Spigelman AC, The Honourable J J --- "Federal Law Review 40th Anniversary Dinner" [2005] FedLawRw 1; (2005) 33(1) Federal Law Review 1
ADDRESS BY THE HONOURABLE J J SPIGELMAN AC
CHIEF JUSTICE OF NEW SOUTH WALES
FEDERAL LAW REVIEW:
40TH ANNIVERSARY DINNER
CANBERRA, 28 OCTOBER 2004
The role of student-edited law reviews and whether or not they have a future has been the subject of controversy for many decades.[1]
When Justice Michael Kirby published a defence of law reviews a few years ago, he said: 'To justify a new journal, the publisher must offer something that current journals do not provide. As well, law schools, proliferating in such number, need to differentiate their products.'[2]
From 1935 when Melbourne University Law School commenced to publish Res Judicatae, which became the Melbourne University Law Review in 1957, until today when there are almost 30 university law reviews, the Federal Law Review is the only one that identified a specialist field from the outset. In 1964 it became the seventh university law review following Melbourne, Queensland, Western Australia, Sydney, Tasmania and Adelaide. Sir Kenneth Bailey, then Solicitor-General of the Commonwealth in a Foreword to the first issue of the review emphasised the distinctive contribution that the focus of attention on federal matters would make to Australian legal literature.
For anyone launching a new and different product it is of crucial significance to have the insight to identify a growth area. Those who chose to emphasise federal jurisdiction as an area of specialisation in 1964 displayed one of the most impressive feats of perspicacity in all of Australian legal academic history. It is only necessary to mention some of the events of the next decade or two which gave rise to so significant an expansion of federal jurisdiction as to constitute the most dramatic change in the administration of justice since the creation of the Commonwealth.
Within a decade or so the High Court would liberate the corporations power and the external affairs power, the Family Court and Federal Court would be established, the Commonwealth Parliament would pass the Trade Practices Act, adopt the administrative law package and implement an invariable practice, not yet enshrined in the Constitution, that the Income Tax Assessment Act must double in size in every two or three years. Within a few more years there would be the first national scheme of corporations and securities law. Furthermore, sometime within two decades or so, one of the great transitions in economic history would occur, one with particular significance for federal jurisdiction. For all of human history there can be little doubt that, if one could ever do the calculation, the most important single item of wealth in the world was real estate. Sometime, probably in the 1980s or 1990s, that changed. The total value of the world’s intellectual property came to exceed the total value of the world’s real estate. The divergence has been increasing ever since. It is always convenient to follow the money.
It is a personal honour for me, and a tribute to the autochthonous expedient of investing State courts with federal jurisdiction, that you have invited a State Chief Justice to mark this anniversary. Constitutional and federal matters constituted a substantial proportion of my practice at the Bar. My involvement with federal jurisdiction has been less significant since my appointment, six years ago.
The perspicacity of your first editors is manifest in the first article published with the citation [1964] FedLawRw 1; (1964) 1 Federal Law Review 1. This was an article by Sir Garfield Barwick on the subject of the new Federal Superior Court, as the court that became the Federal Court of Australia was then proposed to be known. Sir Garfield had written the article in his capacity as the Commonwealth Minister with responsibility for designing the new court. By the time the article appeared he had been appointed Chief Justice of Australia. Sir Garfield made it clear that in his opinion, save with respect to proceedings under the then Matrimonial Causes Act 1959 (Cth), the jurisdiction of the Federal Superior Court with respect to most areas of federal jurisdiction should become exclusive. In some respects that proposal has been implemented from time to time in particular areas. Nevertheless there remains a considerable overlap between the jurisdictions of the Federal Court and State Supreme Courts.
At the time of my appointment to the Supreme Court of New South Wales I became a little disconcerted about the way some of my old friends in the Federal Court began to treat me as some kind of trade rival. However, over the years the relationship has stabilised and is now entirely amicable.
The cooperative spirit of interaction between the jurisdictions was considerably enhanced during the years that the cross-vesting scheme was allowed to operate. This led to a great deal of mutual adjustment in a spirit of cooperation. The cross-vesting scheme worked extremely well. It was a scheme of great practical significance. It ensured that the administration of justice could be conducted with a minimum of technical disputation. It operated without, so far as I am aware, even a hint of criticism for a decade. Of course, it should have been obvious that it had to be illegal. So it proved.
There is a long tradition of competition between courts. Some of the most important areas of the law were developed under the competitive thrust of direct personal interest.
