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JOHN GAVA[*]
[This article responds to Justice Kirby’s recent praise of law reviews. It will be argued that law reviews should be a matter of concern, both because of the questions that their use raises about the judiciary and for the problems that they cause for law schools. The increasing use of law review writing by judges, compared to the sparse use of this work by earlier generations, signifies a judiciary that is forsaking the common law tradition in favour of an openly instrumentalist style of judging. It also will be argued that law reviews have become the public face of an unpleasant and inappropriate form of academic life; one that degrades scholars, wastes valuable resources and devalues the importance of good teaching and collegiality in law schools.]
CONTENTS
In a recent foreword to this journal,[1] Justice Michael Kirby defends law reviews by way of a response to Rodell’s famous denunciation of legal writing, ‘Goodbye to Law Reviews’.[2] Justice Kirby recognises the force of Rodell’s and subsequent criticism but, unlike those critics, he believes that on the whole law reviews are beneficial, especially to judges and the students who help run many of them.
Justice Kirby’s defence of law reviews recognises their problems. Indeed, he provides several pages of thoughtful advice to law review editors on how to improve legal writing, both in form and content. Nevertheless, he believes that the benefit to be derived from law reviews far outweighs any possible problems that may be associated with them. According to Justice Kirby, 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.[3] 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.[4] Third, law reviews provide a vehicle for thinking which, while not immediately useful to a court or practising lawyer, might challenge orthodoxy in previously unimagined ways, ways which will bear legal and judicial fruit later on.[5]
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, if you like, of Justice Kirby’s position is that the law reviews help judges do their work better. This, in turn, implies that when legal writing was not available or when it was not used very much, the work of judges would have been inferior to that of today. One only has to think of the prestige of the Dixon High Court to see that there is a puzzle here. My concern is that by concentrating on the possible benefits of law reviews for judges, Justice Kirby ignores the harmful effects of the modern law review on legal academics and law schools.
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.[6] Of course, whether that belief is justified is another matter, one that would require much work and large doses of judgment and taste to be supported. But if for argument’s sake we assume that that belief is sound, it does raise a doubt about Justice Kirby’s thesis. Put simply, the Dixon Court did not make much use of scholarly writing in its judgments.
I want to be clear about my position here. I have no doubt that a thorough examination of the judgments of, for example, Chief Justice Dixon and Justices Fullagar and Kitto would show some references to scholarly writing. Certainly,
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’[7] although he concentrated on judges such as Sir Edward Coke and Sir Matthew Hale rather than modern academics. In ‘Concerning Judicial Method’, Sir Owen readily admitted that a proper understanding of the judicial role did not rule out reference to textbooks or the use of articles from journals such as the Law Quarterly Review or the Harvard Law Review.[8] His respect for Felix Frankfurter led to a lengthy tribute published in the Yale Law Journal where he praised Frankfurter’s scholarly work as well as his judicial role.[9] Similarly, his regard for Sir Harrison Moore’s ability and influence as a law teacher was manifested by Sir Owen in an address given when awarded an honorary degree of Doctor of Laws by The University of Melbourne.[10] So, clearly, Sir Owen Dixon was not antagonistic toward academics or dismissive of their work. But one only has to glance at the Commonwealth Law Reports for the relevant years to find that academic references are scarce indeed. The members of the Dixon High Court may have read academic writing but they certainly did not refer to it very often in their judgments.
Russell Smyth’s recent study of the citation patterns for secondary materials by High Court judges for selected years (1960, 1970, 1980, 1990 and 1996) supports this contention.[11] Smyth finds that the number of references to secondary works in the High Court, especially legal periodicals, has been steadily increasing since 1960.[12] The average number of citations per judgment in 1960 was 0.7 and this had risen to four per judgment in 1996.[13] Smyth points out that one judge, Windeyer J, was responsible for half of the citations to secondary sources in 1960.[14] Windeyer J was a judge who loved legal history and jurisprudence and it could be argued that he often used his judgments as vehicles for explorations in these areas, with many of his scholarly citations directed to peripheral areas and not the precise point at issue. If this is correct and his use of secondary sources is discounted accordingly, his citation pattern is brought into line with the other justices and it can be seen that the High Court in 1996 was
citing secondary sources more than ten times as often as the Dixon Court.[15]
Now, this may in fact be partly a response to the small size of legal academia in Australia before the 1970s. After all, not a lot was being written before then. But little use was being made of the much larger pool of legal writing coming from the United Kingdom and the United States. One should also acknowledge that the judges in the Dixon Court operated under a now defunct ‘rule’ against citing living authors.[16] However, even when this is taken into account it is clear that academic writing did not loom large for these judges.
