Dwight Newman, QC, BA, JD, BCL, MPhil, DPhil, Professor of Law & Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan
Accusations of irresponsible scholarship are a serious matter, and they have an even graver dimension when they give the appearance of being framed and timed so as to attempt to interfere with academic contributions to a major public debate. In this post, I address a recent paper by Stepan Wood, Meinhard Doelle, and Dayna Scott attempting to challenge my well-known carbon tax article. I must express serious concerns with their characterization of my article. I must also express that the publication of their paper threatens academic discourse through the intimidating effects it could have on scholars.
I explain these points here and am grateful for the opportunity to be able to publish a response promptly. The Dalhousie Law Journal declined to grant me the opportunity to publish a reply alongside the paper in their forthcoming issue.
In 2019, I participated in what was pitched to me as a “duelling-articles debate” in the Saskatchewan Law Review after the Saskatchewan Court of Appeal’s decision in the carbon tax case. For my contribution, I published a 6000-word article arguing that the carbon tax faced more constitutional obstacles than many had initially expected. This was an argument about constitutional law—I am on record elsewhere as regretting that the federal government undertook a constitutionally problematic design for its carbon tax, as I am supportive of environmental policies that could include properly designed carbon taxes. Constitutions are not mere debris to be run over on the road of public policy but must be respected as the rules of the road.
Last week, Professor Stepan Wood of the UBC Faculty of Law tweeted out his co-authored August 2020 Centre for Law & The Environment working paper (released in a paper series edited by Professor Wood) that is now also a forthcoming article in the Dalhousie Law Journal. While aspects of that article frame it as an intellectual discussion on standards of responsible scholarship, (and it is somewhat longer than my own article), it is nonetheless focused almost entirely on my article.
Both the conclusion of the paper and Professor Wood’s subsequent tweets confirm that he aimed to publish it before the Supreme Court of Canada hearing in which my article might be discussed, seemingly to try to discourage the Court from drawing upon my work by arguing that it was “irresponsible” research. I do believe that the paper Wood tweeted out fulfilled what it set out to do and unfortunately does not contribute in any positive way to legal academic discourse. The Wood, Doelle, and Scott (Wood/Doelle/Scott) paper paints what are reasonable scholarly points as irresponsible research, but it does so by pulling much of what I said out of context and inaccurately. I will mention just some examples here:
- On p 6, Wood/Doelle/Scott suggest that I must not have read beyond the title of an article in interpreting the author as having hoped for changes in the constitution to accommodate climate change policy. As it turns out, I had read not only the title but the article itself, as would be apparent in the fact that I engage with legal arguments contained in that article. On the point at issue, that other scholar’s article has multiple passages referring to the need to adapt the interpretation of the constitution in light of new realities, which I am free to refer to as arguments for constitutional change.
- On pp 6-7, Wood/Doelle/Scott inaccurately say that I “complain” of “incoherence” in a scholar’s work where I made no such claim.
- On p 7, Wood/Doelle/Scott suggest I should have read a particular article. I actually discussed that very article and showed how it had problems in its understanding of the relationship between the legal doctrines of POGG and interjurisdictional immunity.
- On pp 7-9, Wood/Doelle/Scott object to my characterization of an elitist strand in some environmental law scholarship. I cited an article on regulatory capture (and actually did not challenge the part of the article on regulatory capture, as Wood/Doelle/Scott imply I did), and that article concludes with a three-page discussion of how academics can take a larger role in guiding the democratic process on environmental issues. Some may think that a good idea or even a conventional one. I simply identify its elitist dimension in a footnote that bears on the context for argument about the carbon tax. I use accessible terms, but my footnotes make very clear that there are scholarly works that readers can consult further.
- On p 9, when I discussed a number of popular media pieces asserting Saskatchewan’s carbon tax litigation had no chance, Wood/Doelle/Scott say that I incorrectly interpreted the reference of the pronoun “we” in one of these pieces. Wood/Doelle/Scott say that “we” referred to all Canadians. I had followed the apparent reference of the pronoun “we” in the immediately prior sentence as those litigating on climate change. Wood/Doelle/Scott could be right, but the op ed was ambiguous and was just as consistent with my reading. To use this singular example of a different reading of “we” to claim that I made “distort[ing] statements” about media pieces is absurd.
- The Wood/Doelle/Scott paper also suggests that I am “unfair” to the courts because I provide a “blinkered” account of the case law (p 10). A short article in a duelling-articles debate cannot discuss every authority at length, nor is it meant to do so. Although Wood/Doelle/Scott criticize me for not engaging extensively with the case law in a footnote where I raise the possibility that the national concern branch of POGG is not well grounded in legal precedent, my footnote ends by saying “a full examination of those arguments would exceed the permitted limits for this article”, thus acknowledging that I was simply raising a possible argument that could be considered elsewhere. I do not think any courts are troubled by this.
There are other examples. Given that the Wood/Doelle/Scott paper sought to contribute to discussing the topic of responsible scholarship, it is difficult to see its contribution to that topic when it contains a significant number of errors about my article and what I say.
A good article on responsible scholarship in a legal context could be quite interesting. In their paper, at pp 4-5, Wood/Doelle/Scott link several quotes about norms of responsible scholarship, which might be the start of a discussion. However, they take most of these quotes out of context, without explanation of the fact that they have done so. In their proper contexts, these statements refer to approaches to data in scientific contexts or to internal operations of research teams. Wood/Doelle/Scott apply them without discussion or explanation to treatment of scholarly sources and external scholars. It would be interesting to analyze to what extent the pertinent norms for these contexts do or do not track precisely those other norms. Discussing that would require an intellectual work going beyond what Wood/Doelle/Scott did. In addition to considering the differences in the context of legal research, it would be important to consider the ways in which legal scholars write in a variety of different genres, ranging from more specialized academic contexts to more accessible practitioner-friendly pieces to public-facing pieces. A strong contribution on responsible scholarship would also discuss and compare several different examples rather than focusing solely on one article combined with a few lines about another. The Wood/Doelle/Scott paper falls short on these measures in a number of ways, leading one to ask what the goal really was.
It is one thing to make unconvincing arguments, as happens in both peer-reviewed and non-peer-reviewed work. But it is a serious threat to responsible academic discourse to make mistake-riddled arguments in ways that paint academic interlocutors as personally irresponsible and lacking integrity. Obviously, I agree entirely that responsible research practices facilitate good research and the contribution that academia can make to society. However, purporting to adjudicate responsible academic discourse in the way that Wood/Doelle/Scott did sets a horrible precedent. A scholar who makes an argument, popular or unpopular, should be able to do so without lightly being called irresponsible. Other scholars who have seen events unfolding even in this one instance might well feel intimidated from participating in academic discourse by the prospect that they will face attacks not just on their ideas but on their integrity.