Coper, Michael --- "We Are What We Write" [2006] ALRS 3

Last Updated: 7 May 2010

THE AUSTRALIAN NATIONAL UNIVERSITY

ANU COLLEGE OF LAW

Everyday I Write the Book:

Postgraduate Research Conference 2006

8 June 2006

We Are What We Write

Paper presented by

Professor Michael Coper

Robert Garran Professor of Law

Dean and Convenor, ANU College of Law

We Are What We Write

Ever since I published my first legal article in 1969—of all places, in the Jaipur Law Journal, published by the University of Rajasthan[1]—I have spent my professional life writing. The writing seems to have been passable enough: my first book won a prize;[2] my second book says on the back cover that I am ‘a master of English prose’ (though I may have written that myself);[3] and my most recent book—as I proprietorially and presumptuously call the multi-authored Oxford Companion to the High Court of Australia[4]—received widespread acclaim for its hidden treasures and subtle pleasures.[5] Yet I have never before been publicly introspective about it. This is the first time I have been asked to share my thoughts on the art of legal writing.

Paralysing introspection

I am very happy to have the opportunity to do so, but a little apprehensive about it. I think of the story of the centipede, handed down to me, though in an unusual way, by my former teacher and mentor Professor Julius Stone. After Julius retired from the University of Sydney in the early 1970s, we became colleagues in the early days of the new law school at the University of New South Wales, where he spent the last 13 years of his life as a Visiting Fellow.[6] For half the year, he was also a visitor at the Hastings College of the Law in San Francisco. During one year in which he wanted to stay a little longer at Hastings, he asked me to teach part of his course at UNSW on the judicial process. He kindly left me his extensive notes, but part way through the outline for one class he had inserted in square brackets a reminder to himself that read ‘here tell the story about the centipede’. I searched everywhere for that story, without success, and was forced to tell the students, who were intrigued by the mystery, that they would have to wait until I could get it from the horse’s mouth. In due course I did so, and it has stayed with me. A centipede was asked about his ability to walk: ‘with so many legs to coordinate, how do you manage to do it?’ The centipede thought about it for a moment—and never walked again.[7]

Are there any rules?

It is worth trying to be a bit introspective, however, to see if one can identify some useful rules of good writing. Again I am apprehensive. I am not an expert on the subject, and am only dimly aware of the vast literature that must surely exist on it. Moreover, I sense problematic issues with the universality of general rules. May there not be a kind of cultural relativism in the art of good writing? Is there not merely a plethora of culture-bound conventions that play out in forms as diverse as, say, the Japanese haiku and the Shakespearian sonnet?

My instinct and experience—the only tools I have to compensate for my lack of technocratic expertise—tell me that there are useful general rules, of which, first and foremost, the imperative for clarity springs to mind. Yet even there I hesitate. I am conscious of the school of postmodernism that speaks of ‘the tyranny of lucidity’.[8] On the same theme, and in case you thought that school of thought was dead, I read in the newspaper only last week of a defence from a surprising quarter—the Australian Research Council no less—of obscurity and inaccessibility; indeed, the incapacity of some scholars to clearly articulate and explain their research was romanticised as part of the ‘magic of complexity’.[9] A former colleague of mine and I once talked much, with a mixture of bemusement and affection, about the virtues of what we called ‘controlled ambiguity’ in constitutional interpretation, but the views of the ARC spokesperson, if correctly reported, go somewhat further. And, in a further gloss on the search for general rules, I have to concede—indeed, I champion the proposition—that, as with everything in life, good writing is a subtle mix of knowing when to follow the rules and when to break them.

We are what we write

So with those caveats, let me venture a few thoughts on the art of writing, particularly of legal writing, and with special reference to legal biography, which I have been asked to address because it is one of my current research projects, though with a focus on oral rather than written history. Notwithstanding the caveats, there are, I think, some general rules. Writing is a craft, and it can be done well or badly. There is obviously a certain subjectivity in the assessment of whether writing is good or bad, but it surely cannot be so subjective that we throw up our hands and eschew any kind of objective evaluation, or so contestable that we give up the search for general principles. Yet at the end of the day, you have to exercise your own personal judgment. You will have to make your own choices, and you will have your own style. No amount of rules can squash or stifle your own individual personality, nor should they. The subtlety and complexity of human thought, and the richness of language, guarantee that. Indeed, whether we like it or not, we are what we write.

