Sydney Law Review
A majority of us here have in common the fact that we have contributed in some way or another to recent issues of the Sydney Law Review. That contribution has taken many forms, from membership of the Editorial Board or the Editorial Committee, to authorship, to refereeing, and so on. No matter what the exact nature of the contribution has been, I thought that there is at least one question on which all of us could profitably reflect: why do we participate in the production of law reviews? Before the invitation to speak here tonight, I cannot say that I had ever consciously thought about this question, notwithstanding my involvement, in a variety of capacities, in the work of several law reviews over a number of years. All I could recall reading on the subject was a memorably amusing article by an American law professor that I had come across at some indeterminate time and that had, in the now dated terminology of the critical legal scholars, ‘trashed’ law reviews, the professor (whose name I could not remember) announcing that he would no longer publish in any of them — a promise which, as he himself later acknowledged, was not honoured in full!
The justification for participating in the law review process can, of course, only sensibly be found by asking another question: why do we have law reviews? Or, elaborating on this central question: what is the purpose of law reviews and how successful are they in achieving that purpose? The rediscovery of the article by the American law professor whose name I had forgotten led to the realisation that this further question is itself a minor query in the broader search for the raison d’être of legal scholarship generally. From its citation in later literature, I realised that the rediscovered article had become something of a foundational, even cult, piece in a small but important corner of a vast literature dealing with ‘scholarship about scholarship’. A significant recent contribution to that literature is the March 2002 issue of the Harvard Law Review, which contains a whole Symposium on the subject entitled ‘Law, Knowledge and the Academy’, with powerful papers by such famous names as Richard Epstein, Gerald Torres, Richard Posner, Todd Rakoff, Deborah Rhode and James Boyd White. Looking at the literature, I could not help thinking, from the frequency of its citation, that the rediscovered article has probably disproved its overall thesis that writing law journal articles is a waste of productive time. Although this admittedly involves an assumption about ‘productive time’, more than sixty years on the paper is still provoking a response. I also could not help thinking that the article has had at least a beneficial and long-term effect on legal style. The modern American literature on ‘scholarship about scholarship’ is clearly written and completely comprehensible, notwithstanding the occasional reference to ‘hermeneutics’.
Professor Fred Rodell of Yale Law School wrote the paper to which I refer. It was published in the Virginia Law Review in 1936 and republished, with an addendum, in the same review in 1962. The essence of its provocative title, ‘Goodbye to Law Reviews’ is summed up in this passage:
There are two things wrong with almost all legal writing. One is its style. The other is its content. That, I think, about covers the ground.
Located within the broader literature of ‘scholarship about scholarship’, this view is some evidence of a ‘crisis’ of confidence in scholarly writing in law. And scholarly writing in law is, of course, what law reviews are all about. Indeed, they represent, or at least ought to, the quintessence of legal writing.
I suggest that talk of a ‘crisis’ in scholarly legal writing is fundamentally misconceived. At the same time, I suggest that the learning from the United States on ‘scholarship about scholarship’ is important for Australia since it contains some clear messages and warnings for legal writers, law review editors and law review boards.
I begin by pointing out that the debate in the current United States literature is focused on the generalist university (or university-associated) law review with a scholarly orientation, such as the Sydney Law Review. It does not specifically address trade journals designed for practitioners or specialist journals containing both scholarly and trade material. It seems to be accepted that such journals have their purposes. At least they have their markets.
What is the perceived ‘crisis’ in legal writing in generalist scholarly law reviews? Rodell purported to denounce both the ‘content’ and ‘form’ of law reviews (although his 1962 addendum seems to crystallise around ‘form’). But he did not clearly distinguish between the two. And his criticism of content is, frankly, rather opaque, since it tends to be lost in amusing jibes against an easy target. It is, however, important to appreciate exactly what his basic objection to legal writing is for, ultimately, it exposes the weakness of his argument.
