Now I'd like to turn to another issue: that of judicial hubris. You did, after all, raise this in penultimate paragraph of your critique, although you called it "professional hubris".
I take it you point to Alberta v University of Calgary as yet another example, for various reasons, of astonishing judicial hubris - arrogance, of course, but since we're talking about a SCC decision the loftier "hubris" is better - and basic error in principle exemplified by the claim, sometimes made by judges, that the "purifying ordeal" to which judges, trial and appellate, are subjected in the adversarial process presumptively, maybe even necessarily, requires, or at least supports, the following claim. The “purifying ordeal” of the adversarial process makes it more likely that the process of judgment writing will produce an excellent analysis, both procedurally and substantively, and the correct result thus inherently better (that is, more likely to match reality) than the process that most legal academics usually go through before producing "a piece of authorship"; even those published in a well-regarded paper or electronic medium; indeed, even those who subject their papers to workshops at leading Asian, Commonwealth, European, North American and South American universities.
(And the odd high school providing legal education of various types in North York, Ontario, Canada. People involved with Osgoode Hall Law School in the early 1970s may get the reference. The rest of you should ask somebody who does. The context is a speech in which the phrase "best law school in the Commonwealth" or something very close was used. )
The passage below is, I believe, a high mark of that claim; made by a judge of the England and Wales Court of appeal who, by his surname at least, ought to have known better.
The process of [academic] authorship is entirely different from that of judicial decision. The author, no doubt, has the benefit of a broader and comprehensive survey of his chosen subject as a whole, together with a lengthy period of gestation, and intermittent opportunities for reconsideration. But he is exposed to the peril of yielding to preconceptions, and he lacks the advantage of that impact and sharpening of focus which the detailed facts of a particular case bring to the judge. Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case.
See Cordell v. Second Clanfield Properties Ltd.,  2 Ch. 9 (Ch. D.) at 16 per Megarry J.
I quite like the presumptions implicit in the last two sentences if the quotation.
Perhaps, though, Megarry J, writing as he was in "Mother England", had had, at least in the years leading up to these reasons - written some 40 years ago in the last century and millennium and in Chancery - where I'm told that only the best barristers go. I'm just repeating what I've been told - the privilege of a better class of advocates than most judges are accustomed to getting in the former English colonies. Perhaps, on the whole, that's also part of the reason why one still finds judges in the courts of England and Wales, (who, at least arguably based on some complaints I saw in other reasons about more recent, repeated, problems in the quality of the material filed, or aspects of the representation by counsel in particular areas of practice, ought to know better) still citing and quoting the Cordell passage.
Or, perhaps, Megarry J managed to avoid the pleasure of hearing cases poorly argued by counsel who knew even less about the relevant law and the facts of the case than he did. Not all judges manage to avoid this problem. For example, I am aware of a case in which the motion judge listed all of the applicable cases that neither counsel had cited, even the appellate cases deciding the issue for the jurisdiction in which the motion was argued, so wrote, to conclude the reasons: "Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all), neither party is entitled to costs of this motion." (I'll guess you know the judge. You certainly know "of him".)
The motive for the Cordell thesis, can't be, of course, because, let’s assume, the judges are getting some revenge (for perceived or real once-upon-a-time grievances) on their once acquaintances, even school colleagues, who were admitted to Oxford or Cambridge or what is now UCL, or Edinburgh, etc., or stayed on at, for instance, at Oxbridge etc., to become legal academics rather than being forced to attend [pick another law school or university] and so forced to join the working world where they became far wealthier than their former school mates, etc. Can it? I mean, in the Canadian context, just because the judge's high school mate got to go to, say, UBC, or Toronto, or Dalhousie, or Queens, even Vic, and the judge was exiled, to say, that school in the northwest corner of North York, near Pioneer Village (or the place where the top-level tennis tournaments are played), and which a former dean once claimed was "the best law school in the Commonwealth: in response to which wags gleefully pointed out that it arguably wasn't even the best law school in North York. There were high schools offering commercial law for secretaries" courses to students (still mostly women: this was the late 1960s and early 1970s) who had been "streamed" out of the academic streams and into two-year high school streams, so that they'd graduate at the end of grade 10 with skills that would set them up for the rest of their working life.
