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What Is The Supreme Court Reading?

What is the Supreme Court reading? More than gets cited to them, I hope. A survey of the 2006 judgments’ “Authors Cited” sections reveals a meagre and mundane stock of stimulation, heavy on textbooks and light on theory. (I assume that the great bulk of references in decisions originate in parties’ factums and do not represent independent research by the judges.)

First some figures:

206 separate works were cited, written by 175 personal authors (sometimes as co-authors). Of these, 30 works were cited more than once. 88 (43%) of the works cited were textbooks; 7 of them were dictionaries; 17 were House of Commons Debates or Minutes of Proceedings. Only 47 (23%) of the works cited were from academic or professional journals.

[The page 2006 Authors Cited contains tables of all authors and all works cited.]

The works most frequently cited are those dealing with statutory interpretation. Elmer Driedger’s book on the Construction of Statutes was cited 14 time in one version or another, and Pierre-André Côté’s writings on the interpretation of statutes were cited 5 times.

That fully ten percent of the SCC’s references to authors should be to these works is something of a puzzle. The Supreme Court, like any tribunal, spends much of its time applying legislation, of course, and so will regularly encounter difficulties of interpretation; counsel, who anticipate these, might well refer to Driedger or Côté to lend some weight to their argued-for interpretations; but the Supreme Court should need no license or support from either authority to determine a course of establishing meaning, whether for a particular legislative passage or for statutes generally.

Little here is of the haft, let alone the cutting edge, of thinking.

To put it another way, these are not works to be consulted on questions of social policy where an author’s thoughtful opinion might be helpful or, indeed, necessary. They are, rather, books that expound very basic, elemental and abstract matters having to do with approaches to the law itself, something that should be largely beyond issue now at the Supreme Court. (For more on the SCC’s involvement with these issues, see Ruth Sullivan, “Statutory Interpretation in the Supreme Court of Canada” (undated) Legal Drafting Website, University of Ottawa.)

Ruth Sullivan, then, handily wins the most-cited author sweepstakes for 2006, being cited 9 times for her Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham, Ont.: Butterworths, 2002) and Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994). Coming a close second is Fernand Morin, cited 7 times for 5 different works: . Pierre-André Côté comes next, having been cited 5 times for The Interpretation of Legislation in Canada, 3rd ed. (Scarborough, Ont.: Carswell, 2000), Interpretation of Legislation in Canada, 3rd ed. (Montréal: Thémis, 1999) and “Driedger’s ‘Modern Principle’ at the Supreme Court of Canada: Interpretation, Justification, Legitimization” (2006), 40 R.J.T. 131. After that, things drop off rapidly: 2 authors are cited 4 times each, 3 are cited 3 times each, 43 are cited twice each, and the remaining 123 cited only once—a perfect illustration of the “long tail” in statistics.

Of the 47 journal articles cited, over half (26) were a decade old or older, 15 were published within the last five years, and the remainder fell in between. The articles came from 30 journals, of which two-thirds were Canadian and one-third foreign (essentially American). Although it is not possible to be confident about the contents of the articles without having read them all—and I have not—I can venture to suggest that many, if not most, have a distinctly pragmatic bent. Illustrative of this, perhaps, is the fact that none of the “great” American scholarly jounals was cited; whereas, the SCC was pointed to American articles in the Northern Illinois University Law Review, Practising Law Institute Corporate Law and Practice, American Bar Association Forum on Communications Law, the American Business Law Journal, the Tulsa Law Journal, and the Western State University Law Review.

The most frequently cited Canadian law journal was the Canadian Bar Review (9 times), followed by the McGill Law Journal (5 times); 9 of the articles cited from these journals were a decade or more old.

[A list of all the journals and articles cited in them is available on our page 2006 Authors Cited.]

All in all, I would have to say that the list of authors cited in 2006 does not provide the sort of uniformly intellectually nourishing fare that might be wanted for our top court. Of course, there are high spots, and textbooks often smuggle in though-provoking insights; but little here is of the haft, let alone the cutting edge, of thinking. I would tell a student to take such a bibliography back to the library and start all over again, reading more widely and more wisely.

[filed: List of cases]

3 Responses to “What Is The Supreme Court Reading?”

  1.               David Cheifetz

     

    Simon,

    You wrote: “What is the Supreme Court reading? More than gets cited to them, I hope. … All in all, I would have to say that the list of authors cited in 2006 does not provide the sort of uniformly intellectually nourishing fare that might be wanted for our top court.”

    I suspect, just from cases of which I have first-recent knowledge, that it’s at least as much what the SCC chose to mention from what was cited, as a lack of good bedtime reading.

