Having grown up around librarians, I have become accustomed to hearing about the importance of citation. I know all too well the intense boredom that would wash over me as my father and his friends would discuss the relative merits of including or excluding punctuation from the citation proper. I suspect this feeling is creeping up on you, the reader, at this very moment.
But alas, the importance of citation in the field of law cannot be understated. The doctrine of stare decisis requires adherence to precedent. Citation facilitates this adherence by allowing lawyers and judges to trace reasoning in past decisions to inform future ones.1 Owing to citation’s crucial role in legal study, and perhaps something approaching a genetic predisposition to obsessive citation behaviour, I have spent innumerable hours honing my citation skills. I have found a strange sort of zen in perfecting form and placement.
I have found there is one thing, more than anything else, that interrupts this zen. That thing is the inexplicable supremacy bestowed upon print reporters by style guides, and the time I spend pouring through those reporters to find paragraph numbers that, while right in front of me on the CanLII page, I am compelled to verify against the yellowed pages of old Canada Supreme Court Reports because of a pervasive distrust of web-based sources.
The question arises, why are we so intent on avoiding web-based versions of case reports? At least one illustrious legal academic seems content relying on CanLII in his work.2 The same trepidation seems absent in respect of legislation published online, which in some jurisdictions is granted official status.3
Apart from tradition, the simplest explanation for the reluctance to rely on digital versions of judicial decisions relates to their authoritativeness. One commentator has pointed out that when judicial decisions are published online, it can be difficult to determine whether that version of the decision is final and official.4 Indeed, the Canadian Guide to Uniform Legal Citation5 seems to be concerned with the authoritativeness of digital case reports in that it treats online databases, CanLII included, as being only as authoritative as unofficial print reporters.6
I find this perplexing. As far as the McGill Guide is concerned, authoritativeness seems to depend on the proximity of the publisher to official authority. Official reporters such as the Canada Supreme Court Reports are published by the Queen’s Printer,7 a position held pursuant to official authority.8 Semi-official reporters, like the Ontario Reports, are published under the authority of the law societies in the province concerned.9 Law societies are not branches of government, but they do wield delegated government authority to regulate the legal profession.10 They are, therefore, somewhat proximate to official authority. Unofficial reporters and legal databases do not have an affiliation with official authority. However, CanLII is arguably an exception to this pattern.
CanLII was brought into existence by the Federation of Law Societies of Canada as an initiative to make legal information widely available to Canadians.11 CanLII now operates as a non-profit organization separate from the Federation, though the Federation retains control over CanLII’s board of directors.12 In effect, as with semi-official print reporters, CanLII is operating under the oversight of Canada’s law societies. That being so, it seems appropriate to treat CanLII as a semi-official source of case law from an authoritativeness standpoint.
In further support of this proposition, CanLII receives the judicial decisions it publishes directly from courts and tribunals through formal acquisition channels, with a view to facilitating access to faithful reproductions of the original documents.13 Thus, concern over the finality and officiousness of the decisions can be dispensed with. In fact, since CanLII is simply publishing decisions obtained directly from official institutions, an argument could be made that CanLII ought to be treated as equivalent to an official print reporter.
It seems clear that CanLII could justifiably be given the same status as, at least, semi-official reporters in terms of its authoritativeness. What then is preventing us from making that move? The most likely explanation is concern over the fidelity of text published on the web.14 It is conceivable some nefarious party could hack into a case law database and change the text of a decision. That single change would affect everyone referring to that case law going forward. The effect would be global. If that digital version of the case were treated as authoritative, the result could be hackers changing the law to suit their purposes; a troubling prospect to say the least.
After considering this possibility, the advantage of print reporters becomes clear. After the law is printed in case reporters, it stays that way forever. No one could ever go back and change the text of every printed copy of the case. In effect, the print medium offers stability that, for a long time, simply was not achievable in the digital context.
The risks associated with digital platforms are changing. Blockchain technology is rapidly gaining traction among entrepreneurs,15 governments,16 and revolutionaries17 alike. It has a wide range of possible uses, but most pertinent to our discussion is its ability to keep permanent, unalterable digital records.
