Justinian has posted what purports to be a copy of a letter French CJ wrote to the current head of the Council of Australian Law Deans ‘to express a concern about recent incidents in which legal academics have provided to the Court copies of papers which relate to matters pending before the Court’. In 2012, the Chief Justice publicly expressed ‘reservations’ about academic articles ‘produced with a view to influencing the development of the law in a pending case’, remarking: ‘I am not saying that this is improper but its value may be discounted to the extent that it smacks of advocacy.’ By contrast, the concern expressed in the present letter is not with whether or why such articles are written, but rather when and to whom they are communicated: ‘providing materials which are not accessible to the parties, a fortiori after the Court has reserved its decision, are inappropriate and inconsistent with the transparency of the judicial process’.
As French CJ noted in his 2012 speech, dialogues between courts and academics are sometimes made difficult by ‘differences of purpose, perspective and methodology between judicial reasoning and legal scholarship’. From an academic perspective, informing potentially interested readers of new research is commonplace, law librarians (presumably including the Court librarian to whom one academic wrote) are ordinarily welcoming of such pointers and the formal timing of print publication (such as the hard-copy printing of a law review that the same academic fretted would come after the Court’s hearing on the matter he or she researched) is much less important than the finalisation of an accepted draft. By contrast, from a judicial perspective, ‘[t]he provision to the Court of draft articles is akin to unsolicited ex parte amicus submissions’, a form of third party advocacy encouraged by some peak courts (notably the Supreme Court of the United States), but deprecated by others. While it is easy to see why a judge must (usually) decline to receive any private information that is not known to all parties, the letter, in discouraging academics from ‘communicati[ng] with the Court in any way in relation to pending or reserved matters before the Court’, goes substantially further. French CJ’s blanket rejection of such communications is not qualified by reference to whether or not: the case has been heard (or even listed); the communication concerns a specific article or a general monograph; the research has been published or otherwise given to the parties; or the communication is with a court librarian rather than a judge.
It may be that what drove the Chief Justice to write to the peak body of Australian law schools (instead of merely writing to the academic in question, posting a general instruction on the Court website or simply placing the article in a bin) is the tone of the academic’s letter (which the Chief Justice quotes extensively in his.) It is eye-opening that the letter-writer apparently assumed that the article he or she enclosed would be immediately forwarded to the judges without question. That being said, it is also surprising that the Chief Justice (concluding with his ‘hope that the Court may have the cooperation of the Council… in ensuring that such communications do not occur in future’) seemingly presumes that any University dean either could or would attempt to restrict how or to whom any academic elects to communicate his or her research.
For those who are wondering, I have never communicated any articles (published or otherwise) to any court. However, early in my career, I was once in a similar position to the academic French CJ describes and opted (as he now suggests) to send my soon-to-be-published ‘Before the High Court’ piece to one of the parties in the relevant case. The (very transparent) outcome is available online. As can be seen, a majority of the Court considered that it would not accept unpublished articles even when they are adduced by a party unless the article’s contents were adopted by that party.
Surely the preferable course for academics in these circumstances is to do as you did, Jeremy — send work to one or more of the parties, who may use it or not, as they see fit. Sending material directly to the judges is both presumptuous and interferes with the ordinary course of litigation between the parties.
It’s certainly my personal preference, though I’m not sure it’s any less presumptuous to send an academic article to an SC or an Attorney-General instead of a court librarian. (Or, for that matter, to publish it in a journal section called ‘Before the High Court’ or a blog called ‘Opinions on High’.)
But I also think that any talk of ‘interfer[ing] with the ordinary course of litigation’ in this context is totally overblown. We’re just talking about plain old legal arguments and authorities, not fresh evidence! For instance, the reason I sent my BTHC piece to the parties in 1997 was because I’d found a couple of interesting overseas cases that had been ignored in the local case law to date and might assist in solving an interesting legal puzzle. How can me pointing out the existence of those cases (themselves on the public record) to anyone (even if embellished with my musings) harm anyone at all, whether I point them out to the court librarian, or to the parties, or publish them somewhere (the newspaper? A big sign? Twitter?) After all (as Kirby J pointed out in 1997), judges are free to find these things themselves anyway or to have other people (associates, librarians, spouses, etc) find them on their behalf.
The only people a court is obliged to pay attention to is the parties’ lawyers, which is why any communications between those lawyers and the court must be done transparently (and why it’s strange to me that the High Court registry treats correspondence files for litigation before the Court as confidential.) But I think the stakes are much lower for anyone else and (putting aside fresh evidence and the like) the main issue is taste, not justice.