November 3, 2010
Are Case Headnotes at Risk of Extinction?
The moment of extinction is generally considered to be the death of the last individual of the group. Will the headnote become extinct when the last print reporter is cancelled? In The Future of Headnotes, Eric Appleby, Maritime Law Book, a publisher of 14 law reporters that cover every jurisdiction in Canada except Quebec writes "Headnotes are at risk because the full text of legal decisions without headnotes are now available free on the Internet from multiple sources. This free access has resulted in a dramatic reduction of print subscriptions to law reports." Appleby adds
I believe that some caselaw volumes in the future will include an abbreviated form of headnote, such as headings and sub-headings only. That is, editorial input will be minimal at some publishers. But some caselaw series will have complete headnotes for as long as there is a minimum number of print subscribers. That minimum will vary from publisher to publisher depending upon individual expense levels and the individual cost of capital.
Of course, print reporters have to be purchased in sufficient numbers. I, for one, wonder who will be buying print reporters five years from now even if digital opinions are not authenticated by then. In the context of discussing the eventual demise of print digests in yesterday's LLB post, How Much Longer for 19th Century Legal Print Relics, Jason Wilson, Jones McClure Publishing, predicted that headnotes will not be written in five years.
And, of course, headnotes are not dependent on the print medium. They can be part of the "value added" by providers of fee-based online legal search services. But as Appleby observed in his Slaw post, "revenue to pay editors [to write headnotes] has been declining steadily since the start of the Internet." Can licensing revenue for online services pay for the continuation of headnote production as print reporters and digests disappear from law library shelves? Unless licensing fees increase substantially I doubt it, that is unless the work is sent overseas to reduce labor costs.
Despite the hue and cry when West sent (and then stopped) headnote composition for unofficial opinions to India, I personally don't care where headnotes are drafted as long as they are accurate. Sending all the work to low-cost labor markets is fine with me. But the real issue in the 21st Century is are headnotes embedded in court opinions needed at all for online search? If sufficient metadata is baked into each electronic court opinion for search engines to utilize, I doubt it.
Appleby might disagree: "The future of headnotes is not as clear as a decision with a headnote." [JH].