On Writing For Law Reviews

One of the potential banes of writing for some Canadian law school law reviews and most American law school law reviews is the student editors. It’s not only the mostly unknown contributors who face having their paper rewritten by the assigned editor(s) for style and content, often extensively and heavy-handedly. (It’s well worth asking why it is the editors think they know better than the author, where the change isn’t merely one of citation form.) Even the academic elite sometimes face that problem; even when they’ve submitted an article they were asked to write for the review. At a talk in Oxford, yesterday, about HLA Hart, one of the (now and then eminent) speakers recounted his horror story. His solution? Tell the professor who was ultimately responsible for the review, and the student’s activities, that, in the circumstances, the speaker felt obliged to withdraw the article.

You can guess what happened: the professor promptly instructed the student editor(s) to reverse their changes. They were.

I’ve had that experience, too – I suppose it’s inevitable if one submits often enough – but, fortunately, with the same end result. I suspect, too, for somewhat the same reason. I’d been asked to write an article for the review. I told the supervising professor that, with regret, I would have to withdraw the article etc. and with limited exceptions the changes were reversed. One of the series of changes that was reversed was the editor’s decision that all of my “I [verb]” phrases  would be changed to a format that I call the “third person impersonal pompous jackass”; that is, “the writer submits”. (The writer wonders if the editor wears wingtip collars and starches his linen shorts.)

In any event, given the proclivities of some student editors, I wonder what the heavy-handed type would have done with this case comment. It exists; albeit in a commercial law journal which may no longer be published. If it’s not, the demise isn’t related to the article.

The Kundeus Caper

To the highest Court in Canada went the accused and Her Majesty;
He’d thought to sell some mescaline, instead it was LSD.
The accused by name Kundeus received a doubled start;
Not only did he not have the drug, he was selling to a narc.
So the police in British Columbia out by the western sea,
Because there was no mescaline charged him with trafficking in LSD.
Mens rea was the issue, the judge had pointed out,
Then found Kundeus guilty beyond any reasonable doubt.

So to the Supreme Court of Canada, the players had to go
To find out who had erred in law among the courts below.
For Kundeus had appealed and to the Crown’s chagrin
The British Columbia Court of Appeal set aside the conviction.
The issue for the Court to face, including Laskin, C.J.C., was:
Could a man who thought he’d sold mescaline intend to traffic in LSD?

The story of Kundeus may bring to mind
Prince’s case (I’ll set out with some tact)
A reprise of the law contained in that case:
Prince had pleaded mistake of fact.
You may recall the problem, the girl wasn’t fourteen,
In truth she was younger than she claimed to have been.
It was that line of argument that Kundeus tried
‘Though for Prince the defence was harshly denied.
But there was a variation, here, upon the theme
Of facts not being as was assumed they’d be
And it wasn’t a case of the Beaver line, you see,
The act Kundeus intended was also a crime.

The majority’s judgment, by de Grandpre, J.,
Contains a curious lapse.
It is not clear whether he found mens rea
Or reconstrued the facts.
And though the majority’s judgment
Convicts the felon K
The law has ever since puzzled over
The reasons of de Grandpre, J.

The Chief Justice, he dissented,
He took a different tack
And held he would acquit the man
on the basis of mistake of fact.
And in upholding the acquittal,
His brothers in dissent
Would not have followed Prince’s case,
Nor transferred the intent.

Alas! the case exposes the bind the courts were in
Kundeus was a rogue still the charge should have been
Trafficking in mescaline.
So I end on this small matter of some uncertainty:
What was the relevance of Kundeus’ intent
When he sold the LSD?

(David Cheifetz — 1976, revised 1994.)

Yup, I wrote it. The published version uses some archaic language, in places, to help the scansion. Those of you with a (wasted) education in North American poetry may be able to tell what poem I was copying from the rhythm to this piece.

Given the 1976 date, I probably wrote at least some of it during one of the bar admission course I attended. I don’t have a paper copy of the journal any more. It was long discarded. However, the journal has been saved electronically. I was able to locate the published version through the wonders of modern technology. The publication date was in 1977, some time after my call in April.

This is the published version (for those of you who need to get your digestion moving in the morning).

 

To the highest court in all the land
Came the accused and Her Majesty,
He’d thought to sell some mescaline
Instead ’twas L.S.D.
The accused by name Kundeus
Received a doubled start
Not only did he mistake the drug
He sold it to a narc.

The police in British Columbia
Out by the western sea
Because there was no mescaline
Charged trafficking L.S.D.
Mens rea was the issue
The trial judge pointed out
And held Kundeus guilty
Beyond a reasonable doubt.

So to the Supreme Court of Canada
The parties all did go
To find out who had erred in law
Among the courts below,
For Kundeus had appealed
And to the Crown’s chagrin
The British Columbia Court of Appeal
Set aside the conviction.
The issue for the Court’s review
Including Laskin C.J.C.,
Was could a man who thought he’d sold mescaline
Be trafficking L.S.D.?

The trial of Kundeus may bring to mind
The tale of Prince and his unfortunate act,
A reprise of the law contained in that case:
Prince had pleaded mistake of fact.
(You’ll recall the problem, a girl not fourteen
Who sadly was younger than she said she’d been),
‘Twas that type of argument Kundeus tried
Though for Prince that defence was roundly denied.
But ’twas a variation here upon the theme
Of facts not being as was thought they’d been,
Not quite a case of the Beaver line
The act K intended was also a crime.

The majority judgment of Grandpr6, J.
Contains a curious lapse,
‘Tis unclear whether he found mens rea
Or reconstrued the facts.
And though the majority judgment
Convicts defendant K,
The courts will long be puzzled by
The reasons of Grandpr6, J.

Chief Justice Laskin dissenting
He took a different tack,
Deciding that he would acquit
On K’s mistake of fact.
And in upholding the acquittal
The judges in dissent
Would not have followed Prince’s case
Nor transferred the intent.

Alas, the dissent exposes
The bind the courts were in,
K was a rogue but the charge should have been
Attempting to sell mescaline.
So to end on this small matter
Of some uncertainty,
What was the relevance of K’s intent
When he sold the L.S.D.?

DC

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