From Court to College: the Institutionalisation of Judicial Education During Its First Decade in Victoria, 2005–2015

From Court to College: The institutionalisation of judicial education during its first decade in Victoria, 2005–2015

Trischa Mann

orcid.org/0000-0003-0651-9690

Submitted in total fulfilment of the requirements

of the degree of Doctor of Philosophy

June 2018

Graduate School of Education

The University of Melbourne ABSTRACT

The direction of movement in legal education generally has been away from the apprenticeship model and informal, practice-based learning. The jury, case-based reasoning with room for judicial discretion, and the apprenticeship system have been three great strengths of the common law system. But judicial discretion in general has been steadily reduced by legislation, and control of judicial discretion in sentencing was strongly linked to the perceived need for judicial education. And while the virtues of apprenticeship and mentoring are being rediscovered in academia, both law and legal education have become increasingly standardised and institutionalized. Opportunities for informal, observational and supervised learning, the cornerstones of the apprenticeship model, are correspondingly diminished. The change began with the profession’s handing over of its gatekeeper role to universities (degrees in place of articles), and continued in the transition from voluntary to mandatory continuing education in the profession in 2004, with quantitative measures, record-keeping and attendance requirements, and domination of the process by the Law Institute and the Leo Cussen Institute, the chief providers of continuing legal education. Pre-admission Articles gave way to practical training courses, which then became graduate diplomas in legal practice. Bar mentorship at first included, then became increasingly reliant on, a formal Bar Readers’ course and increasingly complex Reading Regulations, and finally a Bar entrance exam. The impetus towards formalised education continued with the introduction of programmed education for judges, again with a published curriculum and quantitative attendance benchmarks for ‘education’ that is in reality ‘training’ on a corporate model consisting largely of programmed events. This case study covers the first decade of judicial education in Victoria. It focuses on judicial education for Supreme Court judges in the context of the broader field of legal education, tracing its progress between 2005 and 2015. A snapshot of the situation not long after its introduction is provided by original research data gathered in 2008, when members of the Bar were relatively unaware of the program for judges and the offerings were meagre. The evolution of judicial education since that point provides additional background and foundation for research which should now be undertaken: assessment of judicial education the curriculum and the program of judicial education after ten years.

–ii– Declaration

This is to certify that

(i) the thesis comprises only my original work towards the PhD.

(ii) due acknowledgement has been made in the text to all other material used.

(iii) the thesis is less than 100,000 words in length, exclusive of tables, maps, bibliographies and appendices.

Signed:

–iii– Acknowledgments

I would like to thank Professor Gabriele Lakomski, my original primary supervisor, and my nominal second supervisor, Professor David Beckett, each of whom, in their different ways, gave me the space beyond what the requirements of the university generally permit. In the end, its completion is owed to the wonderfully kind, supportive and persistent Kylie Smith and Belinda Prakhoff, and to Amanda Whiting, who with great generosity and kind encouragement read two drafts and gave me valuable advice advice.

The size of the burdens placed on others by this work is impossible to recount. For years it gave every indication of being, as lawyers call it, off on a frolic of its own. I can only repeat Wittgenstein’s Proposition 7, gesturing vaguely towards my long-suffering family, friends, and academic advisors: Whereof one cannot speak, thereof one must be silent, and merely say a heartfelt thank you.

–iv– The grand, leading principle, towards which every argument unfolded in these pages directly converges, is the absolute and essential importance of human development in its richest diversity.

— Wilhelm von Humboldt, Sphere and Duties of Government, as quoted by J.S. Mill in On Liberty (1859)1

1 ‘Following von Humboldt, Mill specifies two conditions as requirements for the development of individuality, namely, freedom and variety of situations. The deadening effect of custom, and the uniformity of conduct and opinions that it generates, is to be checked by the freedom to express and discuss all views. It is in the atmosphere of freedom that persons are able to develop desires and opinions of “home growth”’ (C.L. Ten, Introduction to On Liberty (2005:10)).

–v– Table of Contents

List of Acronyms and Abbreviations vii

List of Tables and Figures ix

1 Introduction and Overview 1

2 Selected Literature Review 15

3 Methodology 77

4 Case Study: A Snapshot, and Themes Emerging 104

Part 4A: Analysis of the Bar Survey 105

Part 4B: Themes 131

5 Conclusion and Perspectives: Beyond Training and Within Culture 228

Afterword 262

References (works cited) 264

Appendices

A Detailed Responses to Bar Survey 316

B Benches of SCV 372

C Ngrams of terms from the literature 391

–vi– List of Acronyms and Abbreviations

CLE Continuing legal education

LCI Leo Cussen Institute

AHELO Assessment of Higher Education Learning Outcomes

AIJA Australian Institute of Judicial Administration

APS Australian Public Service

AQF Australian Quality Framework

AWB Australian Wheat Board

CASP Critical Appraisal Skills Program

CEB Corporate Executive Board

CoP Community of practice

CPD Continuing Professional Development

CSR Corporate social responsibility

CSV Court Services Victoria

ESRC Economic and Social Research Council

ICT Information and communications technology

JCA Judicial Conference of Australia

JCV Judicial College of Victoria

JE Judicial education

JET Judicial education and training

LIAC Legal Information Access Centre

LIV Law Institute of Victoria

LPD Legal professional development

MCLE Mandatory continuing legal education

MCTEE Ministerial Council for Tertiary Education and Employment

MSP Math Science Partnerships

–vii– NCVER National Centre for Vocational Education Research

NJC National Judicial College

NSW New South Wales

OECD Organisation for Economic Cooperation and Development

OGI Open Government Initiative

PAR Participatory Action Research

RJL Reasonable judicial learners

RR Response Rate

TOCHI Transactions on Computer-Human Interaction

UCL University College London

Cross-references and abbreviations in data Internal cross-references are given in square brackets, thus: see [2.2.1]. Direct quotation of material from interviews is indicated thus: [QC] for silk/senior counsel; [J] for judge; [B] for barrister; [BC] for barristers’ clerk.

A note on citation of works by Dewey Major works are cited in the usual way, and these appear in the reference list. However, Dewey references given with the notation [MWv13:22] signify the electronic version of the Collected Works (Boydston 1969-72, 1976-83, 1981-90). The abbreviations [EW], [MW] and [LW] stand for the early, middle and later works. The Collected Works are: Boydston, Jo Ann (ed), (1969-72). John Dewey: The Early Works: 1882-1898. Carbondale and Edwardsville: Southern Illinois University Press. Boydston, Jo Ann (ed), (1976-83). John Dewey: The Middle Works: 1899-1924. Carbondale and Edwardsville: Southern Illinois University Press. Boydston, Jo Ann (ed), (1981-90). John Dewey: The Later Works: 1925-1953. Carbondale and Edwardsville: Southern Illinois University Press.

–viii– List of Tables and Figures

Tables Table 3.1 Tashakkori and Teddlie’s classification of single-strand mixed-model designs 82 Table3.2 Responses by List 95 Table 4B.1 Content analysis of JCV Judicial Education video 164

Figures Figure 4B.1 The original cale ndar of events 169 Figure 4B.2 Ten years:Justicia sits wit h her sword 170 Figure 4B.3 Since then: The prospectuses for 2014 and 2015 170 Figure 4B.4 Judicial educators Figure 4B.5 Chart of Benches 173 Figure 4B.6 Roderick Pitt Meagher 175

Figure 4B.7 The family sitting in the jury box 195 201 Figure 4B.8 I go if I can. Only chance I get to get m’ gear on 170 Figure 4B.9 The Red Mass, 30 January 2012 202 Figure 4B.10 Victorian Chief Justice Marilyn Warren 203

–ix– [this page is intentionally blank] CHAPTER 1

Introduction and Overview

[T]he operations by means of which we assemble our experiential world can be explored, and … an awareness of this operating … can help us do it diﬀerently and, perhaps, better. – Ernst von Glaserfeld (1984)

Chapter contents 1.1 Introduction 1.2 Legal habits and failure to establish educational purpose 1.3 Themes of inquiry 1.4 Structure of dissertation

1.1 Introduction

The purpose of this exploratory research in judicial education (JE) is to begin the neglected task of critically examining JE, opening up the discussion in order to develop some understanding of what JE is for, educationally speaking, and thereby suggest ways it could be improved. Without some sense of what quality means in this context, after some 30 years in North America and more than a decade in Australia, JE stands as an untested fait accompli with political, rather than educational, origins and an operating model suggestive of corporate training strategies. The extent to which this is desirable, or tolerable, is explored.

 In Australia, unlike the US, no judges are elected. However, common law system similarities are greater than the differences. In 1963 the National Judicial College (NJC-US) was established to provide judicial education. In 2016 its website says it is ‘the USA’s ‘leading provider of judicial education’ and its ‘mission remains as relevant as ever: education, innovation and advancing justice’. This approach to continuing education as both necessary and able to be ‘provided’ by an educational institution with a curriculum set the tone in the US, and later in Australia, for what could be characterised as continuing legal education (CLE) for judges. Its rationale was never tested.

In New South Wales (NSW) and Victoria, the only states with their own formal colleges, both had been established in a climate of political pressure over ‘lenient sentencing’ (Abadee 2006; Hulls 2003d). In Victoria, there was tension between a combative Attorney-General and his Department of Justice and the profession

1 From Court to College and courts. The Judicial College of Victoria (JCV) was conceived as a forerunner to mandatory CLE in Victoria, which the profession had been resisting. The Victorian government ‘dealt with’ the easier target, the judges, ﬁrst. In a media release titled ‘Hulls to send lawyers back to school’ (Hulls 2003e), the Attorney-General ﬂagged his intention:

Attorney-General Rob Hulls is considering introducing a mandatory education scheme for Victoria’s lawyers that could require solicitors and barristers to study the law for at least 10 hours a year in order to renew their practicing certiﬁcates. ‘Continuing legal education, or professional development, is the future for the legal profession and I’m giving serious consideration to making it mandatory in Victoria,’ Mr Hulls said … The Bracks Government has already established the Judicial College of Victoria to deal with the ongoing professional development of judges. (emphasis added) Of the JCV, Attorney-General Hulls said, ‘Most importantly … it is about sending the message that the judiciary is neither complacent nor isolated: that it is eager to engage with those over whom it adjudicates’ (Hulls 2003b). A general tension between state and Commonwealth governments was also at play. In the context of legal aid funding, Hulls said, under the heading ‘Taking it up to the Feds’, ‘Of course, strong leadership by a State Government also involves challenging the failures and the felonies of the Feds’ (Hulls 2003b). Victoria accordingly declined to contribute to the national JE scheme..1 It proceeded with its own institution, and the judges cooperated, in public at least. The Judicial College of Victoria Act 2001 commenced operation and the College began working in the background in November 2002 in a small way. The Executive Director visited various courts and experienced high levels of resistance and inertia.2 In both NSW and Victoria the process was driven by a small number of dedicated CLE providers whom moved seamlessly into the role of ‘judicial educators’. The pattern of offering a calendar of events (generally workshops) was continued, and over the years became increasingly ambitious, presented as a glossy corporate-style ‘prospectus’.

In 1971 in the US, the National Center for State Courts had been founded with the motto, ‘Providing trusted leadership and proven solutions to courts’ (Martin and Wagenknecht-Ivey 2011). This managerial approach

1 At the ‘Conﬁdence in Courts’ conference held in Canberra in February 2006, Chief Justice Doyle (of South Australia), launching the Standards (Roper 2006), exhorted Victoria to join the national eﬀort and contribute much-needed funds, but Victoria had preferred to set up its own institution. 2 Personal communication.

2 chapter 1: introduction and overview to courts (focusing on ‘solutions’ and expressing faith in leadership) was similarly echoed in Australia. Commissioned by the AIJA, Alford et al (2004) set out the case for independent court governance from a managerial perspective. Inexorable movement in this direction (CLE, JE, independent court governance on a managerial model) proceeded, and in 2015 Court Services Victoria was established to take over the administration of the courts (CSV 2015).

The research takes the form of a case study based on a survey of the Victorian Bar and interviews with judges of the Supreme Court of Victoria. JE is treated as a multidimensional concept, but the analysis is informed by a Classical Pragmatist approach to both education and public policy. The thesis draws on relevant research in education as well as integrating cross-disciplinary research from sociology, organisational studies and cognitive anthropology. It takes a broadly Deweyan approach which prioritises growth as the goal of all education, which it distinguishes from training (proﬁciency).

While organisational culture is increasingly recognised as an obstacle to change, and the phenomenon of legal culture has been explored in the sociology of law, the central role of cultural meaning in professional practice is still not well understood. In order to assess the quality of education in context, a more ecological awareness of JE is needed, situating it relationally (within profession and society) in ways that respect its deeper logic.

The introduction of JE was an important, and resource-consuming, social change in the legal system, which needs to be justiﬁed. From this research emerges a suggested new approach which could be the basis for enhanced JE in Victoria and in similar common law jurisdictions.

1.2 Legal habits and failure to establish educational purpose

Judicial education (JE) is relatively new in Victoria, although in a sense it has history, since it reﬂects longstanding legal professional habits developed in the arena of continuing legal education for the legal profession (CLE). There are legal educators and lawyers of goodwill who wish it to succeed, and believe it can do so. Yet a ﬂaw, present from the start, has been an obstacle to its success: not clarifying what JE is for.

Progress is in reality untidy, piecemeal, often accidental, and sometimes unintended. However, lawyers have an established way of organising reality. Their

3 From Court to College court cases, briefs, and reports are reductive, instrumental, highly structured, and divorced from messy real-life living and learning. The filtering-out of what is legally irrelevant leaves lawyers with an apparently rational, procedurally certain pleading, or judgment, or report. But this is a legal fiction, the result of an act of categorising and deeming that presents messy human relations in quite artificial ways, for legal purposes. In fact, the way judges decide cases bears little relation to formal ‘legal method’ taught to students, and the way lawyers and others learn (largely informally) bears little relation to formal reports and curricula, produced as apparently straightforward exercises in logic. However, while lawyers can spot a legal fiction when they see one, they may not have the same skill in assessing socially constructed education narratives. If they then apply an additional filter of established legal preferences, distortions of vision are likely. The haphazard growth of the common law itself provides a hint about the need to allow space for growth (staying open), rather than constantly attempting to regulate or determine it all at once (achieve rational closure or completion). However, the introduction of JE has been a formally ‘rational’ and ‘regulatory’ exercise in that ‘closing down’. At the national level, a discussion paper (Roper 1999) on the establishment of an Australian judicial college quickly became a recommendation (Roper 2000). The discussion paper specifically did not address the need for JE itself:

The Australian Institute of Judicial Administration (AIJA) and the Judicial Conference of Australia (JCA) are considering whether to establish some form of permanent institutional framework to provide judicial education. This discussion paper is not a needs assessment, nor an analysis of the functions of a judge, nor some other similar study, which might underlie the detailed planning of the curriculum of such a college. The paper does not enter the argument as to the need for judicial education; that is not part of the brief and the assumption is that there is such a need (Roper 1999:1). (emphasis added) Roper’s ‘National Standard’ for the new college (Roper 2006) adopted the standard set for CLE in the profession, with a recommendation for 10 hours of continuing education per year. Although Roper (who initially used the term ‘Continuing Judicial Education (CJE))’ noted that some kind of analysis ‘might underlie the detailed planning of the curriculum’, when the time came, in the National Curriculum (Roper 2007), a similar demurrer was made: the need was not analysed, nor the theory addressed. But the political boxes were ticked.

4 chapter 1: introduction and overview

The claim of this thesis is that failure to critically interrogate the concept of JE puts the best efforts of its proponents at perpetual risk of being undone by irrelevance. A weaker version of the claim is that now JE is well established after a decade, it is time to consider its purpose and aims for the future. Again, this requires theorising the concept of JE, despite lawyers’ traditional resistance to theory.

This research and analysis begins that neglected task, and suggests ways for advocates of meaningful JE to proceed. The dissertation is patterned on the law discipline’s general approach to scholarly writing: to present a ‘central argument, based on logical reasoning … [and] critical analysis of the issues and the materials’ (Baron and Corbin 2016 in press). However, it also takes serious account of culture – accepting, as Schein (1996) argued, that ‘culture’ is a largely missing concept in organisation theorising, but not accepting his assumption that culture is a ‘tool’ that can be ‘used for organisational change’. As exploratory research, it draws on relevant literature and the research data, and presents a historical snapshot as a case study based on (1) a Bar survey, which shows that barristers had views about JE while being largely unaware of its content; and (2) interviews with judges, which suggest they will respond to new obligations imposed on them with dutiful circumspection, irrespective of the value of the program.

The research opens up the question again: is JE de facto ‘mere’ training? Is it ‘real’ education? To what extent is it needs-based? Or might it just be administratively driven busywork, a political demonstration or a compliance hurdle? It is, in effect, now mandatory. But what is its deeper logic, what is it moving towards? What is it for? This study may be useful in other common law jurisdictions, since common law courts everywhere share culturally derived meaning with the one Bench considered here, the Supreme Court of Victoria.

1.3 Themes of inquiry

The dissertation itself is set out in ﬁve chapters, brieﬂy summarised at (3) below. The issues arising from the materials form a ‘train of thought’ running through those chapters, with six closely linked compartments or themes:

 First, lawyers’ historical tendency to eschew theory makes it necessary to argue that theory is indispensable. The short answer from well-established epistemology is that since there is no theory-free way to see the world,

5 From Court to College

lawyers3 are in error if they defer to their own introspection and suppose that they somehow move ‘beyond theory’ by sticking to common sense and ‘practical’ reasoning. There is no such thing as theory-free practice, merely unexamined theories and biases. A more interesting question may be how lawyers’ preference for common sense affects the way they view education, particularly legal education, and speciﬁcally JE, when they take a clear side in the traditional ‘tug of war’ between theory and practice (Hickman 1994). Undergraduate legal education has been subject to waves of reform and competing political or rhetorical, and legally framed, discourses about its purpose (‘necessary’ or ‘undesirable’); CLE less so, and JE even less. The introduction of mandatory continuing legal education (MCLE), coupled in the political discourse with the introduction of JE for largely non-educational reasons, remains untheorised from an educational perspective.

 Second, asking the big question not yet asked within the JE system (What is it for?) – makes it necessary to impose some kind of conceptual framework and method. Different theoretical perspectives become salient at different levels (micro, meso, macro; policy or operational decisions) and within disciplines. Here, the research is exploratory, with Classical Pragmatist underpinnings. The method is to enquire. Is it for judges? The researcher asks the judges in interviews, but receives mixed answers and finds judges unwilling to theorise. Is it for the legal system, the profession, or the courts? Here, the researcher surveys barristers and interviews QCs and clerks of courts, but receives mixed answers and finds barristers holding opinions about what they want from judges (notably, know the law and listen) while being generally unaware of the content of JE. Is it for society? Here the problem of group agency that bedevils the social sciences is at its sharpest, and there is no one for the researcher to ask directly. The researcher’s method is to trace some of the established (good or bad) habits and the deep logics informing social and political choices. Here the researcher finds media reports and political and corporate slogans (‘out of touch’ judges; a ‘confidence in courts’ mantra in response), reflecting the deeper logics of those social perspectives.

 Third, ﬁnding these differently constituted deep logics at play, the researcher needs to get clear about where meaning resides in this context. Humans

3 By ‘lawyers’ I mean practising lawyers rather than legal scholars, who do deal in theory, albeit mostly legal theory rather than epistemology. There is a well-rehearsed tension between profession and academy in the literature, but it is beyond the scope of this inquiry.

6 chapter 1: introduction and overview

apply conceptual labels assuming constancy of meaning between social actors and across contexts, but this is patently a kind of ‘deeming Babel to be monolingual’ for the purposes of communication. Categorical thinking (the essence of what lawyers do) raises the Cartesian mind/brain, subject/ object split and related dichotomies such as the theory/practice divide. One way around the problem is a broadly Deweyan approach, updated4 to incorporate, at the micro level, Strauss and Quinn’s (1997) cognitive view of cultural meaning, and at the organisational and macro levels, new ideas about sociocracy and Pragmatist public philosophy. The researcher can then move on to consider the deeper logics at play in JE, which are culturally meaningful, relational and enacted, beyond linguistic deﬁnitions: the corporate logic of training, the administrative logic of convenience, the legal logic of protection under the rule of law, and the educational logic of growth – and begin to analyse the potential clash of these deeply enculturated habits. The researcher can then locate, within this meaning- environment, the historical capitulation made by continuing education (CLE) when it gave primacy to administrative logic (especially in the Leo Cussen Institute model) and the JCV compromise – adding a corporate overlay and a brief ﬂirtation with academia.

 Fourth, within these deep logics, the research task is to ﬁnd non-foundational ways forward: both to interpret what emerged from the data – social facts, social change and historical patterns – and to gain a sense of what might be possible for research on and within JE in the future, given the constraints and affordances (Gibson 1977)5 at work in the past, including what is available in the legal education and reform literature. In a post-Cartesian, Classical Pragmatist approach, the only satisfactory way of proceeding is methodological: inquiry using context-appropriate tools. Here, such tools include social categories found useful in analysing the dynamics of contention (from sociology), metaphor-assisted analysis (from organisation studies and cognitive science, in particular Weick’s notion of loose and tight coupling (Orton and Weick 1990; Weick 1976)), and legal educators’ ideas (e.g. about ways to teach for ‘deep learning’ for social change (Macduff 2005), which might tie personal learning to the wider society), which is the

4 The Pragmatists were prescient, however: see Thompson (1990) for a retrospective assessment of Wil- liam James (1890) on neurobiology of learning and memory (ahead of the later, now displaced, cognitiv- ists). 5 A term of art in ecological (relational) systems, which are, importantly, not dichotomous.

7 From Court to College

thrust of the consent-building public philosophy of Pragmatism and the new approach of sociocracy (Ansell 2011).

 Fifth, returning to analyse the ﬁt between the various deep logics potentially at work as underpinning rationales for JE raises the question, what counts as success within each theoretical perspective?6 Industrial corporations are proﬁt-driven and train rather than educate; within a neoliberal New Management logic, economic efficiency and accountability take priority; a social security logic may be measured by security (as in the past) or by the more recent notion of mutual obligation, focusing on ‘pulling your weight’ in society; an administrative logic values stability, process efficiency and rules; legal logic relies on adversarial criticism and winning arguments (attack/ defence), determining or ‘settling’ issues rather than constantly revisiting them, and interprets learning as mastery (rather than, say, analysis or discovery); educational logic seeks ways to stay open and keep improving, and values learning as development or growth. Historically, in legal education, the literature discloses a shift from a craft logic (apprenticeship) to a corporate logic (de facto training) with some, rather weak, attempts at legal professional development (LPD), and a return to mentoring (akin to apprenticeship). In combination, these deep logics may be in tension.

 Sixth, these investigations and analyses press towards a methodological solution for critically evaluated JE. The proposal is to structure JE not according to its content areas – a training logic that has been the legal habit for CLE and JE to date – but with one overarching, directional goal7 and due regard for its competing deep logics. The Pragmatist solution defeats either/or thinking by allowing both/and. Sociocracy harnesses democratic ideals but makes them workable by combining the metaphors of circles and project thinking in ways that do not create minorities. Together, they suggest a way to formulate ‘the new JE’8 at the troublesome nexus of education and law (the seemingly incompatible impulses towards growth

6 These deep logics are ‘ideal types’ in the Weberian sense of analytical constructs permitting investigation of differences and similarities in concrete cases, not dichotomous personifications with some kind of metaphysical agency. 7 That is, not a terminating or definitional end-point but a direction of improvement. Dewey (1938) [LWv12:348] pointed out that ‘The word “term” was used by Aristotle to designate an elementary constit- uent of a proposition as its boundary; and the word term is derived from the Latin terminus meaning both boundary and terminal limit. Like other boundaries, for example those of political institutions and tracts of real estate, terms both demarcate and connect, and hence no term has logical force save in distinction from and relation to other terms.’ 8 The suggestion offered by this thesis in Chapter 5.

8 chapter 1: introduction and overview

and protection). Brokering a compromise between the different logics, the currently ruling administrative logic would be repositioned, the presently tight couplings loosened, so that the administration no longer imposes and controls process, but rather assists the progress of JE according to other logics. A meliorative direction would be established, with a two-agenda (Training/Education) philosophy of JE, on three social tracks (micro, meso, macro). Politically mandated attendance would be catered for (small-p pragmatically) by the JT track (traditional functional, corporate-style training ‘delivered’ by trainers and respecting the defensively ‘ﬁxed’ legal mindset and the established administrative realities). The purely discretionary JE track, premised on growth, would offer real, live, participative, exploratory education for growth for those motivated to participate, perhaps in the form of action research. Subject to some cautions, academic research in both tracks would be encouraged, following C.S. Peirce’s frequently repeated Pragmatist exhortation, ‘Do not block the way of enquiry’. The overarching desideratum of melioration provides a directional indicator of quality capable of justifying expenditure of public resources.

The structure of the dissertation is, brieﬂy, that Chapter 2 explores relevant literature within themes 1, 2 and 3; Chapter 3, on method, brieﬂy discusses the Pragmatist approach to the Cartesian anxiety; Chapter 4 sets out the case study data at the three levels of analysis raised in theme 2; and Chapter 5 brings together themes 5 and 6 in order to propose a broadly Pragmatist approach to a ‘new JE’. A summary is set out below.

1.4 Structure of dissertation

Chapter 1. Introduction and Overview

This chapter sets out an overview of the dissertation and its overarching concern: the lack of examination of the theoretical underpinnings of judicial education and the consequent impossibility of assessing its worth in any meaningful way, which raises risks of development in ways that are not personally, institutionally or socially meliorative (that is, attending to different levels of analysis of value). The underlying premise is that reform is not ‘progress’ unless it impels change in a positive direction.

9 From Court to College

Chapter 2. Selected Literature Review: Habit, Culture and Language Linking Contexts and Perspectives

Chapter 2 contains a review of literature relevant to this research, drawing on themes 1, 2 and 3 described above. Several disciplinary ﬁelds consider the same issues from different perspectives. What is ‘personal development’ in psychology becomes ‘organisational learning’ or ‘communities of practice’ at the institutional level, and ‘socialisation’ or ‘culture’ in the broader view. At the personal level, most learning is unconscious, and intentional conceptual change is more complex than those presenting training programs might assume. Personal (naïve) epistemology and lay theory can limit learning, and what we give as reasons for action (espoused theories) do not necessarily match our theories in use.

A common thread running through each context is the under-appreciated notion of habit, a key idea in Pragmatism, which is implicitly related to structure (and its construction), from personal mindsets in human brains to ‘how we do things around here’ organisationally and as a society. Thus at the personal level, habit is a pattern that creates character: we become what we repeatedly do. Cognitive science explains how the brain pattern-matches and learns, and this makes sense of lawyers’ particular style of thinking/reasoning with categories and metaphors. At the institutional level, patterns of behaviour become organisational and disciplinary practice and culture. And at the societal level, institutional structures become culturally immersive systems – democracy, Westminster-style government, public health and education. Implicitly theorised ways of seeing the world become habitual, so that, for example, the reason lawyers may think their practice enables them to escape theory is itself a culturally shared cognitive habit of categorisation, and this affects the way lawyers treat continuing education (in a small-p pragmatic way, as training within a compliance regime).

Chapter 3. Methodology: Case Study with Mixed-Methods Research

Chapter 3 establishes the methodology for the research – a mixed-methods case study on the ﬁrst decade of judicial education in Victoria. The chapter includes discussion on limitations of the research, the steps taken to overcome those limitations, and possibilities for future research in some areas. At the level of the individual it ‘asks the judges’ in interviews; at the level of the institution/profession it ‘asks the Bar’ in a survey.

10 chapter 1: introduction and overview

The analysis accommodates both of the two major modes of rationality:9 descriptive or explanatory rationality of the kind found in scientiﬁc inquiry, and instrumental or persuasive rationality, of the kind found in philosophical discussions concerned with values, including critical discourse. It also mirrors the way lawyers reason, which shows an interplay between inductive and deductive methods: for example, Schauer (1987:876) observes that Rawls does this in a way that is ‘quite familiar to lawyers, who easily move back and forth between arguments in which they seek to derive and justify rules of decision based on prior cases, and arguments which seek to overturn or modify precedent by applying a more consistent or clearer legal rule.’

Chapter 4. Case Study: A Snapshot, and Themes Emerging

Chapter 4 presents the case study, from the ﬁrst decade of judicial education. A discussion of the Bar survey is given in Part A, with views of members of Victoria Bar on the introduction of judicial education. Themes emerging from the interviews are then presented in Part B, a case snapshot at 2008.

The focus is the Supreme Court’s needs, attempting a compromise between detail and synthesis as it enfolds various behavioural phenomena and traces judicial education’s progress over the decade from the end of 2005, when the JCV was established, to the embedding of JCV in its own building, teaching courtcraft as a subject – marking the institutionalisation of JE in a program of planned and ‘administered’ education with its locus of concern moving away from the Court, where situated social learning has occurred in the past, and into the realm of the educational bureaucracy, with an overlay of New Management processes.

The case is analysed at the level of a social movement or institutional change, and two guiding approaches emerged from the data. First, the metaphor of ‘loose and tight coupling’ suggested for educational organisations by Weick (Orton and Weick 1990; Weick 1976) became salient during my reﬂection on Bench–Bar, relations, which I found, through the research, to be less cohesive than I had thought – that is, assumed – at the start of the research. The literature employs, to quite a large extent, the binary language of the ‘divide’, but what I found was less a clear fault line than a general weakening or drawing-apart of various components of the legal education system as the social context shifted. I therefore found Weick’s metaphor a good way to describe, non-normatively, what I observed, and also to

9 In the sense of the reasoning we put to work in any intelligent inquiry – two distinct modes of thought rather than the fruits of an ontological fact/value distinction.

11 From Court to College approach larger-scale normative issues such as the proper relations between legal education and society (the concern of, e.g., Lasswell and McDougall (1943)).

Second, I draw on the relational account of the dynamics of contention proposed by McAdam et al (2002), with its four identity-transforming mechanisms that ‘recur … across a vast range of contentious politics’ (brokerage, category formation, object shift, and certiﬁcation). These mechanisms can explain the way contentious changes become embedded, and are consistent with observations about the degree of tightness or looseness of coupling within systems operating according to their own deep logics in the ‘civil sphere’ (Alexander 2007).

Chapter 5. Conclusion: Beyond Training and Within Culture

Chapter 5 argues the importance of preventing JE from solidifying into any one organisational form if it is to be ‘real’ education. Habit, imagination and judgment can then come together in what Rømer (2012:135) describes as ‘the subject and the world simultaneously emerge in an open, intelligent and quivering instant’ through the contextualised aspects of experience. I also suggest a sociocratic perspective that honours the distinction between policy and operations (Buck and Villines 2007) to prevent short-term operations decisions drifting into long-term policy commitments, thus preventing a recurrence of past habits in CLE which I detected in my research.

Paradoxically, while lawyers understand the genius of the common law, they have failed to model JE on its decentralised, emergent, collective wisdom. As educators, they have responded instrumentally, for local, even personal purposes, rather than in service of something larger. When faced with calls to reform and control the law and judicial discretion by creating rules, they have brought their considerable skills to bear on the process, but they are drawing on the side of the law that narrows and constricts what it seeks to control, filtering still-untamed reality into reports which give the illusion of certainty and ‘closure’ but famously sit gathering dust on shelves. They assist regulatory control, all the while knowing the great strengths of the common law to be its least-legislative aspects: the jury system (the non-expert, random assortment of parts making for a greater whole); the emergent, flexible yet stable, case-based nature of the common law, with its inbuilt guideposts and checks of precedent and appeal; the flexible interplay of complementary systems (common law and equity, cases and legislation, procedure and substantive law); and the great idealised ‘foundation’ of the rule of law, which grounds and centres the legal system as a public good and strengthens

12 chapter 1: introduction and overview its resistance to changes in scholarly or managerial fashion. These are things worth retaining a ‘legal mindset’ about, because they defend society’s taken-for-granted freedoms. It is increasingly clear that expertise is built through sustained practice (Ericsson and Ward 2007; Ericsson 1996; Ericsson and Smith 1991) but is also ‘a complex function of cognitive, affective, and conative traits that in turn, determine the direction, intensity duration, and effectiveness of practice/learning’ (Ackerman 2014:6). In law school, where future judges are being bred, an immersive educational ‘Bramble Bush’ (Llewellyn 1930) could offer an apprenticeship to impassioned legal vision, but even if it were still available, such a thing is all but impossible to negotiate in an environment where students work full-time and, despite the best efforts of educators, continually seek the reassurance of explicit task objectives and PowerPoint printouts.

The chapter notes the apparent ease with which judicial education was achieved in Australia (the brokering of a new category, an object shift for ‘education’, and certiﬁcation), and the upshot: a shifting in the degrees of looseness and tightness with which various elements in the legal profession, viewed as a dynamic social system, are coupled (Orton and Weick 1990; Weick 1976). It concludes that by re-enacting, as a kind of cultural habit, previously established forms of continuing legal education, the proponents of judicial education have brokered change in a way that misses the opportunity to innovate in order to achieve real, meaningful, education rather than ‘workplace training’ – albeit that some improvements in the program have been made over the period of institutional embedding. A change of metaphors is called for.

The chapter presses the merits of the Classical Pragmatist desiderata of growth at the personal level and collective agency at the institutional level, along with the lawyer’s desire for general enhancement of the rule of law at the broadest societal level. A proposal for a new conception of JE is offered, based on the law’s own practice of dual-system interactions. It suggests a two-track, three-level, judicial education and training (JET), taking account of the degree of melioration apparent (or missing from) the loosening or tightening various social couplings at the societal level, working within the existing constraints, including the New Management approaches that have been leaching into the JE sphere, and law’s own deep logic of defence. While conceding a place for content-based training (a ‘closed’ mindset), it also finds a place for real education (the ‘open’ mindset of growth for flourishing). It also draws the thesis-themes together by finding an

13 From Court to College overarching test for both strands at all levels of judicial education and training: that the law is enhanced. The case study highlights the need for further research, preferably collaborative and continuing interdisciplinary research, on some key questions, including the philosophical underpinnings of the program and how that might translate to educational effectiveness, with due regard for the interests it is supposed to be serving, in personal, institutional and the civil spheres, and not least its usefulness to the judges themselves.

Appendices

A: Detailed responses to Bar survey.

B: Tables of Supreme Court Benches under eleven chief justices.

C: NGrams of terms used in the literature.

14 CHAPTER 2

Selected Literature: Habit and Cultural Meaning Linking Social Contexts and Perspectives

Chapter contents 2.1 Dualism, pragmatism and cognitive science 2.2 Habit as the foundation of expertise and intuition 2.3 Cognitive culture and metaphor 2.4 Language, law and literature: a symbiotic relationship 2.5 Organisational learning 2.6 Industrial training initiatives as ‘reform’ 2.7 The broader public view

This chapter reviews scholarship that helps to explain the most striking features of the engagement (or lack of engagement) between law and education as disciplines, and the mindset that has shaped JE as it currently stands, and will affect any suggestions to change it. It is a socially important and complex area that can be approached from many different perspectives and at micro-, meso- or macro levels.1

My research focuses on the intersection of law and education in judicial education (JE), a ‘greenﬁelds’ site in the sense that there has been very little scholarly consideration of the topic from any theoretical perspective other than adult education and training. What literature there is does not tackle the theoretical underpinnings of JE, which has been established by lawyers with the ‘practical’ mindset of practitioners.

This chapter is necessarily selective, and restricted to scholarship that informs the themes that emerged from the research. However, it is also broad, because there is no established ‘point of departure’ within either parent discipline, and also because of the topic’s interdisciplinary nature, which is complicated by my conclusion that lawyers’ ways of thinking about problems and presenting solutions are part of the problem. Interdisciplinarity is not yet institutionalised in higher education (Borrego et al. 2014), and this also makes the task of narrowing the ﬁeld of relevant scholarship difficult:

Interdisciplinary scholars by definition, do not ‘fit’ within institutional structures based on disciplinary departments … Often [they] are placed in the unfair position of having to create their own process and structure, at the same time that they are attempting to navigate it. (Pfirman and Martin 2010)

1 Footnotes point to other areas that bear on the topic beyond what can be pursued here. 15 From Court to College

This chapter considers: (1) the problem of Cartesian dualism in language and culture to which Pragmatism responded, and why I have chosen it for this research and recommend it for JE; (2) the importance of habit in the formation of professional identity as cultural meaning, as the mechanism underlying intuition and expertise, because this emerged as a strong theme in my research; (3) language usage, in particular metaphor, as the foundation and deeper logic of all language-bound disciplines, which explains cultural meaning as a cognitive. It then turns to consider (4) organisational learning, which would expand JE beyond individualised training; (5) Pragmatist public sociology and the newer approach of sociocracy, which might be an interest for a judicial community of practice; and (6) professional education reform as part of the broader government/industry partnership ﬁrst for skills, then to supposedly quantitative measures of quality.

2.1 Dualism, pragmatism and cognitive science

This section explains why this thesis adopts a Deweyan Pragmatist perspective (a perspective that it also recommends for those taking judicial education further into educational, rather than legal, territory).

The issues canvassed here form the broad intellectual backdrop to any research. General-semantics (Korzybski 1933) supplies an overarching principle: every assertion of fact invites the sceptical epistemologist’s question: How do you know?

A continuing problem in the arts and social sciences has been post-Cartesian dichotemisation. Post-Quine, epistemology cannot hope for ‘justiﬁed true belief’, and this accounts for the efforts to construct alternative theories, including coherence theories (Young 2008). But coherence alone, without some other test, is inadequate for epistemological purposes: something can be perfectly coherent yet demonstrably not ‘true’ – Santa Claus, for instance (Everett and Hofweber 2000). One example – a set of extra criteria to serve as a test – comes from educational administration, where Evers and Lakomski propose, in their naturalistic coherentism, six supra-empirical virtues. 2

Pragmatism is attractive to legal scholars interested in salvaging jurisprudence from the wreck of foundationalism: crisis in analytical jurisprudence mirrors the

2 Established within the discourse of educational administration, where a long (and unresolved) battle between science in various guises and postmodern interpretivism was staged: for an accessible overview of natural coherentism in that context see Park (2001), and for a more personal perspective, Allison (2001).

16 chapter 2: Selected Literature Review larger whole-academy problem with analyticity pointed out by Quine (1951) in Two Dogmas of Empiricism. Posner (1993) outlines the problems for jurisprudence. Analytical philosophy had given rigour and precision, with its universals and absolutes, but at the expense of dynamism, context and values. While ‘science- and-technology’ style normal science has largely persisted with positivism and behaviourism and remained untroubled by anti-foundationalist critiques, it is still reliant on British Empiricism, which applies Lockean testing of truth through the evidence of the senses (Honderich 1995:496). But even in empirical science trust of experts is central: the ‘very idea of empirical scientiﬁc knowledge … [assumes] those who have not seen these things know them by trusting those who have, or by trusting those who have trusted those who have’ (Shapin 1998:6).

There is extensive scholarship on Classical Pragmatism,3 including legal scholarship, with by now a century of commentary, too vast to canvass in depth here. Some of it would seem alien to the early pragmatists. William James (1908:vii) remarked that ‘Much futile controversy might have been avoided, I believe, if our critics had been willing to wait until we got our message fairly out’. Something similar can be claimed for scholarly revision: that we should allow the early pragmatists to speak for themselves. However, as Schwartz (2012:1)4 notes, James endorsed and often quoted something Kierkegaard said: ‘We live forwards … but we understand backwards.’ Later scholarship can not only see with new eyes, it sees in a different context – and this is the Heraclitean5 point made by pragmatists themselves: reality is dynamic, which means you can’t step in the same river twice. Even so, the phenomenologist’s cry, ‘back to the things themselves!’ (Husserl: ‘zu den Sachen selbst’) applies equally to each perspective: one can fail to see the problem-space through the trees of theoretical presupposition.

Because pragmatism is methodological, it avoids much of the argument between competing research epistemologies such as positivist standard science, and the interpretive and critical postmodern approaches in the social sciences or

3 Here and throughout, ‘pragmatism’ means Classical Pragmatism, as explained by Peirce, James and Dew- ey, not small-p opportunistic pragmatism; and more particularly the Deweyan version, with its particular emphasis on democracy and education: ‘Dewey did the most to try to apply philosophy to law and other domains of public policy’(Posner 2003:97). Dewey himself preferred the term ‘Experimentalism’: Posner (2003:98). 4 This author revisits the eight lectures given by James, in a lecture-by-lecture mapping that updates pragmatism to contemporary concerns. 5 Dewey refers several times to ‘the great Greek philosopher, Heraclitus’ [LW:v17] and his ideas about flow, ‘that all is becoming’. The Buddhist metaphysics called Abhidharma also holds that objects (including the I’ of the self) are constantly changing configurations of particulars (elements) with no permanent nature of their own. 17 From Court to College humanities. It is therefore repeatedly recognised as a practical post-foundationalist approach to scholarship which is meliorist and focuses on results. Having a meliorative intent implies normative values of some kind, and neither James nor Dewey shied away from that, although they rejected the term ‘values’ as an absolute abstract notion separated from, and opposed to, experience (Dewey 1913 sidesteps the question with his own list of questions).6 James (1907:286) said, ‘It is clear that pragmatism must incline towards meliorism.’ In his lecture on pluralism and monism (Lecture IV), James (1908:159) also said, ‘pragmatism tends to unstiffen all our theories’ – in Weick’s (1976) metaphor, it loosens the couplings constituted by our attachment to ontological and epistemological theorising, which in the end can never yield absolute truth-claims: the quest for certainty, to conquer doubt, is illusory (Dewey 1929). The social sciences, particularly sociology, have been most deeply challenged by Cartesian dualism manifest in the subject/object, mind/world split that results in normal science relying on what Nagel (1986) called the ‘view from nowhere’, and which Dennett (1991), presaged by Dewey, calls the ‘Cartesian theatre’.7 In sociology this resulted in ‘acceptance of openly partisan academic fields’ (Townsley 2015; Turner 2015) and remains unresolved, although recent moves towards interdisciplinary dialogue (e.g. with neuroscience (Damasio 1995)) may be the answer (Tibbetts 2015). (For a current consideration of sources of unity and disunity in sociology see Smelser (2015).)

The legal decision making process is psychological, because casuistry (legal case-based reasoning) is an exercise in categorisation: judging similarity and difference and drawing distinctions. A legal ruling is a determinative, bright-line distinction drawn locally from within a larger field of possible rulings. That field is not infinitely broad, but is rather an ill-defined ‘penumbra of doubt’ that is quite closely constrained by legally filtered relevance: legal facts interpreted according to established legal principle. When students are taught that the judicial task, which they are to imitate in case-based reasoning, is to ‘apply the law to the facts’ they are given the most deceptively simple normative task it is possible to imagine. The psychological basis of similarity judgments (Tversky 1977) and difference- judgments (which is what categorisation is all about) remains under-recognised, despite an increasing awareness of the variety of cognitive biases (Ariely 2008; Ariely and Norton 2007).

6 Dewey had been asked by a committee, ‘Is value something which is ultimate and which attaches itself to ‘things’ independently of consciousness, or of an organic being with desires and aversions?’ 7 In Logic: The Theory of Inquiry (1938) Dewey said ‘Mental life is not a theatre for the exhibition of independent autonomous faculties.’

18 chapter 2: Selected Literature Review

The upshot of all this is that while legal common sense has, thus far, sufficed for legal decision making, it does not suffice for educational decision making. Deweyan common sense is based on inquiry (science) while legal common sense is based on casuistry – historical, case-based reasoning.

In order to know which parts of common sense are the ones to run with for now, and which must yield to better knowledge-claims, it is necessary to interrogate and disclose one’s own epistemological commitments. Lawyers do not habitually do this. Rather, they use common-sense reasoning themselves, as well as relying on it as a defence against fancy theory. Legal professional habits emerged in the research as a constraint on educational imagination. The next section considers literature relating to habit.

Dichotomous thinking (p or not-p, + or –) channels thought in habitual (learned) ways, assisted by the structure of language (in our case, English), with its heavily subject/predicate overlay. It assumes that the subject/object split is prior to the whole; the theorising spectator stands outside the spectacle (theory and theatre are etymologically cognate). The pre-linguistic moment of experience (life as experienced before language gets to it) is understood by William James and other Pragmatists including Dewey as the wholeness (nonduality) of an experienced situation prior to the attachment of its conceptual labels or schemas. Dewey does not try to abolish the use of concepts – we could hardly communicate without them – but he sees that the abstraction they represent is a linguistic habit. James describes ‘the instant ﬁeld of the present’ as ‘pure experience’ which is not yet a subject or object: ‘it is only virtually or potentially a subject or an object as yet’ (James 1912:23). Language does not ‘carve nature at its joints’ (there are none) but it makes sense of what is otherwise a ‘blooming, buzzing confusion’ as James put it.

Cognitive science now understands the neural organisation called ‘Hebbian learning’ to create lasting change in the brain as a result of what the brain experiences. At the neuronal level it is an increased synaptic efficiency made possible by synaptic plasticity, as captured in the aphorism, ‘neurons that ﬁre together, wire together’. Hebb’s ‘postulate of learning’ was expressed as:

When an axon of cell A is near enough to excite cell B or repeatedly or consistently takes part in firing it, some growth or metabolic change takes place … such that A’s efficiency, as one of the cells firing B, is increased (Hebb (1949; in Stent 1973:999). Hebbian learning has also been observed in inhibitory synapses. Variations in neuronal spiking strengthen or weaken the synapses, depending on the temporal

19 From Court to College order of spiking, and time-dependent synaptic changes ‘give the brain a set of cellular mechanisms believed to be important for the development and functioning of neural networks’ (Bi and Poo 2001). This supports a network model of social perception (Keysers and Perrett 2004), and the process has been found ‘in various neural circuits over a wide spectrum of species, from insects to humans’ (Caporale and Dan 2008:25). In evolutionary or behavioural psychology, this is understood in terms of the approach–avoid complex, in which learning and its (positive or negative) reinforcement boil down to the impulses to approach (the simple biological foundation of all positive emotional states) or avoid (which gives rise to the defensive choice, ﬁght or ﬂight (or freeze in fear)).

2.2 Habit as the foundation of expertise and intuition It would be impossible to [send] … even the most outstanding new graduate from law school … oﬀ on circuit to conduct criminal trials equipped only with a Bench Book and a store of self-conﬁdence. I hesitate to think of what some of the trial lawyers I know would do to a person like that.

– Gleeson CJ (2003)

Neurons that ﬁre together, wire together.

(Hebb’s rule)

Habits are generally considered at a superﬁcial level as ‘bad’ or ‘good’ habits we want to get out of or into. However, habit also explains the formation of professional identity as cultural meaning, and is the mechanism enabling intuition and expertise. Habit is the common thread running through this research, and a key concept in Pragmatism, where it is implicitly related to structure (and its construction).

There has been a ‘resurgence of interest in habit within social and political theory as a key concept of our time’ according to Carlisle and Sinclair (2008) in their introduction to the ﬁrst English-language edition of On Habit (Ravaisson 1838). Previously, the book was virtually unknown in western academic circles. Much of what Ravaisson says about habit preﬁgures Dewey’s ‘practical metaphics’ of habit. Now that his work is available, Ravaisson scholarship seems likely to increase (Carlisle 2010; Carlisle and Sinclair 2008; Shapiro 2009; Sinclair 2011).

20 ē ē

8 The notion of ‘genius’ current at the time was ‘characteristic disposition; inclination; bent, turn or temper of mind’. In 1761 Hume referred to ‘Men of such daring geniuses’ who ‘were not contented with the ancient and legal forms of civil government’ (OED 2009) – those whose natures moved them beyond established custom or habit. 9 For example the work of Bereiter and Scardamalia discussed at 2.4. 10 Along with Thomas Reid, James Beattie, and Dugald Stewart. Ferguson’s 'Essay on the History of Civil Society' (1767) traced the roots of civil progress through social interaction. 11 Risse (200158–9) clariﬁes the meaning of virtue (arēte) and ‘practical wisdom or prudence’ (phronēsis) in Aristotelian virtue theory and political theory: arēte ‘applies to anything that has some function (to ergon), denoting its excellence. The arēte of an object is the excellent performance of its function … [and can] be understood as referring to moral virtues … Phronēsis is an intellectual virtue …The prudent man is good at deliberation …’ From Court to College

An acquired habit, however, is not ‘merely a state’, but ‘a disposition, a virtue’, or a ‘potential’. Here ‘disposition’ is to be understood in an active sense as being dis- posed to do something, as having the tendency to do something. Concomitantly, the idea of habit as a virtue is to be understood not only in the original Greek sense of an excellence (arete) but also according to the Latin virtus, as signifying ‘power’ … This active force involves a tendency, a kind of striving or drive, or a nisus – a sort of inclination, as Leibniz claims, illustrating his meaning with the image of a bent bow. Such a tendency will always realize itself, will lead into genuine activity, as long as there is nothing to impede its realization. (editor’s commentary, in Ravaisson 1838:79)

Bacon (1597 [1601]) thought that cultural habit, or custom, was the magniﬁed effect of personal habit: it was ‘the principal magistrate of man’s life … But if the force of custom simple and separate, be great, the force of custom copulate and conjoined and collegiate, is far greater … Certainly the great multiplication of virtues upon human nature, resteth upon societies well ordained and disciplined.’

William James had a similar view; he ‘characterised habit as the ‘ﬂywheel’ of society and of the inquiry undertaken by individuals. It is in this sense that a habit is a terminus a quo’ (Hickman 2007:250).

From a Pragmatist perspective, habits are the basic functional units of mentition, in our mental life at the interface between behaviour and neurology (James 1890) … ‘Habit diminishes the conscious attention with which our acts are performed … ‘Habits are not merely second nature; they are ‘ten times nature”.’ (p.9). ‘Habits are due to pathways through the nerve-centres. Habit simpliﬁes our movements, makes them accurate, and diminishes fatigue … For education of all kinds, James emphasised the need to work with our own nervous system rather than against it, building on skill acquisition by making skills automatic and habitual, and doing this as soon, and with as many useful actions, as wel possibly can, while also ‘guard[ing] against the growing into ways that are likely to be disadvantageous to us’ (11). (Hickman 2007:250) Larry A., 1942− Pragmatism as post-postmodernism: lessons from John Dewey / Larry A. Hickman. New York: Fordham University Press, 2007. Edition: 1st ed. Description: viii, 284 pp; ISBN: 9780823228416 (cloth; alk. paper).

These quotes capture the essence of habit for learning. Habits establish context, ‘enter into the constitution of the situation; they are in it and of it’ rather than external to it (Dewey 1916b:277). Habit also ‘frees consciousness from the stable aspects of experience to cope with the novel … and represents the ‘instinctive’

22 chapter 2: Selected Literature Review union of the individual with the world, including the social world’ (Alexander 1987:31).

In cultural terms, habits or customs are the collective repetitions that lead to unstated cultural meaning or understandings. In the Nicomachean Ethics Aristotle says that, at the personal level, habit builds character (Aristotle 1993).

‘Habits are demands for certain kinds of activity; ...they constitute the self. ... they are will’ says Dewey in Human Nature & Conduct (in McCormack 1958:np). To think we can change habits at will is to rely on magic.

Although habits are arts involving skill of sensory and motor organs, requiring order, discipline and manifest technique on the part of the individual agent, the objective materials and energies which they incorporate provide the sole means of changing habit. That is to say, we cannot simply replace one habit by another in ourselves, others, or in society (custom) by attempting to manipulate the mechanism itself already established’ (Dewey, in Human Nature & Conduct (in McCormack 1958, np). Change must be achieved indirectly by modifying conditions, by an intelligent selecting and weighting of the objects which engage attention and which inﬂuence the fulﬁlment of desires. Consistent with this, Jaquish and Ware think that educational psychology could spread out from law school education to deeply inform the places in society where law’s impact is most felt:

Principles of educational psychology could become part of the fabric of trials and other communications with nonlawyers if an understanding of these principles were incorporated into the core curriculum of law school. Indeed, these principles of communication and teaching should be used by legal educators, themselves, to make legal education more eﬀective. (Jaquish and Ware 1992:1728) The similar-sounding term from Bourdieu, the Latin habitus, refers both to the way individuals become who they are, developing their selves (their attitudes and dispositions) and to the way they do things (‘engage in practices’). A legal habitus is, in Bourdieu’s terms, a personal disposition, in an individual, towards certain perspectives and practices that express the values of the legal profession as constituted socially and historically. The idea has been used in legal setting (e.g. Scheffer 2007) but it might have run its course in education (Farnell 2000; Manderson and Turner 2006; McNay 1999; Nash 1999; Reay 2004). Bourdieu also uses Greek term hexis to mean kinesthetic knowledge (bodily habit) (Strauss and Quinn 1997:263n49). Bourdieu is widely cited in socio-cultural contexts, but his work, while important (e.g. his Outline of a Theory of Practice (Bourdieu 1977)) relies on ﬁrst-wave cognitive science, which remains infected with Cartesian

23 From Court to College dualism. While habitus ‘has been an important sensitizing construct’, says Farnell (2000),

it is theoretically problematic from the perspective of a realist philosophy of science. The habitus turns out to be a hypothetical cognitive and transcendent causal nexus that has no ontological grounding because it exists somewhere between neurophys- iology and the person. This stands in contrast with second-wave cognitive (connectionist) science, in which the neural net supplies the governing metaphor of cultural meaning (Strauss and Quinn 1997) 12

Dewey’s thinking about habit and our ability to change it was inﬂuenced by the Alexander technique (Boydston 1986; McCormack 1958) – a re-training technique concerned with whole-body co-ordination and postural patterns including vocal and respiratory systems. The Alexander technique reverses maladaptive habits, which change our sensory feedback and result in physical stresses. It was devised by the Australian actor and teacher, F.M. Alexander (1869-1955), and is still in use today.

‘Dewey’s insistence on seeing education as a ‘reconstruction of experience’ could be seen as motivated by a desire to teach students a public method of intelligence that gives them an effective handle on their personal conduct and lives. Inculcating in students the attitudes, habits of mind and methods of scientiﬁc inquiry could not only give students, as Dewey phrased it, ‘freedom from control by routine, prejudice, dogma, unexamined tradition, [and] sheer self-interest,’ but also ‘the will to inquire, to examine, to discriminate, to draw conclusions only on the basis of evidence after taking pains to gather all available evidence’ (1938, p. 31)’ (Hlebowitsh 2006:75). By the time judges are on the bench, it is too late to be inculcating habits, and also inappropriate for reasons of judicial independence (Gleeson 2003). Gleeson notes that judges’ prior experience, as a prerequisite to selection for appointment, is the other side of the JE coin, yet not generally considered in that way.

The notion of habit is important for rote learning, but also critically important to informal education because it is precisely the distancing effect of habit that matters – the fact that as we repeat actions or thoughts they become increasingly

12 In first-wave computer science, the still-dominant metaphor of the brain is the binary computer, with inputs/outputs, algorithms, and on/off switching. On this model, the brain thinks in algorithms (or prop- ositional sentences). On the newer model of artificial neural nets (ANNs), computers learn through pattern-matching, and communicate with each other in giant netlike structures. Again, the underlying philosophical commitments alter both the explanation and the research program (Clark 1997). 24 chapter 2: Selected Literature Review removed from our conscious attention, intention, and will, so that we perform them automatically, or at least semiautomatically, without conscious attention to the steps required for their performance. This is the essence of expertise: the novice begins with a set of rules and procedural steps and consciously and intentionally works through them in order to achieve results.

An expert does the same thing seemingly instantaneously, through intuition, but it is a result of successful learning. It is the difference between knowledge and knowing found in ‘situated learning’ (Brown et al. 1989; Cook and Seely Brown 1999). But habits can be good or bad, and legal cultural habits that work as tight couplings between members of a cohesive profession can exclude the subjects of their practice in deep ways that amount to ‘epistemic injustice’ – a denial of the personhood of the other as a knower (Fricker 2007).

