| From: | Chaim Saiman <Saiman@law.villanova.edu> |
| To: | Robert Stevens <robert.stevens@ucl.ac.uk> |
| DAVID CHEIFETZ <davidcheifetz@rogers.com> | |
| CC: | obligations@uwo.ca |
| Date: | 11/06/2009 15:39:12 UTC |
| Subject: | RE: Judicial citation of academic writing |
As a number of responders have pointed out, the old rule implicitly assumes that the authority of a view is vested in the person, rather than in the reasoning, which seems a bit odd given that the author was never vested with any official authority. So far as I know, this rule never applied in the US, which is not surprising given the far more instrumental usage of precedent and authority on this side of the pond. (one of these days I hope to write about the different conceptions of authority and precedent...)
Just a few related questions. While we have heard about the demise of the rule, can anyone speak as to its origins? I assume that it is a product of the 19th century treatise writing enterprise.
Similarly, in addition to treatise-like works by academics, dating back to the famous Brandies Brief, US lawyers and courts cite to a number of diverse sources ranging from the from the purely factual to decidedly normative. Examples include: historical scholarship, political science data and analysis, empirical data about the effects of various policies and regulations, data about the need for such regulation, etc, much of it written by legal academics. What have been the practices around the common law world towards this sort of material, particularly the type that blurs the distinction between the factual and the normative?
-----Original Message-----
From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: Thursday, June 11, 2009 11:10 AM
To: DAVID CHEIFETZ
Cc: Robert Stevens; obligations@uwo.ca
Subject: Re: Judicial citation of academic writing
The provenance of an argument is not, of course, determinative of whether
it is right or wrong. However, just as with judges, if a jurist has a
track record of excellence in an area then that will influence how
seriously the argument is taken. If Scrutton LJ puts forward an argument
in the context of commercial law, we'll take a bit more time over that
than the same argument from Nobody LJ.
There are examples of the misuse of academic work by judges. So, in Alfred
McAlpine v Panatown Lord Browne-Wilkinson gave as a reason for adopting a
position in the law of damages that academics hadn't objected to it ( see
http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd000727/alp-7.htm
). That is obviously unsafe, as anyone who knows anything about academics
and journals would know.
There are also examples of reading being defensively shown off, with a
long list of citations for a position as if writing an article. Head
counting like that is also not very helpful. That said, it is just basic
politeness to say where you got an argument from.
I am not sure whether death should be the cut-off point. Perhaps there
should be an age threshhold, 50 say? If I had published most of what I
thought in my 20s the rest of my life would have been taken up with mea
culpas.
RS
> Rob,
>
> [continuing]
>
> In my view, outside of questions where there is one correct answer
> because of statute or precedent, law's problems have better answers, not
> correct answers (using correct and incorrect in the sense of the answer to
> what is 1 + 1). Some aspects of a valid answer may (and likely will be)
> predetermined by the context and subject matter, but the rest won't be.
> Influenced? Yes. Determined? No.
>
> That should mean that the mere fact I've changed my view about something
> I've written in the past doesn't need to alter the strength of that
> analysis and conclusion.
>
> However, in reality, that view is just a bit utopian - I'm not suggesting
> in any way that view is yours - because, in practice, the numbers of
> adherents to a view, and their pedigree, and the likelihood that a key
> proponent might resile, all play a role in the relevant group's acceptance
> of the better answer. Hence, Peter Birk's too-early death could have the
> effect of giving more weight to his last postion on a point. And adopting
> Lord Denning's statement that the newer the better for scholarship as a
> relevant tool for judicial use in considering the strength of some
> analysis, likely would.
>
> Best,
>
> David
>
>
>
>
> ________________________________
> From: DAVID CHEIFETZ <davidcheifetz@rogers.com>
> To: Robert Stevens <robert.stevens@ucl.ac.uk>
> Cc: obligations@uwo.ca
> Sent: Thursday, June 11, 2009 8:24:03 AM
> Subject: Re: Judicial citation of academic writing
>
>
> Outside of precedent, and in the ideal world, the merit of
> the analysis would be independent of who made it, right?
>
> Regards,
>
>
>
> ________________________________
> 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 confusÂing debate as to which academic
>> proÂnouncement
>> 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 referÂence 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
>> illuminatÂing opinion or analysis. But the rule did bring home to all
>> conÂcerned 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
>> statuÂtory 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.
>>
>>Â 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 consideredÂ
>> "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
>
>
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Robert Stevens
Professor of Commercial Law
University College London