In fact, I doubt whether academic writing greatly influenced the work of the Dixon Court.[17] One only has to immerse oneself for a while in the jurisprudence of these judges to realise that one is in the company of masters of the common law, judges sure of themselves and their command of the law. Of course, they would have made much use of counsel appearing before them. But their entire concentration was on the law, mainly case law, dealing with the common law or matters of statutory interpretation. It is not an understanding of the law that required input from outside the profession. One could imagine these judges quite happily deciding cases and applying the law in the total absence of any legal writing, apart from the law reports. The judges of the Dixon High Court did not need academic writing because they saw themselves as quite capable of being good judges without the help of legal academics. At the risk of repeating myself needlessly, it may be appropriate to emphasise that this lack of use of scholarly work was not driven by contempt or ignorance. These judges were justifiably convinced that they were the best lawyers around and that to be a good judge meant, above all, being a master of the learning of the law in the common law tradition.
If that was the case then what has changed today? What difference is there now in the High Court or the role of judges that makes scholarly writing useful where it was once, and not so long ago, essentially unnecessary? If judges of the stature of Dixon CJ and Fullagar and Kitto JJ could attain that stature by concentrating on mastering case law and largely ignoring scholarly legal writing, why can’t the same happen today?
Cynics might suggest that the recourse to legal writing outside the reports is driven by a decline in the quality of judges. I do not believe that there has been such a decline. I may be wrong, but I think that the High Court Bench since the 1950s has been of a fairly uniform, high standard — and this praise, if it is
praise, comes from someone who has been strongly critical of many of the judges who have sat on the High Court in that time.[18] It may be that no High Court Bench has reached the dizzy heights occupied by the Dixon Court but, even if this is the case, the differences in quality since have not been large. When they have stuck to the knitting, so to speak, and concentrated on orthodox legal reasoning rather than assuming the mantle of hero judges,[19] the members of the High Court have, with few exceptions, exhibited a command of the common law and have fulfilled their judicial role with distinction.
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. Indeed, this would be a perfectly sensible thing for them to do. But I do not believe this is the reason for the increased allure of academic writing. I think that judges are making more use of academic writing because many of them have forsaken the traditional common law method in favour of an ill-advised move to instrumentalist decision-making. Although Justice Kirby has not explicitly made this claim, it seems to be a fair implication of what he says about the help that law review writing can provide to judges. 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.[20]
If we analyse this statement carefully it will be seen that Justice Kirby is making 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. This claim will be considered in the next section. 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, Justice Kirby 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. It appears that for Justice Kirby the judicial role involves making choices that go beyond the legal materials and that, therefore, judges ought to be informed about
matters outside the law reports:
It is difficult in Australia to wean advocates from old habits, cultivated over the centuries during which the declaratory theory of the judicial function held sway. An advocate might consider that complex social questions will be most safely answered by reference to judicial observations in past authority. Where such authority is binding, those observations may indeed be sufficient for judicial purposes. But often, and especially in a final court, it is necessary to view the problem in a wider context. This may require reflection on matters of history, economics, human rights principles or other considerations. A writer in a law journal is more likely to have insights into such subjects than the average advocate.[21]
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. He seems to accept, indeed, welcome, the notion that superior court judges should decide cases with an eye to the future by deploying the sorts of resources that politicians use when turning policy into law.
By doing so Justice Kirby is advocating an instrumental view of the judicial role which is at odds with the traditions of the common law. In short, his is a call for judges to become openly instrumental in their judging, to assume the mantle of what I have elsewhere called ‘hero judges’.[22] 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. Rather than concentrating on the rights of the parties before them, rights which are either established in rules or implicit within these rules and their underlying principles, this form of judging will treat them as of secondary importance. The parties will be the catalysts of legal development and their rights will take second place to the judges’ desire to create the best, most instrumentally focused, rules for the future. Of course, the mere existence of law review writing will not turn hitherto conservative judges into the hero judges that I have criticised elsewhere. In fact, it could be argued that in some cases the use of scholarly writing is a matter of adornment, a means of justifying or legitimising activist judging rather than being its cause.[23] The greater use of academic writing is a signal, much like the canary in the coal pit, warning us of dangers ahead. It may even be that the increased use of law review writing by judges will reinforce the tendency of at least a proportion of today’s judges to move beyond the traditional judicial method in favour of an openly instrumentalist judicial style.
I have written at length elsewhere why instrumentalist judging is bad.[24] I do not want to repeat the substance of my arguments but a summary of my concerns
may explain my reasons for being worried about the move to instrumentalism. 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. Secondly, it asks judges to participate in economic, social and political governance, thereby setting them tasks for which they are ill-suited. Thirdly, such a form of judging is profoundly anti-democratic. It allows unelected and politically unaccountable judges to participate in governmental decision-making. Fourthly, 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.