(a) Disciplined habits

The intersection of law and religion yields some interesting insights. Weil (1951:153) touches on the power of deeply held but invisible habit to deny others in ways that rights-based ‘anti-discrimination’ thinking, with its legislated codes of conduct, barely touch. Contempt, she says, ‘is the contrary of attention’, and the person who comes before the justice system is not given the attention of the few ‘who are to decide his fate with a word’. That person is afflicted, exposed, not heard as equal:

Everything combines, down to the smallest details, down even to the inflections of people’s voices, to make him seem vile and outcast in all men’s eyes including his own. The brutality and flippancy,13 the terms of scorn and the jokes, the way of speaking, the way of listening and of not listening, all these things are equally effective. This is not a conscious act of discrimination:

There is no intentional unkindness in it all. It is the automatic effect of a professional life which has as its object crime seen in the form of affliction, that is to say in the form where horror and defilement are exposed in their nakedness. Such a contact, being uninterrupted, necessarily contaminates, and the form this contamination takes is contempt. It is this contempt which is reflected on every prisoner at the bar. The penal apparatus is like a transmitter which turns the whole volume of defilement … upon each accused person. The mere contact with this penal apparatus causes a kind of horror in that part of the soul remaining intact, and the horror is in exact proportion to the innocence. Those who are completely rotten receive no injury and do not suffer. (Weil 1951:153) 13 From a perspective of cross-cultural pragmatics, as a form of humour in public discourse, some of the ‘flippancy’ in legal humour is complex: rhetoric and humour are interconnected, and lay perceptions differ from professional ones (Forrabosco 2011). For an integrative theory of humour see Martin (2010). There is also in health and emergency services a kind of ‘gallows humour’ that has been widely discussed as a coping mechanism. 25 From Court to College

It cannot be otherwise, if there is not something between the penal apparatus and the crime capable of cleansing defilement. (Weil 1951:154–5) Weil thinks the intervening purifier ‘can only be God’, but that position is unsustainable in a secular age. However, the limitations of a secular age are apparent (see Canadian philosopher Charles Taylor’s A Secular Age (Taylor 2007), in which he describes Modernity as being confined within a closed, immanent frame of meaning). In secular Australia it can be harder to appreciate the importance, and continuing influence, of religion in other times and places, although religious rituals are still observed by courts. Law’s relationship with religion was treated seriously by Berman, whose integrative jurisprudence (Berman 1974, 1988) ‘demonstrated that law has a religious dimension, that religion has a legal dimension, and that legal and religious ideas and institutions are intimately tied’ (Witte 1996:99). Steinberg (2005:18033) suggests that we might take from religion the notion of the via negativa (in brief, allowing or letting rather than constantly pursuing as an activity –the with which Ravaisson and others have identified habit-formation through experience).

As meaning-systems focused on particular types of knowledge, disciplines also have two meaning-aspects, reﬂecting the meaning of meaning itself: what the discipline is about (a reference to content) and what it means in its cultural place in society. This is most readily seen in religion – a cultural meaning-system focused on the spiritual or the sacred. Thus Silberman (2005:641) recommends a ‘meaning system approach for the study of religion’ which might ‘illuminate the resiliency of religion, and its complicated relations with individual and societal well-being’ without entering into the territory of truth-claims. The uniqueness of religion’s contribution is ‘its special ability to address the quest for meaning’ (Silberman 2005:641). Others want to reposition faith as an intellectual resource that can be an equal partner in academic dialogue, forming a central plank especially in ethical decision-making (Kirk 2007). Law is quasi-religious in the sense of being a source of ethical conduct as well as being a normative system external to the self, apart from its historical links. In addition, both are ‘pan-metaphorical’ – the metaphors for Law and God (both ‘logos’) are unsubstitutable, indirectly described, easily and dangerously literalised in models, unable to be experienced as a whole, and entirely expressed in metaphors and symbols of their being (van Woudenberg 1998). The common law does have canon law precursors and equivalents (but

26 chapter 2: Selected Literature Review others as well: thus Viscount Stair made an ambitious collation of Scottish law with civil, canon, feudal and customary law (Dalrymple 1681)).14

Like self-identity, professional identity is culturally–experientially constituted. Lawyers learn and think like everyone else, but they are taught to approach problems and facts in a legally (rather than, say, medically) enculturated way. Professional identity is both an advantage and a barrier, particularly to group endeavours requiring teamwork, because legal professional responsibility is exercised as a matter of personal judgment. In addition, particular constellations of self-identity (personality) appear to be more suited to thinking like a lawyer, or more inclined to self-select as lawyers, than others (Daicoff 1997; 1998; 2008), and legal habits earned through experience are then overlaid on personal characteristics and preferences.

(b) Practice in a context

While education and law are both practice-based disciplines, one notable difference between them is that the cultural patterns of law are closer to practices based on religion (authority, patriarchy, doctrine, precedent, text, exegesis, progress through reform) while those of education are arguably closer to behaviourist science. This may help to explain something Armytage (1996) says about the need for judicial education:

For the non-judge, the intensity of the debate may … seem surprising … until the significance of an underlying threat to judicial independence, and the traditionally informal and self-directed approach to professional development of judges, are fully recognised. (1996:37) Scholars struggle to this day with the tension between two schools of systematic educational research; the majority followed Thorndike, as opposed to Dewey, and this resulted in a victory for (scientistic) behaviourism. Thorndike’s ‘law of effect’ was based on operant conditioning; Dewey, on the other hand, promoted a different kind of scientific inquiry that might achieve progress through discovery/ learning, and innovation, and he rejected behaviourism the Cartesian dualist behaviourism: his seminal article on the faultiness of the idea of the ‘reflex arc’ of behaviourism (Dewey 1896) marked his transition from Hegelian thinking to

14 As James Dalrymple, Stair ‘graduated in Arts from Glasgow University in 1637 and was a regent in philosophy there … when he resigned to join the Faculty of Advocates. He was called to the bar in 1648, but seems to have had no other formal education in law’ (http://www.stairsociety.org/about/viscount_stair/) – an illustrious example of the assertion that legal qualiﬁcations are not essential to mastery of law. On law and patriarchy in the transition from feudalism to capitalism see Murray (1995).

27 From Court to College his evolutionary naturalism (Smith 1973) and was one of the most cited articles in the ﬁrst 50 years of the Psychological Review. As Lagemann (1989) argued, these were ‘two worlds’ of educational research, with very different consequences for education. Lagemann compared the traditions and considers the reasons for this outcome, which are complex. She later ‘built upon and extended this work in a recent article, emphasizing the continuing gaps between researchers and practitioners and the barriers that still exist between education scholars and those in the arts and sciences. The essay is the best yet written on the history of educational science and research traditions in American education (Reese 1999:2, referring to Lageman 1997).

Several strands in the relevant literature explore authority (in canon law, church hierarchy, law and education). In particular, the interrelationship of power and authority, and the aspect of authority that ﬁnds voice in the exegesis of authoritative texts, can be found in all three disciplines, along with discourses of hegemony, exclusion and oppression (e.g. from the adult educator Paolo Freire; Rousseau, Dewey and Freire all explored the nature of fear in learning (English and Stengel 2010).15

Legal scholarship was for a time directed at making law a branch of science (Jones 1842; Schweber 1999). Scholars such as Keyser (1929) ‘saw human behaviour as part of the natural world, and judicial behaviour as merely a special type of human behaviour. “Legal science” in his view was simply the study of this special category of behaviour’ (Davies 2002:146). Others really did see law as a branch of scientific enquiry. Blackstone is the most frequently cited for his view that law was a ‘rational science’ and an ‘object of academic knowledge’ fit for university study (Blackstone 1765-69; in Boorstin 1996). This ambition to make law’s content a science is difficult to sustain in a discipline whose entire underpinning is normative authority and underlying political concerns. But this is not exclusive to law. The social sciences have similar difficulty in being scientific in the ‘normal science’ sense because such knowledge is premised on caring about the field of inquiry in some way. Alexander (2007:641) pinpoints the problem, which comes at the point where people disagree, or cannot appreciate the perspective of the other:

It is the blushing secret of our (social) science that responses to it are often not very scientific. We may employ the language of verification and falsification, but our arguments about truthfulness are often just that … We can confidently distinguish bad from good work …but it is more difficult to make confident claims about a work’s truthfulness … This is a human science, not a natural one. It is inevitable and right

15 Although they provide useful context, it is beyond the scope of this review.

28 chapter 2: Selected Literature Review

that we often disagree with one another, and only human that we find it difficult to understand. The language of factuality masks these fundamentally interpretive claims. This is even more the case when the work in dispute is explicitly theoretical and evaluative. The cultural patterns which form the belief systems within disciplines can account for the values-differences between them. Thus for example law prioritises public interest ahead of private interest, while medicine has the reverse priority, and this accounts for much of the difficulty experienced in the courtroom when legal and medical priorities collide. They have ‘often taken opposing sides on issues concerning patient care’ (Mendelson 2014:489). Mendelson points to the patient’s right to confidentiality coming into conflict with the law’s insistence on knowing what the facts are in order to reframe personal problems within its own system of socially principled solutions. This reflects

very diﬀerent hierarchies of ethical and social values that underpin medicine and law. Where the law places the public interests of justice and its administration at the apex of the hierarchy of its values, for medicine it is the individual patient and his or her well-being. Both sets of values are essential to a civil society, and they may not be easy to reconcile, but Wigmore’s dismissal of medical concerns16 has resulted in many avoidable personal tragedies and misery. (Mendelson 2014:489) While, as Mendelson says, Wigmore’s attitude to patient privilege is dismissive, lawyers’ own professional privilege is strongly defended (for a recent example where it trumps mandatory reporting see Lareau (2015)). In other words, there is evidence of values-based inconsistencies, and competing values. Further, the differences are not clear-cut. So, for example, lawyers may champion the rights of patients to autonomous decision-making in opposition to psychiatrists’ insistence on the physician’s duty to make decisions in the patient’s best interests. But this does not ‘suggest an unbridled paternalism among psychiatrists’ nor ‘a commitment to thoroughgoing patient autonomy on the part of lawyers’ (Kaufmann et al. 1981:357).

Such patterns are, as Mendelson notes, underpinned by discipline-speciﬁc values. From a cognitive anthropologist’s perspective they are ultimately brain- based but not ‘subjective’ in the postmodern17 sense of being relative (Strauss and

16 Mendelson (n 20) quotes Wigmore: ‘There is nothing to be said in favour of the [patients’ right to conﬁ- dentiality] privilege, and a great deal to be said against it.’ 17 Postmodernism is a contested concept, but here I mean its ‘100 ﬂowers’ (a term often used by, e.g. Taylor (2011), as shorthand for plurality)), which is a concomitant of its anti-foundational stance. The important thing about Strauss and Quinn’s cognitive theory of cultural meaning is that it brings meaning home to the material brain without being forced to the position that meaning is subjective.

29 From Court to College

Quinn 1997). Nor are they objectively ﬁxed, as essentialist philosophies would have it (‘meaning does not hover in a cloud somewhere over Cincinnati’ as Strauss and Quinn (1997) put it). Patterns of meaning are not ‘relative’ to the point of being subjective; indeed, although ultimately based in brains, they are fairly durable (Strauss and Quinn 1997). Nelken says something similar: ‘Legal culture, in its most general sense, is one way of describing relatively stable patterns of legally oriented social behaviour and attitudes’ (Nelken 2004).

Starting at the other end, cognitive anthropology holds that people assimilate information into their own experience in the form of mental schemas, not only about the the natural world but also about the meaning-environment (the so-called Umwelt (Cheung 2004; Deely 2001; Sharov 1999; Uexküll 1909)). This recognition ends the arguments about objectivity, because individual habits become cultural regularities which capture the socially shared but still cognitive and thus individual aspect of cultural meaning (Strauss and Quinn 1997). In the course of being social animals we have developed rich and specialised perspectives – ways of being in and understanding the world through being in it, and developing a shorthand for it. The expression Homo juridicus (Supiot 2007; Vecchio 1938) is one example; ‘thinking like a lawyer’ is another. Thinking like a lawyer means both moving beyond being a novice in a particular technical field, with mastery of legal techniques and legal reasoning (e.g. as used by Abrahams 1954; Colon-Navarro 1996-97; Schauer 2009b; Vandevelde 1996) and also having internalised a set of cultural patterns about what-it-is-like to ‘be a lawyer’, rather than how to be a lawyer. In the literature, a running dispute about whether law teachers should be ‘teaching’ students to ‘think like lawyers’ is barren, for one thing because it overestimates the influence teachers have on the meaning we make of the meaning-environment around us, and for another because that kind of existential meaning-making can never be ‘presented to us’ in any fashion that guarantees it will be internalised as offered, certainly in a 13-week semester, much of it now online. And other, often minor but far-reaching effects may be at work. As Emerson said of analysing history, ‘do not be too profound; for often the causes are quite superficial’.18

Karl Llewellyn’s (1930:7) famous introductory text for law students, The Bramble Bush, explains his thinking about law as it is studied, practised, and taught in a way that discloses what it means to ‘think like a lawyer’ as ultimately based on feeling; he persuades those who will understand that ‘thinking like a lawyer’ is 18 Quoted by Steinberg (2005:155).

30 chapter 2: Selected Literature Review neither an empty term, not one of approbation. He opens with a cryptic verse, which Oaks (1996:6) admits as ‘the only thing I thought I understood’ on his ﬁrst reading of Bramble Bush:

There was a man in our town and he was wondrous wise: he jumped into a bramble bush and scratched out both his eyes— and when he saw that he was blind, with all his might and main he jumped into another one and scratched them in again. What Llewellyn is advocating is an intensive immersion technique designed to habituate law students to being lawyers. As he suggests in the introduction to his text (‘With all its surface simplicity, [it] must cut as deep as its author has wit and strength to see the way’) true meaning is reached through the deepest simplicity. Llewellyn’s fellow legal realist, Holmes, similarly ‘followed the prescription he laid down for himself in a diary entry in 1866: ‘immerse myself in the law completely,’ which ‘a man must [do] ... if he would be a ﬁrst rate lawyer.’ (White, in Holmes 1881). From the perspective of social espistemlogy, such immersion is what we experience as we gain knowledge and justify our beliefs, and it cannot be divorced from our social situatedness.

Llewellyn wanted students to:

see a society whole, and not in the mere image of one’s client; to see a man whole, and know sympathy where another would know bitterness or scorn. To practice law better, and live life more richly, because law is lived as a humanity, and human – as wisdom, but as wisdom always needing art. Such are the things an author drives to get into some communication to the student. (Llewellyn 1941) The Bramble Bush view sees legal education as making a lawyer whole; ﬁrst there is a naïve, adversarial understanding of law, but after wrestling in the bramble bush, which ‘scratches out’ emotional responses, it is legal education that scratches it in again.

Llewellyn is law’s most direct educational equivalent of Dewey. Wishart’s (2008) view that students will not tolerate immersion in law, if correct, demonstrates a loosening of the coupling between academic qualiﬁcations and the law (the positive law for which practising lawyers have a ‘feel’, and practice). What might a

31 From Court to College re-tightening of the coupling between study of law in preparation for practice and the profession entail?

There is also a useful role for fear: doubt, discomfort, and difficulty can be pedagogically helpful (English and Stengel 2010; Noddings 1997; Shulman 2005a). The Socratic method enlists it; although, as Shulman (2005b, c) says, ‘moderate anxiety is adaptive, [but] terror is paralyzing, and one of the great pedagogical challenges is to create an environment that is simultaneously risky but not paralytic.’

(d) The modern view

A current company law teacher, Wishart (2008:v), notes that the immersion technique of ‘reading as many cases as [students] could ﬁnd without attempt at rationalisation’ is supposed to yield ‘an ‘a-perceptive mass’ of individual instances on which approaches to problems could be founded’. However, he believes that students will not tolerate immersion in ‘law and yet more law’. If he is right, students are unlikely to develop emotional ways of seeing in the way Llewellyn wanted them to. While reﬂection is also an important part of learning,19 Llewellyn was correct in cognitive terms: immersion to achieve internalisation is the path from novice to expert (Blasi 1995).20 Deliberate learning is over-emphasised by educators (Eraut 2000; Shulman 2004); only a tiny portion of what we know, and more importantly know how to do, is formally taught to us, and much is distributed relationally (Edwards 2011). Most mental ‘furniture’ is obtained by repeated exposure to the learning material (Polanyi 1967). But Wishart (2008:v) points to the modern loss of faith in the process:

Apart from the unbelievable tedium of this process, the modern student would, and does, reject the process as quasi-religious, just as the libertarian academic rejects the authoritarian nature of the consequent Socratic lecture technique. The modern view is pessimistic: the products of law school are frozen in their blind state and never pass out of emotional immaturity. They go out to legal practice in that state, and they never recover: ‘law students (and thus future lawyers) have some unique psychological needs and characteristics that may help explain the persistent narrowness of lawyers’ deﬁnition of problems to be resolved’ (Welsh 2008:5).

This pessimism about thinking like a lawyer has led to challenges to the received wisdom that thinking like a lawyer is a virtue (Schauer 2009b). It is time to ‘get

19 See section 4 on organisational learning. 20 See generally Chi et al (1988); Hambrick et al (2016).

32 chapter 2: Selected Literature Review over’ the idea. These writers refer to ‘law-induced anxiety’ (Goodrich 2000). They point out the depressogenic character of law, note that the problem starts in law school, and take responsibility for it as law teachers. One assumption is that there is a direct causal link between what law teachers do and how students turn out. Another is that thinking like a lawyer is the problem, so we should stop teaching students the way we have been teaching them (Sheldon and Krieger 2007). A ﬁnal view is that lawyers need to stop monopolising the idea of thinking in that way. Anyone can do it (Dunlap 2014).

In the twentieth century, a different Krieger,21 a judge asked to serve on a law school curriculum review committee established to implement the ﬁndings of the Carnegie Report, found the task impossible, because no single agreed ethos for ‘professional identity’ could be found; since they were unable to ‘identify any common commitment or value’ for lawyers, they reverted, defeated, into discussing codes of professional conduct (Krieger 2009). One might assume that the same kind of indeterminacy applies equally in the area of professional ethos applies to judges, although the literature appears silent on the point.

Meaning always comes into salience for us laden with prior meaning. These are ‘subtle intellectual barriers’ which operate ‘between disciplines and professions, between professors and practitioners’ (Blasi 1992:85) and between people, and they require more than just going beyond ‘standard legal materials’ in teaching.

Jaquish and Ware rightly crititcise those standard materials:

Given what we know about how people learn, and given that our goal as legal educators and lawyers is to educate decision-makers, why do legal educational materials all look alike? Why do we present word upon word, indistinguishable, unemphatic, visually dull, and unmemorable? (Jaquish and Ware 1992:1728−9)) But it takes more than interesting materials suited to learning styles to change mindsets. Blasi is one law teacher who takes cognitive science seriously as a way to change teaching practice (Blasi 1995, 1996), and Sullivan et al (2007:101-2), in their important review of legal education, brieﬂy mention cognitive theory (pp 101-2), focusing on Blasi’s work. Blasi refers to the ‘professional myopia of lawyers’ which he describes as ‘a condition that blinds lawyers to all issues that do not present themselves as issues of litigation’ (Blasi 1992). One non-academic lawyer and former judge’s associate in the US captures the subtlety of this when he says, ‘to live is to shape each other’ (Steinberg 2005:9). He describes as ‘the ﬁction of a thinkable world’ our habit, perhaps ‘the most profound consequence of the Christianization of Europe’ that we mistakenly ‘continue to identify ourselves with the structure

21 Marcia L Krieger, rather than Lawrence L. Krieger. 33 From Court to College we discern in our conscious activity’ and assume that ‘our mental activity … can be brought into awareness, that it interposes between stimulus and response’ and ‘forms a uniﬁed whole that can be meaningfully understood in isolation from others’ (Steinberg 2005:108). In fact we think with out bodies, of which our brains are just a part, and we do not have direct access to our subconscious reasoning. In brief, we rationalise, ‘tell more than we can know’ (Nisbett and Wilson 1977b), and actually decide based on meaning – in effect, emotion-triggers drive ‘rational’ choices (Damasio 1995, 1999).

Thus our modes of thought, biases, sterotypes, and schemas are subtle, complex, and inaccessible to direct approach. This fact about our mental furniture also means that most of our knowledge is tacit rather than explicit (Polanyi 1962) and that our personal participation in knowledge acquisition is necessary for it to mean anything to us (Polanyi 1958; Polanyi and Prosch 1975). This is the rationale for behaviourism: only the observable counts as ‘evidence’ of psychological processes; ipso facto, self-reporting on emotional states is unreliable.

(e) Cognitive styles and empathy

Clearly, a better use of scientiﬁc knowledge in all forms of legal education can assist with surface problems22 such as depression. However, neuroscience can also shed light on the deeper logics of social (cultural) meaning, including the way we use language (discussed in section 3) and how we should understand human reactions to others, as ﬁxed or changeable cognitive styles for reasoned and emotional empathy.

Neuroscience distinguishes between the functions of cognitive and affective empathy as two separate systems. Decety and Lamm (2006:1146) set out evidence from social psychology and cognitive neuroscience to support a dual-system theory of empathy (emotion sharing is ‘bottom-up information processing’ and reasoning, or ‘executive control to regulate and modulate this experience’ is ‘top- down information processing’; each is ‘underpinned by speciﬁc and interacting neural systems’).

More recently, Shamay-Tsoory (2011) describes cognitive empathy as the capacity to understand and appreciate the emotions of others (the Jungian equivalent of a Thinking preference, which is a reasoned understanding of the perspective of the other), while affective empathy is understood as being moved

22 ‘Surface’ in the sense that social causes are not tackled along with the individual’s symptoms.

34 chapter 2: Selected Literature Review

(affected by)23 the emotions and emotional experiences of others (the Jungian equivalent of a Feeling preference, which is felt in an embodied or ‘instinctive’ way).

After some neglect, interest in cognitive styles24 has revived in psychology (Kozhevnikov 2007; Riding and Rayner 1998; Smith 1979), although unresolved issues remain (Sternberg et al. 2011; Zhang and Sternberg 2009a): (1) whether styles are value-laden (are some better than others?); (2) whether styles are traits, or states (the same issue that confuses critics of the Myers-Briggs Type Index (MBTI), who frequently incorrectly assess it as if it were a trait-based theory (Zhang and Sternberg 2009b)); and (3) the need to clarify the terminology in the field (the extent to which differently named styles are separate constructs, or just different names for the same thing). These problems are not surprising, given the conflicting justifications for ‘objective’ psychological research. Again, Cartesian dualism drives the field into ‘subjective/objective’ approaches, so that, for example, factor analysis in psychology is ‘objective’

In psychology, for a time research interest in motivation fell by the wayside, and goals took over as a unifying concept for analysing the interaction of personality and situation. When combined with a revived interest in motivation, goals offered a way to investigate basic psychological processes (Dweck 1992). However, motivation + goals without action leads nowhere, and action may not lead anywhere either, unless it is sustained. Then motivation supplies the drive, goals supply the direction. Research on similarities in human motivation (e.g. according to Maslow’s ﬁxed-level hierarchy of needs), have given way to more nuanced studies of variability in motivation and the experience of mastery in particular contexts (e.g. the sense of effectiveness in self-determination theory (Deci and Ryan 1995; 2000; Ryan and Deci 2017). More recently, an implicit measure of competence need satisfaction as an alternative to the explicit measures currently relied upon has been attempted, with modest success (van der Kaap-Deeder 2018).

Action towards a ﬁxed goal can give the illusion of progress but still be merely repetition of static, ﬁxed patterns (Adam and Groves 2007a, b). In organisations, lay theory (common sense, or what the Curchlands and other eliminative materialists

23 ‘Emotion (1570s), ‘a (social) moving, stirring, agitation,’ from Middle French émotion (16 c.), from Old French emouvoir ‘stir up’ (12 c.), from Latin emovere ‘move out, remove, agitate’, from assimilated form of ex- ‘out’ (see ex-) + movere ‘to move’. Sense of ‘strong feeling’ is ﬁrst recorded 1650s; extended to any feeling by 1808. (Harper 2015). 24 Not learning styles, which have also been criticised. See Adey and Dillon (2012).

35 From Court to College call ‘folk psychology’)25 ‘shapes people’s cognition, affect, and behavior’ (Murphy and Dweck 2009).

The relevance to JE of the relative value of different ways of understanding personality is that if such mindsets are fixed, they are traits (characteristics of the person), and there is little point trying to educate for change beyond their constraining effects: there is no point in the Bramble Bush at law school or beyond. But if styles are fluid, development might be possible and worth attending to. This is an example of the usefulness of knowledge being dependent on whether its underlying premises cast it as fixed of open (as with fixed and open mindsets: the difference is substantial (Dweck 2012)).

2.3 Cognitive culture and metaphor

This section considers language usage, in particular metaphor, and the deeper logics of different, but all language-bound, disciplines, to which I turn in interpreting my ﬁeld research in Chapter 4. The scientiﬁc realist approach set out in Strauss and Quinn’s (1997) cognitive theory of cultural meaning is central to my approach to language and thought. It accounts for the way lawyers proceed when establishing new education programs, and explains why ‘common sense’ approaches may inhibit a genuinely educational JE.

Interpretation is impossible to escape, even in normal science. When interpreting concepts, however, we are two stages removed from reality, since both theory- laden perception and language intervene. Alexander (2008:157) observes that interpreting an intellectual icon ‘is a way of positioning, of saying who we are, in relation to [that icon], placing ourselves alongside him, against him, or somewhere in between.’ Further, lack of agreement, ‘not only about propositions but about presuppositions, is the reality of intellectual life in the human sciences’ (2008:157).

In literature, particularly poetry, metaphor is a trope – a conscious (sometimes self-conscious) artistic attempt to achieve a striking effect that drives home meaning. In philosophy, metaphor is an explanatory rather than an aesthetic device: ‘Its explanatory function is to aid in conceptual clariﬁcation, comprehension, or insight regarding a mode of philosophical thought, a problem or an area of philosophical subject matter, or even a total philosophical system’ (Pepper 1973).26

25 See, for example, Stich (1983) or Churchland (1986). 26 Pepper was in the wider Pragmatist circle. He disagreed with Dewey on Dewey’s aesthetic theory (see Pepper 1939). 36 chapter 2: Selected Literature Review

The American literary theorist and scholar of rhetoric as persuastion Kenneth Burke (1950, 1964, 1966) understood language as symbolic action and ritual as drama, and drew complex linguistic maps of meaning. In this and related schools of social constructivism, language is centrally important to knowledge and meaning, and reality is ‘both’ subjective and objective.

Berger (1963), construes social reality as a form of consciousness in which society and the individual are in relationship. Society is both objective reality and subjective reality, and it is our social interactions – including interactions with social structures and the sign-system, language – that pattern and shape our worldview. In the process, concepts are ‘reiﬁed’ in the sense that they become embedded in our reality. Thus, for example, judges are expected to be digniﬁed and circumspect, and they are spoken to deferentially, as ‘Your Honour’. Berger (1983:4–5) contrasts these terms: the ‘medieval notion of ‘honour ... depends on a hierarchical order of society’ and is ‘a direct expression of status, a source of solidarity among social equals and a demarcation line against social inferiors’ (Berger 1983:174); ‘dignity’ is a modern notion that is understood within a framing of human rights.

However, all these schools, from symbolic interactionists onwards, are either trapped within Cartesian duslism or struggling to escape it. The Pragmatists, including Dewey, seek their escape through evolutionary thinking new, integrative perspectives such as ‘both/and’. As ‘evolution’s ﬁrst philosopher’ (Popp 2007), Dewey insisted that man was seamlessly within nature, not its observer from outside, while the constructivists remained caught in that dichotomy even while trying to interpret them as different levels: at one level, reality is subjective, at another, it is objective.

Deweyan evolutionary naturalism, being biocentric, allows Berger’s insights to been reframed through cognitive science, including cognitive anthropology (see D’Andrade (1995) for the development of this ﬁeld). In this component discipline of cognitive science, culture is not a ‘thing’ in external reality, but rather mind, cognition and culture are interwoven and mutually constitutive (Clark 1997; Shore 1996). Even as ‘culture’ became a key concept in the humanities generally, in its home discipline of culture (anthropology), anxiety about reliance on essentialist ideas led the discipline to focus on qualitative accounts of subcultures at the expense of generalisability. Cognitive anthropology, which relies on second-wave cognitive science (Clark 1997, 1998; Freeman and Núñez 2003) offers a solution to that problem (D’Andrade 1995; Shore 1996). In the legal context, a cognitive view

37 From Court to College of cultural meaning solves the problem of where we get values from, which is at the heart of the troublesome activist/formalist dichotomy (Tamanaha 2014).

In particular, with this second wave of cognitive science, the metaphor comes into prominence beyond being a literary device as a ‘carrier’ of meaning – meta- (over, across) + phora (pherein, to carry or bear, found also in ‘infer’ (in + pherein) (Harper 2015). Now, metaphor is understood to be deeply constitutive as a cognitive process or mechanism for a pattern-matching brain (Bailey et al. 1998; Lakoff 1990, 1995; Lakoff and Johnson 1980, 1999).

Such a viewpoint was not possible within ﬁrst-wave, ‘computational’ cognitive science, which is premised on algorithms and is ‘objective’ like normal science and behaviourism. But second-wave cognitive science gives minds bodies in the world. In place of subjective/objective and mind/body dichotemies, we ﬁnd an integrated complex of mind/brain-world-action where you what you know is, indeed, in the brain (Patterson et al. 2007) – yet that does not mean subjectivity, since cultural meanings are shared in ways that are stable (Strauss and Quinn 1997) and extend beyond the human brain through the intimate interplay between cognition and the artefacts of cognition (Hutchins 1995, 1996). Organisational change, leadership and learning can thus be understood as culturally shared cognitive processes (Lakomski 2001).

Behaviourist psychology, which remains the dominant form taught in universities and adopted by HR departments in corporations, cannot account satisfactorily for the simultaneous stability and context-sensitivity of language because it dichotemises mind and world. If mind is subjective (inside the skull) and the world is objective (‘out there’ in ‘reality’), where does meaning reside? The Cartesian split forces us to choose one or the other, and that is what post- Enlightenment scholars have generally done. The cognitive theory of cultural meaning proposed by Strauss and Quinn (1997) solves this problem of the location of meaning created by the Cartesian split. Even authors who take an ecological view of concepts and treat them not as identiﬁers of things in the real world but as ‘bridges between mind and world that participate in the generation of meaning’ (Gabora et al. 2008) get caught up in mind/world language in the very act of ‘bridging’ the two.

Understanding the role of metaphor in language is the key to reclaiming concepts as meaningful in both major senses of the word ‘meaning’. The first sense is the linguistic: denotation or indication – the indicative force of word, what it ‘signifies’ as a sign or indicator; the other is meaning-of-life meaning, which calls in a significance larger than, and beyond, the self. See generally Wong (2012).

38 chapter 2: Selected Literature Review

Linguists borrow from law when they say a particular metaphor ‘licenses’ one meaning but not another. This notion of licensing is implicitly27 at the heart of the work by Lakoff and Johnson (1980; 1999), which explains how metaphors govern the act of categorisation: thus anger is hot, or sometimes cold, but it would be impossible to say, meaningfully, that anger is spongy, or ethereal. The metaphor of ‘strain’ licenses a collection of related ideas in academic discourse: the ‘tensions’ between ideas positioned at the poles of a continuum, and theories of the middle ground, or theories that attempt to ‘bridge’ dichotomies; thus when Gordon (1993) presents at a symposium titled ‘Lawyers, Scholars, and the “Middle Ground”’ entirely devoted to replying to Edwards (1992) in an earlier symposium on the failings of legal education in the academy, the words ‘middle ground’ signal, intentionally, the structure of the debate and the perspective from which participants may expect speakers to tackle it.)28

As an example of what is licensed and what is implied by particular metaphors, legal arguments are aptly explained in terms of weaponry because the process is adversarial and arguments must ‘cut through’. Metaphors become a kind of legal shorthand for principles (the slippery slope, the ﬂoodgates), and are in that sense efficient, non-obfuscating jargon which also act as a kind of professional cultural glue (Hudson 1978).

High Court Justice Hayne frequently used a metaphor of ‘the knife in the napkin’ when pointing to weaknesses in counsel’s submissions; Kirby J occasionally picked it up as well: ‘Is there a knife in that particular napkin?’29 About to demolish counsel’s argument, Hayne J says, ‘Let me show you the knife in the napkin because the knife is there and you ought to know what it is.’30 At Hayne J’s farewell,31 French CJ adverted to this metaphor, saying:

Counsel will no doubt miss the metaphors accompanying points made from his Honour’s seat on the Bench, including references to the ‘knife in the napkin’ and the ‘killing ground’.

27 The term is used in analysis of metaphor generally, but not noticeably in these authors. 28 Held (2007) reviews and critiques ‘middle-ground’ theorists (MGTs) in psychology. 29 State of New South Wales v Fahy [2006] HCATrans 615. 30 SST Consulting Services Pty Ltd v Rieson & Anor [2006] HCATrans 98. In this case, the knife was ‘clev- erly hidden behind a concession’; elsewhere counsel is invited to submit alternative interpretations of the law: ‘You may say the knife is blunt or remains within the napkin.’ (Insight Vacations Pty Ltd v Young [2011] HCATrans 79). 31 French CJ, Ceremonial - Farewell to Hayne J, Canberra [2015] HCATrans 105.

39 From Court to College

Kirby J combines metaphors of (competitive) sport and combat when he says,32 ‘But, if I can mix the metaphor, a free kick may be a two-edged sword for you’. Sport is also a kind of competition, but mixed metaphors do not necessarily create a meaning-problem even when the mix is clearly incongruous (e.g. ‘at the top of the ladder, all was plain sailing’). Even here, the licensed meaning is strong enough to carry across in disparate contexts. Strauss and Quinn call these ‘verbal molecules’ rather than memes.33

An important metaphor for this research, one I use extensively in the case study in Chapter 4, is Weick’s metaphor of educational organisations as ‘loosely coupled systems’ (Orton and Weick 1990; Weick 1976). This metaphor has been particularly fruitful in organisation science, where Weick’s article has been seminal. Morgan and Roach describe the task of ‘reading’ an organisation using metaphors such as machine, organism, brain, culture, politics, psychic prison, ﬂux, and domination (Morgan et al. 1997). Some of these are Pepper’s root metaphors, which underpin what he calls ‘world hypotheses’ (e.g. the Cartesian assumption that reality is mechanistic) (Pepper 1942), others are merely richly licensed with implications.

Pinker (2007:436) calls the linguistic fecundity of the human mind ‘combinatorial exuberance’ – a productive juxtaposition of experience and ingenuity: the mind’s ‘eternal power to ﬂabbergast us with thoughts that have never before been thunk’, deriving from the twin aptitudes of metaphor and compositionality, with which “the language of thought can be pressed into service to conceive and express an endless geyser of ideas” (good or bad).

Another example of the organic metaphor as an enabler of legal imagination is the leap from person to corporation. The metaphor of the ‘person’ has ancient lineage that licenses it to carry the meaning of any character’ s role or function, or office or capacity, and juridical use precedes other uses (OED 2009). In earliest use, ‘the human being acting in some capacity, personal agent or actor, person concern’. The oganic body (comprising a collection of organs and functions) can then be metaphorically translated to a ﬁgurative body corporate, a ﬁctive legal person.

Most linguistic forms emerge and die naturally, during use and from misuse and disuse, rather than by artiﬁcial contrivance. Shakespeare’s vocabulary makes him a

32 Ross & Anor v The Queen P94/2000 [2001] HCATrans 550. In the same matter, having put a helpful suggestion to counsel which she failed to take up, Hayne J. reassures her, ‘For once there is no knife in the napkin, Ms Amsden’, and Kirby J remarks, ‘Counsel are unduly suspicious of us.’ ‘I cannot imagine why’, Hayne says drily. 33 Some cognitive anthropologists object to the idea of the meme on the basis that biological mechanisms cannot be applied to social phenomena (see e.g. Atran (2001), contra Aldrich et al (2008). 40 chapter 2: Selected Literature Review phenomenally innovative exception to the general rule. But even Shakespeare had a brain, as Crane points out, contrary to Foucauldian treatments that ‘disperse the Shakespearean body into an immaterial author-function, occluding [his] material existence in time and space’ such that ‘the implications of a Shakespearean brain … have been almost entirely overlooked’ (Crane 2001). How much more the case for law.

Language and law have a symbiotic relationship that is central to any consideration of legal education for several reasons beyond those discussed in the extensive ‘law and literature’ ﬁeld of scholarship discussed brieﬂy at 2.4 (below).

First, language may even have co-evolved with law, rather than being an earlier prerequisite, as is generally supposed (on this speculation see Knight (2008)). In any event, legal words have had a formative effect on society and its institutions: ‘As law and society scholars have shown, law frequently transfers to popular discourse and to the self-interpreting activity of non-legally trained people’ (Simon (2002:1036) citing Ewick and Silbey (1999)). (‘Licensing’ metaphors is one of many.)

Second, recent work in a new ﬁeld, the cognitive science of law, is replete with examples of the constitutive power of metaphor and its role in categorisation, which is at the heart of determinative legal reasoning. What explains this phenomenon is the notion that categories have an internal structure which produces these perceptions of best examples. The claim is that:

categories are structured by means of idealized cognitive models-culturally shared ‘theories’ of how to organize some portion of our experience. These models may be organized in terms of image-schemata like the source-path-goal schema or in terms of a group of related propositions grounded in a physical/cultural experience. An example is the stereotypical conceptualization of ‘mother’ by means of an idealized cognitive model that assumes natural childbirth by a woman who is married to the biological father, and who is also the primary nurturer and full-time caretaker of the child. Women who ﬁt this idealized cognitive model are prototypical ‘mothers’ and are referred to as such. But no prototypical mothers are marked as such by the linguistic conventions resulting from this model: They are stepmothers, surrogate mothers, biological mothers, foster mothers, working mothers, or unwed mothers.

This becomes critical for the present research, which notices that the metaphors emerging in judicial administration in Victoria are largely those of accountability and deliberate choice and the corporate leader, with established frameworks and plans that neither recognise the metaphors at work nor open up a space to admit new ones. As Dewey remarked, the ﬁsh does not see the water in which it swims.

41 From Court to College

An early symposium led by Solan (2002), titled ‘Cognitive Legal Studies: Categorization and Imagination in the Mind of the Law’, was based on a foundational text in this ﬁeld, Winter’s (2001) A Clearing in the Forest: Law, Life, and Mind. Minda (2002) praises the book, saying it reminds us that ‘unless we get beyond the sedimentations of meaning we have created with our human imagination, we will … “remain prisoners of the social ﬁeld – the very clearing in the forest – that we ourselves have made ... Ironically, the legal culture cements the view of legal reasoning as constraint in the minds of judges and lawyers by reference to a host of imaginative metaphors that imagine the rule of law as stable and determinant authority”’ (my emphasis). Meanings are psychological states dependent upon the interplay between intrapersonal and extrapersonal realms (Strauss and Quinn 1997).

The anthropologist Clifford Geertz, who was a towering inﬂuence beyond his own ﬁeld (including in education),34 was an interpretivist.35 According to Strauss and Quinn (1997), he had not himself resolved the subject/object split satisfactorily, and therefore equivocated between the two. Meaning must, ultimately be psychological (but not subjective), as Strauss and Quinn argue; yet very widely in anthropology, fear of subjectivism inhibited recognition of the role of the brain (which cognitive anthropology now addresses).

However, Geertz did think ‘interpretation is a search for meaning, and … meaning lies in social relations’ (Degabriele 2000). As far as this goes, it is coherent with the cognitive anthropologist’s understanding, and contradicts the Hofstede (1980, 1996, 2003)36 view:

to claim that culture consists in brute patterns of behaviour in some identiﬁable community is to reduce it (the community and the notion of culture). Human behaviour is symbolic action. Culture is not just patterned conduct, a frame of mind which points to some sort of ontological status. Culture is public, social, relational, and contextual. To quote Geertz: “culture is not a power, something to which social events, behaviours, institutions, or processes can be causally attributed; it is a context” … Culture is not an ontological essence or set of behaviours. Culture is made up of webs of relationships. Hofstede, on the other hand, while not denying that his quantitative measures are statistical and broadly based (individuals vary, and may be ‘composite’ types), presents cultural dimensions on a binary sliding scale: attributes are more or less

34 For example, relied on by Degabriele (2000). 35 In anthropology there are Geertzian and neo-Geertzian interpretivists. 36 Also the competing GLOBE studies (see Smith 2006). 42 chapter 2: Selected Literature Review strongly manifest, and particular cultures are assessed as a whole on the coarse measures.

Hofstede’s (1980) interest in cultural differences between people’s work values drove him to explore culturally based behaviour. He ‘saw that sociology, psychology and management sciences did not offer adequate explanations, because they began with the assumption that universal laws governed human behavior – an assumption he recognised to be deeply ﬂawed’ (Antoine 2016).

Using data from IBM employees worldwide, Hofstede found that variations in cultural values were better predictors of attitudes and behaviour than other approaches, and his reference to culture as ‘mental programming’ moved anthropology in the ‘cognitive’ direction, albeit riven by Cartesian dichotomies. Hofstede’s contribution is to offer one way to think about culture, albeit in terms of differences. The research has also evolved (Minkov and Blagoev 2012; Minkov and Hofstede 2011). Hofstede’s model, while widely cited, is contentious. (See e.g. a series of exchanges (Ailon 2009; Hofstede 2002, 2006, 2009, 2011; McSweeney 2002a, b; Williamson 2002) and between Hofstede (2006) and the GLOBE researchers (House et al. 1999; House et al. 2004; Javidan et al. 2006) and other commentators (Earley 2006; Smith 2006). Hofstede (Hofstede 2015) now argues for expansion of his cultural dimensions’ approach to consider how culture is maintained and change, which is an advance beyond his earlier static dimensions, albeit much harder to research than simple binaries.

2.4 Language, law and literature: a symbiotic relationship

The importance of the legal imagination, and of literature for law’s imagination, is hard to overstate. As Sir Walter Scott remarks in Mannering, ‘A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect’.

The philosopher Susan Haack (2003) quotes a passage from George Eliot’s Middlemarch (1872) which points up the problem of ‘knowledge of another kind’ beyond the law itself (expertise):

‘I should like to know’ [asked Mr. Chichely] ‘how a coroner is to judge of evidence if he has not had a legal training?’ ‘In my opinion,’ said Lydgate, ‘legal training only makes a man more incompetent in questions that require knowledge of another kind. People talk about evidence as if it could really be weighed in scales by a blind Justice. No man can judge what is good evidence on any particular subject unless he knows that subject well. A lawyer is no better than an old woman at

43 From Court to College

a post-mortem examination. How is he to know the action of a poison? You might as well say that scanning verse will teach you to scan the potato crops.’ What the novel highlights is the lack of transferability of knowledge, called its ‘stickiness’ (i.e., being restricted or ‘stuck to’ to the context in which it was gained: Elwyn et al. (2007); Lakomski (2005); Szulanski (2003); Szulanski and Capetta (2003); von Hippel (1994)). Stickiness is an important issue for education, including professional education, for at least two reasons: first, the general expectation is that knowledge gained in one situation (e.g. captaining a flight deck) will be transferable to another (e.g. managing a court) is false; yet the notion of ‘core skills’ that can be taught in ways that make learning tranferable across industries (an idea promoted in industrial training and in outcomes-based approaches to learning) depends on this assumption. Second, lawyers are accustomed to ‘calling in’ expertise as needed, and while this is efficient, is also tends to make lawyers’ own knowledge in other areas superficial.

For lawyers as for the layman, literature provides an opportunity to reconceptualise social structures and institutions, and even examine their own thinking patterns. Thus, for example, Bissell (2012) takes Jorge Luis Borges’ short story The Zahir as his point of departure for an exploration of an unexpected side of habit in light of Ravaisson’s work. Rather than being an adaptive settling into a comforting coherence, Bissell argues that obsessive rumination (to which depressed lawyers are prone) may actually force the ruminator into volatility. An Islamic belief that ‘beings or things … have the terrible power to be unforgettable, and whose image eventually drives people mad’ is used to ‘throw … into sharp relief the Cartesian notion that thought is something that a sovereign will chooses to have and can freely command’; it is impossible to escape rumination other than by breaking out, perhaps erratically.

In the story, ostensibly about a man musing over a coin, ‘The repeated thoughts become so distressing that Borges tries all kinds of bizarre experiments to deal with them … Yet the locus of his thinking becomes so knotted around this coin that everything else gradually becomes backgrounder against it: “Anything that is not the Zahir comes to me as though through a filter, and from a distance.’ While ‘reflective practice’ is a central part of learning, obsessive rumination can take the place of reflection.

As Bissell notes, ‘Whilst The Zahir is a literary narrative, the more volatile image of the habit-body that it helps to open up pushes our understanding of extra-corporeal experiences that have animated recent social and cultural theories of corporeality, particularly on addiction and obsession’ (n7). On this reading,

44 chapter 2: Selected Literature Review volatility is not something that habit works to dampen down, as in the usual interpretations; rather, the ruminative habit-body is a speciﬁc modality of habit that has agitatative properties. This is just one example of literature acting as a prompt for reconﬁguring experience.

In 1908, when a non-instrumental belief in law was still the norm, the evidence expert, Wigmore, drew up a list of 100 ‘legal novels’, which he deﬁned as ‘novels in which lawyers ought to be interested’. While not attempting a rigid categorisation, Wigmore suggested that these might be, roughly, of fourt kinds:

(A) Novels in which some trial scene is described-perhaps including a skilful cross-examination; (B) Novels in which the typical traits of a lawyer or judge, or the ways of professional life, are portrayed; (C) Novels in which the methods of law in the detection, pursuit and punish- ment of crime are delineated; and (D) Novels in which some point of law aﬀecting the rights or the conduct of the personages, enters into the plot. (Wigmore 1908:574) The list is not intended for laymen, but for the lawyer, and one guiding principle for those the lawyer ‘cannot afford to ignore’ include ‘certain episodes or types of character in professional life whose descriptions by famous novelists have become classical in literature’ and can be spotted and understood in professional life as well.

Law and literature intersect with psychology in ways that can illuminate the lives of others and evoke empathic emotions in response. As Craft (1992:521) points out,

Both law and literature deal with the fear of the future and each in its own way imposes order on the world. The author … ﬁlters reality by choosing which parts to include in the work created and also imposes order on reality through the structure of the literary work. Literature examines the fear of the future as a story unfolds, while the law steps in to explain and provide a remedy aer an event. The legal system imposes structure and order on the world.

Non-instrumental law (‘the Law’), when it was still the usual way of seeing things, offered a transcendent justice that became immanent in the lawyer in a quasi-religious way, as Themis, Iusticia (Justicia), or the Jealous Mistress (see Angert 1927; Foster 1966; Traver 1967; Waters 1928); now that these archetypal meanings, these ‘non-instrumental’ understandings have been lost to lawyers, who are left with an instrumental, economic rationale for law (Tamanaha 2006).

McGillivray (1992:253), who came ‘Armed with a note from [her] old English professor attesting to the power of poetry to teach precision of language’ was given credit toward her LLB for a prosody course; later she wrote a short introduction to law and literature. In that introduction (McGillivray 1994:ii), she traces early instances of the law and literature conjunction, but argues that ‘Modern

45 From Court to College jurisprudence gives little importance to the links between the law and literature, despite their importance not only to the legal profession but also to society’. Pressing this argument, she says ‘the credit for introducing literature studies to the law-school curriculum and for setting Law and Literature ﬁrmly on the map of interdisciplinary study’ properly belongs to James Boyd White, because, while ‘Wigmore’s list was updated once or twice ... only in the past two decades was its humanizing aim taken seriously by the legal academy’.

White’s 1989 review of Posner illuminates the point that in instrumental mode, lawyers may ‘analyse’ a text rationally, in a lawyerly fashion, as Posner does. Yet, while White can agree with various aspects of Posner’s analysis, he ﬁnds there ‘no sense of a mind responding and learning, no sense of puzzle and illumination, no sense of joy or pleasure in the reading itself, no sense indeed of the presence of another mind with whom the author is engaged’ (White 1989:2014–5)). Posner sees the world always through his ‘law and economics’ lens, even when he turns his attention to literature.

A postmodern ﬁgure in law and literature, De Sousa Santos (1987:279–80) describes what has happened to law as its ‘camelisation: ‘ law became a camel, and the welfare state is the most salient feature of this process of “camelisation” of the law.’ His ‘camel’ reference operates as a metaphor that is both itself literary and also points to processes that judges and JE might consider. It derives from Nietzsche’s Thus Spake Zarathustra: the spirit has metamorphosed from camel to lion to child, and while a camel, ‘allows itself to be loaded with any values or beliefs humanity wants to load it with’. As a lion, it rebels, but it is a negative rebellion, insisting ‘I will’ in place of ‘thou shalt’; then as a child, it is renewed, with new values. But in de Sousa Santos, the process is reversed (child, lion, camel) which he proposes as the three metamorphoses of law in modernity. Seeking a new animal metaphor for the law, he suggests that its plurality points to the chameleon (the chameleon being ‘not an animal but rather a network of animals, much as ‘law is a network of legal orders’, and this may turn out to be appropriate for postmodern conceptions of law’. In de Sousa Santos we can see the intellectual fruitfulness of metaphor for law beyond the arguments it makes from within casuistry to apply externally, beyond its own life (e.g. the slippery slope). A ‘living law’ has its own metaphors, while ‘law in action’ imposes them on others (See Nelken 1984 for the distinction: in brief, based in a false distinction between Roscoe Pound and Eugene Erlich. Erlich’s ‘living law’ is more congenial to the view taken in this thesis, which prefers the emergent to the actively instrumental; Pound’s ‘law in action’ approach is interventionist in a ‘social engineering’ sense.)

46 chapter 2: Selected Literature Review

Nussbaum, who believes literature can contribute to a more just society (Nussbaum 1995), thinks lawyers ‘hide from humanity’ (Nussbaum 2004) and that legal education needs to incorporate it again (Nussbaum 2003). In a small but interesting experiment on cognitive closure, Djikic et al (2013) gave participants essays or fiction to read; fiction led to a significant (short-term) ‘decreased need for order and a decreased discomfort with ambiguity’. Such a preference for closure appears to be strong in lawyers,37 and exposure to literature may reduce this need. Like Llewellyn’s Bramble Bush for lawyers, In MBTI terms, literature can thus work to lessen the impact of strong ‘J’ and ‘T’ preferences and foster awareness of ‘F’ and ‘P’ ways of being.38

Goodrich (1996) calls literature one of the ‘minor jurisprudences’; McGillivray (1994) argues that it ‘offers a plurality of visions of the operations and constitution of law equally accessible to lawyers and non-lawyers’. The service literature does to law in democratising its socially protective impulses reach beyond high principles of ‘the rule of law’ and drive at what is more deeply felt, on an emotional level, as justice.

Thus, it is not a matter of getting lawyers (or judges) to read novels, or even to analyse them for the lessons they might contain; rather, the humanities, as White prefers to say, is a better reference point: ‘“literature” is too narrow a category, with some wrong implications: too narrow because the range of texts to which we can fruitfully turn is not conﬁned to novels and plays and poems within the canon of high literature … And the main direction of this movement is not so much towards “literature” in a narrow sense, but away from the language of the social sciences, and the similarly conceptual language of analytic philosophy, to the humanities more generally’ (1989:2015). It is, rather, to take them through the Bramble Bush (Llewellyn 1932), which is an exercise in ‘rehumanising’ lawyers whose feelings have been blunted and rational-thinking preferences sharpened. Literature may do this through engagement, which is to say an authentic reader response rather than an exercise in decoding an author’s meaning in Posnerian fashion.

All this accords with the newer approaches to literature which draw on cognitive science (thus Crane 2001) revisits Shakespeare to locate signs of the origins of his texts ‘in a materially embodied mind/brain’.

37 On MBTI preferences, as a group they have a signiﬁcant preference for ‘J’: (Briggs Myers et al (1998; Da- icoﬀ 1997). 38 That is, Judging (closure, deciding); Perception (staying open); Thinking (deciding by reasoning) and Feeling (deciding through internalised values).

47 From Court to College

From the cognitive anthropology perspective of Strauss and Quinn (1997), we have more in common as humans than we do differences; and what differences we have do not divide us in binary dimensions, or in any ﬁxed way. This recognition is echoed in law and literature, where we ‘recognise’ ourselves and others in characters. While there may be things we recognise as differences, they ﬂuctuate across contexts, within and between people and across different actions and times. In this, Crane’s embodied shakespeare may be the future, and Hofstede is mistaken when he partitions humans by culture. But either way, literature, or as Boyd argues, the humanities in general, can still act as a culturally shared resource for emotional depth.

2.5 Organisational learning

The two previous sections considered implicitly theorised ways of seeing the world (cultural habit), such that the reason lawyers think their practice enables them to escape theory is itself a culturally shared cognitive habit of categorisation, and deepen their emotional intelligence These different ways of seeing things affect the way lawyers treat education. At the institutional level, these habits become organisational and disciplinary practices and culture.

While ‘the humanities’ includes the literature on organisational and professional culture, much of the it is of limited value, despite the demonstration, by a few of its practitioners, of possible new uses for metaphors to understand organisations (e.g. the strange loop, as noted by Czarniawska 2011).

However, the situated learning literature may have something to offer JE. The Supreme Court is an institution and an organisation as well as a collection of individuals. While organisational learning and communities of practice feature in the literature and would clearly be of interest in a more comprehensive vision of JE, they did not emerge from the research itself. Leadership and reporting did, however.

(a) Commitment to organisational and institutional structures

JE as conceived in Australia, like CLE, depends on a ﬂattening of categories, a minimisation of individual differences in order to achieve program ‘delivery’ most efficiently. These conﬂations erase culturally meaningful distinctions that could be educationally useful.

On the internet, what we see is ﬁltered into and out of awareness by web pages and search engines, based on our prior history. The things edited out are those least

48 chapter 2: Selected Literature Review clicked on, the information environment is changed predictively in ways that raise issues about what is excluded from our awareness: some things are important (but clicked rarely) while others may be more frequently clicked but less important (Pariser 2011). Our cultural environment similarly makes salient the things that our (profession, discipline, family) prioritises for us, so that our lives become a ‘strange loop’ of self-reference. (For some, conscious self-awareness itself is a strange loop (Hofstädter 2008).)

A ‘learning organization’ is one that sets out to construct its structures and strategies in ways that enhance and maximise organizational learning (Argyris and Schön 1978:2). These authors describe organisational learning in terms of feedback loops: ‘the detection and correction of error’ (1978: 2). Similarly, other foundational scholars in this area take a process approach that uses knowledge to improve knowledge and understanding (Fiol and Lyles 1985).

In organisations, reﬂexive practice is a kind of ‘strange loop’ connecting organisational with communication and relationship (Oliver et al. 2008). As a central ﬁgure in organisation studies along with Schön (Argyris and Schön 1974, 1978), Argyris has developed the notions of ‘espoused theories’ and ‘theories in use’ whereby individuals may say one thing, yet hold different theories which in fact govern their actions and ‘unintentionally create organizational defensive routines and inhibit learning’ (Argyris 1995). In other words, people establish mental maps which guide their actions, which may differ from the theories they espouse, and of which they are generally not aware (Argyris 1980). This lack of insight into the reasons for action is consistent with work in psychology indicating that we ‘tell more than we know’ (i.e., rationalise reasons for decisions (Nisbett and Wilson 1977b)).

