Chaim,
As
far as England goes, I expect there may be subtly different answers depending
on which court and which area of law you look at. However, based on my
experience in the High Court, in commercial and construction/engineering
cases, the general approach is:
1)
Legal
encyclopedias, eg Halsbury’s Laws of England, are rarely cited in argument or
judgements. The reason for this is that their treatment of most topics
is not very in-depth, and also that most barristers find it more cost
efficient to buy a library of specialist texts relevant to their own field
(Chitty, Goff & Jones etc) than to keep up with the costly online or hard
copy subscription.
2)
Specialist
practitioner texts such as Chitty, Goff & Jones etc are regularly cited in
argument and usually form the agreed starting point of both counsel and the
Judge’s legal analysis. They are generally treated as authoritative,
although it is not unknown for a judge to say that he disagrees with the
particular paragraph being relied on.
3)
An
academic text like Birks might be used if there wasn’t a clear or agreed
answer available in the specialist practitioner texts and case law. But
its status would be as a tool for analysis rather than authority. The
focus in English courts is very much on the cases: see, for example,
Devenish Nutrition Ltd v Sanofi-Aventis SA (France) & ors [2008]
EWCA Civ 1086 at para 35 where an article by Birks is used in this
way.
4
& 5) With regards to Weinreb and Kennedy, I dare say that the House of
Lords would look at these if they were cited to them in a way which made a
difference to the practical outcome of the case. However, I am not sure
how many barristers would have time to spread their net as wide as this.
In the High Court, it would be difficult to come up with a point which
justified reference to this sort of work or to persuade a judge that engaging
in this type of analysis was necessary to decide the case, at least in my
field.
Right,
back to the joys of first year contract papers!
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
From: Chaim
Saiman [mailto:Saiman@law.villanova.edu]
Sent: 11 June 2009
05:28
To: DAVID CHEIFETZ
Cc:
obligations@uwo.ca
Subject: RE: Judicial citation of academic
writing
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
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 „Ÿ 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 „Ÿ 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.
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
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.
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.