The following articles would, Rodell indicated, be the sort of articles to which he objected: ‘The Rule Against Perpetuities in Saskatchewan’; ‘Some New Uses of the Trust Device to Avoid Taxation’; and ‘An Answer to a Reply to a Comment on a Criticism of the Restatement of the Law of Conflicts of Laws’. Let us take ‘The Rule Against Perpetuities in Saskatchewan’. An article such as this, so Rodell’s argument goes, fails to appreciate that law, as an institution, has a real job to do in the world. Why? It would surely be banal to suggest that it is the article’s subject matter that is the problem. Rodell’s real concern seems to be that, typically, such an article would deal with technical issues relating to perpetuities (such as the definition of a ‘life in being’) rather than concentrate on, for example, whether the law of perpetuities promotes efficient land usage or not. The latter type of article would serve society: the former only the interests of a particular client (who would no doubt be rich and corporate). As Rodell puts it:
With law as the only alternative to force as a means of solving the myriad problems of the world, it seems to me that the articulate among the clan of lawyers might, in their writings, be pointedly aware of those problems, might recognize that the use of law to help toward their solution is the only excuse for the law’s existence, instead of blithely continuing to make mountain after mountain out of tiresome technical molehills.
You will appreciate that this passage, central to Rodell’s thesis, is question begging. Why do the ‘myriad problems’ that law must solve not include both the technicalities of the rule against perpetuities and the social implications of the operation of the rule — in Saskatchewan or anywhere else? The truth is that this passage reveals no more than Rodell’s concept of law and his view of the function of law in society. His concept is the Realist one that law is nothing other than what persons in power do. On this view ‘useful’ writing on perpetuities would have as its focus the ways in which those able to do so use or manipulate the law of perpetuities. But this is only one view of the whole. I will return to this point.
Meanwhile, it is important to note that, whatever may have been the force of Rodell’s thesis about the sorts of articles published in law journals in the United States in 1936, it is clear that it no longer holds water, either in the United States or in Australia. Indeed, as we shall see in a moment, debates in the United States now tend to centre on the concern that, however relevant its articles are to law as an institution in society, the average law review fails to publish material of use to courts in the settlement of disputes — including (presumably) disputes about the rule against perpetuities. The wheel appears to have come full circle.
Rodell thought that the reason for the concentration by Law Reviews on what he considered trivia lay in the very nature of the academic enterprise. Law reviews, in his view, published material that needed to be written, not material that needed to be read. It needed to be written to promote the academic careers of its authors. Such authors write on ‘safe subjects’ for other experts in their chosen fields who, in turn, testify to the authors’ standing in the field when required. Student editors and writers are co-conspirators in this process in the hope that the prestige flowing from their membership of the journal board will secure them better jobs on graduation. Practising lawyers are also blameworthy participants: while they generally do not bother to read law reviews, they shelve them in the hope that, at some time in the future, they will shortcut the process of finding references or arguments to support a particular case.
Leaving aside the role of students and practising lawyers in the production and use of law reviews, I think that, if we are being honest, we have to acknowledge that there is more than a grain of truth in what Rodell says here. But neither the problem nor its solution has anything to do with law reviews as such. It has everything to do with university policies and procedures. In particular, it exposes the need to remove disincentives in the university system to the achievement of excellence in the academic enterprise by recognising that achievement within the University system need not always lie in publication in refereed journals. This is urgent and important for at least two reasons.
On the one hand, the academic enterprise is now more diverse than it has ever been, requiring a multitude of skills overall — skills in research, in teaching and in administration or management. We need to recognise that success in research is not the only measure of achievement in the university in the modern world — in short, we need to recognise, as such, the great Law Teacher or the great Law Dean. In their promotion practices, some universities in Australia have moved down the path of giving greater weight to achievements in teaching and administration. But my experience in university management suggests that there is here a vast gulf between aspiration and reality. A major reason is the conspicuous failure of universities to identify credible criteria by which excellence in teaching and administration can be judged. In their absence, it is simply much easier for academics to be promoted if a promotion committee can sight publications rather than rely on testimonials of teaching and administrative achievement.
On the other hand, we also need to recognise that the great Law Scholar is not necessarily the one who produces 2.5 articles every year in a refereed law review. The great researcher may, instead, be working on a long-term project involving complex theoretical analyses or the assessment of empirical material that will revolutionise our understanding of particular areas of law or of law more generally. This researcher may also be disadvantaged under current university promotion or funding practices. Here again articles in refereed journals are generally simply easier to evaluate — or, as the cynics would have it, to count — than the promise of something really outstanding, no matter how many testimonials are produced about work in progress.
