Preservation of and Access to Historical Case Law: Who Cares?

The news making waves in law libraries lately has been the announcement of Harvard Law School Library’s “Free the Law” initiative (also reported in the The New York Times). By digitizing their comprehensive collections of printed law reports, Harvard will make publicly available free, open and wide-ranging access to American case law for the first time. The Harvard Law School Library is to be lauded for this initiative, another in a series of projects from their Library Innovation Lab, including The Nuremberg Project to digitize their collections of source materials on the Nuremberg Trials; the H2O project to build a platform to create, share and remix open course materials (casebooks); and the Perma.cc service to address the problem of link-rot and help journals, scholars, courts and others create web citation links that will never break.

Harvard’s Free the Law is another in a series of legal information preservation initiatives in the United States. I’ve written previously about some of these projects, most recently here. What’s especially noteworthy about Free the Law, though, and what distinguishes it from other preservation initiatives, is that it provides for the preservation of historical legal materials in connection with free, public access to them, on the conviction that access to legal information promotes access to justice. “Driving this effort is a shared belief that the law should be free and open to all,” said Harvard Law School Dean Martha Minow. “Using technology to create broad access to legal information will help create a more transparent and more just legal system.”

You’d think the principle that access to legal information facilitates access to justice would be supported by everyone in the legal profession. Sadly, this does not seem to be the case. Naysayers are already at work, criticizing Harvard’s initiative and questioning Harvard’s intentions, insisting none of it will make any difference. Among other arguments, it is suggested that this body of historical case law has no persuasive value and, even if relevant to a litigant’s issue, is too old to matter. Further, it’s all too complex for the non-lawyer ever to begin to understand it. Besides, those in a position to understand it already have access to it from behind their ivy-covered paywalls, through such services as HeinOnline, Lexis, LLMC, and Westlaw. In short, why is Harvard wasting its time and money?

Such arguments are unproductive. They are, first of all, arrogant, based on the premise that only a trained legal mind can understand such information and the uninitiated had best leave it alone. If the phrase “access to justice” is to have any meaning other than “access to lawyers”, then we must resist such arguments. Access to legal information is a part of the justice equation. Ultimately, though, these arguments are also inconsequential because they miss the point. The point is the preservation of our legal heritage and the provision of access to it, without qualifying or prejudicing who might want to use it or why.

For almost a hundred years in this country, much longer in America and Britain, law librarians have been building collections of law books and providing access to them. We built these collections for lawyers and judges in courthouses, law firms and law departments, law societies and law schools to facilitate the interpretation of law and support the administration of justice. Now, in an effort to reduce the costs of legal practice and the provision of legal services, we are being asked by these same lawyers, judges, benchers and law deans to dispose of these historical print collections, containing centuries of legal information, confident in their conviction that they now have access to everything online. Better than our employers, however, law librarians know that 1) most of these materials are not available online; 2) the materials that are online are expensive, difficult to use and with highly restricted access; and 3) the dispersal of these collections without providing alternate access is destroying our legal heritage without enhancing access to legal information. Not least of our considerations is that, while we owned these collections and expended considerable effort and expense to develop them, we are now discarding them without realizing any benefit from the investment, replacing them with information we lease rather than own and can access only on the absentee owner’s terms and conditions. As Joni Mitchell said, “You don’t know what you’ve got till it’s gone.”

This is happening everywhere. Every week, I receive calls from law firm and courthouse librarians, asking if our library will take the historical collections they are being asked to dispose of. We accommodate them as much as we can, though our library is also fortunate already to hold all of what is being offered, with the explicit mandate to save and preserve it. Even though we already have what is being offered, we’ll often accept these offers in order to replace the volumes already on our shelves, worn out and often falling apart after 125 years of student use. Though we’re happy to assist our colleagues by taking their discarded law books, we’re unable to give them anything in return other than the reassurance that the books will be cared for. At the end of the day, our benefactors and their library patrons have lost access to a considerable body of legal information.

Harvard’s Free the Law initiative directly and specifically addresses these problems. By digitizing the texts of historical American case law and making it freely available, Free the Law is both preserving the texts and at the same time providing access to them for libraries that have found it necessary to divest their own collections, in effect returning to them the ownership of their lost collections. At the same time, Free the Law makes it possible for other libraries to consider shedding burdensome legacy collections without compromising their users’ access to the collections. Finally, Free the Law will make available to the public a huge body of information previously perceived as the private domain of legal professionals. Unlike the legal naysayers noted above, the new users of these historical cases will see not old and dead law of little precedential value but new and living documents of immense historical and social interest. I’m certain these materials will be a boon to historians, sociologists and genealogists, whether professional or amateur. And yes, these materials will also be available to citizens seeking better to understand the law and their justice system.

