Horrigan, Bryan --- "Reforming Law Reform's Engagement with the Academic Arm of the Legal Profession" [2008] ALRS 3

Last Updated: 7 May 2010

Reforming Law Reform’s Engagement with the Academic Arm of the Legal Profession

By Professor Bryan Horrigan[1] BA, LLB, DPhil (Oxon)

Associate Dean (Research), Division of Law, Macquarie University
Head of the ‘Legal Governance’ Concentration of Research Excellence, Macquarie University
Co-Director, Centre for Comparative Law, History, and Governance, Macquarie University
Consultant, Allens Arthur Robinson

Overview

The global, transnational, and regional landscape surrounding law-making, public policy, and law reform is very different in the first quarter of the 21st century from what it was in the last quarter of the 20th century. Transformations in that landscape include changes in how we view the role of government in the new regulatory state and geopolitical order, enhancement of transnational civil society’s engagement in public policy and regulation, evolution from a state-based system of mandated law to broader systems of governmental and non-governmental regulation, and progression towards recognition and management of shared governance challenges across regions and the globe, which galvanise the collective efforts of governments, business, and civil society. At the same time, the interplay of orientations, perspectives, and roles between the judicial, professional, and academic arms of the legal profession has reached a critical turning point, whose crossing has implications for the academy’s contribution to legal and policy reform as well as the receptivity of the other arms of the legal profession to that contribution.

For the 21st century legal academy, dramatic changes in the political and university environments affecting research are likely to make it harder rather than easier for academic interest and engagement in meaningful law reform activities, unless one or both of two contingencies happen. One contingency is a collective push-back against these political and university trends from governmental lawyers, courts, law reform agencies, and legal professional representative bodies who rely upon the outputs and contributions of legal academics in their own work. The other contingency is a collective move by the legal academy to smarter and more strategic approaches to engagement with law reform and its various players, in managing the multiple and sometimes competing institutional and individual interests that are now in play for legal academic researchers, to contribute to the public good of meaningful legal and policy reform, through different and innovative avenues of engagement.

In the short space and time available to me today, I want to highlight some of these larger themes through the focus of how they impact upon the relationship between the legal academy and law reform from this point onwards. Such a task cannot be approached simply from a national (eg Australian) or even regional (eg South Pacific or even Asia-Pacific) perspective, but must increasingly be approached from a truly global perspective, at least in terms of how global concerns in the 21st century translate to common national and regional concerns for law reform and social justice here in our own backyards.

Lord Denning on Law Reform and the Academy

More than 50 years ago, in a landmark address entitled “The Universities and Law Reform”, Lord Justice Denning opened with a metaphor about society, law, and law reform that still resonates today:[2]

Nowadays most of us have so much to do in our daily tasks we have no time to stand aside and see in proper perspective what is happening about us. Yet we ought to do so: and this is as true in the field of law as in other fields of human activity ... I prefer to regard the people of a country – the society which they form – as a river which is always moving; and the law as the conservator who keeps it in order. Once the law has been sufficiently developed to satisfy the needs of a society, then so long as the social system remains stable, there is no great demand for law reform. The river flows peacefully and slowly. The banks may need occasional repair. The weeds may need cutting sometimes. And that is all. But in the days of great social changes such as the Renaissance and Reformation of the 15th and 16th centuries, or the Industrial Revolution of the 18th and 19th centuries, the law had to develop apace so as to meet the needs of the time. The greater the social revolution, the greater the need of law reform. The river is turbulent and restless and is in danger of getting out of control. The hatches have to be opened. New channels have to be cut. It requires legal statesmanship of the highest order to keep the law abreast of the social changes. If it does not do so, the rule of law itself may be engulfed and flooded out ... We are today in the midst of social changes which are as great as those which I have mentioned ... (L)aw after all is a practical matter – as practical a matter as the making of banks to keep in a river – and if an ounce of practice is not worth a ton of theory it is at least worth a pound of theory.

If Lord Denning could state publicly that things were in so much flux more than 50 years ago, is there any real doubt that we are again in the midst of similarly transformational but remarkably different changes in the relationship between society, law, and law reform? Who can deny, for example, that there is a critical mass of legal and policy challenges confronting all of us in this region, in terms of threats to the rule of law (eg breakdowns in democratic government), tests of the morality of law (eg the rights-infringing limits of counter-terrorism and refugee detention laws), and the common interest in meeting the legal, policy, and regulatory challenges of harmonised transnational business regulation, climate change, and enhancement of universal human rights in the South Pacific and Asia-Pacific regions.

In “The Universities and Law Reform”, Lord Denning also outlines a mid-20th century Anglo-Commonwealth view of the relationship between the academic, practising, and judicial arms of the legal profession, as follows:[3]

The great difference, as I see it, between the work of the Universities and the work of the Inns of Court is that the Inns of Court are primarily concerned with teaching the law is it is today: whereas the Universities are concerned not only with that topic, important as it is, but also with the law as it was in times past; and in addition with the law as it should be. These activities give the Universities much greater influence in the field of law reform than the Inns of Court: but they are a comparative new branch of study ... There are three great branches of legal learning in the Universities all of which have a great part to play in law reform. 1. The law as it was. 2. The law as it is. 3. The law as it should be.

Accordingly, in Lord Denning’s eyes, a common thread runs through law’s past and present on its way to its future through law reform:[4]

There are thus two ways in which the story of the past helps us to see the proper way of reform. One is by detailed research into the development of the law. The other is by setting the old rules against the social background which existed when they were laid down. These two ways should never be used separately but always in combination. The integration cannot be done by the practitioner in daily practice or by the judge who is impressed with the need of “clearing the lists”. It must be done by the Universities and it is being done.

Notwithstanding Denning’s reputation as a great reformer of the common law as a judge, this vision of law reform’s engagement with the legal academy is conventional, incomplete, and still heavily doctrinal in focus, despite its contextualisation of (primary) law against its (secondary) “social background” – which means vastly different things depending upon whether the task is being performed by a positivist and legalistic observer, at one extreme, or a critique-minded scholar, on the other. One pressing issue for law reformers across national boundaries in the northern and southern hemispheres is the reformation of approaches to law reform itself. One important aspect of that reform agenda is the relationship between three arms of the legal profession – namely, law reform professionals (and their governmental superiors), academic lawyers (and their faculties and universities), and legal practitioners (ie law firms, the bar, and the professional bodies that represent them).

The 21st Century Environment for Law Reform

A number of ostensibly disparate and unconnected developments are all converging in their impact upon a reformed approach to the design and operation of law reform. As a result, our conception of legal, regulatory, and policy reform must evolve accordingly. First, even in these early stages of the 21st century, the common law world is reaching a new level of awareness of the limits of an exclusively government-focused and law-based account of regulation and public policy.[5] In particular, an exclusively ‘state-centred’ understanding of law, legal systems, and legal institutions is under threat from a broader and more pluralistic vision of how democratic and civil societies are truly governed and regulated, with multiple networks and orders of socio-ethical, politico-legal, market, and other regulatory norms systemically in play.[6] Secondly, the global public policy, regulatory, and law reform domains now encompass a wide range of governmental and non-governmental participants and influences.

