Cathie.best

The first issue of Journal of Open Access to Law has been published.

The editors of the journal are Tom Bruce, Ginevra Peruginelli, Enrico Francesconi, and Pompeu Casanovas.

The journal is refereed and open access, and is published on the Open Journal Systems platform.

Articles published in the journal are licensed under the Creative Commons Attribution 3.0 License.

The journal provides RSS and Atom feeds and an OAI-PMH service.

Here are the legal informatics or legal communication papers in the first issue, organized by category:

Free and open access to legal information in the digital age

• Graham Greenleaf, Andrew Mowbray, and Philip Chung: The Meaning of ‘Free Access to Legal Information’: A Twenty Year Evolution
• Lenore Georgina Adeline Hamilton: Social Media and the Tyranny of Distance – Pacific Access to Legal Information

Data organization and legal informatics

• Michael Curtotti and Eric McCreath: A Right to Access Implies A Right to Know: An Open Online Platform for Research on the Readability of Law
• Hughes-Jehan Vibert, Pierre Jouvelot, and Benoît Pin: Legivoc – connecting laws in a changing world
• Thom Neale: Citation Analysis of Canadian Case Law

Open government data and its applications

• Zhuozhen Duan: The rise of the internet and its impact on the openness of the justice system in mainland China: improvements and limitations
• Josiline Phiri: Opportunities and challenges to free access to law in a changing world: a case of Zimbabwe Legal Information Institute (ZimLII)

Legal services based on free access to legal information

• Marta Poblet: Visualizing the law: crisis mapping as an open tool for legal practice

Here are links to selected posts about this first issue:

• Tom Bruce: Announcing the Debut of JOAL
• Bob Ambrogi: New Today: Journal of Online Access to Law
• Cicely Wilson: Welcome JOAL! The New Journal of Open Access to Law

Filed under: Applications, Articles and papers, Research findings, Technology developments, Technology tools Tagged: Court transparency, Crisis mapping and human rights information, Crisis mapping and human rights law information, Crisis mapping and legal information, Crisis mapping in legal education, Crowdsourced legal information, Crowdsourcing human rights information, Crowdsourcing human rights law information, Crowdsourcing in legal education, Crowdsourcing legal information, Empirical methods in legal communication studies, Empirical methods in legal informatics, Enrico Francesconi, Free access to law, Ginevra Peruginelli, Human rights law information systems, JOAL, Journal of Open Access to Law, Judicial transparency, Legal citation analysis, Legal citations, Legal communication, Legal informatics journals, Legivoc, Online legal publishing, Pacific Islands Legal Information Institute, PacLII, Pompeu Casanovas, Public access to court information, Public access to judicial information, Public access to legal information, Public attitudes towards courts, Public attitudes towards judiciary, Readability of legal resources, Readability of legislation, Readability of statutes, Tom Bruce, Ushahidi and human rights information, Ushahidi and human rights law information, Ushahidi and legal information, Visualization of human rights information, Visualization of human rights law information, Visualization of human rights violations, Visualization of legal information, Zimbabwe Legal Information Institute, ZimLII

Thom Neale, JD, of the Sunlight Foundation has published Citation Analysis of Canadian Case Law, Journal of Open Access to Law, 1(1) (2013).

Here is the abstract:

This study uses simple statistical and functional analysis in conjunction with network analysis algorithms to examine the network of Canadian caselaw using data supplied by the Canadian Legal Information Institute (CanLII). The analysis reveals that indegree centrality and PageRank scores of caselaw within the network are effective predictors of the frequency with which those cases will be viewed on CanLII’s website. Further, statistical and functional analysis of network rankings of each case over time suggest that cases typically cease to be cited in 3 to 15 years, depending on the jurisdiction, with the exception of Supreme Court of Canada decisions, which persist for 50 years. The study concludes that roughly 19% of Canada Supreme Court cases remain important despite the passage of time, whereas in all other jurisdiction, less than 3% of cases continue to be cited regularly over time.

Earlier this year CanLII published a technical report based on this research.

Filed under: Applications, Articles and papers, Research findings Tagged: Analysis of legal citations, Canadian Legal Information Institute, CANLII, Case law citations, Court decision citation networks, Court decision citations, JOAL, Journal of Open Access to Law, Judicial citation networks, Judicial Citations, Legal citation, Legal citation networks, Legal citation studies, Network analysis in legal informatics, Network analysis of legal citations, Statistical analysis of legal citations, Statistical methods in legal informatics, Thom Neale

Sarah Glassmeyer's commentary challenges us to consider a Venn Diagram comprising the current state of legal education; the systematic failures surrounding issues of Access to Justice; and in the third circle is the Reinvent/Innovate/New Law world of individuals attempting to make the practice of law more efficient using technological solutions. Sarah then asks - What lies smack in the center of these circles? The answer - Legal Information. Read on.

The Canadian Bar Association Access to Justice Committee has released Reaching Equal Justice: An Invitation to Envision and Act. The final report, a detailed version of the Committee's summary report, sets out the Committee’s proposed strategic framework for reaching equal justice.

The Executive Summary and Summary Report are available on the Equal Justice website.

The Canadian Association of Research Libraries recently published a short text entitled Altmetrics in Context that describes an emerging way of measuring the impact of scholarly research.

Altmetrics incorporate multiple data sources, including the traditional article citation numbers, but go beyond that to also include bookmarks, shares, blog mentions, Facebook likes and tweets.

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site's contact form.

Judicial “Copying” does not affect Independence or Impartiality: Supreme Court of Canada 
Emir Crowne
(July 29, 2013). Journal of Intellectual Property Law & Practice (Oxford), Forthcoming

(Footnotes converted to endnotes and renumbered)

. . . . The Chief Justice, in particular, must have been aware of the copyright implications[1] of her reasons in Cojocaru [Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30], yet paid little attention to them. The furthest inquiry the Court makes into the copyright realm is where the Chief Justice noted that:

… judicial opinions, especially trial judgments, differ from the kind of writings that traditionally attract copyright protection, with the concomitant demands of originality and attribution of sources. Judgments are “usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche” (Stern, at p. 2). Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk. Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.[2]

This deflection of the judicial duty to attribute sources ignores the fact that all writing is derivative. Indeed, the Supreme Court of Canada has tirelessly stated that copyright is a “creature of statute”[3], and that creature states that “copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work”[4]. Despite extensive copyright reform in Canada[5], there is no statutory exemption for judges or judicial proceedings as there is in the UK[6].

Given the Copyright Act’s non-exhaustive definition of literary work as “[including] tables, computer programs, and compilations of literary works”[7], the written submissions of counsel undoubtedly qualify as original, literary works. There is also no written waiver of counsels’ moral rights in those works. The unattributed judicial incorporation of such works into judgments is not only plagiarism, but a breach of copyright and moral rights.

Furthermore, throughout the Cojocaru judgment the Chief Justice emphasizes that the unattributed copying, in this case, did not impair judicial impartiality[8]. Yet, little attention is paid to the impairment to judicial integrity that unattributed copying can give rise to. The Canadian Judicial Council[9], chaired by the Chief Justice, sets out the “Ethical Principal for Judges”[10]. In it, the Council sets out the general expectations with respect to judicial integrity, among other things:

Principles:

1. Judges should make every effort to ensure that their conduct is above reproach in the view of reasonable, fair minded and informed persons.

2. Judges, in addition to observing this high standard personally, should encourage and support its observance by their judicial colleagues.

Commentary:

1. Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law. Many factors, including unfair or uninformed criticism, or simple misunderstanding of the judicial role, can adversely influence public confidence in and respect for the judiciary. Another factor which is capable of undermining public respect and confidence is any conduct of judges, in and out of court, demonstrating a lack of integrity. Judges should, therefore, strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment. The Canadian judiciary has a strong and honourable tradition in this area which serves as a sound foundation for appropriate judicial conduct. . . .

3. . . . The judge should exhibit respect for the law, integrity in his or her private dealings and generally avoid the appearance of impropriety.[11]

It may be that the trial judge’s reasons, in this case, showed evidence of impartiality (as the Court found), but it is difficult to see how the unattributed and wholesale reproduction of over 85% of the plaintiff’s submissions did not severely undermine judicial integrity.[12] The Supreme Court’s unwillingness to seriously explore the copyright and moral rights implications of this “copying” might stem from the not too distant revelation that judicial integrity was indeed compromised, and is always compromised, when there is rampant and unattributed wholesale reproduction of counsel’s submissions.

 

I am interested by recent discussions I have had with librarians at various law libraries about how they make decisions about what materials to keep, cancel, or discard. Many are looking at the holdings of other libraries and relying on them to provide access to less commonly used materials rather than maintaining them locally. This is understandable, but it is only a viable decision if the lending libraries continue to maintain their collections. Instead, this appears to be done without formal agreements among the libraries about retention of materials, consideration of whether it is within the supplying libraries' mandates to provide access going forward, or if they are likely to maintain the same level of service over time.

I have experience of a large government library which provided extensive document delivery, and several university libraries chose to discard substantial holdings based on access to its collection and services. Eventually the government cut funding to the library, and difficult decisions had to be made about what was core to the organization as a whole, and one of them was that content aimed at external stakeholders was no longer core to its mandate. The university libraries had seen it as the role of the government library to maintain these collections and services in perpetuity, but there was no formal agreement that this was what it would do, and funding cycles created different priorities.

This situation is reflected on a smaller scale in several conversations I have had with librarians who are experiencing shrinking physical spaces and budgets. In each of these cases, decisions are being made regarding whether materials will be maintained as ongoing current subscriptions, discontinued but kept, or discarded, based on the holdings of other institutions. Private law libraries look to courthouse libraries, courthouse libraries look to university libraries, university libraries look to each other, and everyone looks to the Supreme Court of Canada Library. The problem is that it seems budgetary pressures are being felt at all levels of the chain, and these decisions are being made without consultation.

It used to be that most libraries maintained collections on a “just in case” basis, and, since information was so difficult to acquire, it made sense to operate that way. In times of tighter budgets, higher real estate costs, and easier access to information online, there is more pressure on libraries to maintain only those resources which are regularly used. These forces affect all libraries, but those with primarily practice based collections are particularly so: this includes libraries in law firms, law societies, and many government departments. This is represented by a switch to a “just in time” model of collection development: where materials are obtained as they are needed. However, things can only be obtained in time if they are held somewhere, and usually that means somewhere local.

