On April 23, 2012 Dan Ernst alerted at the Legal History Blog to the report by Mitch Fraas on legal history databases for the Center of Research Libraries (CRL). Fraas compares in his brief report the contents, range and accessibility of sources for legal history available in a number of major databases which can be accessed by subscribers and subscribing libraries. The theme of open access has figured here already a few times. Perhaps due to the sheer number of posts at the admirable Legal History Blog Dan Ernst’s post and the report by Mitch Fraas (University of Pennsylvania Libraries) have thus far not received due attention. Fraas makes some comments about finding documents and archival records outside the main databases for legal history that call for reflection and reactions.
This report gives me a most welcome opportunity to deal at last with these commercial databases which I have so far kept at a safe distance. Until now I have included them nor here nor at my website. Is it wise to want to have as much as possible in subscribers-only databases? To who belong the sources for the history of nations, for the development of law, legal institutions and jurisprudence, and the records of the actual application of law in courts and elsewhere? Is the intervention of commercial firms absolutely necessary to make online access possible? Are we simply facing a dilemma or are there several ways to obtain maximum accessibility at comparatively low costs? Fraas is a specialist in Anglo-Indian legal history, but he brings the Indian perspective only as a second thought. The very least I can do here is pointing to a blog which serves a portal to India’s legal history. I will also look at the digital collections provided by the Center for Research Libraries, both for subscribing institutions and in open access.
Commercial databases for legal history
Until now my main impression of commercial legal databases was that they serve primarily the field of current law. Depending on the country you live in they tend to focus on jurisprudence, laws and statutes. Legal history seemed to figure only as an offspring of these databases. My impression of a rather closed environment was perhaps rather unluckily fortified by the website Constitutions of the World where for non-subscribing visitors only facsimiles of constitution come into view. The guide on Scottish legal history by Yasmin Morais at Globalex, a website with guides to the legal systems of many countries where her fine guide is the only one dealing with history, adds to an impression of legal history as a subject lost between modern developments. The readers of this blog and my website or of any other worthwhile website on legal history know this picture is not correct. Legal history is very much alive!
If you do not deal on a daily business with Anglo-American law you might be excused in guessing LexisNexis, HeinOnline, WestLaw e tutti quanti present only the materials for contemporary lawyers and law students. The resources guide of an average American law school allots much space to the products of these firms, and a number of schools can add regularly new databases or functionality for existing systems to the variety of resources available for users on and off campus. History comes into view already because of the need in a number of legal systems to be able to search for precedents. Thus legal systems with a tendency to focus on case-law or – phrasing it for Anglo-American law – taking a lead from the principle of stare decisis, inherit a vital connection to the past for present-day use. The drawback is the daily temptation to view this historical connection as a useful handmaid of the present, and not much more. In American law case-law currently gets its specific importance also from the way the constitution comes into view.
A useful comparison
You might wonder why I included the paragraph here above, but at least it helped me in being more aware of my prejudices against commercial legal databases. Let’s go now quickly to the concise report by Mitch Fraas. He looks at a wide range of sources: published case reports, trials, statutes and laws, general legal literature, and other legal materials. For each category he compares the resources offered to subscribers by LLMC-Digital, HeinOnline, Gale and other firms with resources freely accessible online. Very soon it becomes clear that sources for the United States and the United Kingdom are very well served in these commercial projects. Part of the report is a very useful links selection of both subscription databases and open access resources. Fraas notes that the CRL, too, makes many of its subscription databases available through LLMC-Digital. The report ends with conclusions which you can use as a kind of rough guide to digitized resources for doing legal history on subjects touching the United States, the United Kingdom and Canada. Fraas has written a more extensive report on LLMC-Digital to which he has added an overlap analysis with comparable providers and a report on the coverage of countries within LLMC-Digital.
At the very end of his report Fraas looks beyond materials for American and British legal history. Sources for the history of the British Empire are also included in the databases under discussion. Fraas himself is a specialist of Anglo-Indian legal history, the theme of his personal blog. His current research is concerned with Privy Council appeals in the early colonial period, i.e. the eighteenth century. For the legal history of India, too, Fraas indicates a search strategy for using digitized sources. To me he seems unnecessary modest in not mentioning his own blog and the sources he has made available himself. He advises researchers to start first with the subscription databases before visiting the various websites which deal with Indian law. It would have been easy to add the guide to these websites provided by Mitra Sharafi (University of Wisconsin) on her splendidly useful blog on Indian legal history.