What I have just said, of course, does not answer the question whether the scholarly law review as such is worth preserving. It is if we accept (as I do) that the object of such reviews is to publish writing on and about law that augments the general body of human knowledge, thereby adding to our understanding of law’s operation in the world — an understanding that may assist in the solution of real, even everyday, legal problems. Although broad, I believe that this understanding of the underlying purpose of scholarly law reviews would command, and has always commanded, overwhelming support among legal scholars — or, at any rate, sufficient support to put the burden on those who assert otherwise to make a case beyond mere assertion. Implicit in this understanding of the purpose of law reviews are two particular reasons why Rodell’s argument about the content of such reviews is so wrong.
First, even if we were to concede that much of what is published in law reviews is unimportant (however we define that term), this is not to the point. What is to the point is the institution, maintenance and promotion of a culture that values scholarly writing in law. I like Posner’s way of putting this. ‘Scholarship’, he says, ‘like salmon breeding in the wild, is a high-risk, low-return activity.’ On average, 6 000 fertilised salmon eggs produce only two fish that live to maturity. Does this mean that 5 998 eggs are ‘wasted’? Posner’s unsurprising answer is: ‘only if there is a more efficient method of perpetuating the species’. Like Posner, I do not think that, for legal scholarship, there is. But I do think that there is a message here for writers and editors: if you want your article (or your review) to rank in the realms of creative scholarship refrain from writing or publishing the trivial, repetitive or unoriginal. The need for restraint is now more important than ever. The frightening prospect of a combination of electronic technology and sophisticated citation analysis increases the risk of exposure of mediocrity. This may turn out to be as effective a deterrent as fear of detection in the case of most criminal behaviour!
Secondly, and fundamentally, Rodell’s concept of law is, at the very least, too narrow. I am not taking issue with Realism. I simply want to point out that Rodell’s view of law gives it only one function or orientation. The adoption of an essentialist view of law is a common, but regrettable, trait in legal scholars, especially legal theorists. It is perhaps understandable as the reaction of a Realist to the declaratory and positivist theories of law that generally held such sway in the common law world in the nineteenth century and that lingered on into the twentieth. As is well known, these theories, at base, viewed law as a closed system of objective rules divorced from their economic, social and political contexts. The Realists put paid to these fictional premises in the first half of the twentieth century. Their work was developed, in the second half of the century, principally by (in chronological order) the law and economics scholars, the critical legal scholars and the feminist legal scholars. Not all of this scholarship has been influential in Australia. But, at least within the academy, it has demonstrated that the common law is not a closed discipline immune from other influences of the societies in which it operates. Values can be identified which underpin the common law itself and the appropriateness of those values (and hence the content of the rules of law) can be analysed, evaluated and reformed according to a variety of criteria, both from within the legal system and outside it.
That analysis and evaluation not only justifies, but requires, a diversity of approaches to legal writing. For no known theory of law is inclusive of all its various functions and manifestations in society. A fortiori, the same is true of any perspective on law. In 1974 Grant Gilmore perceptively reminded us, in his Storrs lectures, that ‘the lesson of the past two hundred years is that we will do well to be on our guard against all-purpose theoretical solutions to our problems’. Yet this is precisely the warning that scholars do not heed when they grumble about the content of law reviews because they publish material that does not correspond with their view of what legal scholarship ought to be. As Deborah Rhode has pointed out, doctrinal scholars complain of being dismissed as ‘mundane’, ‘arid’ or ‘passé’; empiricists and legal historians complain that their work is marginalised as ‘merely descriptive’; even theorists, including Ronald Dworkin, perceive a ‘revolt from theory’. In all these cases, the complaint is of a departure from an implicit (but usually unarticulated) understanding of the essential nature of law.