‘We are what we write’. Just reflect on that a little. You can perhaps see it, or rather hear it, more clearly in music.[10] As an aficionado of classical music, I can generally hear distinctive phrases, chord patterns, rhythms, and so on, that enable me to tell (although I could not explain the differences technically) whether I am listening to, say, Mozart, Haydn, or Beethoven, even if I am unfamiliar with the particular piece. Without pinning down the composer, I can generally tell if what I am listening to is Italian, German or Russian, although one has to be aware of national stereotypes and also of blended styles.

To revert to legal writing, I used to pride myself on being able to pick up a High Court judgment and tell from the style which judge had written it, before checking out who it was. This was a skill derived from close study, a fascination with style (perhaps even over substance), and a fourteen-year stint writing the headnotes for the major constitutional cases reported in the Australian Law Reports from 1974 to 1988. Nothing, by the way, hones your skills of precise analysis and clear writing like the search in a complex constitutional case, with seven separate judgments, for the exact propositions that command majority support, and the discipline of rendering them in a written form that lives for posterity in the law reports. It is an art that is largely missing today from the law reports (though one generally sees the world in decline as one gets older). Of course, the Court itself could do a lot more to make the reporter’s task easier. But that issue would take us into the more substantive debates about the value of court-generated summaries, the relative merits of joint vs separate judgments,[11] and indeed about the jurisprudential concept of the elusive ratio decidendi.[12]

Identifying the author of a judgment simply from the ‘look and feel’ of the judgment is more of a challenge today because it may be the work of many hands. I am not referring only to joint judgments, which are not new, but also to the incorporation of material prepared by associates. This has been much more of an issue in the United States than in Australia, but it does inhibit generalisation about the legal writing of a particular judge.

Even in times past, there are some quirky examples of disjunction between real and attributed authorship. Although so bizarre as to be unlikely ever to be exactly replicated, I cannot resist here recounting the strange story of the reluctant concurrence of Justice McTiernan in the case of Hughes and Vale Pty Ltd v NSW (No.2) in 1955. Having dissented for many years in the line of cases leading up to this case, Justice McTiernan was finally persuaded to sign up to the joint majority judgment, a judgment of Chief Justice Dixon, Justice Webb, and himself. Yet evidently he couldn’t quite let go. He noted in a separate ‘addendum’ that he desired to make ‘some brief observations for myself’, and said this:

In the joint judgment to which I am a party there is stated, as I believe adequately, with respect to the particular problem these cases raise, what appears to be the true operation of the views which in the past I had found myself unable to share. But perhaps I may be permitted to say that I remain personally far from convinced that the result is one which the framers of s92 either intended or foresaw.[13]

So far so good—a little unusual, a little more elegant than one would normally expect of McTiernan, and a little hard to know quite what to make of, but something one might read, take at face value, and momentarily experience a mixture of wry amusement and empathy. But wait, there’s more! It appears from the Dixon diaries[14] (now there’s another kind of legal writing altogether) that this plaintive expression of lingering discontent with the Dixon view of s92 was actually written for McTiernan by Dixon himself, at McTiernan’s request![15]

For whom are you writing?

I make this excursion into judgment writing, and into the minor theme of attribution of authorship, just to underline that ‘legal writing’ is not a single phenomenon but comes in many forms:[16] judicial opinions, academic articles, scholarly books, popular articles and books, legal advice, legal argument, legislative drafting, drafting of private instruments such as contracts and wills, government reports, media commentaries—and of course, of most relevance to this audience, PhD theses. Some of the rules of good writing will transcend the form, but one such transcendent rule relates to the form, or perhaps more accurately to the nature of the legal writing. That is, you must always be conscious of for whom you are writing, who is your audience.

