---

From: Robert Stevens <robert.stevens@ucl.ac.uk>
To: Chaim Saiman <Saiman@law.villanova.edu>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Thursday, June 11, 2009 7:48:06 AM
Subject: RE: Judicial citation of academic writing


The old rule that you don't cite living academic authors had the merit
that it prevented a judge basing himself on an academic's views, only for
the academic to change his mind and thereby undermine the whole basis for
the decision. A judge can be rather more confident in now citing the works
of Peter Birks, for example.

There are still many occasions when it is possible to spot that an
argument has its origin in an academic work which the court is not citing,
possibly because counsel is passing off the argument as his or her own.
There are also quite a few contract cases I could list where the judges
are really reading out the relevant passages from Treitel which they have
on their knees under the desk, without attribution. Professor Treitel is
not one of those whose views have changed very much over time.

If anyone, whether judge or academic, adopts an argument that they are
taking from someone else they should cite their source. Adopting a rule
just because an academic thinks that is what the law should be, however
exalted the source, is an abrogation of judicial responsibility.

RS


> 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
>


--
Robert Stevens
Professor of Commercial Law
University College London