THE ACADEMY AND THE COURTS: WHAT DO THEY MEAN TO EACH OTHER TODAY?

• Date: 01 August 2020
• Author: Kiefel, Susuan

Contents I Introduction II A Comparative Survey III The Extent of the Use of Secondary Materials in Australia IV More Recent Acknowledgements V Why Academic Writings Are Useful VI Pressures Affecting Academic Writings VII Media Commentary VIII Conclusion I INTRODUCTION

The Australian Academy of Law ('AAL') was launched in July 2007 at Government House in Brisbane. (1) I was there for the launch and was honoured to be one of its Foundation Fellows. As at April 2020, there were 349 Fellows, 8 Life Fellows (these two categories of fellows presently include the Foundation Patron and 32 Foundation Fellows) and 15 Overseas Fellows. (2) As was anticipated, the Fellows are academic lawyers, judges and legal practitioners.

At the launch, much was said about the benefits that could be gained from the development of a closer relationship between the academy, the judiciary and the legal profession. This is not to suggest that there has not always been something of a relationship between them, but rather that it was seen to be important that this relationship be maintained and, if possible, improved. After all, one of the stated purposes for which the AAL was founded was '[t]o provide a forum for cooperation, collaboration, constructive debate and the effective interchange of views amongst all branches of the legal community, (3) which include the academy and the courts. Consistently with that purpose, there have been many occasions since the launch for discussion between members of the AAL.

My focus here is upon a particular dialogue: academic writing which is directed to judges, to the profession and on occasion to the public. Materials of the former kind are a valuable resource for judges. Their use confirms our shared concern with the correct and coherent development of the law.

Academic lawyers are well placed to provide commentary both in terms of their focus on particular topics and the time available to them. Judges are under special constraints and therefore appreciate academic literature which is on point and useful. (4) Whether such writings are useful depends largely upon the understanding of an academic author of the role of a judge and how judge-made law is developed.

Today, there are pressures on the academy which may have the effect of limiting the kind of research and writing which is useful to judges and professional lawyers. Funding may divert academic resources away from doctrinal law. (5)

It would be a great pity if judge-directed academic writing were substantially to decline. I say that not only from the point of view of judges, but also from that of the academy, and in particular young academics who may never experience what can be a kind of collaboration with the courts. It is my purpose here to encourage the continuance of that collaboration.

II A COMPARATIVE SURVEY

Common law courts have a different relationship with legal academics than do the courts of civilian jurisdictions. But even amongst common law courts the experience may be different. Many of these differences are attributable to our respective cultural and political histories.

In France, for example, a stricter separation of powers, applied since the Revolution, gives the courts a particular role. They must be seen only to be enforcing the law, not expounding it. Citations of any secondary materials are excluded from the text of judgments, even if the judges have read and considered academic writings in forming their opinions, as undoubtedly they must often do. (6)

On the other hand, the use by German courts of secondary authority is legendary. Professor Hein Kotz said that '[r]eactions by foreign lawyers [to the extent of this practice] have vacillated between amazement, envy, and amusement'. (7) Choosing a 1985 volume at random, he found that academic texts and articles are cited on average 13 times per federal civil case. (8) He compares this with British courts. A spot check of the whole of Volume 1 of the 1985 All England Law Reports disclosed just 0.77 citations to secondary authority on average per case. (9)

It is understandable that German courts differ in their use of academic materials. Historically, the law professors have held a higher status than judges, who are usually appointed immediately following university. The judges all undertake lengthy studies, which may influence their approach to academic opinion. Further, it has been German law professors who, over many centuries, have shaped the ideas behind German law and were responsible for drafting the civil codes. (10)

In more modern times, this extensive citation from academic writings has been criticised, including by academics. It has been suggested that the effect of heavy citation, seemingly after every clause or even sentence, is 'to submerge the court's judgment'. (11) In any legal system, judgments of this kind may not give the appearance of 'a clear and authoritative statement of the court's own view of the law' (12) In England and Australia, overuse of citation is not the norm. (13) Such a practice might be thought to convey that the judge lacks confidence in his or her own opinion, or in recent judgments of the courts, where the ratio is clear'

This problem is readily resolved in Italy. Like their French colleagues, Italian judges do not refer to academic writings in their judgments. But for them there is no ability to do so even if they were minded to. Statute forbids the practice. (14)

It cannot really be said that the common law has a long tradition in the use of academic writing. In England and Australia, it only flourished in the late-20th-century. This may in large part be explained by the fact that the law faculties in Oxford and Cambridge were not established until the 1870s. (15) By the mid- (20)th-century, teaching was still primarily undergraduate and, as a result, there was less emphasis on academic writing and research. (16) It is therefore only relatively recently that such writing came to be produced in significant quantity.

Even amongst common law courts, the relationship with the academy may differ and reflect historical influences. The history of the United States may account for the law professors having greater influence. Understandably, it was considered preferable to rely on authors who, whilst drawing upon common law and civilian sources, emphasised the American character of the law rather than English case law...