If the answer or answers to this question are really teased out in relation to, say, judgments of courts, then there is good potential for a valuable debate about the goals and purposes of published judicial opinions and consequently the shape they should take.[17] We might then, for example, more easily distinguish a genuine contribution to law-making from a self-indulgent parade of learning for its own sake. If the question is asked in relation to legal advice, the answer is usually a little easier. Early in my career in legal practice, I learnt about the imperative of client needs in a quite emphatic way. I had written what I thought was a beautifully crafted 15-page exposition of the relevant law, I had wrestled in a subtly nuanced way with its application to the client’s problem, and I had come up with a conclusion that I thought usefully allowed the client to go down a number of alternative paths. My supervising solicitor was unimpressed. He said bluntly (and this is the sanitised version), ‘the client is not interested in a detective story; he wants to know what our advice is—on page 1.’ I never learned a better lesson about the value of an ‘executive summary'!

Who is your audience as you write your PhD theses? Strictly speaking, it is, of course, a very limited one: your examiners—those two or three wise and infallible persons (theoretically representative of the relevant scholarly community), who must certify that your work meets the requisite standards of original research and coherent presentation. As we know, meeting those standards does not make the thesis immediately ripe for publication—indeed, publishers are renowned for their wariness of turgid dissertations on narrow topics of limited appeal (though they are also often guilty of stereotyping PhD theses in that way)—but if you follow the general rules of good writing, I think that you will not only have travelled a long way down the path of likely publication, but will also have immeasurably improved your thesis.

This is because good writing is, in part, an exercise in the clear and persuasive communication of ideas. The art of persuasion is a much larger topic, but I commend to you, for example, Chester Porter’s recent distilled wisdom on this subject.[18] If you write poorly, you will not connect with your audience and you will not be persuasive, no matter how good your ideas might be; if you write well, you will not necessarily persuade—but you will have greatly enhanced your chance of doing so. I don’t want to get into the difficult debate of substance vs style, but I would say that, while one hopes that, in a rational world, it is substance that carries the day, a little bit of elegance goes a long way.

Some rules of good writing: a personal perspective

What, then, are the rules, I ask, after this long and discursive introduction? As I said, I do not pretend to be an expert, and can only offer my reflections from personal experience, spanning many years of both writing and reading. What follows is a very personal perspective. As I said earlier, you will have your own views, your own choices, and your own style.

Clarity

I think that there are five basic rules. The first, uncontroversially, is clarity. Although a vast topic in itself—conceptually and in application—I would say only two things about this. First, there are well-known techniques and many useful handbooks on the avoidance of ambiguity and the achievement of clear accessible prose. It is not my purpose today to go into the detail.[19] If you feel the need to go back to basics, or to have a refresher, as the most accomplished writer should be able to do without embarrassment, I can do no better than to commend to you Sir Ernest Gowers’ Complete Plain Words, first written as a manual for the British civil service in 1948, but written with wit, humour, and good sense.[20]

Second, and equally briefly, I am wary of the claims of arcane scholars who appear to speak only to each other and to develop a special, exclusionary vocabulary to be able to do so. I would not be so bold or so crass as to suggest that this kind of scholarship is necessarily pretentious clap-trap, but I think that it is often lazy, or a misguided attempt to be elitist, or just poor craft. I do believe that even the most complicated ideas can be rendered and communicated in a reasonably accessible way without dumbing-down or condescension, and that how clearly you can state something is a bit of a test of how well you understand it, but I acknowledge that that is a big debate and that others may disagree.

Coherence

My second basic rule goes to structure and overall coherence. There is no single right model here, but most good writing has, I think, a beginning, a middle, and an end. That does not mean that all good writing is essentially story-telling (though that is what I really like); but the reader is entitled to an orientation and foreshadowing, an exposition, and a recapitulation or conclusion. I may be disclosing some psychological hang-up here about cohesion, completeness and symmetry, or simply hinting at my subjective taste in classical music, but I dislike legal texts that fail to give a context or general orientation or which just stop when they have dealt serially with their enumerated topics. I am not averse to a writer expecting effort on the part of the reader, but that needs to happen, I think, within an identifiable and coherent framework.