Thirdly, as Professor McCrudden describes, “developments within legal scholarship and developments within the other social sciences mean that the time has never been better for inter-disciplinary research, and increased cross-fertilization”.[7] This important interaction between law and other disciplines in the global academy dovetails with the emerging reality that many of the most pressing international, regional, national, or otherwise shared challenges of public policy, legal regulation, and law reform can only be addressed through the right critical mass and jurisdictional reach of academic cross-disciplinary expertise, working in tandem with other governmental and non-governmental actors across legal, policy, and regulatory domains.

Fourthly, law reform institutions and officials have a role to play as central players in governmental networks for public policy, law reform, and social justice. In her 21st century account of a new world order of “disaggregated” (rather than unitary) nation-states, Professor Anne-Marie Slaughter envisages global governance through the prism of a series of vertical and horizontal government networks, in which national governmental institutions and actors interact through vertical government networks with their supra-national counterparts, while at the same time the governmental actors and bodies associated with the various branches of democratic government interact in various ways through horizontal government networks with their counterparts in other countries. In the law reform context, this translates into a series of vertical government networks in which law reform institutions and actors within each jurisdiction interact in various ways with institutions and actors concerned with law reform and social justice at transnational, regional, and international levels, while also participating in horizontal government networks with their law reform counterparts and associated players from country to country, through shared experience and expertise, common law reform concerns, and mutual agendas (eg harmonization of laws) and needs (eg evidence-based law reform methodology). However, the circle of law reform stakeholders in these vertical and horizontal government networks extends beyond the organs and officials of government, including official law reform agencies. In general terms, Professor Slaughter crystallises the implications for global levels of governance, public policy, and the public interest in the following way:[8]

(T)he self-conscious creation and support of government networks as global governance mechanisms can help mobilise a whole set of transnational actors around them – to interact with them, monitor their activities, provide input into their decision making, and receive information from them. Indeed, to the extent that these transnational networks of NGOs, individuals, corporations, international officials, churches, charities, and voluntary associations can use the information provided to advance their own causes and solve their particular problems in the pursuit of a larger conception of the global public interest, it is possible to imagine the strengthening of a kind of disaggregated global democracy based on individual and group self-governance.

Fifthly, the force of a purely state-centred and ‘command and control’ approach to law-making (and law reform) is predicated upon particular conceptions of majoritarian and representative democracy that do not necessarily represent a complete picture of democracy as it is understood and practised today. Whether grounded alternatively in notions of democracy as a ‘partnership’ between governments and the people,[9] a concept of democratic citizenship guaranteeing citizenship participation in democratic government as well as freedom from unwarranted state interference with liberty,[10] or even a form of ‘republican sovereignty’ that captures sovereignty of the people in ways that transcend national sovereignty, parliamentary sovereignty, and other forms of sovereignty,[11] democratic governance has different normative justifications, paradigmatic manifestations, and systemic features. In Australia, for example, one former Chief Justice of the High Court expressed the view towards the end of the 20th century that our democratic process has evolved “beyond an exclusive emphasis on parliamentary supremacy and majority will” and towards “a notion of responsible government which respects the fundamental rights and dignity of the individual and calls for the observance of procedural fairness in matters affecting the individual”.[12] In 2008, the outcomes of the Governance Stream at Australia’s 2020 Summit focused in part on “the need to strengthen the participation of Australians in their Governance”, through the development of “innovative mechanisms to increase civic participation, collaborative governance to strengthen civic engagement and trust, facilitate ‘deliberative democracy’ and strengthen citizen engagement”.[13]

More recently, just before his elevation to the position of Chief Justice of the High Court of Australia, Justice Robert French spoke publicly of an enhanced idea of Australia’s constitution in terms that seem to invest ultimate democratic constitutional authority in the sovereignty of the people, whose implications in the French era might possibly be explored in ways that go beyond the nascent exploration of related themes of popular sovereignty, implied constitutional rights, constitutional equality, and other judicial innovations from the late 20th century in Australian High Court jurisprudence:[14]

That idea would see [the Australian Constitution] as a text deriving its authority from the people and supporting institutions of government in which all the people have a sense of ownership.

If we are to give true meaning, for example, to a belief in the sovereignty of the people in their engagement with democratic government, what must this mean for a reconceptualised understanding of law reform that itself transcends what any particular government in any particular jurisdiction mandates as a law reform agenda for the government of the day? If, as Justice Stephen Breyer of the US Supreme Court argues in his conception of liberal democracy enshrined in the US Constitution and particularly its Bill of Rights, “liberty means not only freedom from government coercion but also the freedom to participate in the government itself” as an equal participant with institutional power-wielders in democratic government,[15] what (if any) implications does this understanding have for the socialisation of a law reform agenda and set of law reform actors beyond simply elected governments and the law reform bodies to which they refer state-selected law reform priorities? Liberal legal philosopher Professor Ronald Dworkin argues for a similar constitutional vision under a “partnership” rather than “majoritarian” model of democracy, “by insisting that all citizens are entitled to an equal role and voice in their self-government, that government at all levels must treat all citizens with equal concern, and that government must leave individual citizens free to make the personal decisions for themselves that they cannot yield to others without compromising their self-respect”.[16]

Here are just a couple of recent examples of how the internal landscape of legal, policy, and regulatory reform must respond to shifts in the surrounding external landscape, in ways that transcend what any particular government in any particular jurisdiction might choose to refer institutionally for reform-orientated investigation and recommendations in any particular electoral cycle. Under his renewed three-year mandate from the UN Human Rights Council, the United Nations Secretary-General’s Special Representative on Business and Human Rights (Professor John Ruggie, from Harvard University’s JF Kennedy School of Government), has a new research and reform agenda concerning the corporate responsibility to respect human rights, particularly in human rights due diligence in business contexts. This has enormous implications for the reform of business regulation and practice as a global priority, whatever any particular government or law reform agency has on its legal, policy, and regulatory agenda for the immediate future.

