Open law is the idea that public legal information should be freely available to everyone to access, use and republish. The current position in the UK differs completely as between legislation and case law.
The Internet Newsletter for Lawyers is edited by Nick Holmes and Delia Venables
Articles filed under Cases
Legal research is regarded as one of the necessary expenses of the legal profession. It’s a task that needs to be done to ensure that arguments are robust, and to build the most comprehensive case possible, but it is a time-consuming task. This is why legal research is often delegated to trainees and newly qualified solicitors, who are less expensive than those more established in the profession. However, while this does make legal research cheaper to conduct, it certainly does not make it cheap.
In order to get an idea of the true costs of legal research, we recently conducted a case study with a firm based in the west of England, with a focus on those who carry out this research on a day-to-day basis. We examined their newly qualified head count of over 50, and their average salary of £40,000. After determining that they spend 30% to 40% of their time conducting research, this resulted in an estimated salary bill of over £750,000 for legal research.
Employment tribunal judgments are now available online on GOV.UK at www.gov.uk/employment-tribunal-decisions.
Previously, in order to read a first instance judgment, you had to hope that one of the parties published it or that the judiciary website considered it to be of sufficient importance to publish or to take a trip to the central register and locate it in person.
“Every decision is binding no matter whether it is reported in the regular series of Law Reports, or is unreported. Once you have the transcript, you can cite it as of equal authority to a reported decision. 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.” – Lord Denning
In the days of printed law reports, there was a very real upper limit to how many cases could be reported – you can only fit so many in a book.
With digital content, no such physical problem exists, but other constraints remain. The process of producing high-quality reports of lengthy judgments is time-consuming and expensive. Consequently, fewer than 20 per cent of UK higher court cases end up in law reports – either leading or specialist series (based on the number of reported and unreported cases in the Justis database of UK superior court judgments).
It’s worth noting this limit is simply indicative of resources, rather than legal significance. It is a statement that only 20 per cent of cases can be reported, and says nothing about how many should be.
BAILII is involved in several ongoing projects to supplement and broaden its existing collections.
We believe that projects such as these will benefit the legal community on several levels and make a valuable contribution to facilitating further research initiatives in the UK and overseas in the areas of Commonwealth legal and cultural development and additionally extend the scope of wider open access to legal information.
Following are details of the most recent projects.
We live in a world of facial recognition, genome sequencing, and automatic fraud detection. You can talk to your phone out loud have it translate your words into any language you like. Your car can drive itself (almost …).
That is to say – the machines are getting clever. Very clever indeed. Tasks previously thought to require human intelligence and intervention are being automated at a spellbinding pace. Businesses, governments and academic institutions around the world are seeing operations turned on their head with better algorithms, more computing power and more data. Whether you think that’s exciting or terrifying, what isn’t up for discussion is that it’s inevitable.
At a time when some other publishers are struggling to make the case for their law reports, ICLR is embarking on a massive expansion of its coverage. In a brace of new developments for 2016, we have begun publishing unreported transcripts on ICLR Online, and we will be expanding the leading general series, the Weekly Law Reports (WLR) with hundreds of extra cases each year.
The fact that these extra reports will appear only online has caused anxiety for some, particularly law librarians, and an explanation of our rationale may be helpful.
Most people would now agree that public information should not only be publicly available, but also freely available. In the area of law, this is assumed to include not only legislation but also case law.
This is, after all, the law of the land, ignorance of which is considered no defence. It is probably impossible to know all of the legislation currently in force, and certainly impossible to know all the common law, developed incrementally, case by case, over hundreds of years. But we should at least be able to refer to it. As public information it should certainly be accessible. Does that mean it should also be in public hands?
This article looks at the pros and cons of placing the custodianship of public legal information in public, private or – a third way – charitable (or non-profit) hands. It looks at the situation as it was, as it is now, and as it might be in the future.
Whether in print, on CD-ROM or on the internet, case law in one form or another has been around for generations, but the essential methods of using it haven’t changed that much over the centuries.
Backed up by legislation where it exists, we predominantly continue to rely on official law reports, regardless of the methods used both to identify them and to check the current validity of the precedents they set. This status quo continues to be supported by many of the prominent players in the legal information market.
But a new standard in legal research is starting to emerge and we at Justis Publishing are aiming to be at the forefront of this movement.
The legal professions, however unwillingly, and indeed the English legal system itself, are undergoing profound changes. Law reporting is bound to adapt.
The range and type of information which needs to be published is changing. The model of a carefully curated selection of momentous precedents – cases which marked out a path of stepping stones in the development of the law – though still valuable, is no longer enough in an age of online aggregation and Big Data analytics.
Lawyers and students need cases for a variety of reasons, not just to witness a change in law. And, in electronic form, the storage and retrieval of vast hoards of information is both easy and cheap. This obviates the need and to some extent the rationale for only selecting and preserving the most important cases.
But is there still merit in the idea of selection, or at any rate some sort of evaluation system for judgments? And how else can a publisher of legal information add value in the digital age?
“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?
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