For many centuries the four major courts of England, the Court of Common Pleas, the King's Bench, the Exchequer and the Chancery, actively competed with each other. The Court of Common Pleas was supposed to hear all matters between individual subjects; the Exchequer was concerned with matters of revenue; and the King's Bench handled all matters involving the King and the King’s peace, including all crime and all other matters of peace like trespass. It had a jurisdiction over anybody in prison.
The competitive instinct was not based on institutional pride. The critical motivation was that judges and court officials kept all the court fees. That was how they were paid. When the income of judges from fees was taken away by statute, in 1826, their salary was raised from ₤2400 per year to ₤5500 per year. Offices in the court, such as that of the Master, were openly bought and sold for substantial capital sums, payable, I should emphasise, to the head of jurisdiction like a Chief Justice. As early as 1639 the officer of Master of the Rolls was sold at auction for ₤15 000. A Commission of Inquiry in 1810 found a range of particular offices in the courts that were available to be purchased. Many, which were nothing but sinecures, producing up to ₤12 500 a year, for doing nothing.
Judges and court officers became very wealthy men. They had real financial interests at stake when maximising litigation in their court. This was reinforced by the interests of the specialist bars that grew up around each court.
Significant parts of our procedural and substantive law were created by judges in order to attract work to maximise their status and income. The judges of the King's Bench, which had a vested interest in getting litigants into one of His or Her Majesty’s prisons, created a fiction that a person had committed a trespass, under what was called the Bill of Middlesex. The beauty of this allegation was that the Court of King's Bench simply refused to allow anyone to deny it. Once in prison, the Court had jurisdiction over any aspect of that person’s affairs.
The Court of Exchequer acted in a similar way. Although it was concerned only with the protection of the revenue, it adopted a doctrine that whenever a person was asked to pay money to another, that person would become less able to pay taxes. Accordingly, the Court of Exchequer could determine the claim. As all of you will clearly understand, this has a clear resonance in the jurisdiction that may be found to be accrued or pendant to the Federal Court’s jurisdiction under the Income Tax Assessment Act 1997.
In Adam Smith’s The Wealth of Nations there is a section in which he refers to causes of action like trespass as an entirely beneficial development arising from competition between courts. He concluded that the spur of competition, driven by the financial interest of judges, meant that judges created law which best served the interests of parties. I assume, without knowing, that somewhere in the vast law and economics literature the views of Adam Smith have been taken up.
The system is not without its attractions, although Adam Smith did say that judges should not be able to collect fees until judgment was delivered. Nothing in the recent history of privatisation of governmental functions should make us sanguine that the deliberate creation of rival forums for dispute resolution is a mere historical curiosity. On that basis, the future of federal jurisdiction is very healthy.
Let me conclude with some observations about the future of the law review. Over recent decades there has been a considerable degree of speculation about the future of the book in the light of electronic publication. I don’t think I’m merely betraying my age when I say that electronic self-publication in the form of web logs and the like is unlikely to supersede journals. Nevertheless a process of adaptation will be required. An advocate of an electronic future has undertaken a systematic review of the historical literature about the resistance to the Gutenberg printing process.[3] Before printing the basic mechanism of scholarly communication was the scribal system which extended to factory-like scriptoria, particularly in monasteries, which were capable of a certain form of mass production. As one Dominican friar said at the time: 'The world has got along perfectly well for six thousand years without printing and has no need to change now.'[4]
He, and others of his opinion, expressed their concern that the benefit of the scribe’s editorial expertise and writing skills would be lost and that printing would permit too many spelling mistakes and typographical errors. More significantly, it opened up the possibility of publication by new sections of the community, people who would not be subject to the degree of censorship and other forms of restraint which authorities, particularly religious authorities, were able to impose. That same Dominican friar dismissed printed text as a product of 'ignorant oafs' permitting even 'uneducated fools to give themselves the airs of learned doctors'. He accused all printers of 'vulgarizing intellectual life'.[5]
Just as students are said to receive considerable educational benefits from their participation in student-edited law reviews, so this Dominican friar expressed concern about the loss of the educational benefits of copying manuscripts. As the friar put it: 'As he is copying the approved text he is gradually initiated into the divine mysteries and miraculously enlightened.'[6]
Finally, he was exasperated by the profusion of information. He was able to report that the city-state of Venice had already become 'so full of books that it was hardly possible to walk down the street without having armfuls of them thrust at you "like cats in a bag" for two or three coppers'.[7]
Of course we also have yet to find a way to tame the monster of easy electronic availability. One fact will highlight the problem. A search for the words 'information overload' on Google produces, as of yesterday, the self-satirical answer of 973 000 hits. I am sure the techniques for selecting from the available profusion of information will continue to develop. The style and content of law reviews and indices of legal periodicals will have to adapt to this new environment. There is little doubt in my mind that having a specific specialisation, as you do, will prove a great advantage in that process of adaptation.
