| From: | Ross Anderson <r.anderson@lbss.gla.ac.uk> |
| To: | Robert Stevens <robert.stevens@ucl.ac.uk> |
| DAVID CHEIFETZ <davidcheifetz@rogers.com> | |
| CC: | obligations@uwo.ca |
| Date: | 12/06/2009 10:02:55 UTC |
| Subject: | RE: Judicial citation of academic writing |
Dear All,
Perhaps you will permit five short points
from a Scottish perspective.
First, the rationale for the ‘better
read than dead’ rule is sometimes given that there is the danger that the
academic might change his mind. But judges can, and do, sometimes change their
minds, though there has never been a rule that judges are better read than
dead. Some judges, indeed, even quote from their own, no doubt well crafted,
opinions; something few jurists do (although many, perhaps most, academics do
regularly cite their own previous works).
Second, the 'better read when dead'
rule has never been rigorously applied in Scotland, although there are some
rather pejorative comments on academic writings: one infamous example is Mercantile Credit Co Ltd v Townsley 1971
SLT (Sh Ct) 37 at 39 where the sheriff criticised an article written by a young
academic as something “which many may consider written in arrogant vein, coming
as it does from one who is (at least yet) qualified to represent another in a
Scottish court.” The author of the article? A young Lord Rodger of
Earlsferry. But, even in
Third, as for the genesis of the
rule in particular and the approach to authority in general, there is a kind of
antecedent in post-classical Roman law - the Law of Citations - which sought to
assign authority to the personality of classical authors rather than to the
content of reasoning.
Fourth, in
Finally, some thoughts on Robert
Steven's points on attribution. In the academy a failure to attribute sources
may be unprofessional at best and plagiarism at worst. But there are good
reasons why the decorum of the academy is not always suitable for legal
practice or judicial opinions: (a) in legal practice, one never tells a
client: here is our advice which, by the way, is largely cribbed from, say, N
Harris, A Treatise on the The Law of
Adulterine Bastardy (to use a Megarry example). And there is good
reason for this. In giving advice a lawyer is putting both his professional
reputation and his PI cover on the line by taking a particular view of the law
as it applies to the client's circumstances. (b) A judge may be rightly
reluctant to endorse an author because he is unfamiliar with the totality of that
author's work: there is nothing worse than citing an excellent point made by a
writer who, one finds only later, was a notorious Nazi sympathiser or a leading
post-modernist. That, of course, is an explanation, not a justification for, on
that line, we should never cite anyone whose background and works we don’t know
intimately. And (c) the clock: detailed referencing takes time. Judges may
simply not be inclined to spend a long time trawling through the many academic
articles that were cited to them in the way one might when writing an academic
paper. Again, this is a suggested explanation, not a justification of present
practice.
Kind regards,
Ross
Dr Ross G Anderson
Lecturer in Commercial Law
G12 8QQ
Tel: +44(0)141 330 4172
Fax +44(0)141 330 4900
The University of
See
LLM
Corporate and Financial Law See LLM
International Commercial Law
-----Original Message-----
From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: 11 June 2009 16:10
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,
>> 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
>> 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.Â
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
>> (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.
>> 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.
>> (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
>> 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
>>
>> 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
>
>
>
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--
Robert Stevens
Professor of Commercial Law