Purpose

My third basic rule requires a clarity of understanding of the kind of writing you are engaged in, and of the different kinds of purposes that you might be seeking to achieve. In this respect, I suggest that there is a useful typology of purposes here, even, to some degree, a hierarchy. I am not sure if I have all bases covered, but, in my view, it is important to distinguish between whether you are engaging in

(i) description

(ii) analysis

(iii) explanation

(iv) criticism

(v) evaluation

(vi) justification, or

(vii) recommendation.

True, these categories will often merge, but they are analytically distinct and may assist clear thinking and clear writing.

They also expose the hard questions. What is the basis for explanation (historical development, social change, psychology, chance)? What are the criteria for criticism and evaluation? Can the criticism and evaluation be turned into positive proposals for change or reform? What are the assumptions behind the advocacy or justification of a particular point of view?

When you combine these seven different perspectives with the different kinds of legal research, of which, according to the Council of Australian Law Deans, there are at least ten,[21] covering

(i) doctrinal

(ii) theoretical

(iii) critical/reformist

(iv) fundamental/contextualist

(v) empirical

(vi) historical

(vii) comparative

(viii) institutional

(ix) process-oriented, and

(x) interdisciplinary,

then you can see how diverse the product of your legal writing might be. Indeed, I can see it in the abstracts of your research in the printed program. But I urge you to ask yourselves, what general purpose, from the typology of purposes I have suggested, are you trying to achieve here? What is the central point you are trying to make? The answers may be instructive and may assist you in organising your thinking.

Aesthetics

My fourth basic rule is somewhat intangible, but important nonetheless. It goes to the aesthetic quality of your writing. Without wishing to suppress or cramp individual styles, I would say that balance, elegance, and flair is good; imbalance, ungainliness, and the mundane, is bad! So much is obvious, but how to achieve it, especially without contrivance or striving for effect for its own sake, is more elusive.

There is no single method—it was as effortless for Mozart as it was a struggle for Beethoven—and it may come as much with the flush of youth as with the wisdom of experience. I have no practical suggestions here (and, indeed, perhaps there is a genetic aspect to the presence of this ability), except to say that if you strive to follow the other basic rules of good writing—clarity, coherence, simplicity, accessibility—much can follow in terms of style, and holding the interest of the reader. All I can say is, read widely yourself, absorb, assess what you think works and what does not, practise your own writing, have others criticise it, experiment, and do not be afraid of misfiring. Above all, be yourself—we are what we write.

Insight

My fifth and final rule of good legal writing moves from style to substance, if those things be different. Good legal writing has something to say. It is not just a matter of form. It is about insight.

In other words, in the final analysis good legal writing enhances our understanding because of the writer’s contribution to knowledge. US Supreme Court Justice Oliver Wendell Holmes’ reputation as a great writer did not come merely from his deft turn of phrase. It came also from the sharpness of the observation and the richness of the insight. That, of course, made him not just a great writer but a great jurist.[22]

If there is no recipe for good aesthetics, there is certainly none for insight. No doubt this ability is a combination of innate capacity and hard work. I think it is partly about making connections between superficially disparate phenomena, a feature that transcends but also resonates with the unique combination of inductive and deductive elements that go to make up legal reasoning.[23] Of course not every insight in legal writing is necessarily groundbreaking or material for a Nobel Prize. Small gains may be made within modest parameters, and their accumulation is largely what defines legal research. Your PhD thesis is an incubator for legal insight within your defined parameters. If you follow my first four rules of good legal writing, you will have a good platform for your best shot at the fifth.