Indeed, I suspect that scholars devoted to the brand of technical doctrinal scholarship that Rodell meant to criticise most, are now the real whingers. For them, the greater prominence given in law reviews to ‘theoretical’ material, however defined, heralds the decay of the law review. Their view is buttressed by statistical or anecdotal evidence of a decline in the citation of law reviews in the courts, allegedly attributable to their publication of ‘unimportant’ material — ‘unimportant’ here meaning that the material is not of any use in the resolution of individual disputes. Yet, it follows from a broadly inclusive theory of law that we should not, in principle, be unduly concerned by this so-called ‘cite-deficiency’. Citation rates will always vary, depending on the nature of problems arising in practice and the current state of legal knowledge. The two are not necessarily related. Bearing in mind that it is only in the last 10 years or so that Australian courts have begun to cite academic writings on a regular basis, we are as yet unable to contribute any hard evidence to the ‘cite-deficiency’ argument. Those of us trained in a different era are still excited by the occasional — very occasional — citation!
Further, as far as Australia is concerned, I do not believe that the content of law reviews is, or has ever been, unduly narrow or technical. I illustrate this by comparing four articles, two on constitutional law and two on foreign law, one on each topic coming from the first issue of the Sydney Law Review in April 1953, the other from the Review’s most recent issue in June 2002. The authors of the constitutional articles are, in 1953, Sir John Latham (who reviews the ways in which the Constitution could, and perhaps should, be amended after being in force for 50 years) and, in 2002, Dan Meagher (who analyses non-originalism as a method of interpretation in hard constitutional cases with reference to s80 of the Constitution). The authors of the articles on foreign law are, in 1953, William Woelper (who describes the nature and success of New Jersey’s legislative restructure, in 1948, of its court system and procedures) and, in 2002, Bron McKillop (who gives an account of 10 criminal cases in the tribunal de police, the lowest tier of the criminal courts in France).
Perhaps the most striking difference in the approach of these articles is that those published in 2002 make greater use of material outside the authoritative sources of statute and case law. Thus, Meagher begins with an assessment of the legal and philosophical arguments against non-originalism as a method of constitutional interpretation, while McKillop’s approach is overtly empirical, involving personal observation, study of court materials and interviews. By contrast, Latham’s point of first reference is the difficult issues of interpretation to which the Constitution has given rise over time, while Woelper examines the New Jersey legislation primarily by reference to the cases interpreting it and by identifying the deficiencies of the previous statutory regime. Woelper’s approach is the most traditional. For example, he makes no attempt when explaining the merger of courts of law and equity by the New Jersey legislation to analyse the policy arguments for and against the adoption of a judicature system, even though he recognises the then current interest in the topic in Australia (or, more accurately, New South Wales). However, he does cite statistics in support of his argument that the New Jersey reforms have been successful. Sir John Latham is much less hesitant in mentioning the context of the issues that he discusses. For example, he suggests that any attempt to repeal s 92 of the Constitution by referendum — a development to which he seems to have been particularly sympathetic! — would be unsuccessful because of the emotional appeal to voters of the word ‘freedom’ in the section; and that the endless difficulties in the interpretation of the industrial power in s 51 (xxxv) of the Constitution could only be overcome by repealing the section, giving the Commonwealth Parliament greater power in employment matters and minimising the role of the judiciary, overtly recognising that issues between employers and employees call more for legislative than judicial intervention.
The other side of the coin is that the articles published in 2002 do not ignore the authoritative sources of law. Meagher’s theoretical discussion of non-originalism serves as an introduction to an analysis of the actual or potential application of that method of interpretation in recent High Court cases dealing with s 80. And McKillop’s empirical study provides a backdrop for an assessment of the contrast between the law garnered from its traditional sources (which stress the orality of summary proceedings and prosecutorial direction) and the law in action (which indicates a documentary system and a lack of supervision of the police). The study of such disjunctures is surely to prove as important in comparative law as in legal history.
Of course, there is room for debate as to what constitutes ‘theory’, ‘doctrine’ and ‘practice’ in all of these articles. But my simple point is that, so far as there is a change in the articles in 1953 and 2002, it is a change of emphasis, not a wholesale change of approach. Arguments focusing squarely on statute and case law dominate the 1953 articles: those in 2002 cast a wider net. Generally, I think it is true to say that current legal scholarship contains, often subtly, a more reflective, even ‘theoretical’ (if we don’t have to define the term!) emphasis than a more ‘technical’ approach that may have held sway 20 or 30 years ago.
I turn now to the criticisms of the style of legal writing found in Law Reviews. The United States literature identifies three principal problem areas: footnotes, impersonal style and lack of plain language.
