Canadian Law School Libraries: A Legacy – and a Future?

It has been several months now since I was nudged into an early retirement and left my position as Chief Law Librarian of Osgoode Hall Law School after almost 10 years there. This has afforded me some time to look back on my career in law libraries and to consider not only my accomplishments, however they be measured and judged, but also to reflect on the goals I was unable to realize and the projects that were left unfinished. I look back on this unfinished business not only out of a sense of personal regret. Osgoode offered me the opportunity (and the resources!) to pursue initiatives that were as much in the national interest as they were in support of institutional strategies. But strategies and priorities change, and it remains to be seen whether Osgoode will continue these initiatives. But why should it be exclusively Osgoode’s responsibility?

The Legacy

I was fortunate to begin my career while the legends of Canadian law libraries and the Canadian legal information industry were still on the scene. They might be unknown to many of my younger colleagues, so I’ll take the liberty of naming a few (without details of their distinguished careers): McGill’s Marianne Scott had just recently been appointed National Librarian of Canada; Diana Priestly was just finishing her tenure as founding Law Librarian at the University of Victoria; Balfour Halévy, Osgoode’s founding Chief Law Librarian, was still in charge at Osgoode and leading the charge nationally; Tom Shorthouse was centre-stage at the University of British Columbia (and wherever there was a piano); Edmonton was doubly-blessed with Lillian MacPherson (passionate about both women’s studies and Iceland) at the University of Alberta and Shi-Sheng Hu (reluctant to discard superseded loose-leaf supplements) at the courthouse; the dynamic duo of Denis Marshall (at Queen’s University, always so kind and supportive) and Denis Le May (at Laval, always so full of spritely humour) was in full swing; Ann Crocker was hard at work at the University of New Brunswick (though she hadn’t yet been awarded the Order of Canada) as was Guy Tanguay at Sherbrooke; while Vicki Whitmell was re-inventing the law firm library at Osler. On the legal information side, Hugh Lawford was at Quicklaw, the klugy world leader in computer-assisted legal research; Stewart Morrison was at Canada Law Book, while my mentor Gary Rodrigues was stirring things up at Carswell. And all our library collections were being nurtured under the knowledgeable and personable expertise of our friends Ken Barnett and Jim Lang at Carswell and Helen Rentis at Butterworths.

It was a different world then. Our libraries were still relatively new and not yet shabby. Not only did universities and libraries have money to spend, but everything was much cheaper, too. In the absence of financial pressures, library collections and staffs were growing. The law publishers, not yet merged into multinational conglomerates, were content in their profitability. Everyone loved The Canadian Abridgment and the All-Canada Weekly Summaries, and everyone agreed they simplified the tasks of researching the law and keeping abreast of developments in the courts. Our profession and the industry operated as a partnership. These were the days of collaborative collection development policies (I’ll collect Caribbean law if you’ll collect East Africa, etc), the development of the KF Classification Modified for Use in Canadian Law Libraries, resource sharing agreements, and other joint and shared projects of mutual benefit to the whole law library community. The publishers were our trusted partners and good friends, who feted us at our conferences, helped us develop our collections (which they knew intimately), managed our subscriptions for us and consulted us about products in development.

How Times Have Changed!

The luminaries named above are all now passed or retired, but all of them had an immense impact on our libraries, on our profession, and on my own professional development and sense of purpose as a law librarian. I entered the profession in the dog days of this law library Eden, but not so late that I wasn’t trained to believe that all of us – librarians and publishers – worked best when we worked together; and that we, as law librarians, had a professional responsibility not only to our institutions but to society, too. We believed our libraries, especially academic law libraries, were a public trust, and that we had a responsibility not only to build and maintain comprehensive collections of Canadian primary law but to make these collections accessible and available not only to our students but to the local bar and to the public, too.

The legal information landscape has changed, too. In my opinion, possibly more than the challenges posed by the new information technologies, the numerous financial crises of the past decades have had the greater impact on our libraries. Whether these crises were the consequence of Reaganomics or the cycles of inflation and recession or debt or the growing greed of corporate culture or the advent of unions and collective bargaining in the universities – or all the above – the consequences to our libraries have been dramatic. To address the financial challenges, our libraries have had to shed staff, collections and space, while the library-related responsibilities that used to be ours have been centralized in the main university library. Having lost our cataloguing departments and independent collection development responsibilities, we’re in danger of losing touch with the myriad “professional librarian” skills – subject analysis, taxonomy and indexing skills; cataloguing and information organization skills; the bibliography and history of legal literature; space and resource management skills – that defined us as law librarians and cemented our libraries’ roles in our institutions.