A selective survey of the existing environment reveals the following: law society libraries have a national resource sharing agreement; however, it doesn't include interlibrary loans of books or other print materials, and there is no formal agreement relating to what collections any particular library will maintain in perpetuity for the support of the others. Among academic research libraries there is an agreement among the Ontario Council of University Libraries regarding the retention of the last copies of materials, particularly journals. However, it isn't clear if it has been implemented. It isn’t possible to include mention of all similar agreements among library systems nationally, but most libraries have information about them available on their websites.

During these discussions, we also discussed the role of the Supreme Court of Canada Library, and I have at times been the grateful beneficiary of its generous loan policies. In some ways the SCC Library is filling a role as a source for legal materials that aren't available elsewhere, like the Library and Archives of Canada did before recent service cuts; however, there is nothing in its mandate that requires acquisition of materials to support external needs. The library has reciprocal agreements with other libraries with the aim to provide service to internal clients and contribute to the legal community nationally, which you can read about here, and it is generally supportive of giving the legal community access.

I would argue that in institutions with the extended timelines of law firms, law societies, government departments, and courts, it is a precarious thing to base decisions on having access to the SCC Library's collections when there is no explicit mandate to make them available. Government libraries generally are retreating from the provision of access to their collections as a standard service to the public and libraries, for example consider Library and Archives Canada's cancelation of their interlibrary loan program.

I have been told that in a public library there is, on average, a complete turnover of the collection every five years, but in law libraries the needs are different. One day there may be a real and immediate need to consult a volume from the second edition of Halsbury's Laws of England that was published in 1932 or read a case from 1753 that was only reported in a footnote, and there will be repercussions for not having it. This is not to say that I think we should be trying to retain all obscure materials, only that decisions be made with the understanding that they will likely not be as easily available in the future.

It is a potential solution for libraries to enter into reciprocal agreements to maintain certain materials. Libraries within individual law firms could agree to maintain particular titles and share access as required. Law society libraries could agree to maintain content relevant to their own jurisdictions, freeing the others to concentrate on local needs. Universities could agree to provide access to each other as required as they discard materials, which are not regularly needed. Agreements could also be made that if the last copy of a title is being discarded it should be kept or offered to the other libraries for archival purposes. Some of these options are easier to achieve than others: for the libraries internal to a law firm to agree to supplement each others' collections is quite straight forward, but reciprocal agreements across organizations are more difficult.

As an example, implementing a program of retention of last copies seems like it should be simple, but it is complicated when there is not an easy way to find current information about where materials are. The university libraries in Ontario have a union catalogue, but many other groups of libraries do not, and as the holdings in Library and Archives Canada's AMICUS catalogue are not always maintained, it can be impossible to know when an item is a last copy. It is even more difficult in the case of law firms where what libraries have is considered a competitive advantage, and, short of sending and answering personal queries as a professional courtesy, it is impossible to know what anyone has.

Libraries all seem to be facing space restrictions, which limit the historical holdings they can maintain. They also all seem to have budgetary restraints, which limit what they can purchase. It is tempting to rely on other libraries to fill in the gaps. In the past this has generally been a successful strategy, but as all libraries decrease holdings it becomes a liability, and some materials are expensive, difficult, or impossible to replace if discarded in haste. I have heard anecdotes of libraries being asked to subscribe to titles another libraries have recently cancelled when they are trying to cut their own subscriptions, and without coordination it is unlikely that current networks will continue to be able to meet the needs they effortlessly handled before.

Thank you to Rosalie Fox, Louis Mirando, and Mandy Ostick who kindly answered my questions in the writing of this column.

In early December of 2011 and 2012, I posted top 10 lists of the most consulted cases. Two lists were published each year – one for all cases consulted and the other for consultations of cases decided in within that year. With the tradition now firmly established, I’m very pleased to present for 2013 the top 10 most consulted cases on CanLII.

As in prior years, I leave it to the readers to determine the significance of any case appearing on either list.

Top 10 most consulted cases of 2013

1. R. v. Duncan, 2013 ONCJ 160
2. Meads v. Meads, 2012 ABQB 571 (up from 3^rd place in 2012)
3. Dunsmuir v. New Brunswick, 2008 SCC 9 (down from 2^nd place in 2012)
4. Magder v. Ford, 2013 ONSC 263
5. Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 (up from 9^th place as 2012)
6. R. v. Grant, 2009 SCC 32 (up from 6^th place in 2012)
7. Jones v. Tsige, 2012 ONCA 32 (down from 4^th place in 2012)
8. R v McConnell, 2012 ABQB 369
9. Bedford v. Canada, 2010 ONSC 4264 (down from 6^th place in 2011)
10. Doe v. A & W Canada, 2013 HRTO 1259

As of 9:10am on 11-12-13, Duncan attracted an astonishing 47,598 consultations. While continuing the multi-year trend of the top case offering more smiles than value in the form of binding precedent, Duncan nonetheless distinguished itself by eclipsing not only the 19,149 consultations in 2012 of Langevin, 2012 QCCS 613 and the 18,641 peak established in 2011 by Bruni v. Bruni, 2010 ONSC 6568, but it beat their combined total by roughly 30%.

At number 10, Bedford drew 7,152 consultations, just shy of the 7,189 views of last year’s number 10.

Among cases decided in 2013, the top 10 looks like this:

1. R. v. Duncan, 2013 ONCJ 160
2. Magder v. Ford, 2013 ONSC 263
3. Doe v. A & W Canada, 2013 HRTO 1259
4. Quebec (Attorney General) v. A, 2013 SCC 5
5. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34
6. Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39
7. Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11
8. R. v. Fearon, 2013 ONCA 106
9. R. v. Ryan, 2013 SCC 3
10. Penner v. Niagara (Regional Police Services Board), 2013 SCC 19

The number 2 spot following Duncan was claimed by Magder v. Ford which, as of the 9:10am 11-12-13, counted 14,423 consultations. In the number 10 spot, Penner attracted 4,808 views – exceeding 2012’s “in-year” 10^th place finisher by over 600 views.

Background and miscellanea:

• CanLII’s operations have been continuously funded by Canada’s provincial and territorial law societies (and by extension, Canada’s lawyers and notaries) since 2000 to allow legal professionals and the public to access primary legal information at no direct cost. Weekday traffic to the site consistently exceeds 25,000 daily visits and total visits for 2013 will approach nine million.
• The database holds over 1.2 million judgments across 233 case collections, as well as tens of thousands of legislative documents from all Canadian provincial, territorial and federal jurisdictions.
• Our 2012 survey of Canadian lawyers and Quebec notaries disclosed that nearly 9 in 10 have used CanLII in the past 12 months and that 56% begin their case law research on CanLII.
• Monthly unique visitors are routinely over 230,000, a number that indicates extensive site use by individuals outside the legal profession. Consequently, the cases cracking the top ten lists might be considered as representing a mix of public interest and legal significance.
• A “view” or “consultation” of a document is measured as the interaction of an individual with the case URL. Mere appearance of a case in a list of search results will not constitute a view, but opening it to inspect it will. Similarly, where a user subscribes to RSS feeds and a case appears in the list, the case view does not take place until it is opened.
• Results above aggregate views for a given decision across formats (PDF or HTML) and across French and English.
• Certain decisions were excluded from consideration where consultation counts appeared to be artificially inflated by automated links or other means that suggested page views were generated by automated process and not initiated at the request of an individual user.
• Standings measured as of December 11^th. If significant shifts occur over the final few weeks of the year, I will provide an update in the comments.

 

In a news release dated today, the Law Society of British Columbia has announced approval in principal of three recommendations made in the final report of the Legal Service Providers Task Force, to wit:

• The Law Society and the Society of Notaries Public of British Columbia seek to merge regulatory operations.
• That a program be created by which the legal regulator provide paralegals who have met specific, prescribed education and/or training standards with a certificate that would allow them to be held out as “certified paralegals.”
• That the Law Society develop a regulatory framework by which other providers of legal services could provide credentialed and regulated legal services in the public interest.

The benchers' support for the recommendations was unanimous.

Law society regulation of paralegals has precedent in Ontario, but the opening of a door to "other providers of legal services" is a step into new territory for Canada.

This is approval in principle, it should be repeated, and there will need to be considerable work on details before actual regulations can be promulgated.

[Hat tip: Malcolm Mercer via the Canadian Legal Ethics email list]

The American Association of Law Libraries (AALL) has launched an online portal to promote its Principles and Standards for Legal Research Competency within the legal profession.

There, readers can find the principles and standards, as well as implementation and best practice ideas.

The association advocates that law schools, law firms, continuing legal education providers, bar examiners, bar associations, and other legal related organizations use these standards for legal research education and training.

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Kate Greene Stanhope, Manager Library & Information Services, McInnes Cooper

 2013 is winding down and planning for 2014 well underway. Historically, end of year was the natural time to evaluate departmental performance and set new goals. However, in 2013, we seemed to be doing this weekly – daily sometimes. Our small Library and Information Services group has moved away from the emphasis on library as a physical space and is focussed on the information services that add value to our firm’s business. Research advisory and reference services are still in high demand, though their value is diminishing in the eyes of some. The recent transition to a sole source environment for online research has resulted in increased requests for assistance finding material previously available at our fingertips. This is not a bad thing, but achieving balance between active participation in firm knowledge and information management projects and availability for “just in time” research is challenging.

So, as I contemplate my 2014 Business Plan, I reached out to colleagues in other Canadian firms. They shared their thoughts on what kept them busy this year and what 2014 might look like. A few common themes emerged.

 Beyond legal research – The intersection of library and marketing:

More law libraries are collaborating with marketing, whether formally or informally, to lend expertise in the areas of Competitive and Business Intelligence. In the past year, our L&IS group has worked with Marketing to produce client and industry profiles and we foresee this continuing. Currently, we are trialling an online research product that will enhance our ability to turn these requests around more efficiently and without sacrificing detail (I learned a lot about CI in law firms at the CALL 2013 conference at a session moderated by Agathe Bujold of McCarthy Tetrault).  

 April Brousseau, Assistant Director, Library and Knowledge Management at Stikeman Elliot, shared that her group works closely with Stikeman’s marketing department to provide in depth company and industry research, and assists in the preparation of related materials for RFPs. Another colleague from a smaller firm notes that marketing related work now approaches 50% of his time and includes input into the use of social media, assisting in the creation and editing of visual advertising, and even assisting with the creation of individual lawyer strategic business plans.  Although this work often gets set aside when a lawyer requires research assistance, he delegates some research to students when things are really tight.

