Stage-Struck! Do Our Legal Research Habits Limit the Evolution of Legal Information Products?

In the early 1980s, I lived for several years in Germany, pursuing post-graduate studies in the history of printing at the University of Cologne, thanks to a generous scholarship from the German government. I made many friends there, and we still telephone and visit regularly; and through these friends I made many acquaintances across Germany. Among them were several interesting and amusing individuals in East Berlin, whom we made a point of visiting whenever we could, despite the indignities of having to pass through the Wall. We’d bring them gifts from the West, especially things that were unavailable and sometimes forbidden in the East: white bread (baguettes were especially appreciated and consumed immediately), butter, fruit, ballpoint pens. Unfortunately, it was impossible to get books, magazines and newspapers through border control at the Wall. For one friend, who ran an underground music club, we’d smuggle in music tapes. We could discuss politics for hours. I remember once discussing how they, with regular (if clandestine) access to Western radio and television, were able to accommodate themselves to the totalitarian state in which they were trapped. I still remember one of their replies: “Wir lassen uns nicht auf die Bühne ziehen.” “We don’t let ourselves be pulled onto the stage.” Public and official life were a show, a stage production. The show is written, produced, directed and acted by others. And if we have to be in the theatre, we can at least refuse to let ourselves be part of the performance. To do so would be collaboration.

Sometimes, I wonder if traditional approaches to legal research, as it is largely determined by the legal information industry and still transmitted and practised in our law schools and in most law firms, isn’t a bit like life in a totalitarian state, a big production in which we – legal researchers, law librarians, legal research and writing (LRW) instructors and other legal information specialists – are the unthinking actors and unwitting collaborators. I wonder if we shouldn’t start seriously to question the assumptions.

Sometime later this spring, there will be an announcement of yet another new edition of the Canadian Guide to Uniform Legal Citation (the McGill Guide). This will be the eighth edition since 1986, an average of one new edition every 3.5 years – effectively, a new edition for every three-year cohort of law students. As we all know, this “national” standard, though compiled by a group of law students at the McGill Law Journal, is commercially published by one of our major law publishers. The big news is that this new edition will now be made available digitally on that publisher’s online platform; however, it will be made available only to individual (personal, not institutional) subscribers on an annual basis.

I am certain that, as with the previous editions, we will continue to insist that the McGill Guide is “the standard” and that all students must purchase the new edition as a required text. I pity the students in upper years who, having shelled out over $50 for the previous edition, now have to shell out another $66.00 (retail list price) for print or online access to the new edition. In print, that edition will most likely have a life expectancy of only 3.5 years; if online, the cost will be annual. Nevertheless, we will continue to uphold the McGill Guide as the accepted standard, despite the fact that, increasingly, only other student-edited law journals designate it as their standard for legal citation. This will be done because this is how it has always been done, and despite the fact that 99% of a student’s (and a practising lawyer’s) legal citation needs are more than adequately addressed by online, open-access guides prepared by law libraries at the University of British Columbia, University of Calgary, Queen’s University and others.

The students at the McGill Law Journal are entitled to prepare a citation guide if they like, as have many law review editors before them. The fact that theirs is relatively comprehensive is admirable, if unnecessary for use in an LRW course. But that they would do this in collaboration with a commercial law publisher is regrettable. Student-produced citation guides from Oxford and Melbourne provide better, open-access models, well worth emulating in an increasingly open legal information environment. It is perhaps expected that the student editors at other law reviews would adopt the McGill Guide as a standard: there is strength in solidarity. But, in view of the alternatives, why do we continue set the McGill Guide as a required text? Why do we continue to uphold it as a national standard? Its commercial production, cost and general unavailability are a barrier to non-legal researchers and other citizens seeking to cite, find, retrieve and use legal information, whether for work, study, research or in pursuit of a legal action or claim. Are we legal information professionals collaborators, performers in a production that promotes an exclusive system, a system that is in neither the profession’s nor society’s best interests?

I am reminded, too, of legal casebooks, another standard of law school syllabi. If there is one item from the repertoire of legal literature that can readily be adapted to an open-access, digital format, it’s the casebook. With platforms like Blackboard and Moodle available at all our universities, it’s easy for faculty to create their own digital casebooks and textbooks, and easily revise and update then, at no cost to financially-stressed students. Newer, cloud-based products like Boundless, not to mention Adobe Digital Publishing and other widely-available platforms, facilitate collaboration among faculty and even among law schools in developing and sharing content, while initiatives like CALI’s eLangdell (“eBooks for Legal Edcuation”) make available to faculty and students everywhere professional, scholarly content on a Creative Commons licence, intended for incorporation into digital legal casebooks and textbooks. Still, in the weekly alerts I receive of new law books released in the United States and Canada, as many as half the new titles will regularly be casebooks, at prices often significantly higher than those of scholarly treatises, and all aimed at a student market.

