Did She Mention My Name?: Citation of Academic Authority by the Supreme Court of Canada, 1985-1990

Readers of court judgments will have observed that in the course of expressing reasons for the decisions they reach, judges commonly refer to books and articles written by academics. This is not surprising. Many scholarly publications contain information, arguments and opinions pertinent to the choices that judges must make, and lawyers commonly refer to such works in the written and oral arguments they present to courts. We would therefore expect the judges who must assess and respond to such arguments to make mention of that scholarly material. Moreover a certain portion of academic writing-in particular, a preponderance of law review articles-is written as more or less direct exhortation tojudges about how to decide cases expected to come before them.1 Possibly this is no more than a rhetorical stance, for it may be that law professors are really writing to other law professors (or to no one), and that the practice of pretending to talk to appellate courts is simply a stylistic device which they ritualistically, perhaps unthinkingly, adopt. But presumably some portion of the writing that legal scholars ostensibly direct at judges is actually intended to be read by them and to influence the decisions they make. In any event, given the amount of writing couched as advice to judges, the amount of writing on legal matters generally, and lawyers\u27 practice of citing such material in argument, it comes as no shock to see that judges make reference to academic publications in their judgments