According to Argyris (1976), most action taken by organisations is based on someone’s espoused theory of action, based on single-loop learning. Unrecognised defensiveness and ﬁxed mindsets, particularly in ‘smart people’ also inhibits learning (Argyris 1991, 1996; Dweck 2000). Argyris (1976, 1977, 2002) developed the concept of feedback loops (‘double-loop learning’, in which reﬂection on feedback feeds forward into behaviour). The idea behind these feedback loop approaches, at organisational level, is to link individual learning to the organisation so that whole is greater than the sum of its part.

Unless we understand participants’ commitment  in its various kinds and degrees  we have not mapped an institution’s social structure (Selznick 1957:98). People assign different meanings to the organisation and their membership of it.

49 From Court to College

We should expect that leaders and those at the top of the hierarchy (not necessarily the same thing) value the organisation more highly than those who are not in charge, and not in the central interest group (Selznick 1957:98).

One action taken by the brokers of JE was to introduce the term ‘judicial officer’ in place of ‘judges and magistrates’. This is an example of the mechanism of social change that Diani and McAdam (2003:271) call ‘generality shifting’ – a ‘communicative mechanism that is important for relation formation … [it] works by conﬂating broad and narrow interpretations of discursive categories and building on their ambiguity’. Speakers ‘slide up or down levels of abstraction in regards to the generality or inclusiveness of identity categories.’ So ‘judge’ excludes magistrates and registrars, and in the old cultural schema, these were separate things: judges were ‘her majesty’s judges’ directly representing the Crown, while magistrates and registrars were administratively appointed public servants with antecedents in the old system of justices of the peace and clerks of courts. ‘Judicial officer’ broadens the constitutency, and thus the reach, of institutions such as the JCA by including magistrates in the category of ‘judicial officer’ along with judges. As the monetary jurisdiction of magistrates is increased and registrars are given quasi-judicial roles, in particular in pre-trial conferencing, the lines begin to blur in practice, and the term ‘judicial officer’ becomes possible. Magistrates begin to be called ‘Your Honour’ rather than ‘Your Worship’. In 2015 the Judicial Conference of Australia (JCA) announced its support for legislation in the Northern Territory to change the title of magistrates to ‘judge’.39

(b) Corporatising government culture and reports

Reporting as a public function of organisations is a boundary phenomenon (it occurs at the organization–society interface). The way organisations manage the competing logics across that boundary may vary, but the boundary itself is stabilised by accepted practices. These are increasingly, in a managerial environment, the corporate way of doing things.

Formal reports of all kinds are now heavily designed for visual effect. They have high production values, fragmented text, bullet points, ‘key takeaways’, display quotes, infographics, and expensive print production. The trend was set by corporate reports: ﬁrst annual reports, later reports designed for marketing purposes. Many are now produced for government by an industry of external consultants.

39 See website www.jca.asn.au. 50 chapter 2: Selected Literature Review

Asking students of business to address culture highlights the difficulty of being interdisciplinary at anything more than a superﬁcial level (Degabriele 2000). Criticising the Hofstede approach to cultural difference which is dominant in business schools, Degabriele (2000:2) notes that ‘American management practices are seen as universal and normal, even when they are described as “Western”’.

Managerial reporting is partly about demonstrating legitimacy within some ruling framework such as corporate social responsibility (CSR), and partly an exercise in ‘managerial reality construction’ (Campbell 2002; Clark and Salaman 1998). Even legislation is now sometimes given titles that are clearly speaking within a political marketing paradigm (‘spin’).40

One recent example of a government report which demonstrates the current idiom is a review of public service employment released in June 2016:

This review examines ways to enhance workforce management in the Australian Public Service (APS). It oﬀers insights and solutions to assist the APS to serve the Government and community into the future in the best possible way. The report is of a ‘workforce management contestability review’ titled Unlocking potential – If not us, who? If not now, when? sponsored by the Finance Department, with ‘key actions to achieve change’ (McPhee 2015). For a critique see Gourley (2016). Gourley points to confused data analytics and evidence-free platitudes such as ‘agile employees are problem solvers, collaborative and resilient through change.’ Two highlighted quotes about the value of staff include one that implicitly excludes ‘managing the talent’ of anyone who is not ‘high performance’:

Business leaders indicate that high potential employees are more than 50% more valuable to the business than core employees … This is because high potential employees exhibit 21% higher performance levels leading to enhanced business outcomes across the organization [reference: (CEB 2009)]

‘whatever that means’ as Gourlay (2016) remarks, and:

Everyone on our talent management program is on a succession plan — there has to be a purpose to having them on the program. – Lynda Dean NAB, September 2015 There is a great deal of reporting, but little correlation between the numerous dimensions of corporate performance and corporate reputation. Thus (Pfeffer (2015) points to unpleasant management practices such as ‘managing out a

40 Examples are the series of Acts (confusingly) titled ‘A New Tax System …’ and the Aged Care (Living Longer Living Better) Act 2013 (Cth). Legislation may also include casual, ‘friendly’ expressions: e.g. ‘Fam- ily Assistance and Other Legislation Amendment (Schoolkids Bonus Budget Measures) Act 2012. 51 From Court to College predetermined percentage of the workforce’ at Amazon as having little apparent effect on corporate reputation.

There is very large scholarly literature on leadership, with few objectors (e.g. Lakomski 2005; Mole 2004)), as well as seemingly endless practitioner literature. Nevertheless, it is an ‘essentially contested concept’ (Gallie 1955). Leadership-talk, once treated dismissively in law, has grown along with a new large-ﬁrm corporate ethos, and is now leaching into the judiciary, as my research found. Heads of jurisdiction are now embracing what amounts to corporate leadership training.

A Deweyan position on leadership would hold that lack of agreement about what a concept means, even among its advocates (different authors supplying different lists), is enough reason to reject it. This is the position Dewey took about the idea of ‘instincts’, which he rejected in Human Nature and Conduct (Dewey 1922a, b, c, d). Updated with a connectionist theory of cultural meaning Strauss and Quinn 1997), organisational change, leadership and learning can be understood as culturally shared cognitive processes (Lakomski 2001).

The metaphors of leadership are numerous, and both positive and negative. Lumby and English (2010:3) hope to harness their positive power to reshape the way educational leadership is viewed, to ‘improve how we lead’ while avoiding their darker power ‘to manipulate, to shut down thinking, to deﬂect creativity, and to harm’. These authors argue from the common-sense position found throughout educational administration, which assumes that leadership is ‘a thing’ and that it does something (cf Lakomski 2008).

Belief in the causal power of leadership to achieve goals, and the characterisation of high levels of profitability as corporate ‘greatness’ is apparent in titles such as The Leadership Wheel: Five Steps to Achieving Individual and Organizational Greatness by the director of Cornell’s Park Leadership Fellows Program, C. Clinton Sidle (see review by Luechauer and Locander, who find the book ‘by far the best of the numerous leadership related books and articles we have reviewed in the past five years’.) Organisational ‘greatness’ is, on this account, closely tied to the ‘greatness’ of the leadership it is given; thus one of the best-selling leadership books from the same period, with its own Wikipedia page and sales of 4 million copies, was titled Good to Great (Collins 2001). There are two main strands within the genre: descriptive scholarly work and normative publications from practitioners (Robinson 2001).

52 chapter 2: Selected Literature Review

Uncrititcal acceptance of the causal power of leadership is now found in judicial education (JE) and administration circles, although leadership in general, and ‘transformational’ leadership in particular, raises ethical challenges (Hollander 1995), and there is little discussion about followership (Thody 2003; Malakyan 2014).

As can be seen from NGrams showing the frequency of terms across all Google books, the terms leadership, corporate vision, and mission statement shot to prominence from the early 1980s, leaving the notion of ethics far behind, and keeping well ahead of democracy -- although, relatively speaking, science has had a sustained dominance, and team and technology have shot ahead of leadership.41 Followers are nowhere to be seen (Ngram 11), despite the popularity of leadership, and this is borne out in the literature, where a faint cry for studies of ‘followership’ can be heard (Thody 2003).

As an example of the attraction of the growing leadership mythos within law, Martin and Ivey,42 after listing ten trends facing courts, suggest that leadership is not just a solution, but the only solution (they also conﬂate leadership and positional authority, which is very common in this literature). The statement is typical, and stands as proxy for many others:

In sum, in the absence of court leaders shaping a radically different future, it is plausible that by 2020 the already bleak scenario for 2010 summarized above will [be] unable to provide, or increasingly inadequate in providing, effective forums for resolving disputes, protecting the rule of law, and ensuring justice for all. (Martin and Wagenknecht-Ivey 2011) Across the corporate world leadership remains a ‘Motherhood statement’ or semantic stop sign. That is, something that signals, ‘don’t ask the obvious next question’. When policy questions are raised and an institution is proposed as the answer, the obvious next question is, Will this institution be effective? Will it really work? And if someone says, ‘Turn it over to the Coca-Cola corporation’, the obvious next questions are, Why? What will they do about it? Why should we trust them? Have they done well in the past on equally tricky problems? 43 The reason we find people saying leadership is ‘really about’ x, y, or z is that is is essentially contested: ‘to use an essentially contested concept means to use it against other uses and to recognize that one’s own use of it has to be maintained against these other uses ... [i.e.] to use it both aggressively and defensively’ (Gallie 1955:172).

I will argue that the leadership concept is of limited beneﬁt as a concern of JE, either as a training focus or as an explanation for action in education.

41 This can be seen from Ngrams 7–10 set out in Appendix C. 42 Martin is a court administrator and Ivey is a consultant. 43 As discussed, including the Coca-Cola example, on the ‘Less Wrong’ blog http://lesswrong.com/lw/it/ semantic_stopsigns/ accessed 30 October 2015.

53 From Court to College

(d) Two weaknesses in training practices

Training as an industrial-style reform is discussed in section 2.6. Here, two weaknesses in current training practices are discussed: learning objectives and feedback sheets, which apply across the CLE landscape as in corporate training, where they began. However, the educational versions are less ambitious, and in the case of CLE and JE, no performance assessment or measurement is undertaken.

Learning objectives. Learning objectives are ‘objective’. That is, they are premised on a positivistic ‘view from nowhere’ that relies on concepts, whether expressed as abstract nouns or as active statements such as ‘At the end of this course you will be equipped …’. However, any such objectivity is illusory;44 all that can be said is that more or less stable meanings are held in relation to each of them, and about their purpose. Very little analysis has been done of how well the various stakeholders’ beliefs and perspectives mesh. Because abstract concepts, by deﬁnition, lack both context and perspective, they are devoid of personal and temporal meaning: who is the learner, and what can be said about their knowledge, understanding, openness to learning this, right now? Indeed, academic teachers have resisted both ‘aims’ and ‘objectives’ in learning.

In the UK,45 where there has been considerable resistance to outcomes-based learning,46 the weaknesses of a university-level curriculum premised on attempts to control learning outcomes through abstract terms, has been challenged (e.g. by Barnett (1994; 2014)). Such ‘outcomes’ bear little relation to situated human learning based on experience and action:

To reduce human action to a constellation of terms such as ‘performance’, ‘competence’, ‘doing’ and ‘skills’ is not just to resort to a hopelessly crude language with which to describe serious human endeavours. In the end, 44 See the earlier discussion on where meaning resides (Strauss and Quinn 1997). 45 Like Australia, the UK has a ‘Quality Assurance’ framework (QAA) and student assessments of teaching (SET) in higher education (see critique by Sabri (2013): ‘the production and consumption of such survey data have a symbolic value that exceeds, and is often independent of, any technical understanding of their statistical meaning. The NSS [National Student Survey], in particular, has acquired signiﬁcance that far outweighs its validity or intended use’). Scottish HE has been more resistant, and has a Quality Enhancement approach, with a less top-down structure.

46 For example from Lawrence Stenhouse, founder of the Centre for Applied Research in Education at the University of East Anglia, who promoted research in curriculum and evaluation (Lawton 2004). His Culture and Education (1967) ‘was a mixture of new theory and direct practical experience’ and ‘reflects his love of literature and his concern for the historical … He also brought to curriculum studies, for the first time in the United Kingdom, an anthropological dimension which was later to prove of considerable significance’ (Lawton 2004).

54 chapter 2: Selected Literature Review

it is to obliterate the humanness in human action. It is to deprive human being of human being. (Barnett 1994 in Maharg 2007) Rees (2004) discusses the ‘traditions, values and ideologies of medical curricula’ from an ‘ideological education’ perspective. She points to the issue of control as major problem with outcomes-based curricula for medicine, arguing that an ‘accountability’ framing (in this case, accountability to the NHS and to patients) has produced ‘outcomes-based (or product-orientated) medical curricula’ leading to student disempowerment (2004:594). Although authors of learning outcomes try to specify ‘exactly what is to be achieved as a result of learning’ this is impossible. The exercise becomes meaningless stripped of context. Rather, genuinely co- operative control of curricula ‘can empower learners by giving them responsibility for contributing to curriculum content’ (2004:594) Rees argues that despite operating within a paradigm of evidence-based medicine, medical educators have not established the value of precise learning outcomes, and they need to do so before blindly adopting that model. While it is ‘important that medical education and its products are socially accountable’ (2004:597) the means chosen to try to achieve that accountability need to be established empirically.

Focus groups in undergraduate medical education have shown that ‘novices and experts held completely different perspectives on objectives, and that stakeholders interpreted basic concepts inconsistently (Morcke et al. 2006:657). The apparent purpose of objectives was understood differently. Focus group participants thought that their participation in the process of setting objectives was essential (yet this is hardly ever done, certainly not in higher education, where course outlines are set well in advance. To the extent that CLE has learning outcomes, the same thing applies).

The patterns emerging showed that the more senior and experienced the practitioner, the less willing they were to be presented with ‘fait accompli’ objectives; they sought directional expectations rather than checklists:

argumentation and beliefs differed significantly, revealing 2 opposite perspectives: objectives as context-free theory-based rules versus objectives as personal practice-based guidelines. The students favoured theory-based objectives, which should be defined by experts conclusively as minimum levels and checklists. The senior doctors preferred practice-based objectives, which should be decided in a collaborative, local, continuous process, and should be expressed as ideals and expectations. The house officers held both perspectives. Adding to complexity, participants also interpreted competence inconsistently and mixed concepts such as knowledge, observation, supervision, experience and expertise. (Morcke et al. 2006:657).

55 From Court to College

In the training industry since the 1960s (Mager 1967),47 learning objectives have become increasingly the norm, so that it is now impossible to imagine a corporate workshop or university course without them. But learning objectives have always been about instruction. They are strongly linked (at least in conception) to quantitative measures of their achievement, so an ‘outcome’ must be set in advance, and assessed. Performance outcomes are now set at various levels in organisation studies, although higher education rarely uses anything beyond learning objectives.

Phillips and Phillips (2010:12) p 12 list ﬁve types of objectives: (1) reaction; (2) learning; (3) application; (4) impact, and (5) ROI, each of which is understood to be measurable. The ‘measurement focus’ in each case is:

1 Reaction to the project or program, including the perceived value 2 Learning to use the content and materials, including progress with actual items and implementation 3 Use of content and materials in the work environment, including progress with actual items and implementation 4 The consequences of the use of the content and materials expressed as business impact measures 5 Comparison of monetary benefits from program to program costs. (Phillips and Phillips 2010:12) While this approach has the virtue of clarity, and the focus on measurement reflects the corporate mantra, ‘what gets measured gets managed’, the ‘typical measures’ these authors provide are, often, in the category of ‘objective illusion’. For example, in the first category, ‘relevance, importance, usefulness, appropriateness, intent to use, motivation to take action’. For even the simplest skill, how is the participant to judge these measures? Say, for example, learning the international pilot’s alphabet (alpha, bravo, Charlie ….). Taken seriously, the range of possible conditions and contexts would make the task of judging these qualitative measures impossible, certainly in the time generally allowed for workshops.

What is missing here is the situatedness not only of knowledge and skills but of cognition itself (Clark 1997; Hutchins 1995, 1996; Norman 1993). Increasingly, cognition is understood as a Brain–body–world system or ‘cognitive ecology’: ‘the study of cognitive phenomena in context’ (Hutchins 2010:705). This way of thinking about mind

47 According to Phillip and Phillips (2010) this book ‘sold almost 2 million copies and provided the spark for professionals in this ﬁeld to develop sound learning objectives.’

56 chapter 2: Selected Literature Review

points to the web of mutual dependence among the elements of a cognitive eco- system. At least three ﬁelds were taking a deeply ecological approach to cognition 30 years ago: Gibson’s ecological psychology, Bateson’s ecology of mind, and Soviet cultural-historical activity theory. The ideas developed in those projects have now found a place in modern views of embodied, situated, distributed cognition. (Hutchins 2010:705). Bereiter (2000:226) explains the difference between the model of mind as container (which I see at work in CLE) and the cognitive-connectionist model. The difficulty is that the container model appeals to common sense:

[these] models of mind … have diﬀerent implications for how the brain relates to mind and knowledge. According to one model, knowledge is encoded in the brain in something like the way that data are encoded in a computer’s memory. This model is fully consistent with the folk notion of the mind as a container (Lakoﬀ & Johnson, 1980), and so it feels comfortable and seems intuitively compelling; but it starts to become less plausible when we begin to trace out its implications at the brain level. The trope of ‘keeping the brain in mind’ (Bereiter 2000) underlines the damage done to education by Cartesian dualism in splitting the mind from the brain and the brain from the world – the way learning in fact occurs (in a situated context). The impact of this forgetting across all levels of education has been profound, and the study of expertise through embodied practice is directly relevant to legal education and CLE (see Bereiter and Scardamalia (1986); Olson (1986) sets out a useful discussion of this work).

Professional practice is also largely non-formal and tacit (Brown et al. 1989; Eraut 2000), and cognition is not just found in a brain, but embodied:48

Embodied cognition is a theoretical stance which postulates that sensory and motor experiences are part and parcel of the conceptual representations that constitute our knowledge. This view has challenged the longstanding assumption that our knowledge is represented abstractly in an amodal conceptual network of formal logical symbols. There now exist a large number of interesting and intriguing demon- strations of embodied cognition. (Pezzulo et al. 2011) To return to the corporate workshop model, where people largely sit in small groups and alternate between talking together and listening to the presenter, only the active parts have much chance of lasting beyond the day’s proceedings. Even the most content-rich, interesting workshops ‘fade’ quickly from memory unless some kind of emotional hook engages the participant to embed the learning. Otherwise it is processed ‘in one ear and out the other’.

48 There is a large body of related research on distributed cognition (e.g. Hollan et al 2000), which has to do with human–computer interactions.

57 From Court to College

Pretend feedback: ‘smile sheets’. The form of feedback employed in CLE, as in most training, is the feedback sheet collected by the presenter at the end of a workshop session. These are called, in the training and human performance (HPT) ﬁeld, ‘smile sheets’. They are inadequate from several perspectives (Thalheimer 2007), even when the workshop is instructional and information-based: ‘(1) They are not correlated with learning results; (2) They do not tell us whether our learning interventions are good or bad; (3) They misinform us about what improvements should be made; (4) They do not enable meaningful feedback loops; (5) They do not support smile-sheet decision making; (6) They do not help stakeholders understand smile-sheet results; (7) They provide misleading information; (8) They hurt our organizations by not enabling cycles of continuous improvement; They create a culture of dishonest deliberation’ (Addison 2016:44, summarising Thalheimer). However, judicial independence imposes another difficulty for training, since any serious training model calls for meaningful assessment of progress against the training goals. Genuinely self-directed education does not require the same type, or degree, of (external) monitoring.

(e) Communities of practice

Judges tend to work individually, like barristers. And ‘people who have made a career as independent advocates, functioning without employers or even partners, ﬁnd it easy, and natural, following judicial appointment, to maintain their independence of the executive government’ (Gleeson 2003). This independence may also be isolating. This suggests that co-operative learning situations (as opposed to group learning in workshops) may be particularly rewarding, or challenging, or both, in JE.

Growing out of the idea of situated learning (Lave and Wenger 1991) is the ‘community of practice’ (CoP), which challenges cognitivist theories of learning49 and is seen as the new frontier for organisational development (Wenger and Snyder 2000) because it challengers the individualist assumptions of conventional theories (i.e., the kind that underpin CLE and JE). However, it is also often treated as a new buzz-word for ‘group work’ or ‘teams’. As a naturally emergent, relational phenomenon, CoPs work ‘because they are working’. More nuanced conceptions of ‘participation’ are needed (Handley et al. 2006).

Schwen et al (2003) caution against romanticising CoPs, particularly in online communities. These authors stress that CoPs cannot be forced, but must emerge, then be nurtured. They point to ﬁve problems to be aware of: ‘(1) prescriptive 49 That is, old computational model, cf connectionist (ANNs) model adopted by Strauss and Quinn (1997).

58 chapter 2: Selected Literature Review versus descriptive distinction; (2) ready-made versus communities in the making; (3) knowledge of possession versus knowing in practice; (4) mid-level social- theory versus micro learning theory; and (5) motivated members versus unwilling subjects (Schwen and Hara 2003).

McDonald and Star (2008) agree that trying to build a CoP from scratch is challenging. Handley et al think that this may be because they are inadequately theorised in the areas of situated learning, the way they relate to the broader socio- cultural context in which they are embedded, and the way the terms ‘participation’ and ‘practice’ are deﬁned (Handley et al. 2006:641)

The CoP has attracted a great deal of interest in organisation studies, particularly in the knowledge management ﬁeld (Wenger et al. 2004) and among some educators (e.g. in Corporate Law teaching in Australia (Clarke et al. 2011). The model chosen is generally that of Etienne Wenger (1998). With an ecological root metaphor, the community can be ‘cultivated’ (Wenger et al. 2002). However, some of the more interesting ways of seeing CoPs is as a connection between multiple communities, rather than just within the CoP itself (Handley et al. 2006). In my conclusion I recommend CoPs indirectly, in the course of advocating the method of sociocracy for educational policy-setting by participating judges.

Sociocracy is an approach to setting policy (in organisations, or any other group where decision making is required) in which decisions that affect future policy or operations decisions are made by those affected, paying attention to the content of the policy in its context rather than its label. It employs the CoP as a way to generate cross-organisational engagement, with everyone participating (Merl and Schönbauer 2014). As a new way of organising collaborative decision making, sociocracy focuses on social outcomes (Buck and Villines 2007; Endenburg 1998; Endenburg and Bowden 1998), with the intention of overcoming the structural limitations of government (Sociocracy 2016; Villines 2016; Diamond nd). Democracy is difficult to deﬁne, and is conceived in various ways: it may be unwieldy or populist; but in general terms, top-down deliberative decision making occurs even where decision makers are chosen as representatives, since they nevertheless decide for others. The system gains efficiency at the cost of genuine participation and consensus (Morely 1996)). A sociocratic approach, based on the science of society from an evolutionary, psychologically informed, systems perspective (Buck and Villines 2007; Endenburg 1998; Endenburg and Bowden 1998) might answer the objections to research ‘by and on’ JE noted above (under heading 7).

59 From Court to College

CoPs should not be confused with social conventions, since there is no direct reciprocity between them: ‘Conventions are not arbitrary: they evolve, they require a community of practice’ (Norman 1999:41). As a way to develop cross- organisational approaches to learning, CoPs may best be promoted within the practice of sociocracy. Unforced but guided from within, CoPs then hold promise as an unexplored way to enlarge the scope of JE.

2.6 Industrial training initiatives as ‘reform’ [Y]ou hold it as an article of faith, that higher education is an unassailable good. This notion is so dear to you that when I question it you become angry. Good … Are those not the very things which we should question? … we espouse it, as a matter of right, and have ceased to ask, ‘What is it good for?’ (Mamet 1993:312, cited by Collier (2004:n1))

The literature in this section relates to the broader political environment in which JE has been established. It considers the ‘rational choice’ model of ‘policy’ which frames the way public policy questions are asked and answered. This model, and the ‘New Management’ approach predicated on it, are grounded in the problematic Cartesian dualism discussed in section 1. There is not examination of the underlying assumptions made within this policy framework, but that does not mean that ‘common sense’ reforms, such as JE, which are presented in a ‘common sense’ legal instrumentalist way, are theory-free, or ‘pure’ policy.50 To step from legal practice to legal education is a necessarily political step. JE was implicitly shaped by and within this form of rationalism.

Freire (1990:16) assserted that ‘Education either functions as an instrument that is used to facilitate the integration of the younger generation into the logic of the prersent system and bring about conformity to it, or it becomes ‘the practice of freedom’, the means by which men and women deal critically and creatively with reality and discover how to participate in the transformations of their world.’

In the USA (and globally (White 2007)) the nineteenth century saw a shift in educational focus ‘from development of character to the development of skills

50 Indeed, the traditional reasons the courts have distanced themselves from policy is precisely because policy is political – hence the ‘hands oﬀ’ approach to administrative tribunals, and the move by governments to increase the power and jurisdiction of tribunals as quasi-courts without the inconvenient rules of precedent, evidence and appeals. 60 chapter 2: Selected Literature Review needed to function in an industrial society’ (Mungazi 1999:189). In the twentieth century the driving force of higher education expansion has been vocationalism (Lazerson 2010), and it is an accelerating trend; if it continues, will leave the bulk of university places occupied with professional and occupational entry-level qualiﬁcations, to the cost of liberal arts courses (Grubb and Lazerson 2005).

Three waves of large market forces within the society51 have been reflected within its public sociology, according to Burawoy (2007:241): pre-WWI civil society married to market reform; post-WWI market capitalisation of the New Deal, where policy fell into alliance with the agencies and institutions of power and finance; and a third wave, post-1980s, Neoliberal marketisation. On this account, third- wave reform rejoins first-wave moral reform to second-wave professional science (2007:243).

The rational choice model of ‘policy’ prevails wherever ‘policy studies’ are part of the disciplinary landscape, framing the way public policy questions are asked and answered (Wedel et al. 2005). This means that policy-based reforms such as JE are suffused with efficiency ideals developed in the context of economic growth, free markets and unsustainable levels of consumption, which have held sway in Australia for three decades at the expense of the social democratic ideals (Miller and Orchard 2014b). They are a direct application of the ‘rational choice’ model of policy which was ‘introduced into policy making in the Australian public service in the 1980s’ and ‘was itself a response to government downsizing’ (Hollander 2014:316). There is a growing concern, if not yet consensus, among political theorists, that this form of rationality is ‘hollowing out’ democratic culture (Brown 2006). The ‘de-democratising’ effects include ‘devaluation of political autonomy, depoliticization of social problems, accommodation to heavy degrees of governance in everyday life, and legitimate statism’ (Brown 2006:705).

According to former Governor of the Reserve Bank, Bernie Fraser (2014:xviii), ‘The puzzle is that this free market ideology should continue to have the hold it does over policy makers, given its demonstrable failures.’ However, there are ‘few signs that Neoliberalism has run its course’ (Miller and Orchard 2014a, b:4).

The signiﬁcance of this for JE is that it creates a market-based education and training regime with expectations and accountability frameworks shaped to suit industrial requirements for economic growth rather than the growth of individuals in ways that allows them to contribute to social society, and educates them to be worthy of the democracy from which they beneﬁt, rather than interchangeable units to be managed as human resources.

51 His analysis is US-focused but relevant elsewhere, and increasingly so as a result of globalisation. 61 From Court to College

(a) Training for work and ‘quantitative quality’

Within this political framework, continuing education (or continuous retraining) is the OECD-approved model of economic advancement through standardised skill sets for industry, which has been technology-led. Government–industry partnerships form to advance (economic) growth and productivity. Critics such as Coffield (in the UK) takes a jaundiced view of further education and lifelong learning, which is read as social control (Coffield 1999). In particular, skills training is designed to make people ‘employable’ – a political rhetoric that may stand in place of creating jobs. Coffield accuses the UK government of preparing not active citizens, with general education that will ﬁt them for a democratic society, but work-ready units of industry with criteria-matching skills, as interchangeable units of human capital.

The ‘learning society’ in the UK (Coffield 2000) and the ‘clever country’ in Australia are expressions of economic rationalism, not of social democracy. The market movement is encouraged by national frameworks for lifelong learning, which in the ﬁrst instance were driven by the needs of industry for standardised labour (OECD 1995, 2003, 2009).

More recently, higher education and training reformers have begun to attempt quantitative measures of quality, as in the ambitious standardisation of education across the spectrum in the Australian Quality Framework (AQF). The distance in function and intent between this kind of training and JE leads me to question the appropriateness of a corporate/industrial (economically driven) model for court administration and education.

The industrial training focus of education under the quality frameworks is apparent from the ﬁxed criteria on which the AQF is premised: ‘AQF levels and the AQF levels criteria are an indication of the relative complexity and/or depth of achievement and the autonomy required to demonstrate that achievement’52 (AQF Council 2010; OECD 2003). The AQF is a highly structured grid in which most education and training is now situated, and it follows international patterns for standardised measures of academic quality and assessment of learning outcomes (Harris 2009; OECD 2009) and continuing professional education (OECD 1995), because transferability of skills is paramount in a global economy; market needs now drive what amounts to a new kind of private global authority (Beder 2006; Hall and Biersteker 2002; Watson, Hilbourne A. 2004).

52 Website at www.aqf.edu.au/aqf/in-detail/aqf-levels/ accessed 30 October 2015.

62 chapter 2: Selected Literature Review

(b) Training, or education?

An important point that informs my research is Dewey’s distinction between education and training, which had nothing to do with individual growth; it was about preparation for speciﬁc jobs  a matter of supplying workers who were ‘appendages to industry for the good of industry’ ((Hook 1959) in [MWv08:1]).

Justice Dowsett (1998) says, of the distinction between education and training:

There is a tendency in this country to confuse education and vocational training. [There are political reasons connected with jobs] … [and] these messages have led to a public perception which overlooks the distinction … Unfortunately, even our universities seem unwilling to emphasize it. He goes on to deﬁne the terms much as Dewey does: ‘education’ is ‘more properly used to describe much broader programmes of intellectual, physical and moral development’ while ‘training’ implies ‘preparation for the narrower requirements of a speciﬁc task or range of tasks’ (Dowsett 1998:np).

That makes training easy to deﬁne and easy to run. Education is harder:

‘Educating’ judges might well involve a wide range of activities designed to expand, directly or indirectly, the whole range of life experiences, to develop understanding of the human condition as it is presented every day in every court in the land. (Dowsett 1998:np). Another difficulty is that training gives the impression that people ‘can be trained to be judges’ (Dowsett 1998:np). Gleeson CJ (2003) points to this when he says,

What is missing … amongst governments, the profession, the public, and even some members of the judiciary, is an appreciation of the connection between judicial training and development, on the one hand, and changes in policies and practices concerning judicial appointment. (Gleeson 2003) The two perspectives have different deep logics:

Simply put, and historically framed, adult education and educators might be said to favour participatory learning for its own sake, while continuing education added a concern with accreditation, updating and retraining, and lifelong education is now shifting the focus to cover all learning throughout life. (Tight 1999) Much of the literature shifts backwards and forwards between kinds of education and training (or professional development) depending on the extent to which the authors prioritise calls for industry skills, and the complexity of those skills. This also, in part, drives the desideratum of ‘lifelong learning’ (Axford and Seddon 2006); another driver is the perception that continuing professional

63 From Court to College education can resolve a host of critical issues facing a range of professions (Young 1998).

In any event, across the spectrum policy-setters accept the underlying assumption that in the favoured ‘high skills’ model of economic progress, enlarging the supply of people with the favoured skills, in particular ‘thinking’ and ‘communication’ skills, will be enough in itself to build competitiveness and productivity (Warhurst et al. 2004). However, these authors point out that as skills become more complex, the difficulty of deﬁning, measuring and increasing the requisite skills becomes difficult:

Training someone to become proficient in arc welding or web design may require very different forms of instruction and involve different problems from ensuring that those who present themselves for interview project a persona that is ‘passionate, stylish, confident, tasty, clever, successful and well-travelled.’53 By contrast, education must be about growth. Its difference from training is clear in student-centred perspectives and in strengths-based approaches (Waterhouse and Virgona 2008), which build capacity (opening, expansion towards a future) rather than standardising talent for interchangeability.

For Dewey there was value in ‘both/and’ education and training, but the ultimate point of education was the beneﬁt of democracy, and this remains the best reason to critically examine, and keep critically examining, educational policies and practices, because they have social consequences (Griffin 1999).

‘Education is … a forming or shaping of mind through the presentation of the external reals which operate upon it’ (Dewey 1912-13)[MWv07:232]. If optimal learning is what is wanted (Dewey’s ‘growth’ as the summum bonum of education (Boisvert 1998)), scientific approaches to learning-as-growth can inform planning, but education should be an impulse towards opening-up, rather than closing down, the learner’s range of responses. It will be relatively uncontrolled, student- centred, guided or facilitated rather than ‘taught’, and it will foster curiosity and inquiry. However, if job performance according to predefined skill sets is required, a training regime is needed. That is easier: the guiding impetus is closing-down of responses to accord with a predefined set of, for example, technical knowledge or know-how, and skills required by others (typically industry).

Ackerman (1981:1135) claims that marketplace pressures on academics are such that young academics now burn out: ‘[t]he young professor’s academic decline and fall is a tribute to the power of the marketplace to triumph over the natural progress of the human mind’, he says. Wisdom is something one expects 53 Here they quote their own earlier work, Warhurst and Nixon (2001). 64 chapter 2: Selected Literature Review to develop in time; ‘[a]s long ago as Aristotle … it was clear that legal analysis was an art that should grow in depth and breadth with the years.’ It is a forlorn hope in the current market environment.

This distinction – between growth as opening (both opening-out and staying open) and training as closing down (pruning into shape, to extend the horticultural metaphor) – becomes very important to my thinking about the way JE should be constituted.

When the legal profession handed over its gatekeeper role to the universities, it retained what some academics have experienced as excessive control over the curriculum. Increasingly, as law schools have become multi-purpose, with fewer graduates actually practising law or staying in the profession, academics have chafed at the narrowness of the trade-school vision of law. But the bigger issue for my research may be that the industrial reforms discussed above have driven higher education reforms in ways that affect the profession as well, driving CLE and ultimately JE into an economic-management model of education that begins to approximate workplace training.

A long steady movement of ‘reform’ in legal education as lifelong learning pressed, inevitably, into Judicial education. In general, Canada and Australia are said to fall somewhere between the USA and the UK in legal education practices, although as Goldring (1996) points out, Australia is developing its own tradition of legal education. Arthurs (1998) says there is no deﬁnitive legal education history for Canada, at least to that date. (In relation to Canadian judicial education see Armytage 1993; McDonald 1992.)

Goldring (1996, reviewing Twining (1994) and Wilson (1995)) suggests we may have been more concerned about teaching practices, and less caught up in the ‘research industry’ in Australia. As he says (1996:139) pre-qualiﬁcation legal education in Australia is ‘ﬁrmly situated in the university’ in a way it has not been, until recently, in the UK. Law schools in Australia had ‘trade school’ origins, with part-time teaching by practitioners (Parker and Goldsmith 1998). Australian universities have survived as training grounds: ‘Politicians could not give a hoot about [legal] research’ (1996:130). Goldring also sees challenges in globalisation for Australia: it may be more difficult here than it has proved for the UK to move towards EU law ‘in the absence of any formal legal structures which make Australia part of a wider community’ (1996:132).

65 From Court to College Still, scholarship patterns are repeated, with some local variations, across common law systems, aided to some extent by globalisation (Pue 2001; Twining 2001, 2005). For CLE, including JE, this has meant a steady progression from self- education, to structured opportunities for professional learning, to mandatory continuing legal education (MCLE). MCLE is managed in the dimensions of time (expressed in hours of attendance) and content (expressed in areas of expertise or skill) but not otherwise assessed or evaluated.

(d) The corporate vision of law

Attempts to achieve regulatory control of systems from the top often comes at the cost of stripping away meaning, or types of meaning, for users within the system (those trained and controlled). When governments want to control judicial discretion in sentencing by issuing ‘sentencing grids’ they are in Bentham mode: low on trust in the basic capability and good intentions of those granted discretion. Over-regulation in the name of control is a weakness, not a strength, for a system that is expected to be adaptive and evolve, since systems do not ‘evolve’ top-down. The corporate vision is not only for top-down control and accountability, but also for business in place of tradtional professionalism.

In 2015 a new report emerged from Harvard (Heineman et al. 2015).54 The authors write from an instrumental, economic, corporate perspective about legal ethics in their ‘vision’ for it: that we should stop seeing business as antithetical to professionalism. In Australia, Parker and colleagues (Parker and Evans 2010; Parker et al. 2008; Parker et al. 2010; Parker and Nielsen 2009) have for some time been arguing that practice is firm-based rather than practitioner-based, and that the single-person practising certificate does not reflect that reality – but that is not an endorsement of corporatisation as understood in the literature (Meyer 2002).55

The report is strongly ‘leadership-ﬂavoured’ in its assumptions. The context of the legal profession in the 21st century is ‘The Importance of Multinational Companies, Large Law Firms, and Leading Law Schools’ and ‘The Challenges of the Marketplace’ (the two headings the authors choose for ‘context’).

54 Advertised on website at https://clp.law.harvard.edu/clp-research/legal-practice/ ass at 13/09/2015. 55 But see Meyer (2002), who employs Weick’s ‘coupling’ metaphor in his analysis of the new managerialism in education management, and points out that ‘corporatisation’ can be understood as organisational learning. 66 chapter 2: Selected Literature Review

The ‘vision’56 is offered as a ‘framework’ – something which, from a Deweyan perspective, operates to ﬁx or anchor problems within pre-deﬁned parameters, thus prematurely closing off approaches to problems that emerge from particular experiences.

That framework has a pleasing regularity. Its convenient A, B, C structure singles out [A] particular characteristics for lawyers to have (as containers); [B] a list of ethical responsibilities, akin to a corporate mission statement; and [C] in the language of corporate training, competencies (core and beyond).

A. Technical Expert, Wise Counselor, and Eﬀective Leader B. The Four Ethical Responsibilities C. ‘Complementary’ Competencies: Beyond the ‘Core’ The second paragraph sets out the authors’ own claims to leadership (a claim also focused on in the advertising for the report, described by Harvard’s CoLP as ‘a joint collaboration between leading thinkers from multiple sides of the legal profession’).57

We have chosen to write this essay as a joint statement from a former general counsel of a global corporation, a former managing partner of an international law ﬁrm, and a professor of the legal profession at a major law school. We therefore focus our discussion on the four ethical duties in the institutions we know best—corporate legal departments, large law ﬁrms, and leading law schools—and on the important connections among them. But we also hope that [what] we propose … will have resonance in the many other important settings in which lawyers work. The four duties are, we believe, central to what it means to be a lawyer, even as the practical expression of these responsibilities will undoubtedly vary by context … The framework thus moves from corporate experience to the entire profession, based on the language and perspectives of ‘leading thinkers’ from a thin slice of elite experience of the law, speaking downwards and across, a gentle anabatic and katabatic wind with hopes of effecting change. But to have‘ resonance’ in a way that ‘reaches across many of the profession’s traditional divides’ does not take us further than the framework itself. It cannot affect the way people behaveunless resonating with the report moves its readers to action.

56 The report begins with their vision, albeit a ‘practical vision’, and in that sense more like the standard corporate mission statement based on corporate vision: ‘This essay presents a practical vision of the responsibilities of lawyers as both professionals and as citizens at the beginning of the 21st century.’ (Heineman et al 2014:1). 57 Advertised on website at https://clp.law.harvard.edu/clp-research/legal-practice/ ass at 13/09/2015.

67 From Court to College

But, to sustain the metaphor, ‘winds of change’ are signals: the ‘winds of change’ famously note by Harold Macmillan (Butler and Stockwell 2013) were not themselves effecting change, they were bespeaking change as a fact. To think that resonating with a report will change behaviour would be a category error -- the same error that is repeatedly made about leadership, as Lakomski points out. Lakomski does not deny that people may behave in ways that we have labelled ‘leadership’, but pointing to a cluster of characteristics and approvingly tagging them ‘leadership’ is not the same thing as having demonstrated a causal connection between that cluster, so labelled, and some actual outcome in the real world. The habit, in the social sciences, of studying social changes as if they were static, and effected, mysteriously, by the agency of ‘leadership’,58 has been difficult to shake in the absence of a theoretical underpinning that can replace foundationalism.59 In sociology, Tilley and his colleagues sought a more dynamic, relational approach, one that ‘blurred established boundaries among actors, mobilization, and trajectories, ﬁnding that similar mechanisms and processes appear in all three’ (McAdam et al. 2002:305).

The authors themselves (Heineman et al. 2015) have ‘hope that this essay will stimulate an integrated discussion among the broad range of actors with a stake in the future of the legal profession not just about the pressing economic issues in major legal institutions but also about the equally pressing concerns relating to ethical responsibilities.’

The report is worth considering at length because it points to a reaction against the critique made by critical scholars such as Thornton (1999), who sees ethics in an age of corporatism as something that has to be ‘wrestled with’ rather than being the ‘vision of leadership’ painted by Heinemann et al.

The word ‘growth’, so prominent in Dewey, is missing from the documents. Dewey insists that ‘existence and meaning, internal growth and outer direction, are mutually complementary’ for the ‘growth of character and intelligence that we call education’ [MWv07:233]:

Education is … a forming or shaping of mind through the presentation of the external reals which operate upon it. (Dewey 1912−13)[MWv07:232] the training of apprentices … made the workers appendages to industry for the good of industry rather than as a means to their growth. … Dewey urged the reconstruction of education to provide individuals … with opportunities for personal growth,

58 On the mythical nature of leadership as a causal mechanism, see Lakomski (2005). 59 Attempts to replace Cartesian dualism and its consequent ‘isms’ of universalism, absolutism and the rest include middle-ground theorising.

68 chapter 2: Selected Literature Review

for the enrichment of personal life, [and] also for more intelligent participation as citizens in the democratic process. [Hook in MWv08:1] What we focus on instead are industry requirements for skills, more skills, and ‘Taking Skills Seriously’ (Weisbrot 2004).

The strand of scholarship concerned with approaches to ethics at law school may be closer to a Deweyan vision of social contribution (Webb 1998). Dewey’s notion of ‘reconstruction’ has the radical sense of ‘re-forming’ (forming anew) that is missing from our current usage (Bleazby 2007; Gavin 2003; Hyland 1993; Munitz 2012; Peterson 1987; Saito 2009).

(e) The literature of JE

Only a small amount of literature on JE seeks to go beyond the practical topic of ‘content areas’.

Those who think that judicial education should take note of adult education theory and practice still tend to talk about its ‘delivery’ according to those practices, from the perspective of the trainer/educator (e.g. Armytage 1996; Gregorczuk 1996). In other words, disciplinary patterns of meaning also affect the way educators and scholars think, and may limit their usefulness to judges who might be interested in genuinely broadening education.

Some judges, such as Underwood (2004) and Dowsett (1998) recognise the need for ‘self-directed collaborative learning’, but they are aware that it will not come about unless the culture is right: ‘unless the court creates the right atmosphere and opportunities for it to occur’ (Underwood 2004).

I think that, as a group, judges are incurious and this is an inhibitor to learning. Attendance at seminars and lectures is a process of instruction. Apart from the occasional exception, this is about as far as judicial education of judges has progressed in this country. What is needed is a process of “construction.” Learning by construction instead of instruction will only thrive in a collaborative learning environment in which knowledge is shared and built on in a constructive way. Such an environment will stimulate the judicial oﬃcers to think “outside the square” and encourage the application of learning in one area to another area. (Underwood 2004). In Chapter 5, I draw on Sir Owen Dixon as the inspiration for a litmus test for quality in JE. Kitto, who worked with Dixon and knew him well, tells us (in Kitto 1986:577-8) that Dixon’s interests ‘were almost completely unconﬁned’ (577). He worked hard, but he was interested in everything. His mind was not just ‘well stocked’, it was extraordinary well stocked, and with far more than technical law.

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In his chambers, ‘differences of opinion were freely canvassed with tolerance on his part and yet no condescension, and with frequent relieving irrelevance’ (577). Just as Hayne J, in recent times, had an intellectual habit of looking for ‘the knife in the napkin’ in any legal proposition, Dixon had an intellectual habit of reﬂecting upon fallibility. A ‘favourite quotation of his … was Cromwell’s advice to the clergy of Scotland: ‘I beseech you, in the bowels of Christ, think it possible you may be mistaken’.” (577) He was ‘a loyal servant of a developing Law, and not its unfettered master – never a “chartered libertine of the law”.’ (578) In our times, when many people want to be leaders or even claim to be leaders, Dixon ‘despised self-advertisement’ and ‘eschewed publicity’ (578). He also ‘insisted that he was only primus inter pares; and yet he was truly a leader, not by any exercise of his superior personality, but by the example of his unbending integrity and by the width and depth of his knowledge.’ (588)

Henry Giroux (‘Neo-liberalism’s nemesis’ (Nicholls 2010)), was inﬂuenced by the adult education work of Freire and his own experience in academia, where he ‘appreciated how racism and class hatred are learned activities’. Giroux ‘repeatedly envisages throughout his work an education system and approach that will counter and replace divisive and authoritarian systems’ (Nicholls 2010). These he associates with the Neoliberal sensibility: the damage done to higher education by the corporate university is incalculable (Giroux 2005; Giroux, Henry A. 2009).

Giroux comments adversely on educational institutions brieﬁng business consulting ﬁrms to prepare their reports, and rejects a ‘business-oriented notion of leadership, one that John Dewey thought should be avoided at all costs’ (Giroux and Saltman 2009) 774. He argues that Neoliberalism may be escaped through progressive politics (Miller and Orchard 2014a) and in higher education (Giroux, Henry A 2009; Giroux 2011). However, the constraints on judges include operating within a system that is necessarily authoritarian (in the sense that judges decide determinatively for others, using their judicial power) and being apolitical. This precludes any approach to JE that calls for application (or expression) of political goals. Even if, as Giroux laments, racism and class hatred are learned activities, their amelioration properly rests with the education of wider society. This is the Deweyan solution of education for a fully functioning democracy.

The Pragmatist insight is that progress requires a ‘ratchet’ movement in which there is both forward momentum created by action towards, and a ‘pinning down’ of the advances made in the forward movement; values cannot be goals in themselves, but they can be tests of right direction. Fixing a goal in advance is like a short-circuit

70 chapter 2: Selected Literature Review

to progress, because it pre-emptively harnesses the future at the current level of knowledge and progress. Ultimately, in Chapter 5, I draw on Sir Owen Dixon as the inspiration for a litmus test for quality in JE: that the law is enhanced.

2.7 The broader public view

Laws in social science, if we had them, would contain many more variables than those in physics. Yet we berate the social scientist for not being able to do what even the natural scientist cannot do.

– May Brodbeck (in McIntyre 1996:53)

From the broader social (macro) perspective, a theory of JE must take account of social value beyond the organisational level (treated in section 4 as the profession, the court, and the institution of JE). It was clear from my research that judges see their role clearly as both public and formal; its exercise has both constitutional and social implications. But what they do is solitary (even crafting joint judgments is an activity that passes through each mind separately).

While law ‘and’ society have been treated as separate entities, side by side, the better way to think of their relationship as external, but rather to investigate the way ‘“society” is produced within “law”’ (Nelken 1986:325), and vice versa.

Since their task is to decide and explain, the more broadly judges are informed, the better. Judicial education is public in the sense that the role of judges moves the field of inquiry from constitutionally based decision making to learning, which raises the knowledge-questions that are also centrally defining questions for sociology (Burawoy 2007). The mantras ‘confidence in the courts’ and ‘keeping judges in touch’ have no academic legitimacy (i.e., beyond common sense) unless they make sense within some disciplinary framework. On the topic of education, judges remain in the public sphere, but they move beyond their home discipline and into the territory of ‘society’ more familiar in sociology and law.60

Repeatedly in the social sciences we see dual thought forms at the same time as we read a denunciation of dichotomous thinking (nature v nurture, structure v agency). A division is sometimes said to fall between science and philosophy (or hermeneutics, or phenomenology); or between science and religion (Stenmark 2004). These are socially constructed content- based distinctions which, on a 60 Where I have been unable to locate a discourse concerning JE.

71 From Court to College scientiﬁc materialist account, must ultimately collapse into natural science. Social science is sometimes attacked for the ‘alleged triviality of its ﬁndings and for lacking relevance to practical matters [with its attackers arguing] that this is due to its failure to use the “proven” methods of natural science’ (Sayer 1992:12). Thus the difficulty in the social sciences, even more than in psychology, is to keep track of variables. To quote Broadbeck again:

The multiplicity and complexity of factors in social phenomena impose limitations upon what we can reasonably expect to achieve. These limitations are only a practical, though perhaps practically insuperable, diﬃculty and we simply do the best we can. – May Brodbeck (in McIntyre 1996:53) The Pragmatist approach is consistent with the view stated by Evers and Lakomski (2011:46): valuing common sense when it leads to useful predictions, but insisting that at some point, it must be supported by scientiﬁc evidence. The home territory of the social sphere is sociology.

(a) Sociology, public sociology and public philosophy

Sociology may be one of the least promising ways of understanding JE within a guiding paradigm because it reﬂects the science/values split in a pronounced way – more than the natural science which it imitates, sociology is engaged in a complex human enterprise while seeking to establish its credentials as a social science modelled on the natural sciences, where social complexities are easier to avoid, except in the boundary areas where human practices and science collide. Like psychology, sociology is about humans all the time. Its strong reliance on quantitative data and statistics is a reﬂection of this difficulty. Again, a Cartesian fault line that runs through the social sciences splits the descriptive from the interpretive.

Arēte (the virtue of excellence) is a private determinant of wisdom – a matter of personal character: ‘[a] person’s arēte is the arēte of his or her soul’ and ‘[t]he arēte of an object is the excellent performance of its function’ (Risse 2001:59). However, if judges are to enter an enriched form of continuing education (beyond training), their private progress can’t be assessed for reasons of judicial independence. But perhaps JE should be assessed in a different way – for its excellence-value as public philosophy in some sense. For a good (virtuous) man, arēte applies to ‘excellences of parts of the soul’ (close to what we call virtues, and ‘it is possible to say, e.g., that wisdom, sophia, is part of virtue as a whole’ (Risse 2001:59). Interestingly, for

72 chapter 2: Selected Literature Review a judge, being wise is both phronēsis (practical wisdom) and attaining the highest excellence (arēte) at deliberative legal reasoning for the public’s beneﬁt:

Phronesis is an intellectual virtue …The prudent man is good at deliberation … [which] takes place about matters that are, on the one hand, within the power of the deliberator, so that considerations about actions are not pointless. On the other hand, the issue is suﬃciently complex not to admit of any straightforward solution and may take a long time … An intellectual virtue, practical wisdom pursues the truth … [It] implies arriving not only at the right conclusion, but also at the right time and on the right grounds … [and] has an intimate connection to moral virtues: Having practical wisdom implies possessing all moral virtues. Without their guidance he possesses at best cleverness, demotes. Likewise, a man possesses the true virtues if and only if he also has practical wisdom. (Risse 2001:59) Sociology, rather than psychology, then becomes a relevant discipline for this inquiry (being concerned with the public good).

Burawoy, a founding scholar in the field of public sociology,61 explains that the questions (knowledge for whom and knowledge for what) ‘not only divide sociology into four different types but allow us to understand how each type is internally constructed’ (Burawoy 2007:34–5). The types are professional and critical (addressing an academic audience) and policy and public (addressing an external audience). Professional and policy sociology focus on refining instrumental knowledge, while critical and public sociology focus on reflexive knowledge (which interrogates value premises).62 As areas of disputation, these distinctions can generate ‘category struggles’ within the discipline which are often treated as if the abstract labels in dispute had more than intellectual content. However, from the perspective of metaphorical meaning discussed above, concepts name aspects of ourselves and others that can be recognised (ultimately, psychologically, by individuals), and thus inform our conscious and unconscious choices.

61 He is himself of the left, politically (see e.g. Burawoy 2003), but he insists the ﬁeld is politically neutral; opponents fear that public sociology will politicise the discipline (which has been strongly resisted in the past, in the ‘public sociology wars’ (Zussman and Misra (2007:11); Burawoy (2009)). The obvious answering argument has its counterpart in the legal realist challenge to the claim that law is apolitical: on several dimensions, it just isn’t true. Further, as Tamanaha (2010) argues, no one ever did believe it in a simplistic way. Law, however, has the advantage of established institutional practices and processes, backed by state authority, as a corrective. Neither sociology nor political science can avoid being political, since values are not separable from social facts and labels, as discussed in section 2.1, which led to the methodological choices made in Chapter 3. Whether law has managed to avoid political outcomes better than these disciplines is a matter of debate. 62 These categories have themselves been contested, although, as noted in section 3 above, labels are products of culture; Burawoy (2007:34) also speciﬁes that they are Weberian ideal types, with frequently blurred distinctions and overlaps.

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Sociologists may adopt a stance of objectivity, but like economics, sociology is hampered even more than normal science by the fact that its ‘laws’ are largely statistical (see generally Bunge 2012). Burawoy’s extended case method (Burawoy 1998), like mixed methods research (Onwuegbuzie and Leech 2005), is designed as a form of triangulation to overcome some of the difficulties.

As discussed at 2.1 (above), at the level of society, the difficulty for any normative sociology is that academic scholarship has not yet supported a ‘normative web’ for society that is not law. Indeed, law could be characterised in these terms, as the normative web (the web of oughts, musts, and must nots over which the law is prepared to exert its authority, which mirror Peirce’s ‘web of knowledge’ in the domain of science). A serious difficulty for the post-foundational social sciences has been that the ruling paradigm of naturalistic science requires that all knowledge be understood as continuous with, and ultimately reducible to, physics, without offering a satisfactory grounding for ethical questions. This problem remains unsolved in the philosophy of science, and it is what Dewey tried to overcome in his evolutionary (that is, biologiocal) philosophy. (See further the work of the Churchlands and their critics (Churchland 1995, 2011; Flanagan 2007; McCauley 1996).)

Nevertheless, it has long been recognised that legal education and professional training are in the public interest and should be seen as a matter of public policy (Lasswell and McDougal 1943; Rhode 2002). Legal educational change – ‘reform’, which is clearly political – can be loosely characterised as a social movement. Scholars dominant in the study of social movements are ‘political sociologists, political scientists, organizational scholars, and network researchers have tended to dominate the study of social movements’ (McAdam 2003).

From that macro-level sociological perspective, McAdam et al. (2002:14- 5) trace the shifts in models of political processes used to explain contentious social changes. In the 1960s and 1970s these developed in reaction to previous thinking (basically, armchair psychologising). By the 1980s, a consensus model had developed which, they say, over-emphasised the role of deliberate, strategic decisions in social changes; was largely static, and thus failed to allow for dynamism, strategic interaction and contextual responses to political environments; focused on culturally encoded repertoires, which were too narrowly framed and took insufficient account of psycho-social and cultural dimensions. The approaches they list include a lot of ‘how much, how, and to what extent’ questions, but the consensus model proved ‘a reasonable, if overly structural and static, baseline model of social movements’ (2002:18), focused on

74 chapter 2: Selected Literature Review

four key concepts: political opportunities, sometimes crystallized as static opportunity structures, sometimes as changing political environments; mobilizing structures, both formal movement organizations and the social networks of everyday life; collective action frames, both the cultural constants that orient participants and those they themselves construct; established repertoires of contention, and how these repertoires evolve in response to changes in capitalism, state building, and other, less monumental processes. These perspective-concepts are useful to guide analysis, as long as a governing principle is taken from James (1996:95): ‘Use concepts when they help, and drop them when they hinder understanding.’ The risks include being lulled by familiar concepts into habitual thought-states, such that efforts to suggest improvements to systems can too readily be embedded as rigid ‘frameworks’ which are no longer ‘collective action frames’ but revert to static, narrowly drawn containers for ﬁxed ‘knowledge’. Application of a framework to any new context is always a kind of repackaging of prior knowledge that is historically situated and to a certain extent context-bound. The Deweyan imperative (to begin with the problem-space and focus on methods that respond dynamically to context) becomes increasingly difficult to follow as responses become habitual and embedded within a guiding framework or program. Dewey was prepared to clarify previous work, but it is ‘misleading and rather un-Dewyan’ to think of this as ‘repackaging’, as Rorty puts it. Rather, Dewey is always ‘reshaping tools for use on new materials rather than as providing “applied” versions of a previously “pure” body of knowledge’. The Pragmatist form of inquiry is a ‘response to particular historical circumstances’. It is not inquiry to locate ‘objective’ truths that can then be applied.63

This observation becomes important to any consideration of the difference beween training and education, which lies at the heart of the conclusions reached in this thesis (in brief, that training programs are of limited usefulness, and that genuine, meliorative ‘education’ for judges may be close to impossible).

