attentive thinking;

- From a single observation, we tend to like (or dislike) everything about a person, called the Halo Effect;

- Answering very difficult questions, such a predictions, can be impractical;

- It is error to regard a random sample from a population as highly representative of the total population (part of the law of large numbers);

- In labour negotiations the existing wage level is used as a base to demand a wage increase. Psychologists refer to this amount as an anchor. Also the seller of a house when fixing the asking price is aware of the price she paid for the house two years before and that price affects the buyer's asking price. Kahneman suggests that if you are faced with an outrageous proposal, that you should refuse to continue to negotiate with that number on the table;

- Persons tend to ignore probabilities and consider only the possibilities when buying lottery tickets (Adam Smith offered the same advice in 1760);

- A person should adopt risk policies such as “always take the highest possible deductible when purchasing insurance” and “never buy extended warranties”;

- People overestimate the probabilities of unlikely events;

- Estimates of the causes of death are warped by media coverage;

- Probability neglect plus media coverage leads to risk exaggeration;

- Intuitive predictions need to be corrected because they are not regressive and therefore are biased;

- We have an illusion of understanding of the past. We assign a larger role to talent and stupidity than to luck;

- We have an almost unlimited abilty to ignore our ignorance;

- We refuse to acknowledge the uncertainties of our existence;

- A CEO’s influence is exaggerated because luck plays a large role in any firm’s success;

- The evidence that we cannot forecast success is overwhelming;

- Professional investors fail a basic test of skill, persistent achievement;

- Valid predictions are an illusion because the world is unpredictable;

- Experts tend to develop an enhanced illusion of their skill and become unrealistically overconfident;

- Humans are inconsistent in making summary judgments of complex information, e.g. reading of X-rays;

- Use of formulas or algorithms maximizes predictive accuracy;

- Intuition can only be trusted in an environment of stable regularities, e.g. bridge and poker;

- Overly optimistic forecasts of the outcome of projects are found everywhere;

- Optimists adapt well to hardships and take care of their health and live longer;

- Intuition includes overconfidence that can be tamed but not vanquished;

- Mental accounting affects behavior; e.g. keeping score while playing golf;

- The sunk-cost fallacy keeps people for too long in poor jobs, unhappy marriages, and unpromising research projects;

- Except for the very poor, the main motivators of money-seeking are not necessarily economic.

- Bad news. The brains of humans and other animals contain a mechanism that gives priority to bad news. For example, an animal’s ability to detect a predator improves the animal’s chances of survival.

The psychological insights described above are at odds with an economist’s view of an agent of economic theory: “rational, selfish and his tastes do not change”. To a psychologist it is self-evident that people are not fully rational nor completely selfish, and their tastes are anything but stable.

The concept of loss aversion is a significant contribution of psychology to behavioral economics. Professional golfers putt more accurately when putting for par than for birdie. Loss aversion is a force that favors minimal change in our lives and institutions.

Several videos of Daniel Kahneman and his work are available on YouTube.

 Matt Ridley wrote a book titled The Rational Optimist that was published in 2010.

Ridley is an English journalist with an education in science. In his book he is concerned with the origins of the prosperity that exists in the world, arguing that the road to prosperity began with exchanges that resulted in a benefit to both parties, including barter, a method of exchange that can be done without money. In many exchanges both parties may feel that the other is overpaying. Over time increases in exchanges resulted in specialization followed by innovation. Ridley states that the ever-increasing exchange of ideas leads to the ever increasing rate of innovation in the modern world.

Perhaps the best known example of specialization and innovation is in the field of farming. In 1790 farmers were 90% of the U.S. labour force. In 1980 farmers were 3.4% of the U.S. labour force. Ridley states that today one per cent of workers work in agriculture, “24% in industry, leaving 75% to offer movies, restaurant meals, insurance broking …” etc.

Ridley argues that trade is an element of prosperity. He says that self sufficiency leads to poverty. If a person tries to create all of his own food, shelter and clothing he is 100% occupied in these tasks and has no time to specialize. Ridley refers to nations that have tried to be self sufficient and the result is poverty. The Ming emperors demonstrated how to stifle an economy by forbidding, among other things, all trade and travel without government permission, and by requiring peasants to grow for their own consumption and not for market.

Ridley says that every nation that has tried protectionism has suffered; examples are North Korea under Kim Il Sung and China under Mao Zedong.

