Quickpost: On time poverty and common law theory

I’ve been phenomenally slack lately. Or, rather, phenomenally busy.  This has meant, inter alia, that I have a small swag of either unfinished or semi-started projects that are dying of neglect.  One of these projects is my Fantasy Law Review which… actually, this needs a longer explanation.

There are lots of problems with common law.  I went from being Team ‘Damn Legislatures Should Stop Passing Legislation That Interferes With The Great And Noble Tradition Of Common Law’ to being Team ‘Common Law Is Stupid And We Are Stupid For Learning About It’ within the space of about three months.  A lot of that shift centred around the argument that common law was really about defending bad decisions: if a decision was excellent, we’d come to the same conclusion without being compelled.

For a while, I’d been a bit disillusioned with common law theory, not least because the order of cases heard can influence the way cases are decided and the way law develops.  In a sensible system, this ought not to be possible.  We shouldn’t have today’s contract theory simply because decisions appeared before the Privy Council in a particular order.  That’s nuts.

The other thing that was bugging me was a study showing that law journals were crap.  The study showed that law journals, edited by students, were more likely to publish articles from academics from the university who hosted the journal.  Articles published by academics at the same institution as the journal were less likely to be cited (which is a lick-of-the-thumb quality measure).  It was pretty damning.  Add to this a favourite quote by SCOTUS Chief Justice:

Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar. [Source]

So I was all like: What I want to see is a law journal that publishes cases that I wish would appear before the High Court.  Instead of everybody having to wait around until the ideal case arises, we could just go nuts exploring the legal issues of ideal cases.  I’m waiting for some APS grad — no doubt a 20-something white male — who’ll say something on Twitter about the government, refuse to retract it, and then have disciplinary action taken against him.  Being the rage machine that he is, he’ll try to mount a case about the implied right of political communication, whether that right binds the government as an employer, and to what extent public servants have the same implied right of political communication as everybody else.  An edition would cover one set of facts, would have fantasy written submissions, and a fantasy judgement.  Ditto cases in refugee law, in surveillance law, and in torts.  You don’t get the messiness of real cases, like your APS grad who works in policy instead being an antisemite who sledged her colleagues on Twitter then claimed it was protected political communication.

Unfortunately, that’s a ridiculous amount of work and I never got around to organising the thing.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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