[the parable continues]
I first typed legal scholarship, but good scholarship is good scholarship, right? It shouldn't matter whether it's "legal" scholarship or choosing another area, history scholarship (chosen simply because I happen to know at least one excellent scholar in that area - something to do with the genetics, no doubt).
For most of us, maybe all of us, good scholarship requires adequate research. (Defining adequate may be the same as defining "obscenity"; however, let's assume for present purposes that there is a useful definition of adequate that we could agree on, even if I don't provide it.)
Most levels of the civil Canadian judiciary (maybe all - other than whatever name the civil Small Claim Courts use - I haven't checked; I'm not certain what the situation is on the "lower" levels on the criminal side) have "clerking" programs. A clerking program - for the non-lawyers reading this - is an opportunity for recently-graduated (from law school) holders of a piece of faux parchment (inscribed with the qualifying letters in the appropriate language) to work with a judge or judges of a court. For example The Supreme Court of Canada's clerking programme states, under "Qualifications", "Bachelor of Laws or Juris Doctor from a recognized Canadian university or its equivalent" - these are the minimal requirements - and under "Duties" "A law clerk, under the direction of the Judge for whom the clerk works, shall research points of law, prepare memoranda of law and generally assist the Judge in the work of the Court."
That statement of the "clerk's" duties is, I understand, essentially accurate for clerking programmes across the country. I was never a clerk, so I don't have first-hand knowledge. (Never applied, as it happens, though I have to admit that had I applied the exercise of good judgment ought to have led the intake committee, or person, to quarantine my application.)
Anyway, this too-long buildup brings me back to my point, which now focuses on the research duties of the clerks. One occasionally sees reasons for judgment which contain statements about the law which make one blink. (Okay, in my case more than occasionally, in the area(s) of what some might call my professional "obsession(s)", but let's not go there, either.)
Some of those instances make me wonder if perhaps, just perhaps, some too-bright clerk carrying out his or her research duties, on an issue that has arisen in a particular case, found something that the clerk thought would be helpful to the particular judge(s), and provided it to the judge(s), without adequately understanding what he or she had found. Some readers might consider that the potential for this sort of problem, if it is a problem in the area of judicial decision-making, is exacerbated by the existence of online databases which include pieces that the authors hope will eventually be accepted for publication in a reputable source. The SSRN database - the Social Science Research Network - is one example.
I'll mention two examples that I can easily recall, now. I'm sure that there are other instances I wondered about at the time, and that there are instances that others can point to that I missed completely.
The first is the appearance of the doctrine of "efficient breach" of contract in Bank of America Canada v. Mutual Trust Co., [2002] 2 S.C.R. 601, 2002 SCC 43 although, I concede that in this case perhaps it wasn't a clerk at all but Justice Iacobucci who whispered in Justice Major's ear. The reasons are attributed to Justice Major. The only citation given for the doctrine is Waddam's Law of Damages. Of course, I could answer part of the question for myself if I had looked at the parties' facta before writing this post, but I didn't; not the least because they're not readily accessible (to my knowledge) on any database that I know I have access to.
The second is a more recent instance, mentioned in the first part of this parable: Clements (Litigation Guardian of) v. Clements, 2010 BCCA 581.
There, since I know the author of the work, and I've asked, I know that he has no idea how his SSRN penultimate version of his now published paper got into the hands of the BCCA. It wasn't yet published at the time. It's now in the Dalhousie Law Journal. He, like me, assumes that somebody found it on SSRN. Was it one of the parties? A clerk? Ask yourself whether the Clements reasons read like it was one or the other of the parties who referred the article to the BCCA. Do the reasons even read like the person(s) who found the piece, and those who then used it, adequately understood its context? (It's safe enough for me to pose that question the way I have. I have no reason to assume I will be appearing in front of a real BCCA panel in the immediate future.]
As it happens, the version of the article that was published in the Dalhousie LJ is the version that is on the SSRN with, I expect, whatever fixes were required for typos and syntax issues and the like but no changes in substantive content. But one doesn't see in the reasons any indication that the Court contacted the author of the piece to make certain that the was going to happen. (Maybe somebody did: I haven't asked. I could have, but I didn't.)
In case anybody takes this parable the wrong way: At least some of Canada's best and brightest (lawyers .... hmmm: what does "best" add to "brightest"? Remember my too-bright question?) have been clerks for the Supreme Court of Canada or other levels of the Canadian judiciary and have gone on to stellar careers in the profession. And elsewhere. For the rest? I expect that the only difference is that they're not known to have (had) stellar careers, not known to be exemplars.