 KM for Library & Information Services  

Legal information professionals continue to drive Knowledge Management within firms, but KM practices have relevance in helping us manage our internal know-how, specifically the collective knowledge amassed in the provision of research and reference services. Leveraging this knowledge through identification, classification, and retrieval of “frequently asked questions” can free up time to devote elsewhere. April’s group at Stikeman’s plans to enhance the database of reference question responses they maintain and my group continues to improve our use of Outlook categories to profile reference answers.  We are also looking for better ways to capture metrics about the kinds of questions we receive and the resources used to answer them (See Eve Ross and Bess Reynolds’ presentations Library Metrics and Metrics 101: Proving Your Value for detailed discussions of the value of metrics for information professionals).

 Prominent Roles in KM and Technology Projects

Fellow Nova Scotia law librarians Linda Matte (Library Manager, Cox and Palmer) and Cyndi Murphy, (Knowledge Manager, Stewart McKelvey and current CALL Past President) devoted significant time this year to projects which introduced new technologies to their lawyers practices.

 The cost of updating of print versions of Civil Procedure Rules (CPR’s) is a significant line item in many library budgets. With 30 subscriptions to manage, Linda sought to reduce these costs while still providing current, convenient access to this information. She investigated the use of iPad’s to access CPR’s and discovered that pdf versions of the rules, freely available online, don’t require wifi to use after they’ve been download. She tested the $5 GoodReader app to manage content (bookmarks, notes, highlighting), and found it to be very effective. The pilot project was optional and was implemented over 11 month, with an initial trial group of 10 lawyers. It was a success from the start and as word spread Linda eventually had 100% buy in, with savings approaching $18,000 by 2014.

 When Stewart McKelvey decided to deploy Recommind’s Decisiv Email Management software to better manage e-mail volume, Cyndi was a key member of the implementation team, along with a project manager, technical advisor, and a member of the Stewart McKelvey IT staff (a consultant was retained to assist with the planning and change management aspects of the project because of its impact on lawyer practices). Reporting to the Chief Professional Resources Officer, who was actively involved in the roll-out, Cyndi took the lead on liaising with the IT trainers to compile one-page handouts on the filing and searching features of Decisiv, created the portal page dedicated to Decisiv, and worked with the trainers to populate it. When Decisiv was rolled out to users throughout the firm, she assisted in conducting training sessions. Cyndi acknowledged that it was difficult at times to balance the demands of the project with her day to day work, especially with the travel required to the firm’s other offices. But, support from her staff and recognition from the firm of the role she played in the success of the project contributed to personal and professional gratification.

 Looking ahead, the dynamic nature of the work we do as Legal Information Professionals will probably be reflected in the changing composition of our groups. At Lawson Lundell, an innovative, team approach is described in the advertisement for a new position, Manager of Information Resources.  And, in 2014, my group will welcome the firm’s Conflict and Audit Coordinators as we become more involved in the life cycle of information within the firm, from new business intake to closed file management, and everything in between.

 Now, if I can just get that Business Plan done before Christmas Eve . . .

 

 

On December 16, 2010, a panel of the Eleventh Circuit, U.S. Court of Appeals, issued a per curiam opinion interpreting the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1) as it related to specific Florida crimes. The panel designated that opinion not for publication (“DO NOT PUBLISH”). This December opinion vacated an earlier one, dated September 8, also unpublished, that had misstated one of the defendant’s prior convictions. The new decision corrected the error. In all other respects it was identical. Although unpublished, under the Federal Rules of Appellate Procedure (Rule 32.1) that December 16 decision can be cited. A rule of the Eleventh Circuit (p. 147, Rule 36.2) explicitly provides that unpublished opinions are not binding precedent but “may be cited as persuasive authority.”

The issue to be considered here is how to cite such unpublished, non-precedential decisions.

Both the September and December opinions are available on the Eleventh Circuit Web site. They and other Eleventh Circuit opinions applying the same sentence enhancement provision of the ACCA can be found with a Google web search (site:www.ca11.uscourts.gov “Armed Career Criminal Act” “residual clause”) or through a search on Google Scholar limited to the Eleventh Circuit. Anyone finding the court’s decision in United States v. Hayes on the open Web would, however, be unaware that, notwithstanding, the “DO NOT PUBLISH” label the editors of Thomson Reuters selected the decision for publication in a set of books that no law library I’ve ever used has seen fit to buy or shelve, the Federal Appendix of the National Reporter System. (The Federal Appendix is for sale. The full set, currently 523 volumes, covering a mere dozen years, can be yours for only $7,093.80, just marked down from $10,134, perhaps for the holidays. However, the print market was never that publication’s aim.) Within that series the Hayes decision is reportedly located in volume 409, at page 277. That information is not available on the open Web. Furthermore, unless a person finding and wanting to cite Hayes is a subscriber to Bloomberg Law, Lexis, or Westlaw, she would not be aware that those services have designated it, 2010 BL 299236, 2010 U.S. App. LEXIS 25741, and 2010 WL 5122587, respectively. Those high end services also provide the case’s Federal Appendix cite, 409 Fed. Appx. 277 (or as converted by The Bluebook, 409 F. App’x 277). Persons with access to Casemaker or Fastcase could discover and retrieve the Hayes decision using a suitable query, but neither of those services adds their own proprietary citation or reports the citations added by their competitors.

One further point about the Federal Rules of Appellate Procedure and Eleventh Circuit additions – they provide no explicit guidance on how to cite “unpublished” but widely available decisions like Hayes. One can, however, find indirect policy guidance in the same Eleventh Circuit rule that allows their citation. It provides that “If the text of an unpublished opinion is not available on the internet, a copy of the unpublished opinion must be attached to or incorporated within the brief, petition, motion or response in which such citation is made.” Patently, this requirement is not focused on judicial access to such decisions. The judges of the Eleventh Circuit, like other federal judges, have access to both Lexis and Westlaw.  Rather the rule addresses the problem of access faced by parties without access to Westlaw, Lexis, Bloomberg Law and the rest, and citation format bears directly on access.  A citation to Hayes in a brief, memo, or court opinion reading: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010)“ is utterly useless on the open Web. It will also fail to retrieve the decision on Casemaker and Fastcase. Yet that is precisely how The Bluebook would have the case cited once it has been selected for and received volume and page numbers in the Federal Appendix. (See Rule 10.5(a).) No doubt that is because The Bluebook is written by and for law journals, whose editors have access to at least one, if not all, of the Bloomberg Law, Lexis, and Westlaw trio. The ALWD Citation Manual similarly assumes the universal utility of a Federal Appendix citation. (See its Rule 12.14(b).)  In fact the ALWD manual goes farther down this false path than The Bluebook, for it authorizes citations to unpublished decisions that rely totally on Lexis or Westlaw cites, which are even less effective across systems, e.g., “United States v. Hayes, 2010 U.S. App. LEXIS 25741  (11th Cir. 2010)” or “United States v. Hayes, 2010 U.S. App. LEXIS 25741  (11th Cir. 2010).”

Until the federal courts begin attaching neutral citations to their own decisions, the only effective way to cite Hayes or any other “unpublished” but widely distributed decision is to include both the docket number and the full date of the decision, as in “United States v. Hayes, No. 09-12024 (11th Cir. Dec. 16, 2010).” The docket number, coupled with deciding court, enables retrieval of the opinion from all competing commercial research services, from Google Scholar and the open Web. The full date, particularly important with this example, allows anyone following the citation to realize that the vacated September 8 opinion, which the docket number will also retrieve, is not the target of the reference.

In sum, both The Bluebook and the ALWD Citation Manual have been led astray. An unpublished decision should be cited as an unpublished decision. Docket number, court, and full date work effectively to identify and retrieve a cited case across sources, including importantly the open Web. A citation to the Thomson Reuters Federal Appendix is no substitute. Nor is a citation using the proprietary numbering system of one of the commercial online services. Of course, there is no harm, beyond the space consumed, in adding a Federal Appendix, Bloomberg Law, Lexis, or Westlaw cite to that essential core. On the other hand, unless one is confident that all important readers of a document will have access to a system on which such a proprietary cite will work, the added value is not likely to be worth the increase in citation length.

Unfortunately, the judges of the Eleventh Circuit and the district courts over which it sits do not model this approach. Just as they impose no particular citation format on those appearing before them, they practice none. Hayes has been cited in numerous subsequent decisions, both published and unpublished. In United States v. Nix, 628 F. 3d 1341, 1342 (11th Cir. 2010) the earlier Hayes opinion is cited as “United States v. Hayes, 2010 WL 3489973 (September 8, 2010).” The dissent in Rozier v. United States, 701 F.3d 681, 688 n.5  (11th Cir. 2012)  cites to the Federal Appendix reporter, “United States v. Hayes, 409 Fed.Appx. 277 (11th Cir. Dec.16.2010).” United States v. Morris, No. 11-13064 (11th Cir. Aug. 15, 2012) (which appears in volume 486 of the Federal Appendix at page 853, if that is useful to you) cites the case, without either docket number or exact date, as “United States v. Hayes, 409 Fed. App’x 277, 278-79 (11th Cir. 2010).” Citations to Hayes, in recent decisions of the U.S. District Court for the Middle District of Florida, appear in the form: “United States v. Hayes, 409 F. App’x 277 (11th Cir. 2010), cert. denied, ___ U.S. ___, 132 S. Ct. 125, 181 L. Ed. 2d 47 (2011).”

Under the influence of those appearing before them and the guidance of their clerks, federal judges need to bring their citation practice into accord with the concern over access expressed in the Eleventh Circuit rule.

Look around everywhere you turn is heartache
It's everywhere that you go (look around)
You try everything you can to escape
The pain of life that you know (life that you know)
"Vogue" Madonna

Legal Publishing is vogueing again and Madonna's lyrics must have been written for the legal publishing industry!

Here at Law Librarians News publishing legal books is a development that has come back into play in a big way in the last 12 weeks or so.

Management at various publishers may well raise their eyebrows at our comments if and when they read this. But it really does feel as though the old fashioned legal title has suddenly come back into fashion.

It feels as though years have passed without the majority of legal publishers bothering to shout from the rooftops about newly published titles. But suddenly, in these autumnal days of 2013, we can’t negotiate our inbox due to one press release after another about this or that new legal book produced either in print format or as an online book.