At this stage it might be argued that to use the Dixon Court as a standard of judicial endeavour is disingenuous. After all, is it not received wisdom that the judges who sat on that Court were either fools who believed in a strict legalism which denied them any capacity to mould and develop the law or, essentially, liars who well knew the creative aspects of their role but who denied this publicly? I believe that both these descriptions are wrong and show a lack of understanding of the subtle jurisprudence of these judges.
It was Sir Owen Dixon who is most often remembered as a staunch legalist:
It may be that the Court is thought to be excessively legalistic. I should be
sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.[25]
Unfortunately, this call for strict legalism has too often been interpreted as a denial of creativity in the process of judging. This certainly was not what it meant in the mind and practice of Sir Owen. One only has to consider Sir Owen’s extra-legal writing on the judicial role to realise that an adherence to strict legalism was not intended to amount to a form of mechanical reasoning. In his now largely forgotten essay ‘Concerning Judicial Method’,[26] Sir Owen argued that while the traditional understanding of the common law method was under threat, it was not the one-dimensional fairytale that its critics believed it to be. He acknowledged that even in his own time it was unfashionable to accept that the rules and techniques of the common law were real and bound the judges.[27] Rather, these principles were seen as the starting point for judicial reflection on what ought to be. For Sir Owen, nothing could be further from the
truth; these rules and techniques were real and constituted an external constraint on judges by imposing an external standard of legal correctness.[28] Now, of course, he did not believe that the answers to legal problems had the certitude of mathematics. Cases and the accepted methods of interpreting them helped judges to find and develop the law; they did not often provide a clear answer. The help of counsel was important through their respective attempts to show that their side’s understanding of the law best fit with the existing rules and underlying principles. 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 could be no guarantee of agreement here:
It is no doubt unsafe to generalize about judicial process. For after all it is a generalization about the work of individual men. In no field of special knowledge does one man pursue its technique or exercise its art precisely in the same way as another. Certainly the differences are marked between judicial minds at work. ... But it is a safe generalization that courts proceed upon the basis that the conclusion of the judge should not be subjective or personal to him but should be the consequence of his best endeavour to apply an external standard. The standard is found in a body of positive knowledge which he regards himself as having acquired, more or less imperfectly, no doubt, but still as having acquired.[29]
In other words, the legal reasoning of the common law method is, in a basic sense, provisional. 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. But this is a variety that should be faithful to that tradition and should not be seen as licence for freewheeling choice and innovation:
It is one thing for a court to seek to extend the application of accepted principles to new cases or to reason from the more fundamental of settled legal principles to new conclusions or to decide that a category is not closed against unforeseen instances which in reason might be subsumed thereunder. It is an entirely different thing for a judge, who is discontented with a result held to flow from a long accepted legal principle, deliberately to abandon the principle in the name of justice or of social necessity or of social convenience. The former accords with the technique of the common law and amounts to no more than an enlightened application of modes of reasoning traditionally respected in the courts. It is a process by the repeated use of which the law is developed, is adapted to new conditions, and is improved in content. The latter means an abrupt and almost arbitrary change.[30]
Fine present-day examples of this type of judging can be found in the judgment of Mason CJ and Wilson J in Waltons Stores (Interstate) Ltd v Maher[31] and the
masterly judgment of Brennan J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd.[32] This should reassure those who might otherwise think that this method is only of theoretical and not practical use. That such concerns could even be countenanced, however, does show the parlous state of the common law tradition today.
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 the words of Justice Hayne:
judges are not free to roam as they please in search of what seems to the individual to be a good or desirable outcome. Judges are bound to do justice according to law, not as if each were a philosopher king in whom all knowledge and wisdom resides. That is why law cannot be seen as a panacea. Society must deal with its various difficulties in various ways. The law cannot solve them all and no one, least of all those who are in the legal system, should think it can.[33]
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. They should not heed the siren calls of those who argue that unless judges act nothing will be done to deal with an issue of outstanding social concern. Judges, and the public generally, should accept and may have to learn that sometimes nothing will be done. Prostituting the judicial role may achieve a short-term good but at the cost of compromising the judiciary and weakening the political process. Similarly, judges should avoid the alluring charm of pragmatism; the belief that decisions should accord with social needs or political and economic pressures. Re Wakim; Ex parte McNally[34] provides a fine example of judges ignoring suggestions that the world as we knew it would come to an end if the cross-vesting regime were held to be invalid. Clearly the decision did cause difficulties. They were overcome, however, by the political process.