(b) Ecological directions for systems thinkers

Systems thinking may be a fruitful alternative approach in JE. Since growth is both haphazard and relational, rather that rational and category-bound, systems, nets and ecology make better guiding metaphors.

Contrary to belief in the efficacy of leadership to bring about change (2.4(c) above), ecological systems theorists point out that it is not possible to ‘control’ a

63 Introduction [LW:v8:ix–x]. 75 From Court to College complex living system. Systems can only be perturbed – agitated by some local change (Capra 1997). The consequences are by no means either led from the top or ‘outcomes’ known in advance, and there are often unintended consequences.64 Systemic thinking means ‘thinking in terms of relationships, patterns, processes and context’ (Capra 2005). Law itself, from an anthropological perspective, ‘consists of and can be found in the regularized conduct or actual patterns of behaviour in a community, association, or society’ (Tamanaha 1999:93). Further, the ﬁne-grained detail, the loosening of some connections and the tightening of others, may be intentional or unintentional, recognised or unrecognised.

Western individualism in Modernity has led to education being seen largely as a matter of ‘inculcation’65 of knowledge (or, later, skills) in the individual, despite attempts by some scholars and some practitioners, such as Senge, to see the organisation as the appropriate unit (the learning organisation: Senge et al. (1994, 1999).

Seen as a denial of a relational or ecological understanding of human society, ‘contemporary capitalism diminishes social inclusion by denying to individuals, in their work lives, the experience of mattering to others’ (Curtain 2000) . If the most productive possibilities for JE lie in a relational approach, that becomes very difficult in the prevailing political environment, which remains both contested and focused on the individual.

64 For example, anti-discrimination legislation may increase employer bias (Fink 2008). 65 Deﬁned by the OED (2009) as ‘The action of impressing on the mind by forcible admonition or frequent repetition; the emphatic or persistent teaching of something.’ 76 CHAPTER 3

Methodology: Case Study with Mixed-Methods Research

3.1 Case study inquiry 3.2 Ethical considerations 3.3 Mixed methods research 3.4 Automated content analysis 3.5 Limitations of this research project 3.6 Further research 3.7 Data collection and analysis

For the reasons discussed in Chapter 2, I accept that no sharp distinctions can be drawn between any of the four major ontological realms or domains (physical, biological, social, intellectual). However, agreeing that each higher level necessarily has access to levels below is not the same as holding fast to the material in such a way that ‘metaphysical’ means the same as ‘supernatural’ (i.e. taking a reductionist view of reality which forces science to collapse the social into the physical). Further, agreeing that labels are social is not the same as saying they are arbitrary, as discussed in the context of meaning and metaphor in Chapter 2. A co-productive conversation between science and interpretation can then be undertaken as as an endeavour to order knowledge productively (Jasanoff 2004).

This work is a precursor to the work to be done not by outsiders, but by those actively engaged as participants in JE, which might take a form of action research not open to an external researcher. As such, as exploratory research, it has a purpose akin to consciousness-raising (that is, of the need to theorise JE beyond the common-sense reasoning found in law):

Methodology can only bring us reﬂective understanding of the means which have demonstrated their value in practice by raising them to the level of explicit consciousness (Max Weber, The Methodology of the Social Sciences, in Burawoy (1998:4)

77 From Court to College

3.1 Case study inquiry

The method adopted is the case study. Its dimensions and classiﬁcation are explained below using a structure adopted from Scholz and Tietje (2002), Embedded Case Study Methods: Integrating Quantitative and Qualitative Knowledge (a systems approach to case studies).

A. ‘Case’ and ‘study’

The case, the empirical unit or theoretical construct being researched, is judicial education in the Supreme Court of Victoria. Because appointments have traditionally been made from the Victorian Bar, the boundaries of the system have been drawn to include barristers for research purposes. The study is an appropriate subject for Pragmatist inquiry because practical interests are tied to it. It has social value, because it concerns the effectiveness of the Justice system in Victoria, and also bears on the National Standard and Curriculum for JE (Roper 2006, 2007).

B. Motivation

Motivation for the study (Dewey’s ‘propulsive force’ [LWv07:187] for an end-in- view) is both intrinsic (reﬂecting interest in understanding the case itself) and instrumental (with an objective other than understanding the particular case). While the case is interesting in itself, particularly as there has been so little research in the area, there is also a meliorative instrumental end-in-view: to contribute to a continuously improving system of judicial education.

C. Design

From the perspective of a research frame that distinguishes between embedded and holistic case studies, this is a single-case embedded study, which is not limited to qualitative research alone. (Holistic case studies would in these terms be qualitative, offering narrative, phenomenological descriptions and exploring themes and hypotheses subordinate to the understanding of the case (Scholz and Tietje 2002:9).)

There is more than one unit (object) of analysis in the design. The main unit is the larger institution, the Supreme Court of Victoria, of which all legal practitioners in Victoria are officers by virtue of their admission to practice.( But they are not ‘officials’ of the Court: Supreme Court Act 1986 (Vic) s 3.) Sub-units of the Court are: Bench; Judges; and Bar. Solicitor practitioners and academics form part of a wider

78 chapter 3: Methodology concerned class of lawyers not forming part of the research case but considered in literature reviews and discussions. In addition, litigants, parliamentarians and the public are clearly interested in the subject matter.

The level at which the current educational effort is focused, as led by the Judicial College of Victoria, is the individual judge. That is also therefore the sub-unit on which this study focuses, although the philosophical lens of Pragmatism points in the direction of larger social units.

D. Epistemological status

The study is both exploratory and descriptive (Scholz and Tietje 2002). In its exploratory aspects, it is preliminary, theory-building and pilot-like. In this model, methods are often not speciﬁed in advance, to allow for progressive development. In its descriptive aspect, it uses a reference theory or model that directs data collection and case description. It tests whether and in what way the case of judicial education may be described when approaching it from the perspective of the Bar and individual judges.

An explanatory case study would be theory-testing (structured according to falsiﬁcation or replication logic, with speciﬁcations for cause-impact chain formulated before case analysis.)

E. Purpose

The case has a research purpose. That is, it is a case description from the researcher’s point of view (‘bringing the outside in, and the inside out’ (Scholz and Tietje 2002)).

The study has an action/application purpose in the sense that its recommendations, if followed, would lead to the Court focusing on new approaches. However, the case study itself is not a piece of action research from the point of view of case agents (the Court). It is also not a teaching case (discussion pedagogy as a variation on Socratic method of proactive interaction, as used in business, law, medical schools, where primacy of data and situation analysis often not respected because the case is a ‘virtual’ process): (Scholz and Tietje 2002).

F. Format

From within public sociology the notion of the ‘extended case’ (Burawoy 1998) was elaborated to overcome two major weaknesses: in the social sciences, positive

79 From Court to College science proscribes intersubjective reactivity (yet is confounded by ‘context effects’), while reﬂexive inquiry is limited by ‘power effects’ such as objectiﬁcation and normalisation. In the extended case method, a participant-observer ‘can locate everyday life in its extralocal and historical context’ (Burawoy 1998:4). In my research I take from this approach the experience of locating the context.1

Scholz and Tietje (2002) frame their discussion of case study structure in terms of (1) highly structured (problem well-ordered, facts written, condensed, a ‘best solution’ often exists); (2) vignettes (short, often a prototype, usually no ‘best solution’, little excess information); (3) unstructured (complex, no best solution, may be a preferred practice or theory, includes situational context to structure the case and proposed solutions; real cases are of limited problem scope; case is structured to limit the scope, which in the beginning is diffuse and unstructured); and (4) groundbreaking (new terrain, situation totally new, little knowledge exists that has been gained through structured research; researcher has to structure the case and formulate a speciﬁc perspective or theoretical framework). This study has elements of formats (2), (3) and (4). The case is complex and not inherently highly structured.

G. Data

The research data is, in conventional terms, both qualitative and quantitative (Onwuegbuzie and Leech 2005), though these words do suggest a sharp distinction for the Deweyan Pragmatist philosophy I have adopted. Organisation studies have gone through phases of scientiﬁc management, human relations and human behaviour (Evers and Lakomski 1991; Lakomski 1991), as well as psychological management to provoke organisational change and inﬂuence employee thinking and performance (Kingsley 2000).

Structured and unstructured observation may be a more fruitful way to get at the ‘iceberg’ (Kingsley 2000) of administrative practices.

The chief sources of data are focused (semi-structured) interviews with judges, a survey of barristers, and speeches and archives on the public record. I have had some limited recourse to unpublished primary sources. The research does not include experiments, simulations, other sampling techniques, structured interviews or participant observation. The research includes personal observation

1 Not the direct participation aspect, which would be closer to action research. However, I note that the participant-observer form is very well suited to judges’ own research in the course of shaping JE, which I recommend in Chapter 5 in place of, or to supplement, externally driven academic research.

80 chapter 3: Methodology in the sense that the researcher is also a former practitioner. This familiarity is potentially both limiting and useful. (Limitations are addressed at 3.5 below.)

H. Analysis

Finally, on the Scholz and Tietje (2002) model of case study research the conclusion is ‘informal’ while avoiding reductionism and elementalism. The research report is mostly narrative in nature. The approach is empathic to participants and mostly intuitive, in the sense that global statements and conclusions are derived by intuitively qualitative processes based on experiential understanding and a more or less formative synthesis supported by the methods introduced (Scholz and Tietje 2002). The synthesis focuses on systemic and organisational levels of learning. It departs from the established approach of judicial education in that it approaches its task from an educational rather than legal perspective.

Any method has weaknesses that can be strengthened with complementary approaches. Thus the empirical findings of a case study ‘may lead to fuzzy propositions in a report, or to an evaluative report, or to a story or portrayal’ (Bassey 1999:85). Diani and McAdam (2003:265) ‘find a strong tension between mathematical mapping techniques and ethnographic or textual analysis, since each involves a necessary reduction of the other.’ The first (formal mapping techniques and related network-analytic routines) yield structural patterns in the wider field, but ‘lose the multi-textured, contingent, and often ambiguous ‘give and take’ of actual interaction.’ The second (qualitative methodologies) ‘can help to preserve the richness of local context, but ignore the global topography.’ These authors ‘argue not only for the complementarity of these approaches, but also for the development of new techniques that make possible their integration’ where the goal is ‘not to uncover static structures governed by general laws that apply to all cases, but rather to find a set of general communicative mechanisms that organize action across a variety of different movement contexts’ (2003:265). The absence of definitional clarity in the field of judicial education makes it extremely difficult for program designers to move beyond educational doxa (everyday opinion) to logos (reasoned consciousness). This research brings that lack of clarity to awareness, which is a necessary first step towards developing communicative mechanisms in this field.

81 From Court to College

3.2 Ethical considerations

The research was given ethics approval as a low-risk project.

3.3 Mixed methods research

According to Maxcy (2003), the search for multiple modes of inquiry marks the end of the philosophy of formalism that accompanied positivism. Even so, Teddlie and Tashakkori (2003) assert the importance of establishing an agreed nomenclature, with associated typologies, for mixed-methods design. Within that framework, this research is exploratory rather than conﬁrmatory, with components of Mixed Type III (Quantitative data plus statistical analysis) and Mixed Type VI (Quantitative data plus qualitative analysis and inference) in the Bar survey and Leximancer strands and purely qualitative in the judicial interview strand:

Table 3.1 Tashakkori and Teddlie’s classiﬁcation of single-strand mixed-model designs

Conﬁrmatory Invesgaon Exploratory Invesgaon Quantave Data/ Qualitave Data/ Quantave Data/ Qualitave Data/ Operaons Operaons Operaons Operaons Statis- Quali- Statis- Quali- Statis- Quali- Statis- Quali- tical tiative tical tiative tical tiative tical tiative analysis analysis analysis analysis analysis analysis analysis analysis and in- and in- and in- and in- and in- and in- and in- and inference ference ference ference ference ference ference ference Pure Mixed Mixed Mixed Mixed Mixed Mixed Pure quanti- Type V Type I Type II Type III Type VI Type IV qualita- tative tive

Shaded portions reﬂect this research program (Source: Table 1.2 in Maxwell and Loomis 2003:31)

It is now widely agreed that making a sharp distinction between qualitative and quantitative research is a mistake, since each deeply informs the other. However, equally clearly, a meaningful distinction, which includes a stock of disciplinary customs, is captured by these terms. Lacking a better metaphor, academics may still position their own work along a continuum stretching between ‘hard’ and ‘soft’ inquiry. From the 1970s the distinction became very common (e.g. Price 1970). The same distinction is captured in statistical rather than, say, narrative scholarship.

Western science in English-speaking countries tends to assume that theorising, explanatory hypotheses, predictive testing, falsiﬁability, measurement, and statistical manipulation of quantitative data relating to the matter being explained largely exhaust the meaning of ‘scientiﬁc’ (Wierzbicka 2011a, b). However,

82 chapter 3: Methodology qualitative knowledge of the subject matter, including its basic characteristics, the ‘what’ rather than the ‘how’, underpins much of that hypothetico-deductive style of science (Wertz et al. 2011:12). Qualitative socio-legal studies may suggest nuanced understandings of legal process, and thus contribute to legal reform (e.g. in criminal procedure: (Roberts and Saunders 2010)).

One problem with quantitative social research, from benchmarking to longitudinal studies, is issue salience. Researchers tend to assume that the salience and signiﬁcance to respondents of what they are measuring remains constant across time, and that responses in different contexts are directly comparable, whereas in fact context is not only inescapable (ubiquitous) but also dynamic (ﬂuctuating). (See Edwards and Mitchell (1995) for a discussion related to politics, where salience affects evaluation.)

Many researchers now focus on the relation between theory and practice – and beyond a relationship (which might still imply two separate subject matters), a co-evolutionary relationship: ‘how the two continuously create each other’ as Checkland (1999:11) says. This interaction is, he thinks, a marker of the maturity of soft systems theory. For such relationships a möbial metaphor may be preferable to the reigning metaphor of the continuum.

Wertz et al. (2011:12) list ‘psychologists such as William James, Sigmund Freud, Jean Piaget, Lawrence Kohlberg, Abraham Maslow, and Nobel Prize awardees Herbert Simon and Daniel Kahneman’ as ‘eminent researchers’ who ‘have made seminal contributions’ to the qualitative research genre.

Pragmatic mixed-methods research has been described as ‘a research paradigm whose time has come’ in part because it is a way out of dichotomy (Biesta and Burbules 2003; Johnson and Onwuegbuzie 2004; Maxcy 2003). Leaving aside arguments for and against a paradigmatic view of knowledge, mixed methods have proved particularly valuable in information and communications technology (ICT) and social sciences generally, wherever a person-centred focus is taken (Tashakkori and Teddlie 2003a).

The issues and controversies in mixed methods research are canvassed in depth in Tashakkori and Teddlie (2003b). These authors take a Pragmatist ‘middle ground’ or third methodological moment between quantitative and qualitative research. Denzin (2008:317) argues, after Teddlie and Tashakkori, that

there are in fact two distinct versions of the third moment. There is the mixed-methods version of the moment, and there is a somewhat more radical position … that endorses paradigm proliferation, a version anchored in the critical interpretive social

83 From Court to College

science traditions. Onwuegbuzie and colleagues (Onwuegbuzie and Johnson 2006), canvas validity errors, data analysis (Onwuegbuzie and Teddlie 2003) framework for analyzing data in mixed methods research and mixed research as a tool for developing quantitative instruments (Onwuegbuzie and Nelson 2010).

Speciﬁc topics within the Pragmatist perspective directly related to this research which inform the approach include computerized data analysis for mixed methods research (Bazeley 2003); research design (Creswell 2003; Creswell et al. 2003; Mertens 2009; Sandelowski et al. 2006); making inferences (Erzberger and Kelle 2003; Miller 2003); social inquiry (Greene 2007); data collection strategies (Johnson and Turner 2003) sampling strategies (Kemper et al. 2003); research purpose (Newman et al. 2003); education research (Rocco et al. 2003); data reporting (Sandelowski 2003); culture analysis (Silva et al. 2009); and integration (Yin 2006).

3.4 Automated content analysis

Automated content analysis is now well established as an academic research tool. Coombs (2010) also ﬁnds it ‘essential’ as a tool to facilitate deliberative democracy. On a Habermasian model of stakeholder trust, he proposes ‘conciliatory modeling’ in the context of a local instantiation of the Obama Administration’s Open Government Initiative (OGI). He reasons,

stakeholders [need to] look for a way forward that satisfies their mutual needs … the routine application of automated content analysis to understanding each other’s positions provides the requisite interpretative distance for stakeholders to search for conciliatory storylines. (Coombs 2010:np) The key here is ‘interpretive distance’. While there are, clearly, interpretive effects even in the science which develops the algorithms that process natural-language texts (albeit smaller than in interpretive disciplines (Dewey 1927)[LWv02:380–1]), in automated analysis the same filter is applied across all text. This is in marked contrast to text filtered through different human readers’ brains, or even the same reader on different occasions. While good ethnographic accounts recognise and capitalise on the quality of reflexivity of the researcher (Symon and Cassell 1998), best practice for scholars performing manual qualitative coding includes systematic checks and cross-checks. Even in qualitative studies, evaluative criteria need to be ‘commensurable with the aims, objectives, and epistemological assumptions of the research project’ (Bringer et al. 2004:247). Using qualitative software such

84 chapter 3: Methodology as NVivo (Macer 2011; QSR 2012; Welsh 2002) may help researchers make better use of data and even out methodological inconsistencies (any single researcher is subject to vagaries of mood, vigilance performance and other variations only trivially related to the material).

A concept map is not a theory. Like science, it is a tool ‘not a causal entity per se’ and ‘as much subject to human use as any other technological development’ (Dewey 1927)[LWv02:380–1].

Trochim (1989a:np) makes this point:

while theories are built upon concepts, concepts are not, in and of themselves, theories … A theory postulates a relationship – usually causal – between two or more concepts. A concept map provides a framework within which a theory might be stated. A map is not expressing any kind of causal relation, in the sense that ‘Cluster A’ is causally related to ‘Cluster B’. While it is not then theoretically interesting to an empirical inquiry, this is not its function. Sometimes a model can pose as a theory, but even an adjective can pose as a theory, or even a whole new discipline (e.g. positive scholarship or leadership studies). The fault does not lie with the tool.

Wimsatt (2007:152) grounds philosophy in heuristics and models that work in practice – even, echoing Donagan et al. (1987), faulty or false models, if they contribute to better theories. He also countenances ‘materialist but non-reductionist accounts of biological organization, human nature, and the mind, and the analysis of aggregative and ‘emergent’ behavior in complex systems, and the nature and consequences of levels of organization and perspectives as naturalistically explicable entities’. Accepting this approach allows less-than-perfect theories to remain, provisionally, until defeated by superior theories.

Trochim (1989a:np) asks, ‘Is concept mapping ‘science’ or ‘art’?’ and adds, ‘Can we legitimately claim that concept maps represent reality, or are they primarily suggestive devices which might stimulate new ways to look at our experiences?’. This suggests a spectator view of reality, the correspondence theory of truth, and a dichotomisation of art and science. But again, the value of the tool lies in its use.

One legitimate use of concept mapping is as a clarificatory exercise in defining concepts for the purpose of theory-building. This is an important social science issue, and it is directly relevant to the absence of definitional clarity in the field of judicial education.2 Trochim (1985, 1989b) considers the detailed, visual, pattern- based representation of concepts in concept mapping to be particularly useful

2 Relevant literature is discussed in Chapter 2.

85 From Court to College for theory-driven social research. As time has passed, increased use of concept mapping in cutting-edge information science has proved his point.

3.5 Limitations of this research project

This study was exploratory in nature, designed as a preliminary investigation of Bar–Bench interrelation and cultural schemes related to legal education.

In general terms, this project was subject to the limited scope and resources of a single researcher rather than a team. It was also formalised as a thesis of predeﬁned extent, with expectations established in a much larger system. In one sense the thesis itself speaks against its own methods. More generously viewed, it has been an experimental problem-space with an issue (completion) to be resolved, and there is no doubt that it has been an ‘enveloping whole’ with ‘a recession into the implicit which is not intellectually grasped’ accompanying the ‘explicit and focal object’ of the dissertation (to misappropriate Burnett (1974:205)).

Speciﬁc project constraints and limitations included:

(a) Respondent availability and time

Researcher resource availability, time, and scope of the project according to university guidelines. Time delay between survey and report (context changes likely to increase with passing time, so this data is now becoming stale, but is still better than no data).

(b) Social desirability, MUM and judicial circumspection

In their work judges are circumspect, non-intervening (in the sense that they do not ‘descend into the arena’), and are in general appointed to be discreet and reliable as well as learned. This might tend to exaggerate two response effects that social psychologists have observed in values-related research such as customer satisfaction surveys. The ﬁrst is reluctance to communicate undesirable information, also called ‘the MUM effect’ (Kennedy and Everett 2011; Rosen and Tesser 1970; Tourangeau et al. 2002; Ye et al. 2011). Here the presence of an interviewer exaggerates positive responses but inhibits negative responses that are unpalatable to the researcher. This research is not on all fours with that genre: for one thing, the researcher was independent of the ‘institution’ of judicial education. However, the university faculty concerned (Education) and the topic of the project

86 chapter 3: Methodology itself perhaps implicitly placed it in a ‘pro-education’ camp, which would make it very loosely cognate with a customer satisfaction survey conducted by a supplier.

However, as Bloor and Wood (2006) note, the issue of public/private accounts does not mean that circumspection makes statements false:

Acknowledging that respondents may provide diﬀering accounts depending on to whom they are speaking and the context of the question, raises issues about the status of interview data. Accounts may not be viewed in a positivistic sense as simple representations of the world. It cannot be claimed that public accounts are always ‘false’ and private accounts are always ‘true’. Public accounts are given for a purpose, and that representation of the world by the respondent to the researcher should be acknowledged as a valid representation. The skill is for the researcher to be able to acknowledge public accounts for what they are and, if required, to probe beyond into the private beliefs and behaviours. (Bloor and Wood 2006:142) The division by Harris (2002) of emotional work into private (with colleagues), public (in court, or with clients, witnesses etc) and suppressed emotional labour is of interest here, because most scholarship in the area makes a dichotomous private/public distinction. The possibility that judges, like other lawyers, may be at risk of depressive rumination gives this insight particular relevance for future research that could have consequences for the well-being of the profession.

The second phenomenon, social desirability bias, comes from the other direction: rather than being protective of the inquirer it is psychically protective of the respondent because it averts embarrassment. The bias would tend to make respondents under-report their own undesirable viewpoints, beliefs of behaviours and over-report the socially desirable ones – a tendency magnified by the presence of an interviewer (DeMaio 1984; Kennedy and Everett 2011; Tourangeau and Yan 1984). The semi-structured nature of the questions used in this research project were designed with this in mind. These are everyday bias effects, but it is likely that a more specifically judicial effect in the same vein is in operation, given the nature of the judge’s public role and legal training in risk-averting tactics. It seems reasonable to assume that a ‘judicial circumspection bias’ might also be in operation, and indeed I conclude that the judges’ general attitude towards judicial education, irrespective of whether they personally find it beneficial, could be summarised in two words: circumspect and dutiful. The fact that this research was exploratory makes the issue of what could not be elicited from respondents in a short space of time important. Judges are

87 From Court to College public office-holders; JE had been highly politicised by the then Attorney General with remarks in the media about ‘sending judges back to school’, a message that was quickly picked up by commentators (LIJ 2007; Wallace 2006) and led the Judicial College to be called ‘Judgie School’ among cynical members of the Bar.3 The respondents had varying views, from extremely supportive to benign resignation, but simultaneous operation of the MUM, social desirability, and judicial circumspection effects would be expected to markedly dampen negative responses.

Hitt at al. (2007:1385) observe that ‘most management problems involve multilevel phenomena, yet most management research uses a single level of analysis’. Restricting research to a ‘micro or a macro lens alone yields incomplete understanding at either level’. Much of what is discussed in this dissertation concerns the effects of macro-level factors on individuals.

A larger project without the same constraints might take advantage of approaches to social research such as statistical multilevel modelling (hierarchical modelling) to examine the impact of context on individual-level outcomes. Contextual and compositional effects are considered to operate at higher and lower levels, and investigations in areas such as the social determinants of health, education and criminology have taken this approach (Diez-Roux 2000; Duncan et al. 1998; Kreft and Leeuw 1998; Paterson and Goldstein 1991)). Lawyers’ professional discontents include health concerns such as depression and substance abuse, topics that may be suited to such large-scale multilevel analysis of individuals as members of groups (looking at both individual-level and group-level effects). However, this is beyond the scope of a small research effort.

Also, on conceptual and methodological issues, see Teachman and Crowder (2002). Hitt et al. (2007) introduce a forum on multilevel research considering levels of theory, measurement, and analysis required to fully examine research questions. See generally on quantitative methodology for the social sciences (Kaplan 2004, Ch 13 on multilevel modelling).

Close to the entire pool of barristers was surveyed, but the questionnaires response was at the low end of expectations. This is discussed further below.4

3 Personal observation, multiple occasions. 4 See Part A (Bar survey) quantitative aspects.

88 chapter 3: Methodology

The survey provided a simultaneous choice of response modes (sending an email with a web link and an offer to post hard copy as an alternative) but with hindsight, it might have been better to offer Web ﬁrst, and then use a mail follow- up option as a ﬁnal contact. Millar and Dillman (2011) found this improved Web response rates and was equivalent to using only mail (which is more expensive and takes much longer to process). The combination of postal and email contacts plus a token cash incentive delivered in advance also improved Web response rates, although that would be less appropriate in the non-commercial setting of this research. However, in sum, different implementation strategies areviable , but the most effective strategy uses multiple approaches (Millar and Dillman 2011).

(d) Quantitative research generally

Survey question 14 about barristers’ views on traditional appointments from the Bar underscores the difficulty of using survey responses to ascertain some objective, generalised ‘truth’. The intended purpose here (finding what schemas might be operating) deflects this objection to some extent, but it does not overcome the problem of oversimplification. The appointment to SCV of Croft J is a case in point. This judge was previously a senior counsel, international arbitrator, adjunct professor and text book writer, with experience extending far beyond the Bar, including government positions. It becomes impossible to judge which, if any of these careers had the most useful effect, and in what context. From Dewey’s point of view, his liberal (wide) life education is conducive to development of understanding, which is the litmus test of learning (Dewey 1916a), and this observation accords with the literature showing that some people know and learn more than others for a host of different reasons (Beier and Ackerman 2005; Hambrick et al. 2008). It also ignores the social and contextual nature of cognition. The illusoriness of instruments that purport to ‘lock down’ socially dynamic factors as ‘hard’ and ‘reliable’ data is made clear by complex social facts (Starbuck 2006). Also troublesome are assumptions that superficial indicia such as absence of proven misconduct reflect good character (Swisher 2008). Good (moral) character in the Pragmatist sense is akin to the Buddhist idea of skilful means: wisdom is local and contextual. As a generalisation, at most it means having

89 From Court to College a history of making the best choices. An added complexity for empirical socio-legal research is that concept construction must be theoretically informed by legal, political and social theory, if it is to have any use in policy evaluation or to inform or deepen understanding (Adler 2007).

3.6 Further research

The survey is restricted to the opinions of members of the Victorian Bar. Widening the scope of the research to the public (e.g. to questions such as No 15, the roles required for judicial competence) could disclose different response patterns. A Queen’s Counsel interviewed early in the project made the point forcefully that in his opinion the government was not interested in establishing what public opinion was, in a widely democratic sense, but that it was pitching to the kind of political correctness fostered in the Academy and amongst the Victorian profession:

‘readers of the Age and ABC listeners, not readers of the Herald Sun and 3AW audiences’ [QC01]. This state, he asserted, was the most small-L liberal in its thinking, particularly in the area of criminal responsibility.

The survey instrument used here could not be repurposed without adjustments. Most obviously, the questions are framed to elicit barristers’ understanding of their own work. However, the language was also intentionally pitched at this level (for example, terms such as ‘vaguely aware’ and ‘quite conversant’ would be criticised on plain language grounds in a survey intended for a non-specialist pool of respondents. This is a limitation to the extent that it precludes repeated research on a wider pool. However, the weaker the contextualisation of an inquiry-space, the less intelligent (in Dewey’s sense) the inquiry can be expected to be.

3.7 Data collection and analysis

The case study is developed by a questionnaire administered to the Victorian Bar, with open and closed questions; semi-structured interviews with judges of the Supreme Court of Victoria; and analysis of speeches, reports and other material available on the public record.

90 chapter 3: Methodology

(a) Bar survey: Quantitative aspects (open questions)

Process

The email address of every barrister who has email is publicly available on the Bar website5 and is issued as a convenient list by the Legal Services Commission to education bodies such as the Law Institute and Leo Cussen Institute. Every member of the Victorian Bar in February 2008 was sent an emailed link to an online survey instrument set up on a commercial survey site, SurveyMonkey.6 The requests to participate were sent in batches, by clerk’s list.7

A printed copy was offered to those who preferred that form (n=19). Those copies were delivered to Bar pigeonholes with stamped self-addressed envelopes. The mailed responses were then manually keyed into the online version of the questionnaire to ensure all data was in a single digital format ready for analysis (n=17).

Response

The pool of barristers surveyed was the unstratified population of the Victorian Bar (only those with registered email addresses, n=1264). The return of n=215 surveys (17.3%) from a pool of 1264 gives a confidence level of 95% and confidence interval of 6.1%).

The response rate of 17.3% was calculated as 215 returns from 1264 sent = 17% raw return rate, or 17.3% when adjusted for 25 bounced emails. At the time this rate raised some concern about non-response bias. On later enquiry I discovered that the Bar spam ﬁlter had caught many of the requests, so there was a reduction of unknown size in the number of requests actually delivered to barristers. Ideally, a second survey would be conducted, and perhaps a hard-copy version delivered to each barrister’s pigeonhole. However, the scope and resourcing of the project made this unrealistic.

However, the response rate is very close to, for example, recent research on satisfaction with the online component of Practical Legal Training courses, in which the response rate was 17.5 per cent of recent graduates sent one invitation to participate in an online survey, also using SurveyMonkey (Greaves and Lynch 2012 in press). 5 At www.vicbar.com.au. 6 See www.surveymonkey.net. 7 Every barrister who signs the roll of counsel must have a clerk. The number of barristers, and barristers on each list, varies with amalgamations of lists and new lists being formed.

91 From Court to College

The number of members of the Victorian Bar ﬂuctuates, and at various times barristers are away on holidays, in academia, or for other reasons. The wider membership was approximately 1500 at that time. The Bar now keeps on its website a current real-time membership statistics in all categories.8 On 8 July 2012 the total number of counsel in practice was 1895 (239 Queen’s Counsel or Senior Counsel (silks) (14.4%) and 1656 Junior Counsel (85.6%)). On 13 October 2014 the total was 1940  248 silks (13%) and 1692 juniors (87%).

The literature suggests two main reasons for not responding: failure to reach the target population (e.g. wrong address, absence from work) and unwillingness to reply (Baruch and Holtom 2008).

While preparation such as updating mail lists will reduce the impact of the ﬁrst factor, it is unlikely to eliminate it. The second factor is more difficult to address. Another suspected issue is survey fatigue (over-surveying) (Baruch and Holtom 2008). Non-responder bias Test 1: Comparator rate

In June 2012 the Bar Council received 21 submissions (i.e. 1.1% of its then population) in response to a request for comments or questions about a Discussion Paper on the method of appointing silks. Survey completion is not of course directly comparable. However, it could suggest a general pattern of unresponsiveness. The silks issue directly concerned the Bar and was potentially emotive. The Chief Justice had the year before decided her workload was such that she could no longer carry out her traditional role but ‘Notwithstanding that the Chief Justice indicated that it would be very difficult for her to carry out this role it remains the Bar Council’s clear preference to have a court-based system of appointment of Senior Counsel’ (Victorian Bar 2012a, b).

I conducted two tests for non-responder bias. One was to compare the response by the same pool to a different request for a response (Test 1 above).

For Test 2 I compared the known percentage of silks at the Bar (14.4%)9 with the value responding in the sub-group of surveys returned (13.95%) = standard deviation .3182. A finding of no significant difference suggests that there is no significant non-responder bias to be concerned about. 8 See www.vicbar.com.au/about-us/about-the-victorian-bar/bar-statistics. 9 As at 8 July 2012. This figure itself is likely to fluctuate through a similar range.

92 chapter 3: Methodology

This suggests that the number of completed surveys (215) would be enough to form an accurate representation of the pool of members of the Victorian Bar.

The same concern does not arise with the non-numerical, qualitative responses made in open response sections covered in 5.2 Part B, as the open-ended questions are exploratory and used only to elicit emergent patterns or themes.

Response rate review checklist (from Baruch and Holtom (2008:1155)) Information about the sample • How many people was the questionnaire sent to? 1264 • How was it distributed? (e.g. traditional mail, internal mail, email, web, in person) • Was it sent to people who volunteered for the study (prior consent)? No Questionnaires returned • How many questionnaires were returned? 215 • Of those that were returned, how many were usable? All • Was there a typical reason for receiving unusable questionnaires? If so, explain. N/A  If several populations are involved (e.g. rank and ﬁle vs managers), was there a difference in the RR across the populations? N/A What response facilitation approaches were used by the researcher to increase RR (e.g. pre-notiﬁcation, publicity, incentives, reminders, survey feedback)? Detailed below

Research methods literature indicates that incentives and reminders may not increase RR, although the literature since this survey was conducted offers some new suggestions. Baruch and Holtom (2008:1145) hypothesise that the use of incentives and reminders ‘will result in a higher response rate in studies of individuals than in studies of organizations’ and ‘topic salience, consent pre-screening, and social network approaches all show promise as methods for increasing response rate’ (Baruch and Holtom 2008:1145). However, at the executive level, incentives (gifts), advance notice, follow-up, and personalization appear not to have a signiﬁcant impact (Cycyota and Harrison 2002, 2006), and barristers may be akin to this group.

Baruch and Holtom’s (2008:1155) response rate checklist (above) is suggested for use in organisational research. These authors say a response rate exceeding the boundaries of one standard deviation (above or below) should be discussed: ‘If below, why is it still justiﬁable to use the sample (e.g. population is difﬁcult

93 From Court to College to access, strong evidence that many questionnaires have not reached the target population)?’

They also suggest conducting and reporting more serious non-response bias tests than I performed here (e.g. archival analysis, wave analysis, interest-level analysis, active non-response analysis). Once I realised that the responses might be low I contacted the Bar IT department and was informed that the Bar spam ﬁlter would detect any mass mailing from a single source address, and block emails. However, I had no way of determining which emails had suffered this fate, which had been intentionally declined, and which had just been forgotten. Because there was some sensitivity involved (I was a former colleague at the Bar and I was reluctant to press colleagues who did consider such solicitations spam), I sent one reminder email and decided against a further re-mailing.

I was reassured about possible response bias by the proportion of silks among the respondents, and the gender balance. The current Bar is 14.4% silk10 and the survey return ﬁgure was very close to that: 13.95%. By sex, the Bar is 75% male and 25% female (Victorian Bar 2012c) and the survey returned 74.5% male and 25.5% female, within the range of the Bar’s own membership ﬂuctuations.

I did more follow-up on my own Clerk’s list (a small list). Here I sent 57; 1 bounced; I spoke to the clerk, who gave me reasons for absences of 6 barristers (overseas, interstate on trial, on holiday, ill), which if extrapolated across the Bar would bring the available pool with registered emails and actually accessible by email down to 1138. Of the 44 potentially ‘received’, 4 replied on the ﬁrst round. Of those, 2 pressed the ‘completion’ button at the end, thus qualifying as ‘completing’, although in this survey questions were not compulsory: completion did not correspond with answering all questions, and answering all questions did not correlate with pressing the completion button at the end. The second email elicited a further response of 13 (3 partial, 10 complete) with 33 still not responding. I then emailed 4 partial completions to request completion (1 responded). I also sent a more personalised follow-up email to 5 using the connection with the clerk (1 responded). The ﬁnal tally from this list (List P) was 20 of 50 live emails, or 40%.

Factors contributing to the low response rate, apart from the Bar tagging as spam, could be that barristers who are at court are away from chambers; anyone running a trial is effectively ‘unavailable’ for weeks, working day and night; anyone doing pressing paperwork would be likely to ignore the survey. This could mean

10 As noted above: source Bar website. But all these figures fluctuate. The Bar itself gives different figures in its daily updated statistic and the monthly PDF summary (11.4% male silk, 1.3% female on Victoria Bar (2005:4).

94 chapter 3: Methodology that busy barristers did not respond, and since busyness equates roughly with a successful practice, that the survey is skewed towards the less successful. However, the percentage of senior juniors 10 years+ (40.7%) and of silks (14%) do not support that reasoning (silks make up approximately 14% of the Bar).

Responses by List were as in Table 5.2. The ‘opted out’ ﬁgure is interesting: it indicates consideration and active refusal to participate rather than busyness or lack of interest. On my own list, where there was a personal connection, no respondent opted out. The average (arithmetic mean) opt-out rate on other lists was 6%, with a range of 3–6%. While this is a small list, a smaller list (C) had a higher rate, which is only suggestive, but in a direction consistent with the response rate. Note: the Clerks’ lists did not use consecutive alphabetisation for historical reasons.

Table 3.2 Responses by List List Sent Respond P/C1 Non-resp Opt out Bounce Response Rate (RR)2 (%) A 97 20 5/16 76 4 3 22.34 B 135 21 9/13 113 10 3 16.67 C 39 6 1/6 32 1 1 18.42 D 193 30 10/20 163 12 1 15.63 F 182 24 7/17 158 11 1 13.26 G 75 10 3/8 64 6 3 15.28 H 113 11 2/9 102 8 3 10.00 L 104 20 7/13 84 6 7 20.62 M 69 11 2/9 59 6 1 16.18 R 71 4 1/3 67 5 1 5.71 S 105 10 2/9 94 5 0 10.48 W 81 11 4/7 70 5 0 13.58 P3 57 20 5/20 37 0 1 35.71 HC4 19 17 0/17 2 0 n/a 89.47 Total 1264 215 53/130 1082 79 25 i. General issues arising

In addition to the matters speciﬁc to this instrument, there are issues with quantitative measurement in general, but I do not attempt to address these here. An important reason for undertaking mixed methods research is to achieve method triangulation to ameliorate some of those problems.

Categories may be relatively stable but they are still contextually and temporally dynamic, and also overlap to varying degrees in different contexts, subjectively and intersubjectively. Indeed, one paper-based response to Question 8 was ‘this overlaps with this’ – said of two items contributing to expertise: ‘Experience at the Bar (i.e. through own practice)’ and ‘Working with colleagues on speciﬁc cases/

95 From Court to College matters (at bar or as solicitor)’. While the matters in parentheses had been added to reduce such overlap, the point is well made that they cannot realistically be separated in action, however necessary abstraction may be to achieve a sharply focused Q&A snapshot.

Most barristers completed the survey on line, and were thus constrained in some ways by the format the software’s ability or inability to cope withdeviations from the structure of the instrument. This was an issue in questions where numerical answers required respondents to allocate values to reﬂect an arithmetic total of 100. The instrument was designed to elicit the relative contribution of each. Online respondents who were careless or mistaken or unwilling to force their responses into a framework of values totalling 100% were not permitted by the instrument to progress to the next page until their score had been corrected. However, barristers who requested a paper copy were unconstrained. Seven of the 17 who returned paper copies returned variations that were not open to online respondents.

Where a value allocation exceeding 100% was given on Question 6,11 an adjustment had to be made when manually keying the on-paper responses into the online system so that the data could be manipulated in a single block. The pragmatic solution adopted here was to allocate the missing marks to the category ‘other’, as this was the lowest-impact solution.

Another issue arising on paper copy which was prevented from occurring in the online system was the ability of a respondent returning a paper copy to add miscellaneous comments on the paper itself. In some cases, comments were judged to make no material difference (e.g. if they went to a clariﬁcation of the respondent’s understanding that was in accord with the researcher’s own intention for the question. It was considered that such responses (n=5) could safely be dropped from the data. However, if the comment made a material qualitative difference to the response, it has been noted below, and in discussions relating to each question.

In the online version, open-ended response spaces were presented as being of equal size, whereas on the paper version, the size of boxes allowed on the page for responses varied. While there was a general invitation to attach further comment if more space was required, the size of a response box does carry some implicit suggestion about the amount of comment that might be expected in relation to that topic. So in addition to the actual physical constraint of the paper version, a psychological expectation (whether that be judged to be limiting or encouraging)

11 See details below. 96 chapter 3: Methodology is introduced. Respondents on paper more often responded to the open ended questions, and wrote more when they did so, than the online respondents.

A peripheral but interesting ethnographic aspect is the inﬂuence of form, both on response, by shaping implicit expectations and imposing constraints, and on interpretation. An ethnographic approach inspired by Bourdieu would read as architectural traces of thought processes the deletions and additions discernible on the paper version but lost in the online version, where there is no record of multiple attempts (e.g. where addition is involved) or after-thoughts (in open comments). In the paper versions, one such trace is worth mentioning. The respondent wrote:

The general approach seems appropriate and I would not modify it. The eﬀective- ness of it of course depends upon which of the eight elements are emphasised and the content and quality of instruction in respect of each. I would like to see a general regime of initial education covering all eight elements with follow-up education for judges focusing upon a speciﬁc element which a judge believes (or perhaps others believe) is a weakness for that Judge. Three related observations: (1) The trace is visible in the paper form but would not be visible online. (2) The writing process itself is known to have a releasing effect on thoughts that are not in conscious awareness, and are brought to the page before the conscious and critical editor censors them. For this reason the technique of automatic writing is commonly used to escape writers’ block. There is a strongly held schema of judicial independence which would not allow such a thought to remain. It may well be that the author therefore revisited the text and deleted it. (3) This may be a good guess, and it hints at a schema of the kind I am interested in, but on its own this interpretation is highly speculative. This points to the chief problem with ‘pure’ ethnographic interpretation without triangulation for objectivity or numerical analysis: thick description is merely interesting (rather than generalisable), and speculative as well.

Another problem with the paper based-survey was that in questions that required the respondents to allocate numerical values to individual responses adding up to 100, it was possible for the respondents to make an arithmetical error. In the Web version this problem could not arise, because the survey instrument does not permit the respondent to proceed to the next page unless the allocated values added up exactly to 100%.

Paper responses were added to the survey online manually by the researcher. In Q6 on one paper the response was missing 10 from the total. The solution adopted to this problem was to manually add 10 points under the category ‘other’

97 From Court to College as this was felt to have the least-distorting effect on the relative weightings of items made by the respondent.

Issues arising in relation to particular questions

Question 2: The question covering years of call to the Bar gave ranges 0–2, 3–5, 6–9, 10+, silk, other. These ranges, while inexact, were chosen on the basis that anything under 3 years is considered a ‘baby barrister’. (A ‘junior’ is any barrister of any number of years call who has not taken silk – become a QC or senior counsel.) One respondent (paper-based) inserted a supplementary range of 2–3 years – rather like the child who reports being aged 2¾, again demonstrating the different constraints on paper, as opposed to online, questionnaires. This response was adjusted to 0–2 years on the above basis.

Question 5: In relation to question 5,12 one respondent checked the box ‘more paper work than court work’ but also added a comment in the open response area. In the online version this reponse area was linked to the answer ‘Other’, so a comment here was not available to online respondents unless they were clarifying the answer ‘Other’. However, as this paper response was in the nature of a clariﬁcation of the respondent’s understanding, and did not differ from the researcher’s understanding when framing the question, the comment was ignored (not keyed into the online survey in the manual processing), as it was not possible to include it without changing the answer selected by the respondent (which was ‘more paperwork than courtwork’, not ‘other’).

Question 6:

NC4: +20% ‘Other’

NC7: Respondent on paper valued two items at 2.5% each. Online system can only handle whole numbers. Altered to 3 and 2 for ﬁrst and second occurring, respectively. At a value of 2–3% the adjustment error is likely to be smaller than other potential sources of error, known and unknown. (Same problem and solution in Question 7.)

In this question and in Question 8, I speculate that because there is a list of 10 items and only 100 points to allocate a ‘donkey vote’ effect could be at work where respondents start with a high number and allocate increasingly small (i.e. relatively decreasing) values to later items than to earlier ones. The possibility of 12 What is the nature of your practice?

98 chapter 3: Methodology such an effect is suggested by the paper-based responses, where in some cases respondents adjusted values after ﬁrst setting them at higher levels, presumably in order to meet the ‘arithmetic total of 100’ condition. The online version does not disclose changes to answers or reworkings of this kind. On the other hand, adjustment is much easier online, which militates against a donkey effect in the online version. Some of the paper responses had quite intricate totals that included small numbers (e.g. 35,2,3,7,30,3,2,3,10,15) neatly entered and with no reworkings, which suggests rough working elsewhere and copying across to the questionnaire. Any conclusions on this point are speculative.

Question 8: One respondent on paper who allocated 20 points to the response ‘Law School and other university study’ wrote alongside that response, ‘current student’, then allocated those 20 points in the ratio of 5 to law school and 15 to ‘Other university study’. This makes a material difference in terms of the sense of the question, albeit only for one respondent. It also discloses a more signiﬁcant weakness in the question itself, in that ‘Law School’ and ‘other University study’ in fact conﬂates undergraduate and postgraduate studies, past and present studies, and legal and non-legal studies, in a way that might render important issues occult. The question is directed at variations in education by formality and type, and for that reason setting out these elements separately might have had other undesirable effects (e.g. placing undue emphasis on formal university education, as well as the pragmatic reasons of keeping the questionnaire manageably short, and structuring responses as 10 elements largely for reasons of researcher convenience, so that a hypothetically even-handed respondent who allocated 10 points in each category would effectively be giving a neutral, equal-value baseline response).

Question 9: Some respondents noted ‘no experience’ with some items and left them blank. The online system permitted this.

Question 11: This question13 appeared in different form on the paper version and the web version. The paper version distributed to barristers who requested a hard copy and returned it (n=17) had 4 checkboxes (often, occasionally, very infrequently, and never) while the online version was presented as an open- response box. This was researcher error. Since respondents had a tendency to complete items with ﬁnite choices (buttons or checkboxes) this almost certainly

13 Do you go (as a registrant) to other non-Bar formal CLE sessions (e.g. put on by Leo or a commercial provider)? 99 From Court to College had the effect of reducing the number of responses on this question in the online version.

Because there was a response difference between multiple-choice closed questions and open questions, this was a signiﬁcant variation on this question.

Question 15: Respondents were instructed to restrict the matters they thought ‘critically important’ to no more than 3, with the other values just distributed across any other categories. This was done to force respondents to be more highly selective than they might otherwise have been in order to elicit the most important items on a list of important items. Again the online respondents were constrained where those answering on paper were not. Some respondents on paper selected more than three items as being of critical importance. The researcher’s choice here was between demoting all items listed as critically important to the lower category important, or (since there was no way to reduce the number without intervening in the respondent’s relative valuations) to permit more than three critically important items. There are arguments about data distortion in either direction, but I chose the latter course (n=14 or .02% of sample). The mean deviation was +2.8 critically important items per non-compliant respondent.

NC1=3+ 6 NC2=3+ 2 NC3=3+ 3 NC5=3+ 1 NC6=3+ 2

In this question, one paper-based respondent (who had given 3+1 in category critically important) also valued three items as ‘2,3’. Here the decision was to demote the item from important to not very important, the reason being that if the item did not fall entirely within important, it was closer to not being important to the respondent. ‘Not very important’ is in these terms closer to a neutral position, which the respondent might (speculatively) have been trying to indicate.

Another respondent (the same one who raised the matter of category overlap) pointed to the difficulty but complied:

The limitation of 3 in category 1 makes this tricky. I would have liked to assign ‘1’ to managing cases etc and displaying appropriate standards. The former is essential to the other ‘1’ matters and both are essential to the administration of justice generally (i.e. beyond the particular case at hand)

100 chapter 3: Methodology

Question 17: Another potential difference between paper and the online respondents appears in relation to question 17, where multiple responses were less intuitively available in the paper version, because the respondent would be required to write more than one observation in a space that could be seen as implicitly calling for only one response, even though the words ‘Multiple responses are possible’ was given in bold type at the end of question.

J. Bar survey: Qualitative aspects (open questions) – statistical software

Answers to the open ended questions were treated differently depending on the case. All were read through individually ﬁrst. Responses to some questions consisting of single words or short phrases could be sorted in Excel. Some lists were coded and sorted in Word, then in QSR NVivo 9 qualitative software. Where relational concept mapping or data mining techniques were thought useful, these were used. The treatment of each is made clear where the data is presented in Chapter 6.

(b) Semi-structured interviews – mixed-method coding and triangulation

The case study focused on the Supreme Court of Victoria, as the most senior court in this jurisdiction, and for that reason arguably the most contentious site of introduction of judicial education. Invitations were sent in mid-2007.

All thirty-ﬁve judges on the Bench of the Supreme Court at the time, including the Court of Appeal, were invited to participate in interviews. Sixteen agreed to participate, two made apologies, one declined, and the rest did not respond. Of the 16, only 14 were ultimately interviewed, due to availability problems. The sample disproportionately represented senior judges over more recent appointments. I also interviewed two Senior Counsel (silks), two junior counsel and two barristers’ clerks. The single-occasion, semi-structured interviews, planned for an hour, were in some cases shorter, and in others longer. They were carried out in mid-2007.

Given the small constitution of the court, I have not reported the interview data in a manner that might disclose the identity of respondents, or responses that could lead to their identiﬁcation. Some judges requested transcripts of their interviews and others did not. All interviews were recorded and I also took notes. There were issues with sound recording equipment or quality of recording on two of the interviews and I made more extensive notes afterwards as a result.

101 From Court to College

The 14 interviewed judges14 were from this Bench:

Bench 11F, under Chief Justice Warren, comprised: Vincent – Teague – Cummins – Smith 2 – Phillips 2 – Ashley – Coldrey – Byrne – Harper – Hansen – Chernov – Buchanan – Kellam – Warren – Bongiorno – Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – Maxwell – Neave – Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry – Judd – Vickery – Kyrou – Weinberg – Beach. While 40% is a pleasing response rate from those invited, this is put into perspective by the fact that over the history of the court there had been 92 differently constituted benches, each with a somewhat different ménage, and I spoke brieﬂy, on one occasion, to less than half of the members of one of those 92 benches. Further, it leaves the County Court and Magistrates’ Court, the workhorses of the court system, not to mention tribunals, untouched.

The responses were also skewed towards members of the court of appeal and the more senior judges; I did not receive any replies from very recent judges, and I can only speculate that judges who had been on the bench longer may be more comfortable talking about their role than newly appointed judges, who are still in a role-development stage. The insight from Harris (2002) that emotional work is done in public/private/undisclosed spheres (rather than public/private) may have relevance to the issue of trust in the context of well-established and less well established role development.

In the course of the research I have located documents (speeches and newspaper articles) relevant to matters raised in interviews or arose from the bar survey responses and analysed these using Leximancer relational data mapping tool in order to gain a measure of objectivity as check on subjectivity, which clearly cannot be eliminated from interpretation.

Leximancer is proprietary semantic mapping software first developed at the University of Queensland to generate concept maps from natural language, and now commercialised. It performs unsupervised semantic mapping of natural language (Smith and Humphreys 2006). Leximancer is an interpretive tool that adds a measure of objectivity to qualitative research because, unlike NVivo and related ‘auto-coding’ qualitative software, the data mining and relational software Leximancer itself generates (editable) codes, quantifies the number and co-location of concepts, and heat-maps them in themed clusters according to their emotional valence. The resulting visual presentation reflects more closely what is in the 14 On Bench 11F set out in the Appendix. 102 chapter 3: Methodology text rather than passing through the reader’s own distorting lenses. It is easy to read, and offers knowledge pathways through linked material (Leximancer 2010). The French program Alceste performs a similar task and is similarly ‘impressive’: ‘‘contextual methods’ … suitably applied, do provide the means of identifying precisely the kind of words which will best describe the content of a document for purposes of more detailed analysis using methods of numerical taxonomy and their graphical representations’ (Brier and Hopp 2011:110).

Leximancer contains proprietary programming, but specialist knowledge would be needed to understand it. Researchers rely on the tool without unpacking its algorithms (see for example Chen 2010; Cretchley, Gallois, et al. 2010; Cretchley, Rooney, et al. 2010; Crofts and Bisman 2010; Martin and Rice 2007; McGurrin 2011; Smith and Humphreys 2006; Watson et al. 2005). As James (1907) said, most of our true ideas cannot be veriﬁed directly.

In addition, I have experimentally tested a wide range of text from legal cases to dramatic monologues, and have been persuaded that the claims for the process in the academic literature (n= 705 papers)15 constitute a warranted assertion sufficient to make the program a good tool in the context of this study.

Examples of scholarly work employing Leximancer make its capabilities clearer. Watson et al. (2005) demonstrated Leximancer’s application to patient records and case notes, identifying relationships between data that could then be analysed quantitatively.

Walker et al. (2011) explored the cognitive incompatibility of road users with competing needs by generating semantic networks from verbal commentaries supplied by car drivers and motorcyclists. Differences in the structure and content of these networks revealed potential incompatibilities; that insight then suggested practical approaches to interventions such as road signs.

Taking advantage of the fact that writing style varies contextually (both within a grammatically correct norm and deviating ungrammatically), Prasath (2010) modelled the co-occurrences of slang words in blogs to predict the age and gender of bloggers. Using a demographically tagged corpus, concurrence of slang words appeared to be a superior predictor of age and gender. Concepts and themes of the kind Leximancer tracks show deviations from the norm (including slang) that can locate and link relationally with other co-occurring themes and concepts.

15 July 2012 total: 703 (2011: 125; 2012: 58). A running tally is kept at the Leximancer site of those the publishers know about: www.leximancer.com.au. 103 From Court to College

CHAPTER 4: CASE STUDY1

A Snapshot, and Themes Emerging Contents Part 4A: Analysis of the Bar Survey 4A.1 Questions (1–22) 4A.2 Part A conclusions Part 4B: Themes 4B.1 The semi-structured questions and the ‘reasonable judicial learner’ 4B.2 Other themes emerging 4B.3 The Judicial College of Victoria (JCV) 4B.4 Vignettes exploring salient metaphors 4B.5 Conclusions

In this chapter, Part A sets out an overview analysis of the Bar survey (detailed responses are given in Appendix A), and Part B draws out the themes that emerged from the interviews with judges. The core period of the case study is the decade from 2005 to 2015. This part moves through each question in the questionnaire and sets out demographic proﬁles cross-tabulated where appropriate across the range of levels of experience at the Bar, with explanations or comments where relevant. In the data number of years’ call is treated as proxy for experience, although there are some dangers in doing so, particularly with a small sample.

The historian and the social scientist have different tasks: to keep as much information as possible, without abstracting too much, in order to spot emerging patterns; and to ﬁnd conceptual tools that formalise information in ways that permit its analysis. The social analysis in this chapter is made at somewhat at the expense of the historian’s detail.

