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.