Electronically Manufactured Law – Made in Canada

In a recent post, Simon Chester drew attention to an article entitled “Electronically Manufactured Law – Why the shift to electronic research merits attention” that was published in the Fall Issue of the Harvard Journal of Law and Technology. In the article, the author discusses changes that may be expected in legal research resulting from the shift in legal research from print based case research to electronic sources.

The article is thought provoking with regard to the possible changes that may result from such a shift but incidentally highlights the significant differences that exist in legal research methodology and resources between Canada and the United States. As a result, changes in one country may not necessarily be replicated in the other.

Three basic changes expected to have an impact on legal research

For example, the “three basic changes” that are expected to have significant impact have little or no relevance in Canadian legal research. The first change cited is that electronic researchers are not guided by the “Key System Information” to the same extent as print researchers with respect to identifying relevant theories, principles and cases; the second change is that electronic researchers do not encounter and interpret individual cases through the lens of the Key System Information to the same extent as print researchers; and, the third change is that electronic researchers are exposed to more – and different – case texts than print researchers.

At the heart of the argument advanced by the author lies the dominant position of the West’s American Digest System, West’s National Reporter System, and the LexisNexis Shepards Citators, in identifying cases relevant to an inquiry using print sources in the United States. The article includes comments describing the extent to which these publications have “embedded themselves in the collective legal consciousness”. The suggestion is that these three publications have caused American lawyers to conceptualize legal problems using the categories set out in these publications thereby limiting the research process and the potential evolution of the law.

The American Digest System is a system of identifying points of law from reported cases and organizing them by topic and key number. It is popularly known as the Key Information System. The National Reporter System is a comprehensive set of law reports that contains the decisions of state courts and the federal court system with headnotes that include the topic and key number from the American Digest System for each legal issue addressed in each headnote. Shepards citators list all of the authorities citing a particular case, statute or other legal authority with a symbol indicating the character of the reference to the authority.

Compare and contrast

In Canada, we have print publications that are roughly equivalent to those in the United States but in no way have they captured the minds and imagination of legal researchers in the manner that the article suggests has happened in the United States. No one would seriously suggest that Canadian lawyers conceptualize legal issues based on the categories set out in these publications.

The Canadian Abridgment appears to provide a “classification system” analogous to the American Digest System but only superficially. The volumes of the second edition of the Canadian Abridgment were prepared independently, with different editors for each topic, and individual tables of contents. The collected tables of contents for all of the volumes were first published in print in the early 1970’s at the suggestion of Ruth Raphael Berger, the Editor of Canadian Current Law, and were marketed to customers as a “classification system” modeled on West’s Key Information System.

Despite marketing effort, the Canadian Abridgment topics and key numbers continued to be in reality a consolidated table of contents. Whenever revised volumes were issued, the classification system was amended. New entries were effectively created by individual editors who worked independently of one another. Duplication of entries was a frequent occurrence. More recently, the Canadian Abridgment was relaunched in a third edition. At that time, the classification system was completely overhauled and the number of subject titles dramatically reduced. The effect is that the classification system in use today differs dramatically from that used ten years ago and is largely unknown to many lawyers. More limiting is the fact that the classification sytem is used only in Canadian Current Law and the Canadian Abridgment and not in any series of law reports.

By contrast, the classification system used in the American Digest and the National Reporters in the United States was implemented by a team of editors who worked together to ensure that the topics and key numbers were applied to all digests in the American Digest and all cases reported in full text in the National Reporter System. New terminology was introduced into the classification system only after the proposed change had been reviewed and approved by the team of editors. While new entries were created to allow for new developments in the law, care was taken to ensure the integrity of the system as a whole.

The closest thing that Canadians have to the National Reporter System is Maritime Law Book’s National Reporting System. Like the American National Reporter System, it covers all Canadian provincial and federal courts (except Quebec) and it classifies cases according to a topic and key number system modeled on the American system. Launched in the 1970’s, it failed to take hold on a national scale and to displace the diverse collection of provincial, regional and topical reports that were already established in the Canadian market.

With regard to case citators, both the Canadian Case Citations and the Quickcite case citators encompass all of the various law reports published in the Canadian market and effectively direct the researcher to alternative sources of the same case and alternative summaries and classification systems for every case.

Expected changes from the shift to electronic case research

The changes expected by the author of the article are a greater diversity in the framing of legal arguments and more tilting at windmills as lawyers pursue issues they might otherwise have ignored. These changes may indeed happen as a result of the dramatic growth in the number of cases accessible to legal researchers. However, given the length of time that electronic research has been the dominant source of conducting of case law research, one would have expected to see these results already.

One significant change that I believe has occurred already is the leveling of the playing field for lawyers. As an articling student and young lawyer, I observed that lawyers from the major law firms had access to the most recent cases dealing with the rules of practice of which their opponents from small firms and solo practices were completely unaware. The introduction of online research services has given everyone immediate and equal access to the most recent decisions decided by the courts, as well as access to comprehensive collections of case law that the solo practitioner could never afford.