THE USE OF AUTHORITY: CITATION PATTERNS IN THE ENGLISH COURTS

Publication Date01 Apr 1990
Pages287-317
DOIhttps://doi.org/10.1108/eb026862
AuthorPETER CLINCH
SubjectInformation & knowledge management,Library & information science
THE
Journal of Documentation
VOLUME 46 NUMBER 4 DECEMBER 1990
THE USE OF AUTHORITY:
CITATION PATTERNS IN THE ENGLISH COURTS
PETER CLINCH
Library and Learning Resources Service
Lancashire
Polytechnic,
Preston,
Lancashire,
PR1 2TQ
The use of law reports
as
a source for data on citation patterns in the courts of
law has
been pioneered in the United
States
and
to
some extent
in
Canada.
Very
little work has been undertaken within the English legal system until now. The
difficulties faced are noted: the complexity of the court structures and the law
reporting system, but above all the limitations of using law reports rather than
the original
case
transcripts which are difficult
to
obtain.
A citation
file
was built
from the citations included in all the issues of
fifty-eight
different law report
titles issued during 1985. Since there is a degree of duplication in coverage of
cases between the law report publications,
5,260
versions of 2,451 unique cases
were discovered, yielding
a
file of
25,868
citations (excluding those
to
statutory
materials).
The
file
was
reduced to
11,159
citations (excluding those
to
statutory
materials) by selecting only the longest versions, according to the number of
words, of each of the 2,451 cases. Analyses are presented on the general
characteristics of the citation
file
(the proportion of citations to each of twenty-
four different material types), the frequency of citation to statutory materials,
case law and other materials (each cross-tabulated by citing court, subject
matter of the citing case and, except for statutory materials, whether the
citation occurred in argument by counsel only or in
the
judgement).
For case
law only further analyses were performed to identify the jurisdiction of cited
cases,
self citation practice by different
courts,
the ageing of authority, the law
report titles from which cited
cases were
taken,
the use
of unreported
cases,
and
the occurrence of cases without citations to earlier case law.
1.
INTRODUCTION
THE LAW COMPRISES RULES made by Parliament and the courts. In
attempting to resolve conflicts brought before the courts, counsel select from
Journal
of
Documentation,
Vol.46, No. 4, December
1990,
pp. 287-317.
287
JOURNAL OF DOCUMENTATION Vol. 46, no. 4
the body of rules and earlier interpretations those which support the authority
of their view and that of their client. Judges select from the authorities those
which are considered applicable and legitimate to the resolution of the case to
be decided, and so, in turn, legitimise the source of authority used, making
citation of it in the future more likely and its authority increased. Legal
scholars seek patterns and connections in the use of authorities by the courts
as an indication of the process of judicial decision making (see especially
Merryman
[1]
whose study of the California Supreme Court initiated interest
in court citation studies in the United States). More recently the designers of
computerised legal information retrieval systems have shown interest in
citation practice and the results of citation analyses, to assess the validity of
the use of citations as a means of information retrieval, as well as to provide
parameters for the content of the systems. Interest has focussed on several
areas including
the use
of older material or 'decay'
in
citation,
so
that a balance
might be struck between user requirements and financial, economic and
technological constraints of system design (see Tapper [2, p. 106] and [3, p.
662]).
Citation analysis involves the collection of data which link the decision in
which materials
are
cited (the
citing decision)
with the materials cited (the
cited
decision).
The accumulation of data on large numbers of
these links
provides
a
comprehensive
view
of information
use.
The technique
has
been used since the
1920s to analyse scientific information but Merryman's work in 1954 is the
first in law, and was followed in the United States by Landes and Posner
[4],
Merryman
[5],
Friedman et
al.
[6]
and Bobinski
[7]
to name just a selection. In
Canada, Rees-Potter
[8]
carried out a study for the Canadian Law Informa-
tion
Council.
However
in
Britain, apart from Diamond's
1968
study
[9],
which
was narrowly drawn and formed part of a wider study of
the
likely impact of
codification on a part of the common law, no work has been carried out.
The article which follows reports
the
results of an analysis of citations found
in the 2,451 judgements of the courts and tribunals of England and Wales
uniquely published, or as lawyers say, reported, in
fifty-eight
law report titles
issued during
1985.
This analysis forms a part of
a
much wider study of the law
reporting information system in England and Wales
[10].
With the sole aim of
brevity and readability, but out of no disrespect for Welsh readers, all
references to England should be read to include the Principality also.
2.
THE SETTING FOR THE CITATION ANALYSIS
Before describing
the
methodology and results it
is
necessary to sketch, for the
benefit of those not familiar with the English legal system, two features which
have influenced the context of the study: (a) the structure of
the
courts from
which the judgements containing the citations were drawn, and
(b)
the nature
of the law reporting system and the documents from which the data were
collected.
288

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