The publication of casebooks – with a captive audience requiring little marketing because they’re set as required texts by the teachers who wrote them – is extremely profitable for law publishers, with ever more publishers publishing ever more casebooks on ever more specialized topics from the expanding law school curriculum. Why do our law professors, both alone and in collaboration with others, continue to prepare and publish casebooks commercially when there are so many alternatives that are just as effective and would cost their students nothing? Imagine making these casebooks available not only to students, but to a public hungry for introductory information on the law, better to understand the law and to answer their legal questions! By ignoring these possibilities, are we collaborators in a system underwritten by those (ie law students) least able to afford it? Our law professors are well paid and our students already pay a lot in tuition. Is the commercial production and publication of legal casebooks a role our law faculty should be pursuing? Is it even justifiable?

These practices – legal citation and casebooks – are but two among many that would encourage a re-evaluation of our legal information processes and the way we teach and practice legal research at the institutional level in light of methods that are not only fairer and more accessible but perhaps even more responsive to and reflective of the realities of legal education and practice, and that address the needs of a public hungry for legal information. Recent columns in this blog by Susan Monro (here and here) emphasize the importance of the presumably added value that commercial publishers bring to our legal research resources, and ask how we can provide that value in the free-law context. Meanwhile, Gary Rodrigues (here) intimates that the level and quality of editorial input by the publishers is decreasing, sacrificed to profit. In addition to the ravages of editorial cutbacks, many legal information products have been further compromised by publishing practices that contribute nothing to value, serving no purpose but to increase revenue streams.

Everyone knows that in law, it is necessary to be “up-to-date”. While this is true (old law can be bad law) the “up-to-date” mantra is usually interpreted as dependence on insanely expensive looseleaf texts, a publishing format that has dominated in Canada for decades but was long-ago superseded by advances in information technologies and social media as well as the free law movement. Is this dependency rooted in an understanding of how the law and legal research work, or is it driven by habit and a professional insecurity encouraged by the publishers? If I were a real estate lawyer, I would definitely want a copy of Audrey Loeb’s Condominium Law and Administration available to me – if not on my desk, then in a nearby law library. It’s a great book, essential to practice and an understanding of the law. But with 10 looseleaf supplements per year invoiced separately at $379 each (= $3,790 annually), where’s the value? Are 10 supplements needed to keep the contents current or do they only contribute to the publisher’s revenue stream? Do any of the supplements update the commentary? Why isn’t this a bound book, a book one can afford and keep on one’s desk, and update at will using online sources?

Law reporters are another case in point. Can there be any justification for 24 volumes of the Canadian Rights Reporter in one year (12 volumes per year not long ago), at a price of $385 per volume ($9,290 for the year, before taxes)? Or 17 volumes of the Motor Vehicle Reports at $427 per volume ($7,259 for the year)? And these per-volume prices are before possible mid-year price increases. Where is the editorial judgement and discretion that produces such inflated law reporting? Is the value in the quantity or the quality of the cases reported? Have these practices diminished the value and contribution of law reporting?

Despite these questionable publishing practices and the diminishing integrity of the products, we – law librarians and other legal information professionals – continue to buy them for our libraries and to promote them to our students and clients. Have we allowed ourselves to be pulled up onto the stage as supporting cast in these productions? Are we stage-stuck? If we stopped –delisted the McGill Guide, published only open-access casebooks, cancelled all looseleaf and law reporter subscriptions – would the curtain finally come down on these tired productions? Would their producers begin to consider newer forms of theatre? Susan Munro rightly states that there’s an appetite for more relevant and cost-effective legal information resources. I wonder how much of our suspicion of and resistance to alternative, more cost-effective and even free resources could be addressed by a simple change of behaviour, by climbing down from the stage and giving them our support. Do we teach research methods that encourage effective and confident use of alternative approaches to and resources for legal research? Are the legal research practices we transmit based on an understanding of law and legal process? Or are they focussed on the use of specific products and formats? Have we allowed traditions to become habits? Have we been beguiled by the bright lights on the Great White Way of received standard legal research? By products and practices that have star power but have lost their credibility? We’re an extremely conservative profession and many of us have season tickets; but isn’t it time we moved off-Broadway? There are a lot of good shows there that, with our support, are ready for the move uptown.