From: Francis Rose <>
To: Lionel Smith, Prof. <>
CC: ODG <>
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

Pollock coincided.

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 [1936] 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

> authority.


> 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.


> Lionel