Blockchain has been described as “a special kind of box for storing digital items.”18 In our case, the digital item is a judicial decision as it appears on a standard CanLII page. That is to say, the web page on which the text of the decision is displayed, and not any PDFs that might be available through that page.19 If we were to place judicial decisions into this “special box,” we would overcome the issue of textual fidelity outlined above. If we are able to do that, we could confidently use CanLII as an authoritative source for judicial decisions.
The specifics of how blockchain works are beyond the scope of this short comment, but it will be useful to explain how blockchain technology is able to help overcome the textual fidelity issue. The first thing that needs to be made clear is that the term “blockchain” can refer to a few different things.20 For the purposes of this explanation, we can think of “blockchain” as referring to a way of structuring a network of computers, and as a way to structure data.
As a network structure, a blockchain is a network of computers, each of which is connected to the other directly or indirectly, but where no individual computer is connected directly to all of the others. This kind of structure may also be referred to as a distributed computing system.21 The left portion of the diagram below depicts a distributed computing system, where each circle is a computer, and each line is the link between them. Contrast that structure with the centralized structure on the right.
To understand the utility of the distributed structure over the centralized structure, recall the concern noted above about some nefarious actor hacking into a legal database making changes to the text of the law. Now, consider the centralized structure on the right. Imagine that the computer at the center of that structure is CanLII. If our hacker makes a change to a decision in CanLII, that change is then pushed to all the other computers on the network. Thus the hacker can change the record of the decision across the entire network by attacking a single point. This makes the network vulnerable, because drastic change can be effected with relatively little effort.
This same vulnerability does not exist in the distributed network or “blockchain.” Instead of CanLII existing in one central database, CanLII exists across many databases all at once.23 There is no obvious point of attack because there is no single computer through which a global change could be effected. A hacker may try to change the record at one point in the system, but that change only has the potential to spread as far as the computers directly connected to it.
What stops the spread of the bad data? The answer to that question lies in the second sense in which the term “blockchain” is used; that is, to reference a data structure. Understanding data structures generally is not important for our discussion here. What is important to understand is that when data is organized in a blockchain, each piece of data, or block, is linked, or chained, to every other block of data in sequential order.24 Hence, the blockchain.
The advantage of this data structure is that it allows for the easy monitoring of changes in data that has been added to the blockchain. It works in the following way. First, data is added to the blockchain. For our purposes, we will imagine adding a judicial decision to the blockchain. Next, once that decision is added, the blockchain generates something called a “hash value.”25 This hash value is essentially a digital fingerprint that, as long as the text of the decision remains unchanged, will itself remain unchanged.26 Even the slightest change to the text of the decision will have the effect of changing that decision’s fingerprint. Once the fingerprint is created, a record of the fingerprint is sent out to all the other computers in the network, all of which have the complete record of what has been added to the blockchain.27 Since all the computers know the state of the blockchain, they will be able to recognize this new addition as original, and will allow the record to be added.
Now, consider our hacker. She wants to change the text of a leading decision that has been added to the blockchain. Once she locates the original text of the decision on the network, not an easy feat, she alters the document. Because of the change to the original, the hash value, or “fingerprint,” is also changed. That change gets pushed out to the rest of the network. Recall though, the rest of the network has a record of the original hash value. The other computers on the network will check this new hash value against their own, and recognize it is not the same. The change has thus been detected, and can then be rejected.28 In effect, the spread of the hacker’s handiwork has been halted, and the integrity of the judicial record is maintained. In a nutshell, this is how blockchain technology can address the textual fidelity issue associated with giving authoritative status to judicial decisions published on CanLII.