In a comment on Fraas’ report at the Legal History Blog Fred Shapiro mentions the oversight of Making of Modern Law: Primary Sources. I guess it is the very variety of projects within Gale’s Making of Modern Law series that has caused this omission, but this is certainly a major resource. Today I noticed another blog Mitch Fraas has recently started, Unique at Penn, a blog for the University of Pennsylvania Libraries about its holdings. Compared to the average online library guide to digital resources for legal history Fraas’ report stands out because he indicates strengths and weaknesses of these resources and points to strategies for their use.
What else has the Center for Research Libraries in stock for legal historians? The CRL website gives an overview of the digital collections created by CRL. LLMC-Digital is among them, and most of them are only open to subscribers. Here I will briefly mention the resources in open access which have some relation to legal history. The Digital South Asia Library, a joint project of CRL and the University of Chicago Library, is not only a digital library but also a portal for South Asian Studies. Among the digitized reference books is the Imperial Gazetteer of India. The Digital Library for International Research contains the Digital Legal Texts of Outer Mongolia, created for the American Center for Mongolian Studies in Ulanbator. The collection Brazil Government Documents, too, is freely accessible online. Of interest is also the collection Chinese Pamphlets: Political Communication and Mass Education with pamphlets published between 1947 and 1954. In my latest post figured the nineteenth-century Slavery and Manumission Manuscripts of Timbuktu. The digital collection with pamphlets and periodicals of the French Revolution in 1848 has also figured here in an earlier post. CRL provides more research guides, for example on human rights and medieval studies. At the CRL website you can find also reviews of major commercial digitization projects, for instance of World Constitutions Illustrated, with again a useful list of online resources, both for subscribers only and in open access.
Open access or subscription, an eternal dilemma?
Some of my readers would like me to vote clearly for the creation of open access digital resources as the sole way to provide scholars with adequate access to their preferred digitized resources. I simply cannot decide this within the space of one post. I am certainly concerned about the monopolizing tendency of a number of firms which gain sizeable profits from the digitization projects they maintain in cooperation with national libraries and prestigious research institutions. In principle national libraries have a task not only for scholars or for a nation but for the common good. It seems many institutions follow both the road of projects financed and possibly tapped to some extent by commercial firms, and the road of their own projects, sometimes in collaboration with partner institutions in other countries. Libraries are probably wise not to exclude commercial collaborations, but when access to digitized materials concerning the cultural or legal inheritance of nations and peoples is severely restricted, it seems they do not fulfill their mission as completely as they should.
One should be aware how difficult it is to take decisions in the face of budget cuts. Libraries, museums and archives have to adapt themselves to the chances and threats of the digital revolution. They face pitfalls and dead-ends, they are sometimes surprised by the very success of other projects. Every now and them it is even hard to discern at all between failure and success. They cannot bet on one horse, be it the glory of independent projects which distract from the very high costs sometimes involved, be it as a more anonymous contributor to commercially safe projects which do not exhaust their own budgets. In my opinion the firms with the subscription databases should give the contributing institutions more credit for their trust and for their policies which have resulted in the very creation of the collections being digitized. Is there no lawyer who can develop a legal construction which sets for example a ten years limit to the profits gained by these firms from digitizing objects which are in the public domain? On the other hand one has to acknowledge some firms invest at least some of the profits gained from their subscription databases in the field of current law into projects for scholars and the general public interested in culture and history.
It is easy to create a caricature of reality with a simple distinction between the good, the bad and the ugly. Some open access projects are distinctly ugly, in particular those with institutional stamps on images. In my view it would help to have more insight into the arguments which favor in one case open access, in another case cooperation with a publishing company. In earlier posts I could already show that the sheer number of items or the degree of familiarity of objects is not necessarily the decisive factor. Today’s wisdom can be tomorrow’s foolishness. State of the art technology can quickly become outdated. The position of libraries in the field of scholarly information can change rapidly and make current constellations inadequate for the future. The report discussed here deals with American and British legal history. It will be most interestingly to create similar reports for other fields of legal history.
At the back of my mind remained the question where to find a guide to free online materials concerning American law. Recently Harvard Law School Library published an online guide for this purpose, not only for American resources, but also covering foreign and international law.