Innovation can destroy as well as create and it is unpredictable. Ridley states that the fields of knowledge and innovation are limitless.

I am familiar with innovation in the reporting of case law in Canada.

In the 1960s there were no provincial case law reporters except for Ontario and Quebec. The Western Weekly Reports covered all four western provinces and the Maritime Provinces Reports covered the four Atlantic provinces. In 1968 Carswell cancelled the Maritime Provinces Reports. In the 1970s Carswell commenced several topical reporters and also during the 1970s Maritime Law Book commenced three provincial reporters for the Atlantic provinces plus three provincial reporters for the Prairie provinces. The new MLB provincial reporters were:

New Brunswick Reports (2d)
Nova Scotia Reports (2d)
Newfoundland & Prince Edward Island Reports
Manitoba Reports (2d)
Saskatchewan Reports
Alberta Reports

Another innovation, paragraph numbering. I believe that Maritime Law Book was the first to add paragraph numbers to decisions published in Canadian case law reports. The numbering of paragraphs is an innovation that facilitates the search for content in a judgment.

The arrival of the computer and the Internet and their application to legal research are innovations that led to major changes in case law publishing.

Recently, the biggest innovation in case law publishing has been the creation on the Internet of several web sites where the public has free access to judicial decisions. As a result, some print case law reporters may cease publication, being the victim of innovation and change that the economist Joseph Schumpeter famously described as “creative destruction”.

What is the Cultural Commons?

The cultural commons is a vast store of ideas, inventions, and works of art that we have inherited from the past. A commons is a kind of property in which more than one person has rights. A commons is a social regime for managing a collectively owned resource.

In writing about art and ideas, Lewis Hyde, in his book titled, Common as Air (2010) states at page 214 "art and ideas, unlike land and houses, belong by nature to a cultural commons, open to all".

In Imperial China, 900 to 1800, to copy the work of those who came before was a matter of respect rather than theft. (Hyde, Page 20.)

Thomas Jefferson (1743-1826) said: "The field of knowledge is the common property of mankind".

Benjamin Franklin (1706-1790) said that we have unpayable debts to the world around us, to our community, to our forebears, to the ancients, to nature, and to the Gods. (Hyde Page 145.)

History of Printing

Johannes Gutenberg (1398-1468) was the first European to use movable type printing, circa 1439.

In the 17th century there were a mere 20 printers in London, England who had monopoly privileges. In the 18th century there were 30,000 printers and booksellers in England. (Hyde Page 89.)

In the 18th century, American revolutionaries stated that monopoly privileges must be limited and not be perpetual. In the European experience, perpetuities were a tool of despots.

In Britain, circa 1620, the Crown prohibited the publication of proceedings of Parliament. (Hyde Page 150.) In Maryland, U.S.A., in 1693 a printer was jailed for publishing the proceedings of the legislature.

History of Copyright and Patents

Samuel Johnson in the 18th century stated that the interests of learning are against the creation of a perpetual copyright in favour of authors.

John Dollond (1706-1761) was an English optician who successfully claimed a patent in a case where Lord Mansfield stated that the advantage that an inventor gains is not for having made the invention, but for having disclosed the invention to the public, so that when the limited period of his patent has expired, the public gains the free use of the idea. Similarly, a limited copyright can be described as a grant whose true purpose is not to reward creators but to enrich the cultural commons.

In England, after the invention of the printing press, the Crown in 1557 granted monopoly rights to a group of London printers, whereby the London printers enjoyed a state-sanctioned monopoly over what appeared in print. In 1710 the first copyright law, the Statute of Anne, granted authors, upon registration, copyright in their works for 14 years. In the absence of registration all books entered the public domain as soon as they appeared. The Statute of Anne was the first copyright law and had the effect of opening up the book trade and created a cultural commons in books. The proper name of the Statute of Anne was "An Act for the Encouragement of Learning".

Adam Smith (1723-1790) in his classic book, The Wealth of Nations, condemned grants by the Crown of monopoly rights to commercial interests such as the London printers.

The Legal Commons

Hyde states that the legal community came to life through agreed-upon non-ownership of creative labours. That is, legal opinions are public documents belonging to no one because they belong to all of us. Hyde states that nobody has ever successfully claimed copyright in the unauthorized use of someone else's legal argument. In fact, legal writers want to have their work appropriated. The law is collective: it belongs to all citizens…. to sample someone else's brief is a favour, not a theft …. common ownership makes that species of public life possible. (Hyde, page 248 and 249.)

