1

I remember reading this somewhere, and I'll update this post if I find the book, but aren't you supposed to cite primary law like cases and legislation first? Even if written by judges or jurisprudes, law textbooks aren't authoritative. Is the author wrong to cite Clerk & Lindsell on Torts on the general four elements of negligence? The library is closed, but I'm certain there must be some leading UKHL or UKSC that dictated the general four elements of negligence.

      To establish liability in negligence, a claimant must prove the existence of a duty of care, the breach of that duty, causation and damages. These elements are found in virtually every case and treatise on tort, so you can provide support for this proposition by citing to Clerk & Lindsell on Torts, for example, or a seminal case on each point (for example, *The Wagon Mound (No 2)*8 for causation).

8 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617.

Stacie Strong. BA English literature (UC Davis 1986), MPW (USC 1990), JD (Duke 1994), PhD Law (Cambridge 2002), DPhil (Oxford 2003). How to Write Law Essays & Exams 5th Edition (2018). p 73.

enter image description here

Improve this question
1
  • Textbooks are often a better source for basic, well-established points of common law such as this. The old case law is usually diffuse and difficult to read, and the new case law tends to take the basic principles as given and focus on what is controversial. – sjy Dec 6 '20 at 0:00
3

The author of a text or essay may cite in whatever order s/he thinks best. It m,ay be that a basic text gives a better and clearer overview than any actual case, and so is worth citing first. It is true that actual case law is often more authoritative than a statute, and cases and statutes are normally more authoritative than any text or essay, but there is no rule binding on an author to cite in any particular order, although citing the actual law first may be the common practice. When writing a brief or a court decision there may be standards of citation that are enforced.

Improve this answer
2

This is an academic essay; not a legal argument

The things that a law student would cite from a textbook are so fundamental and non-controversial as to mostly “go without saying”. Between plaintiff, defendant and judge this would be such background knowledge that it might not even be mentioned, let alone cited.

Improve this answer

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.