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Judges and Academics, and the Endless Road to Unattainable Perfection

Lionel Cohen Lecture 2021, Jerusalem, 25 October 2021

Published online by Cambridge University Press:  07 March 2022

Lord Burrows
Lord Burrows*
Affiliation:
Justice of the Supreme Court of the United Kingdom.
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Abstract

This article is a lightly revised version of the Lionel Cohen Lecture 2021 given by the author in October 2021. It looks at the relationship between legal academics and judges. The title of the article derives from one of the judgments of the great Lord Goff. The article has three main parts. First, it explores the increased influence of legal academics on judges in England and Wales towards the end of the twentieth century. Secondly, it examines how academic work can assist judges and makes a plea for recognition of the importance of ‘practical legal scholarship’. Finally, drawing on the author's own recent experience, the article examines how being a judge of the United Kingdom Supreme Court differs from being an academic.

Type
Lectures
Information
Israel Law Review , Volume 55 , Issue 1 , March 2022 , pp. 50 - 63
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press in association with the Faculty of Law, the Hebrew University of Jerusalem

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Footnotes

This lecture was given remotely (because of COVID restrictions) on 25 October 2021. I would like to thank Sir Jonathan Cohen for chairing the lecture and webinar. I would also to thank him and Lord Pannick QC, as trustees of the Lionel Cohen lectureship, for inviting me to be the 2021 Lionel Cohen lecturer, which I regard as a great honour and privilege. The views I express are personal views and should not be taken to represent the views of the Supreme Court.

References

1 [1987] AC 460.

2 ibid 488.

3 For general examinations of this topic, see, eg, Goff, Lord, ‘The Search for Principle’, Maccabean Lecture 1983, reprinted in Swadling, William and Jones, Gareth (eds), The Search for Principle: Essays in Honour of Lord Goff of Chieveley (Oxford University Press 1999) 313Google Scholar; Birks, Peter, ‘Adjudication and Interpretation in the Common Law: A Century of Change’ (1994) 14 Legal Studies 156CrossRefGoogle Scholar; Rodger, Lord, ‘Judges and Academics in the United Kingdom’ (2010) 29 University of Queensland Law Journal 29Google Scholar; Alexandra Braun, ‘Judges and Academics: Features of a Partnership’ in James Lee (ed), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Hart 2011) 227; Lord Neuberger, ‘Judges and Academics – Ships Passing in the Night?’, Hamburg Lecture, 9 July 2012; Beatson, Jack, ‘Legal Academics: Forgotten Players or Interlopers?’ in Burrows, Andrew, Johnston, David and Zimmermann, Reinhard (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press 2013) 523Google Scholar; Lord Reed, ‘Theory and Practice’ in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), Defences in Unjust Enrichment (Hart 2016) 309 (and see also his similar lecture ‘Triremes and Steamships: Scholars, Judges, and the Use of the Past’, The Scrymgeour Lecture, University of Dundee, 30 October 2015, https://www.supremecourt.uk/docs/speech-151030.pdf); Neil Duxbury, Jurists and Judges: An Essay on Influence (Hart 2001).

4 See Duxbury, ibid 84–101.

5 For examples of this being applied, see Union Bank v Munster (1887) 37 Ch D 51, 54 (per Kekewich J); Donoghue v Stevenson [1932] AC 562, 567 (per Lord Buckmaster). As regards the former, Kekewich J is often put forward as the worst English judge of the nineteenth century: hence the submission of counsel to the Court of Appeal in relation to British Motor Syndicate Ltd v JEH Andrews & Co Ltd (1889) 16 RPC 577: ‘This, my Lords, is an appeal from a decision of Kekewich J – but there are other grounds upon which my client relies’.

6 Birks (n 3) 165.

7 Beatson (n 3) 528.

8 Duxbury (n 3).

9 ibid 77.

10 ibid.

11 See Lord Goff (n 3) 327.

12 Report of the Committee on Legal Education (1971) Cmnd 4595.

13 Glanville Williams, ‘The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?’ [1986] The Cambridge Law Journal 33.

14 [1985] AC 560.

15 [1987] AC 1.

16 ibid 23.

17 I am very grateful to my judicial assistant, Oliver Jackson, for carrying out this research. Although avowedly very rough and ready, his research shows that the number of unique citations (ie, citations of different books or articles) each year in the House of Lords increased significantly from 1987 before levelling off after 2003 at an average (in the House of Lords/Supreme Court) of 30 to 35 unique citations. The most-cited law journal by some distance has been, and continues to be, the Law Quarterly Review. The most-cited textbook is now Bennion on Statutory Interpretation. For another statistical survey, but not one that presented the number of citations, see Keith Stanton, ‘Use of Scholarship by the House of Lords in Tort Cases’ in Lee (ed) (n 3) 201. This looked at the 104 tort cases decided by the House of Lords between 1990 and 2009 and examined which judges cited the most writings and which writings were most cited.

18 Lord Goff (n 3) 314–15.

19 [1995] 2 AC 207, 235.

20 [1980] Ch 297.

