On the judicial acknowledgement point: in my field, barristers write

their closing submissions with the conscious aim of producing something

which the judge can cut and paste into his judgement.  The aim is to

make it as easy as possible for the judge to find in your favour.  In a

trial of any significant length or complexity, Judges in the TCC

(Technology and Construction Court, part of the High Court Queen's Bench

Division) routinely ask for closing submissions in MS Word format so

that they can do this and I expect this happens in other courts.  

As a barrister, it is in your interests for the judge to adopt your

arguments as his own in order to reach the decision you want so the last

thing you care about is whether he expressly acknowledges that he is

doing it.  I can appreciate that the situation may be different if you

are making a groundbreaking new point of law in the Court of Appeal or

House of Lords(sadly not something I have experienced) but I have never

heard anyone complain about this.  

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

-----Original Message-----

From: Vaughan Black [mailto:Vaughan.Black@DAL.CA]

Sent: 12 June 2009 13:25

To: obligations@uwo.ca

Subject: Judicial citation of academic writing

I once did a short study of academic citation in the SCC over a 6-year

period: V

Black & N Richter, "Did She Mention my Name?: Judicial Citation of

Academic

Authority by the Supreme Court of Canada, 1985-1990" (1993) 16 Dalhousie

Law

Journal 377.  Members of this discussion group may be interested to

learn that

the most frequently cited writer in the torts field was John Fleming --

12

cites, 11 to Fleming on Torts and one to an article.

On the related point of judicial failure to acknowledge sources, I have

sometimes been surprised to see judges lift lengthy verbatim passages

from

appellate facta, entirely without attribution.  This doesn't just occur

in the

portions of judicial reasons where judges are reciting the facts; I have

seen

it in the portions that constitute the reasoning.  If my students did

this in

work they were submitting for credit there would be severe academic

consequences.

I suppose that this usually occurs with the winning factum, so the

lawyers

involved are unlikely to complain.  Still, if these things are just

matters of

convention it seems fair to say that the convention in Canada is as

follows:

when, in the writing of their reasons for judgment, judges replicate

verbatim

passages from the parties' pleadings, the practices of using quotation

marks

and indicating the source of the original are entirely optional.

vb