This is the second in a two-part series reflecting on free access to law and discussions held at the seminar on freedom of expression & safety of journalists for judges in Africa in Kampala, Uganda on 29-30 October 2019.
A recurring objection to universal online publication of case law by the legal profession is the perceived risk of ‘information overload’. Shouldn’t we rather focus on providing access to a smaller number of ‘reportable’ cases, through the mechanism of law reports? This issue was raised yet again by senior judges during the seminar in Kampala last month, and I wanted to take this opportunity to more fully flesh out my response. In short, while publication according to traditional reportability criteria certainly serves the interests of those tasked with the development of jurisprudence, ‘unreported’ judgments serve important needs of other audiences. The vastness of the record is not a reason to abandon publication, but rather can and should be approached as an exciting design challenge.
There have been objections to the form and volume of publication of case law records since the invention of the printing press. Over time, commercial publishers established near-monopolies over the curation and publication of legal knowledge. In the 1980s, as specialised ‘latest development’ monthly services for practitioners proliferated, ‘old school’ commercial publishers saw their monopolies eroding, and reacted by stoking fears about the consequences.
The editor of the Australian Commonwealth Law Reports (CLR) claimed that ‘[m]any cases published on the pretext of informing practitioners and other interested persons of current events are treated as law reports and come to clog the system’ (emphasis added). He was even so bold as to recommend that courts adopt restraint in their attitude towards unreported judgments in order to ‘remedy’ this ‘clog’.
Of course, the Australian civil courts did not, in fact, collapse under the weight of unreported jurisprudence at that time. Nor is there any evidence that the move by superior courts over the last 10 years to self-publish their decided cases online has led to delay, confusion or increased judicial legal error. These days, editors of large commercial publishers take a different approach. Accepting their loss of monopoly on the case law itself, they seek to maintain their ‘status and usefulness’ by adding value to decisions, providing headnotes and summaries of argument to help practitioners ‘cut through the overload of information available electronically’.
It is very true that the online databases necessary to store universal collections of case law contain vast collections of legal records; more documents than an individual could read in a lifetime. As one commentator observes, ‘[i]n practice online databases inevitably contain both gold and dross - decisions of legal and practical importance, as well as decisions that are likely to be of no interest to anyone except the parties themselves. Gold cannot be easily separated in this area from dross: one lawyer's idea of worthless dross may well be another's notion of precious gold dust.’ The challenge for publishers of case law collections (like the LIIs), therefore, is to provide users with tools to sort ‘gold’ from ‘dross’ easily and effectively, according to their needs.
At AfricanLII, we have explicitly approached this challenge as a design problem. What this means is that instead of simply creating a large-scale digital version of printed law reports, we have started afresh from the position of trying to understand what problems the users are seeking to solve with legal research. In our research, we learned that different categories of users are trying to solve different problems and need different levels of assistance along the way. Therefore, we determined that we should design a system for interacting with our case law collections that meets each of those needs differently.
For example, one of our identified user groups is civil law attorneys. These users are very familiar with the leading cases and tests to be applied in their field; the law reports in their office are well-thumbed. What they are missing, however, is the ability to quickly find a recent case directly on point to support the claim for a particular order or quantum of damages, coupled, importantly, with the ability to follow the chain of precedent of this on-point case to confirm its value. It was with this user in mind that our team created the African Case Law Citator. Lawyers can search for cases using key words or case names, then trace the precedent relationships between them in order to identify and present a coherent argument in court.
Another example of users with distinct needs are human rights advocates and researchers. These users take a supra-national approach to research; they are interested in comparing judgments from national courts on similar issues. Traditionally, this could only be performed in a library with printed volumes from each country. Now, with the African Human Rights Law Index, researchers have one-stop access to the full text of African and international human rights treaties in the same place as judgments from 16 African countries indexed against 50 commonly-used terms. It is along similar lines that we have designed the African Environmental Case Law Index and the African Commercial Case Law Index for practitioners seeking insight into ‘ordinary’ cases to supplement their knowledge of leading cases analysed in their textbooks and law reports.
So, to those who object to universal access to case law on the grounds of ‘information overload’, my response is simply that pertinence is subjective. The court is the only true arbiter of which cases constitute precedent; no publisher can or ought to assume that role. In those circumstances, lawyers and non-legal researchers alike should have access to the entire universe of decided cases to assess and ascertain the content and application of the law for themselves. Truly universal access to law is only made practically possible where these records are available and research tools to navigate them are designed with the user’s goals and capabilities in mind.
 See a fascinating historical account in Ian Williams, ‘He Creditted More the Printed Booke: Common Lawyers' Receptivity to Print, c. 1550-1640’ (2010) 28(1) Law and History Review 39.
 I would encourage anyone interested in the origins and market position of law reports in Western legal systems to read the accounts and analysis in Robert Berring ‘Chaos, cyberspace and tradition: legal information transmogrified’ (1997) 12(1) Berkley Technology Law Journal 189 (available at https://www.jstor.org/stable/24115576) and Robert Berring, ‘On Not Throwing out the Baby: Planning the Future of Legal Information’ (1995) 83(2) California Law Review 615 (available at https://www.jstor.org/stable/3480949).
 J D Merralls QC ‘Report to Consultative Council of Law Reporting: Standards for Law Reports’ (1988) cited in Naida J Haxton ‘Law Reporting and Risk Management Citing Unreported Judgments’ (1998) 17(1) Australian Bar Review 84 (copy available from author on request).
 Libby Hakim, ‘A New Age for the Commonwealth Law Reports’ (2017) Thompson Reuters Legal Insight (available at https://insight.thomsonreuters.com.au/posts/a-new-age-for-the-commonwealth-law-reports).
 Michael Bryan ‘The Modern History of Law Reporting’ (2012) 11 University of Melbourne Collections 32 (available at fduhttps://library.unimelb.edu.au/__data/assets/pdf_file/0010/1379026/07_Br...).