Similarly, even if a particular government and its law reform bodies do not see it this way, all jurisdictions with a bill of rights (and other jurisdictions in the common law world too) face the common challenge of the legitimacy and boundaries of internationalization of domestic law and policy, with implications for law reform possibilities as well. The high-profile manifestations of this development occur in transnational controversies about references to international and foreign legal material in national constitutional interpretation,[17] as well as the incorporation of internationalized guides for judicial interpretation of bills of rights by legislatively sanctioned reference to international human rights jurisprudence in those jurisdictions with particular kinds of bills of rights.[18] For the future, there is a broader law reform project in common here, in settling and articulating a cross-jurisdictional framework of principles and guidelines for enshrining and regulating officially sanctioned judicial reference to international human rights jurisprudence for jurisdictions with bills of rights in the common law world, together with an even grander law reform project in mapping and exploring the implications of the different ways in which different parts of international law and policy now interact with different parts of national law and policy.[19] In ongoing work for an Australian Research Council grant on the internationalisation of judicial decision-making, I argue that the judicial dimensions of this grand project must be approached from a multi-dimensional viewpoint of the internationalization of a country’s legal (including judicial) interpretation that is grounded simultaneously and coherently in the interactive concerns of sovereignty, democracy, jurisprudence, and consistency across different departments of doctrinal law.[20]

Bridging the Gap Between the Legal Academy and the Practising Arms of the Legal Profession

The work of engaging legal academics in law reform is predicated upon how different arms of the legal profession view one another and their law reform roles. Despite advances in the notion of law as a discipline worthy of study in its own right and not simply as an instrumental means of servicing the needs of practising lawyers, the rise and prominence of competing jurisprudential approaches to the description and justification of legal systems and their laws, and infusion of law with cross-disciplinary perspectives on both law as a discipline and law’s contribution to major challenges of societal governance and public policy that cannot be addressed through law alone, we are still at the point in these early stages of the 21st century where the courts, legal practitioners, universities, governments, and communities are still at loggerheads over what they want from academic legal research, and unable to come together successfully in either promoting the form of academic legal research that they want or to remove the increasing number of impediments to its attainment. Here, there is much unfinished business, which must be completed to take academic contributions to law reform to a new level. Even in these early stages of the 21st century, there is much work to be done not only in closing the gap to the greatest extent possible between the legal academy and other branches of the legal profession but also in attending to how all of those branches of the legal profession perceive one another and what this means for their respective contributions to the articulation and development of a coherent and consistent (but not necessarily uniform) vision of law reform and social justice for society.

In his landmark address to the Society of Public Teachers of Law, Lord Denning exhibited a much more favourable disposition towards a difference of roles and perspectives between the academic and practising arms of the legal profession than I suspect is held in private and sometimes even expressed publicly by a considerable number of influential members of the legal profession today:[21]:

There is still another field in which there is increasing activity in the Universities. I refer to the science of jurisprudence. This is a subject which the practising lawyer distrusts – at least the English practising lawyer. He distrusts generalities. He prefers to get down to the facts of the particular case – to see whether justice of the case lies and then decide it. This approach may be all very well for the day-two-day-practitioner but not for the judge who is on occasions called upon to make decisions of far-reaching significance. Philosophies of law, like ideologies, do have a great influence. They cannot be ignored. Austin ... regarded the law as a set of rules laid down by the sovereign power that must be obeyed. Hence the tendencies of the analytical jurists to accept the rules of law without regard to whether they are just ... All I know is that the law serves two great ends. One is to keep order. The other is to do justice. Our great task is to fit the law so as to ensure as far as possible justice in our time not only between man and man, but also between man and the State ... The search for an answer - which began at least as early as Plato - still goes on. For the depths - or heights - of the philosophy of law, we turn to you - our teachers - to whom we never turn in vain.

In launching The Oxford Companion to the High Court of Australia in 2002, the then Chief Justice of the Australian High Court (Murray Gleeson) noted the gap between the legal academy and the legal profession in their respective views of the High Court of Australia, in these terms:[22]

One thing that struck me is the gulf that exists between the view of legal institutions and of the Court from within the Universities, and the view from within the practising legal profession. This has often been remarked upon by recent graduates; but it was brought home to me most forcefully by comparing some of the entries in this book. I do not suggest that one point of view is more or less valid than the other. Each side has much to learn from the other. But I wonder if people on either side of the gulf realise how wide and deep it is. It suggests to me the need for some bridge-building.

Former NSW Court of Appeal judge Justice Roderick Magher was a little less charitable in his 1980s description of Australian legal academics as follows:[23]

In the whole of Australia ... there are only one or two academic teachers of any real value in real property, in contracts, or in torts; yet there are about seventeen law schools ... There are, to be sure, multitudes of academic homuncli who scribble and prattle relentlessly about such non-subjects as criminology, bail, poverty, consumerism, computers and racism. These may be dismissed from calculation; they possess neither practical skills nor legal learning. They are failed sociologists.

In his jurisprudentially controversial polemic against judicial activism in a landmark address to a Quadrant dinner shortly before his elevation to the High Court of Australia, Justice Dyson Heydon allocated partial blame for the rise of judicial activism amongst contemporary Australian judges to the legal academics educating them as students in law school, the rise and influence of law reform bodies and their impact upon law and legal reasoning, and judicial trends imported from other countries in the common law world. Justice Heydon identified what he perceived as “a fundamental change in the judiciary” of this generation, with a resultant increase in judicial activism, which he defined as “using judicial power for a purpose other than that for which it was granted, namely doing justice according to law in the particular case” and, in particular, “the furthering of some political moral or social programme” or “a discursive and indecisive meander through various fields of learning for its own sake”.[24] The circle of blame for the rise of judicial activism amongst the contemporary generation of Australian judges in Justice Heydon’s eyes encompasses a long line of suspects:[25]

How did this new class arise? Because its members misunderstood the circumstances of their formative years. A new class arose partly because almost all modern judges were educated in law schools staffed by professional law teachers as distinct from practitioners teaching part-time, and a critical analysis of the merits of legal rules was a significant aspect of that education. It arose partly because of a wider interest in US law, where some authority somewhere can usually be found to support any proposition, and where constantly changing majorities in the Supreme Court tend to generate changing jurisprudence in constitutional cases on the Bill of Rights. It arose partly because law reform commissions have in the last 40 years become a common feature of life here and elsewhere. And it arose partly because since the early 1960s the fashion has been for legal intellectuals to be quarante-huitard, to be dismissive of what they do not fully understand and to think like an editorial in the Guardian newspaper ... Our present state is much less bad than that of the United States, Canada, and New Zealand. But the former condition of things needs to be restored.

In his latest work on judicial adjudication, the prolific and influential Judge Richard Posner concludes in How Judges Think that we are witnessing “the alienation of the elite law professor form legal practice including judging”,[26] not least because of cross-disciplinary inroads from the humanities and social sciences (especially economics) in assessing law’s doctrines, goals, and societal impact, in combination with academic reactions against law as a completely closed system of legal rules and reasoning processes largely immune from other societal values and influences.[27] In Posner’s words:[28]

These challenges to the traditional conception of the law professor’s vocation so far succeeded as to bring about a fundamental change in the character of legal teaching and scholarship and the method of recruitment into academic law. From the challenge mounted by social science came unprecedented emphasis on basing legal scholarship on the insights of other fields, such as economics, philosophy, and history. From the challenge mounted by the left came a reinforcing scepticism about the capacity of the traditional model of legal scholarship to yield cogent answers to legal questions.