The four regularities in the dynamics of contention (the explanatory mechanisms are: brokerage; category formation; object shift; and certification (McAdam et al. 2002) along with Weick’s metaphor of educational organisations as loosely coupled systems (Orton and Weick 1990; Weick 1976). These are used descriptively (that is, they are non-normative, and historic) and used as a way of filtering the otherwise undifferentiated, fine-grained data yielded by the research and emerging from the wider social context at the time. 1 In this chapter, interview material is marked [BC] for statements by barristers’ clerks; [B] by a barrister; [QC] by a silk; and [J] by a judge.

104 chapter 4A: Case Study Survey

PART A: ANALYSIS OF THE BAR SURVEY

4A.1 Questions (1–22)

Q1 Bar gender

In each of the four categories of seniority (juniors 0-2, 3-5, 6-9 and 10+ years call), males signiﬁcantly outnumbered females (59.3%, 74.1%, 65.9%, and 81.2% respectively. The proportion of male to female respondents increased with seniority in linear fashion, except in the case of juniors of 6–9 years call, where the second- highest percentage of females occurred: 34.1%. The highest percentage occurred among the most recent admissions: 40.3%). The attrition rate for women leaving practice (from both branches) has been of concern for many years. However, women barristers have tended not to concede a problem of discrimination, despite evidence to the contrary (Hunter 2002). There have been several senior court appointments since then, including that of the Chief Justice, Marilyn Warren, and the positive discrimination policy for female judicial appointments announced by the state government in 2015 may have an effect on retention rates generally.

A total of 30 silks responded; of these, 89.9% were male. Bar ﬁgures give a similar proportion of 11.4% of Bar and 1.3% of Bar respectively, for male and female silks (Victorian Bar 2012c).

Q2 Years of call to the Bar

Of the 214 respondents, 27 (12.6%) were juniors of 02 years standing; 27 (12.6%) were juniors of 35 years standing; 41 (19.2%) were juniors of 69 years standing; 87 (40.7%) were juniors of 10+ years standing; 30 were silks (14%), and two (0.9%) were ‘other’ (1 ‘also an academic’ and the other ‘came in March intake in 1984’.

Q3 Main practice areas

The 210 respondents to this open question worked in 49 self-declared categories (multiple practice areas were possible). The full list of practice areas illustrates the overlap between different categories, and the difficulty of making quantitative statements based on data that shape-shifts when prodded. Just one categtory, commercial, also covers items such as contracts (but not all contracts), insurance, some but not all trade practices, and intellectual property. Similarly with crime.

105 From Court to College

An apparently simple quantitative exercise discloses the slippery nature of even quite uncontroversial labels such as ‘commercial’ or ‘criminal’. A single person’s work can be described within fairly clear parameters, but as soon as multiple work proﬁles are sought to be captured, the usefulness of the data collapses.

If quantitative researchers respond to this problem by setting up forced-choice responses to questions, they may avoid the reporting problem at the expense of the accuracy of the picture and its ability to capture nuances. And that is without the added complication of time and associated aberrations: just getting into an area, hoping to get into an area, used to be in an area.

Q4 Courts

The 213 respondents to this question worked in the 15 listed courts (see Appendix A for details). Other jurisdictions not included in the given list were self-speciﬁed by 12 people.

For the 0-2 year cohort, Magistrates’ Court work was the staple (85.5% worked in this court) followed by Federal Court (42.3%) and Federal Magistrates’ Court (34.6%). A barrister of 0–2 years standing appearing in the higher appellate courts might seem unusual, but there are three probable explanations: (1) an opportunity being given to a young junior to be junior to a silk; (2) being a solicitor of some years’ prior experience in the other branch of the profession; (3) minor appearances in chambers matters or mentions.

For the 3-5 year cohort, Magistrates’ Court work drops from being the staple (now 51.9% and below VCAT and other state tribunals (55.6%)). Half the barristers are now doing Supreme Court work, and Federal Court work had increased marginally (44.4% of barristers had work in that court and 33.3% in the Federal Magistrates’ Court (34.6%). High Court and Court of Appeal work remain constant, suggesting that experience of 3–5 years is not yet enough to attract this work without some other factor being at play (see explanations given for this work going to new barristers 0–2 years). Appearances in the superior courts are still likely, in my estimation, to be mostly minor court work or appearances as junior to silk.

For the 6–9 year cohort, Magistrates’ Court work is again the most common, but there is still a wide spread of work being done across jurisdictions. More barristers have High Court work, but the level of Court of Appeal work remains similar. Across this range and after 10 years, practice experience would be expected to be at a higher level in all jurisdictions.

106 chapter 4A: Case Study Survey

For the 10 year + cohort, At this level, work is being done in each court listed. High Court practice has dropped from 5% to 1.1%, possibly because silks do the bulk of the work and appear with more junior juniors. Court of Appeal work has risen to 20.7%. Again, practice experience would be expected to be at a higher level in all jurisdictions. At this level for the ﬁrst time Arbitration and ADR include the barrister as arbitrator rather than as counsel appearing (3.4% at this level have this experience).

For silks, work is done in each court listed, but, unsurprisingly, in the lower jurisdictions much less frequently. The percentage with a High Court practice has reached 26.7%, with this work being done as leader. The relatively high proportion of County Court work being done here is not surprising. This court has the bulk of criminal work, some of which is serious. Court of Appeal work has risen to 60%, and much of this would be criminal appellate practice. Arbitration and ADR with the barrister as arbitrator have increased to 6.7%. The ‘rustle of silk’ in the Magistrates Court at 6.7% is probably higher than it might have been in the past, before the jurisdiction of that court was increased to give it some complex and difficult work.

Q5 Paperwork/court work proportions

Of the 213 respondents, 76 (35.7%) did more paperwork than court work; 80 (37.6%) did more court work than paperwork; and 53 (24.9%) said their practices were about 50-50. Four people (1.9%) were ‘other’ (e.g. not practising).

Typically a career at the bar begins with more court work than paperwork. This reﬂects the large number of minor matters conducted before Magistrates Courts.

At 3-5 years call, paperwork begins to build up and for the ﬁrst time outstrips the court work. This will typically include minor commercial matters and company matters.

At 6-9 years call, paperwork is clearly outstripping court work. The fact that many more cases settle than ever actually get to court might be reﬂected in this ﬁgure.

This question included an option ‘other’, and one respondent noted, ‘comes in waves. Sometimes 90% is paperwork and then I have a big case. So I guess 50% court work/paper work on average but it varies so I wanted to explain.’

107 From Court to College

At the senior junior level (10+ years), barristers are appearing in court on trials which run for weeks or months at a time. There is still a great deal of paperwork, but court work here outweighs it.

At the option ‘other’, one respondent noted, ‘if mediation=court work, probably 75% court work, 25% paperwork. if mediation is NOT court work, then 50/50’.

For silks, paperwork is expected to be largely advice work (opinions), and the responses bear this out: 7 did more paperwork than court work; 13 did more court work than paperwork; and 8 said their practices were about 50-50. The rules were formerly more restrictive, and silks were not permitted to draw and sign pleadings or to appear without a junior. These rules protect junior members of the bar from competition from silks.

CLE FOR BARRISTERS

Q6 Kinds of knowledge

This question asked barristers about the relative weight they would give to different kinds of knowledge in terms of how much the respondent depended on them for their current legal practice.

Across all levels of seniority, Knowing the law (black-letter law) was prioritised (4757 total points); Knowing the system (how the law works) was a clear second (2678 points), while Using written or spoken language well was a close third (2456). This pattern was repeated, with some shifts of emphasis, in each category.

New barristers depend heavily on knowing the law, knowing the system, and using written or spoken language well.

As barristers gain more seniority the importance of people factors is growing, but it does not outstrip the three primary factors of knowing the law knowing the system and using language well.

At 6–9 years call, the three key factors of knowing the law, knowing the system, and using a written or spoken language well are solidifying as the most important and are given heavier weighting than they are at lower levels of call. Knowing people is becoming relatively less important.

108 chapter 4A: Case Study Survey

At 10+ years, the intensiﬁcation effect continues, with knowing the law reaching 29.36%.

For silks, the pattern of intensiﬁcation of the knowing the law pattern continues, at the expense of other categories (since there is a constraint of 100%). The salience of knowing the system continues to drop as the knowing the law schema intensiﬁes.

Knowing the system is most salient at 3-5 years (not 0-2, which might be expected). I speculate that this is possibly because at this stage the barrister has been around long enough to have learnt a lesson by experience, but that recedes over time and becomes less salient as the expertise involved in actually knowing the system is internalised (Dewey’s invisible ‘habit’ which makes expert responses automatic rather than deliberative). At 0-2 years the barrister is not yet aware of how much s/he doesn’t know about the system.

Q7: Open comments on Q6 were invited

Eight responses said ‘No’ (i.e. no comment). One of those said, ‘No, I think the questions are perfectly pitched’.

Twelve responses objected to the question in some way. Of those, 4 said there was overlap in categories, 7 found it difficult to allocate points, 2 referred to relative/changing conditions, 1 found the list restrictive, 1 found it ridiculous.

Law was the central theme of the answers, with ‘job’ a smaller theme.

A complex cluster of smaller issues included emotional colouring (the word important is used in 10 of the 50 responses, while essential and properly are used three times each).

Experience was mentioned 5 times: Experience is almost everything in the law

Language was mentioned 4 times:

the whole of law is so heavily based on LANGUAGE that being able to communicate (in writing, for paperwork, with solicitors and clients, and in court, oral presentation) is really the No. 1 thing; ‘using written language well’ would be higher; an advocate must have a proper command of the language and experience

The solicitor emerged as the hub of work, skills, and people concept nodes; the self (one’s) is related to practice (x2), ﬁeld, and skills.

109 From Court to College

Q8 Contribution to expertise

Respondents were asked what relative weight they would give to various forms of education in terms of how much they have contributed to the barrister’s current level of expertise.

The composite result for all barristers indicates that experience at the Bar is the form of education most highly valued by barristers for its contribution to their expertise (5189 points), followed at a considerable distance by law school and other university study (2,850) and other general legal experience (eg academic, solicitor) (1,746).

Not unexpectedly, law school and experience are inverted for practitioners of 02 years standing, although the gap is smaller.

It does not take long at the Bar for the perceived value of experience to begin to outstrip the value of university learning. Other general legal experience is now also valued slightly more highly than university education.

At 6–9 years call, experience at the bar has grown to 32%, with the gap between other general legal experience and university growing.

At 10 years call, university education has receded even further, but still accounts for close to 18%. However, ‘own reading’ is catching up, and experience is over 36%.

For silks, the value collegiality and informal talks has dropped, but formal mentorship has risen slightly, suggesting perhaps that as silks gain age and experience they relate to their own mentors (pupil-masters) in a new way as equals. This would be consistent with anecdotal evidence.

Q9 Contribution of CLE to expertise

For this question, the answer options with higher scores are less favoured than those with lower scores. Thus the least useful, Online interactive sessions, expressed as percentages, is predominantly seen as ‘mostly not useful’ (46.5%) or ‘complete waste of time’ (24.4%), with only 21.7% ﬁnding them ‘sometimes useful’ and 5.4% and 1.6% ﬁnding them ‘mostly useful’ or ‘valuable/very useful’ respectively. Online research, reading papers, and attending seminars are the top three preferred forms of CLE.

This result is entirely consistent with research I conducted at Leo Cussen Institute in 2004 (500 respondents). What this means is that the practical training

110 chapter 4A: Case Study Survey courses and universities are increasingly turning to online delivery modes for reasons of economic efficiency, since once these initially expensive services are in place, they are able to take expanding numbers without appreciable increase in cost.

It seems likely that the approval rating for on line research conducted by oneself is positive because of the habits of independent thought and research inculcated in lawyers as part of the training to think like a lawyer.

In each range, doing one’s own online research is strongly preferred. However, there are some differences in the relative strength of preferences for seminars and reading papers. Newer barristers (possibly also younger, but that is not disclosed in this research) are more inclined to ﬁnd conferences useful, and silks are less likely to do so.

Q10 Attend CLE voluntarily?

This question asked whether the respondent would attend the requisite number of formal CLE sessions if they were not compulsory.

Overall, if they were not required to attend CLE sessions, 27.4% would probably not attend. A further 24.4% probably would attend, 23.2% definitely would attend, 13.1% might attend perhaps, and 11.9% definitely would not attend. Combined positive and negative responses yield the result that 39.3% probably or definitely would not attend; 47.6 probably or definitely would attend. ‘Perhaps’ is treated as undecided. If, as Dewey says, motivation is a very important part of learning, there is a strong suspicion here that unmotivated attendance at CLE may be unrewarding because it is unmotivated.

For 02 years call, the responses were: 63.1% probably or definitely would attend; 21.1% probably or definitely would not attend. For 35 years call, the responses were: 52.2% probably or definitely would attend; 30% probably would not attend. For 69 years call, the responses were: 63.3% probably or definitely would attend; 30% probably or definitely would not attend. For 10+ years call, the responses were: 29.4% probably or definitely would attend; 57.3% probably or definitely would not attend.

For silks, the responses were: 61.5% probably or definitely would attend; 23.1% probably or definitely would not attend. These results suggest that the majority of barristers in all groups probably or definitely would attend CLE voluntarily. Several factors could be playing out in the

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‘unwilling’ group (10+ ). First, the group itself is probably too undifferentiated. This is an artifact of survey convenience; more than 5 groups become unwieldy. Second, many in this group will be mid-career busy, specialising in an area in an expert way, and less likely to be casting about for potential new areas. Third, the renewal of interest at the silk stage is coherent with the interview responses from judges indicating that the NJC Phoenix program was a welcome revitalization for later-career judges. It might also suggest that silks may be better involved as experts mentoring others rather than attending sessions as learners, given the ‘expert presenter’ format that has been established in CLE.

Q11 Non-Bar formal CLE

This question asked whether (as a registrant) the respondent went to other non- Bar formal CLE sessions (eg put on by Leo or a commercial provider).

It would have been better to ask this question as a Likert-scaled question with a range of responses, because the manual coding was time-consuming, yet the responses were mostly of a kind that could have been captured quantitively in a Likert scale.

Compiled responses were: No, never, not much, usually not, very infrequently (n=69); Sometimes, occasionally, not regular (n=20); Yes (n=56); Often (n=2)

Some named the provider (e.g. the Family Law Section of the Law Council). A few comments were more informative, but insufficient in number to supply a rich picture (e.g. I am a member of the Taxation Institute of Australia which requires 30 hours CLE per year - 3 times that of the Victorian Bar). There is no charge for the sessions at the Victorian Bar, which is disincentive to attend other providers’ sessions at which payment is required, although comments suggest that if charges are modest barristers are willing to pay if the presenter is high calibre; it depends on their needs at the time.

Q12 Post-qualiﬁcation learning

This open-ended question asked respondents to nominate the most helpful forms of post-qualiﬁcation learning for barristers.

A major theme was research, and it is related to experience and needs to be relevant to the case at hand. This is coherent with the decided preference for online research done by oneself.

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Like the interviewed judge who said the material “has to pass through my brain”, barristers have to ‘get up on their hind legs in front of the judge’ and put the case (or, if writing an opinion, as for a judge: it has to go through the brain). In the end it is a personal responsibility to get the law right to prevail in a contest “alone and without a leader” as Rumpole was fond of saying of a particular win in a case about bloodstains.

The top 3 words that repeatedly emerged in signiﬁcant relations with others included research, experience, reading for a case  learning by doing, with a real problem that directed inquiry.

Other themes were: narratives (“war stories”); a good mentor; “barristers are very generous in sharing their research results”; the Bar Reader’s Course; CLE put on by the Bar is focused on issues relevant to barristers’ practices; being in court (the experience theme); a busy practice; Getting a case in a new area of law; Getting different work now and then and having to do research.

Research, experience, reading, cases, and the law are central. In other words, there is a very strong vocational and instrumental understanding of what continuing legal education is and should be, and the models in which the current systems work foster a narrowly vocational approach to continuing legal education.

Q13 Bar and Bench difference

This question tried to get at barristers’ perceptions about the role of the judge by asking them to speculate about how it would be different: ‘What are the main differences between the work you perform as a barrister and the work of a judge of the Supreme Court of Victoria?’

This question was potentially interesting as disclosing issues that might arise in the transition from Bar to Bench. Most replies restated the traditional (obvious) roles, summed up most succinctly as “Advocacy versus decision making”.

The obviousness of the answer was noticed by some:2

“Come on! In one you are advancing a particular view, the other deciding between competing views” and

“Beyond the obvious, I have nothing to contribute here.”

2 In this, the respondents were less imaginative than Sir Maurice Byers S-G, whose piece ‘From the Other Side of the Bar Table: An Advocate’s View of the Judiciary’ points to the stresses on each at diﬀerent stages of the process (Byers 1987).

113 From Court to College

Other responses:

“You could write a book on this question. They are very diﬀerent roles.” “A judge must remain separate from the combatants.” “Barrister seeks to achieve best outcome regardless of merits. Judge these days usually tries to adjust the law so that it ﬁts the outcome that he deems right.” “The volume is much less as a barrister and the collegiate spirit much greater.” “Ask me when I’m a judge (i bet everyone will say that).” “Judge on a salary and has security of tenure.”

And my personal favourite:

“A judge decides matters. A barrister agitates matters.” The two strongest themes were ‘judge’ and ‘case’, with the judge the central focus and most emotionally relevant, and the barrister within the concept nodes relating to the case but also overlapping with the judge. At a ﬁner-grained consideration of themes, ‘barrister’ became salient.

Barristers’ concept-words related to their own roles were more numerous and more precise, and this coheres with the expectation that self-schemas related to legal role, and role-schemas related to the nature of the role experience, would be more complex (in Geertz’s term, ‘thicker’) than for those merely imagined about the judge, who is an ‘other’ within the legal constellation. (With barrister as the relator-concept, 31 connections were built: judge, barrister, case, work, client, law, decide, evidence, advocate, court, different, arguments, legal, particular, decision, research, preparation, required, role, outcome, determine, advocacy, persuade, issues, position, competing, time, best, question, instructions. With judge as the relator-concept, 16 connections were built: judge, barrister, law, legal, client, arguments, case, work, evidence, decide, competing, role, outcome, issues, instructions, question.)

Q14 Appointment system

This open question was aimed at exploring perceptions of the Bench—Bar connection: ‘Bench and Bar have traditionally had close ties, and in the past the Bench has traditionally been drawn from the ranks of the Bar. Do you have any comments about the traditional system?’

A Leximancer query was run on this data seeking a pathway between “solicitor” and “judge”. Such a pathway might conceivably have run through skills, knowledge,

114 chapter 4A: Case Study Survey practice, and sense to get to ‘judge’, but it does not  the responses strongly indicated that to get to judge which is ‘heat-mapped’ for greatest relevance (shown by a red circle) access is through the Bar: the path is straightforward: solicitor, Bar, experience, judge.

The individual comments support this interpretation:

“I think advocacy prepares a barrister to become a judge by learning about the court environment – living and breathing and working in the system” “A sprinkling of non-Bar judges is good for the mix, but if you get a whole bench full of people without experience, and no real knowledge of the law” [sic] “Traditional system was the best in that it usually produced Judges who had a wide experience of Court work and how the Courts operated. Again the key ingredient is experience. How can an academic or a solicitor without years of experience in preparing cases and appearing in courts have any prospect of knowing what is required of a judge or be able to act with impartiality and dignity necessary to earn the conﬁdence and respect of the community at large and in particular litigants” This is an emotionally salient topic for barristers, whose prospects of being appointed are greatly diminished by the size of the Bar relative to the number of appointments.

Only two replies mentioned women or gender, although, anecdotally, perceptions of affirmative action in appointments can create resentment as it is perceived to diminish men’s chances:

“The traditional system is safe! To get the best and brightest judges the government will need to attract them. Often, particularly women, simply cannot be bothered with ‘playing the game’ at the bar and so do not fall within the traditional categories. There is a perception that people from outside the bar cannot be good judges. At one level that is true as they sometimes do lack the practical evidence skills and day to day experience gained at the bar. However, the additional life experience outside bar can only be a good thing, can’t it?” “I think the Bar is a very good training ground for the Bench. Those who have not practised at the Bar generally lack the understanding of procedure and the running of a trial to easily transition to the Bench. These are not skills which can be taught, they must be learnt through practical experience.” “The ‘tradition’ of drawing judges from the ranks of the bar is strongly based in common sense. Without prior court experience as a barrister, a judge cannot do the job as well as one who has experience as a barrister.” “Essential” “Obviously the Bar is logical source for the Bench. They understand procedure, ethics, evi-

115 From Court to College

dence and the decision making process” “The traditional system is logical and proven.” “With the exception of the Court of Appeal how can you supervise a trial as a judge and protect it from appeal ( civil and especially criminal) if you have not run trials at ﬁrst instance as a barrister.” “It’s right.” Most responses stressed experience. Some felt the system had fallen away, some mentioned ‘political’ appointments (mates), but some also thought there was a need for diversity:

“No longer is this so - the bench has had so many political appointees that it is difficult to retain respect for them” “The Bar does not currently reflect the diversity of other groups in the legal industry (such as the solicitors). The traditional system of appointment would make the judiciary even less diverse.” “It is good in so far as it produces judges who understand the trial system; but poor in so far as it reflected a narrow group of people (in terms of gender, race and class). One response to this problem is to broaden the diversity of the bar, in which some progress has been made”

The comments in response to this question were longer than for other questions, and more rhetorical (arguing a position). Again, this is not surprising, given (1) self-interest but also (2) the Bar’s strong belief in the value of experience as the chief form of learning, as disclosed in earlier responses.

WORKING WITH JUDGES Q15 Roles of a judge

Respondents were asked, ‘Which of the following roles are the most important for a judge of the Supreme Court of Victoria to be competent in exercising?’

Fifteen roles were listed, and respondents were requested to select no more than three as critical. The list repeated items 1–9 in Q 6 from the judicial perspective, and added six new ones, drawn from the NJC curriculum:

1 Knowing the law (black letter law)

All respondents considered this critically important (66.9%) or important (33.1%).

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2 Knowing the system (how the law works)

Most respondents considered this critically important (20.4%) or important (73.94%); only 5.7% judged it not very important.

3 Knowing people (having contacts and knowing who’s who)

Only 0.6% considered this critically important; another 12.3% considered it important, but most respondents considered this not relevant (42.6%), and 36.84% considered it not very important. This role received the highest disapproval rating: 7.7% judged it not desirable.

4 Understanding and getting on well with people

Most respondents considered this important (66.7%) and 5.8% thought it critically important. 21.8% considered it not very important and 5.8% considered it not relevant.

5 Using written or spoken language well

Most respondents considered this important (72.2%) or critically important (25.9%); only 1.9% judged it not very important.

6 Being senior, having depth of experience

Most respondents considered this important (66%) and 21.2% thought it critically important. 10.3% considered it not very important and 2.6% considered it not relevant.

7 Business acumen, managerial skills, planning

Only 1.3% considered this critically important; another 24.5% considered it important, but most respondents considered this not very important (47.1%), and 26.5% considered it not relevant. One person (0.6%) judged it not desirable.

8 Applying the law

Most respondents considered this critically important (72.2%) and 27.8% thought it important.

117 From Court to College

9 Managing cases, the court room and one’s work

Most respondents considered this important (79.6%) and 15.1% thought it critically important. 5.3% considered it not very important.

10 Making decisions and giving reasons for one’s decisions

Most respondents considered this critically important (62.9%) or important (37.1%).

11 Displaying appropriate standards of judicial conduct

Most respondents considered this important (68.2%) and 26.8% thought it critically important. 5.1% considered it not very important.

12 Understanding the relationship between the judiciary and society

Most respondents considered this important (63.1%) and 11.5% thought it critically important. 22.3% considered it not very important; 3.2% thought it was not relevant.

13 Keeping abreast of developments in knowledge and in public policy that impact on the law

Most respondents considered this important (66.0%) and 8.2% thought it critically important. 21.4% considered it not very important; 4.4% thought it was not relevant.

14 Using technology in and outside the courtroom

No one considered this critically important, but 42.9% considered it important. However, 49.4% considered this not very important and 7.1% considered it not relevant. One person (0.6%) judged it not desirable.

Here the perspective of the Bar appears to differ from that of the courts. In all jurisdictions from the turn of the century, technology in courts has been a focal point for educators and administrators, as it is strongly linked with efficiency measures (AIJA 2002; Chapman 2005; Cossey 1999; Leith 2001; Morris 2004; SCV 2002).

15 Managing one’s health and well-being

Only 3.2% considered this critically important, but 62.4% considered it important. However, 24.8% considered this not very important and 9.6% considered it not relevant.

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This question generated some interesting variations based on years of call to the Bar. The set of small snapshot graphs in the detailed data in Appendix A gives the gist.

By the time barristers are of 35 years call the primacy of these top 3 has softened, although the same choices are made in the same order as a 02 years. At 69 years call the top 3 are still the same, and they have even grown in importance, but they have drawn closer together, perhaps suggesting that they are seen as a constellation of related ideas. At 10+ years ‘applying the law’ assumes a renewed urgency.

Possible explanations include having built up frustration at losing cases when judges have applied the law poorly; if present, this effect could be enhanced by the changing nature of practice in the later years, with more higher court work contesting difficult points.

When we come to silks, we see the first significant departure from the pattern of 1,2,3 in the top 3. Now we find a top 2. No 3 in the other lists is now No 1: Making decisions & giving reasons (76.9%); Knowing the law remains in second place, but Applying the law has slipped to 40%, equal third with appropriate standards of judicial conduct.

Q16 Open comments on Q15

Here, the strongest emergent themes were courtesy, listening, patience, understanding that counsel is not driving the case (judges applying pressure to settle); “no need to be rude”; “rude/sarcastic or dismissive conduct”; sense of justice; good instincts in relation to human behaviour; intelligence (hard work cannot substitute); correct and appropriate ﬁndings of fact (ability); interpersonal skills. Other themes were of broader awareness of humanity and the role of counsel in quality.

Q17 Circumstances of learning

Taking the same list of 15 roles, respondents were asked which should be prerequisite to appointment, and which might be learned or improved on the job (e.g. by training)? Multiple answers were possible.

119 From Court to College

This question explores barristers’ ideas about the limits of learning and the need for speciﬁc learning opportunities if some things might be learned on the Bench after appointment.

The categories are reproduced in full in Appendix A.

In brief, knowing the law (74.3%) and applying the law (61.1%) along with using written or spoken language well (58.2%) and being senior, having depth of experience (52.5%), were considered prerequisites for appointment. These are also the areas that prompt the greatest outcry when ‘political’ appointments are made (‘party apparatchiks’ and ‘tennis buddies’ from Labor and Liberal respectively).3

Most things were understood as able to be improved by bench experience (e.g. managing cases, the court room and one’s work (76.3%), making decisions and giving reasons (67.9%), applying the law (59.2%)). More interesting are the things that are not as widely seen as being improved by experience on the bench, including knowing the law (47.2%), using written or spoken language well (37.3%), and business acumen, managerial skills, planning 28.1%.

Collegiality was not widely seen as an improver; the strongest effect was in displaying appropriate standards of judicial conduct (34%), with everything else even lower. Because multiple answers were permitted, this means that collegiality is discounted in absolute terms, rather than being relatively less useful than other things.

Life experience was given similar lukewarm support, for understanding and getting on well with people (49%), managing one’s health and well-being (46.3%) and understanding the relationship between the judiciary and society (32.5%).

Private study was seen as somewhat useful for knowing the law (38.4%) and keeping abreast of developments (36.5%), and using technology (34%).

Training (eg judicial college) was seen as useful for using technology (66.7%) and managing cases and work (53.3%), but less than half of the respondents thought it could keep judges abreast of developments (47.4%) or give them business acumen or managerial skills (40.5%), and even fewer thought that it was useful for learning judicial conduct (35.8%), making decisions and giving reasons (35.2%), managing one’s health and well-being (34.2%), knowing the system (27%), applying the law (25.5%), or knowing the law (25.2%).

3 Interviewee [QC].

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Understanding and getting on well with people was seen as ‘not possible to learn after appointment’ by 11.6% of respondents, but apart from that, anything is learnable one way or another, but not necessarily through formal education.

Roughly half of respondents thought knowing people was not relevant after appointment (50.3%) while 27.5% thought business acumen, managerial skills, and planning were not relevant.

Q18 Open comments on Q17

Because responses to Q17 disclose an apparent view that learning various things is no longer possible once on the bench, the comments are given in full in Appendix A, as they shed light on why a barrister might think, for example, that it is not possible to learn law once on the bench. However, the views were disparate, and not possible to summarise in a useful way.

Q19 Top 3 characteristics of judges

Respondents whose practice involved court work were asked to nominate the top three characteristics (in court) of excellent judges. They offered 466 individual words or phrases which can be grouped together in themes, with some overlap. The question asked for ‘characteristics’ (rather than, say, ‘values’) in order to be as neutral as possible. The four major themes that emerged were: relevant, law, sense, and experience.

At a ﬁner granularity, mid-range conceptual themes emerged: self-effacing, fairness, whole, and skills cluster around relevant, but judgment stands outside the suite of characteristics of the judge.

Of the concepts listed (based on a numerical count rather than the connections generating themes), knowledge, ability and behavioural characteristics featured.

 Know/knowing the law (n=9)

 Outstanding/deep/good knowledge of the law (n=3)

 Knowing people/people skills/communication/communication skills (n=14)

121 From Court to College

Able to/Ability to … was mentioned 32 times in combination with a range of other words, whereas ‘being’ was mentioned only 4 times, and ‘ having’, the marker of ownership, something possessed, appeared only once, and then merely as “View that court participants each have important roles”.

Decisions/decisiveness/deciding: also 32 mentions. Responses ranged from ‘Capacity to make decisions’ to ‘Not allowing their courtesy to prevent them from being decisive’. Again, deciding is the nub of the judicial task, and when the connections of these terms are queried, a dense network links ‘decision making’ and ‘decisions’ to these modiﬁers (including quick, quick but effective, reasoned, decisive, prompt).

Listen/listening/listening skills/active listening (n=38). In addition, one response was, ‘Gradual isolation of dispositive issues in the case’ which I would also read as willingness to listen to a position. This willingness to listen was frequently linked with non-bias, listening to a position, give a fair hearing.

Courteous/courtesy: 36 instances, four with recipients named (one ‘to counsel’, three to ‘all parties’, ‘all involved’, ‘lawyers and lay people alike’). One wanted ‘courteous but ﬁrm’, another linked courtesy to patience. One was linked to mindfulness about the difficulty of counsel’s role. Another 5 referred to polite/ politeness.

Patient/patience was mentioned 20 times.

For details of the less frequent characteristics, see Appendix A.

The two all-important words for those outside the legal system are ‘wisdom’ (strongly associated with judges) and justice, but the responses demonstrated, as I would argue from experience, that these philosophical/political words are not the natural choice of lawyers using words as tools within the system. (cf the book by journalist Whitton (1998): the subject as catalogued is ‘Denial of justice’ and the thrust of his polemical attack, sustained over several years, is that lawyers have nine dishonest ‘magic tricks’ and using the word ‘law’ instead of being prepared to discuss ‘justice’ is one of them (see also Anderson (1999)). The survey responses here tend to conﬁrm Whitton’s perception about relative frequency of usage of the term, but distort the reason, which I speculate might lie in the legal/liberal separation of law and morality. Thus these respondents are not averse to the idea of justice (they use ‘fair/fairness’ freely, and obviously, as advocates, want ‘justice’ for their clients). But they use the less diffuse term. Justice as fairness is classic Kantian legal-liberalism.

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Wisdom appeared only 5 times in these responses, twice on its own, and three times in combinations with, I interpret, different senses entailed by the syntactical forms:

 wisdom and common sense (= these go hand in hand but are different)

 wisdom/balance (= you could think of wisdom as balance)

 wisdom: sound judgment (= wisdom means sound judgment).

The way lawyers think about wisdom is, I think, well captured in this extract from a keynote address by a judge from another state Supreme Court:

The gap I want to talk about is the gap between knowledge and wisdom –knowledge of the techniques of the law and the wisdom necessary to be a good lawyer. In referring to wisdom I’m not referring to ethical principles of professional conduct such as are covered in Ethics courses. I’m talking about the sort of wisdom that produces a well-balanced person equipped to use the law responsibly and beneﬁcially, a lawyer who is ultimately a contributor to the stability and good order of our society. – Justice Palmer, to CLE conference (2006)4

Justice appeared only 5 times, twice on its own, twice in company with fairness/justice, and once with balance (which had also appeared in combination with wisdom):

 sense of justice and fairness (= there is a sustainable distinction)

 proper sense of justice/fairness (= justice and fairness are the same thing but they have to be understood properly, i.e. legally)

 balancing natural justice with the need for concise focus on relevant evidence (= a technical term for procedural fairness, ‘natural justice’) The distinction between ‘natural justice’ as a term of art and ‘justice’ as a philosophical term (and thus motivated, as Dewey says) appears not to be salient to the press. For example a headline reporting the deportation case of Dr Haneef, This is not justice: lawyer (Age/AAP 2007) goes on in the body of the article to give the lawyer’s actual words, which list a string of very speciﬁc complaints and omissions, as:

The lawyer … says his client is being denied natural justice … “Even people charged with serious oﬀences have the right to make a bail application … There’s no sort of safety net, there’s no way of the system being balanced for our client to be accorded any sort of rights or natural justice that we are all entitled to receive under our system.” ‘Justice’ is amorphous and abstract. Natural justice, like rights, is more readily deﬁned procedurally. For a lawyer there is an important distinction. For a

4 The Honourable Justice Palmer, Supreme Court of New South Wales, at College of Law, Sydney, 11Nov. 2006.

123 From Court to College newspaper, the difference may be no more than an unmotivated trimming of a heading to fit, or a strongly motivated allegation of dishonesty and corruption such as that levelled by Whitton. It is a reminder that ‘jargon’ in an expert field is not necessarily obfuscating (Hudson 1978). It may signal important refinements of thought within the discipline. The importance of getting threshold concepts right in interdisciplinary work has salience here. The flip side is that specialised language operates as a barrier to would-be boundary-crossers.

In 2006 the Chief Justice of Canada gave the 14th AIJA Oration in Judicial Administration, titled The Twenty-First Century Court: Old Challenges and New, in the Banco Court at SCV(McLachlin 2006). Her Ladyship said,*

To do their job well in this world  to render just decisions in a timely manner and maintain public conﬁdence in the rule of law - today’s courts must retain old virtues and cultivate new ones. As in the past they must be: 1) knowledgeable; [72] 2) independent; [1] 3) impartial; [4, plus fair/bias etc] 4) connected to society; [1] 5) possess absolute integrity. [0] But they must also be:

6) more diverse, reﬂecting our society; [0] 7) more eﬃcient; [6] 8) better at communicating with the public; [14] (cf listening [38]) 9) better educated. [0] Above all, they must:

10) possess conscience [0] and courage. [0] * [Numbers in brackets indicate incidence in survey, raw count]

Judges repeatedly refer to 2, 5, 10 in speeches (independence, integrity, conscience, courage), but these were named in only 1 response. No 1, Knowledge, was conﬁrmed as outranking all other responses. While McLachlin CJ stressed communicating with the public, the Bar prefers judges to see their job as listening (to advocates putting cases) and being courteous and polite while doing so.

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Q20 Paperwork problems

Respondents whose practices involved paperwork were asked whether there was anything judges could do to improve any problems they experienced with paperwork in proceedings generally, or to improve their written judgments.

The themes emerging from these open-ended replies focused ﬁrst on judgments and ways in which judges might improve them, or the process, and the way they were written, including statements of facts, brevity, style, briefer paragraphing and expression, as well as refraining from restating the law each time they wrote a judgment. One respondent thought judgments that had been dictated were inferior to those typed. The next most important theme concerned things judges could do for paperwork efficiencies (e.g. in standardizing their responses to pleadings, as well as actions the parties could take in relation to documents, and submissions –which judges do not always appear to have read, despite the care that goes into their production).

CLE FOR JUDGES

Q21 Awareness of NJC Standards and Curriculum

This question deﬁnes the level of awareness of JE at the time, which was low. The answers set a baseline for later research.

Taken together, the high value for ‘vaguely or generally aware’ (62.7%) means that JE has at least ‘crossed the radar’ of the Bar, although a full one-third of the Bar had no idea that JE was being shaped with this degree of precision (since those documents are the backbone and ﬁrst instantiation of the formalisation movement). ‘Quite conversant’ is a generous term that encompasses any kind of non-expert familiarity (implicit in the higher-level ‘very conversant’, which no one claimed), so 3.8% seems low.

Dates need to be kept in mind in interpreting this result. The documents in question (Roper 2006, 2007) were new then. These responses can contribute (weakly) to theories about loose and tight coupling of a posited BenchBar dyad, but they are more useful as a snapshot made close to the time of introduction of the idea of a framework for JE, as they establish a comparator point for future inquiries.

125 From Court to College

Q22 NJC Standard [Open response]

Background information was supplied about the NJC Standard and Curriculum. A quote from the Curriculum setting out its core 8 elements was supplied. Respondents were told, ‘For reasons of judicial independence the curriculum is developed and controlled by judges themselves, and learning is not assessed’ then asked, ‘Do you have any views about Judicial Education in these terms, or would you be inclined to modify it in any way (how)?

The themes emergent from the responses were strongly related to judgments (not surprisingly, since that is the central role of the judge: making and justifying judgments).

Connected with the theme of judgments but less strongly emergent, were themes of writing (51% connectivity across respondents), pleadings (11%), paper (7%), legal (7%), submissions made to the bench (4%), substantive law (3%), and brevity (‘shorter’) (1%).

Concepts occurring within those themes suggest concepts-in-use that establish the outlines of a schema of JE in the minds of a Bar relatively uninformed of its detailed contents, but primed by the earlier survey questions.

SECTION 6

This section consisted of formal permissions, closing off of survey (not discussed here).

The survey results analysed above are set out in greater detail in Appendix A, along with graphs. The survey was the ﬁrst exploratory stage of research, designed to lead into the interviews with judges (discussed, along with other material from further aﬁeld, in Part B following).

Part 4A conclusions

A summary of the themes emerging from Part A follows. What all this might mean for the ﬁeld of JE and for future research is considered in Chapter 5.

Anecdotally, there is signiﬁcant cross-subsidisation of barristers’ practices from external sources of income (parents, spouses, savings, or independent wealth).

126 chapter 4A: Case Study Survey

This is close to universal for the first few years of practice. The only exceptions are those who come on a promise of being ‘looked after by a firm of solicitors’ [BC]. The first three months of the 6-month reading period are briefless pending signing of the role of counsel. During that period attendance at the Bar Readers’ Course is compulsory under the Regulations (Victorian Bar 2011). After signing the Roll briefs can be accepted but are not necessarily offered. There is a tradition of predatory solicitors briefing new barristers and then not paying. In the second three months briefs can be accepted but are completed under the general supervision of the pupil’s mentor. The master–pupil relationship is crucial and for life and is reinforced formally on occasions such as welcoming ceremonies.

Something difficult for salaried employees to understand, which all new barristers are warned about, is the traditional period of ‘starvation’ between signing the roll of counsel and making a decent (never a ‘regular’) income. This was traditionally expected to be seven years, and in the past often did take that long, but ﬁnancial pressures are such that young barristers cannot afford to ‘give it a go’ [BC] for more than two or three years, and often give up faster if they are not getting ahead or can do better elsewhere. The clerks feel they can spot fairly early who is likely to succeed but ‘they need greater determination to make a go of it these days, you have to be businesslike about it. Sometimes really good ones just don’t get the break’ [BC]. The clerks help barristers more in the early years of practice; later the more senior juniors and silks subsidise the beginners through their clerking fees. Fees are 5% of income. In the early years this is a great boon, as a barrister who receives little work has full secretarial backup (mailroom, accounts, telephone services, general list services and membership) for a very small fee. Barristers’ clerks do not involve themselves in education, that is the province of the list Chairman (generally a silk). ‘We help by trying to get work going their way, and also making sure they’re moving up as they get better’ [BC].

However, the situation of a sole practitioner in an overcrowded profession is difficult. On 10 October 2014 a barrister of 30 years’ standing rang the Jon Faine talkback program on ABC local radio 774. He previously had a successful practice, but it had collapsed. He’d had no work for 9 months, and he was battling depression. The same day, a barristers’ clerk reported that ‘it had been pretty grim for some time now – there is probably work for about 500’.5

Generally, experience in court would be expected to correlate roughly with years of call. While success at the Bar varies, those who are still there after 5 years have gained experience working as a barrister (unless they rely heavily on outside 5 Personal communication, 9 October 2014.

127 From Court to College

ﬁnancial support – and even then, they have at least gained experience of being a member of the Bar). Given the emphasis on experience in my study, I consider this the most important demographic factor. Five years’ experience is a minimum statutory condition for appointment to most courts. After 10 years6 a junior is considered a ‘senior junior’ and I have not reﬁned categories of seniority beyond that point, except for silk. However, many very senior juniors never take silk.

Bar statistics indicate that the proportion of females joining the Bar is increasing (Victorian Bar 2012c). However, there is a higher attrition rate for women.7 There is a large literature on gender in the law, much of it in the critical/feminist strand of scholarship, which I have not researched in any detail.

For an excellent article by a barrister on how solicitors should go about brieﬁng, and why, see Lex Scripta (1999). In the course of explaining how to make the best use of this symbiotic relationship, the author makes ten points, each of which relates to some aspect of communication, and concludes that requesting feedback, which members of the Bar are generally happy to give, ‘is in the interests of both branches of the profession, and our clients’ even when standards are already high. Effective communication with clients is now a requirement under Practice Rules.8

The term ‘silk’, once colloquial, is now seen in documents such as media releases, presumably because ‘Queen’s Counsel or Senior Counsel’ is unwieldy by comparison. The procedure for appointing silks was changed in June 2012 (Victorian Bar 2012a, b) and again in 2014, when silks were given the choice of designation as SC or QC (VicBar 2014).

Nearly three decades before this survey was undertaken, in an edition of the University of New South Wales Law Journal devoted to the judiciary, Gyles QC, then President of the New South Wales Bar Association, wrote that unfortunately, there were ‘signs that the status and prestige of the judiciary are declining’. After stating the purpose of the system and the need for conﬁdence in it, he added:

In the end, it is the capacity and temperament of the judges which will gain this confidence and this respect. Quality is required, and recruitment of the best qualified candidates is necessary. 6 Ten years at 20 hours per week yields approximately 10,000 hours (a figure recurrent in the popular and press and consultancy businesses as the benchmark for expertise in experience-based practice). This is generally based on Malcolm Gladwell’s (2008) book, Outliers, which is in turn based on Anders Ericsson’s work (Gladwell discusses this online (https://youtu.be/XS5EsTc_−2Q). However, this has been debunked on several grounds, including its lack of consideration of the quality of the time spend (which Ericsson himself did address. For a non-academic summary of the arguments debunking the theory see https:// www.makeuseof.com/tag/10000−hour-rule-wrong-really-master-skill/. 7 The Law Institute of Victoria (www.liv.asn.au) was conducting a large-scale study on this in 2012. 8 Professional Conduct and Practice Rules 2005 (Vic) r 39. 128 chapter 4A: Case Study Survey

Being a judge is not for the enthusiastic amateur. It may be trendy and fashionable in certain circles to assert that it is not necessary to appoint experienced and capable barristers as judges, and that to do so is merely elitism. Claims are made for the appointment of academics, government lawyers, solicitors, and even laymen. This is to mistake the process. (Gyles 1987:186) The Bar’s view of the expertise required of judges remains clear from this survey: that knowing the law and being able to apply the law, and having experience, and mastery of language, are centrally important and are not conducive to learning through training, although anything is learnable one way or another, somewhere along the line, but not necessarily through formal education.

Training (eg judicial college) was seen as useful for non-core skills such as using technology (66.7%) and managing cases and work (53.3%), but less than half of the respondents thought it could do other things, and in particular, understanding and getting on well with people was seen as ‘not possible to learn after appointment’ by 11.6% of respondents.

I did not enquire about ‘leadership’ since it was not on the national curriculum. However, I am aware of unsuccessful attempts to promote the idea of leadership training at the Bar a decade ago.

The perception that there is a political tendency to appoint ‘mates’ or lawyers lacking court experience (departmental policy advisers, inexperienced women, solicitors, academics) for reasons of political correctness, as in the Andrews premiership, or dislike of judges and the Bar, as with Attorney Hulls – is, anecdotally, strongly felt at the Bar, and with good reason in many cases, although the appointment of someone such as Neave J directly to the Court of Appeal (from academia) is unexceptionable. However, it is quite likely that Neave J would not have accepted appointment as a trial judge for that reason (having academic expertise rather than courtcraft).

Giles QC puts the need for situated experience more colourfully:

It may be comforting for a lawyer to be cradled in the security of a university, a government department, a large corporation, or a ﬁrm of solicitors, but, if that career choice is made, that lawyer may develop considerable expertise, but cannot masquerade as a courtroom specialist or expert. To take any other view is to treat the litigants as guinea-pigs for untested and untried appointees. Of course individual academics, corporate lawyers, government lawyers or solicitors may turn out to be adequate judges. Some have. However, the chances of this happening are not high and it is certain that there will be a considerable amount of “on the job” training to the disadvantage of litigants.

129 From Court to College

What is also certain is that the chances of a satisfactory appointment are far higher, and the risks to the system far less, if judges are drawn from those best qualiﬁed by experience. A consultant physician might turn out to be a good heart surgeon with some training, but the chances are not nearly as good as making a selection from amongst heart surgeons. The survey responses, including open comments, make it clear that this is still a good summary of the Bar’s view on appointments. In brief, situated knowledge and experience are necessary, and exceptions prove the rule.

Research on the nature and development of expertise and the limited transferability of tacit knowledge (the ‘stickiness’ problem) was discussed in Chapter 2, along with a claiﬁcation of the meaning of virtue (arēte) and ‘practical wisdom or prudence’, (phronēsis) (Risse 2001): the arēte of an object is the excellent performance of its function ... [and can] be understood as referring to moral virtues ... Phronēsis is an intellectual virtue ...The prudent man is good at deliberation. For a judge, being wise is ‘being the best you can be’, which links wisdom with arēte – so in the judge these two ideas meet as the core attribute of the role: this doesn’t happen in any other profession, and for a judge the role is to exercise ‘legally determinative wisdom’). What has been identiﬁed in the survey is that the Bar thinks judges need knowledge, and the general populace thinks judges need wisdom – but since wisdom and arēte meet in the personhood and function of the judge, what is needed in JE is ‘educare’-stye education for (Deweyan) growth; that in turn implies a focus on method.

The upshot is that it is still better to make a good appointment than to try to retrain or upskill a poor choice through training (quite apart from objections to training as a condition precedent to appointment (Dowsett 1998)); and that a good lawyer who can apply the law and use the language well has already mastered what it takes to be a good judge, and will develop arete in situ if possessed of motivation given the opportunity. However, the trend is clearly in the opposite direction, largely for reasons of increasing diversity on the bench (Gleeson 2001, 2003; Hunter 2002).

130 chapter 4B: Case Study: Themes and Conclusion

Part 4B: Themes

Contents 4B.1 The semi-structured questions and the ‘reasonable judicial learner’ 4B.2 Other themes emerging 4B.3 LCI and JCV: The tight couplings of habit in continuing legal education 4B.4 Vignettes exploring salient metaphors 4B.5 Conclusions

Part A set out a snapshot of education and experience at the Bar, from survey responses. This part of the chapter sets out the themes emergent from my interviews with judges and surrounding inquiries. This more directly qualitative part of the research (Chesebro and Borisoff 2007) is concerned with emergent themes and the schemas at work in people’s understanding of judicial education. ‘Identification and refinement of thematic categories is a major aspect of qualitative analysis’ and findings from qualitative research, in theory, can inform broader-based, more systematic reviews (CASP 2006). This reflects the importance of language, including narrative and metaphor, in shaping law.

4B.1 The semi-structured questions and the ‘reasonable judicial learner’

The themes emerging from the interviews (responses to semi-structured interview questions) are grouped under the following: (a) Construing the reasonable judicial learner (b) Overview of responses to individual questions Other themes emerging follow in 4B.2.

To avoid implying quantiﬁcation I try to use the phrase ‘judges said’ as a neutral term meaning ‘one or more judges said’. Quotation marks are used for quotes, other material is paraphrased to capture recurrent themes. I do not give individual judges identifying codes for two reasons. One is that they are few in number, so that view X expressed by judge 1 is readily collated with view Y, such that it could disclose the identity of Judge 1 to an alert reader. Some of the judges did give permission to use their names, but since identity is not germane to this exploration, I have left it out. Further, since the interviews were exploratory and semi-structured, the data are in any case not suitable for secondary analysis (Heaton 1998).

131 From Court to College

In two places I have used a notional 5-point Likert scale to range the opinion across a spectrum, once in relation to judicial writing courses, and once where I place ‘composite judges’ on a continuum reﬂecting the outer limits of difference. This is a device for the purposes of reporting. No judges were asked for scaled responses, and no suggestion is made of a statistically signiﬁcant spread.

(a) Construing the reasonable judicial learner

What would it mean to be a ‘reasonable’ judicial learner? How would a reasonable judge respond to the idea, and the program, of judicial education? In my interviews with 14 judges, the responses were varied and individual, but some themes emerged. I have used these to group individual responses under four ‘stances’.

The stances are categories, in one sense ‘ideal’ types (Bürger 1987; Weber 1952). They are sharper-than-real, frozen in order to be named, labels for dynamic states in which different judges may ﬁnd themselves, depending on the conditions (environment) they are experiencing when they are considering their response to a problem, activity, or program, or are faced with an opportunity to engage in conscious learning in some way.

However, they are also composites, and thus closer to the plural form that is beginning to be recognised in the social sciences (e.g. moving away from the ‘sharp delineation of markets and hierarchies’ (Bradach and Eccles 1989)). A range of four positions is sufficient to capture what could be called the ‘home base’ JE schema at work, at least at the time of the interviews. As a composite, each is like a small-scale judicial Zeitgeist. Understood as cultural schemas, they would be expected to be overlapping and relatively stable but not ﬁxed (Strauss and Quinn 1997).

Anything given in quotation marks is an exact quote from an interview, but they have been mixed together both for anonymity and by way of summarising the data.

Each stance is reasonable. Each is a position. Each reﬂects a different angle within a relatively culturally cohesive group. Only in Stance 1 was there any rhetorical argument (for the program). The counterpart would be Stance 5 (rhetorical argument against JE) but this position did not in fact emerge from the interviews. Given the circumspection of judges in general, and also of these judges in interview, it would be surprising if Stance 5 emerged in a single short interview with a researcher. As Detmold (1984:250) describes judges,

132 chapter 4B: Case Study: Themes and Conclusion

Commonly, great judges talk of their lives as lives of service to the law; of clear-headed, rev- erential respect, rather than heroic idiosyncrasy.

This accurately captures my own impression of stances 14, although it points most clearly to Stance 3, dutiful service.

Reasonable Learner Stance 1: ‘The only thing keeping me in this job’

A judge who has been on the bench for many years said that having things to do outside the judicial role kept him sane (a particular hobby which involved participation with other, regular people (non-lawyers), a delight). Judicial education was of a similar nature, affording the opportunity to meet others with different perspectives.

Appreciation of the chance to move outside the home bench can be particularly felt after a long period on the bench, or at the initial transition to the bench. But the experience of those assisting with orientation is what makes the program helpful. Dewey insists that knowledge is experiential, ‘one aspect of the knower’s experience’ (Cohen in [MWv15xiii]). Judges do not watch each other in court in the normal course of events (though some experimental peer review programs have done so in the USA (Kearney 1999) and in Australia.1

‘Judicial education is what keeps me in this job’ ‘The NJC’s orientation sessions are excellent. They are run by experienced judges and I found it very helpful.’ A judge at Stance 1 is experiencing meansends integrated actions, in Dewey’s terms. This is what we hope education might be:

human actions are at their best when each of them is both means and end, that is, useful for what it produces and enjoyable for what it is. A ‘coalescence’ of instrumental and consumma- tory value … (Lachs 2003:119) This judge might not feel the same way about judicial education next week, and might even occasionally take the perspective of Stance 4, particularly after a bad experience of wasteful busywork at some education event. But a judge who stays in this space for most of the time experiences JE as worthwhile to that judge, in its present form.

1 For example, as discussed by magistrates at AIJA conference, Canberra, 2006, and in continuing research by South Australian academics Mack and Roach Anlieu, particularly on the ‘emotional work’ of magistrates.

133 From Court to College

Reasonable Learner Stance 2: ‘I am very keen on real education but we are so busy!’

Judges, including some who have been involved in developing legal and judicial education, told me that it can be too easy to assume that judges are wilful and not interested and unhelpful in supporting programs when in fact they are just relentlessly busy and have no emotional space or time outside difficult work they are trying to perform right now in order to drop that to attend a more general and diffuse education experience.

‘So many times there are things I would like to go to, and I just can’t, and I feel bad about it because I would like to support it …’ ‘I’ve had international video conferencing with a 10−hour time delay. A couple of things I’d booked to go to I just couldn’t get away.’

Reasonable Learner Stance 3: ‘I feel I have a duty to go’

Judges are by their role, and probably also by inclination, dutiful. Otherwise they could not stay in that role, which is often said to be burdensome2 or very long. A reasonable learner at Stance 3 can see that education is a good idea and that in a spirit of collegiality they should attend.

‘Judges just have to get used to doing more in this area … Professional development is expected of everybody and judges should be no exception’ ‘Well even if we don’t like it we just have to get used to it’ ‘But I did ﬁnd the writing course very good … I’ll go if they have something I can reasonably get the beneﬁt out of’ The competing duties of education and writing can result in a psychological struggle that can position the judge as RL2 and RL3 simultaneously:

‘This … [gestures towards mountains of paper] just has to be got through somehow. If I’m in court or somewhere else, I’m not here. There are things I’d like to go to … but this [paperwork] doesn’t do itself.’

Reasonable Learner Stance 4: ‘Just leave me alone to get on with my job’ ‘there will be lots of PowerPoints … we are already educating a generation of law students who think law comes in PowerPoints, and they will want PowerPoints when they get to the Bench  they will be habituated, they won’t know any better. And an industry will build up around it … there is nothing you can do … ‘education’ is a Motherhood statement, you can’t be seen to be going against it’ ‘There is nothing on that curriculum apart from the writing classes that is of the remotest

2 For example by the Chief Justice: see Warren (2004a).

134 chapter 4B: Case Study: Themes and Conclusion

interest to me’ ‘a new industry of people who educate judges … it will be bigger than the judiciary’ [This response seems prophetic, about the category of judicial educators at least.]

A Reasonable Judicial Learner taking Stance 4 responds that there will soon be an industry of people who educate judges. Like administrations everywhere, the danger is that in streamlining and making efficiencies to suit administrators (e.g. scheduled programs of educational events), the administrative tail begins to wag the educational dog. The system can end up serving its administration, rather than the other way around. This phenomenon has been claimed in higher education, where ‘distrust of administration will not be ameliorated by the growing managerial desire to conceive of higher education as a corporate’ (Taylor et al. 1998). This is not assisted by a cosy arrangement of industry insiders.

A more Deweyan model of judicial education would, while acknowledging the need to start somewhere, first be alert to the need for a problem-space to be owned by its inhabitants, rather than a being externally driven, and certainly not to be fixed. The relation of ‘educator and educated’ is problematic: it is too easy for the education, like the physical premises, to be ‘owned’ by the educators, who may build education as a fixed ‘wall of words’.3 In the context of literature, Miller (2007:667) writes of a ‘wall of ideas’ that ‘interposes between us and … reality’,4 and while I would not argue that stronger sense, because lawyers frequently love words for their own sake,5 I would say that even very fine words fixed in static perpetuity in that way ultimately become invisible. Unless they are somehow dynamic, they lose their power to refresh thought.