A personal journey

I have said that writing is a very personal thing, so that gives me a bit of an excuse to say something about the progression of my own writing career—not necessarily as a model for any of you aspiring scholars, but just to illustrate some of the things I have been saying. I love writing, as a satisfying creative activity, although I do understand the sentiment of the famous writer who said it was more accurate to speak of the enjoyment of ‘having written’[24]—it really can be hard work. But, with all the caveats about short-term pain and long-term gain, and not confusing instant gratification with deep satisfaction, I hope that you are enjoying what you are doing—if not, you should really ask yourself whether you have embarked on what is, for you, the right journey.[25]

I mentioned at the outset that my first published piece was an article in the Jaipur Law Journal. In retrospect, it was ridiculously ambitious. I wrote it as a law student at the University of Sydney for the final year jurisprudence seminar, and it tackled the smallish question of the definition of law.[26] At the time I thought it was great. Revisiting it now, I can see why it never became part of the mainstream of western jurisprudential thought. Of course, the location of the publication did not help. Jaipur—the pink city—is a spectacular place on the fringe of the Rajasthan desert, but the Jaipur Law Journal has not quite managed to secure the kind of foothold in the publication of legal scholarship enjoyed by, say, the Harvard Law Review.

My interest in India came about through the influence of my teacher at Sydney University, Professor Upendra Baxi, and having published my undergraduate paper in the Jaipur Law Journal, I took off to India to study for a year at the University of Rajasthan, under Professor GS Sharma, the transplantation of British law in a foreign culture. While I was there, I published a second article in the Jaipur Law Journal, this time comparing the free trade provisions in the Indian and Australian Constitutions.[27] When I returned to Australia, I re-read the article and decided, with a little more self-insight than I had brought to bear on my first article, that I really did not understand the area at all. My solution was to enrol in a PhD, and to get to the very bottom of the subject in that way. The driver for me was intellectual curiosity—not credentialism, not status, not escapism—and I hope that, deep down, that is what drives you, and that in saying that I am not being unduly idealistic. I found the task challenging, especially as a part-time student, but rewarding.

In due course (which, by the way, is a euphemism for a ten-year period, after which UNSW was prompted to introduce a maximum time requirement), I completed the thesis, and subsequently published it as a book.[28] Looking back, and thinking about my broader interests now, I am struck by the fact that it is entirely doctrinal, or at least doctrinal within a context of historical development. I recognised in the Preface that, by itself, doctrinal analysis 'will reveal nothing of the factors at work in the judicial process, and will provide a tempting but illusory guide to the law as it will become'.[29] I went on to say that ‘paradoxically, however, one must attempt to expound doctrine to the utmost, to the very limited of coherence and plausibility, if one is to persuade that such an approach, by itself, yields only an incomplete and superficial understanding of the law’.[30] In other words, my strong instinct was that you could not really understand the mess that the High Court had made of this area without thinking about it in its political, social, economic, and psychological context, but I felt nevertheless that, for credibility, I needed not merely to assert but also to demonstrate by close analysis that the law was in such a state of chaos that the judges were free to go in any direction (and, indeed, should go in the direction I recommended).[31]

Looking at your PhD abstracts in the printed program, there is a much greater emphasis on conceptual, theoretical, and empirical research. Interestingly, I was an examiner recently on a PhD thesis that was entirely doctrinal. As I had been in my own thesis 25 years earlier, I was a little uncomfortable about whether an argument for a particular interpretation of the Constitution could really be sustained without a broader consideration of, inter alia, the suitability of the judicial process for determining the particular question at all—essentially an institutional rather than a doctrinal issue. At the end of the day, I had no difficulty in accepting the thesis on its own terms. Not only must a thesis have manageable parameters—you cannot solve all of the problems of the world in one hit—but doctrinal analysis, even on its own terms, is a distinctively legal skill that can ground a genuinely creative and original contribution to knowledge. Indeed, the development of the common law through the selection and synthesis of different strands of prior reasoning may be a distinctive part of legal research that should prevent it from being thought of as wholly within the humanities or wholly within the social sciences.[32] Legal doctrine may not be able to be properly understood without the benefit of the insights of the humanities and social sciences, but it is a phenomenon that exists in its own right.