In Newsletter No. 15 in September 1995, Maritime Law Book stated that we "do not claim copyright in judicial decisions. But we do claim copyright in our headnotes".

Starting in June 2008 MLB provided free access to all its databases, except headnotes. We call such access Raw Law.

The MLB Key Number System was created by MLB by reliance on classifications or topical arrangements found in legal texts and legal encyclopedias. Should our claim to copyright in the Key Number System be questioned? MLB has consistently granted permission to law librarians for the use of our Key Number classification system for a library's internal use.

Noah Webster in creating his famous dictionary borrowed extensively from Samuel Johnson's dictionary. Nevertheless, Webster claimed a perpetual copyright in his work. (Hyde Page 185 and 186.)

In Law Society of Upper Canada v. CCH, 317 N.R. 107, [2004] S.C.J. no. 12, the Supreme Court of Canada stated at para. 35 that judicial decisions are part of the legal commons. Paragraph 35 stated:

[35] This said, the judicial reasons in and of themselves, without the headnotes, are not original works in which the publishers could claim copyright. The changes made to judicial reasons are relatively trivial; the publishers add only basic factual information about the date of the judgment, the court and the panel hearing the case, counsel for each party, lists of cases, statutes and parallel citations. The publishers also correct minor grammatical errors and spelling mistakes. Any skill and judgment that might be involved in making these minor changes and additions to the judicial reasons are too trivial to warrant copyright protection. The changes and additions are more properly characterized as a mere mechanical exercise. As such, the reported reasons, when disentangled from the rest of the compilation – namely the headnote – are not covered by copyright. It would not be copyright infringement for someone to reproduce only the judicial reasons.

The development of computers changed and enhanced the searching of caselaw.

In 1971 a study of the application of computers to legal research was undertaken by the Federal Department of Justice and the Canadian Bar Association. The study was completed in April 1972 and the opening paragraphs of the report were as follows:

This study referred to as ‘Operation Compulex’was undertaken at the initiative of the Federal Department of Justice and the Canadian Bar Association. The Bureau of Management Consulting of the Federal Government was engaged to carry out the inquiry which began in June of 1971 and terminated in April 1972.

What was the reason for this inquiry? Both the Department of Justice and the Canadian Bar Association were interested in investigating whether technological developments in the information field might be of assistance to the practicing lawyer. The purpose of the inquiry then, was to determine if the practicing lawyer is experiencing difficulties with his current manual approach to dealing with information and if so, how developments in information technology might be of assistance to him.

The report comprised 54 pages plus 34 pages of appendices.

At page 30 the report states that legal research “is necessary for only some 20% of all matters referred to lawyers”

At page 17 the report stated “Indexing was the most frequent complaint by lawyers …. . Invariably when a complaint was lodged the lawyer would recommend the West Key system in the same breath.” The lawyers also wanted comprehensive cross referencing.

As a result of the recommendations in the Operation Compulex report, our firm, Maritime Law Book, commenced a key number system for its caselaw reporters similar to the West Key Number System.

This is where I start to sound like a shill.

The MLB system includes over 150 topics, beginning with Actions and ending with Workers’Compensation. All points in a case are assigned a topic name and a number. For example, Practice 651 is reserved for points in cases that describe the circumstances when a plaintiff may be added in a civil action.

In a system with over 150 topics, a sub-topic or a title may be situated in a place in the hierarchy that the searcher does not expect. For example, the title Unjust Enrichment is found in several topics. This problem is now addressed both in print and digitally on our web site. In print, MLB publishes the Master Key Word Index which provides cross-references to all titles, topics and subtopics. On the MLB web site a searcher can search the content of all 150 topics by using words such as “unjust enrichment” which results in a list of the titles or topics where “unjust enrichment” is found.

Any case, particularly an appeal case, may contain several different points of law. In addition, the MLB editors are trained to pick up and describe points in four areas that may arise in any type of case. The four areas are, professional conduct, practice, evidence and statutory interpretation.

MLB editors have created over 30,000 key numbers and as the law evolves new numbers are added.

Is there a better system for the search and retrieval of Canadian caselaw?

The following is a quote from the book, From Third World to First, by Lee Quan Yew, prime minister of Singapore from 1959 to 1990. The quote refers to his appointment of ministers.

