Opinion: The academy and the courts – Speech by Kiefel CJ

On 31 October 2019, Kiefel CJ gave a speech concerning academics and the court. As an academic who has recently conducted a small study of who was cited by the High Court between 2015 and 2017, I welcome Kiefel CJ’s speech warmly. In her introduction she said that academic writing which is directed to judges, to the profession and to the public is a ‘valuable resource for judges’, and then continued, ‘[a]cademic 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.’

I was also very heartened by the Chief Justice’s comments on judges who use academic material without acknowledging it. She said, ‘I would like to think that this is a practice of the past and that these days acknowledgement is given where it is due’. I hope that her recommendation is taken under advisement. I also agree with Her Honour that it is more complex when a work has been generally (but not specifically) helpful, or confirmed an opposite view. Moreover, it is important to note that the role of the courts is not to recognise academic work, and that in fact, there is no need to cite academic work at all for a judgment to be authoritative. As the Chief Justice says, the main role of a judgment is to give reasons for the resolution of a dispute between parties: no less, no more. If academic work helps with the resolution of that dispute, then it should be acknowledged, but if it does not, there is no need to divert into it. And it is certainly not the role of judges to elucidate legal theories unless they are relevant to the case at hand.

The Chief Justice noted that it has been suggested that the Australian Research Council does not adequately take into account the importance of judicial citation of work as a measure of impact when deciding grant funding. I gather from my academic colleagues in the United Kingdom that judicial citation is not counted as an indicator of impact (unless one frames it carefully) which seems ridiculous. As the Chief Justice observed, Professor Jane Stapleton has shaped aspects of private law across jurisdictions, and she has been cited by superior courts across common law jurisdictions. It seems extraordinary that something like this would not be counted as a significant impact. Part of the problem, I think, is that non-lawyers do not really understand how the law, the courts or legal academia work, and thus  they do not appreciate the partnership which the Chief Justice elucidates.

Ultimately, I came away from reading the Chief Justice’s speech feeling that academia and the judiciary have a partnership, with capacity to develop and deepen, and I felt very positive.

Speaking personally, I am not someone who usually writes with the aim of speaking to a court. (I confess that an exception to this was my first academic piece, a case note which was written just after I graduated, in anticipation of a High Court Appeal.) I seek to write for everyone: students, other academics, lawyers, judges, and laypeople (the latter is why I blog). A lot of my academic work derives from my teaching. When explaining the law, I sometimes become frustrated with the law as it is currently expressed and think it could be expressed more clearly, or I realise that I have thought of an explanation for it that has not yet been expressed by others.

But it also seems to me that citations cannot be the only measure of influence. I became disheartened last year by the need to count citations of my work for several applications (it was curiosity about this which set me on the path of looking at who is cited by courts). I wrote the following at the time:

The famous philosophical thought experiment asks: “If a tree falls in a forest and no one is around to hear it, does it make a sound?” The question highlights the problem of unperceived existence. If no one is there to perceive the tree, who is to say it exists? Whose testimony can prove it?

For an academic this conundrum is familiar. We put effort into academic publications, but if nobody cites us, is our work useful? Is anyone reading us at all? I suffer from existential crises of these kinds at intervals (more regularly than I would like) but I am comforted by the fact that my students tell me that what I do does matter. I’m not just a researcher and writer, I’m a teacher, and if what I write is useful for students trying to understand the law, then my job is worthwhile. However, I have been unusually sensitive to the issue because I had to undergo the exercise of counting citations three times in the last year, for various applications. It’s very important for grants, for university statistics, for prizes and for promotion. This was a tedious process in the extreme, but it made me aware of the issue for the first time.

Rather than being an affirming experience, the process of counting citations convinced me that I had little impact, and it made me wonder why I was putting my heart and soul into what I do. I will be brutally honest: I have always feared that the fact that I am young(ish), female and not Oxbridge or Ivy League educated is something that counts against me as a private law academic, particularly outside Australia. (For the record, I got into both the BCL and the Cambridge LLM, but I could not afford to go, as I would have had to pay international fees. It all became moot anyway, as I was going to reapply, but discovered that I was expecting my daughter, and my life took a different—but wonderful—path.)

Do not think, however, that this is a moan about my lack of “privilege”. I had cause to reassess my notions of impact after the death of Professor John Gardner from Oxford earlier this year. When I saw he had died, I regretted that I had not emailed him about Chidi Anagonye from the television series The Good Place and had a laugh about the fact that Chidi says ‘nobody likes moral philosophers’ (it reminded me of John). I do not actually know if John was cited by courts or not, or how many people have cited him in their academic work. But I do know from the reaction to his death that he had a profound impact upon everyone he taught or interacted with.

I eventually did get to Oxford (as a visiting scholar) in 2013. I had read a lot of John’s work and found it enlightening and humane: he had a way of making the complex seem simple, and his writing changed the way in which I had been thinking about an issue. I contacted him out of the blue, and he invited me to have lunch. He listened with interest to my work, and made some suggestions. I said that I was a little nervous about being in a place as august as this, and that my convict ancestors would surely be astounded. John laughed and said in his gentle Scots brogue that when he was a “wee lad” he had felt the same way. His kindness and generosity was extraordinary. I do not know if he realised the impact he had on me, but if I have “impact”, it is this I want to have: to make my students and other readers think, and to be kind and generous and welcoming. However, this kind of impact cannot easily be counted and calibrated for an application.

Impact and influence are tricky things to measure. My own hope now is simply that I am useful to someone (a student, a fellow academic, a practitioner or a judge) and that I make people think.

[Edited to add qualification to the situation in the United Kingdom. I have now been told that judicial citations may be taken into account as a measure of impact but that they must be carefully framed to be ‘counted’.]

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About Katy Barnett

Katy Barnett is a Professor at Melbourne Law School. She has published extensively in the areas of private law and remedies, and is a co-author of ‘Remedies in Australian Private Law’ with Dr Sirko Harder. In 2016 she received the Barbara Falk Award for excellence in teaching.

1 thought on “Opinion: The academy and the courts – Speech by Kiefel CJ

  1. Hi Katy,
    I read your post about Kiefel, CJ address regarding literature published by academic lawyers and its influence on judges. It was illuminating. As a student, I absolutely worship teachers, no matter what gender or background they come from, who make learning and understanding law a joy. Please keep up the good work. Regards.

    Yours Sincerely,
    Umer Khattak

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