From: Charlotte Ellis <charlotte.ellis@northumbria.ac.uk>
To: Chaim Saiman <Saiman@law.villanova.edu>
DAVID CHEIFETZ <davidcheifetz@rogers.com>
CC: obligations <obligations@uwo.ca>
Date: 11/06/2009 08:55:12 UTC
Subject: RE: Judicial citation of academic writing

Chaim,

 

As far as England goes, I expect there may be subtly different answers depending on which court and which area of law you look at.  However, based on my experience in the High Court, in commercial and construction/engineering cases,  the general approach is:

 

1)      Legal encyclopedias, eg Halsbury’s Laws of England, are rarely cited in argument or judgements.  The reason for this is that their treatment of most topics is  not very in-depth, and also that most barristers find it more cost efficient to buy a library of specialist texts relevant to their own field (Chitty, Goff & Jones etc) than to keep up with the costly online or hard copy subscription.

 

2)      Specialist practitioner texts such as Chitty, Goff & Jones etc are regularly cited in argument and usually form the agreed starting point of both counsel and the Judge’s legal analysis.  They are generally treated as authoritative, although it is not unknown for a judge to say that he disagrees with the particular paragraph being relied on.

 

3)      An academic text like Birks might be used if there wasn’t a clear or agreed answer available in the specialist practitioner texts and case law.  But its status would be as a tool for analysis rather than authority.  The focus in English courts is very much on the cases:  see, for example, Devenish Nutrition Ltd v  Sanofi-Aventis SA (France) & ors [2008] EWCA Civ 1086 at para 35 where an article by Birks is used in this way.

 

4 & 5) With regards to Weinreb and Kennedy, I dare say that the House of Lords would look at these if they were cited to them in a way which made a difference to the practical outcome of the case.  However, I am not sure how many barristers would have time to spread their net as wide as this.  In the High Court, it would be difficult to come up with a point which justified reference to this sort of work or to persuade a judge that engaging in this type of analysis was necessary to decide the case, at least in my field.

 

Right, back to the joys of first year contract papers!

 

Charlotte

 

Charlotte Ellis

Senior Lecturer

 

School of Law

Northumbria University

Newcastle-Upon-Tyne

NE1 8ST

 

0191 227 3966

 

Barrister

Keating Chambers

15 Essex Street

London WC2R 3AA

 

www.keatingchambers.com

 

 

 

From: Chaim Saiman [mailto:Saiman@law.villanova.edu]
Sent: 11 June 2009 05:28
To: DAVID CHEIFETZ
Cc: obligations@uwo.ca
Subject: RE: Judicial citation of academic writing

 

Amazing quote,  would have a hard time seeing an American judge trace the various iterations of a treatise.  You would just cite another treatise that had the rule you thought better. This relates of course to the much looser sense in which precedent is binding in US law--- a larger issue for another time.

 

Getting back to the academic citation issue: Would Commonwealth judges distinguish between a citation to 1.  A Legal encyclopedia 2.  A treatise such as Goff and Jones,  3. A book  such as Birks’  Unjust Enrichment  4, something like Weinreb’s  The Idea of Private Law  and 5, Duncan Kennedy’s Form and Substance in Private Law Adjudication?.  These are all academic texts, but they have different ratios of positive restatement of the law and theoretical arguments for improving/reforming/reconceptualizing the law.  I would think that they should receive differentiated treatment by both courts and lawyers., and while there are no formal rules about this in US law, an unwritten code of shared understandings  more or less prevails.

 

Finally, no discussion of this sort is complete without reference to L. Tribe’s open letter entitled “The Treatise Power” where he explains to Justice Breyer  why he is ceasing to write he treatise on American Constitutional law.  

http://www.scotusblog.com/movabletype/archives/Tribe-Treatise-Green%20Bag%202005%20low%20res.pdf

 

--cs

 

From: DAVID CHEIFETZ [mailto:davidcheifetz@rogers.com]
Sent: Wednesday, June 10, 2009 5:58 PM
To: Chaim Saiman
Cc: obligations@uwo.ca
Subject: Re: Judicial citation of academic writing

 

Chaim,

 

Well ... as late as 1997, there was still at least one sitting appellate judge whose view seemed to be that there was merit to the position that citing to any living author, regardless of how well received, was "academic" (pun intended). But, now? No, citing a leading text isn't (generally) considered an "academic" reference in the pejorative sense ... at least so long as the text can be said to do no more than espouse the received meaning of the governing precedents. It's my experience that judges are more inclined to complain about getting no authorities at all. Or getting "drek", even if it's polished.

 

But when the editorship changes and the substance of the text changes, perhaps significantly, and some judges cite to the new edition and others the older, then one can get this in, Haida Nation v BC 1997 CanLII 2009 BCCA,  

24.  For those of us whose role is to apply the law as laid down by the Supreme Court, the practical significance of all this is that the court has not, in any majority judgment, endorsed the views expressed in the third edition but, rather, has rejected them although without mentioning the work.


25.  This rather confus­ing debate as to which academic pro­nouncement should be taken as stating the law may illustrate the wisdom of the rule, enforced with few exceptions in our courts until 20 or so years ago but now largely forgotten, that no refer­ence is to be made to the works of living authors.  By discouraging counsel from relying on textbooks and articles, the court may on occasion have deprived itself of an illuminat­ing opinion or analysis.  But the rule did bring home to all con­cerned that the law is to be found in the statute or in the cases ─ not in the opinions of authors or editors of textbooks or articles.

 

28.  I would not wish my somewhat critical treatment of [author's] work to be understood as suggesting that it is not a valuable contribution to the literature.  It is clearly a work of scholarship ─ one which can be of benefit to any of us who must struggle with the difficulties of statu­tory construction.  As such, it is much more a work of opinion and is much more controversial than we have been accustomed to in this area. ...  On the other hand, we could all benefit from reading the work in its entirety.

The judge writing the passage suggests that it was not until the 1970s that the "don't cite the living" rule was finally interred. I've heard (maybe apocryphal stories) of senior, older, judges asking about the health of the author of some work into the late 1970s. 

 

 David

 

 

 

From: Chaim Saiman <Saiman@law.villanova.edu>
To: DAVID CHEIFETZ <davidcheifetz@rogers.com>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Wednesday, June 10, 2009 4:07:52 PM
Subject: RE: Judicial citation of academic writing

David,  

 

Yes, that is what I had in mind when I included legal encyclopedia's, the thigns like CJS & ALR the West Digest, the lineal decendents of the old common law abridgments.  At least in the US, these are no longer (usually) written by full time faculty at law schools, but either by practitioners who are more academically inclined (similar to PLI's) or researchers working for LExis/Westlaw, or ppl concpetualized as further down the law school food chain.  But in short, I don’t think most lawyers would view citing the restatement as a n "academic " work. (BTW- I think its pretty rare for lawyers/courts to cite to the reporters notes in the restatement. )  

 

Here pretty much every field has a standard treatise or two that lawyers and judges routinely cite to, but would not be conceptualized as academic. But law reviews and books-- well that is a different question.  

 

Do you think the vibe is different in Canada/CWealth? Is citing to "Chitty on Contracts" or "Goff and Jones" on restitution considered  "academic." 

 

 

 

 

From: DAVID CHEIFETZ [mailto:davidcheifetz@rogers.com]
Sent: Wednesday, June 10, 2009 3:26 PM
To: Chaim Saiman
Cc: obligations@uwo.ca
Subject: Re: Judicial citation of academic writing

 

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