The story of my experience with my next book, Encounters with the Australian Constitution,[33] may underline the importance of your PhD theses. Having established my scholarly credentials with a fairly traditional doctrinal analysis, I bought a kind of freedom to innovate. Encounters not only has a human interest angle—important, I think, in its own right, and to make the legal analysis accessible—but it also has around 100 illustrations, including photographs and cartoons. This is perhaps more commonplace today, but was not so common then, at least in legal writing. I am convinced that, had Encounters been my first book, it would not have been taken as seriously. In those days at least, the pictures would have been taken to trivialise what was in fact a serious work of scholarship. I am not suggesting that you cannot be experimental and innovative in your PhD theses; but once you have been certified as an authentic legal scholar, you should feel free, I think, to throw off any remaining shackles.

Skipping a decade in which the major outlet for my writing was government reports[34] and legal opinions[35]—as subject, I hope, as any kind of legal writing to the rules of good legal writing that I urged upon you earlier—my next major project was the somewhat quirky Oxford Companion to the High Court of Australia, a book of around 400 entries from A to Z, each of between 500 and 4000 words, on issues touching the Court.[36] I am often asked whether the alphabetical organisation of the book was a major constraint on its capacity to make a major contribution to scholarship. Quite the contrary. My co-editors and I found it to be a wonderfully liberating framework with which to explore the hidden corners and dark recesses of the Court’s work. And the critics liked it.[37] Of course, these critics were uniformly perceptive, wise and discerning human beings.

The distilled wisdom of a short essay is a particular art, and I have gravitated towards that as I have progressed in my career—not only because being a Dean leaves little time for anything else, but also because I think one naturally becomes more reflective as one gets older, or at least one’s reflections have an increasing chance, one hopes, of having some substance behind them. The genre of short essays or reflective pieces is no substitute for a comprehensive, groundbreaking piece of original research—they all have their own place—but again should be subject to the same discipline of the rules of good writing. Aside from some favourite entries in the Oxford Companion and perhaps my forthcoming edition of Collected Memos to the Vice-Chancellor,[38] the piece of my own writing that I currently like best is my Foreword to the 3rd edition of my colleagues Stephen Bottomley and Simon Bronitt’s book, Law in Context.[39]

It is only two pages, but it pays homage to the pervasive phenomenon of antinomies in the law, especially the tension between law as an autonomous body of knowledge and law as intelligible only by reference to its context. A former colleague once remarked to me that the dominant theme in my legal writing is the unresolved tension between competing ideas (as you might have gleaned from my earlier struggle with the place of doctrine). That is just how I see the world; it is not a prescription for how others should see it. Others will see it differently—that is the beauty of intellectual endeavour. Some, for example, will take a strong or extreme position and seek to advance knowledge through the provocation of reaction; others will seek progress in the more moderate strategy of taking smaller and more measured steps. Now there's another tension (just to reclaim my perspective), and, I suspect, another dilemma for you thesis writers. (And is this a matter of style or of substance?!)[40]

Judicial biography

I promised to say something of legal biography, though I am even less expert here than on legal writing generally, having only just embarked on the High Court oral history. It is not a genre that is well-established in Australia,[41] though it flowers in the United States. General biography flourishes—we seem to have a fascination with life stories, both in their own right and as a vehicle or organising principle for broader observations about culture, history, and society—but, until recently, biography in Australia seems to have been undervalued as a serious scholarly discipline. It may have been stereotyped as merely descriptive, or it may have been marginalised by the different perspective of postmodernism. In any event, it is somewhat surprising in relation to judicial biography, as there is vast untapped potential in that field not just for exploring the richness of life histories, but also for pursuing the connections between judicial life experience and the nature of the judicial process. There are signs however, of reviving interest. The Australian Research Council funding of myself, Fiona Wheeler and John Williams to do an oral history of the High Court[42] is such a sign.

An echo of the infinite...

We can talk more about biography in discussion. Let me finish by urging you to familiarise yourselves with instructive examples of good writing and bad writing—just as aspiring painters copy the great masters (and yet develop their own style).