The attrition rate was high because, despite all the psychological tests, we could never accurately assess character, temperament and motivation.

Here at Maritime Law Book we have had the same experience in the hiring of employees.

Marks at school or university, taken alone, are not determinative of an applicant’s likely success in a position such as a legal editor. Character traits are an important indicator or an applicant’s likely success in a job, but character traits are not easily discoverable in a job interview. 

What is character? It is the bundle of mental and ethical traits of an individual. In an employment situation, the traits that may be important include, self-discipline, commitment, industry, diligence, cooperation, flexibility, reliability, perseverance, attention to detail and others.

Character traits may be a permanent part of a person’s nature. According to a saying in China, it is easier to move a mountain than change a person’s nature (Globe and Mail, August 28, 2007). 

In addition, character traits may be a part of our nature that resides in our subconscious. David Brooks in his 2011 book, The Social Animal, asserts that “the unconscious matters most”.

Brooks states that his book deals with “the inner mind – the unconscious realm of emotions, intuitions, biases, longings, genetic predispositions, character traits, and social norms”.

Brooks also states:

The research being done today reminds us of the relative importance of emotion over pure reason, social connections over individual choice, character over IQ, emergent, organic systems over linear, mechanistic ones, and the idea that we have multiple selves over the idea that we have a single self. If you want to put the philosophic implications in simple terms, the French Enlightenment, which emphasized reason, loses; the British Enlightenment, which emphasized sentiments, wins.

Brooks says that “we are primarily the products of thinking that happens below the level of awareness”.

Professional sport teams encounter a similar hiring problem when they try to assess an athlete’s character in advance of offering the athlete an employment contract.

On another level, decisions about whom to befriend and whom to marry involve important decisions about character.

The required character traits for a particular employment may be demonstrated by an applicant who has had previous experience. At Maritime Law Book we have found that an applicant for an editor’s position is likely to be successful if the applicant has practiced law for ten plus years. The successful practice of law requires the exercise and development of a number of character traits important to us. 

The unconscious may be at work when a legal editor with over 10 years experience reads a judicial decision with the purpose of writing a headnote. The editor may not remember the details of several similar cases that she read long ago but her experience (and her subconscious) enables the editor to classify and describe the issues raised in the case at hand. 

A senior Fredericton lawyer, when referring to lawyer competence, was fond of saying that there is no substitute for 15 years experience.

Prior to the existence of the Internet there was a long standing debate respecting the volume of cases that were being published by legal publishers. Some lawyers and judges claimed that too many cases were being published because most cases apply well settled principles. Others claimed that the application of old principles to new facts was worthy of publication. The new facts result from an evolving and changing world. Some judges have tried to limit the publication of their decisions.

In 1979 there was no provincial case law reporter for Saskatchewan and Maritime Law Book was preparing to start a series of reports exclusively for Saskatchewan cases. The Law Society of Saskatchewan was at the time the depository of Saskatchewan judicial decisions and the Law Society agreed to send copies of the decisions to Maritime Law Book. The then Chief Justice of Saskatchewan heard that judicial decisions were being sent to Maritime Law Book. The Chief Justice ordered the Secretary of the Law Society to stop sending decisions to Maritime Law Book. Eventually Maritime Law Book was able to acquire the judicial decisions for the Saskatchewan Reports, but the position of the Chief Justice regarding the publication of judicial decisions was obviously one that would limit the publication of cases. The Chief Justice was not alone in his belief that too many cases were being published.

Here in New Brunswick some judges have at times instructed their secretaries not to file or distribute a decision, notwithstanding that judicial decisions are important public documents. Such actions by a judge constitute the suppression of public documents.

The start of the Internet in the 1990s brought important changes to the publication of judicial decisions. First, all decisions were then available to all on government servers and generally they were free of charge. Second, the decisions were sent electronically to the publishers which meant that the decisions did not have to retyped and that resulted in a more reliable document. Retyping inevitably led to errors. Also the work of proofreaders was reduced.

The Internet brought the publication of many more decisions than were published in the past by legal publishers. Some researchers argue that indexing and case selection is now more important than ever because of the large volume of cases available.

Prior to the Internet, Maritime Law Book published all of the appeal court decisions in its provincial and federal reporters. And this has not changed. At the trial level Maritime Law Book publishes in its print reporters (with a headnote) 60% to 70% of all trial decisions. While many judges would say that too many of their decisions are published in print, the test employed by editors at Maritime Law Book is: would the case be useful to a lawyer.