The traditional model was largely buried in these twin avalanches, at least in the elite [US] law schools. And with its burial interest in hiring the masters of the traditional skills of lawyer and judge to teach law waned ... The messy work product of judges and legislators requires much tidying up, synthesis, analysis, restatement, and critique ... Though these tasks lack the theoretical ambition of scholarship in more typically academic fields, they are vital to the legal system and of greater social value than much of today’s esoteric interdisciplinary legal scholarship ... It falls to the law professors to clean up after the judges by making explicit in treatises, articles, and restatements the rules implicit in the various lines of cases, identifying outliers, explicating policy grounds, and charting the path of future development. [and] (t)he type of legal scholarship that I am discussing is no longer in vogue at the leading law schools ... Judges sense a widening chasm between the professoriate and the judiciary [and] (i)f as I suspect the route cause is the increased specialisation of academic lawyers the chasm may be unbridgeable.

To these causes Posner adds another one: “The legal academy has been growing apart from the judiciary for a reason I have not yet mentioned – the growth of specialisation in academic law [where] American judges are still generalists, but law professors increasingly are specialists”.[29] This small sample of influential and revealing judicial views might well be the tip of the iceberg. As the gloves come off between judges, legal practitioners, law reform officials, and academics in debate about anything more than doctrinally incremental law reform (and sometimes even then), such faultlines become even more exposed.

If we remain clinging to a largely state-focused account of governance and regulation, a positivistic and legalistic account of law and its normative value, a voluntary and philanthropic vision of the academic and practising legal professions’ commitment to law reform, and a government-driven and institution-based public agenda for law reform, we are more likely to tolerate the confines of law reform efforts that proceed mainly from government-initiated law reform referrals, state-established and jurisdiction-bound law reform bodies, and a legal academy whose presumed primary function is to train the next generation of lawyers in a way that equips them with technical expertise and perhaps even a sense of social justice (but without threatening the established legal, political, and socio-economic orders, and without imparting any politico-legal academic agenda or change agency role to the next generation of practising lawyers).

Law Reform, Legal Education, and Academic Research

In his attempt to unite the world of legal education and law reform earlier this century, in his contribution to the landmark collection of thought-provoking law reform analyses contained in The Promise of Law Reform, Professor Michael Coper from the Australian National University presents two competing missions for university legal education and training:[30]

(L)aw reform and legal education have traditionally been separate worlds; this is not a good thing for either law reform or legal education, or for the legal profession, the discipline of law, or the advancement of society; and these two separate worlds can and should be brought together so that legal education has a conscious and deliberate law reform ethos and focus.

This proposition is contentious and needs to be defended against a counter-proposition: the mission of a modern university is to discover and transmit, neutrally and dispassionately, objective and value-free knowledge, not to promote, directly or indirectly, a particularly point of view program, or ideology. Moreover, it might be added, in the field of education for professional legal practice, lawyers need to know what the law is, not to speculate about what it should or might be.

In his vision of the relationship between the legal academy, practising lawyers, and law reform possibilities, Professor Coper envisages a resolution that merges these two missions, as follows:[31]

The emergence of the idea of legal education as the study of law as an intellectual discipline in its own right has lead to continuing tensions with the idea of legal education as training for professional practice. Yet, in my view, the two conceptions are profoundly consistent. The best and most effective lawyers, in any form of practice, are those with a deep understanding of the law and the legal system; a deep understanding not just of the rules but of their context, their dynamics, their role in society, and their limits; an understanding, in particular, of where the law has come from, as well as an intuition about where it might go.

In his law reform contribution, Professor Coper highlights pragmatic obstacles to a richer experience of legal education that aspires to the highest ideals of law reform and social justice, such as the realities of “knowledge-based requirements for professional accreditation”, “the persistent under-funding of Australian law schools”, and other reasons (to which I would add the present state of academic workloads, the management structures and practices of university corporatism, the bias of governmental research priorities and research funding sources away from public goods that they take for granted (including the large volume of free and voluntary academic work that is contributed towards the business of government, the administration of justice, and the work of law reform), and the cultural resistance of the practising arms of the legal profession to responsibility for making significant contributions to funding and other support for academic research that results in the legal publications, public submissions, and other academic legal work-product upon which the legal profession’s various non-academic arms rely in legal advice, court and tribunal decisions, parliamentary committee reports, law reform discussion papers and reports, and public and representative submissions):[32]

For these and other reasons, legal education in Australian law schools today has not, in my view, reaped the full benefits of the gradual emergence of the study of law as an intellectual discipline in its own right. Generally speaking, the emphasis remains on the law as it is, not as it should or might be. In this respect, the impact of the model of legal education as training for professional practice, has been, and continues to be, enormous, even though to equate the needs of professional practice with a simple knowledge of the law as it is assumes a very narrow view of those needs.

In my own view and practice of what all of this means for the work of individual legal academics, both our teaching and our research must be informed by a seven-pronged framework of levels of analysis that embraces the socio-ethical, jurisprudential, international/comparative, regulatory, doctrinal, practical, and cross-disciplinary dimensions of law. If at least the possibility and balance of such a multi-level understanding and experience of law is not present in everything we teach and research, the capacity for meaningful contribution to law reform is limited accordingly. In addition, law reform and social justice are marginalised to the extent that they are not fully incorporated within such a framework as standard perspectives and objectives.

Moreover, in the new governmental era of assessing university research quality and research impact, all legal academics must increasingly approach their individual and institutional research endeavours with a view to what they must do to meet the needs of a variety of audiences, users, and beneficiaries of academic legal research, including (but not limited to) the academic legal community for whom the vast bulk of legal research is still published (as contributions to a body of knowledge), and with whom judgments of research quality largely rest. Any academic who confines all or even most of their individual research efforts to something that does not also explore ways of engaging with both institutional research needs and those of non-academic audiences too is increasingly likely to find fewer opportunities for career progression, research funding support, and professional and societal support for publicly funded academic legal research. The importance of law reform research must be factored into this equation, and in the right ways.

When Professor Coper committed the ANU law faculty earlier this century to a quest for “what might be the defining characteristics of a law school committed to an ethos of law reform and social justice?”, his law faculty developed a 15-point plan which, amongst its non-curriculum features, included better individual and collective response mechanisms to law reform calls for submissions, inclusion of experts in law reform and social justice in visiting scholar programs, and active awareness-raising of law reform and social justice issues on the national and global stages.[33] To these faculty-based mechanisms I would add: (i) recognition of law reform and social justice publication outputs of all kinds in both governmental (ie external) and university/faculty (ie internal) research funding formulae, research grant support, research performance criteria, research activity indicators, research workload arrangements (eg for suitable large-scale law reform projects, whether they are income-generating or not), and research track records for academic promotion and recruitment purposes; (ii) facilitation of law reform agency secondments and social justice project work through university-subsidised research sabbaticals; (iii) structuring of research centres and institutes to include law reform foci in designated research programs and personnel in various capacities (eg membership, advisory board, expert reference group etc); (iv) facilitation of university-based research consultancies and university/faculty funding contributions to research grant projects with law reform bodies as partners; and (v) university/faculty hosting and other involvement in cross-institutional and even cross-jurisdictional law reform institutes and other public policy thinktanks with an orientation towards a reformatory approach towards socio-ethical enquiry, law reform, and social justice.

