What Are Supreme Court Justices Reading?

Slaw’s very own Simon Fodden has an item today in The Court (Osgoode Hall Law School) that analyzes the “Authors Cited” sections of Supreme Court of Canada judgments for 2006.

Entitled What is the Supreme Court Reading?, the article states that the analysis “reveals a meagre and mundane stock of stimulation, heavy on textbooks and light on theory”.

Ouch!

Fodden adds: “I assume that the great bulk of references in decisions originate in parties’ factums and do not represent independent research by the judges”.

Blame the lawyers. Sounds good to me. Don’t want to antagonize the bench too openly, now. :)

On a more serious note, Fodden does provide an interesting breakdown:

  • 206 separate works were cited, but only 47 (23%) were from academic or professional journals
  • “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.”
  • “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)”.
  • “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”.
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Comments

  1. One might suggest that evidence can quite readily be found suggestiing that the issue is at least what the SCC choses to cite, not what was cited to it.

    Or, cutting to the chase, wouldn’t the better way to decide whose to “blame” for this aridity be to compare what’s in the factums with what’s in the reasons? Now, if we could just convince the SCC to make the facta available via the ‘Net …

  2. Has anyone noticed that after Claire L’Heureux-Dubé, J.retired, the appetite for doctrine diminished among the court?

    My money would be on R.S. Abella, J to follow her lead.

  3. Simon,

    And La Forest J and Iacobucci J, no?

    My view is that there has certainly been a tendency to shy away from doctrine towards what is often described as better (ahem) “common sense” solutions, at least in the areas that interest me most (insurance, civil obligations, causation etc), and particularly in judgments authored by Major J. Judgments by McLachlin CJ often have the same flavour.

    Good examples of various levels of avoidance of discussions of doctrine – regardless of one’s views on the merits of the result and the separate question of the mertis of the analysis used by the SCC to reach the result – are the SCC’s recent Young v. Bella, [2006] 1 S.C.R. 108, 2006 SCC 3, Childs v. Desormeaux, [2006] 1 S.C.R. 643, 2006, Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, [2006] 1 S.C.R. 744, 2006 SCC 21 SCC 18 and most recently Resurfice v Hanke 2007 SCC 7.

    Resurfice has what will, no doubt, become a classic statement summary of how to avoid all discussions of doctrine: “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.”

    Compare the Resurfice reasons to the House of Lords decisions in Barker v Corus UK Ltd., [2006] 2 A.C. 572; Fairchild v. Glenhaven Funeral Services Ltd., [2003] 1 A.C. 32; Chester v. Afshar, [2005] 1 A.C. 134; Gregg v. Scott, [2005] 2 A.C. 176. While it is true that, given how it had decided Resurfice, the SCC didn’t have to decide the issue upon which it chose to offer some general principles, it’s also true that, having chosen to do so, it should have been done better.

    On the other hand, it’s nonetheless true the Court has also provided more billable work for lawyers, which at least some us here will consider a “good thing”. (And more opportunity for more spilled ink, which I shall be doing in due course. I leave it to others to decide how much of a “good thing” that is.)

    Regards,

    David