If a CanLII blockchain were brought into existence, it would represent the end of compelling reasons to maintain the practice of citing to print reporters, at least for cases available on CanLII. CanLII is the most widely available source of Canadian case law. It is both free and readily available to anyone with an internet connection. CanLII is also, as we have seen, at least as authoritative as semi-official print reporters from a proximity-to-official-authority standpoint, and if CanLII’s databases were moved to a blockchain, the issue of textual fidelity would be resolved. The result of all of this would make the practice of legal citation more efficient. Hours spent flipping through print reporters for a sufficiently authoritative paragraph number would instead be spent doing useful legal research. Money spent on print reporters could be re-directed to improve services at law libraries. Finally, I would be able to experience my citation zen, free from the pull of the print reporters and their apparently authoritative paragraph numbers.
* JD, University of Saskatchewan.
1 See Pearl Rozenberg, “Legal Citation of Electronic Information” (1997) 5:1 Australian L Librarian 38 at 38. Put another way, “citation is used to inform the reader of the sources of evidence and arguments so that the path by which an opinion was reached can be seen” (ibid).
2 See generally Ronald CC Cuming, Overview of Saskatchewan Real Property Security Law (Regina, SK: Queen’s Printer, 2016).
3 Legislation Revision and Consolidation Act, RSC 1985, c S-20, s 31(1).
4 Michael Umberger, “Checking Up on Court Citation Standards: How Neutral Citation Improves Public Access to Case Law” (2012) 31:3-4 Leg Ref Serv Q 312 at 329.
5 McGill Law Journal, Canadian Guide to Uniform Legal Citation, 8th ed (Toronto: Carswell, 2014) [McGill Guide].
6 Ibid at 3.1.
7 Ibid at 22.214.171.124.
8 Department of Public Works and Government Services Act, SC 1996, c 16, s 19.
9 McGill Guide, supra note 5 at 126.96.36.199.
10 See e.g. Law Society Act, RSO 1990, c L.8, s 4.1.
11 Canadian Legal Information Institute, “About CanLII,” online: <https://www.canlii.org/en/info/about.html>, archived: <https://perma.cc/TGT4-997X>.
13 Letter from Feedback CanLII to Jeremy Barber (27 March 2018) in response to an inquiry made via CanLII’s Feedback Form.
14 This type of concern has been raised in relation to the use of information from Wikipedia in writing judicial decisions. See Lee F Peoples, “The Citation of Wikipedia in Judicial Opinions” (2009) 12 Yale JL & Tech 1 at 30.
15 Entrepreneurs are using the Ethereum blockchain to facilitate crowdfunding efforts to get their businesses off the ground. See Ethereum, “Crowdsale,” online: <https://www.ethereum.org/crowdsale>, archived: <https://perma.cc/9AGT-4JBU>.
16 Blockchain technology has recently been adopted by the Government of Canada as a method of achieving a new level of transparency in awarding government contracts. See National Research Council Canada, “Exploring Blockchain for Better Business” (19 January 2018), online: <https://www.nrc-cnrc.gc.ca/eng/stories/2018/blockchains.html>, archived: <https://perma.cc/T7CS-LAV5>.
17 Using blockchain technology, a small group of programmers has undertaken to revolutionize how we exchange value by inventing a new kind of currency, Bitcoin, which has in turn spawned numerous other cryptocurrencies in its wake. See generally Bitcoin, online: <https://bitcoin.org/en>, archived: <https://perma.cc/25BR-3UHA>.
18 Daniel Drescher, Blockchain Basics: A Non-Technical Introduction in 25 Steps (New York: Apress Media, 2017) at 224.
19 It has been pointed out that relying on PDFs may be ill-advised, as there is no guarantee that the PDF will continue to be a dominant format in the future. See Umberger, supra note 4 at 330.
20 Drescher, supra note 18 at 33-35.
22 Ibid at 11.
23 To be clear, I recognize that CanLII already exists in many databases. The website indicates as much (Canadian Legal Information Institute, “Scope of Databases,” online: <https://www.canlii.org/en/databases.html>, online: < https://perma.cc/CS2B-KF3Z>). What I am considering here is a further division of data that would see many different items in different places, as opposed to there being a central database for the Court of Appeal for Saskatchewan, another for the Supreme Court of Canada, and so on.
24 In other words, a blockchain is an “append-only data store,” see Drescher, supra note 18 at 141.
25 Ibid at 71-73.
27 Ibid at 146.