Justice Geoff Lindsay of the Supreme Court of New South Wales recently addressed the Australian Law Librarians Association on “The future of authorised law reporting in Australia“. Justice Lindsay
- refers to the important function of “authorised” law reports as containing decisions representing an authoritative statement of the law, or a restatement of the law that requires serious consideration
- expresses concern about the impact of freely accessible case law on the viability of authorised law reports in Australia
- notes the risk of relying on AustLII when its existence depends on donations and grants
- comments on the perception that the information overload stemming from publication of all cases leads to hidden costs in the provision of legal services, the conduct of litigation, and the writing of judgments.
Justice Lindsay explores some options for addressing these issues in the Australian context, including the development and publication of something similar to the American Restatements of the Law series, and the integration of freely-available case collections with subscription-based value-added material.
I agree that the development of something similar to the American Restatements of the Law series would greatly assist legal professionals and judges, and I would like to see this happen in Canada. In addition, lawyers should take more advantage of legal treatises and encyclopedias to help them overcome some of the challenges of case law proliferation.
Categorization of cases by the court
Justice Lindsay does not mention an interesting approach taken by the Supreme Court of Western Australia, which categorizes judgments using letters A to D pursuant to Practice Direction 8.2.3, Categorisation of Reasons for Decision for Publication. The category assigned appears in the published reasons for judgment. The categories used are as follows:
|A||Those of significance and/or of current interest by virtue of their discussion or application of legal principle.|
|B||Those which are more routine in nature, either because they turn on their own facts or are routine examples of the application of well known and understood principles. Decisions of this kind would not normally warrant reporting or uploading into a national database.|
|C||Those containing data indicating current levels of assessment of damages, either generally or in particular categories of cases.|
|D||Those which contain data indicating current levels of sentence for offences generally or in particular categories of cases.|
AustLII is not set up to allow researchers to filter their searches by these categories. This diminishes the usefulness of these categories for addressing information overload.
Citation frequency as an indicator of case importance
One of the great debates regarding too much case law revolves around who should be the gate-keeper. Should the judge who decided a case determine its importance? Or should the staff or editorial board of a legal publisher decide? There can be problems with either of these approaches. Many of those problems were explored during the debate over the no-citation rule in the United States.
Another approach is to look at how subsequent cases have treated a case, and determine its importance based on that. User information can also be collected regarding how often a case is viewed or downloaded. Network analysis theory has been applied to assess the usefulness of this information for identifying important cases. Links to some of these studies are set out below.
Canadian legal publishers, influenced by this approach, are using citation frequency information to assist researchers to quickly identify significant cases:
- CanLII and Quicklaw have incorporated citation frequency as a ranking method.
- Westlaw Canada includes citation frequency information in result lists.
This is one small step towards using technology to help researchers quickly identify significant cases. However, citation frequency alone is a very unsophisticated approach. In particular, it favours older cases, to the detriment of important new cases. It is preferable to view search results on these services using all of the ranking methods available: relevance, date, and citation frequency. It is also necessary to assess the authoritative weight of the cases using a variety of factors.
WestlawNext and its search algorithm
The most sophisticated technological approach of which I am aware is WestlawNext, an American product. It uses a variety of inputs to rank cases for both relevancy and authority. In addition to evaluating the frequency, proximity and clustering of search terms, the search engine takes into consideration West’s key number system, KeyCite citations, secondary sources, and “meaningful interactions” by users.
The search engine is described by Greg Lambert in “WestlawNext – A Study in Applying Knowledge Management & Crowdsourcing” and by Jason Wilson in “WestlawNext Review: Ending the tyranny of the keyword?“.
A range of views was expressed about WestlawNext in a 2012 AALL panel discussion and survey. Law librarians with expertise in refining and controlling search results were sometimes perplexed by the operation of the search algorithm and the results it delivered. However, a recent ABA survey concluded that WestlawNext is now the most popular fee-based legal research service among American lawyers. The survey results varied based on the size of the law firm though: among sole practitioners, the survey indicated that the most popular service is Lexis.
A Canadian version of WestlawNext is under development. It will be interesting to see which features make the transition from the American product.
Best, “Everything old is new again: the proliferation of case law and whether there is a remedy”
Fowler et al., “Network analysis and the law: measuring the legal importance of precedents at the U.S. Supreme Court”
Neale, “Citation analysis of Canadian case law”
Nevers, “WestlawNext: Westlaw’s next generation research system”
Peoples, “Testing the limits of WestlawNext”
Rodrigues, “The murky waters of case law databases”
Smith, “The web of law”
van Opijnen, “Citation analysis and beyond: in search of indicators measuring case law importance”
Wheeler, “Does WestlawNext really change everything: the implications of WestlawNext on legal research“