Q: Is there anything that would make your task easier? Anything that could be done for you to make the research or writing task easier? Do you need more research staﬀ? More research resources? No, none of that could help them with the nub of the problem: ‘In the end your judgment has to pass through your brain.’ ‘I just need to be left to get on with it.’ ‘We have very good research resources here, all the electronic stuﬀ. No, no, nothing like that.’

3 Literally, in the case of JCV’s ‘Wall of words’ in the new building, where ‘eclectic references resonate’ (see below). 4 Miller is referring to what he calls a ‘taboo on tenderness’ which ‘aﬀects our culture and distorts our thinking’ – an observation that applies also in law. 5 Julian Burnside QC’s column on words in the Victorian Bar News is an example of delight in words and wordplay.

135 From Court to College

Q: Fitness has been shown to improve brain function and general wellbeing. Did they ﬁnd it hard to keep ﬁt? How about a gym in the basement? (Some judges were members of the RACV Club, which has very good facilities and is just a block away.) ‘I’m often here late at night, that could be handy, but it’s really not necessary.’ ‘Oh, I quite like an excuse to get out at lunchtime.’ Q: Perhaps a scented garden for contemplation or deliberation? [Laugh] ‘That sounds nice …’

Judges in the mental space RL4 just do not want anything else done to or for them. ‘Just leave me alone to get on with my job’ means what it says. They have a job, they need to get it done, they are overloaded, courts are busy, nothing on offer suits their needs, or can help them in what they are already doing …

It would be unusual for any judge not to spend at least a little time in this state occasionally. Ideally, those occasions would be rare.

(b) Overview of responses to individual questions

The semi-structured interview questions set out below were designed to guide the process, and were not strictly adhered to during interviews, which were quite wide-ranging in places. Not every judge was asked each or all of these questions. In addition, not all discussion was directly relevant to the topic of JE, and those peripheral matters are not discussed unless they are relevant to JE.

Q1 Is there something about professional practice as a barrister that particularly suits barristers to being judges?

A strong theme emerged from the interviews that court experience really was essential and that it was difficult to gain the expertise that came naturally as a barrister, once one was on the bench as a judge. It is enormously helpful to have understood the process from the other side, and it means that a judge is conﬁdent that the way they are approaching a matter or giving direction to counsel is appropriate. A Judge of Appeal who had been a senior academic rather than a barrister was comfortable on the Court of Appeal but would not have been comfortable in a trial court and would not have felt able to accept appointment to the trial division for that reason.

136 chapter 4B: Case Study: Themes and Conclusion

Q2 What other things contribute to a judge’s professional ability and stature?

As with the barrister responses on the bar survey, one clear theme here was knowing the law, and consistently getting it right. Even the Chief Justice needs to be sitting, hearing cases and delivering judgments in order to maintain the respect of his or her brother judges. Here there was some comment about the administrative burden being placed on judges, including the Chief Justice, and it was remarked that previous chief justices had fewer staff and nothing like the office load that the current Chief Justice has. Consideration of the changing Benches in Appendix B, which most of the judges discussed, some at great length, makes clear that relatively loose and tight couplings (of time spans, changing and unchanging benches of larger and smaller numbers) affect the judicial ménage (way of being together on the bench). Some judges felt management processes were ‘make-work’ activities for Department of Justice administrators, who were constantly seeking information and requiring form-ﬁlling.

Q3 How important is the Bench–Bar connection?

The theme emerging from this question was that it was difficult to maintain connections with the bar, and it might not even be appropriate. Some of the judges made a habit of going back to the Essoign Club in Owen Dixon Chambers occasionally for lunch with former colleagues, but others felt it more appropriate to distance themselves rather than returning. Some were not actively avoiding going back, but were busy and ‘months had gone by’. Some judges commented that it is difficult for barristers to get to the judges, because of the security, and judges may not get out much.

The idea of experience emerged clearly, and it is clear that judges as well as barristers value very highly the experience that resides in the other. They also notice when standards are less than excellent.

Q4 What holds the Bench and Bar together, and how important is that?

The responses to this question suggested that the Bar, once left, was more weakly salient to the Bench than I had assumed. This caused me to revise my initial belief, based the ‘general wisdom’ of the traditional view, which I had not previously questioned, that Bench and Bar were close to dyadic in nature, that it

137 From Court to College was ‘a relationship of intimate collaboration with the judges, as well as with his fellow- members of the Bar’.6

I went back to the literature not of the law but of organisation studies, and was reminded of Weick’s metaphor of loose and tight coupling, which I had been considering along with Dewey and G.A. Kelly’s use of loose and tight ontological and linguistic construal. These metaphors offered a good ‘handle’ on changing networked or organisational relationships. It also later prompted me to consider the repositioning of the Academy vis-à-vis the judges: a new Academy of Law was established in Canberra shortly before I conducted my interviews, in which the judge/academic coupling was clearly being strengthened by the composition of the academy, while the barrister/judge and courts/profession couplings, in which academics had been peripheral rather than central, were weakened. In the Legal Practice Acts of each jurisdiction an ‘Australian lawyer’ is deﬁned in terms of a practising certiﬁcate, and this excludes many, possibly most, academics. While the role of ‘academic lawyer’ is psychologically affiliated with the profession, the ‘legal academic’ has primary affiliations with university colleagues, and has a social science orientation (Minkkinen 2009). (See further Q11 below).

A quaint Argus item set out on the Court’s website7 discloses the familiar, if formal, relations of earlier times and, incidentally, the professional standing of the two branches of the profession: the Bar was entrusted with the task of nominating both their own representatives and those of the ‘other’ branch, the solicitors:

‘In The Argus newspaper of 13 May 1853 the following item appeared: ‘Law Library – His Honour Mr Justice Barry yesterday intimated that he would be glad if the Gentlemen of the Bar would nominate two of their body and select two of the other profession to meet him tomorrow at his Chambers, Supreme Court, at two o’clock to determine on such a selection of Law Books, as it might be judged necessary to form the contemplated law library for the use of the profession. His Honour likewise intimated that he had now a fund of £296 in hand from fees, etc, for the purchase of books and as he had taken measures to add another £200 to that sum, the profession might conﬁdently look forward to the nucleus of a valuable library being made. He would like the consultation to take place this day (Friday) in order to send advices per Harbinger.’’ [emphasis added] The polite and formal language in which the judge couches what is effectively a command – ‘intimated that he would be glad’ – remains evident in exchanges in court today, and the shared archaisms of the court can give an illusion of closeness.

6 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, 298. 7 At accessed 4 April 2006, ‘About the Court/History/Library’ page. Since removed from the site, along with all but one page of history as a ‘timeline’ (at visit 30 October 2015),

138 chapter 4B: Case Study: Themes and Conclusion

But the interviews left me with the impression that this special relationship was changing.

Q5 What pulls Bench and Bar apart?

The general theme emerged in response to the question above, so I did not pursue this question separately.

Q6 How useful is formal judicial education for judges?

Discussed above in terms of the four stances.

Q7 What other kinds of learning or professional activity might be useful?

A strongly emerging theme here was relevance. The judges were busy. Attending programs meant breaking off from what they were doing. For a trial judge, this could be extremely difficult, because if the judge adjourned a hearing in order to attend an educational activity, enormous public and private expense would accrue as the parties had briefed barristers, arranged for witnesses and the like.

I pressed this inquiry quite insistently with several of the judges when they seemed reluctant to ask for anything. I asked about extra research staff, computer equipment, library resources, even a gym in the basement (my prompts). None of the judges seemed to be lacking in research material or systems. As one judge said, it was really necessary for the material to pass through his head and he did not see how anybody could help him with that. Some judges thought it might be handy to have a gym in the basement at the court, but there was no pressing need for that. A cloistered garden (my prompt) was a nice idea. But what emerged from the discussions was really that judges were vermost well receivedy busy, and needed to get their work done. Once they had their work done they might as well go home to relax or go to the gym (those who liked gyms). It was a chance to get out and about. Some of them habitually work late, and at weekends. While a barrister might do that in occasional bursts (the literature on depression suggests this is less stressful), the regular workload of the judge makes it a more troubling practice, as there is no natural end-point in sight.

Q8 What draws judges together as a Bench, and is cohesion important?

Some judges rarely see other judges. This can be particularly true of trial judges. The building is sprawling and higgledy-piggledy inside. One judge said if he did

139 From Court to College not make a conscious effort to get out and see other judges he could go for days without ever seeing anybody. The architecture clearly affects collegiality. One judge hearing a big case over the road in another court building said the Supreme Court building was beautiful but impractical, and the working conditions were much better in this newer building.

The judges were all very circumspect and polite and judicial. Some judges made a point of saying there were good, collegial relations at the court. A judge made a point of saying that the Chief Justice was very good at making sure the court was running smoothly and everyone was kept in the loop.

Q9 A survey of barristers indicated X. Do you have any comments about that?

Not all the Bar responses were in at the time of the interviews, but judges to whom I mentioned the qualities of knowing the law and experience agreed that they were both important, as was courtesy.

Some suggestions about improvements to the paper warfare situation had come from barristers’ responses to Survey Q20. Most were fairly broad. However, one was, ‘refraining from restating the law in the judgment’. Judges said that while this might seem like a good idea, the need to cover the bases against appeal, making clear that relevant law had been adverted to, was the driver of overly long judgments, which judges would also prefer not to have to write. However, the law was getting increasingly complex. There seemed to be no clear escape from this problem.

Q10 Do you have any general observations relating to Bench and Bar, or judicial education?

This question elicited the broadest range of responses, but there was no discernible pattern, except a theme, not very pronounced, that there might be a declining standard at the Bar and in appointments to courts at lower levels. Some frank comments were made about the need to work with lower courts on sentencing principles in particular, and judges of the SCV had carried out educative sessions for judges of lower courts. Favourable comments were made about the skills of some judges of the SCV, which were said to be high. There was some dissonance with some barristers’ views about some political appointments. However, this is a constant complaint by barristers, and is not directly relevant to judicial education,

140 chapter 4B: Case Study: Themes and Conclusion which implies working with whoever is there.8 Appointment policy is obviously important, but not the topic of my research.

Comments about judicial education as then currently framed ranged from extremely positive to ‘a waste of time’ although again, negative comments were very temperate, and some judges were actively enthusiastic about judicial education.

There was a bias in the respondent group, which did not contain any very recently appointed judges. It was consequently skewed towards the senior end of the bench. I do not know the reason for this response bias. It is possible that more recent appointments were still feeling their way and were reluctant to agree to speak, but that is speculative.

There was a theme of positive or very positive reaction to the Phoenix program at the National Judicial College (NJC).9 This program is a midcareer rejuvenation program for senior judges, and it appears to be valuable to them. Similarly, everyone who had attended the NJC orientation program, which is run by senior or retired judges, found it valuable or very valuable. The most well received JCV offering was the judicial writing program, discussed below.

Q11 What do you think of the idea of learned legal societies in the form of Australian Inns of Court?

This question received a mixed response. The English Inns of Court are the founding organisations for barristers, and in 1987 were imitated in America as a way of building collegiality amongst the profession. A small regular group under the supervision of one judge would meet periodically for discussion or dinner meetings.

Some judges thought this seemed like a good idea. Some thought it might be of use in fostering BenchBar collegiality. Others thought it was just one more thing to have to do and might not achieve anything much apart from social engagement, for which there were other opportunities. Some judges were doing mentoring work with young solicitors through a scheme established by the Law Institute of Victoria and were enjoying it immensely. It was less appropriate for them to be doing mentoring work with young barristers who might appear in the court before them.

8 However, a renewed stridency over political appointments in the USA (Fitzpatrick 2008), along with the refusal of attorney-generals to publicly defend judges, does suggest a signiﬁcant change. 9 See http://njca.anu.edu.au/.

141 From Court to College

The Royal Institution was establishing a branch in Adelaide in 2009 on the recommendation of Baroness Greenﬁeld. I wondered whether a broader role for the Academy of Law (closer to that of the Royal Academy, including its interest in science education for the people) might serve as a model for law.10 However, the judges with whom I discussed the Academy of Law and the Royal Institution, including one who was a member of the Academy of Law, were not enthusiastic about this line. (I I did not know, at the time, whether other judges of SCV were fellows. However, a list appears on the website.)11

I was suggesting that judicial education might include education outwards, in ways that involved the public. However, while I persisted with the notion of community engagement, judges tended to think that bodies such as the Law Council of Australia and the Victoria Law Foundation already had those roles.

In the meantime, the JCV now sees itself as a major mediating institution between community and judiciary: ‘The College is a key to strengthening a two- way community engagement process between the community and the judiciary’ (JCV third ‘Key Challenge’, JCV website, 2012 and 2014).12 There may be some dissonance here worth researching further.

4B.2 Other themes emerging (a) The building they were in (b) Outward-directed judicial education (c) Generalists, collegiality and the bench (d) Community values (e) The Department of Justice (f) Staﬀ including associates (g) Young lawyers: The judges’ associates (h) Judges’ chambers (i) Academisation: the idea of university qualiﬁcations for judges (j) The idea of research in the Court (k) Editorial assistance (l) Workload and time

(a) The building they were in

The security of the building is isolating. Security measures have been dramatically increased over the last decade, and even practitioners going into court each day

10 See website at http://www.riaus.org.au/. 11 At www.academyoﬂaw.org.au/. 12 At www.judicialcollege.vic.edu.au/about-us/our-future.

142 chapter 4B: Case Study: Themes and Conclusion are required to pass through security checkpoints similar to those at the airports. I interviewed judges in the Supreme Court building proper, in the Court of Appeal, and in the judges’ chambers in the County Court building across Lonsdale Street.

In the County Court building, robed barristers attending criminal trials waiting in queues with members of the public to get through to the courts. There was less rush in the Supreme Court, but the practitioners were arriving with substantially more paperwork, in metal trolleys, and these had to be passed through the system each time.

(b) Outward-directed judicial education

Some judges said they were already carrying out various educative roles in what could be described as outward-directed education rather than inward-looking and focused on judges. Some were participating in mentoring programs with young solicitors in the profession, some were attending public occasions such as graduations and making speeches, and some made the point that their judgments were in fact educative: for courts below, for the profession, and even occasionally to appellate courts above. One judge showed me an approving passage where his reasoning had been praised by the High Court, making the point that to craft a judgement well, so it inﬂuences other judges above or below, is educative in a broad sense.

There was some nostalgia for the common law judge, the generalist trial judge, and a clear theme of respect for that style of judge, which is now increasingly rare, but it was not a dominant theme by any means, and only some judges thought those days were over. There are, however, few people of that broad calibre, and increasingly specialised lists militating against development of more of those judges. A few judges still on the bench or recently retired were named as qualifying as a ‘common law generalist’.

In addition, a historical comparative charting exercise I produced in Excel and showed to the judges was surprising to some of them. The charts made it very obvious how the bench had changed over the years, with very many more members, staying for much shorter periods, than in the past, when a 30-year stint

143 From Court to College on the bench was not uncommon, and one might have the same small group of colleagues without change for several years.

(d) Community values

Community values were a central concern of a QC I interviewed, a specialist in criminal law. However, while a ‘keeping judges in touch’ schema emerges repeatedly in speeches and in the goals of judicial education, it did not emerge in interviews.

(e) The Department of Justice

Some judges referred to the enormous volume of administrative paperwork sent by the Department of Justice for them to ﬁll in. One complained about being unable to set the terms and conditions of employment of his associate.

The judges were for the most part circumspect about the Department of Justice, although there had been continuing tension between the then attorney- general and the court, and also with the Bar. The attorney frequently made clear his dislike of the Bar. The press release from DoJ in 2003 announcing mandatory CLE was titled Hulls To Send Lawyers Back To School (Hulls 2003e), and in 2006 the Attorney made similarly inﬂammatory remarks to the media about sending the judges back to school (LIJ 2007; Whinnett 2006; Woods 2006). ‘Victoria’s judges will be sent back to school in a bid to stop them handing out lenient sentences that anger the public’ (Whinnett 2006).

It is rare for judges to speak publicly about discontent. However, at his retirement, Ormiston J, who said he would not have retired at that time had conditions not been intolerable, referred to the fact that the court was not independent, and was treated as a business unit of the Department of Justice (see vignette Business Unit 19, below). At that time, the Department of Justice website included links to the courts set up within the Department of Justice website as if the courts were branches of the Department, rather than part of the judicial arm of government. Public servants apparently have no idea that this is offensive or why it might be offensive. (‘Judges have never regarded themselves as public servants’ as the former Chief Justice of the High Court put it (Gleeson 2003)). Non-lawyers appear bewildered on this point: it is my impression that lawyers’ insistence on the separation puzzles or antagonises non-lawyers: an impression conﬁrmed by a conversation I had with a public servant with DoJ experience. Comments made by bloggers suggest that

144 chapter 4B: Case Study: Themes and Conclusion some members of the public13 are aware that judges are ‘servants of the public’ but not public servants.) 14

In 2014 court administration was transferred to the new Court Services Victoria (CSV), which makes the tension in the relationship with DoJ largely of historic interest, although CSV will still be dependent on government funding, and the Attorney-General will continue to be the responsible minister.

(f) Staff including associates

The tipstaves who let me into the building and showed me up to judges’ chambers or called for associates to come and collect me (in some cases the judges came down themselves) had obvious pride in their work, knew the building inside out and its history, and were able to talk informatively about the paintings and other historical items on the wall as we went past.

(g) Young lawyers: The judges’ associates

The judges’ associates were either young lawyers, who generally stayed for 12 or 18 months in the role, or older women who have a role closer to that of a personal assistant or secretary. In the past I have seen older men as associates or tipstaves. There used to be something of a tradition that retired military personnel would be appointed to the tipstaff role in particular, but I did not ask if that was still the case.

During the interview process I spoke with and observed several associates interacting with each other and with their judges. Judges tended to have a relaxed, mentoring demeanour, and the associates appeared happily busy, occasionally frantically busy. The experiential learning nature of the role of associate makes it educationally rewarding, with a combination of research, observation, responsibility, discretion, and gatekeeper role. In addition, I observed social fun, and associates heading off to drinks together, reinforcing the comments made in an Associates’ Handbook by a Victorian judge’s associate:

There is also a social aspect to the role. There is an incredible camaraderie amongst the Associates at the Supreme Court of Victoria. We hold group dinners, lunches and trivia com- petitions, and there is a constant traﬃc of Associates between the Court and the nearby ca-

13 However, I suspect the blogger was legally trained, from the language used. It may be a social marker (of legal culture) to hold this view: see vignette 3(f) below. 14 As Resnick (2004) notes, ‘Around the world, we use the shorthand of 'judicial independence' to make the point that judges are no ordinary employees of the state because they must make decisions in individual cases that may conﬂict with agendas of the very governments that empower them.

145 From Court to College

fes. There is a Supreme Court Associates Mooting Competition, which allows the associates to practice their advocacy skills against each other. These moots are always followed by drinks at one of the laneway bars around Little Bourke Street. (Walker, in ALSA 2009)

(h) Judges’ chambers

Chambers in the County Court building were very modern, and judges who were quartered there found the rooms comfortable and quiet and much to their liking for practical reasons, in fact better than the Supreme Court building in terms of workplace efficiency and comfort. Although the old Supreme Court building and the Court of Appeal are beautiful buildings they are less efficient to get about in, and impose various constraints.

(i) Academisation: the idea of university qualiﬁcations for judges

When I discussed with judges in interviews the possible academisation of the judiciary, as for example in a university course as a judicial qualiﬁcation as occurs in other legal systems, it then seemed entirely remote and was dismissed as unlikely and unpromising. No support was expressed for university qualiﬁcations for judges, either in the course of continuing education or as a qualifying hurdle to appointment. In other words, in 2007 there were no apparent couplings between judicial practice and academia. While there were university courses for clerks of courts, this was of a very different order from courses for judges, which seemed an alien notion for a common law system, although logical within the European system. This possibility seemed ‘highly unlikely’ or ‘just not in contemplation’ to two judges with whom it was raised as a future possibility ‘down the track’. While pursuing higher education as a personal goal was satisfying (and one interviewee noted that judges then on the Bench did have doctorates) this was a matter of private interest with little bearing on their judicial role. At the time of the interviews I was unaware of the US Master of Judicial Studies and PhD program, which had in fact been established in 1986.

However, a weaker form of academic drift can be seen in the establishment of Australian Academy of Law, of which one judge at least was a member.

The Academy states on its website that

A distinctive feature of the AAL is that its Fellows and therefore the AAL itself, provide a ‘bridge’ linking, indeed uniting, the judiciary, academia and the legal profession in Australia.15 (emphasis added)

15 Website at www.academyoﬂaw.org.au/ accessed 12 December 2012.

146 chapter 4B: Case Study: Themes and Conclusion

The signiﬁcance of positioning the academy between the judiciary and the profession is difficult to overstate. It is part of law’s modus operandi to construe language according to grouping and order of words. The two most famous maxims of interpretation are probably ejusdem generis (‘birds of a feather ﬂock together’) and expressio unius (excluding what is not mentioned).

Here barristers and solicitors are together ‘the profession’, leaving three rather than four (or more) kinds of lawyers: judges, barristers, solicitors, academics, government and corporate lawyers. The academy ‘unites’ the three named groups and it is the mediating central pillar, with spans on either side to judiciary and profession.

Institutional ‘mediating’ roles (e.g. academia’s ‘narrow ledge’) tends to separate parts of the social world which need to work together. JCV similarly positions itself between judges and the public: ‘The College is a key to strengthening a two-way community engagement process between the community and the judiciary’16

(j) The idea of research in the Court

Judges seemed not to need more research assistance for themselves (legal research), and some judges commented that they considered the wider research function to be important, but to belong to the Victoria law foundation. There was thus less scope or support than I had thought there might be for some kind of research unit in the court itself. Judges did not seem to feel there would be any beneﬁt to having such a unit in the court. It was also the Victoria law foundation’s job to research and to educate outwards. While some judges did perform various types of outreach work, and one judge commented that he had a hobby which kept him sane, there did not seem to be much scope for a research arm in the court, or certainly not one that the judges thought would be of assistance to them. The general sense appeared to be that it was not an issue of independence, despite some inﬂammatory language from the Attorney reported at the time (LIJ 2007; Whinnett 2006). For official press releases and explanatory memoranda see Hulls (2003a, b, c, d, 2005, 2007a, b, c, d, e, f, g, 2008, 2009).

(k) Editorial assistance

Some judges thought a resident editor would be useful and might be handy to have around the court, although the need did not seem pressing.

16 Website at www.judicialcollege.vic.edu.au/about-us/our-future accessed 12 December 2012.

147 From Court to College

(l) Workload and time

All the judges seemed busy. There was a very large criminal trial running at the time on a terrorist matter and several judges were quartered in other buildings, including the County Court building over the road, in order to hear these large trials.

4B.3 LCI and JCV: The tight couplings of habit in continuing legal education

(a) The legislation establishing the JCV and JE (b) Resourcing a budget (c) The programs oﬀered by the JCV (d) The way JCV is presented: the brand and institutional aims of JCV (e) A stable community of judicial educators

(a) The legislation establishing the JCV and JE

The judges did not appear to be troubled by the legislation establishing judicial education or the College, which was contrary to what I had expected; I thought there might have been more reaction about the mandatory nature of judicial education and the way it had been established, and perhaps by the recording of attendances so that heads of jurisdiction could track the JCV sessions attended by their judges. However, judges did not actively oppose the system although they were certainly given an opportunity to do so in the interviews. Some judges considered it of limited use or busywork. Some judges were strongly positive. There was some doubt that it could develop ‘real’ education rather than becoming institutional, but hope that it could. But they did not seem troubled by the circumstances of its birth. One judge who was supportive of JE became quite terse and irritated with a line of inquiry that suggested there might be an issue with independence, so I did not persist.

The political language in which the introduction of JE was framed by the then Attorney-general was of ‘mutual obligation’. However, the Judicial College of Victoria Bill 2001 had multi-party support as a judiciary-driven program.

Mutual obligation is an ideology within social security: an economic model (Curtain 2000; Dusseldorp 2000). That model might appear culturally alien to law. I would argue that it bears no sensible or coherent relation to the role of the judiciary within the philosophy of liberal democracy that most strongly informs

148 chapter 4B: Case Study: Themes and Conclusion our Westminster-style system of government, which judges and lawyers are sworn to uphold. However, the Message from the Chief Justice in the Annual Report 20072008 adopts that terminology without demur:

Participation in the scheme is viewed by the Heads of Jurisdiction as both an entitlement and an expectation, with the scheme imposing a set of mutual obligations  on government, to provide sufficient resources to enable judicial officers to take advantage of the scheme, and on judicial officers themselves to fully participate. (JCV Annual Report 2007) Couching judicial education in terms of mutual obligation has a superficial appeal to duty understood in formalist terms (cf Dewey: duty is individual [EWv04:311-19] and the public’s right to expect an educated judiciary. However, deeper thought uncovers conceptual dissonance.

An interview with the Attorney in the early days is interesting in part for the presenter’s opinion that judges ‘judge people’:

Victorian Attorney General Rob Hulls says it’s imperative that the judiciary stays in touch with the people it’s judging. (Baggio 2001) Ironically, it is the commenting media that ‘judges’ in a psychological sense. Judges determine civil cases (put an end to litigation) and sentence those convicted according to the seriousness of the offence (or, convict and sentence, in the absence of a jury). The task is not in any of its aspects ‘judging people’, although sentencing remarks do often express strong dissaproval of a defendant’s behaviour.

Here we also have an early use of the proposition/schema, education keeps judges in touch (as a corrective for being ‘out of touch’  a media accusation). This quickly took on the character of a mantra of JE and appeared on the JCV’s ﬁrst website. The phrase ‘in touch with community attitudes’ is now a JCV’s ‘Outcomes’ measure’.17 A host of questionable assumptions sit behind this schema. Most obviously, the causal connection between attending programs and somehow then being satisfactorily ‘in touch’ would ideally be demonstrated before embarking on resource-consuming institution-building, particularly if its ‘outcomes’ are ﬁxed before it starts. The more difficult sociological question is of course, in touch with whom, or what? (This is the vexed question of what is ‘the community’?  ‘Community indicates a web of understandings about the nature of social relations’ and, like culture ‘should not be thought of as a ‘thing’ in positivist fashion’ (Cotterrell 2006:5).)

17 See www.judicialcollege.vic.edu.au/about-us/college-outcomes.

149 From Court to College

The Attorney’s reason for setting up a state college rather than joining other states in funding the NJC18 is stated, not very convincingly; the ‘federal law’ supposition is a red herring (it supposes that JE is about content, it assumes state judges apply only state laws, and it ignores the fact that much new law these days is legislated through uniform schemes or ‘mirror legislation’):

GUILIA BAGGIO: The Federal Government says judge school shouldn’t be state based, it should be national. Why do you think they’re concerned about a state going its own way? ROB HULLS: Well look I think that the two can work hand in hand. But a federally based judicial college would deal mainly with the Federal Court and those jurisdictions that embrace Commonwealth Acts of Parliament. I do believe that there is a need for a state-based judicial college that can work hand in hand with any national approach. I’m also concerned that the national college, if indeed it ever gets oﬀ the ground, will be a long time in coming (Baggio 2001) The issue of judicial independence, which is in fact in tension with mandatory education, is also used as a weasel-word for its halo eﬀect: GUILIA BAGGIO: Why do judges need to go back to school?

ROB HULLS: Well this is really part of the Government’s commitment to modernising the legal profession, and that includes ongoing education of the judiciary. I think the public needs to be confident in a robust and independent judiciary, a judiciary really that embraces lifelong learning. (emphasis added) The kind of education envisaged is also already being defined in terms of courses with particular subject matters to be ‘presented’, losing, even at this early stage, the opportunity to fund a flexible, progressive open-inquiry model of education:

GUILIA BAGGIO: Practically, what will they do, will they sit in a classroom, will it be compulsory? ROB HULLS: Well there are a whole range of things that can be done in relation to judicial education and training. But it would include, for instance, getting a range of presenters who could prepare and present courses for the college, depending on the subject of the course. This could include judicial officers, academics, practising lawyers, lay presenters and trainers. And academics could be involved as consultants, or indeed purchase courses off the shelf. So a whole range of educational and training needs would be met via this college. 18 Chief Justice Doyle of SA remarked at the Canberra conference at which he launched the National Standards and Curriculum in 2007 that he hoped Victoria would join the other states in contributing to the cost of the NJC.

150 chapter 4B: Case Study: Themes and Conclusion

(b) Resourcing a budget

The Annual Report of 2002−03 did not contain ﬁnancial statements as the new body was yet to be fully established, but in the Report for the following year a sum of $272,101 was listed as funds received from DoJ in 2002−03. In 2003−04 the JCV budget, consisting of grants from the Department of Justice, was $763,510. In 2004−05 it rose to $1,050,340. In 2005−06 it was $1,210,733. In 2006−07 it was $1,288,348. It has continued to rise, reaching approximately $2 million in 2011, $2,259,323 in 2012 and $2,205,900 in 2013. (JCV Annual Reports). Thus from small beginnings JCV had achieved, by its 10th birthday, a budget 10 times the size of its initial resource base.

Employees, non-judicial Board members (academics) and consultants are paid, but judicial officers are not paid.

The JCV Learning Centre, ‘dedicated to the delivery of judicial education programs’ (JCV website 2014) was officially opened on 28 August 2013. The costs will not be reﬂected in accounts until 201314 (not released as at October 2015).

As at 201219 the JCV website claimed the beneﬁts of its programs as:

• creating highly skilled judicial oﬃcers, able to respond to the challenges of judging in the 21st century and the needs of a socially and culturally diverse Victorian community • supporting a culture of life long learning and reﬂective practice • improving judicial practice and organisational performance, which in turn reduces the cost of justice. The ‘key achievements’ claimed on the website were:

• adopting a Framework of Judicial Abilities and Qualities that defines the standards and expectations of a Victorian judicial officer.20 • introducing a two-year induction framework to assist new appointees to make a successful transition from legal practice to the bench. • introducing a Judicial Leadership Program to harness the experience of long-standing judges and to ensure the Courts and VCAT create opportunities for institutional innovation. • developing an Australian-first judicial Continuing Professional Development (CPD)

19 At www.judicialcollege.vic.edu.au/judicial-education accessed 12 December 2012; updated 13 October 2014. 20 This was developed in the UK and adopted by the JCV.

151 From Court to College

scheme that allows Victorian judicial officers to meet the two of the five days recommended by the National Standard for Professional Development for Australian judicial officers. • introducing a world-first 360 degree feedback survey for judicial officers, which other jurisdictions are now replicating. • enhancing judicial knowledge through an extensive array of programs and electronic resources, including our highly regarded judicial intranet (JOIN)

Scratching about for something useful to go to

At the time the interviews were conducted in 2008, the single-page calendar was still in use, offering a few simple programs to judges. Some of the judges were very happy to attend but could ﬁnd nothing of interest to them on the calendar when I showed it to them. Some pointed to the Judgment Writing course in August as something they would like to attend. Professor James Raymond, who has long held a ﬁrm belief that judicial writing obstructs justice (Goldfarb and Raymond 1982; Raymond 1978, 2010) had been running similar courses in New South Wales and elsewhere for many years, and his courses were widely known and popular (Tyler 2011). Even so, some judges were adamant they did not wish to attend that course, and were reluctant to have their writing standardised, as they saw it. Some judges ‘write their way into a judgement’ and dislike the idea of using a form of some kind to help them to structure the document. One judge claimed to be able to spot a judgement written by someone who had been to the course because they all looked the same.

Some judges tried to attend a session but could not spare the time, or had to cancel. One had an evening video link to Perth at the time of a session they had booked to attend. One judge who was particularly keen to support the process and was in general a great supporter of legal education, was embarrassed because despite having intended to go to various sessions, something always came up, and there had not been much opportunity despite good intentions.

In sum, there was a range of degrees of enthusiasm about attending events at the college, but the limited offerings made it harder to ﬁnd something to go to. One judge said the program kept him interested in his job. Others were very supportive. Some found it a waste of time. All this was as one might expect, and as time has now passed the particulars of this research data are of limited use.

152 chapter 4B: Case Study: Themes and Conclusion

The March 2008 session on Loss of Chance was presented by one of the judges of the Court of Appeal. This is a difficult and technical area, and the judge spent some 70 hours preparing the material. About 30 people attended the session. The judge himself commented that several questions arise from this. While he enjoyed doing the research, and was very happy to prepare the material, he wondered whether his time might have been better spent in other ways, perhaps writing judgments. Second, he wondered whether the amount of time he spent on this task was warranted, given the esoteric nature of the topic. The need to balance competing duties means that unless JE remains relevant (a theme from the Bar survey) it will not weigh heavily in this balance.

Sessions that were most valued by judges were those presented by other, more experienced judges, or judges from other jurisdictions, whom they had the chance to hear in comfortable surroundings in the Supreme Court for informal discussions. One of the very experienced criminal trial judges had given a session on managing witnesses and other court craft tips which were very much appreciated by those who attended because the judge in question was respected as being very knowledgeable and a good trial judge.

This low-intensity collegiality, akin to water cooler chat (Grebow 2002), may have more usefulness than any formal program of events that do not attract attendees’ fully motivated attention because they are not obviously and immediately relevant.

Sometimes with programs such as those offered by the JCV the people who seek to be presenters, as part of the industry of ‘judicial educators’, which carries some kudos, may not be the same people whom other judicial officers would choose to invite to address them if they were given the opportunity.

By 2015, the program’s website was apparently encouraging academic programs on the basis that they would ‘equip’ the judiciary for change:

As the challenges facing our court systems mount, it is essential that the judiciary be equipped for transition. At the forefront of this movement is the highly successful Judicial Studies Program at the University of Nevada, Reno, one of only two such programs oﬀered nationwide. The Master of Judicial Studies Degree program, established in 1986, has had an unmistakable impact on the ﬁeld of judicial education, currently enrolling judge-participants from 33 states and several foreign countries. The argument by Rees (2004) referred to in Chapter 2 (that educators need to establish the value of models before blindly adopting them) is apposite here. Social accountability is not disputed, but the means chosen to try to achieve that accountability need to be established empirically.

153 From Court to College

What judges said they wanted

A strongly emergent theme was that judges were short of time and that if there were ways to streamline their work, they would be interested in that, but basically they felt that they had to get the job done (conscientiousness = Dewey’s deﬁnition of wisdom), and that it was more important to get the job done then to go to a course that might not be directly relevant to them, and which might become stale.

Judicial writing programs

During the interviews judges were given a card printed with the calendar or list of programs available at JCV and asked which if any they had attended, found useful, or would be of interest to them. The only individual program that was speciﬁcally mentioned with enthusiasm that could be described as ‘1’ on a 5-point scale was judicial writing:21

1 2345

Enthusiastic Accepting Neutral Reluctant Against

Some had attended and enjoyed it very much, some had heard good reports and were looking forward to going.

A great deal of writing (but even more reading) is required of judges and a theme of overload through sheer volume of paper to get through, coupled with a duty to go through it all carefully rather than skimming (since something might turn on some small point) emerged in interviews. Judges cannot afford not to read, and some are very keen to improve their writing skills.

Themes among judges who were not enthusiastic about writing programs (4, 5) were that the approach suggested could be formulaic (‘setting out the conclusion, then headings for each reason, then ﬁlling them in’). This was seen as too structured, and that experience of judgment writing suggested that this was not how writing worked. Conclusions were either not known at the start of the exercise, or were changed during the course of the writing: ‘I write my way into a judgment and ﬁnd the answer coming to me in the process of writing’. This accords with the literatures on expertise and intuition in which experience informs process with a Gestalt-like understanding that emerges from the prepared knowledge-ground of things tacitly understood and now required to be made explicit. It is commonly observed that

21 Notional scales for my purposes. As noted at the start of this chapter, no judges were asked to assign scales.

154 chapter 4B: Case Study: Themes and Conclusion deciding a case is an entirely different thing fromcrafting the reasons for it in a written judgment, but judges who experience a decision by writing their way into it demonstrate the intuitive nature of the exchange.

Similar courses have been conducted at JCV or its New South Wales equivalent, or the National Judicial College. Professor Raymond, who teaches these classes, is a scholar of rhetoric, and the programs have been delivered with the assistance of poets and creative writers. The judges who do appreciate judicial writing programs ﬁnd that the techniques offered for paying attention to their own writing as readers are valuable.

This positive view accords with comments from Bryan Garner, an experienced facilitator of judicial writing seminars, who says that over several years judges who have recorded their own likes and dislikes about legal material they read come up with ‘strikingly consistent’ answers (Garner 2001:143). The central feature was that things ‘liked’ were those that had the effect of speeding up the delivery of information, and those ‘disliked’ were those that had the effect of slowing it down (Garner 2001:143). The message about experience is to tap into the experience of reading, to habitually ‘gauge your own readerly likes and dislikes’ (Garner 2001:143) rather than focusing purely on the writing task.

The positive response to writing courses also accords with the strong historical connection between law and literature. The strongly language-based nature of law, with its central element of construal of meaning, gives judgments status as vehicles for the expression of public meaning.

Effective judicial writing can be viewed as a close coupling between determination (decision) and persuasion (rhetorical reasons for judgment). Judges may think judicial writing style matters for communicating their reasons (Posner 1986, 1995). However, the legal realist Harvard academic Fred Rodell (1936:38), who was famously critical of the legal profession and its habits, wrote that ‘There are two things wrong with almost all legal writing. One is its style. The other is its content’. He was writing primarily about legal journals, which he described, colourfully, as ‘qualitatively moribund [and] quantitatively mushroom- like’ (1936:38). The serious point here was that the numerical output of legal scholarship was far outstripping any increases in quality that might justify such an expansion, and it serves as a general warning about quality and quantity, and the need to pay attention when the former decreases and/or the latter increases.

Legal writing emerged as the single most important concern of judges during the interviews. Their remarks conﬁrm many of the assertions made by the professor

155 From Court to College of English who conducts the judicial writing component of the JCV program in his book Writing for the Court (Raymond 2010). Professor Raymond is a familiar ﬁgure at CLEAA and other legal education conferences. He has also written a book on judicial writing which sets out some of his views (Raymond 2010). The major theme is intelligibility and a sense of the complex multiple audiences being addressed in a judge’s opinion, including the losing side, the profession, and the public.

The ‘reasonable judicial learners’ (RJLs) construed earlier had a range of views about judicial education, each perfectly reasonable from the perspective of the RJL as well as reason-able (able to be reasoned out, or rationalised), both within the parameters of the rhetorical logosphere Raymond (2010) describes and in terms of the cultural meaning-paradigm that has emerged from cognitive anthropology and the humanist psychology of motivation associated with Wong (2012).

The need to lie fallow noted by Dewey may still be possible to a limited extent in tenured academia, and also at the Bar, but in few other places. It is not open to judges, who are constantly either sitting (on the Bench hearing cases) or writing their judgments in Chambers.

A decade ago Smyth (1999) conducted an empirical study of citation practices in the Supreme Court of Victoria. It would be interesting to revisit the citation practices and general writing style of judges in order to ascertain whether there had been a shift in the direction of Denning-style judgments (which are also advocated by Professor Raymond, who conducts the lion’s share, if not all, judicial writing workshops in Australia).

I have not gone into detail on the contents of the programs. Rather, in the next section I discuss the apparent impulse towards corporate branding (in which the educational offerings are made increasingly attractive (both in a graphic design sense, and in the sense that they are designed to appeal to participants as ‘interesting’ workshops to attend). The contents of the prospectuses over the years is discussed further below, in that context (see p 168, ‘Settling down to spin?’).

(d) The way JCV is presented: the brand and institutional aims of JCV

Under the heading ‘College Outcomes’, JCV lists what would be better described as hopes. As hopes, or ideals as an end-in-view, they are meliorative:

156 chapter 4B: Case Study: Themes and Conclusion

[We hope, and intend that] The College’s work contributes to: • a more unified and engaged court system for Victoria • a reduced cost of justice • improved judicial work practices • modern court management • enhanced judicial skills and knowledge • the resilience, capacity and adaptability of judicial officers The aims of education per se are not tackled directly. The question ‘What is JE for?’ is implicitly answered: From the government’s perspective, it addresses a perceived public concern about judges being ‘out of touch’, particularly on sentencing (i.e. media pressure and attention). (‘The provisions give effect to the government’s 2006 election policy commitment, contained in Access to Justice, of introducing ongoing education for the judiciary.’)

From the courts’ perspective, the time had come. The trend is towards JE, particularly following UK and US practice, and the independent development of a national standard (10 hours of CPD per year) and curriculum (Roper 2006, 2007) following several decades of pressure from a small group of CLE educators.

The missing educational perspective, which is implicit in some of the public statements, and emerged clearly from interviews with judges at Stance 1 (keen), may be surprising to those constantly operating from the administrative perspective of efficiency and deliverables. That is to say, real education is an opportunity that is good in itself, if it promotes growth. From this Deweyan perspective the educational process ‘has no end beyond itself; it is its own end’ and it consists in continual reorganizing, reconstructing, transforming’ [MWv09:55].

In brief, JE was set up in a bureaucratic way, with inbuilt performance measures based on ‘high satisfaction ratings’. This directs those who care about ‘real’ JE to try hard to justify it within an administrative framework of deliverables and outcomes,22 which has little to do with real education and where, consequently, it does not sit comfortably.

The academisation and institution-building of the JCV extends to its vision of becoming a ‘university’ (seemingly metaphorically). Ironically, a university course as a judicial qualiﬁcation seemed entirely remote and was dismissed by judges as unlikely and unpromising. However, in the USA judicial degrees are now available, and JCV says it has ambitions in that direction. Further, ‘provide our

22 Not to be confused with ‘framework theory’ in instructional psychology, which is about students’ conceptual development. For an overview of trends in that ﬁeld see Verschaﬀel et al (2006).

157 From Court to College services in dedicated, state-of-the-art facilities’ means, in plainspeak, ‘we want our own building’:

Our Vision [2010 and 2014] Ultimately, our vision is to become an exemplar of best practice in judicial education-a ‘university for judicial officers’− and the principal and preeminent provider of education and professional development for Victorian judicial officers. We want to provide our services in dedicated, state-of-the-art facilities, and create courses and study opportunities in multiple fields, supported by both legal educators and judicial officers.23 In the January 2014 version of the vision, the ambition to be a university remained, but the hope for a bricks-and-mortar home had been achieved in August 2013. The words in italics could then be deleted. Similarly, under the heading ‘Over the medium to longer term, the College aims to:’ one item had been deleted: ‘establish new and dedicated judicial education facilities’. This was the only change in vision in four years of operation. The opening statement of the ‘Our future’ page is (like all but the vision for a building, unchanged between 2010 and 2014):

Our work so far has laid an important foundation. Judicial education is fast becoming an active part of life for every judicial oﬃcer in Victoria … JCVs ‘key challenges’ have remained unaltered. In October 2014 JCV still wants to ‘maintain existing activities while creating the platform for growth  within existing resources’ and ‘gauge the impacts of the College’s work’, although it is unclear what the ‘platform for growth’ is, or how the impacts are to be judged. ‘Impact’ is a wide and difficult thing to assess. Only a narrow part of JCV’s impact would be captured in its ‘participant feedback’ indicators of satisfaction.

Framework of Judicial Abilities and Qualities

Among the key achievements listed on its website the College includes adopting a Framework of Judicial Abilities and Qualities that deﬁnes the standards and expectations of a Victorian judicial officer.

The Framework describes its purpose again in terms of a terminus or end- point together with a goal of administrative performance (the industrial language of ‘deliverables’ that has leaked into education by way of management practices):

This Framework of Judicial Abilities and Qualities identiﬁes the knowledge, skills, behaviours and attitudes that the Victorian judiciary are expected to demonstrate in performing their judicial role. The framework aims to provide an essential self-development aid to individuals

23 Ibid.

158 chapter 4B: Case Study: Themes and Conclusion

by clearly articulating the standards to which those performing a judicial role aspire. It also aims to assist the Judicial College of Victoria, and other providers of judicial education and professional development, to design and deliver programs and associated resources to ensure the judiciary acquire and develop the skills and knowledge necessary to perform their role to the highest professional standards. (JCV 2008) (emphasis added) Rather than ‘identifying’ attributes, the Framework states them as desiderata. They are abstract concepts which are assumed to be ‘deliverable’ (a word from training terminology). The causal link or what Dewey would call ‘continuity’ between ‘design and delivery’ and the proposed outcome is by no means clear. Nor is it made clear in the remainder of the Framework or the various prospectuses.

The development of the Framework in the UK occurred after consultation, but it was merely applied in Victoria:

HOW WAS THE FRAMEWORK DEVELOPED? The Judicial Studies Board of England and Wales developed their Framework through a comprehensive process involving detailed consultations with the judiciary and with practitioners about the skills, knowledge and behaviours that are seen as critical in the performance of the judicial role. It was also informed by the best international standards of judicial performance. The Board of the Judicial College of Victoria considers that the JSB’s Framework of Judicial Abilities and Qualities applies equally to Victorian judicial officers (which, for purposes of the Judicial College of Victoria Act 2001 includes all VCAT members), and has adopted it as a clear articulation of what Victorian judicial officers expect of themselves, what the Victorian legal profession expects of judicial officers, and what the Victorian community expects of its judiciary. (JCV 2008), emphasis added The phrase ‘The Board … considers that the Framework … applies equally to Victorian judicial officers’ is a negation of ownership of the problem-space of judges’ own learning in Victoria. At video section 4, the Chief Justice says, ‘The big thing about the judicial College in Victoria is that it is run by the judges, for themselves’. In fact it is run by a Board made up of heads of jurisdictions and academics, not by judges conducting an intelligent inquiry into their own educational needs.

At video section 5, the CEO says, ‘The [judicial officers] drive the content of the programmes and publications that we offer. We make it happen, we bring it to life.’ Again, if the Board selects the Framework and the JCV brings programs to life, what is the inquiring learner doing? Having had inquiry foreclosed, and the content placed in the program by JCV experts (judicial educators) the participants need only attend and take the beneﬁt of everyone’s hard work expended designing and delivering programs. And demonstrate the qualities listed in the Framework, which are conveniently linked to programs as outcomes.

159 From Court to College

In other words, a Framework developed in the UK has been applied here, rather than being developed by Victorian judges, exploring their own problem- space in this court, drawing on the kinds of educational experiences that would foster growth through inquiry locally. This might be efficient, but it also seems to be a missed opportunity.

Leadership Program and corporate approach

In May a session on judicial leadership was held for ‘judicial officers [who] find themselves in leadership or supervisory roles’. There are reasons to be wary of the word ‘leadership’ in law, particularly when there is a danger of conflation between seniority, power, CEO status, and the warm and fuzzy psychological status-word ‘leader’. A transition is being effected. Judges are already in senior roles in a hierarchical system of authority, which means they have positional power over those beneath them. Reframing one’s role as a leader implicitly requires one’s subordinates to be understood as followers. There is a question of psychological framing. In addition, the leadership construct is problematic, although it is very fashionable in corporate sectors and in large law firms. Large claims are made for leadership as though it were a causally effective force in the world (see critique by Lakomski 2005, 2008), and from a participatory perspective, for reasons of motivation there may be reasons to object to separating members of teams into ‘leadership’ roles and ‘ others’ on a corporate managerial model. Whether it is appropriate in a court system is a question that at least deserves to be asked and discussed. These things could constitute a problem space of the kind a group applying Deweyan learning principles could discuss together. What occurs instead, in a managerial model, is a systemic change presented as a fait accompli.

A 360-degree feedback program was also run in this year, and I spoke to judges who had participated in it as well as other judges who had no inclination to take part and could be described as disapproving of the process. In its home territory of organisation studies, 360° feedback has been the subject of some criticism for various reasons, including the honesty of the feedback when there is any chance that participants might recognise the respondent. In a small community with only a few people participating, it is extremely likely that the parties will be known.

I understood from the way judges described their participation that they had given a list of names of barristers who might be willing to give feedback on their performance, and one judge had intentionally asked a barrister with whom he had had a ‘run-in’ in court for feedback. This seemed brave, but the genuine value of

160 chapter 4B: Case Study: Themes and Conclusion the feedback that might be given under such circumstances might be problematic. At a conference in 2006 in Adelaide, hosted by the Australian Institute of judicial Administration, the Chief Justice of New South Wales, asked rhetorically, ‘in what sense is a criminal I am about to sentence a customer whom I should be trying to satisfy?’ [in 360-feedback]

Particularly in the USA, judges’ associates occasionally boast that they ‘wrote judgments’ for judges (a form of vanity that is damaging to the judge). Judicial education that relies on consultants can expose judges to situations in which trainers succumb to the understandable temptation to claim that they ‘teach judges’, which panders to the guru-model already ﬁrmly in place in the management consulting industry. Clients are named on websites as a form of credentialing. Judges, in buying into the industry, inadvertently buy into supporting these consultants and ‘educators of judges’.

An example comes from the 2013 prospectus, which includes a session called ‘Managing courtroom tensions’ scheduled for March 2013. The presenter’s business website describes her in these terms:

[JK] is a mediator, facilitator and judicial educator, and is director of [JK] and Associates, a management consultancy specialising in dispute resolution, cross-cultural communication and organisational development … Over the past ﬁve years, [J] has been active as a judicial educator, working with courts and Tribunals across Australia … She also assisted judges of the Family Court of Australia for three years during the introduction of the less adversarial trial process … The programs on the new prospectus are set out to include the names of the steering committee organising the program, and these are always judicial officers, which is appropriate. Because the program is clearly developing and growing, there is little to be gained by revisiting old programs. However, the offerings on such a prospectus are only one limited style of judicial education. The Supreme Court does organise a conference over the summer break, and judges told me that lunches are organised at which a guest speaker such as a journalist might attend and give the talk. Some judges enjoyed this very much, and found it interesting and valuable. Other judges felt it was hardly related to the work and was not essential.

The College website also lists as a key achievement ‘introducing a Judicial Leadership Program to harness the experience of long-standing judges and to ensure the Courts and VCAT create opportunities for institutional innovation’. Apart from the problematic nature of the concept of leadership itself (Lakomski 2005), and its further alien status in law, interviewed judges said that leadership

161 From Court to College training at SCV had involved ‘playing pilot’ in Qantas ﬂight trainers, and that [judge x] had ‘crashed a jumbo jet into the Westgate Bridge’. This raises an issue of the stickiness of knowledge and the lack of transferability of knowledge across contexts (Elwyn et al. 2007; Heath and Heath 2007; Jensen and Szulanski 2004; Szulanski 2000, 2003; Szulanski and Capetta 2003; von Hippel 1994).

The founding CEO of JCV retired in June 2014 and was replaced by an existing staff member. The 2014 Report includes complimentary farewell words from the Chief Justice in which the word ‘leadership’ features. On the facing page, a quote from John Quincy Adams is set out: ‘If your actions inspire others to dream more, learn more, do more and become more, you are a leader.’ One strand of the leader- myth (the transformational leader) is thus brought right into the heart of judicial education as the ultimate words of praise.

Similar sentiments and pithy aphorisms appear on the walls of the new JCV Learning Centre and the brochure promoting it, including a quotation from the Chief Justice referring to justice: ‘The judiciary sees justice as just, sometimes fair, sometimes harsh. More than ever judges are under pressure to be fearless.’ (Cf the theme of justice as opposed to law or fairness.)

The brochure reproduces every paragraph on what are described as ‘Walls of Words’  inspirational quotes from Shakespeare to Anne Frank. Ironically, one, from Chesterton’s (1909:603-4) Horrible Triﬂes, comments on the cultural habit that constitutes being socialised as a lawyer, as discussed in the literature review:

The horrible thing about all legal oﬃcials, even the best … is not that they are wicked … not that they are stupid … it is simply that they have got used to it. Strictly they do not see the prisoner in the dock … They do not see the awful court of judgment; they only see their own workshop. For anyone inclined to warn against the ossiﬁcation that can accompany institution-building and the comfort of certainty, there is even greater irony in the fact that the next line, which does not appear on the inspiration-wall, reads:

Therefore, the instinct of Christian civilisation has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets.

The ‘brand identity’ on the JCV Website

The JCV website began operation in 2004 (JCV Annual Report 2003−04). It hosts several practice manuals that are valuable to practitioners and judges, and available

162 chapter 4B: Case Study: Themes and Conclusion to the public. Currency dates (‘updated to …’) were in some cases a year or more behind, suggesting more resources might be needed for publications.

Traces of JCV’s roots in legal professional development (LPD), CLE, and mandatory continuing legal education (MCLE) are clearly discernible in the JE offered by the JCV, and even in the personnel, since the inaugural Executive Director of JCV was the longstanding former Director of Legal Professional Development at Leo Cussen Institute, a PTC and CLE body established by statute,24 with universities and the profession as stakeholders. Given (1) the way culturally learned practices develop; (2) the insistence on control of judicial education by judges; and (3) the human tendency to settle into familiar, but largely static, patterns, this is to be expected. However, the dominance of legal habits of thought, supported by law’s signature pedagogy (Shulman 2005a, b; Sullivan, Colby, Wagner, et al. 2007; Sullivan, Colby, Wegner, et al. 2007), enculturated educational preferences, a tendency to call upon each other, or university professors, as experts, and increasing acceptance of a corporate training model, including ‘leadership programs’ and 360-degree feedback, makes genuine innovation or meaningful education (in the Deweyan sense) very difficult.

Clearly a great deal of effort has gone into developing and improving JCV programs. But however excellent an individual program, or suite of programs, JCV follows an institutional model, with external sessions in lecture/seminar/ workshop/form, along with guidelines, a curriculum, and a competency framework. That model, may be suitable for goal-driven (outcomes based) corporate training for workplace performance, but it is not an educational model in the terms of this thesis, where the test of growth is enabling further growth.

A general curriculum-content-based programme has a clear place for novices, or when the law changes extensively (as it did with the introduction of the Uniform Evidence Act, and the Victorian Charter of Rights). In such instances judges and magistrates at any career stage may benefit from introductory material. However, there was a clear tension between JCV’s express recognition of the need to match programs with career stages (a matter of linear development across a legal lifetime) and the conflation in a single category (‘judicial officers’) of magistrates and judges sitting at different levels of what is a precisely defined hierarchical system. In the 2015 Prospectus the Chief Justice reported that in response to feedback, the program had been streamed into jurisdiction-specific offerings. This has the benefit

24 Leo Cussen Institute Act 1972 (Vic) repealed by the Leo Cussen Institute (Registration as a Company) Act 2011 (Vic). The Institute now trades under the name ‘Leo Cussen Centre for Law’.

163 From Court to College of addressing needs more closely. A potential drawback is increased segregation of judicial officers according to level in the hierarchy, since cross-jurisdictional offerings bring together judges and magistrates whose paths might not otherwise cross.

For four years (200912) a multifocal, corporate-style marketing approach was taken in which glossy material was pitched at different target groups and the JCV offered a ‘brand image’ styled like corporate advertising. There is a marked difference between the ﬁrst, information-focused website and the new, corporatised site brought online in September 2009, the same year the ‘calendar’ became a full-colour ‘prospectus’.

A web page titled ‘Judicial Education’ appeared at this time, in the nature of a promotional piece about the excellence of the JCV itself. That page described a video on the site as: ‘a 2 minute video [which] features the Heads of Jurisdiction and the College staff discussing the unique nature of the College programs’.25

Its content and running time are analysed in in Table 4B.1 below.