Critics of the common law method would do well to consider that the members of the Dixon Court were experienced, learned men who had lived through the Great Depression and two world wars — Fullagar and Windeyer JJ saw war service.[35] Dixon CJ, and Fullagar and Kitto JJ were masters of classical Greek and Latin and were well read in the classics.[36] Sir Owen Dixon was closely interested in the development of modern science and played a significant role in the Second World War by chairing several important war committees.[37] He
served as Australian Minister to Washington from 1942–44.[38] These were not the kind of people who would believe in fairytales. It was not because they were fools or naive that these men followed the common law method. Of course, in their judging they reflected to some extent the values that they held personally, as well as those of the times in which they lived. But, of course, so too would an activist judge today. Fidelity to strict legalism gave these judges a standard to control these values; what standard would today’s activist judges have to help them control their judging?
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.
My 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. The common law is, I think, a wonderful yet (as with everything else of human hands) flawed method of governing our society. But it is essentially and necessarily an insular and narrow way of seeing the world. Legal writing adhering to this form of tradition cannot achieve what most academics would see as the goal of legal (or any other form of scholarly) writing — the search for truth, wherever it may lead. 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 (or read). This has the flow-on effect of diverting this energy away from the wide reading, contemplation and disputation that go towards making good teachers and scholars. This, in turn, harms our law schools.[39]
It seems implicit in the arguments of those who favour writing for judges that, ultimately, the nature of knowledge in the law is similar to that of the natural sciences. In the sciences there is, for all practical purposes, an unlimited amount of knowledge waiting to be discovered, catalogued and analysed. One could argue that the vast increase in all forms of law — cases, statutes, regulations and administrative decisions — necessitates a similar, essentially unending and
ever-increasing task of discovery, cataloguing and analysis.[40] If this is true, the cogency of Justice Kirby’s plea for more ‘useful’ scholarship becomes apparent. In the face of unlimited legal knowledge even the best judges need all the help that they can get. But is this view of law and legal scholarship correct?
I do not think so. Dan-Cohen has argued persuasively that scholarship and practice are not the same and are, in fact, irreconcilably divergent.[41] He argues, in ideal terms, that practitioners and judges engage in a form of discourse that is bureaucratic, one-sided, strategic and authoritarian.[42] Scholars, on the other hand, are engaged in a discourse that is imaginative, truth-seeking, open-ended and personal.[43] Expressed in these terms a reader might be excused for thinking that Dan-Cohen believes that judges are second-rate intellects doing a third-rate job. This would be unfortunate. His choice of language may deflect attention away from the light that he has cast on these two ways of looking and dealing with the world. I happen to believe that judges usually have first-class minds and that their job is second to none in importance in our society. One only has to read a series of cases on any area of the law to appreciate the thought, the care and the imagination that most judges display in their treatment of the legal materials. But Dan-Cohen is right in suggesting that this is not the same as legal scholarship. Judges work within a tradition that instructs them not to venture outside the materials and the style of thinking that are associated with that tradition. As with sonnets or Japanese haiku, these restrictions are not inconsistent with a display of virtuosity and tremendous skill and thought. But it is not a tradition that can go outside itself and still remain true to itself. 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 (even if the truth that they find is that there is no truth). In doing this they should not be constrained by authoritatively prescribed boundaries. Richard Posner provides an illuminating example of the differences in approach between the common law tradition and legal scholarship in his discussion of legal ethics.[44] Posner believes that a university course in legal ethics which concentrated solely on an exegesis of the American Bar Association’s code of professional ethics would be intellectually sterile and would not provide a serious analysis of the problems and challenges facing ethical professional practice today.[45] Rather, such a course should, in his opinion, start at the very beginning, so to speak, with the debate between Plato and Aristotle over agency, and work its way through philosophical thought since, dealing with loyalty, commitment, candour and detachment, as well as more recent attempts to analyse the lawyer/client relationship through concepts such as ‘lawyer as friend’ or ‘lawyer as an officer of the court’.[46] It would have to consider ‘outsider’ critiques of the profession from such schools of thought as Feminism, Critical Legal Studies, Postmodernism, and Law and Economics. It could end with a discussion of one of the many failures of the legal profession in the 20th century, for example, the profession’s failure in Nazi Germany.[47] Such a course might illuminate issues and concerns surrounding ethics and the law but it is difficult to see how it would directly help a judge or the profession deal with practical questions of legal ethics.
