Some Problems with Extrajudicial Writing

Abstract

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.

Keywords: extrajudicial writing, judges, judicial silence, prejudging, bias

JEL Classification: K40