Table 4B.1 Content analysis of JCV Judicial Education video Segment Time Percentage Images Onscreen text Sound/voice statement elapsed of total time (superimposed as (seconds) (rounded banner) to nearest whole number) 1 16 17% Paths (logo- Music, insistent ‘upbeat’ beat themed) swirling into sight

Images of Chief Justice, other Heads of Jurisdictions and judges involved on Board, CEO of JCV, others 2 5 5% [Logo] Judicial College of Victoria [Motto] Cutting edge curriculum 3 6 7% Justice Bell seated Justice Kevin Bell The maintenance of skills is now in front of law President, an indispensable part of being a reports Victorian Civil and judicial oﬃcer Administrative Tribunal 4 7 8% Chief Justice Chief Justice The big thing about the Judicial Warren in a Marilyn Warren AC College in Victoria is that it’s run courtroom Supreme Court of by the judges, for themselves Victoria Chair of the College 25 At www.judicialcollege.vic.edu.au/judicial-education, accessed 16 July 2010. This video had been removed when checked on 30 October 2015.

164 chapter 4B: Case Study: Themes and Conclusion

5 12 13% (1) Boardroom Lyn Slade The judges and magistrates and table, focus on CEO, Judicial VCAT members drive the content Lyn Slade, CEO; College of Victoria of the programs and publications (2) switch to office, that we offer; we make it happen, Lyn Slade seated we bring it to life near computer showing calendar- like table, similar calendars and lists pinned to board; (3) switch to high-speed vision of person scurrying around a conference table laying programs out at places set before empty chairs; (4) CEO strolling with CJ 6 16 17% (1) CEO and CJ The interaction, both professional enter room with and personal, [start of time with some evidence of Hulls in shot] that occurs between food, social break, the several judicial officers in talking together: the several institutions, is an (2) CJ and an important part of the process, and unidentified that can only be brought about woman talk to [end Hulls start Bell: pics and Attorney-General voice align here] by an institution Hulls; (3) scene that has overall coverage changes to Hulls and responsibility for judicial at podium talking; education [voice of Justice Bell] PowerPoint display reads ‘Judicial mediation’; (4) image changes to Justice Bell [A-G Hulls in shot for 10 of 16 seconds] 7 8 9% (1) Chief Justice Well as the years have passed, Warren in a the programs [switch to seminar courtroom; (2) room] have become more and switch to seminar more exciting, and more relevant at round tables, to what we do [voice of CJ] PowerPoint slide in shot, ‘Uniform Evidence Act’; (3) switch to shot of Evidence Act being opened for reading 8 7 8% (1) Speeded-up Magistrate Caitlin I was overwhelmed, I must say, shot of Prospectus English when I saw the prospectus for being flicked what the Judicial College was through; (2) offering this year in terms of Magistrate Caitlin programs English

165 From Court to College

9 11 12% (1) Samantha Samantha Burchell We’re constantly at the forefront, Burchell seated; Director Education not just of developments in the (2) shift to Lyn law, but also developments in the Slade receiving relevant social context issues with approval video titled ‘Sexual Offences: The Case for Change’; (3) shift to Lyn Slade with Chief Judge County Court behind his desk looking at his computer screen; (4) shift to computer screen showing start of video; (5) shift to Chief Judge head shot, talking 10 12 13% (1) Carly Schrever Carly Schrever Often experts are sourced from seated; (2) three Manager Projects overseas because they are presenters to the best people in that area to group (female, deliver that program, and so male, female); we always try to find the best expert, whether they be local or international 11 9 10% (1) Words swirling [Logo] Music, insistent ‘upbeat’ beat, around screen: Judicial College of triumphant cymbal clash at end Oral decisions, Victoria field visits, Cybercrime, Judgment writing, Advanced leadership, Developments in contract; (2) switch to logo as finale Total* 109 119.00%

* Actual total running time = 112 seconds (section times inexact due to rounding eﬀect; percentages approximate)

The Chief Justice comments at segment 4 that the ‘big thing about the Judicial College in Victoria is that it’s run by the judges, for themselves’. This is true in the sense that judicial officers have carriage of the various steering committees. However, as the ‘Faculty’ list from 2013 shows, reliance on academics is also high. The Board consisted of four judges and two academics until 2013 (JCV Prospectus 2013), although in 2014 this dropped to one. Increasing involvement by academics from Victorian and interstate universities was apparent from the prospectuses. In 2013 a page headed ‘2013 Academics’ listed these for the ﬁrst time in one place: ‘The Judicial College of Victoria is delighted to work with the following academics in 2013’ (JCV Prospectus 2013:4). There were 17 in all. However, the role of academics in the process is evolving, and its direction is unclear. In 2006 a diagram headed ‘Decision making structure’ was published on the website. It was an organisation chart that showed, in order of hierarchy, a College Board,

166 chapter 4B: Case Study: Themes and Conclusion a syllabus advisory committee, and education committees in each jurisdiction. Arrows showed interaction of each with College staff, the lowest rung, but not with each other. From more recent prospectuses it seems that each topic area presented now has a steering committee.

The Chief Justice’s comment at segment 7 of the video clip about the increasing relevance of programs reinforces the theme of relevance that emerged from the interviews. However, what is ‘relevant’ is strongly contingent on context, which includes the particular work judges are engaged in at the time the programs are run. A deeper kind of relevance, to growth, is close to impossible to achieve in such programs of events, however well planned and delivered. The key problem is that they are ‘planned’ and ‘delivered’ by experts, increasingly by academics rather than senior judges, the people that the interview responses suggest are the most highly valued: senior peers. I do not suggest abandoning formal programs. But the Deweyan side of judicial education is still missing.

In 2015,26 that video was no longer there. Instead, a video described as ‘a video message from the Chair of the College Board, The Honourable Justice Marilyn Warren AC, Chief Justice of the Supreme Court of Victoria, supporting the value of judicial education [which] runs for 3 mins.’

In fact the video runs for only 20 seconds. The text in full is:

I’m pleased to say I think that awareness of the need for judicial education has risen dramatically in the last ﬁve years through the College, and I think that judges and magistrates understand that they have a judicial obligation now to keep up to date. And that starts with me. [smile] (emphasis in original intonation)

JJudicial scholarship through the JCV

Once established, the IOTJ and JCV embarked on publication of journals.

The Ngrams in Apprendix C suggest a persistently low level of interest in judicial scholarship in general, and this makes sense; judges’ comments, in interviews showed that the notion of (academic) judicial scholarship was very weakly coupled to the role-identity of judges. What they thought about the law was constituted by their opinions, found in their written judgments, not in journal articles or other writings. (As one judge put it, ‘If I have something to say, I’ll say it in my judgments’.) Apart from occasional speeches, that is where judges address

26 Accessed 9 November 2015 at http://www.judicialcollege.vic.edu.au/about-us/-video-chair-college.

167 From Court to College the public.27 Judicial scholarship in this academic sense was thought to be at least unnecessary, and perhaps undesirable.

Once time has been spent on a paper, it is a good use of resources to make the work available. However, it is not clear what the advantage of the journal format has over publication on the website, since there is a cost in editing and layout, and the factors that make academic journals a necessity do not obtain here (e.g. peer review, citation counts, scholarly discourse).

Settling down to spin? Changing from calendar to prospectus

In 2010 the Chief Justice gave a speech titled Judges don’t spin (Warren 2010a). However, by then, the JCV was increasingly ‘professionalised’ and branding had begun to carry image-conscious spin. In 2012 the website carried self-congratulatory messages:

The Judicial College of Victoria is a leader in judicial education and professional development … In just a short time, the College has become both a national and world leader in judicial education and training. Our activities beneﬁt judicial oﬃcers, the Victorian court system and the wider Victorian community. Between 2003 and 2008 at the JCV, a single-leaf (2-page) calendar of events was offered to what are now called ‘judicial officers’ in order to include the magistracy (Figure 4B.1).

In 2009 a sudden leap in professional presentation turned the calendar into a 48-page glossy ‘Prospectus’ printed in full colour, complete with photographs and selective corporate-style testimonials (Figure 4B.2).

I interpret this professionalisation as an indication that the JCV, after a modest start, is settling into an institutional role and is establishing its processes as an education provider in order to run an improved calendar of events, with more offerings (the ‘prospectus’).

The 2013 Prospectus,28 with a picture of Justicia seated outside the Supreme Court, carries the legend, ‘10 years Excellence in Judicial Education 2002−2012’ although in 2002 JCV was still in the planning stages. The College began operating in November 2002, and was formally launched on 13 May 2003.29 Its ﬁrst Calendar was

27 Courts speaking through the media is recent. It is part of the political complex centred on conﬁdence in the courts. 28 At www.judicialcollege.vic.edu.au/college-prospectus. 29 Source: website http://www.judicialcollege.vic.edu.au/about-us/our-history.

168 chapter 4B: Case Study: Themes and Conclusion issued in 2003. As at 2008, even judges who were supportive of judicial education were hard-pressed, in interviews, to ﬁnd anything relevant to them, although relevance emerges in this research as a key theme for those attending education sessions.

In 2009 the ﬁrst ‘Prospectus’ was issued to replace the ‘calendars’ of 20032008, and at that point the ‘Excellence in Judicial Education’ branding began.

The two-day law and literature program, designed for ‘longer serving judicial officers’ (Henderson 2006)30 is described as

a sophisticated, engaging exploration of the principles of justice and the judicial role. Through philosophy, novels, plays and case law, participants will reﬂect on their role as decision makers and to what extent the modern legal system allows them to implement principles of fairness and the common social good. (JCV Prospectus 2013)

Figure 4B.1 The original Calendar

30 It is unclear why ‘senior’ here (more out of touch? wiser? tired?). However, experiments with narrative as something external should be resisted ‘as if the purpose of literary devices were to rejuvenate the law, to add spirit to the letter’ (Henderson 2006:918). 169 From Court to College

Figure 4B.2 Ten years: Justicia sits with her sword, contemplating the ﬁrst institutional milestone in the judicial education industry.

Figure 4B.3 Since then: The prospectuses for 2014 and 2015. Goal achieved.

The program sounds engaging, revitalising in the sense referred to appreciatively by judges at Stance 1 in my reasonable learner scheme. The experienced presenter,

170 chapter 4B: Case Study: Themes and Conclusion like Professor Raymond, who runs the writing classes, is no doubt excellent. The consultant who runs classes in ‘Managing courtroom tensions’ all over the world is no doubt also excellent.

In the Prospectus the interesting-sounding Lind programs, which are probably valuable in their own terms, are ‘legitimated’ by being linked to ‘outcomes’ and to the Framework:

 Knowledge and technical skill: controls court proceedings through fair and effective management and intervention; logically identiﬁes critical issues;

 Professionalism and integrity: maintains independence and authority of the court; treats all people attending, appearing and working in the court with respect and dignity

 And again, the justiﬁcation of conforming to predeﬁned goals, rather than engaged exploration:

 After this program participants will be able to:

– describe the place of reasoning and logic in judicial decision making; – distinguish between inductive and deductive reasoning; – articulate the logical signiﬁcance of validity, truth, soundness and fallacies; and – analyse judicial decisions for soundness of reasoning.

 Knowledge and technical skill: logically identiﬁes critical issues; weighs relevant issues and matters to formulate reasoned and coherent decisions;

 Decision making: reaches reasoned decision based on relevant law and ﬁndings of fact

These are not premised on any particular learning theory, and they are not related to education as growth. They are formulas that echo higher education, where aims or goals are expressed as outcomes, and (problematically) used as measures of quality or performance (Hussey and Smith 2002, 2003). They do not ‘belong within the process in which they operate’ but rather ‘are set up from without’ (Dewey 1916)[MWv09:108]. There is no ascertained continuity between the present state of affairs and the desired aim. The aims are free-ﬂoating, not attached to the participants in any way, but to the administrative framework in which they are offered. They are activities which may or may not turn out to be relevant or enjoyable if the participants make them so. But there is no continuity between the participants and the statement of outcome.

171 From Court to College

A Pragmatist approach to education starts at the place we are at, and incrementally improves. And the JCV has been building the scope and range of its offerings. But it is a limited form of education, a calendar of events just as it was before the names changed to a grander, corporate-style ‘prospectus’.

For whatever reason, the 2013 prospectus is markedly different from earlier versions, which were of increasingly glossy design. The 2013 version reverts to a less glossy document, without internal pictures, gratuitous design elements or testimonials.

In 2014 the prospectus had a similarly modest cover, and was 31 pages in length, and produced in two colours. The Board of six comprised the Chief Justice plus three other judicial officers from the other jurisdictional levels, and two Attorney-General’s nominees, an Adjunct Professor of Management and an Associate Professor of Law.

The new 2015 prospectus (25 pages, full colour: Figure 4B.3) features the building in which the new JCV Learning Centre is housed. The Board of five has one less academic. Eight programs are offered cross-jurisdictionally; there are two new collaborative ‘partnership’ programs (National Judicial Orientation Program and Magistrates and Tribunal Members’ Orientation Program) and five separate, jurisdiction-specific programs for Supreme, County, Magistrates’, Coroner’s and Children’s courts.

The cross-jurisdictional programs are:  The Age of Statutes: Statutory Interpretation and Administrative Law  Sentencing in an Environment of Change  Why give Oral Reasons?  Evidence, Evidence, Evidence  Balancing the Demands of Judicial Life  Speaking their Language: Young People and the Courtroom  Back to Country: A Weekend on Gunai Kurnai Land  Forensic Medicine for Judicial Officers

The presence of the ﬁrst item in the program (statutory interpretation), may be a response to the perception that law schools are not doing their job when it comes to teaching that skill (Warren 2015).

The Deweyan objection to the Prospectus is not to its contents, or to the quality of the experts. It is to the apparent settling of JE into the familiar ‘delivery’ model already established in the USA, and to the importation of the style, programs,

172 chapter 4B: Case Study: Themes and Conclusion talent, Framework of Judicial Abilities and Qualities, along with the paraphernalia of established beliefs in management consulting circles (360-degree feedback, leadership programs). Based on its website, these are ‘key achievements’ of which the JCV appears to be most proud.

Even if JE is now ‘OK’, or ‘quite good’ or even ‘great’ – the three positive overall views of judicial education by the ‘Reasonable Judicial Learners’ of varying viewpoints in my study, it is a paradox that habit is both an enabler of expertise and a drag on the innovation that keeps that same expertise sharp and relevant. That is why Dewey brought reﬂection into the notion of intelligent inquiry, to attempt to overcome the effects of habit.

(e) A stable community of ‘Australian judicial educators’ [T]here are times in life when the question of knowing if one can think differently than one thinks, and perceive differently than one sees, is absolutely necessary if one is to go on looking and reflecting at all. (Foucault 1984:8)

A tightly coupled global ‘industry of judicial educators’ appears to be forming. The directors of the AIJA, Judical College (Vic) and Judicial Commission (NSW), pictured with others (including NJC Executive Director) have established a small, tightly coupled system that is very stable and reliable. Members of this group describe themselves as ‘judicial educators’, and since the ﬁeld of JE is tiny, and membership of the group rarely changes, its members meet and form a tight sub- group within larger conference-style events.

Figure 4B.4 Judicial educators (Cth, NSW, Victoria)31

In the USA, courts at state level have an established industry of educators.

In 2004 I attended a small conference32 hosted by CLEAA in Tasmania at which judicial educators not only formed a separate sub-group but indicated that 31 Photograph on Judicial College website with that caption: www.judicialcollege.vic.edu.au/about-us/ working-others, accessed 8 July 2012. AIJ Executive Director Greg Reinhard on left, next to him Lyn Slade, formerly Director of Legal Professional Development at Leo Cussen Institute (retired in 2014, replaced with an in-house appointment). Together, these three have decades of tenure in their roles. 32 In the order of 30–35 attendees.

173 From Court to College

‘the judicial educators need to sit together so we can talk’.33 This is good social networking practice for such groups, but it also takes the members of the sub- group out of contact with the wider group of CLE educators, who are concerned with programs for the entire profession. There is some irony in the fact that those tasked with ‘keeping judges in touch’ through institutionalised JE are themselves losing touch with their professional roots in the name of that specialisation.

This group has formed a distinct subset in the CLE landscape. On the JCV website, the only previously stated goal claimed to have been achieved is to get JCV into its own premises (in fact it is the only concrete claim that is not ‘mere puff’ in the Carlill v Carbolic Smoke Ball [1893] 1 QB 256 sense – e.g. being a world leader, being relevant). The variable salience of the wider social importance of JE is apparent in these responses. Is JE a problem space, in Dewey’s sense? Whose problem space is it? To what or whom is the duty to attend owed? The Chief Justice? Other judges? The public? The Attorney (to satisfy public perception)? To the educable self?

In May 2008 there was a session on oral decisions being delivered by Professor Edward Berry, who is described as ‘leading the judicial teaching faculty’. Without reference to that session in particular, one of the judges remarked on the new industry of judicial educators that would spring up as JE continued.

The local judicial educators emerged into open view when they at last moved outside CLEAA, the already small organisation devoted to continuing legal education in Australia in which they had been a distinct and quite separate sub-group, to become the even more exclusive ‘Group of Australasian Judicial Educators’. This is a clear statement of role-legitimation, a symbolic declaration of arrival and of status. Like the Group of Eight (‘Australia’s leading universities, leading excellence, leading debate’)34 the Group of Judicial Educators are elite. The secretariats of the two chief brokers (the AIJA and the JCA) are housed in Go8 universities (Monash and Sydney, respectively) while the NJC is at the ANU College of Law. The two non- Go8 affiliations, the Judicial College of NSW and the Judicial College of Victoria, 33 Statement made to conference organiser in my presence. 34 Website at https://go8.edu.au/ accessed 9 November 2015. On the home page a brochure can be down- loaded (https://go8.edu.au/sites/default/ﬁles/docs/pocket-brochure-web3.pdf). It is called ‘Facts of distinction’ and includes many self-legitimating claims: ‘We have educated 79% of the Australian-educated Chief Executives of the nation’s top companies.’ The group ‘comprises Australia’s premier group of Uni- versities [and] prides itself on being elite but not elitist.’ In September it had experienced what it called ‘brand health issues’ when it was incorrectly reported that its graduates earned less than others. This ‘sensational, but incorrect claim’ had ‘riled the top sandstone universities’: ‘The result sat oddly with the fact that the Group of Eight institutions … are the most sought after and attract the cream of Australia’s year 12 students’ (https://go8.edu.au/article/graduate-earning-power-study-goof-admitted).

174 chapter 4B: Case Study: Themes and Conclusion have their own buildings. For JCV, connections to CLE tradition was seen as a positive, and appeared in the press statement about the launch of the ‘$2.7 million’ College: ‘Mr Hulls said the Judicial College of Victoria’s inaugural CEO, Lyn Slade, brought a strong background in legal training and education, having been the director of legal professional development at the Leo Cussen Institute since 1995’ (Hulls 2003c).

The AIJA gives life memberships and awards for excellence in the field, and a small group of like-minded academics are also in this community. Christopher Roper, an early proponent of mandatory CLE (Roper 1984) and one of the few educators in the field who has produced academic work, is one. He wrote the Discussion Paper (Roper 1999), Standards and Curriculum for the NJC (Roper 2006, 2007); and he is now the Secretary of the Judicial Conference of Australia. He has been a member of CLE bodies and conference presenter (Roper 2003, 2005), a CLE educator and administrator (Executive Director of Leo Cussen Institute in Melbourne and Director of the College of Law in Sydney, and in a private firm, and the Centre for Legal Education). There is no doubt that he has given great service to legal education (and he was made a Member of the Order of Australia for that service).

Considered in terms of couplings, those between the small band of CLE administrators and the continuing legal education institutions are very tight indeed.

At the CLEAA Conference in 2005 Roper said, of the founding of the NJC:

In 1999 I was commissioned by the Australian Institute of Judicial Administration (AIJA) and the Judicial Conference of Australia to write a discussion paper to inform decision making should the decision be made to establish a judicial college in Australia. What I did not do, and indeed I was not asked to do, was - argue in favour of judicial education, or indeed argue in favour of an institution to provide judicial education. My role was to take these two positions as givens, and proceed on to outlining and discussing speciﬁc issues which would need to be considered should such a proposal be taken forward. (Roper 2000) (emphasis added) These ‘given positions’ within the tightly coupled group of legal educators are strongly patterned on the way legal educators have done things in the past.

LCI as a the pattern and model

An example of close coupling in the community of ‘building-driven, close-knit circle of old-retainer educators’ can be found at the LCI itself. LCI was groundbreaking in 1972, when it was established with its own Act. By the twenty-ﬁrst century its stable and comfortable position seemed assured, and its own security

175 From Court to College made it administratively self-serving, focusing its resources and attention on its most closely coupled division, PTC. The professional development arm was very tightly coupled to its calendar and its process (seminar session with a reliable supply of sandwiches, paper printed, guest lecturer introduced by staff member, guest speaks to or reads paper,35 young practitioners paid for by ﬁrms showing up to get their names crossed off,36 then disappearing, papers sold, papers discounted as a Christmas special) so that the Legal Professional Development system was understood by the organisation to in effect ‘run itself’.

As a company limited by guarantee LCI’s charitable purposes remain unchanged:37 ‘providing education for legal practitioners, prospective legal practitioners and others concerned with the application of the law’. It has, however, been disproportionately focused on the second object, which serves numerically less than .05% of its constituency,38 and serves even that constituency in ways that do not maximise practice-based learning, despite being the ‘Rolls Royce’ model of postgraduate practical training.39 The PTC staff have a right of private practice in addition to being provided with salaries and offices, but students (who occupy 3 of the 4 operational floors)40 are not involved in those practices, even as occasional 35 When guests literally read their papers, attendees could follow along word for word; the only reason to stay was in case there might be interesting questions at the end. 36 Firms sometimes rang to check whether their solicitors had in fact attended. The difference between the numbers of registrants and the number of attendees was sometimes significant. 37 Explanatory Memorandum, Leo Cussen Institute (Registration as a Company) Bill 2011 (introduced to the Legislative Council on 25/10/2011). 38 Roughly calculated at the maximum of 150 postgraduate (PTC) students and 3000 practitioners (LPD) using Leo Cussen’s services. As at 30 October 2015, the LIV reported 18,943 members of all types, and the Leo Cussen website showed seven staff members serving the profession in LPD, while a team of 25 PTC staff, many of whom, like the Executive Director, have been there for more than 20 years, served the needs of the PTC course (www.leocussen.edu.au/cb_pages/aboutus_our_people.php). 39 Compared with its larger rival, the New South Wales College of Law, which used computer-based training initially eschewed by Leo Cussen, but which it was forced to adopt itself in about 2004–05. 40 The PTC course was formerly arranged to take 7 months, which meant only one intake a year could take place. When I was there in 2004, in the other five months three floors of the building sat idle and the mentors conducted their practices on salary and undisturbed by teaching commitments. Competition from the NSW College of Law, which had been under the directorship of Christopher Roper, and the switch to a graduate diploma of legal practice, forced reform, and two intakes a year were commenced. Meanwhile, the LPD staff were crammed into a small space on the ground floor behind reception, much of it filled with old filing cabinets and VHS tapes until these were cleaned out in 2004 by Deborah Hann, the Director of LPD who replaced Lyn Slade when Slade moved to become Executive Director of the new JCV but remained for only two years. At that time, PTC fees were about $6000 per student (for an average of 120 students), while more than 10,000 individual attendances by practitioners, at an average seminar fee of $80, in addition to conferences, brought in the bulk of the money that was not supplied by external funding. Staff turnover in the two divisions may be indicative of job satisfaction levels: LPD staff worked full-time, unlike mentors, but were paid less, and LPD has experienced much higher turnover.

176 chapter 4B: Case Study: Themes and Conclusion observers. Although their mentors are real, live lawyers running practices in the building (an opportunity for close coupling of education and practice), in fact the training is conducted purely as a role-play, and there is no coupling of PTC learning with mentors’ practices.

Section 10 of the Leo Cussen Act provided for the appointment of an Assistant Executive Director or any other officers, but that was never done. Power was closely held by the ED, and even when absent for periods of some weeks each July, no director held an Acting position. Descriptively, this is a tight coupling between Executive Director and power, which would have to have been loosened to admit the role of Acting Director.

Long tenure in an Executive Director post, observable across this sector, from LCI to the AIJA, the NJC and the (younger) JCV, is also a tight coupling, as is the relationship between local and overseas CLE educators, who are known to each other through ACLE41 and CLEAA,42 the professional organisation for continuing legal education, which hold annual conferences. The presenter of the JCV writing program is a long-established US academic, trained in rhetoric, who has taught at the Judicial Commission of New South Wales and frequently attends CLEAA and NJC conferences.

Both Leo Cussen and the Law Institute run an annual ‘calendar of events’, and both have intensive CPD sessions designed to allow practitioners to get all their CPD points out of the way at once. The LIV describes this as a ‘two day multi-disciplinary conference’ at which exhibitors can set up displays: ‘Become a partner at the 2015 LIV CPD Intensive – the centre-piece of the legal profession’s education calendar.’

The habit of needing an institutional home: Achieving ‘A Dedicated Learning Space’

Buildings feature strongly in this story. Each institution has, in different ways, focused on its building as a bricks-and-mortar expression of its freedom and power. Buildings mean something: they and their texts amount to social practice, and can be ‘read’ (Markus 1993).

41 Association for Continuing Legal Education (www.aclea.org). Its annual three-day meetings are held in the USA; the Executive Director of Leo Cussen invariably attends, although CLEAA is not an aﬃliated organisation. See www.aclea.org. 42 Continuing Legal Education Association of Australasia. The tiny organisation, with 147 members as at 30 June 2015, many of them consultants interested in working with law ﬁrms, has a secretariat at the Leo Cussen Institute in Melbourne. See www.cleaa.asn.au.

177 From Court to College

At Leo Cussen, the security provided by the building (the ground floor was rented out as retail space) enabled it to be financially and educationally comfortable. Arguably, having a secured building and regular grant funding gave it a particular set of constraints and affordances that influenced its very stable, solidly built and anchored educational patterns. In fact, once the building was paid for, the role of finance director was allowed to lapse: since little changed over time, the bookkeeper, another old retainer, was able to keep the system running on established patterns. This saved a director’s salary.

The Law Institute was severely affected when its building burned down in an arsonist’s attack in 1978,43 and its replacement consumed a large amount of organisational attention. Space was at a premium, creating difficulties for organisers. At the time of the introduction of mandatory CLE in 2004, competitive tensions between the two organisations was high; it was reported and widely believed44 at LCI, which had a better building, that the LIV was not only copying its programs45 but was engineering a takeover of LCI in order to get hold of its real estate.

An aspect of habit-connected learning was referred to by the Chief Justice, who, when launching the new home for JCV, continued the university for judges schema that had been adopted by JCV early in the process, and said with apparent nostalgia for law schools:

The importance of having a dedicated learning space cannot be underestimated. There is a simple reason why many students return to the same study or library over the course of their life, regardless of their stage of learning. A stable and orderly haven inevitably relaxes the mind and makes one more receptive to learning. It is anticipated that the learning space will have this effect. The Learning Centre is the ﬁrst ‘campus’ for Victorian judicial officers.

However, law schools themselves are no longer havens of relaxation. Further, the mental states in which learning occurs most effectively are now understood to be emotion-laden rather than relaxed. It is also unclear why judges with chambers would want to make the journey to a learning centre. Students float around at university and may be grateful for a carelle or common room, but judges have chambers that qualify as ‘havens’ (with much thicker walls) and also have, as interviewees insisted, all the research tools they need. 43 http://www.liv.asn.au/About-LIV/History-Awards/Timeline/1970−1999/Fire-destroyed-the-Law-Insti- tute-of-Victoria-build. 44 Among staff there at the time; I have been unable to find documentary evidence of a proposed takeover, but it would have been a beneficial move from LIV’s perspective. 45 The ‘smoking gun’ evidence here was that similarly named programs would suddenly appear, and be scheduled a week or two before LCI’s own advertised dates.

178 chapter 4B: Case Study: Themes and Conclusion

The theme of relevance that emerged in the Bar survey is repeated in the JCV rhetoric: JCV ‘continue[s] to evolve a vibrant and highly relevant judicial educational institution’ (Warren CJ, Annual Report 2013). But the emphasis is on an attractive learning space having been achieved, in which learning will naturally occur at events:

The Learning Centre offers a modern and versatile campus for the seminars, workshops, training and events developed by the JCV. Located close to the courts in the William Cooper Justice Centre, the contemporary and light-ﬁlled venue provides a full suite of services including security, state-of-the-art audiovisual facilities and catering.

Of the Walls of Words the Chief Justice said:

A prominent feature of the Learning Centre, the ‘walls of words’ serve as points of reﬂection and inspiration for visitors. Drawn from judgments, speeches, literature and popular culture, the eclectic references resonate themes of justice, law, truth, the judicial role and lifelong learning. The fortuitous and sometimes surprising juxtaposition of the words captures the essence of the JCV –academic and intellectual rigour, innovation, commitment and excellence. JCV’s hope for a bricks-and-mortar home was thus achieved in August 2013. It was the only achieved ‘outcome’ (goal, as pre-deﬁned) of the program so far.

When JCV achieved its own new ‘learning space’, the prospectus and Annual Report both featured the new building. The centre was praised as being modern and ‘full of light’ of the physical kind. In evolutionary terms, it was a new nest, and the educators set about decorating it with carefully chosen, inspirational words (the ‘Wall of words’ discussed below).

The Chief Justice has addressed a conference on ‘The Politics of Court Architecture’ (Warren 2010b), and there have been political battles over the old, historically important building.

In 2004 the Chief Justice had supported the LIV’s push for a new building to house the Court. The LIV cast the argument this way: ‘the Court had to assess the best way of administering justice because of the Supreme Court’s position at the top of the court pyramid in Victoria ...[It] should be located in a building that maximises that signiﬁcant role’ and ‘All other courts operating in Melbourne are located in modern and effective buildings.’ The LIV had ‘correctly highlighted the problems of modern litigation in the existing Court buildings’, and ‘Perhaps the time has come, as the Law Institute has identiﬁed, for reconsideration of the Supreme Court building.’ The Bar and the Attorney-General, for once ad idem, wanted the Court to remain where it was (see e.g. Denton 2004). However, when A-G Hulls

179 From Court to College had three-stage plans for the entire legal precinct drawn up under DoJ directions under a ‘Courts Strategic Directions Project’ and released them in May 2005,46 they included ‘a major redevelopment of the Supreme Court building that will see new modern courtrooms and a glass roof enclosing the courtyard’. The Chief Justice was reported as saying ‘the concept of covering the courtyard and cobblestone lane was “breathtaking”’. However, the Library and existing courtrooms 5, 6, 7, 7B, 8 and 9 would be demolished to make way for six new ﬂoors to be added to the two- storey building, and reaction against the proposal was strong. The building has not proceeded,47 but the Chief Justice apparently remains committed to modernity. In a recent interview at the time of banning wigs, she said, ‘Although we live and work in a 19th century environment we are trying to be a 21st century court’, a remark clearly adverting to the court building (Percy 2016).

In 2014, demonstrating the same connection to the physical building as Leo Cussen Institute and JCV had also done, the Supreme Court’s Strategy Statement expresses the need for an ‘Iconic Court Building’, to which end the Court will ‘Work with the CSV Courts Council and Judicial Services to develop a legal precinct facilities master plan that advances the compelling need for a state-of-the-art court building (which complements court delivery of the future)’ (SCV 2014).

This rhetoric of architecture easily matches the rhetoric of political government: thus, at Moorabbin Justice Centre,

The building investigates and delivers methods of defusing traditional formality, fear and stress associated with the delivery of justice. (FMSA Architects (in Beynon 2010))

The new rhetoric of court architecture remains in the same psychological realm of fear, but emphasises law’s role as protector of community against other risks. Thus:

The Brisbane Magistrates’ Court … rejects monumentality, favouring instead community access and participation through a maximisation of the literal transparency of the building. The Pine Rivers Court … also embraces this shift, through an extensive use of natural light, they aim to promote perceptual and psychological feelings of openness, transparency and safety. Of course, the civic nature of courts means they also provide a focus for the community. (Beynon 2010:6−7), 46 They were on display on the Court website in 2005, but have since been removed. However, the architects entered plans for a new Court 15 in the Royal Australian Institute of Architects awards in 2008, and a conceptual representation (not the Banco Court as the entry indicates) can be seen at http://dynamic. architecture.com.au/awards_search?option=showaward&entryno=2008034323 accessed 30 October 2015. This court has not been built either. 47 On the iconography of twenty-ﬁrst century courthouses, see Resnick 2007).

180 chapter 4B: Case Study: Themes and Conclusion

The siting of courts also has political salience. Governments like to construct police stations next door to local court houses for administrative convenience. This habit is legally unreﬂective – insensitive to the impression it creates of a cosy relationship between police and magistrates, and it promotes ‘law and order’ over ‘rule of law’. This impression passes unremarked by the architects:

From an urban design perspective, Ipswich Justice Precinct is just that – a precinct rather than a single building. The Precinct comprises a new District and Magistrates’ Courts building and adjoining Police Station (Beynon 2010)

Architects are noticeably sensitive to other, overtly design-related aspects of their designs: thus a new design for the Shepparton Law Courts, costed at $73 million, features a ‘welcoming entry lobby inspired by the image of the ancient River Red Gum’.48 They are also, as noted in the quotes above, sensitive to the need not to intimidate49 those coming before the courts. But they are insensitive to the Westminster system, which relies on separation of three powers. The system is a ‘structural loose coupling’ in which tensions are constitutive of the system. No attempt is made to express the idea of the ‘rule of law’, which overtook ‘law and order’ in the literature for the ﬁrst time in the 1990s (see Ngram 6 in Appendix C).

Symbology: the logo of protection

The JCV calendar/prospectus generally featured just the JCV logo; the CEO was pleased with the design.50 It is certainly more stylish than the logo of its US counterpart, the NJC, or of the JCA. Notably, the abstract ‘shield’ shape on the JVC logo is explained on its website as ‘protecting Justice’:

The College logo shows the intertwined letters ‘JCV’. It symbolises three concepts: the sym- metry of the scales of justice, a shield defending justice, and a continuum of life-long learning. (my emphasis) Burnett (1987:79), discussing the symbolic meaning of Themis, the Greek goddess of Justice, tells us that in courthouse architecture:

Themis is usually portrayed standing on a pedestal, blindfolded, holding a scale in one hand

48 See image at https://www.courts.vic.gov.au/news/shepparton-law-courts-designs-released, accessed 30 October 2015. The ‘welcoming’ portal appears to be four stories high, on a five-story building, and simultaneously ‘seeks to provide an affirmation of the importance of civic building in the life of the community’. 49 The contrary argument is to the effect that courts are supposed to be intimidating and unfamiliar, and convincingly authoritative rather than friendly. This argument can also be used in support of wigs and gowns and large portals on court buildings. See Vignette 3(g) below. 50 Personal communication, Executive Director of JCV, at time of application of this logo to glass panel at the office in Lonsdale Street premises. 181 From Court to College

and a sword in another. Those elements together comprise the contemporary symbol for justice … [and] she is an effective representation of a very general, i.e. unspecified, concept. The shield-shape is a standard device in heraldry without any particular connection to justice. Indeed, Justice is never shown with a shield, but is often shown with scales and/or a blindfold: in an early example, The Allegory of Good Government,51 Justice is the only figure to appear twice, once, among the virtues and of the same size, as a ‘Vindictive Justice … [who] displays a sword, pointing upward; a severed head lies on her knee’. The other is larger, with her own throne, with Wisdom and Concord above and below; cords thread from the scales to Concord, from Concord to upright citizens, and from there to the enthroned ‘Common Good’ figure (Curtis and Resnik 1987). In the literature there is discussion of the core elenments of blindfold, scales and sword of Justice, and about the scales not being respresented as ‘balanced’ but tilted (as is necessary in a determinative act of justice through judgment). However, the amorphousness of the term ‘justice’ opens it to political manipulation:

‘Justice’ is an example of one of ‘those symbols associated with the political community …likely to be objects of the broadest and most enduring attachments’ … she is an effective representation of a very general, i.e. unspecified, concept. Used deliberately in different contexts Themis is a focal point, a significant symbol … that makes social communication and understanding possible. Because of the generality of the concept of Justice, contemporary writers can draw on the shared meaning to increase the power of their statements by manipulating the accoutrements of Themis. (Burnett 1987:79, omitting references) In this political symbology, Justice punishes and protects the people, not herself. In the conjunction of law and education, education would thus not be protecting law, but forcing its growth. However, because JE was established as an act of political reassurance, JCV is in fact as politically conceived: a ‘shield’ protecting judges from public grumblings over sentencing, as the welcoming statement on the JCV website52 makes clear:

The Judicial College of Victoria provides education for judges, magistrates and VCAT members. We keep judicial officers abreast of developments in the law and social issues, and help them build and maintain the skills they need to perform their roles with rigour. Maintaining the community’s confidence in judicial officers is essential to the rule of law. Judicial education and ongoing professional development are powerful agents to support and reinforce cultural change within the justice system. The word ‘rigour’ is a curious word to use for the judicial role, but it is a ‘Motherhood word’ in academia (Lynch 2005). Arguably, a better choice would 51 By Ambrogio Lorenzetti, c. 1340. 52 At www.judicialcollege.vic.edu.au/ on 1 November 2015.

182 chapter 4B: Case Study: Themes and Conclusion be ‘conscientiously’ or ‘in good conscience’, which are the natural counterparts of ‘judgment’ and ‘duty’. Here, arguably, can be seen a ‘manipulation of the accoutrements of Themis’ such that her imaginary ‘protective shield’ consists of judicial education rather than judicial conscience.

In the second paragraph, conﬁdence in the courts is the stated goal, but it is achieved through JE conceived as ‘an agent of cultural change’ within the system – and these are neither the corporate–industrial words of training, nor the educational words of growth, but the political words of ‘re-education’ (Gleeson 2003).

For the (early) tenth anniversary, the prospectus featured the Supreme Court Building and Justicia: symbolic of the senior court in the hierarchy at a formal event. The court building itself is a totem, the physical equivalent of a verbal mantra, repeatedly used as a symbol of the profession. The building is coupled to the Bench and the profession in complex and interesting ways. If a long enough view is taken, there is movement even here, in the continual drawing of plans and a withdrawing back to the solid building that is already there.

183 From Court to College

4B.4 Vignettes exploring salient metaphors (a) From Bar to Bench, and the signiﬁcance of benches (b) From Old Sir George to MCLE (c) Loosening the couplings of tradition: Vale Victoriana? (d) Uncoupling from the past: women, history and the SCV website (e) Public profession of faith in law: Fading ceremonialism (f) Business Unit 19 (g) Loose and tight couplings in the court environment (h) Expanded awareness, looser and tighter couplings In this section I use methods that include discussion, scholarly references and images mixed together, in cross-semiotic mappings of themes emerging from data and literature together.53 I also use Weick’s organisational development metaphor of loose and tight coupling (its legal counterpart is loose and tight construal of language) across a range of loosely and tightly coupled themes.

(a) From Bar to Bench, and the signiﬁcance of benches

This vignette discusses the movement from Bar to Bench as a departure rather that a phase-shift experience within a dyadic situation, and of the Bench as a historically continuous but constantly reconstituted organisation. It uses Weick’s (1976) metaphor of loose/tight coupling to structure the inquiry/space, and in this case explain how I discovered my theorising was misplaced.

My research project assumes that cognitive schemas contribute to legal professional identity, and thus constitute a central concern of socialisation within a profession (one aspect of learning to be an expert). The research aim of this project as originally formulated was:

to locate and analyse the culturally cohesive schemas that make Bench and Bar the site of an interconnected system of experience-based professional development in order to explain the way cultural meaning affects post-compulsory legal learning for barristers and judges, and in doing so find new approaches to a conceptually wider yet more differentiated system of judicial professional learning for judges that is focused on new conceptions of judicial scholarship and judicial practice. During this research, one assumption made about the context of the research aim – that Bench and Bar constitute the site of an interconnected system of experience-based professional development – was revealed to be overstated. While

53 For methodological justiﬁcation see [5.3.5].

184 chapter 4B: Case Study: Themes and Conclusion the claim of such a connection is historically defensible (and I framed my question on the old assumption) the fact is that I found times had changed.

Here, the situation as I experienced it was not as I had thought (or abstractly assumed and supposed, as I premised the research on ideas formulated from outside the problem-space itself). The data suggested that Bench and Bar are now less strongly dyadic and overlapping than was initially supposed.

Is this a loss? Is it a beneﬁt? Both, and neither. I have, while attempting to approach the research from a Deweyan perspective, accidentally fallen into a genuinely Deweyan ‘situation’ to be clariﬁed. That is the balancing compensation, the cart that goes forward as well as backwards. Crouch (1997:ix) says in the context of counselling practice that the ‘true test of a theory is ‘can I make it come alive, can I make it a part of my personal, and then my practitioner, ‘bones’?’’. Dewey suddenly comes alive.

The claim about the dyadic nature of Bench and Bar was an ‘intuitive conception’: something tentatively deﬁned as ‘preexisting knowledge or knowledge structures that predispose individuals to think and act in particular ways without much conscious reﬂection’ by Torf and Sternberg (2001:3). It was not that I hadn’t thought about it: I was just thinking about it from outside the problem-space, as a good spectator does.

For Dewey, knowledge is war ranted assertibility, and truth is ‘not warranted assertibility but the limit toward which assertions tend as they are increasingly more fully warranted by scientific investigation’ (Putnam 2010:37). The concept of truth is an artefact of a subject/object framework, such as that of the language in which laws are recorded. The idea of truth strongly suggests the possibility of ascertaining the nature of an object in the world ‘over there’ with certainty (so that ‘truth’ is a matter of transition from conditional belief to certain knowledge). Like scientific positivism,54 analytical jurisprudence proceeds on this basis, rarely pausing to examine the assumptions it makes about the manifest image. But knowledge is not permanently fixed truth, and the quest for certainty leads to a cleaving of experience into theory/practice, knowledge/action and so forth (Dewey 1929). This is what led Dewey to change his terminology from ‘knowledge’ to ‘warranted assertibility’:

As I wrote in my Logic: The Theory of Inquiry, ‘What has been said helps explain why the term ‘warranted assertibility’ is preferred to the terms belief and knowledge. It is free from the ambiguity of the latter terms.’ But there is involved the extended analysis, given later, of the

54 Scientiﬁc positivism and legal positivism, which are often confused, are not the same thing.

185 From Court to College

nature of assertion and this of warrant. (Dewey 1941) [LWv14:170] For Dewey a ‘situation’ which can be investigated ‘stands for something inclusive of a large number of diverse elements existing across wide areas of space and long periods of time, but which, nevertheless, have their own unity’ [LWv16:282]. This is to be taken broadly: the conversation between Dewey and his correspondent by means of the letter in which he made the comment was a ‘situation’.

Since my inquiry suggested a change of emphasis away from experience at the Bar as the sole judicial training ground, the project could be described more accurately by deleting the words in italics. The endeavour thus became:

to locate and analyse the culturally cohesive schemas that explain the way cultural meaning affects post-compulsory legal learning for barristers and judges, and in doing so ﬁnd new approaches to a conceptually wider yet more differentiated system of judicial professional learning for judges that is focused on new conceptions of judicial scholarship and judicial practice.

The core concern thus shifted slightly to a focus onexplaining the way cultural meaning affects post-compulsory legal learningin order to ﬁnd new approaches to judicial education. The underlying perspective remains that cognitive schemas contribute to legal professional identity and judicial identity formed through experience-based professional development, so the change is one of emphasis only. A small thing, but an experience of theory in action.

Since I have been making use of Weick’s (1976) metaphor, I go back to look at the concept of coupling, which Weick says is crucial, ‘because of its ability to highlight the identity and separateness of elements that are momentarily attached’, and ‘conceptual asset puts pressure on the investigator to specify clearly the identity, separateness, and boundaries of the elements coupled’ (Weick 1976:4). I have not done that deﬁning exhaustively here, although I discuss several different elements leading to the conclusion of loosening.

I now turn to my reason for making the adjustment in my research plan, which grew out of the research.

The legal precinct is rather tightly coupled in relation to the enduring physical elements of the streetscape. The area is deﬁned by the square of city buildings from Lonsdale Street to the north, Bourke Street to the south, Queen Street to the east, and William Street to the west. There is a court building on every corner. The barristers in Owen Dixon Chambers face the Supreme Court across William Street. It is actually, physically ‘over the road’. But it is also metaphorically ‘over the road’, and that metaphor has a shifting meaning: it can mean just‘ over the road’

186 chapter 4B: Case Study: Themes and Conclusion

– very close, but it can also mean ‘separated by the road’. A looser coupling would imply the more distant meaning, while a tight coupling is closer to the dyadic relationship I started out supposing.

The expression ‘over the road’ emerged a few times in interviews. One example, in the context of negotiations:

‘If it’s a big amount you just say, right, well I’ll take a walk over the road’ (the translation here is, ‘if you try to bully us (meaning ‘my client’), we’ll put in our own bankruptcy petition’ – in other words, depriving the creditor of being the petitioner). ‘Once they go over the road you don’t see that much of them’ [Barrister] One judge used the term ‘over the road’, in the ‘barrier’ sense: ‘I try to get back over the road occasionally but it’s not easy, I don’t go back as often as I thought I might’ [Judge] The ease of return related to time, other things coming up, and there is no sense that the judge would not be welcome: to the contrary. But the judge’s environment has changed and his old friends at the Bar, with whom he lunched at the Swine Club,55 are still where they were. For those left behind at the Bar, these are visits from a different home base. A barrister who goes ‘over the road’ is visiting in the opposite direction.

Making the move across the road permanently and radically changes the context. The fact that the Bar and the Supreme Court have both been increasing in size also affects internal relations as well as relations between them.

Sometimes the researcher affects the site – an effect harnessed in the action research school, which has Deweyan roots.56

When I was conducting interviews, I had prepared an Excel spreadsheet setting out the changing benches year by year, with a new row inserted for each change in Constitution. I reproduce some small sections here as illustration. The gist is clear from the relative depth of columns (each column = 1 judge, year by year down each row) and width of rows (number of judges on the bench).

The chart is structured so that each change to the Bench (departure or addition) is treated as a break that reconstitutes the Bench as a new organisation. This was by analogy with partnership law.

55 Properly called the Essoign Club (the Bar restaurant at William Street, members and guests only). 56 For a representative sample see Abraham 1994; Carr and Kemmis 1986; Dick and Swepson 1997; Hansson 2006; Hollan et al. 2000; Langhout and Thomas 2010; McKay and Marshall 2007; O’Grady 2010; Ozer et al. 2010; Papastephanou 2006; Wadsworth 2001. 187 From Court to College

Each column is dedicated to one judge. Each row represents a year. If no changes occur on the Bench in a year, the row remains the same colour as the previous year. If there is a change, the row colour changes to indicate the break. (There is no other signiﬁcance to the row colour.) The numbers of the benches (1, 2, etc change with a change of Chief Justice (red labels). The alphabet letter A, B, C, etc represents a newly constituted Bench under a continuing Chief Justice.

Figure 4B.5 Chart of Benches (Above, L--R) Benches 1A to 4D (1910); 4D to 7F (1951); 7F to 8D (1967); 8D to 9B (1975) (elongated to ﬁt); 9B to 9C (1975); 11A to 11D (2006)

(Note: it is not necessary to read the names or details. The charts are intended only to give a visual impression of the changing constitution of the benches. The benches in a more easily read tabular form are set out in Appendix B. Here, thumbnail images are enough to give the sense of the difference in numbers and turnover over the years):

188 chapter 4B: Case Study: Themes and Conclusion

From the period 1852–1880, the spreadsheet shows long terms of up to 28 or 30 years on the bench, with a very small number of judges. The early period was one of great stability, and very few departures. The first charts fitted easily onto a single A4 page. The last one was unrolled, like a scroll, and was four landscape pages wide. I used these charts as a conversation starter with the judges, and soon found they were very interested to see the changing nature of the Bench over time, the increasing size of benches and the faster rate of reconstitution as the years passed. Most of the judges were intrigued by the changes shown on the charts. Some were very knowledgeable about the history. Every judge who saw the charts (a few of the later ones did not) immediately understood what they signified (in terms of understanding the way the information was organised), and several pored over this history for several minutes.

Bench 1A under Chief Justice a’Beckett lasted for 4 years with 3 judges. In 1856 Molesworth joined, causing a reconﬁguration. Then a change of CJ caused another reconﬁguration in 1857. Bench 2A under Stawell CJ lasted from 1856 until 1871 (16 years). The numbers swelled to 5 in 1872 (Bench 2B, purple) and there was another change a year later when Fellows was appointed. The pattern now is starting to be small benches, gradually building up.

The chart goes up to 2006, with Cavanough the last listed appointment in column DM (making him the 79th judge).

The post-war mid-century until the 1960s is sometimes called the ‘Golden Age’ of the Bar and the Court, echoing US nostalgia for those times.57 A small group of highly respected judges (particularly Lowe, Gavan Duffy, and Fullagar) shows small, relatively stable benches (under Irvine, Mann and Herring). The next period sees change, which accelerates, as the succeeding charts make clear.

Bench 9G (1980–81) is the last Supreme Court Bench to continue for two years with the same judges constituting the court for more than a year. After that the numbers have reached critical mass – they have expanded to the point that reconstitutions are constant.

In 2003, Bench 11A, in the ﬁnal cell, is the start of Warren, the current Chief Justice, who was appointed in 1998 and was made Chief Justice in 2003. Benches prior to 11A, although partly visible on the screen, start their terms far offscreen, to the left. The last stage of the chart (to 2006), gives a visual sense of the effect 57 For a lively discussion on Law Blog about judicial opprobrium for lawyers’ unprofessional behaviour see post by Peter Lattman, ‘Has ‘the Legal Profession’ Gone the Way of the Dodo?’ (2007) at http://blogs. wsj.com/law/2007/11/30/has-the-legal-profession-gone-the-way-of-the-dodo/ (accessed 12 October 2008).

189 From Court to College of this constant churning, in stark contrast to earlier years, where there might be no change for a decade or more -- hence visual depth corresponds to stability (temporal depth for each bench).

The term of service on the Bench varies with the age of appointment and compulsory retirement (now 70). That was not always the case. Some of the early judges served until their late 70s (one at 80, another at 81, as seen in the chart at Appendix E). The long years of service possible in the early years of the Court can no longer occur unless the age at appointment drops dramatically. Again, the Pragmatist view is that perspective and context govern whether this is helpful to the learning situation or not.

The point to make about these charts is that apart from acting as an ice-breaker and catching judges’ interest, they are visually striking as physical artefacts, so they had the kind of sensitising effect Weick (1976) claims for the loose/tight coupling metaphor. Judges expressed interest, or surprise and interest, at seeing their benches laid out in that way. There was a simple visual impact, as the changing contexts of the ménage of a bench (which everyone knows) has fresh salience if pointed to in a different way.58

Benches are quite often discussed by lawyers in a way that assumes a tight coupling between Chief Justice and puisne judges (hence my original labelling of benches in that fashion). But with a larger bench and faster turnover, the role and task of the Chief Justice changes markedly, and opportunities for loosening of the coupling in that direction, and for shifting sub-systems of various degrees of looseness/tightness, become possible. Just being aware of Weick’s (1976) metaphor has, as he says, a sensitising effect, so that the shape of the inquiry space shifts as a result of the perception.

In 2011 the Chief Justice advised the Bar that her workload was such that she could no longer involve herself in the appointment of silks. This was a proposed decoupling of the silk system from a Bar/Bench dyad. The Bar immediately instigated a working group, established a plan that would diminish the workload, and convinced the Chief Justice to stay, if not tightly coupled to the process, at least involved – a critically important thing from the Bar’s point of view but less so for the now more distant Court (Victorian Bar 2012a, b). As Weick says, ‘Any research agenda must be concerned with ﬂeshing out the imagery of loose coupling’, and interaction data does not itself reveal tightness of coupling. While that is beyond

58 A semiotician would explain this as multimodal semiotics, as suggested at [5.3.5].

190 chapter 4B: Case Study: Themes and Conclusion the scope of this research, the exploration does I think show opportunities for further work of interest.

Again, the Pragmatist ‘perspectival perspective’ offers a way to organise the problem space’ in order to clarify what is really happening here. That perspective enables us to see that on a workload criterion, a simple tradeoff occurs in a full decoupling (the advantage to the CJ of a lessened load, which the Bar then picks up). But if the wider context is considered, the workload is probably the least signiﬁcant factor here. Certainly from the Bar’s viewpoint the authority of the silk sub-system is threatened. All lawyers are officers of the Court, but a decoupling such as this loosens other couplings in the wider system.

A managerial perspective would start with counting the cost of the changed circumstances in economic terms. The rationale is, ‘what gets measured gets managed’. However, in the ‘autistic school’ of management ‘what matters can’t be measured, and what can be measured doesn’t matter’ (Spigelman 2006).

Of course, abandonment of all measurement is not desirable either. And even the loose/tight coupling metaphor becomes analytical at the point where it cuts (abstracts) elements from the system in order to discuss them dyadically. But looser coupling between policy and measurement might be an improvement.

(b) From old Sir George to the MCLE compliance regime

One upon a time, when the profession was self-regulating, and still the gatekeeper of its own admission procedures through articles, applicants made their way to the Supreme Court building to file their applications with old Sir George Paton, who had been the Dean of Law, then Vice-Chancellor of the University of Melbourne, where he ‘played a large part in resolving a long-running struggle between the University and the Law Institute of Victoria over the content of the law course’ and ‘accommodated the Institute’s demands for more practical training, while maintaining the broad academic base of the course.’59 After his retirement he took on the task of supervising candidates for admission; he appeared to recent graduates as a piece of ancient history himself, a frail old fixture around the Court who interviewed the applicants, keeping them trapped as he chatted and read their affidavits, which had to be perfect. Here the Court, the University, and the new members of the profession were coupled in a three-way connection, firmly linked to history. The small numbers involved made such exchanges meaningful;

59 See www.law.unimelb.edu.au/melbourne-law-school/community/history/people/deans/george-paton accessed 30 October 2015.

191 From Court to College certainly for those admitted, and probably to Sir George as well, since his memory appeared to stretch back to the Dark Ages in the profession.

In Selznick’s (1957:96) example of trade unions, the problems of power ‘cannot be handled by routine management expertise until after the fundamental issues of recognition and prerogative are settled, if they ever are’. In the context of JE, an earlier political debate about the value of mandatory continuing legal education (MCLE) (for lawyers) ﬁzzled out after its introduction in 2005. Mandatory CLE, being coercive, is a power and control issue. The previous scheme of voluntary CLE (or LPD) paved the way for the tightening of control in a mandatory scheme. In Victoria JE is ‘voluntary’ in the sense that judicial offers are not compelled, but records of their attendance are kept by JCV and shared with the head of the jurisdiction to which they belong. Judges at the level of those I interviewed are in a stronger position to resist JE; magistrates are more easily directed or pressured by those above them in the hierarchy. In the UK JE is mandatory. There we have some evidence of ‘clocking on to collect CLE points’ including signing off for others who have left sessions early (Winter 2014). Patterns established in the wider legal profession, other professions such as medicine, and in JE overseas, predict that JE will in due course become mandatory, de juris or de facto, as desire to control the process increases.

While mandatory CLE was debated by the profession, sometimes hotly, there was little debate about the merit of JE at the time, and even by 2008, as the survey of barristers in Part A shows, many were unaware of its existence.

The progression of control mechanisms can be seen from the list of regulations set out on the LIV website (below). The LIV uses the expression ‘CPD’ (continuing professional development’) but it is more closely coupled with models for training regimes than with education. A series called ‘Core competencies’ is targeted at new solicitors in their ﬁrst two years of practice.