It can be seen that Posner is, in effect, suggesting that we continue a conversation that started over 2000 years ago, a conversation which dealt with basic issues concerning the law. His course would be a distillation of the most interesting and important things said about legal ethics in the Western tradition. In comparison to the narrowness of professional knowledge, Posner casts his net broadly, directing us to consider the whole of the Western legal tradition and much else besides. In this way one can see that legal scholarship is more akin to philosophy than the natural sciences. Unlike the latter, legal scholarship does not grow or progress in anything approaching a linear fashion. Instead, legal scholars are continually trying to understand and refine a way of ordering society and ourselves. As was argued above, in contrast to this, the practice of common lawyers has been to immerse themselves totally in authoritative materials, cases and statutes, not to engage in essentially open-ended academic discussions.
Justice Kirby is implicitly arguing that it is at least part of the work of legal scholars to write for the profession. However, if the arguments just given are persuasive it will be seen that it should not be part of the role of legal academics to do this because, to the extent that they do, they will be acting as professionals, not scholars. In other words, it is the job of legal scholars to step outside the common law tradition and analyse it, whereas legal practice demands that one works, however imaginatively and skilfully, within that tradition. 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. It is the conscious aim of writing for judges that is the problem, not the ultimate use made of scholarly work. Neither am I suggesting that scholars should not write what might be called traditional black-letter articles. After all, one only has to read the work of John Baker[48] or S F C Milsom,[49] for example, to find eminent legal academics who believe that a fully considered understanding of their role as scholars leads them to write such works. 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. Of course, whether judges can and should make use of this sort of work is another matter, one which is not as clear-cut as proponents of empirical studies seem to believe.[50]
In his foreword, Justice Kirby refers to an earlier, preliminary analysis of the number of law reviews in Australia conducted by me some years ago. There I had suggested that approximately 50 law journals were published in 1994.[51] My latest examination of the library shelves shows over 80 law journals are now published in Australia.[52] The sheer number of articles needed to fill these journals is simply enormous. For supporters of academics writing for the profession this is probably not a problem. This view has been stated by Jones, who believes that
[t]here cannot be too many law reviews, or at least there are not yet. ... There is a lot more law out there to review these days, so growth in the number of law reviews ought to be encouraged not bemoaned.[53]
As I have stated above, even if one argues that law is in a similar situation to the natural sciences, with a similar need to discover, catalogue and analyse new data, this is not a task that should be undertaken by legal academia. But I do not believe that the explosive growth in the number of law reviews is a response to the need of the judiciary for help to deal with an ever-growing amount of law. Rather, the increased number of law journals reflects the needs of larger numbers of legal academics under pressure to write more and more to satisfy the demands of university administrators and government bureaucrats. Havighurst picked the trend almost 50 years ago when he explained that law reviews are not driven by an expectant and impatient reading public. Law reviews are supply-driven by legal academics writing primarily to gain tenure, promotion and prestige.[54] It is the institutional pressure to publish that has caused the proliferation of law reviews, a proliferation that is necessary to create the space to publish the articles that are written by legal academics who are forced to write to survive in today’s universities.
The deluge of words caused by the ‘publish or perish’ syndrome is costly in three ways. First, libraries in Australia spend millions of dollars in establishing and maintaining ever-growing serial collections. If this is being done largely to support academic careers, we have an issue of waste to confront. Second, as part of the publication treadmill, vast amounts of money are spent to support publishable research. If, as I have argued, legal scholarship should not try to ape the natural sciences by seeing its major task as the discovery, cataloguing and analysis of more and more data but should, instead, see itself as continuing a conversation with the past with an eye to the future, the need for so many law articles and law reviews disappears. We do not need to subsidise more writing; perhaps we should consider penalising or controlling it in some way.[55] We should recognise that the number and proliferation of law reviews represents a waste of money that could be better spent elsewhere.
But the problems associated with law reviews go beyond money. The ‘publish or perish’ syndrome deforms us as academics by driving us to do what is unnecessary and often harmful while diverting us from our proper and useful tasks.
The publication rates that would satisfy most university tenure, hiring or promotions committees or funding bodies give the impression that our law faculties are full of Aristotle-like figures, all capable of producing one, two or even three original, thought-provoking articles of high academic quality each year. Of course, this is nonsense. Many legal academics do publish at such rates but I do not believe that we have more than a handful of legal academics who can publish high quality scholarship at that rate over a lifetime. Does anyone really believe that the average legal academic in Australia has in them 60 to 90 genuinely original, thought-provoking articles over a 30-year career? I don’t. Lest I be misunderstood, this is not a suggestion that only such articles should be written. As I have argued elsewhere, there are many useful ways to write but our present system does not encourage them.[56] What I am arguing is that the present system demands the impossible, is based on a misunderstanding of what legal scholarship can and ought to do, and harms scholars and students.