Governmental Research Priorities and Law Reform

Successive governments in Australia in the last few decades have done little to acknowledge, facilitate, and reward the involvement of legal academics in contributions to public goods such as the administration of government, the administration of justice, and public policy and law reform. Sadly, whatever good might have been done away from the public eye in the corridors of power by members of various arms of the legal profession who are committed to law reform and knowledgeable about the value of academic research, and who impress upon successive governments the value of legal research to the business of law-making and law reform, the courts and other non-academic members of the legal profession have done little publicly to put an organised, collective, and strong unified front to government about the implication of its neglect of academic research for public goods such as community debate, public policy development, law reform, and social justice. Although presently under review, the current National Research Priorities (NRPs) for Australia contribute almost nothing towards recognising the importance of research associated with these public goods, except in the most narrow, indirect, and hence inadequate ways. The subsequent socialisation of the four original NRPs - “An Environmentally Sustainable Australia”, “Promoting and Maintaining Good Health”, “Frontier Technologies for Building and Transforming Australian Industries”, and “Safe Guarding Australia” – is a largely token effort, at least in their extension to meaningful public goods associated with law-making, law reform, and social justice.

The current governmental funding formula for university research infrastructure is overwhelmingly based upon competitive research grants and research degrees, with only a small fraction devoted to publications, and even then only publications of certain kinds. Members of the judiciary, the bar, and law firms are often surprised to discover that many of the reference sources that they read or use in their work (including many articles in law reform and practitioner-orientated journals) count for nothing towards publicly funded legal research in universities. The same is true of any public submissions, policy reports, and law reform documents authored by legal academics, unless they are structured through a university-based research consultancy or constitute outputs of an income-generating research project. Research funding sources and amounts for the so-called “hard” sciences are notoriously greater than for law and other humanities and social sciences, given the huge cost of technological and laboratory infrastructure as inputs for research in the “hard” sciences, without this bias being adjusted in blunt research performance criteria, research metrics, and other ranking methodologies for university and governmental purposes.

The classifications of research that are used for various governmental purposes (eg R&D research assessment exercises, governmental reporting etc), including the categorisation of research areas and grants, are too general and otherwise limited to accommodate a specific focus upon law reform and social justice as areas of necessary research in their own right across the entire legal and cross-disciplinary research landscape. The new Australian Government’s proposed Excellence in Research for Australia (ERA) initiative, which replaces the previous government’s Research Quality Framework (RQF), proposes to use a combination of research metrics, peer review, and other measures to assess all university research commencing in 2009. Although little is yet known of its fine detail and precise flow-through impact upon governmental funding for university research in future years, it risks compounding the error of the biased, incomplete, and overly blunt research metrics used across the board for all university disciplines in the current governmental research funding formula, by over-emphasizing research grants and research degree supervisions and completions at the expense of all forms of research publications and a more balanced view of research for the common good. We are still in the nascent stages of developing meaningful and fair research metrics that fully capture all worthy forms of research quality and research impact, and there is much lobbying and work to be done in having law reform outputs and outcomes properly acknowledged in these research metrics.

All of these factors work against rather than for the public good of law reform and academic engagement with it. None of this means, of course, that there are not individual academics and even whole law faculties with a strong commitment to volunteering themselves in their support for law reform and social justice, or even in orientating their careers and research interests around such concerns. What it does mean, however, is that legal academics have to work harder and smarter in aligning personal, university, and law reform objectives, especially in ways that go beyond “business as usual”.

Recommendations

Articulating a Common Conceptual Framework and Methodology for Law Reform

In light of this outline of law reform’s challenges, what are some of the ways in which this agenda might be advanced? First, many countries in the Australasian and South Pacific regions have at least a common and comparative interest in deep-seated concerns of national sovereignty, democratic legitimacy, human rights, market economies, civil societies, and the rule of law. Indeed, there is a strong argument that all major law reform initiatives benefit from being contextualised and grounded in conceptions of social, regulatory, and other forms of justice that position such reform within a principled understanding of the particular area of law reform in question, its place and fit within the existing legal record, and its surrounding socio-ethical and politico-regulatory contexts. This common and deep-seated respect for law’s integrity, coherence, and the utility is reflected in sources as diverse as Lord Denning’s clarion call fifty years ago for attention to legal history as an essential element in law reform,[34] and noted law reformer Justice Michael Kirby’s proclaimed judicial interpretative technique of reference to considerations of ‘legal authority’, ‘legal history’, ‘legal principle’, and ‘legal policy’ in deciding between competing interpretations of the law. In the specific context of law reform lessons that are transportable across jurisdictions, Justice Kirby identifies the contemporary importance of stakeholder consultation, evidence-based reform proposals, internationalised perspectives, independence, and a range of other principles for successful law reform.[35]

For some time, parliamentary committees charged with legislative scrutiny of bills and other regulation throughout jurisdictions in the Australasian region, for example, have recognized and acted upon their common interests in appropriate frameworks and guidelines for scrutinising proposed new laws in terms of their implication for democracy, the institution of parliament, and individual rights and liberties.[36] Law reform institutions and actors across jurisdictions have a similar need that transcends national and sub-national boundaries. At least in relation to shared governance and regulatory problems, truly universal cross-jurisdictional problems, and harmonisation and modelling of legal and regulatory reform options across jurisdictions, law reform bodies have a role together with academics in developing and articulating the normative and hence legitimising accounts of social and regulatory justice within which particular government-initiated and other law reform initiatives must be grounded.[37] Public discussion papers reviewing sanctions in corporate law cannot avoid dealing explicitly or implicitly with tensions between competing regulatory approaches and the frameworks for accommodating those tensions, such as the contrast between ‘deterrence’ models of regulation, ‘accommodative’ models, ‘responsive regulation’, and risk-based regulation.[38] Similarly, contemporary CSR inquiries by executive governments and legislative committees must ultimately side explicitly or implicitly with one overall theoretical model of corporate responsibility and governance or another, from amongst the smorgasbord of theories and models on offer.[39] Theoretical and conceptual intersections between corporate responsibility, on one hand, and international law and governance, on the other, are unavoidable in major institutional mapping and standard-setting initiatives on business and human rights.[40]

Building Regional and Transnational Multi-Stakeholder Law Reform Institutes

Secondly, we must rethink the nature, scale, and focus of effective law reform structures for maximum regional, transnational, and global effect, through mechanisms that rely and build upon the necessary work of servicing state law reform needs within each jurisdiction, but which also transcend those provincial concerns. More than 50 years ago, Lord Denning spoke of one structural possibility for the engagement of academics and law reform officials in these terms:[41]

I turn now to the third point – the law as it should be. There is one way in which the Universities directly help in determining what the law should be. I refer to the Law Revision Committees set up from time to time to consider the reform of particular aspects of the law. The universities are always well represented on such Committees and their representatives play as valuable and distinguished part as any of the other representatives of the legal profession. These Committees have in a quiet but effective way done much already to reform particular rules of law ... Apart from this direct persistence in these measures of law reform, the Universities do a great deal of fruitful work by promoting studies in new fields ... Then again there is the question of the various tribunals [and] (t)his is a field where legal research may show the path to law reform.