Anyway, in defence of Canadian legal academics, I should quote these excerpts from the reasons for judgment of the Alberta Court of Appeal in R. v. Kusk, 1999 ABCA 49,  A.J. No. 78. The issue was the propriety of a question put to the accused, who testified in his own defence, in cross-examination at trial. The jury convicted the accused.
 Defence counsel raises this as one of a number of grounds for seeking a new trial. For the most part, the Crown conceded that the cross-examination question was not proper, though Crown counsel wavered somewhat in oral argument.
 In our view, the question is clearly improper, and high authority has said so many times. ... [The reasons list cases starting in 1935 from across Canada.] ... This court in the Brown case called such questioning at best “desperation advocacy”.
 The Crown’s main argument is that this flaw was not bad enough to call for a new trial, and that we should apply the well-known proviso in s. 686 of
the Criminal Code. We have several reasons for firmly rejecting that suggestion here.
 The first is that credibility was so critical in this case. ...
 The second reason not to apply the proviso is that many appellate courts have condemned such cross-examination, especially by prosecutors questioning the accused, since at least 1925. We are not aware of any modern authority allowing it. Yet it keeps happening, as the number of modern decided cases shows. In one province (not Alberta), there are so many appellate decisions condemning the practice, but not ordering a new trial, that one wonders whether the prosecutors there think that it is a matter of “Do as I say, not as I do.” Maybe that is why they keep asking the forbidden question. The practice should stop at once, and there is an obvious way to stop it.
 The third reason is this. Here the Crown prosecutor, instead of checking some law, unrepentantly made this very error the peroration of her address to the jury. It was the last thing which the jury heard from the lawyers. ...
 Fourth, the illegal cross-examination here is dangerous because it is so beguiling, and because it so seamlessly melds many things which should be kept poles apart: ...
 Fifth, the prosecutor’s summation sprung the trap which she had laid in cross-examination by the forbidden question. ...
 To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training.
 We allowed the appeal and ordered a new trial. We promised reasons, which are set out above. ...
I didn't expand the CanLII search to see whether I could find passages, in Canada, making the same "purifying ordeal" assertion but without using the wonderfully evocative "purifying ordeal" phrase in the context in issue. I put what I did that way because (1) I already had the Kusk case and (2) when I went searching in the other LII databases (using WorldLII) I got a hit on reasons which used the "purifying ordeal" of cross-examination to explain why the judge preferred the testimony of one witness over that of another.
For what it's worth, a CanLII search for "purifying ordeal" produces only one instance where a Canadian judge referred explicitly enough to the passage in Cordell for the search algorithm to find it. Astonishingly (at least to me) it was used by a judge who was first, and for a long time, a law professor. I won't mention his name. He is now deceased and, for what it is worth, I can understand why he might have been exasperated enough, in the case before him, to make the comment. Besides, I had him as professor in law school who: (1) I liked; (2) seemed inclined to mark on merit not with a view to being liked by the students and (3), most importantly, gave me, maybe generously, the mark I deserved: a "C".
At least, I think that's what I got in Trusts. I don't think it was higher. If it was, it was only because of the curve.
Also, he wrote a very complimentary letter to me, in about 2000 or 2001, about my by then 20 year-old text Apportionment of Fault in Tort (Canada Law Book, 1981). This can't be seen as self-promotion because the text is long out of print and, curiously, it is seemingly in better odour outside of Ontario than in the province at whose law it was primarily aimed. I'm going to deny that's on the basis of the "familiarity" crack and claim it's due to its age and relative unavailability. At one point, I saw, online, that a used book seller was offering a copy for about $400 Canadian. The original price was $39.99. If I'd been greedy, or in need, I'd have sold one of my few almost pristine copies for $400 and lived with a photocopy for working purposes. The most pristine of the additional copies ended up in a better place. It’s currently residing in a personal library in Ottawa.
This judge also wrote the trial reasons in the decision which sparked my decision to return to academic writing about law in general, and contribution in particular, after what was, with one exception which I couldn't avoid, a Rip van Winkle length absence.