First, footnotes. The tradition in Australia (following England) differs from that in the United States. We are not generally accustomed to long footnotes that permit only a few lines of text on the page. A 1979 study in the American Law Library Journal revealed that the average number of footnotes per page in the California Law Review was 4.5, while the Columbia Law Review boasted 5.6. The Cambridge Law Review carried only 1.7 footnotes per page. These numbers now need inflation, at least in Australia where there is a perceptible shift to greater footnoting. That shift is being driven from the top by the High Court. It is a trend that could significantly devalue legal writing in this country if writers and editors use, without restraint, three types of inter-related and hopelessly obese footnotes. The first is the unnecessary footnote; the second is the ‘for-further-information’ footnote; and the third is the ‘I’ve-read-everything-there-is-to-read-on-the-topic’ footnote.
An unrestrained use of the first two is illustrated by imagining a sentence of text beginning with the word ‘Australia’ followed by footnote 1. Footnote 1 is unnecessary (because the point can be taken for granted), to the extent to which it explains, without necessary reference to anything in the text, that Australia comprises States and Territories united pursuant to an Act of the British Parliament of 1900, and then compares the definition of ‘Australia’ in s 17 of the Acts Interpretation Act 1901 (Cth). Footnote 1 becomes an unacceptable ‘for greater detail’ footnote if it then goes on to provide references to the history of federation, each of the States, etc.
An offending example of the third type of footnote is one that cites as authority a recent decision of the High Court authoritatively settling a narrow technical point, and then adds references (with appropriate signals) to the previous 10 cases that the High Court has overruled, reconciled or otherwise explained. Another common offending example of the third type is the footnote that cites every legal article on the topic that the now author can find without attempting to sort the worthwhile from the dross. Here writers and editors should bear in mind Lord Goff of Chieveley’s admonition of Lord Cooke of Thorndon, whom Lord Goff obviously perceived to have an addiction to this type of citation. Lord Goff pointed out that he personally cited only academic authority that was of assistance. His Lordship’s touchstone of assistance, at least for the instant case, is garnered from his comment that: ‘A crumb of analysis is worth more than a loaf of opinion’!
Secondly, impersonal style, namely, the ‘it is submitted’ or ‘it would seem’ phrases with which we are all familiar. There has not, perhaps, been the same reluctance in Australia as there once was in the United States for academic authors to identify their own views of the law and openly, but respectfully, to disagree with judges. The reason may be that, unlike in England and the United States, the academic study of law has generally been a part of the university fabric in Australia almost from the start, and academic lawyers (who have contributed widely to the life of their universities) have not, perhaps, seen themselves as distinct from the general body of university scholars as they once may have done in the United States. Whatever the reason, I believe a concern with style ought to lead law writers and editors to beware of translating into law reviews the impersonal language used in courts. While appropriate in that context, it is the sort of language that simply looks silly in broader academic discourse.
Thirdly, plain language. We have a tradition — even a movement — in Australia that favours plain language. And quite rightly. Plain language enunciates the clear thought that abstruse language hides. For this reason we ought to support the plain language movement at least so far as it aims to do away with what Fred Rodell referred to as ‘the nonsensical, noxious notion that a piece of work is more scholarly if polysyllabically enunciated than if put in short words. I mean the utilization of “utilization” — ugh — instead of the plain and simple use of “use” ’.
But there must, of course, be moderation in all things. And law review writers and editors must not interpret the cry for plain English as an excuse for the dull or boring English that may be appropriate in an insurance policy. Nor should plain English require the excision of all technical terms in law. We should not hesitate to write the six words ‘clog on the equity of redemption’ in preference to the six (or perhaps sixty) pages otherwise required to explain what we mean. Just as an Act dealing with the abdication of a monarch need not be drafted in 200 sections rather than in the two sections made possible by reference to a ‘demise of the Crown’.
It follows from all I have said that I consider that, overall, Australian law reviews do a wonderful job. There is every reason why academics, judges and practitioners should continue to support their work in a variety of ways. In a note tucked away at the end of the very first issue of the Sydney Law Review in April 1953, the General Editor, Professor Julius Stone, expressed trepidation, but also hope, that the Review would survive in the ‘crowded world of legal literature’. Almost fifty years on, we can confidently say that the Review has more than fulfilled that aspiration and that the state of legal writing in Australia promises it an even greater future.
