I sometimes despair that the average person will be able to use legal information. It’s not even the archaic use of Latin phrases or terms of art. There are some basic hurdles once you’ve found the information in the first place that we seem unable to remove. This was reinforced last week when a Canadian judge sentenced a defendent to a crime that no longer existed.
No-one’s perfect. Judges misapply the law. It wouldn’t be hard to drum up examples of lawyers missing applicable cases, or suggesting that inapplicable cases are the rule of the day. In some cases, that’s part of their job – to suggest that their client’s fact pattern is a new leaf on the same branch of the precedence tree. The judge’s error highlights the challenges facing those who’ve never taken a legal research course, or perhaps even a solid civics course, at even getting access to enough information to be able to misinterpret it.
Location, Location, Location
The first hurdle is figuring out which law applies. In North America, it’s usually a national (Federal) law or a state law. But you also have local, municipal laws that only apply to a particular city or other political subdivision. Lawyers have procedural rules that help them fix their errors at applying jurisdiction and venue, so even if someone gets it wrong, it can be fixed.
What is the Law
Usually when we talk about the law in common law countries, we’re talking about 2 sets of things: decisions issued by judges and rules issued by the government. That’s a really simple definition but finding the information can be challenging.
Not surprisingly, finding law created by a legislature or parliament is usually pretty easy. Sarah Glassmeyer did a survey of US state’s, so you can get a sense of what’s available there. If you look at her data, you’ll see that some states don’t make their own legislature’s laws available online (for a deep dive at the relationship between a state and a legal publisher, read her post here). In most cases, something is available. Federal laws are the easiest to find in Canada and the U.S., published for free on both government sites and others.
As the judge in Alberta found out, though, it’s not enough to just know where the law is. Here are free versions of the statute that contains the section, 230, that was dealt with by the Canadian Supreme Court in 1990:
Neither of these sources indicates that the law no longer applies. As the editorial on the Alberta case states, though, annotated versions of the law will show that this particular portion of the law has been invalidated. Annotated versions are commercial publications (although they don’t have to be) and so will only be kept in libraries or law firms or other places that have purposely bought a copy. Unlike the laws – which can clearly appear past their actual life cycle – the annotations are updated regularly, and so the books tend to be purchased every year. Some purchasers only buy them every few years, since as law librarians or legal professionals they know to update their research, but the average person using these books might not understand that nuance if they have an outdated copy.
This is a spot example but there are areas of legislation that are harder to find on a regular basis. The American Bar Association has been looking at the issue of building codes, which are usually published by a private organization but often incorporated by reference to municipal codes. You can find many municipal codes online in the US, but if they reference commercial publications, those may not be as easy to access. And even when legislation and rules are published online, they may not be considered official by the rule maker. In which case, a person doing their own research will need to understand that, just because it’s on the web site of a publisher or the rule maker itself, it can’t actually be relied on.
Then you have case law, which I have touched on before. Judges make decisions in courtrooms. Sometimes those decisions are oral, and not captured in any method. Judges in Papua New Guinea are thrilled that technology is coming to their courtrooms to eliminate the need for them to write down their oral decisions. Many judicial decisions are written down, though, and issued at the end of a matter to describe the decision-making process.
It might be fair to assume that all of those written decisions are captured somewhere but they aren’t. Judges provide their decisions to the court for publication, and so can withhold decisions they don’t want to have published. In addition, some jurisdictions engage in the concept of unpublished opinions.
Confusingly, you can find these unpublished opinions in a published database, but are warned not to use them. They aren’t given the same value on the tree of precedents as the published-published opinions are. But lawyers and judges cite to them in documents, often using a proprietary citation to a commercial database. That may make a court decision unavailable to a researcher without access, even if the cited decision is available in other locations for free. But I digress. Again.
All of which can be confusing when doing legal research, whether you’ve been through a legal research training course or not. There are obviously many hurdles in using legal information. There’s lots of free information available, although it may be inconsistent, unofficial, and incorrect. The case in Alberta is just a reminder that not only do experts not always get it right, but that even just having access to legal information doesn’t mean someone can be confident they have access to the right information.