The pressure to publish at this rate damages all of us, from those who publish at this frenetic pace to those who write little or nothing. The cynical few respond in a variety of non-edifying ways. One can constantly recycle the same article or views over and over again, concentrating on fashionable fields of enquiry. Or, one can devote a relatively small amount of time to becoming familiar with a particular school of thought and then weave it into one’s existing work. It is relatively easy to masquerade as an expert without actually becoming a master of a particular area. Or, one can hire research assistants or work with aspiring academics; the senior writer gets the credit and the younger hitches his or her wagon to a star with payback down the track. Outright cheating or plagiarism seem rare and rather senseless given the safety of the various possibilities listed above.
For the non-cynical majority, the problems caused by the pressure to publish are worse. Writing is hard work and takes time, at least for most academics. But if we are to get anywhere near the publication rate that is becoming the norm (and not adopt the ploys of the cynics) we have to plough ever deeper into well-tended areas or keep an eye out for recent, important decisions and write quickly so as not to be squeezed out in the rush. One cannot afford to ‘waste’ time thinking about important problems in the law, reading the works of important thinkers or trying out ideas in various forums so that when one does write an article it tries to say something rather than just being another publication to add to one’s CV. The pressure to publish certainly leads to more publications. What it does not do is make us better scholars or teachers.
For the minority who don’t write, the pressure to publish has immense psychic costs. In today’s law school the non-publisher is labeled a drone, is seen as non-productive and, in my experience, increasingly has become the butt of attempts by university administrators to shame them into early retirement. Little matter that the person may be a good teacher, widely-read and a good colleague ready to listen to ideas, suggest areas to read and think about, and be a useful sounding-board for colleagues. These qualities do not cut the mustard against the publication fiends down the corridor.
Especially to be pitied today are new academics. They are expected to hit the ground running, either having published before their first job or to start doing so immediately. This may make sense in the natural sciences where intelligence is probably more important than experience. But, if as argued above, legal scholarship is akin to a conversation with the past, sheer intellectual horsepower is not enough. One needs wisdom, experience, exposure to great minds, time and discipline to be able to distinguish the clever from the profound, the superficially engaging from the difficult or unfashionable but worthwhile argument. One has to learn that one needs reasons to follow a trend or to defy a tradition and vice versa. In the natural sciences intelligence is enough because new ideas can be tested by that most brutal of examiners, the experiment. But we do not have this luxury in law. We have to rely on wisdom and experience, and they only come with time. By forcing the institutionally young to write too soon we deny them the opportunity to acquire this wisdom.
Just imagine if all this effort were put into the reading, thinking and intellectual disputation that make one a good colleague and teacher. The model of a university teacher today is of the driven academic, with doors closed or working from home so that the article production line is not disturbed. Time given to one’s colleagues by being around, talking, arguing, commenting, all the sorts of things that are vital for a vigorous community of scholars, does not measure up in the CV stakes; only articles — or their postmodern successor, the research grant for promised writing — matter.
Being a good teacher at university is not only, or even principally, a matter of skill or a reflection of one’s publication record. Teaching at university is unlike school where a large chunk of one’s time is devoted to ensuring that basics such as writing, reading and numeracy are mastered, or where a teacher needs to develop the skill to keep frisky, school-aged students interested or involved. University teaching involves adults who should be there to have their minds expanded, their views challenged, their assumptions threatened. This is best done by people with ideas; their own or borrowed. It requires teachers who read deeply, who think deeply and who will teach in a way that threatens the complacency of students. But to be this sort of teacher one has to do the groundwork. One needs a command of the area of law being taught, but that is only the beginning. One should be well-read across disciplines, not in the phoney way as is required by bureaucratically mandated multi-disciplinary scholarship, but in a generous and, for the students, engaging way. Students should come out of classes shaking their heads, they should be uncomfortable, maybe even angry. They should want to challenge the teacher, to read more, to check up what the teacher has said. A teacher has failed at university if the students come out of a class happy and relaxed. But to be such a teacher demands time. It demands wide reading. It requires thought and engagement with authors and one’s colleagues. One cannot do this and publish at the rate that is required today.
Justice Kirby is probably right in believing that law students who participate in the running of many of the law reviews that are published in Australia gain tremendously from doing so.[57] But unfortunately, their number is small and the benefits that they may gain from their participation are dwarfed by the harm caused to law schools by the pressure to write ever increasing numbers of law review articles. The problems associated with law reviews are far too great to justify whatever benefits that may accrue to a small number of students.
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. I am sure that Justice Kirby would hesitate to say that the cost is worth it. But unfortunately, that is the price to be paid. It simply is not worth it.