The major exception to this drought-till-now rule being Kluwer, who carried on with a fairly healthy publishing programme after the 2008 financial disaster. Although, in our eyes, they didn’t really push and market their titles as much as they should have due to a desire to make their client base aware they were up with the times ( and their competitors) with lots of talk about furious digitizing and the creation of new online legal products just to keep up with the Joneses.

So why the sudden desire to talk about and publish subject specific based titles after years of database building, workflow management software and the endless other “magic bullet” legal business and management software solutions?

Here at LLN we think there may be a number of reasons for a return to the old ways as we move towards the middle of the second decade of our brave new century

This year the never ending attack on “editorial” may have finally reached its nadir. Even back in 2000-2002 there was a noticeable distrust by management of well paid editors. They were supposedly surplus to requirements and initially law students were hired to supplement and even replace editors in order to save costs.

Then, we presume, law students became too expensive and so the vogue of outsourcing to “editorial” companies with no knowledge of legal content raised its head as the next best cost saving option. "Cost saving" has now run its course as all involved realise that it's actually much cheaper to have a few well-educated and -trained editors rather than lots of poorly paid individuals with few skills and lots of turnover.

So . . . are we seeing the resurgence of the well-researched, -written and -edited old fashioned legal title as the best back up to all the new legal legislation and developments happening around the world at the moment?

We aren't getting too excited in case it is all a flash in the pan, but we do hope that once again people are seeing value in titles written and edited by people whose knowledge and skill base lies in the legal industry .

Maybe we will even see , as in the past, certain new titles go to a new edition on annual basis. For example, Chitty on Contracts is now in its 31st edition. Publishers should, as a matter of course, be able to develop new titles with this length of shelf life as a way of giving readers continuity; and as publishers knew in the past, this is one of the better ways to guarantee future annual revenues from clients. As long as they actually provide proper new editions everybody will be happy.

In 1936, Yale law professor Fred Rodell wrote “[t]here are two things wrong with almost all legal writing. One is its style. The other is its content.”

Some things never change, but the growth of legal blogging over the past decade would give hope to even Professor Rodell that not all legal writing must suffer from these twin deficiencies. In fact, the good professor might even be persuaded to accept that short form legal writing through blogs serves as a valuable source of legal scholarship.

In the context of a for-credit tech law internship overseen by the University of Ottawa law school this fall, I have been investigating the issues surrounding the use and usefulness of short form content in legal and other academic disciplines. I was attracted to the topic because of a project underway at my host, CanLII, to develop a companion research site built on community contributed content. A paper is forthcoming, but as the topic of harnessing value in law blogging was raised in a recent post by uber-blawger Kevin O’Keefe, I thought it would be of interest to blog on the topic as well.

Why blogs?

Whether one is a lawyer, law student or a client, traditional legal writing usually does not bring to mind many positive associations. Why would it? It’s hermetic, too long, and packed with fancy jargon and dated phrasing. As a means of communication, it is terribly ineffective and unappealing.

Where should we go then? Let’s first establish our goal. To be useful, legal writing should effectively communicate the message in a manner understandable to the target audience. Let’s go a step further. To be truly valuable, legal writing should serve the widest audience possible in order to make the law clear and more accessible to the public as well as to the legal profession. Academic writers may disagree – that’s fine. There will always be a place and a need for exhaustively researched and narrowly focused reviews of the practical and the arcane. However, as more and more legal minds seek to contribute to scholarship and legal understanding, there is no reason for them to model their contribution on the academic template and many reasons to abandon it altogether.

Through the proliferation of law blogs, both individual and collaborative (like Slaw or firm blogs), the internet is populated with thousands (maybe tens of thousands) discrete and valuable summaries of important legal issues. Writer and reader alike are no doubt interested in maximizing the benefits associated with legal knowledge in a form that can actually be understood and possibly even enjoyed.

Bringing order to the blawg-o-verse

In his recent post, Kevin O’Keefe asked who “will harness the value of blog content?”

His question makes two assumptions. First, that blog content is valuable, and second, that the value can be further enhanced through organization.

Are law blogs valuable? Absolutely.

We are all familiar with abstracts, as well as summaries and case briefs. They allow for quicker determination of relevancy and faster search, even if their internal structures vary. Those shorter forms aren’t, of course, free from issues. Users struggle with texts containing jargon and legalese, with those poorly structured and lacking or offering excess of information. Nevertheless, even when full text is available, summaries and abstracts are still preferred by many readers. Law blogs, which are typically longer than an abstract but shorter than a law review article, offer many of the same benefits and avoid most of the pitfalls.

Many law firms, as well as individual lawyers write blogs on a variety of topics and areas of practice and a clear shift in attitude is underway within the profession and the courts to accept the idea that a well-reasoned blog posts from authoritative sources, be they in the form of a case comment or an opinion, can offer value and legitimacy on par with journal articles. Indeed, blog posts can even be superior sources when talking about accessibility, currency and relevancy. Given that most blogs are written in a more casual style, legalese tends to be greatly minimized allowing, for example, self-represented litigants and accused to educate themselves in a more effective and time-efficient manner.

So how do we “harness this value”?

Since we’re already flooded with information, wouldn’t it be nice to have it somehow organized and easier to navigate? The Internet offers the mixed blessing of abundance, and when it comes to legal information, volume is not a proxy for value. Unlike academia, where the integrity of a journal article is to a degree controlled by peer review, readers and researchers must consider various factors to gauge the quality of the information on the Web. They include, among others, the provenance of the text, its topic, context, understandability, popularity, currency and the reputation of the source.

While my perspective on the second aspect of Kevin’s thesis is no doubt influence by my placement at CanLII, I believe that well-structured sites built on short-form legal content such as that being developed by CanLII can be a very helpful tool in legal research also for lawyers and law students. Additionally, a reputable website can be an excellent platform for dissemination of legal scholarship, debates, dialogue and even a testing ground of ideas. If well done, a page like that will also serve as a great resource not only for the bar, but for the public at large by making law more accessible through reducing the barrier of one’s technical skills or computer literacy on the path to finding useful results.

Ultimately, the legal profession and the public, and not Professor Rodell, will become the judge of quality of short form legal writing, but I’d like to believe he will approve.

You may have noticed it's easy to get tripped up measuring the wrong thing using Google Trends. When you look up "rice," are you measuring search interest in Rice University or the rice you eat? When you look up "Gwyneth Paltrow" how can you be sure you're counting all the common misspellings? Starting today, you'll find new topic reports to help you more easily measure search interest in the people, places and things you care about.

In the past, if you wanted to compare search interest in Rice and Harvard, you might get a report something like this:


Now when you start typing into the search box you'll see new topic predictions. Type "rice" and you'll see predictions for "Rice University (University)" and "Rice (Cereal)." This makes it easy to do a fairer comparison.


In addition to helping with ambiguous search terms like "rice," the new feature also automates counting many different searches that probably mean the same thing. So, when you measure interest in "Gwyneth Paltrow (Actress)" our algorithms count many other searches that mean the same thing "Gweneth Paltrow," "Gwen Paltro," etc. As our systems improve, we may even count searches like "Lead actress in Iron Man." This can be particularly useful for topics that are commonly searched with misspellings and in different languages.

Topic reports are a beta feature and we want to get your feedback. To start, you'll find data for more than 700,000 unique topics from Barack Obama to football (soccer) to Hayao Miyazaki, and you can slice the data to measure search interest worldwide or in any of the following seven countries: Brazil, France, Germany, India, Italy, UK, and US. We'll continue to improve the accuracy and comprehensiveness of the data, and as we do we'll add topics and expand to support new regions.

Posted by Gil Ran, Software Engineer

Research issues can be very specific – either in the time period for information or in the minutia of the topic. For those questions, the commentary material near to hand may not have your answers. Today’s tip shares some approaches.

• Look at reissues or recently released encyclopedias (the CED, Halsbury’s Laws of Canada)
• Look for legal news articles (Lawyer’s Weekly, Canadian Lawyer, Law Times)
• Look at bar association or law society newsletters (CBA National)
• Look at law blogs (lawblogs.ca)
• Look at law journals and topical journal publications (I use the Index to Canadian Legal Literature first and full text searching second)

Legal citation to the courts for the past few years has, in some jurisdictions, been different than legal citation in academic works. Here in Alberta, on November 12, 2013 there was a Notice to the Profession from the Court of Queen's Bench adopting the 7th edition of the Canadian Guide to Uniform Legal Citation (Toronto: Carswell, 2010). There is a lovely example of a law library's description of the Guide (aka the McGill Guide) from the Lederman Law Library (Queen's U).

Bob's column this month references the incongruity of law students being responsible for editorial oversight of law reviews, I have often wondered why students have had responsibility for oversight of legal citation. Someone has to do this work though, and kudos to the McGill students who have provided a standard for Canadian scholarly works. Note: "scholarly works". The 7th edition of the Guide spurred many Slaw posts discussing legal citation and plenty of comments as well.

Each Court in Canada has the ability to choose or define its own citation standard. Some were early adopters of the McGill Guide and the new editions become embedded by default. There is a Canadian Citation Committee which published a 2002 guide for uniform preparation of judgments. Part of the Canadian Judicial Council, the Committee updated its work in 2009 with The Preparation, Citation and Distribution of Canadian Decisions, which says:

4.3 Citation to Case law
[61] When citing a case, include its neutral citation, if it has one. If you add parallel citations place them after the neutral citation, which should immediately follow the case name.
Example
Smith v. Jones, 2006 NBQB 435, 87 D.L.R. (4th) 334, [2006] N.B.J. No. 198 (QL).
[62] Add pinpoint references to paragraph numbers where available, preceded by "at para." or "at paras."
Example
Smith v. Jones, 2006 NBQB 435 at paras. 34 and 36-39.

The above could have been a sample copied from the McGill Guide, 6th edition. McGill Guide, 7th says strip out the periods and make the citation punctuation free. I used to say the key is to be consistent, but I am no longer correct on that for citing to the ABQB.

The Canadian Citation Committee is no longer listed as a standing or ad hoc committee of the Canadian Judicial Council and the word "citation" doesn't even appear in their 2012-2013 Annual Report. The 2009 judicial council suggestion on citation has been overshadowed by a document edited by students.

