This is a small parable for you 3Ls out there (and for that matter the rest of you 1Ls and 2Ls, too.
Law isn't "rocket surgery" - a term coined (as far as I know) by a good friend's then 7 or 8 year old child. That means that if you're looking for an answer to a problem, and have what you think is a "Eureka" moment, a "light bulb" moment, an epiphany on your personal path to Damascus moment, odds are somebody else, somewhere, has already had that moment, or something similar enough that it it doesn't matter. And, odds are that somebody else has, too, and examined that moment and realized that maybe there was something else floating in the water - sticking to one metaphor - that weakens, maybe even destroys, or at least provides a defensible contrary answer.
Now, once upon a time, in the last millennium, when the Internet did not exist, and people had to rely on paper and word of mouth to spread ideas, memes, and other contagions, it was more likely than it is now that you'd not find out about those other Eureka moments unless, by some coincidence, you happened to know somebody who knew somebody etc (not related to Kevin Bacon).
Now, however, we have the Internet and online databases. That means any computer literate child, with the means of accessing the Internet, has a wealth of information at his or her disposal.
That means that you, the 1L, 2L, 3L, even the recently (enough) graduated type now slaving at his or her articling position - say clerking for a judge? - have tool for to use to acquire information that some of your predecessors would have killed (metaphorically speaking, of course) for.
You have databases of caselaw and non-case scholarship, much of which is available for free. If you are in law school or working for a law firm, or a gov't institution, much of what isn't available for free is also available to you. Some of these databases may well contain the sort of information that once, for any number of reasons, might never have spread beyond the locale of its progenitor(s).
All of these databases are searchable by brute force techniques. Enter (by whatever method you are using) a word or phrase or three into the search screen, send the search command by whatever method you are using to send the command, and wait to see what comes back.
What comes back will sometimes by the 2nd G in GIGO. Sometimes what comes back will be more useful. If you are an academic lawyer, not working to a publisher's, or other deadline, you can keep keep digging for as long as you want. But what if you are a judge, or somebody researching for a judge. You have a deadline. It's the time within you are supposed to render your decision. Most judicial systems have internal rules that that tell their judges how much time the judge has to ponder the better result. In addition, you also know that it's a far far better thing to not allow your reserves to pile up. It's not (I'm told) a guillotine-worthy offence, but it's bad form. So, how many rocks will you keep looking under to see if maybe, just maybe, that Eureka moment you thought you had, or that your clerk thought he or she found for you, was actually iron pyrite?
All of this gets me to my point (at last, for some of you). There is a very recent decision of the British Columbia Court of Appeal: Clements (Litigation Guardian of) v. Clements (2010) BCCA 581. Somebody, either one of the judges on the BCCA panel, or a research lawyer (or articling law student) found, somehow, a soon to be published (but not yet final) law review article (by an Ontario law professor, but that's neither here nor there) that the panel thought very helpful. It's more likely than not that that somebody found that article on the Legal Scholarship Network part of SSRN. He or she should be commended for that. (SSRN is free).
The BCCA judges made extensive use of the contents of that article, certainly at least to justify the conclusion they conclusion they came to. (The plaintiff lost. She'd won at trial.). If somebody had done just a bit more research, they'd have found another article, already in a published journal, which, even if didn't lead the judges to a different result, should have made them consider whether to use the first article as they did; or, at least, they'd have had to acknowledge there were published contrary views. However, this article isn't on SSRN. It's behind a "pay wall" but that shouldn't have been a problem for a judicial researcher, since it's a major legal publisher's "pay wall". That article, M. H. Tse, “Tests for Factual Causation: Unravelling the Mystery of Material Contribution, Contribution to Risk, the Robust and Pragmatic Approach and the Inference of Causation”(2008), 16 Torts Law Journal 249 says some things about proof of factual causation which might have led the BCCA to reconsider. Or not. But it would have had to have been acknowledged. (Ms. Tse is an Ontario lawyer. That, too, is neither here nor there.)
Now, the "Torts Law Journal" happens to be an Australian law journal - and a very good one at that - but that it's Australian shouldn't have been a problem. (See Internet, reach, scope of).
It's not as if Ms. Tse's article has gone completely unnoticed in the legal universe. First, it was published in a very reputable journal. (Right, I said that.) Second, it's on the web site of a major law publisher. (LexisNexis). Third, it has been mentioned in at least one published Canadian article (ok, by yet another member of the Ontario branch of the legal profession but that, too, is neither here nor there. Other than that it's at least part of the reason that I know about it.) That mention was in series which, at least in the abstract, should be well-known even in British Columbia: the annual Special Lecture series of the Law Society of Upper Canada. (Yeah, yet another Ontario connection but let's ignore that, too.) That article? Yours truly's "Tales of Sound and Fury: Factual Causation in Tort After Resurfice" 2008 LSUC Special Lectures (Irwin Law, 2009), 201 at footnote 106.
Ms Tse's thesis - I think she's wrong but so what, for present purposes - is that Resurfice should be understood to have said absolutely nothing at all about the Athey material-contribution test: that that test still exists. Ask yourself this question: if Ms. Tse is correct, shouldn't the plaintiff have won? Or, try the question this way. If Resurfice had not occurred - ignoring what the Alberta Court of Appeal said about material-contribution - doesn't it seem likely that the manner in which Canadian judges were using the Athey material-contribution would have favoured Ms. Clements?
I suppose that some inquiring minds would like to know. I suspect that leave to appeal to the SCC will be sought in Clements. Maybe we'll be told by those who are infallible because they're final (well ... at least until they overrule themselves or a legislature acting within its constitutional authority speaks.)
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