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Some problems with extrajudicial writing

journal contribution
posted on 2023-05-17, 15:19 authored by Susan BartieSusan Bartie, Gava, J
Since the Second World War, judges in Australia and the United Kingdom have increasingly written legal articles and textbooks. The purpose of this article is to test current dogma, which paints as innocuous the practice of extrajudicial writing on points of law, by showing that there are some very real problems raised by the practice; problems that threaten the integrity of the judiciary. We argue that committed writing by sitting judges amounts to prejudging of potential legal issues, and acts as a signal to potential" litigants. It is also argued that committed extrajudicial writing differs in its effects to holdings in previous cases; that it is different in fundamental ways from the writing of academics who subsequently become judges or the advocacy of barristers and solicitors who go on to become judges, and that its contemporary prevalence is not a measure of its appropriateness. Finally, we will offer a solution to the problems that we have identified: judicial silence.

History

Publication title

Sydney Law Review, The

Volume

34

Issue

4

Pagination

637-658

ISSN

0082-0512

Department/School

Faculty of Law

Publisher

The University of Sydney Law School

Place of publication

Sydney

Rights statement

Copyright 2012 Sydney Law Review

Repository Status

  • Restricted

Socio-economic Objectives

Justice and the law not elsewhere classified

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