Free and Commercial Access to the Law

Slaw’s own Ted Tjaden is quoted in this week’s Lawyers’ Weekly on whether the free access to the law movement has reached the point of such reliability and comprehensiveness that it can be considered as an adequate substitute for the commercial giants. Canlii’s Daniel Poulin comes to the defence of Canlii.

“I rarely use free resources,” Tjaden said.

“We have the luxury of having one of the better-equipped law libraries in a Canadian law firm with extensive print resources and online subscriptions.

“Although free search engines do supplement the legal research I do, we continue to rely on the value-added features available from the ‘for a fee’ online subscription services.”

The piece ends with the tantalizing issue:

Authority-based ranking may help the most relevant cases find their way to the top of a query list. Legal experts might help improve such rankings as user interaction on databases increases, à la Web 2.0.

Since no-one has commented here are three useful pieces from South of the border, a Georgetown guide which surveys just what is available on cheaper alternatives to the wonderful but pricey services out of Eagan MN (aka Westlaw Ecarswell) and Dayton, OH (Reed Elsevier / Lexis-Nexis) and a slightly more bibliographic guide from UCLA.

And the clincher from the latest ABA Survey from LTRC under the incomparable Catherine Sanders Reach


  1. One of the large problems of the common law or, perhaps more accurately, the common law process, is that often the wrong cases become “leading cases”. Thus Hadley v. Baxendale is the leading case on limiting awards for breach of contract—it’s now on its way to becoming the leading case for starting awards, but that’s another sad and frustrating story—when the far better case, Horne v. Midland Railway Company (1873), L.R. 8 C.P. 131 (Ex. Ch.), is ignored. Hadley v. Baxendale has this role because it is the case all law students (and hence lawyers) know and is endlessly cited.

    The proposal to rank cases found by an electronic search by “authority-based ranking” seems to me to be the antithesis of thoughtful, careful research. That kind of research has to start by considering the principles involved. Those principles are most likely to be found in a text or journal article. Research into electronic sources has to come afterwards; it cannot be the first thing that a researcher looks at. In other words, you can only make a useful search into an electronic database when you know precisely what you are looking for—then, of course, the search is very powerful and very necessary. At this point, CanLII is as good as QL, at least for recent cases.

    You can see the harm done by the belief that all one needs is QL in the fact that, for example, a Saskatchewan court is now likely to cite only Saskatchewan cases. The same goes for the courts of all the provinces, except perhaps the smallest. This result is, I believe, caused by the cost structure of QL; it’s cheaper to search a smaller database and there are now enough Saskatchewan cases for the QL search to produce enough.

    The problem will only get worse if Ted Tjaden’s goal of eliminating (or very greatly reducing) printed resources is achieved. We are developing a paradigm for legal research in an age when vaster resources are available than anyone a couple of decades ago could ever have imagined. We are not, however, doing the hard work of developing an approach to legal research that, while acknowledging the breadth of the new resource, nevertheless maintains the integrity of what that research requires. I am not, of course, saying that the former, print-based methods of research always focused on principles; I’m only saying that we have to be more careful what we do and, in particular, what we make unavailable.

  2. I’m hoping that the range, quality and availability of secondary literature (textbooks, case comments, annotation, analysis) will grow as resources are shifted from the production of case law to value-added (sellable) products.

  3. I think for us in Sub saharan africa sources available for free are being used sparingly ,but most of them lack editing especially the quality you get from comercial publishers.If Open Free Access materials can be searcheable and also have better tools of access they will ouster commercial sources.