A nice riff on the old rule that you could not cite a living author:

In Nicholls v. Ely Beet Sugar Factory Ltd. (1936), 154 L.T. 531 (C.A.) at 533 Lord Wright M.R. is reported as saying this about Pollock on Torts:

"... a work, unfortunately not a work of authority, but to which we are all as lawyers indebted."

But in the same case in the official report at [1936] 1 Ch. 343 (C.A.) at 349 he is reported as saying this:

"... a work, fortunately not a work of authority, but to which we are all as lawyers indebted."

The official report is undoubtedly correct; the Law Times report was produced much more quickly, and presumably the reporter did not get the joke and thought

'fortunately' was a slip for 'unfortunately'; perhaps he could not understand how it could be fortunate that the work was not a work of authority.

Pollock was 91 at the time; he died in 1937.

I tend to agree with the view that the old rule was silly. Taking the Birks case, the old rule would not only seem to say that it is now permissible to treat his work as authoritative, but presumably (if it was based on the possibility of the author's changing his mind) it would mean that only his last-held views can be so treated. What if you think the older view was better? That approach only made sense on the assumption that the authority was personal to the author and did not belong to his/her argument. You don't have this paradox if you take the view that any argument (outside of a binding precedent), whether it be of counsel, of a living or dead author, or of a non-binding prior decision, depends for whatever force it may have on the strength of the reasoning.

Interestingly, there is an argument in favour of the old rule (cite only the dead) in the provocative and interesting article, Emir A.C. Mohammed, "How Many Times Have You Been Cited by the Supreme Court?" (2009), 35 Advocates' Quarterly 170. Unfortunately I don't think this journal has an online version and it is probably hard to get outside of Canada.

Lionel