Gava, J --- "Law Reviews: Good for Judges, Bad for Law Schools?" [2004] LegEdDig 47; (2004) 13(1) Legal Education Digest 21

Law Reviews: Good for Judges, Bad for Law Schools?

J Gava

[2004] LegEdDig 47; (2004) 13(1) Legal Education Digest 21

29 Melbourne U L Rev 3, 2002, pp. 560–576

According to Justice Kirby[1], legal writing in law reviews helps judges in three ways. First, it can provide first-rate legal analysis of the case law and legislation surrounding legal problems. Second, law review articles can help judges by investigating the social, economic and political context of an area of law or of a statute that is to be interpreted by the courts. Third, they provide a vehicle for thinking which, while not immediately useful to a court or practising lawyer, might challenge orthodoxy in previous unimagined ways which will bear judicial fruit later.

It would be difficult to disagree with Justice Kirby’s discussion of the flaws of law reviews and his suggestions for reform. However, his praise of law reviews raises what might be described as one puzzle and one concern. The puzzle arises because the logic of Justice Kirby’s position is that the law reviews help judges do their work better.

It is commonly believed by Australian lawyers that Sir Owen Dixon was the finest common law judge of his generation and that the High Court during his period as Chief Justice was the finest common law court in the world. Sir Owen Dixon when writing extra-judicially about the law of homicide was quite happy to refer to the ‘unusual influence exerted by the extra-judicial writings of the sages of the law’, although he concentrated on judges such as Sir Edward Coke and Sir Matthew Hale rather than modern academics. Smyth’s recent study of the citation patterns for secondary materials by High Court judges for selected years supports this contention. Smyth finds that the number of references to secondary works in the High Court, especially legal periodicals, has been steadily increasing since 1960.

Cynics might suggest that the recourse to legal writing outside the reports is driven by a decline in the quality of judges. The modern turn to academic writing has not been driven by mediocre judges in the High Court and other appellate tribunals desperately seeking the aid of academic writing. It is entirely possible, of course, that the increased use of academic writing is entirely benign. Judges may be quite wisely taking advantage of the array of legal talent that exists in the universities to help them in their task, even though the example of the Dixon Court shows that this help may not be necessary.

Justice Kirby believes that good law review articles are a boon to judges. This is because, in the nature of their lives as problem solvers, judges and the advocates who appear before them often lack the time to analyse a legal problem with a full understanding of the history of the relevant branch of the law, the conceptual weakness of past authority, and the social and economic context in which the law must operate.

Justice Kirby makes two interrelated claims about how legal writing can help judges. First, legal academics and others who write for law reviews can help judges by being research assistants for the judges and the profession. It is the second claim that is significant here. By suggesting that legal writing can help judges by informing them of the social and economic context of disputes, he seems to argue that judicial decision-making extends beyond the traditional notions of identifying and, if necessary, developing the applicable law in the dispute before the court.

The concern here is that Justice Kirby is promoting a role for judges that goes beyond mastering and developing the common law within an accepted tradition. By doing so he is advocating an instrumental view of the judicial role which is at odds with the traditions of the common law. By adopting this view of their role, judges will not see themselves as limited by the past and by the underlying principles and the existing rules of the common law. Instead, the emphasis for judges will be on the future and technique. Judges will be concerned with what changes are necessary to achieve the social and economic demands that they have identified.

In the author’s view, instrumentalist judging is bad and the reasons for being worried about the move to instrumentalism can be summarised as follows. First, this form of judicial decision-making signals the reversal of time-honoured beliefs about the role of judges, where, instead of judges acting as guardians of liberty with a healthy suspicion of government, they have become partners of politicians, working to strengthen rather than limit the role of government. Second, it asks judges to participate in economic, social and political governance, thereby setting them tasks for which they are ill-suited. Third, such a form of judging is profoundly anti-democratic. It allows unelected and politically unaccountable judges to participate in governmental decision-making. Fourth, this, in turn, acts to harm genuine politics by allowing elected politicians to avoid dealing with politically sensitive issues, as well as transforming political issues best decided through the give and take of the political process into legal questions of right and wrong. Finally, this transformed form of judging will threaten the public’s respect for the role of judges as impartial enforcers of the law and adjudicators of disputes.

Because this was not an exact science, not every judge would or could come to the same answer, and the positions that were adopted by various judges could and should be analysed to see if they did, in fact, comport best with the existing materials. There is no absolutely right answer because reasonable practitioners of that method may and will vary in their attempts in accordance with the rules and traditions of the common law. Of course, one of the implications of this method is that the judicial role is limited and that some problems cannot and should not be solved by judges. In other words, judges need to show restraint, humility and patience. Rather than seeing themselves as part of the governmental machinery, they should remember that their role is to settle disputes according to law and not to pre-empt the role of Parliament. Similarly, judges should avoid the alluring charm of pragmatism; the belief that decisions should accord with social needs or political and economic pressures.

To the extent that law review writing symbolises a shift away from traditional notions of judging towards the open instrumentalism of today’s ‘hero judges’, the increasing use of law review writing by judges is something to be deplored, not praised. If law review writing has become a prop for activist judging, law reviews should not be welcomed; they should be damned.

The author’s concern is that, even if Justice Kirby is right and the law reviews are a handy resource for judges, this may come at too great a cost to legal academics and law schools. This cost may come in two forms. First, one has to wonder whether legal writing which is aimed at helping judges to decide cases by providing technical legal analysis will end up diverting legal scholarship from its proper path. Second, law reviews and the tremendous pressure to publish the articles that grace their pages do great damage to legal academics by forcing them to devote too much time, energy and resources to the writing of articles that the world at large, or even the smaller world of legal academia, does not need.

Judges are not scholars and they are not engaged, nor should they engage, in scholarly activity when acting as judges. Scholars, on the other hand, are expected to seek truth. In doing this they should not be constrained by authoritatively prescribed boundaries. The aims and practice of legal academics and practising lawyers are different and we do neither side any favours by pretending otherwise. This does not mean, of course, that judges should not use work produced by legal scholars which they find useful. These scholars are more than capable of defending, on intellectual grounds, what is commonly believed to be an antiquated view of law. What is important is that such a position be adopted on intellectual and not on functional grounds.

Considered in this light, the frequent calls for empirical work by academics to help judges can also be seen to be misconceived. Empirical work is important and should be encouraged. But it should be encouraged to further the scholarly aim of discovering the truth and helping us to understand how the law works in society. It should not be conducted to aid judges in their professional role.

Law reviews are supply-driven by legal academics writing primarily to gain tenure, promotion and prestige. The deluge of words caused by the ‘publish or perish’ syndrome is costly. The proliferation of law reviews reflects the victory of quantity over thought, good teaching and the possibility of creating a vigorous community of scholars. This is a high price to pay to help judges. If today’s judges used legal writing to further their craft or tradition, the author would be the last to criticise them for doing so. But law reviews take on a sinister aspect when the use of law review writing signifies a judiciary that has forsaken the common law tradition in favour of an openly instrumentalist form of judicial decision-making.

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[1] Justice of the High Court of Australia.