The Legal Research Obsession

For many academic law librarians, the only remaining law library-related function remaining to them is the reference desk. Providing reference services in any library is a specialized, professional and valuable service; but when the service is divorced from other fields of “library science”, the librarian runs the risk of developing tunnel vision. This is especially so in academic law libraries, where we are losing or have already lost our connection to the “technical” aspects of our profession and are unfamiliar with resources outside of law. Isolated from our non-law librarian colleagues and comfortably nestled within our law schools, the demands of our law student and faculty users have become our consuming priority. Though it is only natural and even desirable to identify with our patrons, in the exclusive and hermetic environment of the law school, we become the victims of a sort of Stockholm syndrome. As more of us come into the profession with law degrees, and driven by the demand to act and to be seen as “faculty” (faculty status being the governing fiction of Canadian academic librarians), we feel increasingly compelled to prove ourselves as academics rather than as librarians. We lose sight of law libraries as a specialized career choice for librarians rather than as a career alternative for lawyers. We seem to lose the critical faculties pertaining to information specialists, obsessed with “teaching” legal research “according to West”, happy to promote reliance on Lexis and Westlaw regardless that half our students will not have access to them after graduation.

After 35 years in this industry, I’m still not sure where, how or by whom legal research should be taught. I certainly didn’t go to library school to become a teacher. Despite our best efforts, our colleagues in the law firms still complain about summer and articling students’ lack of research skills. In my opinion, the teaching of legal research is a pedagogical, not a library responsibility, possibly better done in a clinical rather than a classroom setting. The practice of legal research cannot be separated from the practice of law: it is essential to interpreting the law, developing a legal argument, and writing about it for court or a client. When I was pursuing my doctoral studies, I audited the bibliography and research course in the English graduate program at the University of Toronto. This outstanding course, taught in small seminar groups, was required though not graded; students had to participate and write assignments, and had to pass. Most significantly, the course was taught by a member of the permanent faculty, not by an adjunct or other graduate student, and certainly not by a librarian. The course was extremely effective; however, it was being taught by an academic to convey academic methodologies. Legal research methods, on the other hand, should relate to practice. Are law librarians the best qualified to give this instruction in the law school?

A Future for Canadian Academic Law Libraries?

There must be more to academic law librarianship than teaching legal research; if not, I’ve spent 35 years wasting my time as a law librarian. I recently wrote here on Slaw an article on whether I believed it necessary for a new law school to have a library. Looking back on my career from the perspective of several months’ separation, especially my 10 as Chief Law Librarian at Osgoode Hall Law School, I wonder whether the same question couldn’t be asked of our law schools generally. What does the future hold for Canadian law school libraries?

I have described how financial realities have reduced our academic law libraries from comprehensive library environments to a rump body of librarians (or a single librarian) in a law school doing library reference duties and obsessing about teaching legal research. Our loyalties seem to be to the law school rather than to the library and to the profession of law librarianship. I wonder if we would be more effective law librarians and could better serve our constituencies (the law school, the legal profession, a public hungry for legal information, and not least our colleagues in non-academic law libraries) if we were less embedded in the law school and instead better integrated with the wider university library community. Rather than advocating for the library in the law school, we could then advocate for Law in the libraries. As our community of academic law libraries becomes smaller and more anemic, our university libraries may be able to provide us with a transfusion of new skills and influence within a wider information environment with greater collaborative potential, which we could use to further and promote legal information initiatives in our institutions and nationally. In the process, we might rediscover professional library skills that we have let atrophy over the past decades, making our professional lives more fulfilling. If it is true, as my Dean used to say, that law schools train leaders as well as lawyers, then surely law librarians can be leaders, too!

