A good example of the enligtened modern trend is in
Abbey Nationalv OFT [2009]1 AllER (Comm)1017
Where CA considered comments on first instance Judgment by Elizabeth MacDonald and Chitty and approved their criticisms
Michael
> Date: Fri, 12 Jun 2009 14:17:48 +0100
> From: charlotte.ellis@northumbria.ac.uk
> Subject: RE: Judicial citation of academic writing
> To: Vaughan.Black@DAL.CA; obligations@uwo.ca
>
> 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
>
View your Twitter and Flickr updates from one place –
Learn more!