The New Brunswick Reports (2d) has been bilingual since 1982. All cases that are translated are published in print in the N.B.R.(2d). The Official Languages Act, S.N.B. 2002, c. O-0.5, requires that all Court of Appeal decisions be translated. Trial decisions must be translated if the proceedings were conducted in both official languages or if the case “determines a question of interest or importance to the general public”.

Hero defined: a man of distinguished courage or ability or a man who has acquired wisdom and virtue.

I have kept a list of heroes for many years. I suspect that the list reveals a good deal about my views on several subjects. The list is as follows:

1. Cecil A. Wright (1904-1967)

Wright was known to all as Caesar. Wright earned a Ph.D. in law from Harvard in the 1920s. He later taught and became Dean at Osgoode Hall Law School when it was located in downtown Toronto. In 1949 Osgoode was the only law school in Ontario. In 1949 Wright along with Bora Laskin, John Willis, Jacob Finkleman and others, resigned in protest over the views of the benchers of Osgoode on legal education. At the invitation of Sydney Smith, President of the University of Toronto, Wright and the others moved to the U. of T. Law School. Wright led the fight for the approval of other law schools in Ontario.

I was a student at U.of T. when Wright taught torts and wills and trusts.

2. Wayne Gretzky (b. 1961)

The Great One had a mental focus that set him apart in Canada’s game.

3. Mortimer Adler (1902-2001)

Adler was an author, teacher and philosopher. He wrote “Six Great Ideas” in 1981 (truth, goodness, beauty, liberty, equality, justice), a book that I read and reread many times.

4. Thurgood Marshall (1908-1993)

Marshall was a lawyer and later a justice on the U.S. Supreme Court. I met him in 1955 shortly after he successfully argued for the complainants in Brown v. Board of Education, a Supreme Court case that ordered desegregation in the U.S. schools. At U.of T. Marshall, in a speech to students, described some of his experiences in trying cases in the U.S. South.

5. W. Edwards Deming (1900-1993)

Deming was a statistician and business consultant. After WW2 Deming is credited with showing the Japanese how to produce quality products. He also offered advice on how to treat employees, customers and suppliers.

6. Sam Walton (1918-1992)

Walton founded Walmart and with low prices raised the standard of living of millions of persons.

7. Warren Buffett (b. 1930)

Buffett founded Berkshire Hathaway, a successful conglomerate, and became a billionaire. He is famous for his sage investment advice and for donating billions to the Bill and Melinda Gates Foundation.

8. Roger Bannister (b. 1929)

Bannister is a retired neurologist and a former athlete. On May 6, 1954, at Oxford in England, Bannister ran the mile in less than four minutes for the first time. Bannister’s four year old grandson told a playmate that “my grampy ran a mile in four seconds”.

9. Howard K. Smith (1914-2002)

Smith was a journalist for CBS in Europe during WW2 and later became a TV anchorman for ABC. In his autobiography he stated that Western nations are still learning how to "combine the caring of socialism with the energy of capitalism".

10. Steve Jarislowsky (b. 1925)

Jarislowsky is a Canadian investment fund manager who has advocated better corporate governance. As the co-founder of the Canadian Coalition for Good Governance, he has been a champion for good governance and management in Canada.

11. Jean Beliveau (b. 1931)

Beliveau was a star player in every hockey league in which he played. He was captain of the Montreal Canadiens, played on 10 Stanley Cup teams during a 20 year career. In a TV interview, circa 2005, Beliveau was asked, of all his accomplishments what is he most proud of, he replied “being a team player”.

12. Frank J. McKenna (b. 1948)

Mckenna was a lawyer and politician. He was premier of New Brunswick from 1987 to 1997. In the 1987 election his party won every seat in the New Brunswick Legislature. He served as Canadian Ambassador to the United States in 2005 and 2006.

13. Mr. Fezziwig in “A Christmas Carol” by Charles Dickens

As a young man Scrooge was an employee of Mr. Fezziwig. Scrooge at the time admired Fezziwig for his treatment of his employees. Fezziwig refused to sell his business to “the vested interests”which would have put his employees’ jobs at risk.

14. Benjamin Franklin (1706-1790)

Franklin was a publisher, inventor, author, politician, diplomat and one of the founders of the U.S.A. In religious matters he was “an apostle of tolerance”.