Getting back to the point, my response to the Cordell assertion is that all legal academics know (and all judges, if they are being honest with themselves should admit), that, in principle, academic legal writing is intrinsically capable of being better than judicial authorship because the former is usually subject to the purifying ordeal of workshops (or an equivalent). Judgment writing isn't. If it was, we wouldn't have, or we'd have less instances of, (a) lower court reasons somehow not referring to recent Supreme Court of Canada decisions, or appellate decisions of that jurisdiction, in instances where the judge either didn't now of the case at all because it was recently decided and somehow didn't come to the judge's attention, and (b) the inferior court judge writing and deciding as if the appellate decision had never been; as if the law was the law as it was before that decision, even though the appellate decision was (or appellate decisions were) decided long enough ago that they'd become commonly known and, of course, were mentioned in any number of services, some of which are well-known and free, which provide current-in-time summaries of the decisions of the SCC or provincial or territorial courts of appeal.
Indeed, I'd argue, borrowing and paraphrasing a famous sentence from a far better writer than I am: that it should be a truth universally acknowledged that a legal academic in possession of a good library, an adequate connection to the Internet, adequate wit, and suitable libation, will never be in want of the capacity to write reasons at least as good as those the academic is about to critique. ”Pride and Prejudice” as a phrase, does nicely capture the seeming spirit? motive? rationale? behind the Cordell passage, doesn't it? Academic legal "authorship" and scholarship has the intrinsic capacity to be better than its judicial equivalent because the academic legal scholarship is supposed to be, and should be intended to be, the more complete, hence having the capacity to be better, analysis of the particular issue taking into account all relevant factors; not merely those that judges are permitted to consider, in the particular case, even at the highest court level, by restrictions such as those on admissible evidence and principles of precedent.
In the judicial judgment writing world relevance is not a necessarily a sufficient reason for the judge to consider the significance of a fact to the judge’s otherwise arrived at conclusion. In the academic authorship world, the failure to consider a relevant fact is a always a failure. It may not turn out to a relevant failure; however, that’s good fortune, not planning. It should also cost students some points on their essay marks, assuming the fact is not one of those “bonus” facts which get the student marks if considered but don’t cost the student marks if not.
Finally, at least in the world of academic literature to which I have been exposed, it is consistently not acceptable, absent a very very very good explanation and justification, explicitly and conclusively set out in the academic piece, if (a) the result provided by the academic analysis amounts to a legal fiction which (b) is inconsistent with reality in general, or the facts of the particular case as known to the real world but(c) not officially known to the court; that is, (d) not known in a way that the knowledge could be used, validly, by judge or jury.
On the third hand, when a friend who was bemused by my tendency, when writing for my own enjoyment, to build structures within sentences as well as structures with sentences, and often to go riding off on horses named Tangent, suggested that, rather than complaining about boredom (once I had retired from playing hockey) I should take up writing literary fiction (for money), I pointed out that that was what I'd been doing for the past 25 odd years except that I didn't have to admit it was fiction and I could pretend that it wasn't because it was my job to convince the court it wasn't. And I usually got paid better than most writers of fiction do, if they get paid at all.
I'd also like to believe that my filed briefs where usually literary not just literate. I didn't charge the client, though, for my time at the end of the drafting process if I decided to have some fun and merely make the more than good enough (I thought) but pedestrian English of the document better written English; that is, improve style without necessarily improving content.
I suppose the famous aphorism from Quinn v. Leathem,  A.C. 495 at 506,  UKHL 2 (H.L.) is as appropriate a way as any to begin my conclusion.
[A] case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
After all, as Horton said, more than a half-century ago, “I meant what I said, and I said what I meant.” (Horton Hatches The Egg, Dr. Seuss (1940)). Even if it didn't make sense then and doesn't make sense now; even if I didn't understand it then and can't explain it now because, after all, ordinary, commonsense, doesn't require explanation. That's why it's ordinary, common, sense. (Anonymous, Rhetoric, 2017).
Happy New Year, best wishes to you, your family and all my friends and colleagues (both those whom I once met and may yet meet in the future) for the coming year, and thank you and Moin, again, for allowing me to use your Slaw piece as the platform for this response on the University's blog.
Your friend and colleague,