Diminishing quality of law reports in Bangladesh
Studying law reports is an inseparable part of the engagement with the law. Everyone dealing with the law in any professional capacity - student, teacher, lawyer, judge, court reporter or columnist for newspapers - has to engage with law reports. The doctrine of stare decisis means in countries following English common law tradition precedents are of immense importance and law reports are the place where to locate them systemically. Currently, in our country, there are quite a few law report series. However, although there is currently no dearth in the number of law reports, there are reasons to be wary about some aspects of the law reports. Indeed, many have criticised us; the legal academics and educational institutions for a relative decline (perceived or real) in the quality of legal education in Bangladesh. However, the quality of law reports, an indispensable element of legal education, has rarely been a topic of discussion in Bangladesh.
First and foremost concern that I have about some of the law reports is in some cases it is hard to decipher what novel point of law has been elucidated or how in the reported decision there is a new twist to the law. Some cases reported in the law reports involve so trivial points of law that perhaps even a very rigorous research would fail to discern what aspect of the reported decision has made it worthy to have a place in the limited spaces of the report. Many readers of law reports would perhaps agree with me that some of the decisions of this nature are at best a brief judgment or order reiterating settled legal points with no novelty whatsoever. Indeed, the basic criteria for a decision to be reported would be its novelty or public importance or critique of or a thorough evaluation of the existing law etc. When a reported case would not meet any of these criteria, the perplexed reader may be excused for thinking that some extra-legal considerations may have influenced the decision of reporting. This sort of concern would be even stronger when the time gap between the date of the court's decision and the reporting year is quite substantial (sometimes more than a couple of years) and the case does not deal with any novel point or take a new turn from the previous case laws. The fundamental concern here is that every trivial case reported would probably mean the space for a more important case is taken away and the precious time of the readers wasted.
Another concern is about the quality of headnotes. Of course, all serious readers of law reports would know that headnotes are not and can never be the alternative to a careful, complete reading of the reported decision. The judges may have taken days after days in writing the decision and a headnote summarising the key facts and observations of the court cannot encapsulate all the nuances of the judges' observations let alone the arguments raised by the lawyers of the parties involved in the case. Reading the full-text of a well-written legal decision can be charming in its own right and no-frills headnotes cannot offer anywhere near the same charm. Indeed, reading headnotes alone and relying on it can be precarious in many cases. That being said, the quality of headnotes is always important for almost all readers of law reports, not just for theones in a hurry. Well-written headnotes can always save the precious time of readers in deciding what not to read (even if not always what to read, and perhaps more precariously, not what to rely on or cite from the decision).
However, if readers compare the headnotes of the law reports of the contemporary era with those of the past, often they would not but notice a general decline in the quality. In some cases, the headnotes of the contemporary era are nothing but mere lavishly copied, word-by-word inclusion from the decision which can be produced with little care and serves very little of the need for the readers. If the reproduction of some part of the decisions (no matter how important those parts may be) would have sufficed the need of the readers, then law reports would not have needed investment in editors, sophisticated machines or may be just photocopiers could have done the job. Even when there is a genuine contribution of the editors in the headnote or at least an effort, often the quality of the language is a lot to be desired.
The writer is an Associate Professor at School of Law, BRAC University.