15. Frederick Douglass (1818-1895)

Douglass was born a slave in the state of Maryland. He never attended school. The wife of a slave owner taught him the alphabet after which he bribed his young playmates to teach him how to spell specific words. After he escaped slavery by running away to the north, he became an author and public speaker for the Abolitionist movement. Later still he become a publisher and met with Abe Lincoln during the Civil War.

16. Adam Smith (1723-1790)

Smith was from the Edinburgh area of Scotland and attended Oxford and later he was a professor at the University of Glasgow. He read widely in many languages and was part of the Scottish Enlightenment. He wrote a famous book about the economics of the Industrial Revolution. The book was the “Wealth of Nations” published in several editions starting in 1776. He advocated free enterprise and free trade and condemned government restraints that gave monopoly powers to employers. He also condemned special treatment by governments of the guilds.

17. Lee Kuan Yew (b. 1923)

Lee attended Cambridge University in England where he excelled in the study of law. He was the first prime minister of Singapore from 1959 to 1990. Lee is credited with advising Deng Xiaoping of China to establish free enterprise in China when Deng observed the prosperity of Singapore.

18. Abe Lincoln (1809-1865)

I recently added Abe Lincoln to my Heroes List after reading the 2009 book “A. Lincoln” by Ronald C. White, Jr.

Over the years I heard from librarians that case law publishing should be regulated. I heard from lawyers who suggested that governments should publish case law reports. I heard a chief justice in Saskatchewan complain about the duplicate publication of judgments of the Supreme Court of Canada.

In the 1970s decisions of the Supreme Court of Canada were published by the Government of Canada in the Supreme Court Reports but many times it took up to two years for a case to be published. In response to a need for the timely publication of Supreme Court of Canada cases our firm, Maritime Law Book Ltd., commenced publication of the National Reporter in 1974 and it became our best seller. The National Reporter published Supreme Court of Canada cases in approximately two months compared to the two year delay by the Supreme Court Reports. Today all decisions are published immediately on the Internet and the issue of timeliness has been overtaken by the technology and speed of the Internet.

Today the free availability of judicial decisions from multiple sources has also overtaken any complaint that the same decision is available in several series of law reports.

As to the suggestion that case law publishing should be regulated, there is not much left to be regulated. Print subscriptions to case law series have been decimated by the free publishing of decisions by governments on servers on the Internet.

Today when a judicial decision is made available on a government server the decision is published, that is, the decision is made public. So governments are now publishing judicial decisions, but mostly without any summaries or headnotes.

The creation of indexes, summaries and headnotes is today the main business of case law publishing, for either a print or an electronic product, and is done mostly by the private sector. Such enhancements save time and money for the researcher.

In the pre-Internet era, it was the private sector that created the needed jurisdictional and topical law reports. The success of these products confirms their need and their timely usefulness. Maritime Law Book created several series of reports for the Atlantic provinces and for the Prairie provinces. At Carswells Gary Rodriques was responsible for creating their topical and other reporters. In the 1970s and 1980s there were many trial and appeal decisions that were not published anywhere. For example, the Ontario Appeal Cases, which commenced publication in 1984, was the only series that included all the decisions of the Ontario Divisional Court. When the New Brunswick Reports (2d) commenced publication in 1969 virtually no New Brunswick cases, trial or appeal, were published anywhere. 

Thanks to government servers and the Internet, judicial decisions are now available immediately to all at all times – free!

In the United Kingdom and in Canada the history of the language of law reports is as much about the influence of the French language as it is about the use of English. To a lessor extent such history is also about the influence of Latin.

Consider that the first English law reports were in the French language for over 300 years, specifically:

- the first English law reports are found in the Year Books that run from 1260 to 1535 and they were written 100% in the French language. See page 99, The Language of the Law by David Mellinkoff (Little Brown 1963). In Langdell Hall at Harvard Law School pages of the Year Books are on display;

- Sir Edward Coke (1551-1633) published his English law reports in the French language. Coke’s law reports covered the period 1600 to 1615.

While the first English law reports were in French for several hundred years, the language of the people during that period was English.

English as a separate language dates from around 450 AD. The name “English” gets it name from the invading Angles (invading the British Isles from northern Europe). The Angles were largely illiterate and their courts and trial procedures were oral.

Following the Norman Conquest of England in 1066 the spoken language of the law was trilingual, namely, English, French and Latin. In England, 1066 also marked the beginning of a tradition of French as a language of learning and as a language of the law.