Justice Kirby welcomes law reviews. I do not because they are the symptoms of severe problems in the judiciary and law schools. The example of the Dixon Court suggests that common law judges can achieve mastery of the law without the help of legal academics. If today’s judges used legal writing to further their craft or tradition I 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. To the extent that legal writing aids ‘hero judges’ it deserves criticism not praise. Sadly however, law reviews do not only represent a symptom of malaise amongst judges; they also work to threaten law schools. Law reviews have become the public face of an unpleasant and inappropriate form of academic life that degrades scholars, wastes valuable time and money and devalues the importance of good teaching and collegiality in law schools. Law reviews are a problem, not a harmless resource for very busy judges.
[*] BA, LLB (Macq), LLM (Syd); Senior Lecturer, Law School, The University of Adelaide. I would like to thank Janey Greene, Peter Kincaid, Geoff Lindell and John Williams for their help and comments on this paper.
[1] Justice Michael Kirby, ‘Welcome to Law Reviews’ [2002] MelbULawRw 1; (2002) 26 Melbourne University Law Review 1.
[2] Fred Rodell, ‘Goodbye to Law Reviews’ (1936) 23 Virginia Law Review 38. This was subsequently reprinted in (1999) 73 Australian Law Journal 593 with a commentary by me: John Gava, ‘Commentary’ (1999) 73 Australian Law Journal 597. In 1962, Rodell reworked his theme: Fred Rodell, ‘Goodbye to Law Reviews — Revisited’ (1962) 48 Virginia Law Review 279.
[3] Kirby, ‘Welcome to Law Reviews’, above n 1, 6–7.
[4] Ibid 7–9.
[5] Ibid 11.
[6] See, eg, Justice Kenneth Hayne, ‘Dixon, Owen’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 218, 219; Leslie Zines, ‘Dixon Court’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 220. On Fullagar J, see Tony Blackshield and Robin Sharwood, ‘Fullagar, Wilfred Kelsham’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 288, 290. On Kitto J, see Justice Michael Kirby, ‘Kitto, Frank Walters’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 398–400. Some present-day commentators believe that Sir Anthony Mason matched Sir Owen Dixon’s ability and influence and that the Mason Court was as important as the Dixon Court: see Kristen Walker, ‘Mason, Anthony Frank’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 459–61; Michelle Dillon and Justice John Doyle, ‘Mason Court’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 461–3.
[7] Sir Owen Dixon, ‘The Development of the Law of Homicide’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 61, 61.
[8] Sir Owen Dixon, ‘Concerning Judicial Method’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 152, 156.
[9] Sir Owen Dixon, ‘The Honourable Mr Justice Felix Frankfurter — A Tribute from Australia’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 180, 180–7. The article was originally published as ‘Mr Justice Felix Frankfurter: A Tribute from Australia’ (1957) 67 Yale Law Journal 179.
[10] Sir Owen Dixon, ‘Two Portraits: On the Occasion of the Conferring of the Degree of Doctor of Laws (Honoris Causa) in The University of Melbourne on 4th April 1959’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 188, 189–90.
[11] Russell Smyth, ‘Other Than “Accepted Sources of Law”?: A Quantitative Study of Secondary Source Citations in the High Court’ [1999] UNSWLawJl 40; (1999) 22 University of New South Wales Law Journal 19, 39–59 (these pages set out in various tables the information analysed by Smyth).
[12] Ibid 29.
[13] Ibid.
[14] Ibid 36.
[15] Ibid 50.
[16] Neil Duxbury, Jurists and Judges: An Essay on Influence (2001) 62, 78, discusses the flexible nature of this rule but, unfortunately, limits his discussion to the English judiciary.
[17] Duxbury does suggest that the seeming indifference to academic writing by English judges may have hidden a much wider but unacknowledged use of the work of legal scholars: ibid 100. The question of whether this was also the case for the Dixon Court can only be answered if a similar study of the relationship between judges and legal academics (Australian and international) is carried out here. I would be surprised if the same level of influence were found, if only because of the small number of academic lawyers in Australia during the first two-thirds of the 20th century. After all, English writers wrote for English judges and, whilst Australian judges could have used much of this material, a significant proportion of the problems facing them, especially statutory or constitutional ones, would not have attracted attention from English scholars.
[18] See John Gava, ‘The Rise of the Hero Judge’ [2001] UNSWLawJl 60; (2001) 24 University of New South Wales Law Journal 747.
[19] Ibid.
[20] Kirby, ‘Welcome to Law Reviews’, above n 1, 7.
[21] Ibid 8 (citation omitted).
[22] See Gava, ‘The Rise of the Hero Judge’, above n 18.
[23] I would like to thank Geoff Lindell for this insight.