More than 50 years later in The Promise of Law Reform, Kate Warner’s outline of the institutional architecture for law reform compares and contrasts independent statutory law reform agencies, ministerial law reform committees, parliamentary committees engaged directly and indirectly in law reform activities in their scrutiny and review of proposed legislation, and an emerging form of public-private partnerships in university-based law reform institutes.[42] Examples of the latter cited by Warner are the Alberta Law Reform Institute (ALRI) and the Tasmania Law Reform Institute (TLRI). Building upon such alternative models for law reform structures, and translating them to the level of critical mass and scale for truly regional and transnational approaches to law reform, are we now at the point of needing a new public-private partnership of regional law reform bodies, governments, legal professional representative associations, transnational civil society groups, and university law faculties? Might they assist in presenting to the world and to our own countries within the South Pacific and Asia-Pacific regions a united front on law reform, at least for those contexts in which we confront law reform challenges in common, or otherwise benefit from commonalities in perspectives, methodologies, and association with a larger mass of law reform effort on the world stage?

Notwithstanding the huge impediments to this option from jurisdictional and agency self-interest, and the challenges in obtaining necessary funding and resourcing to reach even a minimum level of effectiveness, there are also considerable advantages if these impediments can be overcome. A supra-national law reform institute can be a galvanising force and focus for common law reform challenges for all of its members. It must complement and not threaten the work, status, and resourcing of law reform in the jurisdiction of each of its members. Given the reality that neither governmental nor non-governmental actors alone are likely to provide adequate funding or resourcing for such a body, its financial viability stands or falls on its capacity to draw relatively smaller amounts of funding from a wide range of constituencies (eg universities, governments, law reform agencies, legal profession, business, and the community) as well as strategic partnerships with university law faculties (and members of other academic disciplines) in the various university-funded and publicly funded ways in which research on public goods like law reform is possible, as outlined below.

Just as cross-jurisdictional and sometimes even transnational cooperation has proved possible for different jurisdictions in approaching the common tasks of scrutiny of legislation and harmonisation of business regulation, so too the work of law reform across a range of bodies and actors might similarly benefit in some of its endeavours from the availability of a reform-orientated institute whose collective status, expertise, and influence might be brought to bear in multiple ways for the assistance of its constituent members, many of whom are unlikely to have access to such benefits except thorough involvement in something to do with law reform that lies beyond the political, legal, and financial dynamics surrounding law reform in their own jurisdictions. As with other public-private partnerships, multi-stakeholder initiatives, and governance networks in the 21st century, governments and their formal law reform arms need to be members of (and actively engaged in) such a law reform institute, in ways that do not simply call upon them to divert scarce available funds for law reform away from their own jurisdictional needs and agencies, but which focus upon the benefits for individual governments in having available to them a law
reform mechanism that is directed towards their interest in common with neighbouring jurisdictions, drawing upon expertise and experiences beyond their own jurisdictions, sharing the benefits of membership of a collective law reform enterprise, and participating in an institutional voice for supra-national and regional law reform.

Developing Normative Justifications for Law Reform and Social Justice

Thirdly, while none of this means that we all must agree on the same jurisprudential basis for law reform and social justice, there is a level on which all of us in this region have a common interest in at least an agreed framework for approaching the task of law reform and social justice, with prongs to that approach that embrace potentially at least some law reform agenda items, law reform methodologies, and cross-jurisdictional law reform needs in common in collectively meeting some of the 21st century challenges of democratic governance, law reform, and social justice in this region. Indeed, there is a strong possibility that no incremental or radical law reform suggestion or social justice proposal can be meaningfully promulgated by law reform and social justice advocates, or meaningfully assessed by the various branches of the legal profession and the wider community, without also articulating a substantive, coherent, and underlying conception of what constitute good law reform and social justice outcomes for society. Writing recently in the context of defending a conception of social justice as an anchoring point to ground public policy debate amidst the gales of political and market winds that blow in different directions, the University of Sydney’s Professor Duncan Ivison argued as follows:[43]

(E)quality of opportunity is not a political philosophy in itself. It forms part of a way of thinking about the nature of citizenship and a public ethos of a country, but only that. I believe a broader framework is supplied by something that has been deeply unfashionable in Australian politics for far too long: the notion of social justice.

A striking feature of political discourse in Australia since the 1990s (and elsewhere, including Britain, the US and Canada) has been that social justice, as a way of thinking about politics and economics in general, is almost completely marginalised ... We need to rediscover the language of social justice, and we need to adapt it today’s circumstances. By not talking about social justice, by failing to connect it to Australia’s challenges, we are left with the idea that justice is simply a mirage – as Hayek thought – or is whatever outcomes the market generates.

For law reformers, social justice advocates, or indeed any members of the legal profession with even a passing familiarity with the challenges of legal theory and philosophy, such levels of enquiry also take us deep into the territory of asking whether it is possible for any lawyer or judge to have a view on what would be a good or bad development in the law without an overarching or at least working theory of law and legal reasoning, directed towards the objectives of law reform and social justice in particular legal systems, and transparently disclosed and debated as part of the normative case for particular law reform and social justice proposals. In other words, this classic area of debate between jurisprudential protagonists such as Professor Dworkin, Professor Cass Sunstein, and Judge Richard Posner resonates for participants and commentators in law reform and social justice too.[44]

Creating Innovative Collaborations Between Law Reform Agencies and Researchers

Fourthly, there are some simple ways in which research income-generation needs of universities (and their correlative inclusion in both university-based research performance assessment and governmental research assessment exercises, such as those conducted in the UK, New Zealand, and Australia) can be aligned more closely with the needs of law reform agencies, at least for those large-scale projects or other needs that extend beyond what will always need to be fulfilled by individual legal academics voluntarily contributing their expertise and research to the cause of law reform and social justice in their publications, community service, and career endeavours. Academics who undertake research projects for law reform bodies of a scale that warrants payment can choose to undertake those projects for individual reward or alternatively try to structure them as university-based research consultancies. This has both institutional benefits (eg inclusion of such research income for the university as income-generating research performance that also generates flow-on governmental research funding for universities) as well as individual benefits for the academics involved (eg ticking another important “research performance” and “research activity” box in terms of academic performance assessment, providing leverage in workload negotiations as part of their institutional workload, securing access to university insurance coverage for the work undertaken etc). Similarly, in some circumstances the appointment of legal academics to secondments or other positions in law reform bodies can be structured effectively as university-based research consultancies, rather than simply leaves of absence from university service to undertake paid employment in another public role.

