|From:||Chaim Saiman <Saiman@law.villanova.edu>|
|To:||DAVID CHEIFETZ <email@example.com>|
|Date:||10/06/2009 20:07:52 UTC|
|Subject:||RE: Judicial citation of academic writing|
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."
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
To: DAVID CHEIFETZ <firstname.lastname@example.org>; "email@example.com" <firstname.lastname@example.org>
Sent: Wednesday, June 10, 2009 1:49:07 PM
Subject: RE: Judicial citation of academic writing
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.
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.