[*] An edited version of a speech delivered at the Sydney Law Review Contributors’ Dinner on 14 November 2002.
[†] Commissioner, NSW Law Reform Commission; Edward Jenks Professor of Law, the University of Melbourne.
See Fred Rodell, ‘Goodbye to Law Reviews — Revisited’ (1962) 48 Va LR 279 at 286–287.
For example, Gerald Torres, ‘Translation and Stories’ (2002) 115 Harv LR 1362 at 1370.
 Fred Rodell, ‘Goodbye to Law Reviews’ (1936) 23 Va LR 38.
 Rodell, above n1.
 Rodell, above n3 at 38.
 See Richard Posner, ‘The Deprofessionalization of Legal Teaching and Scholarship’ (1993) 91 Mich LR 1921 at 1928; Patrick J Schiltz, ‘Legal Ethics in Decline: The Elite Law Firm, the Elite Law School and the Moral Formation of the Novice Attorney’ (1998) 82 Minn LR 705 at 788; Deborah L Rhode, ‘Legal Scholarship’ (2002) 115 Harv LR 1327 at 1328, 1331, 1339.
 Rodell, above n3 at 43.
 See John E Nowak, ‘Woe Unto You, Law Reviews!’ (1985) 27 Ariz LR 317.
 Posner, above n6 at 1928.
 Such studies are in their infancy in Australia: see Ian M Ramsay and Geof P Stapledon, ‘A Citation Analysis of Australian Law Journals’  MelbULawRw 24; (1997) 21 Melb UL Rev 676; Ian M Ramsay and Geof P Stapledon, ‘The Influence of Commercial Law Journals: Citation Analysis’ (1998) 26 ABLR 298.
 Grant Gilmore, The Ages of American Law (1977) at 109.
 Deborah L Rhode, ‘Legal Scholarship’ (2002) 115 Harv LR 1327 at 1328.
 For example, Harry T Edwards, ‘The Growing Disjunction Between Legal Education and the Legal Profession’ (1992) 91 Mich LR 34 (but see Rhode, above n12, at 1343–1344 for a criticism of Judge Edwards’ methodology); J S Kaye, ‘One Judge’s View of Academic Law Review Writing’ (1989) 39 L Leg Ed 313; Michael D McClintock, ‘The Declining Use of Legal Scholarship by the Courts: An Empirical Study’ (1998) 51 Okla LR 659.
 John Greig Latham, ‘Changing the Constitution’  SydLawRw 2; (1953) 1 Syd LR 14.
 Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of The Constitution’ (2002) 24 Syd LR 141.
 Willard G Woelper, ‘The Reorganization of the Judiciary in New Jersey’  SydLawRw 3; (1953) 1 Syd LR 46.
 Bron McKillop, ‘Police Court Justice in France: Investigations and Hearings in Ten Cases in the Tribunal de Police’ (2002) 24 Syd LR 207.
 See John H Baker, The Law’s Two Bodies: Some Evidential Problems in English Legal History (2001).
 I do not regard this as necessarily the same as a difference in style between ‘embedded’ and ‘nonembedded’ scholarship: see Todd Rakoff, ‘Introduction’ (2002) 115 Harv L Rev 1278.
 Edd D Wheeler, ‘The Bottom Line: Fifty Years of Footnoting in Review’ (1979) 72 Law Libr J 245 at 259.
 Professor Friedman’s description of some legal scholarship: see Lawrence M Friedman, ‘Law Reviews and Legal Scholarship: Some Comments’ (1998) 75 Denv ULR 661 at 663.
 Hunter v Canary Wharf Ltd  1 AC 655 at 694.
 See R Davis, 100 Years: A Centenary History of the Faculty of Law, University of Tasmania, 1893–1993 (Hobart, University of Tasmania, 1993) at 3–4.
 See Richard A Posner, ‘Legal Scholarship Today’ (1993) 45 Stan L Rev 1647 at 1648–1649.
 Rodell, above n1 at 287.
 See His Majesty’s Declaration of Abdication Act 1936 (UK) s1(1).