    Consider the SCC’s decision in the social-host liability decison: Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006 SCC 18. The references in the facta to material other than cases and statutes included:

    Adjin-Tettey, “Social Host Liability: A Logical Extension of Commercial Host Liability?” (2002), 65 Sask. L. Rev. 51 5-547.
    Hill, “Liability for Intoxicated Patrons: Where has Jordan House Taken Us?” (1994) 58 Sask. L. Rev. 383
    Hillyer and Burns, “The Unprotected Social Host And a Host of Other Problems” (Jan 10, 2002), The Advocates Society (Ontario)
    Klar, Linden et al., Remedies in Tort,
    Klar, “The Role of Fault and Policy in Negligence Law” (1996) 35 Alta. L. Rev. 24
    McLachlin “The Supreme Court and the Public Interest” (2001), 64 Sask.L.Rev. 309
    Osborne The Law of Torts, 2d
    Page, The Law of Premises Liability, (Anderson Publishing Co., 1988)
    Solomon, et al. “Drink, Drive and Sue: Liability for the Intoxicated”, (1993) 4 Journal of Motor Vehicle Law
    Zablocki, “The Emergence and Evolution of Social Host Liability in Canada” in Archibald and Cochrane, eds., Annual Review of Civil Litigation 2003
    Fridman, “Non-Vicarious Liability for the Acts of Others” (1997) 5 Tort Law Review 6
    Fridman, The Law of Torts in Canada, 2d
    Insurance Bureau of Canada, “The Rise of Liability for the Intoxicated” [January, 1991] Viewpoint (Toronto: IBC, 1991)
    Solomon and Usprich “Canadian Alcohol-Related Liability”, The Graduate, 3rd ed. (Toronto: IBC, 1994)
    Chamberlain & Solomon, The Role of Sociai Host LiabiIity in Reducing Impaired Driving and Underage Drinking in Canada

    The only treatise/author cited was Fridman, The Law of Torts in Canada, 2d.

    Or, consider, para. 20 in the very recent Resurfice Corp. v. Hanke, 2007 SCC 7 : ” Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful tocatalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.”

    (Quick concession: I might be one of the ink-stained spillers referred to in that paragraph. I suspect that’s about as close as I’ll come to that sort of immortality.)

    Compare Hanke to, say, the the House of Lords decisions in Barker v. Corus (UK) Plc [2006] UKHL 20 and Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22

    There was much more cited in the Hanke parties’ facta the one treatise referenced – a motherhood type reference to Klar, Tort Law (3d).

    So, cutting to the chase, wouldn’t the better way to decide who is to “blame” for the seeming aridity be to compare what’s in the facta with what’s in the reasons? Of course, for that to be easily done it would require the SCC make the facta available via the ‘Net, through, say, CanLII in the same way that the US Sup Ct facta are available throug Findlaw

    Given that electronic filing is now a requirement, one wonders why that hasn’t occurred.

    Best regards,

    David Cheifetz

  2.               Paul Jonathan Saguil

     

    It seems the phenonemon isn’t restricted to Canada’s top court. In an article about a talk delivered by judges of the U.S. Second Circuit Court of Appeals published in the New York Times last month, Chief Judge Dennis G. Jacobs was quoted as saying “I haven’t opened up a law review in years. No one speaks of them. No one relies on them.” Another judge “pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.” According to Judge Reena Raggi, “If the academy does want to change the world, it does need to be part of the world.” Perhaps an open discussion of this sort here in Canada with our appellate and top court judges could help illuminate the puzzle.

  3.               David Cheifetz

     

    The plaint that the journals don’t exist is, with respect, a crock, at least for Canada. It’s also a crock for the UK, but we don’t have to go there.

    In the areas that I read, regularly, Canada has at least 2 wonderful Canadian journals filled with pieces by practising lawyers, academic lawyers, and judges which are “about actual cases and doctrines, in quick, plain and accessible articles.” One is called the Advocates’ Quarterly and the other the Canadian Business Law Journal. The same can be said about the Supreme Court Law Review – because even if the articles are longer, there subsections are shorter, with nice, bold, block headings for subsection titles. The newer Annual Review of Civil Litigation is another must read.

    So, at least in Canada, if the judges can’t find something accessible enough to read in the time they have to write the judgment, maybe their clerks aren’t looking in the right places. Why that might be so is an entirely different question.

    As to the sort of open discussion you mention? It’s my belief that there’s an ongoing dialogue between the academy and the bench, even if it isn’t exactly in the open. In Canada, for example, we have the
    National Judicial Institute which is continuously arranging CLE for judges and asking professors and other lawyer types to lecture. (They haven’t asked me yet. That’s either good judgment or bad. I’ll let others decide.) Whether the bench is listening, and to whom, is also an entirely different question.

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