In the 13th Century English statutes were in Latin and French; and in the 14th Century French became the regular language of English statutes.

During the Middle English Period (c. 1150 to c. 1475) more than 10,000 French words became English words. 

In England the movement of the language of the law toward the use of English began in the 15th Century.

In 1650 an English statute required that all law reports be printed in English only. After 1704 all English law reports are in the English language. But note that because the decisions of the judges were for centuries oral only, the reports for many years were summaries only prepared by the reporters.

Today in Canada, all reasons for judgment of the Supreme Court of Canada are translated so that reports are in both English and French. The only province of Canada with bilingual law reports is New Brunswick (all reasons for judgment of the Court of Appeal that are published are in both English and French and most trial judgments are published in both languages). In the Province of Quebec, where French is the only official language, the reasons for judgment are in either French or English depending upon the language used at trial. Most Quebec law reports are published in French and the decisions are not translated.

I believe that a book without an index is not as useful as a book with a good index. 

A case headnote can provide a complete index to a judicial decision.

Headnotes are at risk because the full text of legal decisions without headnotes are now available free on the Internet from multiple sources. This free access has resulted in a dramatic reduction of print subscriptions to law reports.

Is there a need for headnotes? Headnotes tend to save time for a searcher by providing an index to a decision and by providing index material for digests. When a judicial decision refers to a case without a headnote, the searcher may be required to decide the relevance of the unheadnoted case, which can be time consuming. 

The time saving provided by a headnote applies to both the print and online version of law reports.

As all decisions are now available on the Internet, the preparation of a headnote sends a signal to the searcher that the case is judged useful. At Maritime Law Book approximately 30% of the trial decisions that we receive from the courts are judged not worthy of a headnote. This selection process acts as a time-saving filter for the searcher.

Maritime Law Book editors prepare a headnote for nearly all Court of Appeal decisions. 

Most headnotes for law reports are prepared by editors employed by private law book publishers. Revenue to pay editors has been declining steadily since the start of the Internet. Some publishers employ freelance editors or independent contractors to prepare headnotes. Here at Maritime Law Book we believe that an in-house editorial staff tends to produce a better quality headnote than the headnotes that are prepared by freelancers or by editors located overseas.

The use of computers has resulted in the increased efficiency of both typists and editors. For example, at Maritime Law Book the use of computers has resulted in an increase in the individual production of editors. Some expenses have been lowered markedly by advancing technology, for example, the ability to print to demand has markedly lowered publishers’ printing costs. 

Publishers’ subscription losses in the past 10 years has resulted in substantial price increases so that a single volume of caselaw of approx. 400 pages now sells for over $300 and in some cases for $350. The high price of caselaw volumes should dissuade law librarians from continuing to subscribe to a series that constitutes a duplication. 

What is the prospect of print volumes of caselaw being produced without headnotes? Not likely. I believe that some caselaw volumes in the future will include an abbreviated form of headnote, such as headings and sub-headings only. That is, editorial input will be minimal at some publishers. But some caselaw series will have complete headnotes for as long as there is a minimum number of print subscribers. That minimum will vary from publisher to publisher depending upon individual expense levels and the individual cost of capital. 

The future of headnotes is not as clear as a decision with a headnote.

After a judicial decision is completed by a judge and filed with a court, a legal editor may add a headnote to the decision. A headnote is normally prepared by an editor employed by a publisher. 

The main purpose of a caselaw headnote is to save a searcher time in finding a point of law. A headnote should be an index to a judicial decision. For example, a headnote can serve a searcher so that only a portion of long decision has to be read.

Comment and opinion should not be part of a headnote.

What are the elements of a caselaw headnote?

The elements of a headnote should be:

• brevity
• clear writing
• identification of issues
• identification of useful points
• listing of authorities (statutes, cases, and authors)
• identification of counsel

Brevity – “Directness, thrift of words, brevity – everyone speaks well of them” (Robert Gunning, The Technique of Clear Writing, 1968).

Clear Writing – There are objective standards for clear writing. See the rules in Plain English for Lawyers by Richard Wydick, 5th ed. 2005. Writing to be clear and brief requires thought and re-writing. Some of the rules are, avoid long sentences, avoid unusual or difficult words, select word order with care, put modifiers close to what is modified, delete surplus words, use active base verbs, and use concrete words such as “the farmer” or a surname rather “the plaintiff” or “the appellant”.