As I’ve said above, Harvard is to be lauded for its Free the Law initiative; though one could also ask, “What took them so long?” In a country as resourceful as the United States with a vibrant and successful legal community, it is surprising that this work is only now just beginning. In Harvard’s defence, the resulting initiative is extremely well planned and financed, with much thought given to the future applications. And, lest I sound smug, I will also ask the question: What are we doing in other common law jurisdictions, where so much emphasis is placed on historical precedent and stare decisis, and where we pride ourselves on our concern for access to justice?

The British have made a good start: the English Reports have been digitized and are freely available on the web. It is strange that they are found not on BAILII, the British and Irish Legal Information Institute, but on CommonLII, the Commonwealth Legal Information Institute, though perhaps not so surprising when you realize that leadership of the CommonLII enterprise is provided by AustLII, the Australasian Legal Information Institute. The Australians have made significant and admirable progress not only in digitizing and providing access to many of their historical (including colonial) law reporters (as well as statutes!) in scanned PDF format, all freely available on AustLII, but also in developing a uniform and vendor-neutral system of legal citation for them.

And what about Canada? The decisions of the Supreme Court of Canada as well as of the courts of appeals of Alberta, British Columbia, Ontario and Saskatchewan have been digitized from their origins and are freely available on CanLII, but only the Canada Supreme Court Reports (1876-current) are available in scanned PDF format (also accessible from both CanLII and the Supreme Court of Canada websites). Otherwise – well, I guess we can always admire the Australians and envy the Americans.

One would think that our law societies would care, since our courthouse libraries and the lawyers who use them – sole practitioners and lawyers from small firms or in small towns without access to law libraries – are the consumers who suffer most directly from the loss. But it’s our law societies that have dictated the dispersal of the courthouse library collections of historical print law reporters and statutes. Nor are they providing alternative online access and for the same reason they’ve shed the print collection: where’s the money.

You’d think our law foundations would care. The Law Foundation of Ontario used to provide grants to Ontario’s law school libraries as part of its mandate to promote access to legal information as part of advancing its vision for a truly accessible justice system. However, that funding was removed years ago. While the Alberta Law Foundation has provided grant funding to Alberta Law Libraries for the past forty-two years, the fact is that all grant applications are reviewed on an annual basis. According to the recently published Alberta Law Libraries Review: Final Report (highly recommended reading for anyone interested the state of public law libraries in Canada), there is no funding commitment other than through the annual application process. While there are no plans currently to reduce its funding commitment, continuance in the longer term will depend upon funding availability and continued alignment between ALL’s mission and the foundation’s priorities to “directly benefit the public.” One wonders if our provincial law foundations would be concerned enough to consider making a one-time investment to digitize and preserve our historical legal jurisprudence?

[NOTE: A version of this paragraph as first posted stated that the Albert Law Foundation was keen to stop funding Alberta Law Libraries. This was incorrect.]

Our law schools are equally uncaring of their legacy collections of historical law reports; instead, most of us are either preparing to or wishing we could box them up and send them to offsite storage. Besides, unlike law firm or courthouse libraries, we have access to digitized versions of these cases from behind our paywalls on such services as HeinOnline or LLMC. Whatever digitization efforts are underway at our universities are the initiatives primarily of government document libraries, not the law libraries, and the digitization of historical law reports is not on the radar. Nor do our university librarians seem especially concerned about open, public access to these collections once digitized. In Ontario, they seem content to house these collections in Scholars Portal, a closed collection of digital materials, publicly financed but available only to member libraries in Ontario’s post-secondary institutions. None of us could credibly make the following statement, from Jonathan Zittrain, the George Bemis Professor of International Law and Vice Dean for Library and Information Resources at Harvard Law School:

“Libraries were founded as an engine for the democratization of knowledge, and the digitization of Harvard Law School’s collection of US case law is a tremendous step forward in making legal information open and easily accessible to the public. The materials in the Library’s collection tell a story that goes back to the founding of America, and we’re proud to preserve and share that story.”

Does anyone in Canada care enough to do something about this?