Where does it leave the bench and bar on legal citation to the courts? Without a national standard. Perhaps the 8th edition of the McGill Guide, which will be released sometime in 2014, will be adopted by all. For now, look local, but by all means, think national.

The Fall 2013 issue of Law Library Journal is available on the website of the American Association of Law Libraries.

Among the articles are the following:

• Locked Collections: Copyright and the Future of Research Support: "Researchers in institutions of higher education depend on access to the scholarly record, and academic libraries play a critical role in supporting this research. As academic collections shift to primarily electronic format, research support is in jeopardy. Copyright holders, through the use of licensing and contracts to control electronic works, limit or prohibit interlibrary loan and other means of research support. As predominantly digital library collections increase, libraries may find that they have locked collections. They will be unable to lend or to borrow. This article examines how increased reliance on e-collections impacts the ability of academic libraries to support research and explores and assesses various approaches to ensure research support."
• Oh My Blawg! Who Will Save the Legal Blogs?: "Legal professionals continue to need access to legal blogs for their scholarly, historical, and practical research. However, at this time there is no concrete solution guaranteeing the continued availability of the wide range of legal blogs. Without immediate action, the essential content of legal blogs may be lost forever. This article provides an overview of the state of legal blog preservation and suggests a blueprint for creating an optimal process to ensure continuing access to vital legal blogs."
• Marketing and Outreach in Law Libraries: A White Paper: "In recent years, libraries have turned to marketing and outreach to better educate library users about services and resources while gaining an understanding of their needs. Marketing and outreach are relatively new concepts in academic law libraries, and librarians tasked with these functions have found resources and examples of this type of work to be lacking. Though focused on academic law libraries, the article identifies the challenges facing all law libraries, explains why libraries need marketing and outreach plans, and provides examples of marketing and outreach successes."

Slides are available of Professor Dr. Daniel Poulin‘s presentation entitled “Free access to law” and “Open Data” – Similarities and Differences, given 19 November 2013 as part of the AustLII Research Seminars, at the AustLII offices at the University of Technology, Sydney.

Here is the abstract:

This presentation will compare “Free access to law” with “Open Data” approaches, bringing out their similarities and differences. It will consider the development of the Free Access to Law Movement (FALM) over the last decade since the adoption of the Montreal Declaration on Free Access to Law, and the extent to which various of the FALM members embody these differing approaches.

Filed under: Applications, Presentations, Slides Tagged: AustLII, AustLII Research Seminars, Daniel Poulin, Free access to law, Free access to law movement, Legal information institutes, Montreal Declaration on free access to law, Open legal data, Public access to legal information

Mark Debenham represents Justis Publishing.

“Headnotes reign supreme when it comes to digesting cases because they tell you what happened and what the result was. They give you the facts,” a London-based barrister said to me last year.

A true and succinct assessment – just like a headnote. In the digital age where there’s so much case law online and, in turn, so much that potentially needs to be read, a headnote is just what you need. Are they enough, though?

Is the current system of law reporting really adequate? No, I would say. What’s interesting is looking at why it’s not, developments to improve it and the impact that these changes might have on the way the law is reported and how it will be researched in the future.

Why current law reporting is inadequate in a fast-changing world

Well, not every case gets reported and therefore benefits from a headnote. And, perhaps, rightly so. As brilliant as it’d be if every case had a handy summary of its facts and points of law, it’s useful to have some kind of selection process to focus your legal research, rather than having to sift through everything. Often the headnote treatment is reserved for important cases that actually make some kind of change to the law.

But does that mean that all the unreported cases that don’t have headnotes are unimportant and discardable because they didn’t pass the selection process?

Increasingly, the answer is no.

The voluminous amount of case law and the finite number of legal editors renders it an almost insurmountable, and certainly uneconomical, task for every case to be fully considered for reporting. Consequently, many unreported, yet important, cases are being overlooked. Plus, what is deemed important and useful isn’t uniform across the board – individuals’ research needs will depend on the particular case that they’re working on at that time.

If a case hasn’t been selected for reporting, there’s no reason why it can’t be used if it can help a lawyer in their own case. Consider the following from Lord Denning, writing in the foreword to the microfiche edition of The Court of Appeal Transcripts 1951-1980:

… every decision of the Court of Appeal on a point of law is binding on all courts of first instance and on the Court of Appeal itself. No matter whether the decision is reported in the regular series of Law Reports, or is unreported, it is binding. Once you have the transcript of an unreported decision, you can cite it as of equal authority to a reported decision, so it behoves every counsel or solicitor to find, if he can, a case – reported or unreported – which will help him advise or win his case.

It’s therefore wise to consider them in any search. And there are many of them. To give some perspective, Justis Publishing has a series called the England and Wales Civil Appeal Judgments, and another which is its criminal counterpart. Both series, when combined, cover over 200,000 reported and unreported cases from the past 50 years, with the vast majority being unreported.

Sifting through all of those would be a laborious task. Fortunately, they’re available online on the Justis legal library. The benefit of online technology is that searches can be tailored for specific content and results can be filtered, making it easier and quicker to find the case you’re looking for.

What’s being done to improve it

While online technology enables the user to make light work of searching through and identifying unreported cases, particularly in lieu of a headnote or a loose leaf service, the new challenge is in digesting them.

This is where technology plays its part and where Justis Publishing’s flagship product, JustCite, comes into its own.

JustCite is an online legal research platform that helps users find leading authorities and establish the current status of the law. It has a search engine, with built-in citation index functionality, that focuses on case law and legislation from common law jurisdictions around the world. It links through to the full text of the documents from over 100 different legal databases including Westlaw, LexisNexis, and the Justis online legal library.

Of course a vast amount of content is only useful if you’re able to harness it and glean useful information from it. This thinking is at the heart of JustCite’s design, as its features enable users to digest and navigate both reported and unreported cases.

All fully indexed material on JustCite, such as cases and legislation, has been painstakingly read and referenced accordingly by Justis Publishing’s legally-trained editorial team. The benefit of this is that is makes it easier to see the relationships that cases share with one another, as they are cited in the context of meaningful legal terms such as “distinguished by”, “applied”, “overruled”, “not followed” and the like.

This, in turn, fuels the JustCite Ranking system—a sorting feature that ranks search results by their true relevance, rather than by keyword frequency, so the leading cases are displayed first.

Furthermore, the relationships between cases and development of the law can be presented in a way that makes the information easier to digest.

JustCite’s Precedent Map feature is a visual tool that shows the network of authorities for each case. It helps users quickly see how cases are related to one another. The Precedent Map places a case in the centre of the screen as its “focus”, and then around its perimeter displays the key previous cases that the focus case has cited and subsequent cases that cite the focus case. Colour-coded arrows are used to connect cases in the network and show the citation type.

Citations in Context is another of JustCite’s visual features that helps users digest cases quickly. It shows you all the paragraphs in which the case in question has been cited in other judgments. Citations in Context isolates and highlights the paragraphs, allowing users to read the most pertinent information first before deciding whether to read the whole case. This enables users to quickly ascertain the importance of a judgment to their research, and speeds up the process of identifying more relevant authorities.

What of the future?

JustCite’s features, as described above, combine legal expertise and technological innovation to offer a wealth of information where a headnote is absent, as well as complementing the analysis in the presence of one.

Furthermore, they offer information about reported and unreported cases in a way that is different from traditional law reporting. Is the cause of this difference a worry for the future of law reporting, though?

It isn’t when you reflect that traditional law reporting is, in part, a direct result of whatever technology was available at the time. Put simply, the book.

As a result of the limitations on searching that books offer, at the time, it was important to have a structured index and appropriate subject terms to allow the user to easily navigate to documents that were relevant to them. Also, because a book is difficult to navigate quickly it was necessary to summarise the content of a particular judgment as it would be more difficult for the user to flick through irrelevant passages of text to get to the salient points.

It’s no surprise then that law reports ended up with the component parts that we are all familiar with such as subject terms, headnotes, summaries of the facts and citations.

But what if law reporting only came about today and online technology had preceded it? Our expectations of law reporting and what something like a headnote would include would inevitably be different.

We’d surely expect every single case to be online and any analysis-like take on one to consider pretty much every other case that could be relevant. Furthermore, it’s my feeling that we’d expect this analysis to be updated as quickly as possible. After all, the technology would’ve already been in place to make these expectations realistic possibilities.

Had online technology been available at the outset of law reporting, then our expectations of the component parts of law reports would surely be different from those of headnotes as we know them today. Perhaps the concept of headnotes wouldn’t have even come about in the first place. Perhaps, instead, we’d expect the kind of meta-information that we get from JustCite’s features rather than the flat information of a headnote. Namely, we’d want insightful information about cases that’s updated in a timely fashion and considers all types of cases from a range of sources, rather than what legal editors deem relevant.

That’s hypothetical thinking and headnotes still have their place. Justis Publishing is still selling a large number of different law reports series and has recently bought one series, the Bermuda Law Reports, and entered into a partnership on another, the Information Law Reports with 11KBW, to name but two.

How long do headnotes have left, though? JustCite empowers practitioners to find, analyse and digest cases that are relevant to their research – regardless of whether they’ve been reported – tailoring their research to their needs and, essentially, become their own legal editor.

Technology influenced the beginning of law reporting, it’s changing the way we research the law today, and it’ll play its part in the future. That future is yet to be decided, but it’s surely only a matter of time before headnotes no longer reign supreme but rule as part of a collective of incisive legal media.

Mark Debenham works in Justis Publishing’s marketing team. He has written articles, and interviewed practitioners, for a variety of legal industry websites and magazines in the UK, Australia and Canada.

Justis Publishing is a UK-based independent electronic publisher and provider of legal information and software services. The company provides a range of online material on UK and Irish, EU and International Law through its Justis and JustCite legal research platforms. Its Criminal and Civil Appeal Judgments series are the largest searchable collections of UK case law from the last 50 years.

