The Role of ‘Authorised’ Law Reports
As Holdsworth explains, ‘The authorised reports had the privilege of exclusive citation … In 1863 Lord Westbury laid down the rule , which no prevails, that any report signed by a barrister may be cited, and the rule … that an unpublished report vouched for by a barrister may also be cited.’[17] The establishment of the authorised reports in Britain was in answer to the many inaccuracies in the nominate reports.[18] Today, they are no more than ‘a construct of the age of print.’[19]
4.1 Accuracy and Verifiability
As the courts usually publish their decisions on AustLII, there is no longer any real doubt that the decision on AustLII is accurate. The need for the decision to be reported by a member of the bar in a published form is now otiose.
The remaining potential risk of inaccuracy comes only from potential ineptitude or petty fraud when a litigant hands up what appears to be a decision of a court. This has recently been effectively overcome by AustLII providing a certified version of the decisions that can be downloaded. In light of the level of security that AustLII now offers for certainty that a decision is an accurate reproduction of the original, the role of the authorised reports in ensuring there is a definitive and verifiable version available has been overtaken by the new technology.
4.2 Selection of Important cases
The growth of the free access to law movement has been a particularly disruptive technology for the business of law reporting. What was almost a monopoly upon the publication of law reports in the 20th Century came to an end with the commencement of AustLII and its equivalents around the world. As the internet databases have become more comprehensive, there is little need to have law reports or subscription services for access to the content of the decisions. Similarly, simple links between cases by use of citators has been overtaken by computer databases as LawCite demonstrates on AustLII.
What remains for the publishers is the challenge to add value to their report series, not by providing more but by providing less. Even in the 19th Century, one of the ills it was hoped that the Authorised Law Reports in Britain would address was the over-supply of case reports.[20] That is, providing subscribers with a selection of cases that are likely to be useful authorities, and excluding the decisions that appear to be aberrant. As Bryan identifies, the real role of a set of law reports (authorised or subject reports) relates to the extent to which the selection of ‘gold’ from the ‘dross’ can be achieved by the reporters.[21]
As the volume of judgments is enormous, identification of relevant and significant judgments is difficult, despite the benefits of modern search engines. Not surprisingly, the ‘gold’ is relatively easy to find on a retrospective search of how often a case is cited in the years following its publication (and this can easily be done by computer search). The real skill is in identifying the ‘gold’ at the time that the decision is made in order to select the particular decision for inclusion in a limited set of reports.
It is in this area that we can look to the courts to better format judgments, and the new technologies for assistance. The lack of an effective schema or ontology for legal decisions presents the next challenge for AustLII and the various courts, as it is through effective tagging and structuring of data that it can be more effectively used. Already Google has commenced a project to provide a scheme for data tagging (see Schema.org) more generally. It is only a matter of time before the courts and legislature will be expected to mark up their documents in accordance with a schema developed for law.
It is clear that even with Prof. Greenleaf’s principles fully realised, there remains ample room for commercial publishers to add considerable value by publishing secondary material. Remarkably, the significant inroad into this area has not been made by a mainstream commercial publisher but the small innovative group at BarNet’s Jade database, which leverages off the AustLII data in a truly, harnessing the ideas of Web 2.0 by cleverly restructuring the AustLII data to present it in a form far more useful to the practicing lawyer.
Of course, even with all legislation, legislative instruments and case law freely available on-line, for most citizens it is simply an overwhelming quagmire of material from which they have real difficulty identifying what is relevant to them. It is in this area that the public are already making greater demands upon the courts to value add to the text of the decisions, such as by the provision of catchwords and summaries. For example, in 2010, Pelly published an array of complaints about the High Court, including the removal of catchwords in 2010, and even a complaint that the High Court hands down too many judgments on the one day, rather than spreading judgments over several days to make reporting more convenient for journalists.[22]
AS different publishers have developed their own catchwords, and have various courts, the power of catchwords as a careful taxonomy of cases has fallen away. Today catchwords are often no more than a loose ‘folksonomy’.[23] It will be very interesting over the next few years to observe whether the loss of a highly structured ‘taxonomy’ of catchwording will be effectively replaced by more powerful search engines: I suspect not. AustLII could, if it were funded, produce a catchword wiki, allowing users to help develop a catchword taxonomy (perhaps with leading scholars editing the different sections) that allowed users to add the catchwords to cases in AustLII’s database, and making it simply for those producing judgments to look-up, copy and paste an appropriate set of catchwords from the taxonomy. If such a system were supported by the courts, it offers the possibility of creating a particularly useful structure, not only by reference to legal rules, but also normative outcomes, for research.
The response of most government agencies has been to simply publish ever larger web pages (rather like electronic guides and brochures) but not leverage upon the ideas of Web 2.0 and the concepts of the Semantic Web. It is only through these new ways of presenting identifying and presenting data that we can harness the benefits of new technologies for identifying relevant legal information.
4.3 The risk of an information elite
A brief consideration of the role of the Authorised Reports would not be complete without giving some consideration to an unforeseen and darker side to the development of the reports. At the time they were established the Authorised Reports were comparably priced with other forms of reporting, and were implemented for the reasons set out above. The Authorised Reports have become a rare commodity, in the almost exclusive possession of the legal profession – and save for a visit to a law library, the upper echelons of the legal profession. It is rare to find law reports in a public library, but free internet connections and PC’s are common, making free legal sites completely accessible.
A system requiring citations to come from the Authorised Reports cuts against the ideal (however flawed it may be) of autodidacticism (‘the idea that anyone with the gumption to pursue knowledge can run it down’) which ‘sounds strongly for us.’[24] The continuation of rules requiring references to the Authorised Reports arguably creates an elitism or inner circle of legal professionals that is inimical to the principles of open justice and access to justice.
Read more here by Judge Grant Riethmuller
Brisbane / Maroochydore / Southport
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