Recent lack of civility legal in scholarship troubling and embarrassing
Law students are often imbued with the premise that reputation and civility are everything in law. In some cases, legal academics fail to live up to that standard.
A recent publication demonstrates such a failure. An August 2020 working paper by Stephan Wood (a professor at Allard School of Law, University of British Columbia), Meinhard Doelle (a professor at Schulich School of Law. Dalhousie University) and Dayna Scott (an associate professor at Osgoode Hall Law School, York University) is a particularly jarring example.
The paper, entitled “Responsible Scholarship in a Crisis: A Plea for Fairness in Academic Discourse on the Carbon Pricing References,” is slated for publication in the 43rd volume of the Dalhousie Law Journal.
The article in question is in response to another article entitled “Federalism, Subsidiarity, and Carbon Taxes” written by Professor Dwight Newman at the College of Law, University of Saskatchewan.
Both articles deal with the constitutionality of the federal carbon tax. The Newman article suggests the tax cannot be constitutional under the federal “Peace, Order, and Good Government” head of power, while the Wood, Nadine and Scott article criticizes Newman’s reasoning.
The issue with the Wood, Nadine, and Scott article arises in the way it is framed. Rather than simply criticizing Newman’s argument on its merits, the article accuses Newman of “distorting the published work of scholars with whom he disagrees, […] portraying them in derogatory terms. […] and selectively presenting the relevant case law to suit his purposes.”
“We take no issue here with the substance of Professor Newman’s criticism of the Saskatchewan and Ontario GHG pricing reference decisions,” the authors claim.
In reality, the majority of the authors’ criticisms are substantive disagreements with Newman’s argument.
The only distortions the authors actually cite are a few sharp quips in Newman’s article. For example, the authors disapprove of Newman’s mention of the activist-sounding title of Professor Chalifour’s article1 and his characterization of other authors as “these sorts of environmental law academics.”
These are valid criticisms, but if so Newman is guilty of nothing more than some ill-advised rhetorical flourish. That hardly rises to the level of irresponsible scholarship which could undermine his conclusion.
The remainder of the authors’ criticisms of Newman’s article amount to substantive criticisms of his reasoning and use of the case law.
The fact that the authors’ criticism are mainly substantive begs an obvious question: why did they not simply criticize Newman’s article on its merits rather than accusing him of irresponsible scholarship? If the authors didn’t like Newman’s conclusion, they should have just said so rather than trying to present substantive criticisms as attacks on Newman’s credibility.
To be clear, Newman’s article itself is no model of civility and poise. It aims squarely at academics authors (Nathalie Chalifour and Jason MacLean) and makes its fair share of unbecoming statements.2 However, these unbecoming quips constitute a small part of Newman’s article and do not undermine his conclusions. The substance of Newman’s analysis is doctrinal and does not rely on his views on Chalifour and Maclean.
The authors may not like Newman’s tone, but their peer-reviewed version of a hit-piece does nothing but make the situation worse. Rather than responding directly to what they obviously view as a faulty argument, their article attempts to impugn Newman’s personal credibility.
If the authors of the working paper actually practiced what they preached, they would respond to Newman’s arguments directly, and on its merits. Attempting to dress up substantive criticisms as undermining another professor’s credibility is itself a form of irresponsible scholarship.
Ironically, the working paper states that “ad hominem attacks against other researchers are also inconsistent with the principles that everyone directly affected or involved in research should be treated fairly and with respect.”
That is quite the claim for a paper which attempts to impugn the credibility of an author rather than responding to his ideas. That, one might recall, is the definition of ad hominem.
1Specifically, Newman said: “While climate change policy is an immensely important area for governments, that context does not change the Constitution. Some might wish that it did-for example, Chalifour has published under such titles as ‘Making Federalism Work for Climate Change.”
2For example, the article claims “environmental advocates like Chalifour and MacLean have a tendency to write in overly narrow ways.”
An initial version of this article was published on October 28, 2020 on issuu.com