Back in the day when case research entailed pulling volumes from a shelf and many states published their own “official” reports, parallel citations fulfilled a useful function. They allowed the reader of a brief, opinion, or journal article to retrieve a cited case by pulling whichever of alternative sets of reports were available.  Reporter name, volume number, and page led straight to the case. True, look-up-tables (West’s  National Reporter Blue Book, Shepard’s Citations) made it possible to determine where a case in volume 50, at page 278 of the official reports could be found in the National Reporter System regional reports and vice versa —  a tedious process but manageable.  But tables did not translate pinpoint citations.  And in most instances publication lag or policy stood in the way of reciprocal star pagination.  In states or during periods when no single reporter furnished full dual citation information, the value of parallel citation rose, but of course so did its cost. To produce complete parallel cites under those conditions a writer had to have access to two sets of books. The late West publishing company produced numerous state-specific offprints of its regional reporters to meet the market need and strong law school libraries maintained dual sets of reporters, at least until the 15th  edition of The Bluebook (1991). That edition broke with the past by authorizing the use of the National Reporter System cite alone in journal articles and seemingly in all other legal writing, except briefs and memoranda submitted to courts “of the deciding state.” Even that exception disappeared in the 17th edition (2000) which simply told practitioners to cite to “reporters preferred by local rules, including any parallel citations to the official state reporter, if required.”

The vendor- and medium-neutral citation schemes proposed during the 1990s by the American Association of Law Libraries and the American Bar Association were purposefully designed to specify cases and passages within them using a single set of identifiers that would work across publications and media, thereby rendering multiple citations unnecessary. However, as a transition measure, reasonable for a period when a fair portion of the legal profession still worked from print case reports (and to soften opposition to the reform), the ABA included the following language in its 1996 resolution:

Until electronic publications of case reports become generally available to and commonly relied upon by courts and lawyers in the jurisdiction [adopting neutral citation], the court should strongly encourage parallel citations, in addition to the [neutral] primary citation …, to commonly used printed case reports.

Most states adopting some form of print-independent citation during this period went beyond “strongly encourage” and required parallel citation to the National Reporter System. A few states also required citation to a continuing set of official print reports. Some neutral citation adopters like North Dakota, but not all (see below), realized that since paragraph numbers attached to decisions by the deciding court traveled with it into print requiring a parallel pinpoint page served no purpose (being both redundant and less precise).

Any need for such deference to National Reporter System volume and page number citation passed years ago. Citation norms or requirements that still call for its use in parallel with a publicly attached citation, whether print-derived or medium-neutral, impose significant costs on all providers of legal information (other than Thomson Reuters) and consequently on their users. Appropriately, the two states most recently adopting neutral citation systems, Colorado (2012) and Illinois (2011), have not insisted on or even affirmatively encouraged parallel citation. Colorado courts will accept either court-attached print-independent or National Reporter System case citations; briefs need not include both.  Illinois Supreme Court Rule 6 mandates use of that state’s new citation scheme; parallel print-derived citations “may be added but [are] not required.”

Present conditions compel those maintaining legal databases to index cases by alternative citation systems where they exist. Consider, as an example, the decision of the Kansas Supreme Court in Kansas Dept. of Revenue v. Powell filed on June 4, 2010. In time that case acquired volume and page numbers, first in the Pacific Reporter (232 P.3d 856) and later in the state-published Kansas Reports (290 Kan. 564).  Either cite will retrieve the decision on: Westlaw, Lexis, Bloomberg Law, Casemaker, Fastcase, Loislaw, or Google Scholar. The first four of those services (including Casemaker, the one available without additional charge to all members of the Kansas Bar Association) have also inserted dual sets of page break notations in that and all other Kansas case files. As a consequence their users can make or follow pinpoint citations employing either the official report or regional reporter’s system. They don’t need both.

Decisions from jurisdictions that have implemented neutral citation schemes employing paragraph numbers arrive embedded with complete citation information. They and their key passages can be retrieved from a full spectrum of legal research services and even the open Web without resort to parallel National Reporter System volume and page numbers. In releasing lawyers from the obligation to furnish parallel citations Colorado and Illinois have simplified case citation without inflicting inconvenience on users of any of the competing legal research services.

States that adopted neutral citation systems a decade or more ago but failed to make a complete break from print-derived citations (see below) should follow the lead of these two recent adopters. Any value parallel citation once had as a transition measure vanished along with printed law reports.

Parallel Citation Requirements in Neutral Citation Jurisdictions

 Source: Basic Legal Citation § 7-500.

Exciting news! The Library of Parliament, partnered with Canadiana.org, launched http://parl.canadiana.ca last Wednesday, November 20. The site provides access to scanned originals of the Federal Debates of Parliament from the 1st Parliament, 1st Session, 1867-1868, up to the 35th Parliament, 1st Session, 1994-1996, when coverage on the Parliament of Canada site begins. Between parl.canadiana.ca and parl.gc.ca, the Debates of the House of Commons and Senate are now fully available online.

We are so pleased to have this resource available and want to outline how you can make the most of it, along with some tips on searching Hansard generally.

Here at CLBC, we are often asked if we can help find where a particular section of an act is discussed in Hansard. Unfortunately, the index provides no indication of when specific sections may be discussed . While I admit I haven't read a great deal of Hansard, myself, it seems that speakers are generally not in the habit of naming section numbers.

The alternative to finding Hansard by section number is to look by subject. However, if you're looking for a very specific topic, it may not appear in the index. At times, the closest we've been able to direct clients is to the 2nd Reading page range under a Bill heading, which can sometimes amount to hundreds of pages. Now that Hansard is fully available online, it should be easier and faster to narrow into those specific topics. 

Let's say you want to find the legislative intent behind Canada's adoption of the Hague-Visby Rules. You're not sure which Parliament or Session this was in, but you know it was in 1993.

Once on the site, enter in your keyword(s) in the first box under Search. In this instance, we just put in "Hague" since the Rules are sometimes punctuated two different ways ("Hague/Visby Rules" and "Hague-Visby Rules"). Then limit the date range to 1993 and we'll start off by searching for House of Commons.

Four results come up.

Looking at the first result, we can see right away that there is a discussion of the Hague rules under the Carriage of Goods by Water Act. 

Some notes on searching Hansard through this site. The highlighted portion you see above was done by us, not parl.canadiana.ca. Whenever you view a matching text page, you'll have to scan through the page as it does not highlight your search terms. Additionally, the online page numbers do not correspond to the print page numbers. If there is a specific page you're looking for, it may take a few clicks to find it.

All this you can do right from your office! Though, as always, we are happy to help with any of your questions about using this new resource.

Fairly often, we get asked "how can I find out if a federal statute has been amended?"

Our go-to resource for this question is the Justice Laws Website. It's an excellent source for finding out if a statute has been amended between 1985 and the present.

On the left hand side of the home page, there is a link to the Table of Public Statutes and Responsible Ministers, which is also found at the back of the printed and bound Statues of Canada (available in resource and regional libraries).  It's a table of legislative changes, showing all of the chapters of the Revised Statutes of Canada, 1985, with their amendments, as well as other public Acts made since the revision, and their amendments.

How Does It Work?

Within the Table, statutes are listed alphabetically, as shown below. 

Immediately under the title of each Act is the French title, printed in italics.  The name of the minister who has responsibility for the administration of the Act is also listed under the title of the Act. 

I'll use the Employment Insurance Act, SC 1996, c.23 as an example.

Under the title of the Act, sections listed in bold indicate the provisions of that Act that have been added, repealed or amended. If a section is not listed, no changes have been made since the Act came into force.

 

As you can see, there is no entry for section 5, therefore it has not been amended or repealed.

Section 2, on the other hand, has been amended multiple times - in 1996, 2000, 2001, 2003, 2005, 2009, & 2012. But when exactly did those amendments come into force?

At the bottom of the list of amendments for the statute, there is a coming into force (CIF) entry for each amendment listed, organized chronologically by year.  The CIF dates are written in day, month and year order (e.g. 05.01.06 is 5 January, 2006).

So, the first amendment to section 2 took place in the Statutes of Canada 1996, chapter 23, section 189(f) and (g).  The CIF entry for 1996, c.23 reads:

Similarly, the first amendment to section 3 took place in the Statutes of Canada 2001, chapter 5, section 2.  The CIF entry for 2001, c. 5 reads:

In Summary

The Table of Public Statutes and Responsible Ministers lists the amendments to all public Acts. 

Where no minister has been specifically designated as responsible for administering the Act, the name of the minister who introduced the bill in Parliament is given.

Please note that the Table does not necessarily reflect changes in ministerial responsibilities resulting from orders made under the Public Service Rearrangement and Transfer of Duties Act, RSC 1985, c. P-34.

At the end of the list of amendments for each act, CIF refers to the coming into force date. An (E) indicates an amendment to the English version only and (F) indicates an amendment to the French version only.

The terms SOR and SI are references to Statutory Orders and Regulations or Statutory Instruments as published in the Canada Gazette, Part II.

The Table also provides a list of statutes that were repealed between 1985 and 2010. These statutes were removed from the Table of Public Statutes and Responsible Ministers one year after the date of repeal.

 

A recent New York Times piece on the prevalence of non-functioning links in Supreme Court citations (a topic for another day) carried the headline: “In Supreme Court Opinions, Web Links to Nowhere.” The phrase brought to mind the fierce attack mounted by the late West Publishing Company during the mid-nineties against proposals to replace that publisher’s dominant system of proprietary, print-based citation of U.S. case law with vendor- and medium-neutral citations. At the time West’s representatives repeatedly characterized citation identifiers applied by the issuing court as “citations to nowhere” or “nowhere citations.” They asserted that the approach, then and still, advocated by the American Association of Law Libraries and American Bar Association “provides absolutely no clue that helps the researcher to identify the publication, CD-ROM, or online service where she can actually find the opinion.”

Artfully, the argument conflated two quite distinct goals for a citation system – one central, the other secondary and often sacrificed to competing values. As explained in § 1-200 of Basic Legal Citation: a functional legal citation must, within limited space, “provide the reader with sufficient information to find the document or document part in the sources the reader has available (which may or may not be the same sources as those used by the writer).” A second and separate principle would call for disclosure of the writer’s actual source. In a much cited 1982 article on citation theory and practice, Paul Axel-Lute placed the latter citation principle dead last in his list of thirteen, a set which he noted carried inevitable conflicts.

As the Axel-Lute article observed this “writer disclose your source” principle is, in numerous settings, trumped by the principle of “brevity” and also overridden by rules calling for citation to “official” sources (whether or not in fact used by the writer). Noting that longstanding practice, codified in The Bluebook, which had just then appeared in its thirteenth edition, did not require specification of source in citations of court rules, Axel-Lute surmised this was because they “are found in a multiplicity of sources.” He observed that the same held for citations to the Constitution.