Identification of issues – some judges are very good at identifying and stating the issues arising in a decision. Some judges are not. Some cases require careful thinking by an editor before an editor describes the issues. Each issue or point of law should be identified separately and the headnote should refer to the relevant paragraph numbers in the decision where the issue or point can be found. Sometimes experience plus a knowledge of an area of the law is a condition precedent to the ability to properly identify an issue. A legal education along with some legal experience is a prerequisite for work as a headnote editor.

Identification of useful points – In any decision there can be secondary points of law that are useful to lawyers. Useful points from four legal areas can arise in any decision, namely, practice, evidence, ethics and statutory interpretation. For example, practice points should be stated in a headnote along with the relevant paragraph numbers.

Listing of authorities (statutes, case and authors) – All statutes, cases and authors referred to in a decision should be listed in a headnote along with the proper citation for each and a reference to the relevant paragraph numbers.

Identification of counsel – On occasion a searcher may want to talk with the counsel listed in a headnote.

Maritime Law Book is proud to have been part of the development of the only provincial bilingual law reporter in Canada. Namely, the New Brunswick Reports (2d).

Here is how that development took place. 

New Brunswick has a population of approx. 750,000. And approx. 35% of New Brunswickers speak French as a first language.

In 1969 New Brunswick enacted its first Official Languages Act, making it Canada’s first and only officially bilingual province.

In 1969 the province’s statutes, regulations, by-laws, etc., were in English only. In the courts, pleadings and trials, both civil and criminal, were in English only; in the land registry offices conveyances were in English only.

In 1969 the province’s only law school at the University of New Brunswick offered courses in English only. A French language law school was founded in 1978 at the École de droit, Université de Moncton. The École de droit offers a common law legal education taught entirely in French.

In 1969 the province’s law reports were in English only (see New Brunswick Reports 1825-1929, Maritime Provinces Reports 1930-1968). The New Brunswick Reports (2d) commenced in 1969.

In the 1970s some judgments from the N.B. courts were filed in the French language and some of these judgments were published in the N.B.R. (2d) without translations but with English headnotes. Starting in 1982 the N.B. Department of Justice funded the translation of both English and French language judgments. The translation work is done by the Centre de traduction at the Université de Moncton. The translation of judicial decisions is complex, difficult and costly. The Centre de traduction employs both translators and legally trained revisors.

Starting in 1982 the N.B.R.(2d) format changed from one column per page to two columns per page with English on the left and French on the right. From 1982 to 1987 the headnotes in the N.B.R.(2d) were in English only. Starting in 1987 the headnotes were translated with funding from the Federal Government (this funding terminated in 2007 and the headnotes in the N.B.R.(2d) are presently published in English only with French topical cross-references).

The N.B.R.(2d) in print includes all of the decisions of the New Brunswick Court of Appeal and selected judgments from the lower courts. Starting in 1997 all decisions received from the N.B. courts are loaded on the Maritime Law Book website, www.mlb.nb.ca.

All decisions of the New Brunswick Court of Appeal are issued by the court in both official languages, pursuant to section 25 of the Official Languages Act, S.N.B. 2002, c. O-0.5. 

The N.B.R.(2d) reports all decisions of the Court of Appeal in both official languages.

Some lower court decisions are also issued in both official languages and the N.B.R.(2d) reports them as issued. However, most lower court decisions are issued in only one of the official languages. The editors of the New Brunswick Reports (2d) select which decisions are to be translated, guided by the provisions of s. 24(1) of the Official Languages Act, and request a translation where (a) the case “determines a question of interest or importance to the general public”, or (b) the proceedings are conducted, in whole or in part, in both official languages. However, some decisions that are of interest and use to a lawyer do not determine questions of "importance to the general public". For example, some practice points, some damage awards, some maintenance awards, etc., are reported in the N.B.R.(2d) with a headnote but without a translation.

Translations of lower court decisions in the N.B.R.(2d) are not official, because the translations have not been approved by the judges. Translations of N.B. Court of Appeal decisions are official.

In the province of Quebec, where French is the official language, the judicial decisions can be delivered in either English and French and are not translated. Most of the Quebec Court of Appeal decisions are in French and are not translated. See the Globe and Mail, August 20, 2008, where the Quebec Chief Justice stated that the translation of the Court of Appeal’s most important judgments into English would make the judgments available to the rest of Canada.