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Some problems with extrajudicial writing


Bartie, S and Gava, J, Some problems with extrajudicial writing, Sydney Law Review, The, 34, (4) pp. 637-658. ISSN 0082-0512 (2012) [Refereed Article]

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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.

Item Details

Item Type:Refereed Article
Research Division:Law and Legal Studies
Research Group:Public law
Research Field:Public law not elsewhere classified
Objective Division:Law, Politics and Community Services
Objective Group:Justice and the law
Objective Field:Justice and the law not elsewhere classified
UTAS Author:Bartie, S (Ms Susan Bartie)
ID Code:81899
Year Published:2012
Deposited By:Law
Deposited On:2013-01-10
Last Modified:2017-12-14

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