In the early 1980s case law was not available from a “multiplicity of sources” and a case citation in the format “___ F.2d ___, ___” at once directed readers to the cited passage and indicated the writer’s use of a specific source. Four decades later “multiplicity of sources” characterizes access to nearly all types of primary legal materials in the U.S., and such a citation cannot reasonably be understood as representing that the writer has read the decision in the pages of a particular printed volume or even in the digital replica sold online by the same publisher. Today, with few exceptions, cases and statutes are available from “a multiplicity of sources,” some free to all, others free to all members of a state bar, and still others wrapped in costly layers of added value. So long as a citation to a judicial opinion or statutory section enables a reader to retrieve the document from her preferred source there is no more need for the writer to declare his source than with a constitution provision or court rule.

In this environment of many competing sources, proprietary citations are more likely than those appended by the issuing court, legislative body, or agency to give rise to problems of access. Consider the recent decision of the Indiana Supreme Court interpreting that state’s statute on grandparent visitation rights, J.C. v. J.B., 991 N.E.2d 110 (Ind. 2013). As already noted, although the foregoing citation is derived from a specific print publication, no reader of this blog should take my use of it as representing that I relied on that source. In fact I first came upon the decision on Lexis. Prevailing citation norms do not, however, call on me to declare that. Nor does the formula “991 N.E.2d 110”, which conforms to the pattern specified by the major citation manuals and Indiana’s own rules of appellate procedure, drive the reader to a particular source. Ultimately, it will enable retrieval of the decision from all major legal research services including Casemaker, a system that is free to all Indiana Bar Association members. Unfortunately, however, since it is not the product of a system of court-applied citations, “991 N.E.2d 110” did not travel along with the opinion when it was added to all those databases. The decision was handed down on July 18, 2013. North Eastern Reporter volume and page numbers were not attached to it on Westlaw until roughly a month later.  At that point all other databases confronted the task of matching the Thomson Reuters cite and the corresponding internal pagination with their copy of the Indiana decision.  Until that is done “991 N.E.2d 110” cannot be used on them to retrieve the case nor can that citation be drawn from them by the writer of a brief or subsequent opinion.  Casemaker did not make that match until mid-October.  And as of this writing “991 N.E.2d 110” still draws a blank on Google Scholar (even though it holds the case).  Google Scholar has integrated volume and page numbers with opinions Thomson Reuters has allotted to “898 N.E.2d” but as yet none from “890 N.E.2d” or “891 N.E.2d.”

Consider also the statutory provision at issue in J.C. v. J.B. It  is cited by the court as “Ind. Code § 31-17-5-1.” On Lexis that section is presented as “Burns Ind. Code Ann. § 31-17-5-1.” Westlaw identifies the same provision as part of “West’s Annotated Indiana Code.” Both titles match those of copyrighted print compilations marketed by the respective companies. Were one to take the “writer disclose your source” principle seriously even a citation to “Burns Ind. Code Ann.” would have to indicate whether it referred to the publisher’s print or electronic version. Somewhat ambiguously The Bluebook instructs a writer to cite to “Indiana Code … if therein” rather than to either commercial version, but does it mean a specific “Indiana Code”? Although the Indiana Legislative Services Agency maintains an up-to-date compilation of the state’s statutes with that title at: http://www.in.gov/legislative/ic/2010/, it is good bet that the Indiana lawyer who complies with the state’s rules of appellate procedure and cites to Ind. Code § 31-17-5-1 has secured its text from Lexis, Westlaw, or Casemaker rather than from that public site.

During the print era it was, in many settings, important for a statutory citation to indicate the specific source relied on by the writer, but today “Ind. Code” and the equivalent in other states are generic references. They are identifiers that enable retrieval of the relied upon text from a multiplicity of sources rather than a signal that the writer has consulted a particular one.  The major citation manuals and some state rules are not clear on this point, largely because they remain stuck in patterns shaped by print.

There are still some situations where the “writer disclose your source” principle merges with the core task of facilitating the reader’s retrieval of the cited text, where indicating source avoids the risk of a “nowhere citation” or misdirection.  In the present environment, however, generic citations of cases and statutes are the norm. Traditional formats that imply reliance upon a particular source too often consume unnecessary space, impose costs and delay, and run some risk of confusion.

Emond Montgomery Publications, a respected Canadian Legal publisher, has a super resource available (with a free login and password) for going from a legal word to sources of legal commentary.  It is found on the EMP website using the “Click for free legal glossary” link in the site header to get to the Glossary of Legal Terms.

Unlike many legal dictionaries, the terms are not just defined, or defined using judicial decision references, rather the definitions are derived from within the catalog of Emond Montgomery Publications.

Following the source links under a definition will net you possibilities for purchasing the title (including buying it with an immediate download option.

Sample glossary term:

accelerate demand immediate payment
Source: http://www.emp.ca/books/281-2

Today’s Tip is about using this resource (and glossaries in general) to help identify the specific area of law that the key term is leading you to.  EMP, like other legal publishers, offers up the table of contents for their titles so that you can see details (keywords) about the type of book that would contain the glossary term.

Irwin Law’s Canadian Online Legal Dictionary is another online legal dictionary that offers legal textbook references.

I would much start with author commentary on a legal term than judicial commentary.  Textbooks lead to decisions, but decisions don’t always lead back to texts.

I did not to go to Law via the Internet 2013 held on the Island of Jersey September 26 and 27, because the dates were not close enough to my planned trip to England in October to be able to do both. You can get a taste of what the conference was about from their web page and this statement:

It is 11 years since the Declaration on Free Access to Law was signed at Montreal and the Free Access to Law Movement (FALM) was founded. Since then the movement has grown to include organisations from more than 50 countries and recent Law Via the Internet conferences have been held in Africa, Asia and North America. Now, for the first time, LVI comes to the British Isles in the beautiful island of Jersey. The Jersey Legal Information Board has been a member of FALM since 2008 and is proud to host LVI2013 where the over-arching theme will be ‘Free Access to Law in a Changing World’.

That statement of purpose for this conference reminded me that I needed to follow up on the current state of access to law in the United Kingdom. In the mid 1980s I participated in a study program for US law librarians held at Oxford University. The world of law librarianship has certainly experienced seismic changes since that time before the Internet. Now we expect instant information from a simple search. But will that simple search get us free and authoritative legal information online? It’s not necessarily so and depends on the jurisdiction you are researching.

Jersey itself is a model system which has a “government sponsored agency that makes Jersey laws and judgments freely available to the public.” These are made available by the Jersey Legal Information Board on their website jerseylaw.je .

The United Kingdom is another jurisdiction with excellent access to free legal information from both the British and Irish Legal Information Institute (BAILII) and government websites. According to the About BAILII page on their website,

(BAILII) provides access to the most comprehensive set of British and Irish primary legal materials that are available for free and in one place on the internet. In August 2012, BAILII included 90 databases covering 7 jurisdictions. The system contains around 36 gigabytes of legal materials and around 297,513 searchable documents. … The databases on BAILII are derived from a number of sources. Some of the data comes from existing free to air sites. Most of the databases are based on published and unpublished CD-ROMs or rely opon direct and indirect feeds by relevant courts, government departments and other organisations. All of the data has been converted into a consistent format and a generalised set of search and hypertext facilities have been added. Further details as to where databases come from are provided on the database home pages.

There are a variety of ways to search the databases including by case citation or title, by legislation as well as an advanced search. I did a search on case names using ‘Gaskell’ and came up with one case from 2000 where, to my relief, the Gaskell in question was victorious in her constructive dismissal suit. All in all, this website is quite robust and very responsive.

But I also wanted to explore a few government sites to see how they might compare to others. After all the government should be sharing its information and work products with the public [Note that I am writing this during the government shutdown in the US when most government websites have been blocked.] A sampling of UK government sites follows.

http://www.legislation.gov.uk/

This website is managed by The National Archives on behalf of HM Government. Publishing all UK legislation is a core part of the remit of Her Majesty’s Stationery Office (HMSO), part of The National Archives, and the Office of the Queen's Printer for Scotland. The original (as enacted) and revised versions of legislation on Legislation.gov.uk are published by and under the authority of the Controller of HMSO (in her capacity as The Queen's Printer of Acts of Parliament, and Government Printer of Northern Ireland) and the Queen's Printer for Scotland.

It contains UK Acts 1267 to present and much more and has both a simple and an advanced search function.

http://www.official-documents.gov.uk/

Official Documents is the official reference facility for Command and departmentally sponsored House of Commons Papers. All Command Papers and House of Commons Papers published from May 2005 onwards, as well as key Departmental papers, are available for free on the site in PDF format.

The site has an advanced search and contains selected earlier papers.

http://www.supremecourt.gov.uk/index.html

The Supreme Court:

• is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland
• hears appeals on arguable points of law of general public importance
• concentrates on cases of the greatest public and constitutional importance
• maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world.

This site has a single search box and contains judgments from July 31, 2009, to present.

This page lists HTML versions of all House of Lords judgments delivered from 14 November 1996 to 30 July 2009. Print versions of judgments since 2005 are available in PDF format from the top right hand side of individual judgment pages. Information about judgments prior to 1996 can be found on the judgements page.

https://www.gov.uk/government/organisations/ministry-of-justice/about/statistics

Ministry of Justice publishes a range of statistics relating to the operation of the criminal and civil justice systems, on aspects of criminal justice policy, and on other areas of the department’s responsibility

Finally I recommend checking out the UK Resources page on Lawlinks at the University of Kent. Please let me know about any other sources you think should be included in the list above.

[This is the first of a two-part column on open access and public access to Canadian legal scholarship within the free law movement. This week (October 21-27, 2013) is International Open Access Week. This annual global event, now entering its sixth year, is organized by the Scholarly Publishing and Academic Resources Coalition (SPARC) of the Association of Research Libraries (ARL) to promote the goals of Open Access to the public generally but especially within the academic and research communities, to demonstrate its benefits and to inspire wider participation in making Open Access a new norm in scholarly publishing. The following is my contribution to the week’s events.]

For more than three centuries, the publication of research findings in journals and other publications has been the basic means of communicating the results of research to the scientific and scholarly communities. Articles are reviewed before publication by a peer group of scholars and their recommended corrections and improvements incorporated by the author before final publication in the journal. Selection of articles for publication, peer review and editorial work are provided free-of-charge by the scholars while the publisher bears the costs of production and distribution, recovering costs through subscription sales.

