Friday, June 19, 2009

Supreme Court: scholarship is inappropriate

Just yesterday I happened to be noting Donald Songer's impressive new study of the Supreme Court of Canada. Meanwhile the Supreme Court was moving to stifle a similar study by another academic. "Speak to this guy, you are out of the tribe."

In the last few decades, law clerks have been a valuable source of new information that has revitalized court studies (see Bob Woodward, see Jeffrey Toobin, see Donald Songer -- who interviewed Canadian law clerks for the book I noted yesterday). Their journalism and scholarship has been much to the benefit of the justice system overall.

One would think lawyers would support freedom of information and vigorous scrutiny of institution like courts. So it's discouraging to see the anti-intellectual anti-Americanism of Toronto lawyer and SCC loyalist David Stratas:
This academic in a foreign land, armed with Canadian money, is mass mailing all of us, trying to get us to disclose details about what our judges asked us to do when we worked for them,” Mr. Stratas said.

“What assignments Justice Bertha Wilson gave me to do 25 years ago is trivia of no scholarly value.... It's dubious information of little value and questionable ethics.”
I don't mean there is any obligation on law clerks to disgorge confidential information to any scholar who asks for it. Surely these law clerks, the smartest young lawyers in the country, can figure out for themselves where their ethical obligations lie, without these fatwas being issued.

Should be interesting to see how legal history scholars, many of whom are also lawyers, will respond to this one.

Update, June 22: Jeez, the Globe editorialists agree with me on something.
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