Hi David,

I meant to reply yesterday, but got caught up with exam season stuff.  

Anyway, about the best study of citation and influence that I have  

ever read is Neil Duxbury’s short book JURISTS AND JUDGES: AN ESSAY ON  

INFLUENCE (Hart, 2000).  Although not specifically concerned with tort  

law, Duxbury explores when, why and how judges cite academics.  And,  

happily, many of his examples hail from the law of torts.  All in all,  

I’d recommend it to anyone; especially those, who, like me, are  

totally brain dead after reading countless exam scripts.  It beats  

John Grisham and others like him hands down; but is not much more  

demanding to read.

Did you know, for example, that one reason why judges haven’t  

traditionally cited often is the historical “rule” that one should not  

cite a LIVING author?  Equally, regarding those that get cited  

repeatedly (thus probably helping certain articles that have troubled  

me over the years achieve SEMINAL ARTICLE status), did you know that  

this could be no more than the MATTHEW EFFECT at work?

The book is a very short one and it contains specific sections on  

England and the USA that you might find interesting.  There’s no  

specific section on Canada (which may dismay you), but there is a  

section on France which may cause you great happiness because, like Mr  

idle here, you may feel justified in ignoring it totally.  To be  

precise, the book is just 118 pages short; and if you miss out the bit  

on France, you’re down to a pleasant afternoon’s read.

Best

J

Quoting DAVID CHEIFETZ <davidcheifetz@rogers.com>:

> Chaim,

>

> Thanks.

>

> There's a level of "doctrinal" - I like the "scare" quotes usage -  

> writing you didn't mention that's lower in the analytical food chain  

> that the Restatement and that's the digest. Canada has digests (the  

> Cdn Encyclopedic Digest, the Canadian Abridgment) and while the CED  

> is more than just a digest - the sections are essentially small text  

> books its Ivory Snow level (if not more) black letter law. Nothing  

> really analogous to the commentary and analysis portions of the  

> Restatements.

>

> For that we have the separate subject matter texts. Canada didn't  

> even (until recently) have a Canadian version of Halsbury. That's  

> coming out in dribs.

>

> David

>

>

>

>

> ________________________________

> From: Chaim Saiman <Saiman@law.villanova.edu>

> To: DAVID CHEIFETZ <davidcheifetz@rogers.com>; "obligations@uwo.ca"  

> <obligations@uwo.ca>

> Sent: Wednesday, June 10, 2009 1:49:07 PM

> Subject: RE: Judicial citation of academic writing

>

>

> David,

>  

> Here are my off the cuff reactions.  

>  

> At least from the US perspective, it might be useful to distinguish  

> between forms of academic writing. Specifically between "doctrinal"  

> writing (treatises restatements,  and various legal encyclopedia's,  

> that are in the business of organizing, collecting, and  collating  

> doctrine), and the more theoretical scholarship that is in the  

> business of justifying, reforming, expanding /contracting  

>  established doctrine. I think most judges, lawyers and scholars  

> would recognize that these are somewhat different genres of writing,  

> such that citations to the restatement, while techincially an  

> "academic" work, is unlikely to lead to much interest or citation of  

> writing more typically concpetualized as "academic legal  

> scholarship".  In other words citing Prossor on Torts or Wright and  

> Miller of Fed. Jur. is not really understood as citing "academic"  

> scholarship-- despite the fact that these works are/were written by  

> academics and inevitably promote some view or

>  conception of the existing law.

>  

> I cant speak to Canadian tort cases, but I would not surprise me to  

> learn that there is quite a bit of citation in US courts to the  

> doctrinal materials, in large part because unlike in the CWealth,  

> there is less of an established canon of "leading cases" that define  

> each field.   But I don’t think that this leads to citation of the  

> theoretical scholarship-- which is understood to be of a different  

> kind.

>  

> Finally, while I know far less about torts specifically, at least in  

> the restitution context,  the English HOL cases are far morelikely  

> to cite theoretical academic scholarship than US cases.

>  

>  

>  

> From:DAVID CHEIFETZ [mailto:davidcheifetz@rogers.com]

> Sent: Wednesday, June 10, 2009 9:54 AM

> To: obligations@uwo.ca

> Subject: Judicial citation of academic writing

>  

> Dear Colleagues - particularly our U.S. colleagues

>  

> My impression is that, historically, US judges are more inclined,  

> across the breadth of tort law, than Canadian judges, to refer to  

> the scholarship of academic lawyers. It struck me that the existence  

> of treatises such as the Restatements, and what's involved in their  

> preparation, might be part of the reason for that greater inclination.

>  

> Views?

>  

> Best,

>  

> David Cheifetz