Over time, the commercial production of scholarly journals developed from a service provided to research communities to an industry in its own right, where the motive was profit and not the advancement of knowledge. Today, the commercial publishing of academic journals is highly profitable, especially in the professional disciplines, with some science and medicine journals costing tens of thousands of dollars for a single subscription. Over 25,000 peer-reviewed journals are being published, almost 3,000 of them by Elsevier alone, another 2,400 by Springer (2,200 in English). Subscription costs have reached such levels that they consume the majority of the acquisitions budgets in our libraries, to the detriment of other materials and services, and in academic libraries contributing significantly to the levels of tuition and public support that pay for them. Journal costs have become so prohibitive that even the wealthiest university libraries can no longer afford them.

In addition to charging often unconscionable amounts for subscriptions, most commercial publishers have extremely restrictive licensing practices, in effect taking from authors their copyrights and assuming all rights and permissions for the distribution, reproduction and use of their work in perpetuity. Rather than promoting the dissemination of research and the advancement of knowledge, current journal publishing practices have become an obstacle to them. The traditional system of scholarly publishing is broken and no longer supportable; and hence, the “open access” movement for the publishing of scholarly works.

Open Access is the practice of providing unrestricted public access via the internet to peer-reviewed scholarly research. As stated in the opening of the Budapest Declaration (2002), the charter document of the open access initiative,

An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the willingness of scientists and scholars to publish the fruits of their research in scholarly journals without payment, for the sake of inquiry and knowledge. The new technology is the internet. The public good they make possible is the world-wide electronic distribution of the peer-reviewed journal literature and completely free and unrestricted access to it by all scientists, scholars, teachers, students, and other curious minds. Removing access barriers to this literature will accelerate research, enrich education, share the learning of the rich with the poor and the poor with the rich, make this literature as useful as it can be, and lay the foundation for uniting humanity in a common intellectual conversation and quest for knowledge.

In open access publishing, materials are published under a Creative Commons or other non-restrictive licence: authors retain ownership of the copyright to their content, but allow anyone to download, reuse, reprint, modify, distribute or copy the content as long as the original author and source are credited and there is no commercial purpose to the reuse, and no permission is required from the author or the publisher to do so.

Open access publishing is generally achieved in one of two ways. The first and ideal method is the “green” option, so-called because there are no costs incurred either by the author to get published or by the end user to access and use the published material. The ideal green option is to publish in one of the increasing number of quality, peer-reviewed, fully open access journals. These open access journals are generally though not necessarily available in digital format only, but they must be freely available on the internet. The Directory of Open Access Journals (DOAJ) currently lists almost 10,000 such journals from around the world. However, the more common form of green open access publishing is “self-archiving”: the author publishes her work in a standard journal, but retains permission either to upload (archive) a version of her publication – ideally a PDF of the final, edited paper as published in the journal but usually a pre-publication version (“pre-print”) – to an institutional repository or other repository, eg, the private Social Sciences Research Network (SSRN). (More on these repositories later.)

The other option for open access publishing is the “gold” option, so-called because of the cost. In the gold method, the author must pay an “article processing charge” (APC) to the publisher to cover related production costs. Though the journal is otherwise fully open access and free to all users on the web, all contributors must pay this fee to be published in it. A common variation on this option is a green-gold hybrid option: though the journal is not open access and authors do not pay to be published there, an author can pay the publisher an APC fee to obtain permission to self-archive a PDF copy of his published article in an institutional or other publicly-accessible repository. To facilitate open-access publishing by one of the more usual gold or hybrid options, many universities and research funding agencies now have “open access funds” to support faculty and researchers who want to publish in open access or hybrid journals.

Another hybrid option is the “embargo”: Whether or not an APC is paid, an author can obtain permission to self-archive a copy of her article after a set period of time (six months, one year, two years) has elapsed. This embargo option protects the publisher’s base of current, paying subscribers while freeing the article for open access distribution at some future date.

An “institutional repository” is the academy’s version of a law firm’s in-house knowledge repository, with the exception that it is available to the global public on the World Wide Web. It is an online repository to collect, preserve and disseminate in digital format the entire intellectual output of the institution. At a minimum, these would comprise articles published in scholarly journals (either pre-prints or post-prints), research and working papers, theses and dissertations. By extension, it might also include administrative documents, pedagogical materials such as course packs, and other digital assets generated by research activities. The purpose of the repository is to enable the communication of research, facilitate its use in research by others and promote the advancement of knowledge through open access; to create global visibility for the institution's research activities and product (“branding”); and to preserve and organize the institution’s digital record in one location. A full listing of institutional repositories around the world is available in the Directory of Open Access Repositories (Open DOAR).

Self-archiving in a repository is gaining ground among faculty. Among other benefits, repositories increase the availability of research, permit reprinting or text mining, and enable work to be propagated across the internet and used for novel applications. Repositories also allow authors to keep track of how much and how frequently their work is downloaded and consulted by others. Most if not yet all universities, colleges and research institutions now have institutional repositories, usually the responsibility of a “scholarly communications” office within the library. On this continent, most institutional repositories have been built on either the open-source DSpace platform or the commercial Digital Commons platform. The latter hosts a large number of law school repositories, Osgoode Hall Law School soon to be among them.

Many individual faculty members eschew their institutional repositories for the Social Sciences Research Network (SSRN). Unlike institutional repositories, SSRN, though an open access repository, is focused more on communicating research to peer groups that making it accessible to the general public. Unfortunately, many faculty members, who often take a more atavistic than collective view of their work, prefer SSRN to their institution’s own digital repository, and our institutions (and the public) suffer as a consequence. SSRN also offers a rating system for institutions, based on the number of downloads of papers from the identified members of those institutions. Ratings are provided specifically for both American and International law schools. Just as many law firms are obsessed with their AmLaw rating, many law faculties are equally obsessed with improving their rating with SSRN, an obsession that is ultimately at odds with the open access ideals of unrestricted public access for research and education.

Like free access to law, open access is also public access – but more on that in part 2 of this article.

Professor Dr. Brian Carver of the University of California, Berkeley, and Michael Lissner, have announced the availability of Free Law Virtual Machine, a new set of tools from Free Law Project.

Here are excerpts of the announcement:

A goal of the Free Law Project is to make development of legal tools as easy as possible. In that vein, we’re excited to share that as of today we’re officially taking the wraps off what we’re calling the Free Law Virtual Machine.

For those not familiar with this, a virtual machine is a snapshot of a computer that can be run by anybody, anywhere. With this release, we’ve created a computer running Ubuntu Linux that our developers or academics can download, and which has all of the Free Law Project’s efforts pre-loaded and ready to go.

In addition to a number of minor improvements, the following are installed and configured:

• Courtlistener
• Juriscraper
• Development tools such as Intellij, Meld, vim, and Kiki
• Bookmarks of all American courts

In addition to providing a simple virtual machine that you can install, we’re also releasing sample data that can easily be imported into the CourtListener platform. This data is available in groups of 50, 500, 5,000 or 50,000 records so that anybody can easily begin working or experimenting with our platform.

If you’re interested in using the Free Law Virtual Machine, feel free to download and use it, and please get in touch in our developer forum. [...]

For more details, please see the complete announcement.

HT Legal Informatics subreddit

Filed under: Applications, Technology developments, Technology tools Tagged: Brian Carver, Court decisions, Court information systems, CourtListener, Free access to law, Free Law Project, Free Law Virtual Machine, Judicial decisions, Judicial information systems, Juriscraper, Legal informatics subreddit, Legal informatics virtual machines, Legal virtual machines, Michael Lissner, Open court data, Open judicial data, Open legal data, Public access to court decisions, Public access to judicial decisions, Public access to legal information, Viritual machines and legal information systems, Virtual machines for legal informatics

In what is the single, largest one-time addition to its database, CanLII is pleased to announce a nearly 25% increase in the size of its Ontario court collection through the addition of approximately 15,000 leading and reported Ontario court decisions.

For decades, the Ontario Reports – or, “ORs”, as they are commonly known – has served as one of the most significant collections of Ontario case law. A property of the Law Society of Upper Canada, these reports are familiar to Ontario lawyers, all of whom receive them in hard or digital versions on an almost weekly basis.

Historically, the case law selected for publication in the OR by its esteemed panel of editors has had significant influence on the development of the law in Ontario. Even as digital legal publishing has resulted in an explosion of access to previously unreported judgements, publications like the ORs retain their importance. This is especially true for older case law from a time when unreported judgments were virtually inaccessible and therefore were rarely brought before the courts for consideration.

CanLII is very grateful to the Law Society of Upper Canada for making the full historical collection of OR case reports available to CanLII and for providing the funding necessary to bring them online. CanLII is also grateful to LexisNexis Canada, the current publisher of the ORs, for its role in supplying digital versions of the case reports, thereby drastically reducing the cost and effort of republication.

Benefits to the legal profession and the public

• For Ontario lawyers and all legal professionals, these additions will facilitate greater reliance on and confidence in CanLII. With OR cases dating back to the 1930s complementing the hundreds of new Ontario cases added every month, the collection is improved dramatically in both quantity and quality.
• For the public, this addition extends free access to a valuable resource that was previously available almost exclusively through subscription-based or other paid services.

 

Responding to the needs of the profession

CanLII is a publicly open and freely accessible service overseen by the Federation of Law Societies of Canada. Its operations are funded by the legal profession by way of their respective provincial and territorial law societies. Accordingly, CanLII strives to be responsive to the needs of the profession.

In a 2012 survey of Ontario lawyers, 91% indicated that they had used CanLII in the previous 12 months and 57% indicated that when researching case law, they begin their research with CanLII. When asked about priorities for improving CanLII, nearly half highlighted the need to expand CanLII’s historical case collection. We are pleased that the Law Society of Upper Canada has helped us respond to their members’ priorities through this addition.

The British daily The Guardian reports that the Supreme Court in the Australian state of Victoria wants to bring the justice system closer to citizens by making its website more interactive and hiring a retired judge to blog about cases:

"[Victorian Chief Justice Marilyn] Warren said the court’s new interactive website would become a hub for the court’s communication with the public, who would be able to comment on the website, watch video on demand, debate in online forums, and download judgments and summaries."

"She said employing a retired judge to blog the courts represented a 'historic shift away from traditional judicial reluctance to explain or defend judicial decisions that are made in accordance with the rule of law'."

"Warren added that other experts, including academics and journalists, would also be invited to blog for the court."

Warren's speech can be found on the court's website.