[24] Gava, ‘The Rise of the Hero Judge’, above n 18.
[25] Sir Owen Dixon, ‘Address upon Taking the Oath of Office in Sydney as Chief Justice of the High Court of Australia on 21st April, 1952’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 245, 247.
[26] Sir Owen Dixon, ‘Concerning Judicial Method’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (1965) 152, 157–8.
[27] Ibid 154.
[28] Ibid 155.
[29] Ibid 157–8.
[30] Ibid 158.
[31] (1988) 164 CLR 387, 392–408.
[32] [1988] HCA 44; (1988) 165 CLR 107, 124–41.
[33] Justice Kenneth Hayne, ‘Lessons from the Rear-View Mirror’ (2002) 22 Australian Bar Review 99, 107.
[34] (1999) 198 CLR 511.
[35] On Fullagar J, see Blackshield and Sharwood, above n 6, 288. On Windeyer J, see Bruce Debelle, ‘Windeyer (William John) Victor’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 716, 717.
[36] On Dixon CJ, see Hayne, ‘Dixon, Owen’, above n 6, 218; on Fullagar J, see Blackshield and Sharwood, above n 6, 288. On Kitto J, see Kirby, ‘Kitto, Frank Walters’, above n 6, 400.
[37] Hayne, ‘Dixon, Owen’, above n 6, 219.
[38] Ibid.
[39] Some of the following arguments have been considered in more detail in John Gava, ‘Scholarship and Community’ [1994] SydLawRw 35; (1994) 16 Sydney Law Review 443.
[40] See, eg, Charles Collier, ‘Interdisciplinary Legal Scholarship in Search of a Paradigm’ (1993) 42 Duke Law Journal 840.
[41] Meir Dan-Cohen, ‘Listeners and Eavesdroppers: Substantive Legal Theory and Its Audience’ (1992) 63 University of Colorado Law Review 569, 586–7.
[42] Ibid 586.
[43] Ibid 570–5.
[44] Richard Posner, ‘The Deprofessionalization of Legal Teaching and Scholarship’ (1993) 91 Michigan Law Review 1921, 1928.
[45] Ibid 1924.
[46] Ibid 1924–5.
[47] Ibid 1925.
[48] See, eg, John H Baker, An Introduction to English Legal History (1971); John H Baker, ‘The Law Merchant and the Common Law before 1700’ (1979) 38 Cambridge Law Journal 295; John H Baker, The Legal Profession and the Common Law: Historical Essays (1986).
[49] See, eg, S F C Milsom, Historical Foundations of the Common Law (1981); S F C Milsom, Studies in the History of the Common Law (1985).
[50] For a critical view on the utility of judges incorporating empirical studies in contract disputes, see John Gava and Janey Greene, ‘The Limits of Modern Contract Theory: Hugh Collins on Regulating Contracts’ [2001] AdelLawRw 5; (2001) 22 Adelaide Law Review 299.
[51] Gava, ‘Commentary’, above n 2, 459. Counting law journals is not an exact science. For example, does one include such publications as the Law Society Journal (NSW), the Law Institute Journal (Victoria) or Queensland Lawyer, given that these professional journals have many of the features one associates with traditional law reviews? In the figure for 2002, I have included neither these publications nor any with ‘bulletin’ or ‘newsletter’ as part of their title, although again, some of these publications are similar in content to university-based law reviews. Similarly, it is no easy task to determine whether specialist journals dealing with tax, industrial relations, social welfare and the like should count as law journals. Although such journals often include articles from legal academics, I have not included them in my figure.
[52] See ibid for an explanation of how I arrived at the figure of 80.
[53] John Paul Jones, ‘In Praise of Student-Edited Law Reviews: A Reply to Professor Dekanal’ (1989) 57 University of Missouri at Kansas City Law Review 241, 244.
[54] Harold Havighurst, ‘Law Reviews and Legal Education’ (1956) 51 Northwestern University Law Review 22, 24. The former Vice-Chancellor of Monash University, Professor David Robinson, who resigned because of allegations of plagiarism, has been reported as saying that what appeared to be plagiarism was in fact the result of hasty and sloppy work driven by the pressure to publish an immense amount of work. It is reported that whilst he was writing the book which attracted the plagiarism claims, he was also working on two other books, three book chapters and five journal articles: James Madden, ‘Professor “Pressured to Publish”’, The Australian (Sydney), 9 July 2002, 5.
[55] In 1994 I made a suggestion for reform of scholarly legal writing in light of this argument. It has not been adopted. See Gava, ‘Scholarship and Community’, above n 39, 463.
[56] Ibid 463–72.
[57] Kirby, ‘Welcome to Law Reviews’, above n 1, 10.
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