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.
The anxiety of impermanence
One of the anxieties most commonly expressed by law librarians is the risk of losing content. When budgets are under stress, difficult choices have to be made – especially where subscriptions keep going up. A choice between two rival online services may be hard to make, but it is not irreversible. A choice between print and online formats is a more existential, perhaps even Faustian, decision. Why? Because, deep down, many librarians don’t really trust digital content. They feel it’s like selling their soul for a mass of digital pottage, giving up the permanence of print for the promise of a world of instant information.
But books themselves can now take different forms. And so, of course, can law reports. A law report is not a book. It is a self-contained literary work, like a short story or essay, but it has traditionally been collected into book form, first as a weekly or monthly “part” and then, at the end of the year, bound into volumes and arranged on shelves. They present a traditional, not to say iconic, image when viewed thus, row upon row, in matching bindings, colour coded by content or jurisdiction. When judges are appointed to the bench, or barristers awarded silk, the official portrait is often posed against a wall of shelved law reports. It’s a token of their seriousness, their intellectual hinterland (despite the funny costume they’re obliged to don for the occasion). By the same token, the waiting or consultation rooms of law firms would often be lined with law reports, an endorsement of the collective legal learning that will no doubt be more than adequately reflected in the invoice sent to the client.
For a law librarian, the one thing more satisfying to behold than the neat rows of bound law reports on the shelves is perhaps the sight of a studious researcher poring over some of those volumes at a desk. But the glorious sight of a law library packed with students and practitioners poring over open books is a dated one. Almost anything that can be found in a law book or law report can now be found online.
And, to an exponentially increasing extent, many resources can be found only online.
The paperless law report
We still crave the printed word. The paperless office, long predicted, hasn’t happened yet. The paperless court is said to be on its way. Meanwhile, ICLR like other publishers has faced its own existential dilemma.
As the leading provider of law reports in this jurisdiction (England and Wales) and conscious of its role in establishing a precedent for the recording of precedents in other jurisdictions, the ICLR, which last year celebrated its 150th anniversary, has tended not to be in the vanguard of development. Indeed, its traditionalism of approach could be said to put it in the guard’s van of the train of legal progress. Well, that guard’s van has now become a locomotive. Let’s not go into this metaphor too deeply or we’ll be trying to work out who is the Flying Scotsman and who is Thomas the Tank Engine! Suffice it to say that after a century and a half of being a print publisher, which for the last two decades has provided its law reports in digitised form, ICLR now sees itself as primarily an online publisher, which is also providing some (but not all) of its content in print. In other words, it will be publishing what are essentially paperless law reports.
This is what has prompted the anxiety of some librarians. Their anxiety is not fanciful. Recently, a well-known legal commentator went to the website of the Leveson Inquiry. It wasn’t there. It seemed to have vanished off the face of the earth, this inquiry into phone-hacking and press abuses with all its volumes of evidence and records of oral sessions and its famous Report which was supposed to launch a shiny new regulatory world. Gone.
After a brief panic it was found to have been transferred to the National Archives, three years having elapsed since its conclusion, in a way that seems normal for official publications of this type. A forwarding link was established, or re-established after a glitch, and everyone could look through all the original Leveson Inquiry papers as though archived in sturdy beige cardboard boxes in some virtual storeroom at Kew. But it is worrying to think that content can simply disappear, and a lot more easily than a library burning down or someone stealing the relevant volume under their jacket.
Quite apart from the risk of outright disappearance, digital content involves a more fundamental reliance on technology than the humble printed book. You need electricity, working devices and a stable internet connection, none of which, in some jurisdictions, can be taken for granted.
The virtual shelf has virtue
Against these undeniable risks, there should be acknowledged the huge paperless achievements which the internet has brought to the legal system and legal practice. Readers of this publication, above all, are unlikely to be impressed or taken by surprise by any of this, but it’s those cautious librarians I’m concerned about.
So look at BAILII. This vast online repository of judgment transcripts and other legal documents has no shelf-life equivalent. In my early career I used to consult a collection of Court of Appeal (Civil Division) transcripts which were kept in something then called the Supreme Court Library, open to the public, at the Royal Courts of Justice. The transcripts were typed up from shorthand notes. There was one copy of each case. They were indexed by name and date, on a system of index cards in a physical filing cabinet. They are now hidden away in something called the Judges’ Library, inaccessible to practitioner and public alike. No doubt some of the cases were reported or digitised elsewhere. Compare this with the riches on BAILII. The ease with which you can now get a transcript within hours of judgment being delivered has no equivalent in the analogue world. And BAILII is open to anyone, anytime.
The preservation of other forms of public record has likewise become a digital-first operation, particularly for “born-digital” content such as official emails, documents and spreadsheets: see the National Archives’ press release, “Safeguarding the nation’s records: from Domesday to digital” (pdf). Although statutes are still published in printed form, the Statute Book itself is a compound living instrument which can only be viewed in its fully amended and up-to-date version online. The printed edition is a snapshot of the original enactment, but for amended legislation it can only give you the scattered pieces of an unsolved jigsaw puzzle.
The hierarchy of content
Now ICLR, moving with the times, has decided that the number of cases it wishes to publish simply cannot be contained within the bounds of a book. Whilst our firm editorial view remains that only cases of authoritative value should be reported, and our support for the administration of justice aligns us with the senior judiciary who regularly complain about the over-citation of authority that adds nothing to a point of law in argument (see, for example, Lord Judge CJ in R v Erskine  EWCA Crim 1425;  1 WLR 183), nevertheless, we have to recognise that most of the legal information market wants access to more content. We should not question their reasons for doing so: it is not for us to police their use (or abuse) of authority.
But there remains a hierarchy of content, and this is reflected in the mode of publication. The most important cases, which appear in volumes 2 and 3 of the Weekly Law Reports, will be preserved for posterity in The Law Reports, as they have been since 1865, in print as well as online. The coverage of less important cases will continue to appear in volume 1 of WLR, again in print as well as online. But the print edition of WLR has now expanded to six or seven physical books each year.
To accommodate the additional content which the market demands, for those more marginal or specialised cases which, though not of critical precedential value, nevertheless aid researchers and practitioners in keeping up to date with current legal developments, there will be a virtual additional volume, not in print but online, which will be cited as volume 4 of WLR. And for the cases which do not merit even this treatment, ICLR will index each judgment by subject matter heading and provide the raw transcript or a link to where it can be found.
A question of priorities
What can we say to allay the fears of cautious librarians? It might be possible to arrange some sort of print-on-delivery service to export, download, collect into volumes and print the additional WLR cases. It would be cumbersome and expensive. What purpose would it serve, other than to take up additional shelf space in a physical library? But yes, of course, it could be done.
In the end, though, these are not the sort of cases that merit such special treatment. Even if the statutes of the realm deserve to be recorded on vellum, the same could not be said for the thousands of statutory instruments which trail in their wake. You would not publish a printed edition of the judgment transcripts (though I think somewhere perhaps a hard copy ought to be made). It is a question of priorities. ICLR’s priority is to serve the needs of the legal profession and education without compromising our original (charitable) objects. Nothing is being taken away, but something more is being provided.