(DOWNLOAD) "Seduction, Integration and Conceptual Frameworks: The Influence of Legal Scholarship on Judges." by University of Queensland Law Journal ~ eBook PDF Kindle ePub Free
eBook details
- Title: Seduction, Integration and Conceptual Frameworks: The Influence of Legal Scholarship on Judges.
- Author : University of Queensland Law Journal
- Release Date : January 01, 2010
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 370 KB
Description
It is a source of continuing frustration to legal academics that judges fail to cite their work, even when that work is directly on point. Their expectation that judges would do so, however, arises from some special circumstances. Few decision makers in society provide a carefully crafted, publicly available written record of their decision process. Managers of private firms often issue their decisions orally or in brief and largely telegraphic written memos. If they do create a detailed written record of their decision, it is generally a proprietary document, jealously guarded by the firm until it is no longer relevant, at which point it is shredded or deleted. Public officials in the executive or legislative branches tend to do the same; the results of their deliberations may be published in the form of orders, regulations, statutes or press releases, but their decision process generally remains undisclosed or unrecorded. The judicial practice of creating an elaborate written record of one's decision process that is then published, made widely available and superbly indexed is unusual, if not unique. This practice creates an expectation among scholars who write about the judiciary that can be described as the seduction of direct citation. Consider an assiduous legal scholar who has just written an article providing a new theory for resolving certain types of cases, a theory that is certainly superior to anything that any judge has articulated in the past. It has been accepted and published by a leading law review, and--once again--superbly indexed (law is a field that knows how to alphabetise, summarise and categorise). Surely, the next judge who confronts the type of case that this incisive article discusses will be hungry for enlightenment and, after eagerly consulting the secondary literature, will gratefully acknowledge and adopt the insights that our scholar has provided. (1) Or perhaps the judge is someone who harbours the wrong approach to law--appointed by the wrong political party, for example. In that case, he or she cannot be expected to adopt our scholar's conclusions, but will surely feel an intellectual obligation to dispute the formidable arguments that the scholar has advanced, thus generating critical citations that are almost as desirable as complimentary ones. But no, the text of the opinion appears and it has nothing but string citations to other cases, and perhaps a passing reference to some ancient figure like H.L.A Hart or Karl Llewellyn. Its reasoning repeats the old, inferior approach that the scholar has decisively refuted, or perhaps adopts a new, but insufficiently conceptualized and shoddily developed new approach instead. Once again, the legal scholar has been jilted; the seduction of direct citation has led our scholar down the path to textual frustration. (2)