Times have changed. The legal information environment has changed. Perhaps even law schools may begin to change. We cannot hope to have impact unless we change, too, and give law libraries and legal information a stronger voice within the library community. Here are just a few of the initiatives and projects that I think we could better promote from within the university than from within the law school:

• Legal Information Literacy: Promote better understanding and use of law, legal information and related information resources in the broader, interdisciplinary scholarly community. Information literacy outreach is one of the success stories in our university libraries and we should work with and learn from these specialist library colleagues to promote legal information literacy in the university.
• Repositories of Research and Scholarship: One of our signal successes at Osgoode was the creation of Osgoode Digital Commons, a free, web-based, publicly-available repository of the research generated by the faculty of Osgoode Hall Law School. Osgoode Digital Commons also serves as the free, online archive for the journals published at the law school, including the Osgoode Hall Law Journal. Despite the challenges faced by universities in creating comprehensive repositories of their journals and scholarship, I believe law faculties, with their more highly-developed sense of professional and scholarly community, are naturals to the concept. Not every law school can afford the bepress Digital Commons software, but every university has a scholarly repository which could be used by its law school. Perhaps, working within their law school, and using the technical resources of their university library, law librarians could become the champions and models for implementing successful repositories within their universities. The benefits of such repositories to the scholarly community, to the legal profession, and to the public, are manifold.
  • As such repositories as developed, an ultimate goal would be the implementation of a national repository of legal scholarship, hosted either on CanLII or some other platform. We in Canada like to think of ourselves of world leaders in the free access to law movement. This could be a litmus test. The Australians are doing it on AustLII. We, with our greater resources, should feel challenged.
• The Digital Canadian Law Library: CanLII is a great start, but it only provides access (with a few exceptions) to post-1999 judicial, statutory and regulatory law, already “born digital”. As I’ve written before, we need and deserve a comprehensive, freely-available, digitized collection of early (pre-2000) Canadian primary law. At Osgoode, we developed a digital collection of pre-2000 Ontario Statutes. One of my last projects before leaving Osgoode was to digitize a near-comprehensive collection of early (1824-1931) Ontario and Upper Canada law reports. In the current environment it is unlikely that either of these collections will be continued or completed. We need a national, collaborative initiative to realize a comprehensive Digital Canadian Law Library, on the model of the Harvard Law Library’s Access Caselaw project, with the double goal of both preserving and providing access to the early print record. Harvard’s project is partly self-financed and partly a public-private partnership. Surely our law societies, law foundations and law schools could find the funds to finance such a relatively affordable project – and our universities could provide the digitization expertise. And if CanLII doesn’t want to host the collection, we could host it on our own institutional repositories – or even, perhaps, develop a public-private partnership like Harvard’s?
  • If this initiative is ever realized, there’s no need to stop with primary legal materials. It wouldn’t cost much more to digitize (and, in the process, preserve!) all of Canada’s legal print heritage, including secondary materials. Among other things, Toronto and Osgoode between them have a comprehensive collection of facta from the Supreme Court of Canada, the Ontario Court of Appeal and Privy Council appeals from Canada, dating from Confederation to about 1980. I was preparing a plan to digitize these collections just before leaving Osgoode.
• Linked Data: There was a time when law libraries were leaders in the Canadian library community and active participants in developing standards for the cataloguing and classification of legal information. I believe I can now count the total of committed cataloguers in Canadian law libraries on the fingers of one hand. If legal information is to have a future in the semantic web, we need to promote its cause and assemble a larger group of experts to research linked data for law.
• Community Outreach and Consumer Legal Information: Our Chief Justice is only the first among many to call for greater access to justice. All law librarians, especially academic law libraries, must believe that access to justice includes access to legal information and that we have a duty to promote such access. Information literacy, scholarly repositories, digital libraries of primary caselaw and statutes, these are all part of the “public trust” I mentioned at the start of this column and part of effort to facilitate access to legal information by a public seeking access to justice. Perhaps it is time that we begin to think about sharing our law library knowledge and skills outside of the immediate legal community and consider establishing consumer legal information services. Such services, on the model of community health information services, could be full- or part-time, offered within our law schools or community legal services clinics, or within public libraries (perhaps training public librarians) or even in our courthouse libraries.

If these initiatives are relevant or desirable, it is unlikely that we will be able to realize them with the shrinking resources of our law school libraries, where we no longer have staff or funding to support such projects, and where we are constantly in competition with the law faculty and students for project funding. Such projects can only be pursued and realized if we are able to work collaboratively with colleagues within our wider university library systems, which would also provide us with a greater voice in regional and national collaborations. And perhaps one day we will see again the appointment of a law librarian as National Librarian.