It would be invidious of me to single out any example of bad writing, and much better in any event to finish on a positive note. I go back to the great writer and jurist Oliver Wendell Homes, master of the arresting aphorism and elegant insight. He is, I think, the single most-quoted author in the The Oxford Dictionary of American Legal Quotations.[43] I particularly like his observation that 'continuity with the past is not a duty, it is merely a necessity’.[44] But let me finish with his great essay, ‘The Path of the Law’, originally given as a speech to law students at Boston University Law School in 1897.[45]

The whole essay repays re-reading, especially for Holmes' uncanny anticipation of the legal realist movement some 30 years later, but this is how he concludes:

To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples, read Mr Leslie Stephen’s History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.[46]

That last sentence, in particular, may provide some inspiration for you as you slog away on your major undertaking, so deceptively understated by the simple enumeration of those three letters: P-h-D.

Michael Coper

8 June 2006

[1] Michael Coper, 'The Definition of Law and the Directive Principles of the Indian Constitution' (1969) 9 Jaipur Law Journal 1.

[2] Michael Coper, Freedom of Interstate Trade Under the Australian Constitution (Butterworths, 1983) (Butterworths 70th Anniversary $10,000 Book Award 1984).

[3] But see (1988) 62 Australian Law Journal 100, 101. I did in fact do a bit of editorial ghost writing for the late Joe Starke, the then editor of the Australian Law Journal – see, for example, 'The Inter-State Commission and Section 92 of the Constitution' (1988) 62 Australian Law Journal 586 – but even I would not have had the chutzpah to write my own book review (unlike Martin Gardner, former author of the mathematical puzzles in Scientific American and of The Annotated Alice in Wonderland, in a famous but mislaid review in The New York Review of Books).

[4] Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001).

[5] See, for example, Melvin I Urofsky (2001) 4 Constitutional Law and Policy Review 57; Hugh Dillon (2002) 241 Australian Book Review 21; Roy B Flemming (2002) 12 Law and Politics Book Review 404; Michael Kirby (2003) 77 Australian Law Journal 705; Andrew Le Sueur [2003] FedLawRw 8; (2003) 31 Federal Law Review 243; Joshua Getzler (2003) 119 Law Quarterly Review 256.

[6] See Marion Dixon, Thirty Up: The Story of the UNSW Law School 1971-2001 (UNSW Law School, 2001) 157; Leonie Star, Julius Stone: An Intellectual Life (Oxford University Press, with Sydney University Press, 1992) 243-264.

[7] Leonie Star, Julius Stone: An Intellectual Life (Oxford University Press, with Sydney University Press, 1992) 183.

[8] Catherine Belsey, Critical Practice (Methuen, 1980) 4-5.

[9] Bernard Lane, 'Magic of complex research lauded', The Australian, Higher Education, 31 May 2006, p31.

[10] Cf Malcolm Gillies, 'Fingerprints of Genius', paper presented at Breaking the News: The Humanities Writing Project, Humanities Research Centre conference, Australian National University, 24-26 May 2006. Interestingly, Professor Gillies also independently coins the phrase 'we are what we write'. For abstracts: http://www.anu.edu.au/HRC/conferences/conferences_2006/BreakingtheNews.php (viewed 16 July 2006).

[11] Michael Coper, 'Joint Judgments and Separate Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 367.

[12] Tony Blackshield, 'Ratio Decidendi' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 579.

[13] Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, 183.

[14] Philip Ayres, 'Dixon Diaries' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 222.

[15] Michael Coper, 'Concurring Judgments' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 129, 130; Michael Kirby, 'McTiernan, Edward Aloysius' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 466, 468.

[16] Catriona Cook et al, Laying Down the Law (Lexis Nexis Butterworths, 6th ed 2005) 384.

[17] Michael Kirby, 'On the Writing of Judgments' (1990) 64 Australian Law Journal 691; Frank Kitto, 'Why Write Judgments? (1992) 66 Australian Law Journal 787.

[18] Chester Porter QC, The Gentle Art of Persuasion (Random House Australia, 2005).