21 Lord Neuberger (n 3).

22 Although outside doctrinal scholarship (and not necessarily carried out by academics let alone legal academics), there is one form of research that may sometimes directly assist the judiciary in relation to policies, and that is empirical research. For this sort of research being referred to by the Supreme Court, see, eg, Osborn v The Parole Board [2013] UKSC 61, [2014] AC 1115, [70], [91]; Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] AC 1732, [184]–[185]; R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, [2017] 3 WLR 409, [38]–[59] and [90]–[98]. I am most grateful to Professor Maurice Sunkin for email discussion on this point.

23 Lord Goff (n 3) 326–27.

24 For an excellent description of ‘doctrinal analysis’ (what I am calling ‘practical legal scholarship’) see Christopher McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 Law Quarterly Review 632, 633–35.

25 Lord Rodger (n 3) 36. It is clear from the context that by the words ‘how it actually operates in practice’, Lord Rodger was referring to the work of the courts and practitioners. He was not making a veiled reference to law in its social context.

26 Lady Hale, ‘Should Judges be Socio-Legal Scholars?’, speech given to the Socio-Legal Studies Association Conference 2013, 26 March 2013, https://www.supremecourt.uk/docs/speech-130326.pdf.

27 Edwards, Harry T, ‘The Growing Disjunction between Legal Education and the Legal Profession’ (1992) 91 Michigan Law Review 34CrossRefGoogle Scholar. Edwards’ article stimulated 18 responses in a symposium in the (1993) 91 Michigan Law Review, of which perhaps the most important was Richard A Posner, ‘The Deprofessionalization of Legal Teaching and Scholarship’ (1993) 91 Michigan Law Review 1921.

28 Stapleton, Jane, Three Essays on Torts, Clarendon Law Lectures (Oxford University Press 2021) xviiCrossRefGoogle Scholar.

29 Kiefel, Susan, ‘The Academy and the Courts: What Do They Mean to Each Other Today?’ (2020) 44 Melbourne University Law Review 1, 2Google Scholar.

30 [2020] UKSC 38, [2020] 1 WLR 4117.

31 [2021] UKSC 20, [2021] 3 WLR 81.

32 [2021] UKSC 21, [2021] 3 WLR 147.

33 [2020] UKSC 47, [2020] 3 WLR 1369.

34 ibid [178].

35 Rodger, Lord, ‘The Form and Language of Judicial Opinions’ (2002) 118 Law Quarterly Review 226, 237Google Scholar.

36 Kiefel (n 29) 6.

37 She was here citing from William Twining and others, ‘The Role of Academics in the Legal System’ in Mark Tushnet and Peter Cane (eds), The Oxford Handbook of Legal Studies (Oxford University Press 2005) 929.

38 [2021] UKSC 4, [2021] 2 WLR 383.

39 [2010] UKSC 11, [2010] 2 AC 70.

40 Lord Goff (n 3) 325.

41 See my own articulation of this in Burrows, Andrew, Remedies for Torts and Breach of Contract (4th edn, Oxford University Press 2019) 21CrossRefGoogle Scholar.

42 There is an interesting and full discussion of this in Alan Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Hart 2013) 15–29 (dialogue with counsel).

43 This was made clear, albeit in the analogous context of arbitration, in Zermalt Holdings SA v Ni-Life Upholstery Repairs [1985] 2 EGLR 14, 15 (per Bingham J).

44 [2012] UKSC 22, [2012] 2 WLR 1275.

45 For examples, see Akers v Samba [2017] UKSC 6, [2017] AC 424; Evergreen Marine (UK) Ltd v Nautical Challenge Ltd [2021] UKSC 6, [2021] 1 WLR 1436.

46 See similarly R (on the application of DN (Rwanda)) v Secretary of State for the Home Department [2020] UKSC 7, in which Lord Carnwath suggested that the defendant might have had a complete answer to the claim had it sought to rely on issue estoppel (or res judicata). While aware of the doubts about whether res judicata/issue estoppel applied in public law judicial review proceedings, Lord Carnwath (at [44]) thought those doubts were ‘unjustified’ and said that, subject to further argument, he would have regarded issue estoppel or res judicata as potentially providing an easy answer to the questions raised by the case. Counsel for the Secretary of State preferred not to run this argument as part of his case (even though it could only be beneficial to his case). Nevertheless, both sides were asked to make written submissions on the issue, and did so. Lord Carnwath dealt in some detail with those submissions, especially those of counsel for DN. Ultimately, however, Lord Carnwath said (at [65]): ‘Since the Secretary of State has not hitherto relied on the principle of res judicata or issue estoppel, it would clearly be unfair to DN for the court to introduce it at this stage as a possible reason for determining the appeal against him, whatever the position may be in future cases’. Lord Kerr (at [28]) agreed with that reason for not deciding the case on this basis, but also because he thought the issues were difficult so that it would be unwise to express even a tentative view on them.

47 See Paterson (n 42) 213–21 (dialogue with academics).

48 ‘Judgment Writing: A Personal Perspective’ (talk given on 21 September 2021, https://www.supremecourt.uk/news/speeches.html).

49 Bingham, Tom, The Rule of Law (Allen Lane 2010)Google Scholar.

50 ibid 42–43.