As for the past 40 years and for the foreseeable future, student involvement in the production of a law review will remain one of the important rites of passage for a legal student. Perhaps I can leave you with some words of warning from Edward Gibbon who described, in his Decline and Fall, the greatest law school of the late Roman Empire, located in contemporary Beirut, manifesting even then the close bond between legal education and the judiciary or other forms of government service. Speaking of the period after the foundation of Constantinople, he said:
All the civil magistrates were drawn from the profession of the law. The celebrated Institutes of Justinian are addressed to the youth of his dominions who have devoted themselves to the study of Roman jurisprudence; and the sovereign condescends to animate their diligence by the assurance that their skill and ability will in time be rewarded by an adequate share in the government of the republic. The rudiments of this lucrative science were taught in all the considerable cities of the East and West; but the most famous school was that of Berytus, on the coast of Phoenicia, which flourished above three centuries from the time of Alexander Severus, the author perhaps of an Institution so advantageous to his native country. After a regular course of education, which lasted five years, the students dispersed themselves through the provinces in search of fortune and honour; nor could they want an inexhaustible supply of business in a great empire already corrupted by the multiplicity of laws, of arts, and of vices. The court of the Praetorian prefect of the East could alone furnish employment for 150 advocates, 64 of whom are distinguished by peculiar privileges, and two were annually chosen with a salary of 60 pounds of gold to defend the causes of the treasury …[8]
(I interpolate to note that tax practitioners have always been particularly well remunerated for obvious reasons.)
Gibbon went on to say:
The honour of a liberal profession has indeed been vindicated by ancient and modern advocates, who have filled the most important stations with pure integrity and consummate wisdom; but in the decline of Roman jurisprudence the ordinary promotion of lawyers was pregnant with mischief and disgrace. The noble art, which had once been preserved as the sacred inheritance of the patricians was fallen into the hands of freed men and plebeians, who, with cunning rather than with skill, exercised a sordid and pernicious trade. Some of them procured admittance into families for the purpose of fermenting differences, of encouraging suits, and of preparing a harvest of gain for themselves or their brethren. Others, recluse in their chambers, maintain the gravity of legal professors, by furnishing a rich client with subtleties to confound the plainest truth, and with arguments to colour the most unjustifiable pretension. The splendid and popular class was composed of the advocates who filled the Forum with the sound of their turgid and loquacious rhetoric. (Take heed the putative barristers among you.) Careless of fame and of justice, they are described for the most part as ignorant and rapacious guides who conducted their clients through a maze of expense, of delay, and of disappointment from whence, after a tedious series of years, they were at length dismissed, when their patience and fortune were almost exhausted.[9]
Plus ça change.
[1] See Fred Rodell, 'Goodbye to Law Reviews' (1936) 23 Virginia Law Review 38; republished in (1999) 73 Australian Law Journal 593 with commentary by John Gava at 597; Bernard Hibbitts, 'Last Writes?: Reassessing the Law Review in the Age of Cyberspace' (1996) 71 New York University Law Review 615; Symposium in (1996) 30 Akron Law Review 173; Justice Michael Kirby, 'Welcome to Law Reviews' [2002] MelbULawRw 1; (2002) 26 Melbourne University Law Review 1; John Gava, 'Law Reviews: Good for Judges, Bad for Law Schools?' [2002] MelbULawRw 29; (2002) 26 Melbourne University Law Review 560; Marilyn Pittard and Peter Heffey, 'Ancora Imparo: The Historical Role of the Law Review in University Scholarship' [2003] MonashULawRw 13; (2003) 29 Monash University Law Review 278. See most recently Richard A Posner, Against the Law Reviews (2004) Legal Affairs <http://www.legalaffairs.org/issues/November-December-2004/review_posner_novdec04.msp> .
[2] Kirby, above n 1, 2.
[3] See Hibbitts, above n 1.
[4] Filippo di Strata, quoted in Bernard Hibbits, 'Yesterday Once More: Skeptics, Scribes and the Demise of Law Reviews' (1996) 30 Akron Law Review 267, 269.
[5] Ibid.
[6] Ibid 270.
[7] Ibid 269.
[8] Edward Gibbon, The History of the Decline and Fall of the Roman Empire (first published 1776-1788) vol 1, 616.
[9] Ibid 617.