History and Counter-History: 25 Years of Writing for the High Court

Abstract

In 1991, the Sydney Law Review commenced publishing a column discussing cases due to be heard by the High Court of Australia. On the 25th anniversary of the Before the High Court (‘BTHC’) column, this paper provides an overview of the history of the column, its genesis and a measure of the take-up of BTHC columns by the High Court and elsewhere. The BTHC column has been and remains significant, both as a facilitator of scholarly engagement with High Court decision-making, and as part of a wider tradition of legal academic writing for courts. The paper suggests that the BTHC represents both history — of academic analysis and arguments taken up by the Court — and counter-history — the alternatives or paths not taken at significant junctures in the development of law in Australia.

Keywords: Australian High Court, academic writing for judges, citations of academic writing by judges, impact of legal scholarship on law

JEL Classification: K10, K30