[19] I mention only one favourite example of failure to avoid ambiguity. Years ago, I read an advertisement placed in The Sydney Morning Herald by the Law Society of New South Wales during Law Week that said: 'Mutual wills are a good idea to cover situations in which husband and wife die simultaneously. A solicitor can advise on how this might be arranged'.

[20] Sir Ernest Gowers, The Complete Plain Words (Penguin Books, 2nd ed revised by Sir Bruce Fraser, 1973).

[21] See CALD Statement on the Nature of Legal Research 2005, viewed at http://www.cald.asn.au/ 8 June 2006.

[22] Michael Coper, ' The Path of the Law: A Tribute to Holmes' (2003) 54 Alabama Law Review 1079.

[23] Tony Blackshield, 'Judicial Reasoning' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 373.

[24] Attributed to many writers but most often to a characteristic quip of Dorothy Parker. When asked what she enjoyed most about writing, she is said to have replied, 'having written'.

[25] See further Michael Coper, 'On Building A Successful Career as an Academic Lawyer', paper presented to the Legal Academic Job Network Session, ALTA Conference 2006, Victoria University, Melbourne, 5 July 2006.

[26] Michael Coper, 'The Definition of Law and the Directive Principles of the Indian Constitution' (1969) 9 Jaipur Law Journal 1.

[27] Michael Coper, 'Freedom of Trade in India and Australia: Introductory Thoughts on the Nature of Judicial Choice' (1970) 10 Jaipur Law Journal 1.

[28] Michael Coper, Freedom of Interstate Trade Under the Australian Constitution (Butterworths, 1983).

[29] Ibid iv.

[30] Ibid.

[31] See now Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360.

[32] See CALD Statement on the Nature of Legal Research 2005, viewed at http://www.cald.asn.au/ 8 June 2006.

[33] Michael Coper, Encounters with the Australian Constitution (CCH Australia Ltd, deluxe ed 1987, pop ed 1988).

[34] See, for example, all or part of Report to the Constitutional Commission, Advisory Committee on Trade and National Economic Management (AGPS, 1987); 14 volumes of the Reports of the Inter-State Commission (AGPS, 1988-1990); Reports to the Minister for Transport and Communications of the Tasmanian Freight Equalisation Review Authority (1988-1998); Working Hours for Drivers in the Australian Long Distance Road Freight Industry, Report of the Special Task Group to the Minister for Transport and Communications (1992); The Third Paragraph of Section 53 of the Constitution, House of Representatives Standing Committee on Legal and Constitutional Affairs (AGPS, 1995).

[35] As legal counsel at Sly & Weigall (later renamed as Deacons, Graham & James), 1991-1994.

[36] Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001).

[37] Above n5.

[38] For the avoidance of doubt, this is a joke.

[39] Stephen Bottomley and Simon Bronitt (eds), Law in Context (The Federation Press, 3rd ed 2006) v.

[40] For an elaboration of the themes in this paragraph, see now Michael Coper, 'Legal Knowledge, the Responsibility of Lawyers, and the Task of Law Schools', paper presented at the Opening Plenary Session, ALTA Conference 2006, Victoria University, Melbourne, 5 July 2006.

[41] Clifford Pannam, 'Judicial Biography: A Preliminary Obstacle' [1960] UQLawJl 4; (1964) 4 University of Queensland Law Journal 57; James Thomson, Judicial Biography: Some Tentative Observations on the Australian Enterprise' [1985] UNSWLawJl 24; (1985) 8 University of New South Wales Law Journal 380; James Thomson, 'Biographies and biographical writing' in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 63.

[42] 'Judicially Speaking: An Oral History of the High Court of Australia', Australian Research Council Linkage Grant (with the High Court and National Library of Australia), LP 0667725.

[43] Fred R Shapiro, The Oxford Dictionary of American Legal Quotations (Oxford University Press, 1993).

[44] Holmes, 'Learning and Science' in Holmes, Collected Legal Papers (1920) 139.

[45] Holmes, 'The Path of the Law' in Holmes, Collected Legal Papers (1920) 167.

[46] Ibid 202.