|From:||Francis Rose <Francis.Rose@bristol.ac.uk>|
|To:||Lionel Smith, Prof. <firstname.lastname@example.org>|
|Date:||11/06/2009 14:24:16 UTC|
|Subject:||Re: Judicial citation of academic writing|
Of course, Lionel's observation depends on the subtlety of L Wright's
comment depends on whether or not his professional and personal views of
On Thu, June 11, 2009 3:03 pm, Lionel Smith, Prof. wrote:
> A nice riff on the old rule that you could not cite a living author:
> In Nicholls v. Ely Beet Sugar Factory Ltd. (1936), 154 L.T. 531 (C.A.) at
> 533 Lord Wright M.R. is reported as saying this about Pollock on Torts:
> "... a work, unfortunately not a work of authority, but to which we are
> all as lawyers indebted."
> But in the same case in the official report at  1 Ch. 343 (C.A.) at
> 349 he is reported as saying this:
> "... a work, fortunately not a work of authority, but to which we are all
> as lawyers indebted."
> The official report is undoubtedly correct; the Law Times report was
> produced much more quickly, and presumably the reporter did not get the
> joke and thought
> 'fortunately' was a slip for 'unfortunately'; perhaps he could not
> understand how it could be fortunate that the work was not a work of
> Pollock was 91 at the time; he died in 1937.
> I tend to agree with the view that the old rule was silly. Taking the
> Birks case, the old rule would not only seem to say that it is now
> permissible to treat his work as authoritative, but presumably (if it was
> based on the possibility of the author's changing his mind) it would mean
> that only his last-held views can be so treated. What if you think the
> older view was better? That approach only made sense on the assumption
> that the authority was personal to the author and did not belong to
> his/her argument. You don't have this paradox if you take the view that
> any argument (outside of a binding precedent), whether it be of counsel,
> of a living or dead author, or of a non-binding prior decision, depends
> for whatever force it may have on the strength of the reasoning.
> Interestingly, there is an argument in favour of the old rule (cite only
> the dead) in the provocative and interesting article, Emir A.C. Mohammed,
> "How Many Times Have You Been Cited by the Supreme Court?" (2009), 35
> Advocates' Quarterly 170. Unfortunately I don't think this journal has an
> online version and it is probably hard to get outside of Canada.