More significantly, there are ways of adopting a project-managed approach to law reform initiatives, in which the contemporary needs of academics to ground a significant part of their research in grant-related research projects and publication outputs can be married with the needs of law reform bodies to engage the legal academy, the legal profession, and the wider community in various steps towards law reform outcomes. Considered from a law reform agency’s perspective, those needs include public discussion and awareness-raising, production and receipt of research-based submissions, framing of law reform issues and options, community dialogue and feedback mechanisms, public seminar and conference opportunities, and expert reference group consultations, to name only some of the contemporary processes of law reform. Considered from the perspective of an academic research project, many of these law reform processes lend themselves naturally to phase-by-phase stages of a research project orientated towards law reform and social justice outcomes in particular areas of law, with suitable milestones (eg co-hosting of a public forum to publicise and discuss a law reform issues paper, or an expert roundtable or workshop in which particular law reform and social justice proposals are canvassed and critiqued by academic and non-academic participants) and outputs (eg research-based academic submissions to particular law reform enquiries, associated public issues papers produced by academic grant team members, edited and published seminar and conference papers from academics, law reform officials, and other experts and professionals).

In an era of heightened attention to evidence-based policy development within government, legal academics and their law faculties and universities can do things beyond “business as usual” to embed both institutional and individual incentives for better engagement with law reform and social justice through academic legal research. More legal academics at more universities in more countries in this region need to reframe their research orientations to embrace law reform and social justice as core research perspectives, as well as approach academic legal research with a view to the full range of audiences who need or benefit from that research – a group that certainly includes academic peers and others who assess the quality of academic legal research contributions to the body of legal knowledge, but also other constituencies such as government, the professions, law reform bodies, and civil society groups. Equally, academics who are most comfortable with either doctrinal or theoretical legal research must go beyond their usual comfort zones, to embrace cross-disciplinary and empirical research where appropriate (and vice a versa). Combining both of these enhancements, we start to approach a richer framework for orientating academic legal research, in which the various forms of legal research are aligned with the different audiences for academic legal research and hence a greater focus upon where academic legal research is needed across the research landscape, with law reform and social justice appropriately integrated within this overall framework.

At the institutional level for law faculties and universities, a number of initiatives are possible that enhance connections between academics, universities, and external organisations concerned about law reform and social justice in the broadest sense. Law faculties and universities can build a greater critical mass and scale of effort for law reform by entering into formalised partnerships between universities, law reform bodies, and other collaborators to enable staff research exchanges, staff secondments, cash and in-kind collaborative research project support, mutual academic and external settlement of broad research programs and research agenda orientated strongly around law reform and social justice, and so on. Within universities, there is a greater need for research grant, recognition, and performance assessment systems that value both income-generating and non-income-generating research activities, and which incorporate inter-cultural, cross-disciplinary, comparative, and global perspectives into research, especially in promoting public goods as part of research-based community service and community compacts for universities that are not well-serviced by conventional research grant schemes and priorities.

From Theory to Practice - A Closing Example

In closing, here is a tangible example of project-managed law reform research currently being undertaken by a number of my colleagues at Macquarie University’s Division of Law, under the auspices of the “Legal Governance” Concentration in Research Excellence and the cross-disciplinary Centre for Comparative Law, History, and Governance, in conjunction with key law reform bodies and officials. The aim here is to find a way to fold what a law reform agency needs into the worthwhile objectives, stages, and products of a research grant, which of course must meet the stringent scrutiny requirements that attach to funding for research grants within universities and by public funding agencies. Characteristically, a research grant application must have adequate research aims, methodologies, plans and milestones, innovation and significance, and outputs and outcomes. In addition, where external organisations (eg such as law reform bodies) are involved in some way in collaborating upon the project, the nature of any financial or in-kind contribution and the level of involvement must both be appropriate and sound academically. However, even beyond those matters, there is the question of developing new methodologies and forms of engagement for law reform. For example, here is the overall outline of the project in which my academic colleagues are engaged:

This Project aims to test an innovative model to enhance the impact of the work of law reform bodies on government policy makers and the broader community affected by areas being considered for legal reform. The Project aims to facilitate the task faced by law reform bodies in the final stage of a law reform project by exploring outstanding issues prior completion of its final report on the topic of law reform. To accomplish this, it aims to increase the quality of contributions by academic experts during the final stage of a law reform project. The Project also aims to enhance the impact of the work of law reform bodies by expanding the level of engagement by the community, academics and government with the recommendations emanating from a law reform project. The model seeks to stimulate policy development and further collaborative research in the area under examination by a law reform initiative. For example, in this Project, the model will be trialled within a current law reform project being carried out by the NSW Law Reform Commission on the law relating to “Minors’ Consent to Medical Treatment.”

The aim is for seamless integration in matching academic research project needs to the stages and elements of the law reform process needed by law reform partners. All of this must be positioned within a sound policy and legal reform framework from academic perspectives. The various phases of stakeholder consultation, awareness-raising, evidence-gathering, option-testing, and expert advice can be weaved into the research project’s structures (eg project advisory groups, stakeholder reference groups, and expert feedback roundtables), milestones (eg public seminars, conferences, and workshops), and stages, as illustrated by the following outline from my colleagues’ collaborative law reform project:

Phase I will involve structuring the participation of academic experts in the final stage of a law reform project around a public symposium and scholarly publication output. The Project model calls for a collaboratively managed process of consultation which, in addition to the normal format of closed consultation managed solely by a law reform body, will include a further layer of public consultation managed jointly by the law reform body partner and CIs. This process would provide an extra incentive for expert consultants to produce more rigorous written submissions, as these would be subjected to peer review and scholarly critique. Public visibility and community involvement will be improved through the public nature of the symposium.

Phase II will draw upon a methodology from public policy theory: the framework for the creation of policy reform coalitions (Kingdon 2003). This will involve producing issues and discussion papers on the potential implementation of law reform recommendations. It will also involve creating agendas for further legal and policy-based research. The Workshops will be conducted in a fashion similar to the ‘focus group’ format used in qualitative research. Issues papers (instead of question guides) will be produced in collaboration with the CIs and relevant industry partners. The workshops will produce discussion papers for publication (instead of recorded interviews).

Public policy-makers, law reform officials, and academic researchers engaged in law reform and social justice projects all have to produce “deliverables” in the end! Those deliverables include both outputs (eg law reform issues papers, public discussion papers, evidence-based research reports, scholarly journal articles and conference papers, and edited book and conference paper collections) and outcomes (eg input into law reform processes, incorporation of research in law reform reports, influence upon law reform frameworks and outcomes, and uptake of research-influenced law reform options in law-making and policy-making). In the case of my colleagues’ project, for example, the intended outcomes are as follows:

(1)enhanced impact of law reform initiatives through application of its innovative model for collaboration between university academic experts and law reform bodies;

(2)closer collaboration between university experts and law reform bodies;

(3)improved quality of inputs of expert consultants engaged by law reform bodies;

(4)greater public visibility of the final phase of a law reform project;

(5)further dissemination of law reform project outputs;

(6)introduction of a model for critical evaluation of recommendations made by law reform bodies;

(7)increased public interest in the law reform process;

(8)better-informed policy development on topics undergoing law reform; and

(9)further collaborative research between university experts and industry stakeholders on issues emerging from a law reform project.

Conclusion

Where does all of this lead? In short, there are five major lessons. The environment surrounding law reform is changing to accommodate a new order of governance and regulation, and so law reform itself must adapt to that changing environment. Some emerging law reform needs and possibilities take us to areas of cross-jurisdictional interests in common for law reform bodies and actors within this region and beyond it to the world at large. In articulating a normative framework for the substantive aims and outcomes of law reform, especially in enhancing social justice, much work remains to be done both in bridge-building between the different arms of the broader legal profession, and in identifying and bringing together at a suitable level of abstraction the commonalities that apply to law reform and social justice as they relate to particular nations and regions. Given the critical importance of the academic contribution (amongst others) to the public goods of law reform and social justice, much can be done by various law reform and social justice stakeholders to facilitate an environment in government, law, and education that is more conducive to academic engagement in these public goods. At the same time, academics and their host institutions can do much to “work smarter, not harder” in their approach to law reform and social justice, especially in developing innovative and collaborative vehicles to integrate the legal academic enterprise with law reform and social justice objectives.

References

Coper, Michael. “ Law Reform and Legal Education: Uniting Separate Worlds”, in B. Opeskin & D. Weisbrot (eds), The Promise of Law Reform (2005) Federation Press, Sydney.

Denning, Lord Justice. “The Universities and Law Reform”, (address to the society of public teachers of law) (1947-1951) 1 Journal of Society of Public Teachers of Law 258 (Issue 4 1949).

Dworkin, Ronald. “Judge Roberts on Trial”, The New York Review of Books, 20 October 2005.

Dworkin, Ronald. “In Praise of Theory” (1997) 29 Arizona State Law Journal 353.

Gleeson, Chief Justice Morrie. (2002) Speech at the launch of The Oxford Companion to the High Court of Australia.

Heydon, Justice Dyson. “Judicial Activism and the Death of the Rule of Law” (2003) ABR LEXIS 2.

Horrigan, Bryan. Adventures in Law and Justice: Exploring Big Legal Questions in Everyday Life (2003) UNSW Press, Sydney (Law at Large Series).

Ivison, Duncan. “In defence of Social Justice” Sydney Morning Herald 26-27 July 2008.

Kirby, Justice Michael. “Law Reform - Ten Attributes for Success”, address to the Law Reform Commission of Ireland, Dublin Castle, Dublin, July 2007.

Leiter, Brian. “The End of Empire; Dworkin and Jurisprudence in the 21st Century” (2004) 36 Rutgers Law Journal 165.

Mason, Sir Anthony. “Future Directions in Australian Law” (Fullagar Memorial Lecture) (1987) 13 Monash Law Review 149.

McCrudden, Christopher. “Legal research and the Social Sciences” (2006) 122 Law Quarterly Review 632.

Posner, Richard. How Judges Think (2008) Cambridge (Mass) Harvard University Press.

Posner, Richard. “Conceptions of Legal “Theory”: A Response to Ronald Dworkin: (1997) 29 Arizona State Law Journal 377.

Slaughter, Anne-Marie. A New World Order (2004) Princeton University Press, Princeton.

Sustain, Cass. “From Theory to Practise” (1997) 29 Arizona State Law Journal 389.

Warner, Kate. “Institutional Architecture”, in B. Opeskin & D. Weisbrot (eds), The Promise of Law Reform (2005) Federation Press, Sydney.

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[1] Contact details: email: [e-mail] Ph: [phone] Fax: [phone] Mob: [phone]. (Note that, from February 2009 onward, the author will be the Louis Waller Chair of Law and Associate Dean (Research) at Monash University, Melbourne, Australia).
[2] Denning, 1949: 258, 266.
[3] Denning, 1949: 259-260.
[4] Denning, 1949: 261.
[5] McCrudden, 2006: 644.
[6] McCrudden, 2006: 644.
[7] McCrudden, 2006: 649.
[8] Slaughter, 2004: 240.
[9] Dworkin, 2005: 15; Dworkin, 1996.
[10] Dworkin, 2005: 15; Breyer, 2005: 3.
[11] Braithwaite and Drahos, 2000.
[12] Mason, 1987: 163.
[13] 2020 Summit Report, 2008: 32-33.
[14] French, 2008:
[15] Breyer, 2005: 3.
[16] Dworkin, 2005: 15.
[17] As exemplified in the political, judicial, and academic debates surrounding such reference in Lawrence v Texas [2003] USSC 4776; 539 US 558 (2003) (in the USA), and Al-Kateb v Godwin [2004] HCA 37 (in Australia), for example.
[18] See, for example, this form of official guidance for statutory interpretations of bills of rights for the different formulations of bills of rights that exist now in the UK (Human Rights Act 1998, sections 2 and 3), South Africa (Constitution of the Republic of South Africa 1996, Ch 2, section 39), and the Australian jurisdictions of Victoria (Charter of Human Rights and Responsibilities Act 2006, section 32), and the ACT (Human Rights Act 2004, section 31).
[19] Horrigan, 2003: 246-257.
[20] Horrigan, 2008 (forthcoming).
[21] Denning, 1949: 268-269.
[22] Gleeson, 2002.
[23] Quoted in Horrigan, 2003: 19.
[24] Heydon, 2003: 9, 10 and 26.
[25] Heydon, 2003: 28-29, and 69-70; emphasis added.
[26] Posner, 2008: 205.
[27] Posner, 2008: 208-209.
[28] Posner, 2008 :209,211,216 and 229.
[29] Posner, 2008: 216.
[30] Coper, 2005: 388-389
[31] Coper, 2005: 392.
[32] Coper, 2005: 393.
[33] Coper, 2005: 398-399.
[34] Denning, 1949.
[35] Kirby, 2007.
[36] Horrigan, 2006.
[37] For example, the Law Society of New South Wales released a draft Harmonisation Policy Agenda in mid-2008 which covers a number of areas of law that require harmonisation across Australian jurisdictions, and which also lend themselves to suitable reform-orientated academic research projects.
[38] Australian Treasury, 2007: 4-10.
[39] PJCCFS, 2006; and CAMAC, 2006.
[40] Ruggie, 2007.
[41] Denning, 1949: 267- 268.
[42] Warner, 2005: 56-64.
[43] Ivison, 2008: 32.
[44] Dworkin, 1997 (cf Leiter, 2004); Sunstein, 1997; and Posner, 1997.