The previous CPD Rules, Explanatory Notes and Policies were in force from the introduction of MCLE on 1 April 2004.:60

• Legal Services Board Continuing Professional Development Rules 2008 (applied from 1 April 2008 to 30 June 2015) • Law Institute Continuing Professional Development Rules 2008 (applied from 1 April 2008 to 30 June 2015) • LIV CPD Rules 2008 Explanatory Notes (applied from 1 April 2008 to 30 June 2015) • Continuing Professional Development Rules 2007 (CPD Rules 2007) (applied from 1 April

60 At www.liv.asn.au/For-Lawyers/Regulation/CPD-compliance, accessed 31 October 2025. 192 chapter 4B: Case Study: Themes and Conclusion

2007 to 31 March 2008) • CPD Rules 2007 Explanatory Notes (applied from 1 April 2007 to 31 March 2008) • Policies developed by the CPD Committee to clarify the CPD Rules 2007 (applied from 1 April 2007 to 31 March 2008) • Continuing Professional Development Rules 2005 (CPD Rules 2005) (applied from 1 May 2005 to 31 March 2007) • Continuing Professional Development Scheme Rules 2004 (CPD Rules 2004) (applied from 1 April 2004 to 30 April 2005) This list by itself gives a strong sense that professional development for legal practitioners is rule-bound.

(c) Loosening the couplings of tradition: Vale Victoriana? With lawyers, things seem to be either a ‘scandal’ or ‘a tradition’, with nothing in between.

– Kathy Laster (2005:41)

In Ethics [LWv05:60], writing on the ‘conditions which bring out the importance of group standards and render group control conscious,’ Dewey says that although Customs ‘have an element of social approval which makes them vehicles of moral judgement, they tend in many cases to sink to the level of mere habits’. When this happens the original force is forgotten and they become mere conventions unless they happen to be uplifted because of certain conditions arising to prompt their revival. These conditions are, he says: (1) the education of young people and their preparation for membership; (2) constraint of refractory members and adjustment of conﬂicting interests; and (3) occasions which involve some notable danger or crisis. Elaborate customs show the group judgement of the importance of the occasion. Dewey points also to the primitive burial pyre, wailing and mourning costumes and says all these are ‘eloquent’. [LWv05:60]

Like academia, parliament and the church, courts have kept up their regalia for formal occasions, although court dress has recently been simpliﬁed. Wigs and gowns have been centrally important, eloquently bestowing gravitas: compare the tones of celebrity at a game show. The Court performs the ﬁrst and second functions mentioned by Dewey. When this is interpreted in the media as being ‘on a high horse’61 we can usefully describe the changing situation between the court and the public as one of a loosening of the coupling between the systems,

61 See web comment by respondent 3, Vignette (f) on Business Unit 19.

193 From Court to College and different understandings of the ceremonial usefulness of such events is one element. In other words, Weick’s (1976) metaphor encourages an assessment that removes us from the immediate political accusation that judges are ‘out of touch’ and consider more thoughtfully whether the same people might not, if attending such an occasion for their own child, be pleased and proud and delighted with the ceremonial importance attached to the event.

The middle of the twentieth century saw the beginning of the transition away from an English eccentric/Gentleman Bar.62 At about the same time ‘the last gasp of idiosyncratic judicial reporting, as standards for what a case should look like, were being set’ (Berring 1987:1679).

For the interviews with judges I attended at chambers. The individual rooms varied greatly. There were historically important pieces of furniture, New Guinea artefacts, many wonderful book collections, bone china cups, coffee mugs. An ethnographic study that focused on these would yield much ‘thick’ description (Geertz 1973). It was not appropriate to be photographing judges’ chambers for this research. However, this vignette was included because it speaks to the Victorian ﬂavour which persists in the SCV building (as a structure) and in a few barristers’ rooms, but are gradually disappearing as the great characters die off and are replaced by those of different tastes.

Barristers’ chambers and judges’ chambers are often eclectically furnished in a way solicitors’ officers rarely are, and many of them remain Victorian in feel. They can be strikingly different from solicitors’ offices. The word ‘chambers’ is strongly shared and embedded as a ‘verbal molecule’ (Strauss and Quinn 1997) contributing to the legal cultural identity. Chambers are never referred to as offices and are always plural (never ‘a chamber’).

In June 2012, in a piece titled Struggling with the modern world, the legal gossip magazine Justinian revisited an article from February 1980 on the occasion of Meagher QC’s appointment as President of the Bar Council (NSW) (Justinian 1980/2012). In small span the article provides a rich cultural counterpoint to the Bar today. He signed the roll of counsel in 1960 and was by all accounts a ‘swashbuckling’ QC, then judge, who told it as he saw it. There is a link with Meagher in this research – one of the judges had appeared before him, and a silk told me that if you appeared before him with a bad argument he would say,

‘Why did you bother to come along? This is absolute rubbish.’ The photograph accompanying the article is a ﬁne example of chambers as an assemblage of artefacts. 62 See Heming (2009) on eccentrics; and Meagher’s jibe that law academics are ‘failed sociologists’ [ch3]. 194 chapter 4B: Case Study: Themes and Conclusion

[Figure 4B.6] ‘Roderick Pitt Meagher has taken over the leadership of the NSW bar at a crucial time in its history ... Here Justinian gets up close to the man at the helm ... ‘Idiots’ at the Law Reform Commission trying to meddle in bar’s affairs ... Finding it hard to escape the Dark Ages ... Meagher’s ﬁrst ever interview ...’ Justinian, February 1980.

The picture speaks eloquently for itself: Meagher has escaped from the Dark Ages and is ensconced in Victoriana, where he and the contents of the room are so still and ﬁxed they could be set in aspic. In setting this as context I am participating in a kind of culture-reinforcing gossip. Rimmer (2004:39) says ‘biography, contemporary history and gossip are all doing the same thing: trading in privacy’. At the Victorian Bar, much time is spent on the matter of ‘In re Coffee’, sometimes across the road at Wheat café (formerly the Australian Wheat Board (AWB) building), a connection between two worlds, since organisational gossip at AWB played a key role in the production of interorganizational power dynamics (van Iterson and Clegg 2008).

The Meagher piece goes on to discuss a Law Reform Commission Report. Here the theme of experience emerges. Meagher calls the report ‘silly’ due to the inexperience of the commissioners.

‘They are inexperienced as to how the law operates’. ‘There’s [an academic] whose whole legal experience at the bar was in the very narrow ﬁeld of industrial law. I don’t think … would ever have done a criminal case, for example.

195 From Court to College

One way of testing it is this: If you comb through the CLRs and the State Reports from the time he was admitted to the bar to the time he gave up practice I think you could ﬁnd his name appearing solo, that is appearing as a junior or a silk leading someone, about four times, from the period of the mid-ﬁfties to the late sixties.

This inexperience is not ‘something the NSW Law Reform Commission faces alone’. Justinian says the same accusation had been levelled at the British Royal Commission on Legal Services, whose report Justinian (1980/2012:np) described as ‘hailed both here and there by the profession’ yet also ‘consistently criticised in England for precisely the same reason’:

Michael Beloff, a barrister who is also the legal correspondent forThe Observer said: ’What the commission lacked was any substantial element of active practitioners.’

Its membership included such diverse characters as Sir Harold Wilson’s press secretary, the director of the London School of Economics and a former head of the radical Legal Action Group. (Justinian 1980/2012:np)

The article balances the accusation of inexperience by referring to a ‘stout defence’ mounted at the Australian Legal Convention the previous year:

the combined experience of the members of the Commission as legal practitioners exceeds 85 years, whereas the combined experience of the commissioners as legal academics is less than eight years. (Justinian 1980/2012:np) In my research, experience was a very strongly emergent theme both in the Bar survey and in the interviews. It was a clear and primary attribute valued on both Bench and Bar, along with ability.

The experience-schema appears to map onto a few different metaphors, as Strauss and Quinn’s (1997) work would predict. There are at least three at work in the experience schema:

1. A metaphor of expectation, used positively or negatively in support of (a) some narrower and more immediate assertion about performance or (b) some wider assertion about performance (‘He’s hopeless, but what would you expect, he has no experience whatsoever’[B]; ‘she hasn’t had trial experience but [contrary to expectations] she’s ﬁne on the Court of Appeal’; ‘it might be a different matter in the trial division’ (said of a former academic judge) [B][QC] [J]; ‘one of Hullsie’s little mates from DoJ, no experience, never been in court’ [B]).

196 chapter 4B: Case Study: Themes and Conclusion

2. A time metaphor ‘she’s only been at the Bar for two minutes’ [B]; ‘oh, he’s been around forever’ [BC]. 63

3. An infancy metaphor ‘when I was still wet behind the ears’ [J]; ‘a baby barrister’ [QC][BC].

4. A count or extent metaphor ‘I don’t think … would ever have done a criminal case’; ‘whole legal experience’ [Meagher above]

5. A practice/person metaphor ‘lacked … any substantial element of active practitioners’ [Beloff, above]

At his welcome Mukhtar Assoc. J uses the less-common acumen (sharpness, perspicacity) separate from ‘personal qualities, which mattered to me no less than the person’s legal acumen’.

Experience is understood as wider than expertise, which is narrowly specialised. This is consistent with the literature on expert tasks as cognitively sophisticated, involving mental schemas and models that call up multiple, non-linear, interactive elements. (See Cei and Liker (1986) on racehorse handicapping and Fish’s (1987) classic article, Dennis Martinez and the Uses of Theory, about doing (expert action) as opposed to thinking about doing: thinking within a practice and thinking with a practice.)

This distinction cropped up in interviews, where it was used in ways that set it apart from experience:

‘Getting your experts lined up’ [QC] ‘call (an) expert witness(es)’ [B] and [J] ‘he’s an expert in Probate’ [BC] As a practice discipline, education may tend to avoid the theoretical (Gray 1968:278). So in education a teacher may ask, ‘Is it all theory … or will it be of real value?’ (Gray 1968:1; Hickman 1994). It is similar in law. I discussed ‘real’ (authentic, growth-providing) education with a judge at Stance 1 who was supportive of JE, and acknowledged that real education was important, but that theoretical approaches may be unappealing:

[Q] ‘Lawyers are noted for being atheoretical, aren’t they?’ [A]. ‘Yes, they are, yes, I’m afraid that’s true’ Legal education is a conﬂuence of two applied disciplines, and the tendency to eschew ‘theorising’ is reinforced and compounded.

63 [B], [BC], [J] indicate barrister, barristers’ clerk, judge.

197 From Court to College

This is a socially shaped perception, and it is theory-laden, just as lawyers or educators who like to be ‘practical’ are reliant on theories (beliefs) in everything they do. Again, there is no ‘theory-free’ way to see the world, or to set policy – only better and worse ways of seeing or construing (Berger and Luckman 2011).

(d) Uncoupling from the past: women, history and the SCV website

In 2006, a series of pages on the SCV website set out various aspects of its history: the ‘History tab on the menu ‘About the Court’ had ﬁve sub-pages, titled: Building; Court Seal; Judges; Library; Masters.64 In a clear act of uncoupling from the past, these pages have disappeared. In their place is a single page65 that combines a range of content under several loosely related headings, including two incongruous ones. The page is self-described as ‘a timeline showing the major milestones of the Supreme Court’s fascinating 175 year history’ and the years from the 1840s to 1844 ‘The new law courts’ are indeed of that nature.

1884: The new law courts

Work began on the Trial Building at the corner of William and Lonsdale Streets in 1874. The building was ﬁnished in 1884 and was occupied by the Supreme and County Courts. By this time, the number of Judges had increased to ﬁve with a sixth Judge appointed in 1886.

But the next headings, complete with their content, are jumbled and incongruous, the layout careless:

The Challenges of the 20th Century from Federation to Communism

The economic depression of the 1890s lead to a stagnation of Court business;

the reduction in business eventually led to a reduction in the number of Judges to four in 1917. It was not until 1919 that the number was restored to six.

With Federation in 1901, Melbourne became the capital of Australia. Accordingly, in 1903 Banco Court was the venue for the ﬁrst sitting of the High Court of Australia. The High Court continued to hear cases in the Victorian Supreme Court until its own premises was built in Little Bourke Street in 1926.

Following the appointment of Lt. General Edmund Herring as Chief Justice in 1944, two further judicial appointments were made in 1945 and 1947, bringing

64 Masters are now called Associate Justices. 65 At www.supremecourt.vic.gov.au/home/about+the+court/our+history/, accessed 30 October 2015, marked as ‘Reviewed 10/2/2015’. It is worth recording, since these pages are ephemeral in nature.

198 chapter 4B: Case Study: Themes and Conclusion the number of judges to eight. Herring also quickly sought commitments for building works to expand the number of Court rooms. A further seven Judges were appointed during the 1950s.

Apart from the heading, there is no mention of communism, and no hint as to why that might be signiﬁcant. The number of judges and the building program feature here. The next section is this:

Challenges of the 20th Century: Social change Chief Justice Herring did not retire until 1964 when Henry Winneke was appointed. It was only after Herring’s retirement that Joan Rosanove, after many futile attempts, became a Queen’s Counsel. Women made up a very small percentage of the overall legal profession at this time. It is also worth remembering that it was not until the mid 1960s that female jurors were finally empanelled as part of a jury in the state of Victoria. The 1960s was a period of a great social change. The last capital case heard by the Supreme Court was Ronald Ryan in 1967. In 1969, Justice Menhennitt made a ruling in R v Davidson that permitted legal abortions in the state of Victoria. In addition to the increasing number of Judges the role of the Masters (early Associate Justices) had expanded and their numbers had increased over the 20th Century. The Senior Master, although no longer in charge of the mentally ill was responsible for the care of the vulnerable and their estates into the 21st Century. Other Masters appointed was the Taxing Master in 1905 and the Listing Master in 1976. The Taxing Master’s role was subsumed into the Costs Court in 2010. The first female Judicial Officer of the Supreme Court, Kathryn Kings, was appointed in 1993. In 1996, Rosemary Balmford was appointed as the first female judge of the Supreme Court. An interesting angle to this strong focus on female appointments is the mention of Kathryn Kings, a long-serving Listing Master (1993–2009) who has never featured in Court histories; Rosemary Balmford, who was the founding Executive Director of Leo Cussen Institute and the first female judge on the Supreme Court,66 was always cited as the ‘first woman judge’ on the Court. She had been a County Court judge and was promoted (unusual then, but more common now for judges to have ‘career progression’ up the hierarchy (Campbell and Lee 2001).

The ﬁnal entry maintains the building/gender focus:

The creation of the Court of Appeal The Court of Appeal was created in 1994 and occupies the old Crown Law Building at 450 Lonsdale Street. Currently there are 12 Judges of the Court of Appeal, and its inaugural president was John Winneke. The Court handles appeal cases from the Supreme Court and other 66 See biography at the University of Melbourne, www.law.unimelb.edu.au/melbourne-law-school/community/history/people/judges/rosemary-balmford, accessed 4 November 2015.

199 From Court to College

jurisdictions. In 2003, one year after the Supreme Court marked its 150th Anniversary, Marilyn Warren was appointed as Chief Justice. She was the ﬁrst woman to hold this position in Australia. The natural circumspection of judicial public language is apparent in the story of Joan Rosanove’s attempts to take silk in the time of Sir Edmund Herring (told, more vibrantly, albeit with some inaccuracies, by a journalist (Carter 1970)), but while the story is of general interest, it is given unusual priority here, when it might be more relevant to a history of the Bar, or of women in the law. It is not so important as to belong on a one-page history of the court.

Gender has emerged as a theme in this research, but it is comprehensively dealt with elsewhere; it is a clearly stated Labor policy to appoint women (Hulls 2003b). In 2016 the Chief Justice, who supports this approach, ‘said ‘What we must do is remain vigilant — keep an agenda of having gender to the forefront’.

(e) Public profession of faith in law: Family and fading ceremonialism

On the Supreme Court website the names of present judges are buried in the history section. This may be intentional and is consistent with the impersonal judicial role as representative. However, the welcomes and farewells67 for judges, and admission ceremonies for new practitioners, held in the wonderfully ornate Banco Court, are available on video streaming.68

The Court is one of the oldest common law and equity courts in the world:

‘perhaps ironically, this court is even older than the English courts, as a result of their reorganisation and re-establishment by the Judicature Acts in the latter part of the nineteenth century’ [Croft J Welcome speech]. 69

These ceremonies retain some of the old Victorian ﬂavour, although the appointee’s family sit in the jury box, which makes the occasion less formal and more intimate, particularly if there are young children:

67 Recently judges have been declining a formal farewell: Mandie J and Hansen J retired in 2012 from SCV, and Sundberg J and Finkelstein J retired from the Federal Court, without farewells. 68 Those after August 2007. 69 Available at http://www.supremecourt.vic.gov.au/ choose menu item Video and Audio.

200 chapter 4B: Case Study: Themes and Conclusion

[Figure 4B.7] ‘The family sitting in the jury box ... which my daughter called the jewellery box’ [Almond J].

Welcome speeches can be an onerous duty; they also have cultural signiﬁcance not often remarked, although ‘change to the form and substance of these heavily prescribed speeches can reveal insights into the history and biography of the Court, its judges and the legal, social and cultural context in which the Court operates’ (Roberts 2012, referring to the High Court and citing Moran (2009) and Delattre (12978)). At Croft J’s welcome on 25 November 2009 the Chief Justice made a point of thanking the Bar and Law Institute for their attendance and speeches at four welcomes within three weeks. Colbran QC remarked during his welcome that Croft J. was the third judge in succession whom he had welcomed who held a doctorate (in law, from Cambridge). Croft J’s prior experience also challenges a too-simple understanding of appointment from ‘inside’ or ‘outside’ the Bar. As solicitor, barrister, QC, international arbitrator, adjunct professor and text book writer, Croft J’s experience extends far beyond the Bar. It becomes impossible to judge which, if any of these careers had the most useful effect, and in what context.70

The ritual nature of these events becomes clearer as the gap between everyday clothing and regalia becomes greater. Barristers robe for the occasion:

70 See notes on survey [Q14] in this respect.

201 From Court to College

[Figure 4B.8] ‘I go if I can. Only chance I get to get m’ gear on’ [QC]

Speeches are made by the Chairman of the Bar Council (or representative) and the President of the Law Institute (or representative).

At his welcoming ceremony in 2009, Associate Justice Nemeer Mukhtar was welcomed by the Chairman of the Bar Council, Digby QC, in these terms:

There is about your Honour what has been described as an old-world dignity, propriety, courtesy and elegance. There is also what might be described as new world humanity, exuberance, and passion for fairness, equality and justice.

In response, Mukhtar gave a serious and high-minded speech that clearly indicated the depth of his feelings. He said that with the ‘zeal of a convert’ he wished ‘to profess a faith in two orthodoxies’. Mukhtar undoubtedly did mean this most sincerely. It was not a departure, but a continuation of his unfailing politeness and concern for others and personal belief in the Rule of Law.

Mukhtar’s ‘primary judicial conviction’, he says, is ‘service to society’ and the ‘second article of faith is that the privilege of office carries with it the responsibility of proper performance and conduct.’ His ‘old-world’ qualities are part of the ‘second article of faith’ – proper conduct. The ‘new-world’ qualities fund the ﬁrst – service.

Mukhtar’s speech demonstrates what Tamanaha (2006) refers to as a ‘non- instrumental’, even quasi-religious understanding of law as The Law). The

202 chapter 4B: Case Study: Themes and Conclusion non-instrumental law schema has been most strongly related to a Victorian or Classical Liberal Idealism (‘passing on the torch of values’ (Pirsig 1974, 1991)).71

Another tradition in which performance of ritual is clearly visible and the link between religion and law refreshed, even if chieﬂy symbolically, is the opening of the legal year. Carrick (2007) reported the opening in an ABC Law Report segment, noting that around the country ‘this is celebrated in different forms, including many religious services’.

Figure 4B.9 The Red Mass, 30 January 2012 (Hall 2012).72 (a) Red vestments. (b) Inside St Patrick’s Cathedral, Melbourne; (c) the judges of the Supreme Court ‘ﬁt the part’ of legal dressing up better than High Court justices (Justice Crennan, formerly of the SCV but at the time of the Mass on the High Court, wears the black gown without wig adopted by the High Court, anecdotally in imitation of the Supreme Court of the USA.) (d) and (e) The robes with purple trim are worn by judges of the County Court.

It might be thought that the Red Mass is named after the robes of the Supreme Court judges in attendance, but as Hall (2012) reports, ‘The Red Mass is so called because it is a Votive Mass of the Holy Spirit, for which the celebrants wear red vestments’ (Hall 2012).

Again, there is a loosening of the coupling between past and present represented by ceremony and ceremonial dress, but a changing of couplings as new traditions

71 ‘Passing the Torch’ as a Victorian Romantic notion. In the Pragmatist tradition, Pirsig sees the Victorian perception of values as ﬁxed and static, and thus treated as transmissible in a discrete, perfected form. 72 © 2012 Catholic Archdiocese of Melbourne. Permitted educational use is asserted.

203 From Court to College emerge and are embedded. The Victoria Law Foundation has instituted a popular secular alternative to these religious ceremonies, breakfast served in Hardware Lane, called ‘Portia’s breakfast’:

When I began at the Foundation, it took me some time to understand the culture of the legal profession … We have often found our activities — such as holding a Portia’s Breakfast to mark the beginning of the new legal year — are initially faced with some skepticism. When these events are a success, people expect us to keep doing it. There is a temptation to become complacent, but the Foundation should lead through its openness to creativity, invention and new ideas. (Laster 2005:41) Berman (1974) makes the point that criticism of a regime without an alternative offering does not get far. It makes judgements that are closures rather than openings. This is a key point on which the academic ‘Crits’ fail to make purchase and Pragmatism can advance. I think this is what Kenneth Burke (1964) means when he says

The relation that frames of acceptance bear to symbols of authority inevitably puts the sym- bolist of change at [a] tactical disadvantage, warping somewhat the perfect roundness of his utterance … The full strategy for saying ‘don’t do that’ is ‘do do this’. A fading of ceremonialism is also suggested by the gradual decline in use of wigs in the courts, starting with the Mason High Court, which abandoned wigs entirely, and adopted a shapeless black robe ‘neither charming nor anachronistic’ modelled on the US Supreme Court (Holloway 2001:168).

Isabel Carter’s (1970) biography of Joan Rosanove QC, Woman in a Wig,73 carried on the cover a photograph of her wearing a wig, now in my possession, which I took to one interview (with a senior female judge). Of women experiencing difficulties in establishing their practices, Rosanove is the Victorian exemplar: she would have been Australia’s ﬁrst woman QC, but Sir Henry Winneke repeatedly rejected her applications for silk, so Roma Mitchell, later Dame, achieved that goal ﬁrst.

The interviewee showed personal interest in the value of the history of the wig as an artefact representing the Court’s traditions,74 and was also interested in the visual representation of the changes in benches over the years, particularly the way they disclosed the growing complexity of the court as an organisation: the variations in size, constitution, and continuity of membership of benches over the years.

73 The book itself contains some inaccuracies and historical misattributions. 74 These traditions also link the profession to the Court.

204 chapter 4B: Case Study: Themes and Conclusion

As a female in the most senior judicial role in the state hierarchy, and the ﬁrst female Chief Justice, Warren CJ has had to tread a delicate line between being seen to support women in law and appearing to be driving a feminist agenda: the pressures in both directions are political and the rhetoric emotive, setting the Chief Justice up for what might seem a loselose situation. Warren CJ has been prepared to make speeches acknowledging women as making special or different contributions, for example at Women Lawyers’ Association events, but they are not numerous, and they do not endorse an overtly feminist rhetoric (e.g. Warren 2004b, c, 2006b, c).

(f) Business Unit 19

Before this research started there had been tensions between the Department of Justice and the Supreme Court. In 2003 the Chief Justice (J.H. Phillips CJ) had retired, and the current Chief Justice, Warren CJ, appointed. Such tensions are not new (McHugh 2002).

Justice J.D. Phillips retired in 2005 and in his retirement speech expressed in very clear terms his concern about the state of relations with the bureaucracy (Phillips 2005).

The Attorney-General, anecdotally75 on chronically poor terms with Bench and Bar, had announced his intention to appoint acting judges: the Age reported Hulls rekindles acting judges bid (Age 2005) and Judges condemn Hulls plan (Age 2004). Reference to acting judges appears in the speech given by Phillips J.

A year later Ormiston J retired early, and also gave a speech clearly expressing concern about this state of affairs and objecting to the bureaucratic system in which the Court was listed as ‘Business Unit 19’ (Ormiston 2006). The Court was not administratively independent and was in a ‘supplicant agency’ position in its relationship with the parliamentary and administrative branches of government. The Department of Justice supplied security and IT services and the like, and the judges’ pay, superannuation and so forth were managed by the department.76

Some of the judges I interviewed were burdened by administrative paperwork beyond their court work or role in the court (e.g. DoJ notices and administrative requests for information). One judge admitted frequently putting it all straight into the bin. ‘It’s several bits of paper just about daily’. Another found departmental interference in his appointment of an associate galling. He considered the terms

75 Personal communications, several barristers and one QC; and interviews with two judges. 76 Court Services Victoria has now assumed that role. 205 From Court to College of the associate’s employment to be a matter for himself and the associate, but found ‘I’ve turned into a kind of manager supervising attendance and signing leave sheets to go to the Department’. He objected to not being free to negotiate far more ﬂexibly, and considered the role as a personal or private appointment rather than a matter for the DoJ’s HR department.

One judge had been warned about email security, as the Department managed IT and had access to all the judges’ mail and email.

Politeness and welcoming behaviour from other judges upon appointment was noted, although one judge said the systems took some getting used to and a simple orientation folder with the various details of superannuation arrangements etc, would have been helpful, in addition to the National Judicial College77 orientation program for judges on appointment.

On relations with the Attorney-General, one of the judges recounted an anecdote about judicial independence from very different times. The Premier instructed his secretary to ring the Chief Justice, Sir Frederick Mann (CJ 1935–1944), nicknamed ‘the little gentleman’ by the Bar, to direct him to attend a meeting with the Premier at such-and-such a time. The little gentleman responded that if the Premier was not present in his chambers within 30 minutes, he would have him locked up for contempt. The story goes that the Premier duly appeared. (Winneke, Herring and Irvine were of a similar cast, and might have reacted similarly to some of the remarks made recently by Hulls A-G.)

One judge remarked on the increase in bureaucratic appointments within the court itself, so that there were ‘half a dozen people’ in various roles supporting the increasingly CEO-style office of CJ, with its increased administrative load, whereas ‘in the days of Sir John Young he ran this place on two people, and he sat in court as much as anyone. And he was a ﬁrst-class lawyer’. Two judges mentioned that respect for any Chief Justice depended on their ability to prove their legal skill on the bench. ‘You can’t get that respect as a judge if you don’t sit’. It is increasingly difficult for a Chief Justice with a large and changing bench to sit, especially on long cases.

In 2009 the present Chief was driven to respond to an announcement by the Attorney-General to the media that he was going to ‘Get tough on judges’ (Warren 2009). Both A-G and CJ were to speak at a conference. ‘After his speech Hulls left the conference – without waiting for Warren’s address – to do a media interview’ (Austin 2009).

77 See http://njca.anu.edu.au/.

206 chapter 4B: Case Study: Themes and Conclusion

The Chief Justice set aside her prepared speech to deliver a response. ‘I woke to unhappy headlines’ saying ‘frosty judges told to warm up with public’, ‘plan to get tough on judges’ behaviour’, ‘judiciary urged to defend itself’ and ‘jolt for judges’.

The Chief Justice said the ‘headlines and newspaper articles came as a surprise and troubled me as to the portrayal of the judiciary in the community. I think on behalf of the Victorian judiciary I need to respond.’

The Brisbane Times ran a headline, ‘Chief Justice v Hulls: the inside story of a high-stakes spat’ on 14 October 2009 by the Age political reporter (Austin 2009). The story gave background information and was accompanied by the photograph of the Chief Justice set out below as Figure 4B.9.

[Figure 4B.10] ‘Victorian Chief Justice Marilyn Warren has taken issue with Attorney-General Rob Hulls’ views on the judiciary’

[Photo © John Woudstra, educational use asserted]

The quote below is an extract from the article, setting out detail relevant to the comments made about the piece by members of the public. A brief analysis follows.

Hulls said, inter alia, ‘All ‘public servants’ … whether politicians, bureaucrats, police, teachers, nurses or judges, had to be beyond reproach. And this: ‘As especially well-remunerated public servants - that is, there to serve the public good - people look to judges for exemplary behaviour, and they do so in the assumption that those who sit in judgment upon others cannot do so properly if their own conduct is tarnished.’ The Chief Justice responded, inter alia, ‘Let me dispel these misconceptions,’ the Chief Justice declared. Which ones? That someone needs to ‘get tough’ on judges and the Attorney-General is the one to do it; that judges are misbehaving and a complaints system is needed to deal with them; that the judiciary sees itself as removed from scrutiny and needs to ‘come in from the cold’; that judges are ‘lofty’; and thatthey are especially well-remunerated ‘public servants’. ‘Certainly judges are well remunerated by community standards,’ she said. ‘However, judges serve the public; we are not ‘public servants’. To suggest so displays a complete misunder-

207 From Court to College

standing of the structure of government. ‘The judiciary is a separate arm of government and not part of the executive, which public servants are. It is a fundamental constitutional principle upon which our democracy is built.’ (Austin 2009). Six reader comments had been made.78 Five were from residents of Melbourne, one from ‘State of Hypocricy’.

‘[J]udges serve the public; [they are not ‘public servants’.’ Sounds like more of that lawyer talk to me …. Serve the public, public servant? 6. it’s not a matter of semantics to distinguish the role of judge’s from that of public servants. Our democracy is based on three arms of separated power - the executive, legislature and judiciary branches. These functions are separated so as to ensure complete autonomy and prevent possible conflicts and contamination. Judge’s clearly feature in the judiciary. Public servants form part of the executive branch…It’s not a case of judge’s having lofty impressions of themselves, it’s just the reality of our democracy and nationhood. 7. Her majesty should shed her archaic gown and wig, dismount her high horse, and address the fact that a large number of her justices are inefficient, unaccountable and intransigent. Cultural change in any organisation takes time, but in an institution bestowing tenure for life, it’s glacial. You should embrace Mr Hull’s attempts to give your justices a nudge toward the realities of the industrial (let alone, information) age Chief, put your indignation aside, and get on with what you were appointed to do - drag the judiciary into the 21st century. 8. Mr Hulls states: All ‘‘public servants’’, he said, whether politicians, bureaucrats, police, teachers, nurses or judges, had to be beyond reproach. When are we going to see that Mr. Hulls? Edited by moderator (‘State of Hypocricy’ respondent) So people paid by the public to serve the public (by making judgements in law) are not ‘Public Servants’? 9. Methinks these judicial people need to consult a dictionary or stop thinking of themselves in such a snobbish way - or us peasants may see them in a way that will not be flattering to them. 10. I applaud Marilyn Warren for her response to the A-G. Our system of governance and justice is predicated on the absolute independence of the judiciary. Our expectations of Judges demand this independence. A Judge must be able to hand down a sentence, decide on traumatic family situations, negotiate between competing commercial interests and adjudge the constitutionality of legislation. They cannot be expected to do this under the weight of popular or political pressure. This is as distinct from an appropriate and effective complaints process. Historically, the role of the A-G was as an advocate and spokesperson for the Judiciary,

78 Last checked for updates 11 July 2012.

208 chapter 4B: Case Study: Themes and Conclusion

my how this has changed in the past 20 years. Seems as though the role is now diamet- rically opposed. The comments are a good example of why judges try to keep out of the press unless driven to do so by extreme provocation, as Warren CJ was. Responses 2 and 6 bear the hallmarks of lawyers. They are legally informed (from a lawyer’s perspective) or legalistic, depending on the cultural schema of the commentator).

Response 4 from ‘state of hypocrisy’ had obviously been offensive in some way, attracting intervention by the moderator, possibly for defamation. A ‘defamation’ schema is readily hooked by the presence of the ‘Edited by moderator’ tag, irrespective of the fact that no mention is made of libel, and there is no indication of what has been removed. The way we easily read such implications into a pattern of fact is a good example of the way experience informs imagination and prompts conclusions. What everyone does at an unconscious level, lawyers bring into consciousness, where it becomes a legal skill: pointing to where facts supply inferences and arguing the legal implications.

Responses 1 and 5 are equally clearly from non-lawyers. Their ‘public servant’ schemas are entirely different from those of the lawyers and the Chief Justice. The Attorney-General is also a lawyer, and as such could not possibly be unaware of the elements of the schema (which is the normatively sanctioned legal cultural schema). However, he has set aside the schema he has been trained as a lawyer to accept: his ‘schema in use’ is the populist schema which appears from this exchange to include the element, ‘a public servant is a public servant’ and an emotional tag or hook linked to a generic Australian egalitarian schema ‘don’t go getting uppity with me, mate’ which is activated in an emotionally coloured way by behaviour that is perceived as violating that normative schema. No 5 spells ‘judgements’ in the non-legal way. Lawyers invariably omit the ‘e’.

Response 3, while possibly a lawyer (‘intransigent’ is suggestive of a lawyer), is both partisan against judges and knowledgeable about their practices: the correct spelling of ‘archaic’, use of ‘gown and wig’, although a lawyer would say ‘judges’ in this context rather than ‘justices’ – suggesting perhaps a DoJ employee or political advisor. The phrase ‘the fact that a large number of her justices are inefficient’ lends weight to that supposition: the impression given is of being in the know about partisan gossip. There is also clearly a managerial schema at work: ‘inefficient, unaccountable’, ‘Cultural change in any organisation takes time’, ‘glacial’ change, ‘embracing’ change. And ‘get on with what you were appointed to do’ has a DoJ feel: a lawyer would assume the CJ was there to ﬁll the CJ’s legal role, rather than fulﬁlling DoJ expectations. Is there a hint of resentfulness about ‘an institution

209 From Court to College bestowing tenure for life’? The ‘realities of the industrial (let alone, information) age’ sounds political. The literacy level (e.g. ‘archaic’, ‘indignation’, ‘dismount’) is higher than average, which might suggest either journalism or political advisor – perhaps to the Attorney.

Leximancer analyses of the speeches were used to elicit the interpretations below. A Leximancer mapping of Austin (2009) reads the knowledge pathway from Chief Justice to public as bypassing the ‘Hulls’ concept, travelling instead through law, accountable, needed, and system.

A-G Hulls, on the other hand, gets to the public through the judiciary. Leximancer has chosen only the text related to ‘getting tough’ to traverse this conceptual territory.

In terms of emotional valence, ‘geographic’ closeness represents connectedness, and the size of the themes corresponds to their importance. Hulls himself projects no emotional valence (it is deﬂected at the judges). The Chief Justice is more affected, but also more distant from the dispute.

The relevant themes are judges, judicial, Hulls, speech, law, Chief Justice. ‘Judicial’ is carrying greater positive valence than ‘judges’, but they are linked. The judges are only indirectly linked to law, the speech, the Chief Justice and Hulls.

A pathway from ‘Hulls’ to ‘legal’ ﬁnds no direct connection between ‘judiciary’ and ‘legal’, so Hulls needs to go through ‘accountability’ and the judicial ‘system’ to reach ‘legal’. (The same applies to other links to ‘legal’ from beyond the ‘judicial’ sphere.)

In a mapping of the J.D. Phillips farewell speech (Phillips 2005), several interlinked themes carry various emotional valence; this is quite complex for a short speech. Leximancer maps the heaviest emotional valence of the text in relation to the ‘particular case’ where the speaker says ‘But for much of that time I have had to bite my tongue ... I refer to policy matters rather than the debate within a particular case.’ In this speech the ‘hot spot’ or emotionally laden theme is the Executive and its relationship with the Court. Of the 28 hits on ‘Court’, Leximancer has chosen this passage to represent the theme:

Yet within the Department of Justice this Court is now identiﬁed and dealt with — would you believe!! — as ‘Business Unit 19’ within a section labelled ‘courts and tribunals’, a section which indiscriminately includes all three tiers of the court structure and VCAT. By contrast, Ormiston J’s (2006) speech is less complex although no shorter. The emotional valence resides in the court, loyalty, old staff, friends. At some

210 chapter 4B: Case Study: Themes and Conclusion distance sit the cluster of concepts ‘Supreme Court’ and ‘public’. The sentiments are cooler: ‘time’ (as a theme), ‘time’ again (as a concept), and law. This seems to me a melancholy farewell, lacking richly interconnected themes.

In 2004 the report commissioned by the AIJA on the governance of Australian court systems (Alford et al. 2004) concluded (and an AIJA media release reported):

the traditional departmental model, the most common approach, is no longer the most effective for modern courts. Under this model, the courts’ budgets are controlled by government.

Judicial independence has the potential to be compromised by the lack of control that courts under the traditional model have over the money, staff and infrastructure they need to carry out their work.

This has been a consistent line advanced by those interested in independent court administration, and the courts are now funded separately from the Department of Justice, but together, and JCV is funded as an entity within that structure. However, a change of bodies does nothing to address the control issue raised by the AIJA. From July 2014, the Court Services Victoria Act 2014 establishes a new body, Court Services Victoria, ‘responsible for providing (or arranging the provision of) administrative services and facilities for the courts, VCAT and the Judicial College of Victoria (collectively, Courts)’ (DoJ website, 13/10/2014):

This change has been reflected in the financial and performance statements of both the Department of Justice and Courts … responsibility for providing administrative services and facilities for Courts has transferred from 1 July 2014 … care should be taken when comparing financial statements across financial years. The financial reports for the Courts assists assessments of forecast financial performance, and its use of the parliamentary authority for resources. [sic] In the DoJ Annual Report for 2012 13, JCV is listed (under the category ‘Dispensing Justice’) as having received $2,259,000 in funding (compared with $1,738,000 paid to support groups in the same category).

‘Courts output performance measures’ are accountability-based, account- driven ‘throughputs’ or case disposals, despite the difficulties that entail. The ideal of response-ability rather than accountability, driven by what the Chief Justice of New South Wales called ‘the autistic school of management’ (Spigelman 2006) is now ﬁrmly embedded, along with the new, formalised ‘learning centre’.

211 From Court to College

(g) Loose and tight couplings in the court environment

I conducted my interviews with judges with the intention of hearing what they had to say about judicial education. While the environment was also interesting and I formed various impressions, I did not take notes in an ‘ethnographic’ style. The interviews were short and straightforward. I requested an hour which would include some time getting in and out of chambers, and I was particularly conscious that I was taking up time of people I knew to be overworked. Some interviews were shorter. There was no time to build up the kind of longer-term trust that ethnographic ﬁeldwork depends on. This shapes the research space in various ways, including the desirability of including in the problem-space material such as media reports and speeches by judges.

Security and the locus of control: loose and tight couplings

Again the application of Weick’s (1976) metaphor of loose and tight coupling provides a way to organise understanding (demonstrating its usefulness as a ‘sensitizing device’ (Weick 1976)).

I arrive at the Lonsdale Street entrance for an interview. The two security guards on duty are wearing blue tape lanyards with the words ‘Department of Justice’ woven into the material. It’s obvious they are not Supreme Court staff. I ﬁnd this striking, but it could be a subjective salience, a result of having been sensitised to this tension between court administrations and courts.79 It seems at the least bureaucratic (DoJ) insensitivity to the separateness of the institutions. In my interpretation there is a connection with Business Unit 19.80

Social problem-spaces such as those discussed here are part of the wider environment in which courts operate. That environment includes a meaning- environment of political spin and labelling. What were once described in functional terms (Law Department; Courts) are now subsumed under the single word ‘justice’. In philosophy, terms such as ‘justice’ are now seen as problematic absolutes. For Dewey, terms such as wisdom and justice are direction-pointers rather than reiﬁed values. His perspective is not that of eliminative materialism:

the reductive (or eliminative) naturalists who seek to reduce, say, values to mere facts or to something non-normative and allegedly more fundamental (or, more radically, seek to eliminate them from the scientiﬁc worldview) are not good naturalists (Pihlström 2010:213; 2008)).

79 Now court administration is handled by Court Services Victoria (www.courts.vic.gov.au/). See Alford (2004); Alford and the AIJA were inﬂuential in this change. 80 Vignette (f).

212 chapter 4B: Case Study: Themes and Conclusion

‘Justice’ is often a weasel-word (Pei 1969; Wasserman and Hausrath 2006; Watson 2004). Governments are no longer dealing in laws but in ‘justice’. ‘Justice’ is implicitly the property of Justice Departments and the conglomerated ‘precincts’ they construct for its ‘delivery’. Traditionally, while justice informs decision-making in a directional sense (as Dewey would have it), decision-makers do not distribute justice, they rule according to law. (For a vitriolic contrary view from a journalist, see Whitton (1998).)

Some claims on the JCV website (e.g. of ‘creating’ highly skilled judicial officers; of ‘ensuring’ judges are up-to-date, and in touch with the community) are clearly ‘puff’ and overreach, or in the case of ensuring they are ‘in tune with technology’, essentially meaningless. But some linguistic ﬁnessing is also to be found in JCV statements about mandatory continuing JE, modelled on MCLE in the profession:

developing an Australian-first judicial Continuing Professional Development (CPD) scheme that allows Victorian judicial officers to meet the two of the five days recommended by the National Standard for Professional Development for Australian judicial officers [key achievements]81 The rule of law mantra also appears:

Maintaining the community’s conﬁdence in judicial oﬃcers is essential to the rule of law. Judicial education and ongoing professional development are powerful agents to support and reinforce cultural change within the justice system. (JCV home page) At the time of this research the Premier of Queensland had conceded that her administration employed more than 360 full-time media and public relations officers in addition to public service employee positions (Funnell 2008). But judges are in a different position, constrained as they are by traditional silence. Explaining why judges ‘don’t spin’ and are therefore not fair game but unfair game for the media, the Chief Justice (Warren 2010a) was prepared to speak to the Press Club, saying ‘Let me try to approach the relationship between the judiciary and the media outside the traditional context’:

I feel a little out of my comfort zone speaking to you … Historically judges were intended to be seen and heard exclusively in court. Generally the only encounters between the court bench and the press benches have been when suppression orders were made or an alleged contempt was perpetrated. Otherwise, if judges speak to the media it is usually upon their appointment or retirement … Serving judges do not and should not speak publicly about things they may have to decide except in court. (Warren 2010a:np), emphasis added

81 At www.judicialcollege.vic.edu.au/judicial-education.

213 From Court to College

The traditional position changed when Attorneys-General (starting with Commonwealth A-G Williams) declined to speak for or defend judges in the media (Mason 1997; McMurdo 2001; Williams 1998).

Being unable to defend themselves, judges can only be ‘cross and privately berate the media for putting things in a bad or unfair light’ (Warren 2010a:np). However, this is part of the job they know they must deal with.

A Leximancer analysis of ‘Judges don’t spin’ (Warren 2010a) shows that the theme of greatest importance and strongest emotional valence is the media, followed by ‘community’ which overlaps with media and interest in sentencing. However, judges are concerned with law. The Supreme Court is more strongly overlapping with commercial cases than with criminal ones, and this cluster of themes is outside media interest, except for the connection with criminal cases. Focus on ‘law and order’ is a ‘thing’ effectively disconnected from law as the work of judges:

Law and order is a politicians-and-police schema, not a courts-and-lawyers schema:

The community perspective is relevant in this politically interesting year where the Law and Order debate seems to have gained extraordinary focus. We regularly hear politicians on both sides, but predominantly state politicians, talking about Law and Order and things that relate to it. (Warren 2010a:np). The media and community schema overlap, and ‘law’ means protection:

The community wants to feel safe. (Warren 2010a:np) However, the judge’s idea of what is involved in law-as-protection is less concrete and more sophisticated and nuanced:

As a judge who applies the law and makes orders I suggest it is unclear what the expression Law and Order means. It means diﬀerent things to diﬀerent groups. (Warren 2010a:np) [T]he real satisfaction of judicial office is the role played by judges in the maintenance of the rule of law. (Brennan 2011) On the other hand, the rule of law is a courts-and-lawyers schema (and an international law-and-democracy schema), not a politicians-and-police schema. In other words, for police, the law-schema is tightly coupled with order, while for courts and international lawyers, it is tightly coupled with rule of law and loosely coupled with law and order.

As the security people got to know me they became more relaxed and friendly, and in one case the tipstaff gave me a history lesson about the court, pointing out

214 chapter 4B: Case Study: Themes and Conclusion some of the judges’ chambers and a little about the personalities of past occupants. On my fourth visit there was a scene inside the Lonsdale Street entrance as a DoJ manager turned up to re-roster security staff over the road in the County Court building. There was a mild protest from one security man, and a bullying reaction from the manager. The point I draw is not that some people sometimes behave badly. The problem-space of this incident, following Dewey, is that we need to start from the presence of a problem, become clear about what the problem is and why it is a problem. The ‘logical principles’ applicable to this subject-matter are those that formulate it as a problem-space by ascertaining, empirically, what conditions need to be brought about to resolve it. The subject-matter is not in and of itself valid or invalid, good or bad – it just is. When it is salient in a negative way, the side-taking into which lawyers are trained is an easy trap to fall into. The Pragmatist approach is to sidestep binary confrontations. So, for example, seen in terms of Weick’s coupling metaphor, the security staff are performing in two overlapping or interlaced systems, and they are more tightly coupled with DoJ than with SCV.

Reflection suggests that the problem can be summed up by the aphorism ‘he who pays the piper calls the tune’. That, I think, is the Supreme Court’s problem here. It isn’t my problem, except in the sense that as a member of the public I saw it happen, and, perhaps another person unaware that the Court does not control these employees might find that their confidence in the management abilities of the court had been diminished. Considering the problem-space or situation in this fashion (1) removes the emotional heat; and (2) begins to suggest a solution. Here it may well be that suggested by the AIJA: that the Court manage its own staff (Alford et al. 2004).

The bowling alley and the modern mausoleum

In the course of interviews I went to judges’ chambers in the main Supreme Court building, in the Court of Appeal, and in the overﬂow chambers set up in the County Court building where lengthy high-technology trials were being conducted. (I entered the main building through the William Street entrance, the Lonsdale Street entrance and the laneway, once an open thoroughfare.)

This is a big building. It extends for half a city block, and Melbourne city blocks are very long. The court buildings are often called a ‘rabbit warren’ of a place, and they feel like that inside, although really it’s just a big square with corridors. But you get disoriented easily, as there is no sense of contact with the outside. The

215 From Court to College walls are thick bluestone, with bluestone-ﬂagged ﬂoors. In 2008 it was undergoing renovations and there was an acrid pall of paint fumes on the way to one judge’s chambers in particular: through the door, round the corner, in the lift, down the corridor, up the stairs, down the stairs, up the stairs again, and there was a doorway, two feet thick. Asked about collegiality, this judge said he could work in his room for weeks without ever seeing another judge if he didn’t make the effort to do it.

It’s a very quiet, entombing place. One long corridor is carpeted in red and looks like a great bowling alley, seemingly stretching from Lonsdale Street to Little Bourke Street. One of the associates is showing me through to the chambers of ‘her judge’. The associates talked about ‘their’ judges in a proprietary way. I did not detect any pomposity or pretentiousness anywhere, on any visit.

The Court of Appeal is a glorious building, beautifully restored, with green, red, and blue courts with balustrades on each of its levels. I recall when it was the Criminal Law Branch, with Joe McDonald behind the listing room counter, the rooms partitioned into dog-boxes and a distinct musty, decaying smell.

Father Christmas

While I was in judges’ chambers during an interview I was startled when Father Christmas suddenly popped into the room. In fact it was one of the judges of the Court of Appeal, fully robed and off to hand down a judgment. The appeal judge apologised and after a brief greeting, disappeared almost as fast as he had appeared.

The point of this observation is that my immediate impression was of Father Christmas despite the fact that I was sitting in the court building with another judge of that court, and was fully cognisant of the robes these judges wear. This incident suggests that the effect of the unfamiliarity of judges’ garb on people who are not in the courts every day is worth keeping in mind. It can be seen, again, as a matter of loose and tight coupling of systems.

Actors within the legal system, lawyers and judges, even if not coupled tightly as a dyad, are tightly coupled within the legal system by virtue of the culture of ‘thinking like a lawyer’, and they can become desensitised to the incongruity of judicial robes (also ‘habits’, particularly in religious orders (Woodcock 2003)). Lawyers might do well to continually ask themselves whether the positive aspects

216 chapter 4B: Case Study: Themes and Conclusion of judicial attire and formal courts outweigh the comfort of litigants, and whether litigants and witnesses should or should not be comfortable in court. Traditionally, monumentalism in court building has been intentional: fear of a powerful system, along with oath-taking, is unsettling and can make easier the barrister’s task of getting truth from witnesses intent on lying. This is law’s connection with Old Testament Yahweh, before whom supplicants tremble.

Wigs and gowns may help judges establish impersonal authority:

‘When the Family Law Act 1975 was introduced, wigs and gowns were not worn by judges. This was an attempt to reduce the formality of the courtroom. They were introduced in 1987 after several incidents of violence against judges and their families. The wearing of wigs and robes is considered to contribute to judges being seen as impartial agents of the Court.’ (Legal Information Access Centre (LIAC) 2002) Findlaw (2003) reported an online survey in which 54 per cent voted to retain wigs and gowns; the comments summarise the points pro and con. Various meetings of the profession have had similar results over the years. In 2016 the Chief Justice banned wigs and remarked, ‘This is a modern court and the abolition of wigs is all part of the progression towards a modern way’. The cessation date was 1 May, but on 26 May, in a trial before Justice Bell, ﬁve barristers including three QCs wore wigs, and were admonished (Pelly 2016). At noon on 26 May Justice Forrest, the Principal Judge of the Common Law Division, issued a brief notice to the profession (dated only ‘May 2016’) which made clear the sensitivities involved. It also stands as an example of judicial circumspection:

As from the 1st day of May 2016, pursuant to a determination made by the Chief Justice under s 9A of the Supreme Court Act 1986, the judges of the Common Law Division ceased wearing wigs. It is clear that the Court has an inherent jurisdiction to determine the attire to be worn by legal practitioners in court. The judges of this Division have resolved that legal practitioners not wear wigs in any Common Law Division proceeding. (SCV 2016) The issue remains contentious in the profession. The Bar’s Good Conduct Guide includes wigs and jabots as part of ‘robes’ and states that ‘robes’ are the symbol of an “honourable ofﬁce”’ (r 8.16). Further on robing and wigs see (Auckland District Law Society Public Issues Committee 1979; McLaren 1999; McQueen 1999; Muir 2004).

Given law’s determinative function, which requires authority (a ‘proper judge’) and may have a ‘deep logic’ in tension with caritas, it is an interesting question whether therapeutic justice, which requires the same kind of non-threatening

217 From Court to College ambiance to which the Family Court once aspired (Popovic 2002), will inevitably attract the jibe ‘not a proper judge’. Popovic herself was accused, and recovered damages in defamation, for such an accusation by journalist Andrew Bolt.82 She believes ‘Judicial officers need to be persuaded that therapeutic jurisprudence is a legitimate jurisprudential technique which is complementary to traditional law and does not demean the status of the officer nor detract from the authority of the law’ (Popovic 2002) but acknowledges that not all her colleagues agree.83

For the Chief Justice, wigs and the court building clearly symbolise tight couplings to nineteenth-century habits; as a modernist, she presses for a new building and gender equality (Pelly 2016; Percy 2016) precisely to loosen those couplings. Resistance is often characterised by progressives as ‘clinging to the past’ or ‘public school old boys’ club’, but this, too, is a prejudice: the modern instrumentalist view of law makes non-instrumentalist views, which were genuinely held, appear frankly unbelievable, and therefore hypocritical (Tamanaha 2006), yet ‘What we today call Victorian hypocrisy was not regarded as hypocrisy. It was a virtuous effort to keep one’s thoughts within the limits of social propriety’ (Pirsig 1991:289).

From the same perspective of social couplings, the question ‘Why does everything need to be modernised in Australia?’ (Findlaw 2003) speaks to anxiety about the severance of attachments which offer stability and connection in times when Heraclitean sensibilities84 can ﬂourish, but Victorian sensibilities, with their ﬁxed certainties,85 cannot.

(h) Expanded awareness of looser and tigher couplings

Considering education more broadly highlights the difference between ‘learning to use technology’ (as proposed in the curriculum approach to JE) and becoming aware of the wider possibilities of judicial education as a problem-solving, multi- directional inquiry that improves courts in a systemic way and also sustains legal 82 Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161. 83 However, her analysis is not on the ‘loss of authority’ point, but focuses mostly on personal benefits or disadvantages to the judicial officer (e.g. job satisfaction), but adds, the court is recognised as having expertise in the area, and ‘Equally importantly, the Victorian Magistrates' Court has become a formidable lobby group’. 84 Philosophies of flux such as Pragmatism have underlying world hypothesis of contextualism: ‘acts or events are all intrinsically complex, composed of interconnected activities with continuously changing patterns’ (Pepper 1942:233). We are never now what we were then. Development is what goes on between here and there (Farley 2010:1−2). 85 Victorian values are to be passed on, like a flaming torch, ‘But there is no way to light that torch within a Victorian pattern of values’ (Pirsig 1991:289−91). See Vignette 3(c).

218 chapter 4B: Case Study: Themes and Conclusion practitioners, who, as courts are increasingly viewed instrumentally, may be losing touch with its cultural role.

The diminishing role of the Supreme Court in the lives of practitioners

The Supreme Court is the centrally shared institution of the profession in a unique way, different from other professions and disciplines. Every practitioner (apart from those admitted ﬁrst in other states) is admitted to the Supreme Court. Some practitioners belong to a variety of other organisations (e.g. the Bar and the Law Institute) but the common experience of all Victorian lawyers is this Court, and having been admitted in it. That role gives it potential for renewal of the profession, in the face of changing social contexts, including changes in the technological artefacts of research and presentation of cases, in ways that change practitioners’ connection to their Court.

Beyond admission, the extent to which they sustain that connection varies:

Q: Do you feel connected to the Supreme Court? Barrister: What do you mean? Q: I mean, you were admitted there, do you feel like it’s your court? Barrister: Not particularly. Q: But you go there, you appear there, you use the library? Barrister: Yes − but I probably use the Federal Court more. I guess I know their systems better. The registry staﬀ are more user-friendly, I mean helpful − the Supreme Court registry is more like − they’re more like guardians. But I gather the Family Court registry is hard to deal with. Dewey insists that confusion in philosophical thought is introduced by the empirical treatment of relations or dynamic continuities as if they were discrete and separate from the environment. Here, practitioners are ﬁrst admitted to, and then belong to, this Court, the SCV. This is the meaning of the experience of being a lawyer admitted to practice and as an officer of the Court, symbolised by the Court itself. But every lawyer is

a living being struggling to hold its own and make its way in an environment, physical and social, partly facilitating and partly obstructing its actions, is of necessity a matter of ties and connexions, of bearings and uses. The very point of experience, so to say, is that it doesn’t occur in a vacuum … instead of being insulated and disconnected [the person] is bound up with the movement of things by most intimate and pervasive bonds. [MWv10:12] The range and tightness of the couplings, the constraints and affordances, change with time. The Court has an opportunity to advert to the meaning of these

219 From Court to College changes in the connected lives of its practitioners. In interviews with judges I suggested, in an inadequate way, that the Court might ‘educate outwards’. With hindsight, I might have suggested in a more fruitful way, the Court’s opportunities to engage with its own practitioners beyond ceremonial social occasions and in court in the heat of litigation.

The changing nature of dynamic connections is illustrated by the use of library services. A mandatory donation to the Supreme Court Library Fund upon admission secures lifetime membership of the library for all practitioners (SCVLC 1976). The Bar and the Law Institute have their own libraries, but the SCV Library was once the heart of the profession, a place immersed in history, decorated with portraits of the judges, yet the busy centre of urgent photocopying in the immediate present of citing a case in the Court. Access to electronic services in the library still gives practitioners reason to go there (particularly sole practitioners, since the subscriptions are expensive, and while there are charges on some services, it is cheaper than self-funding). Also, many barristers still prefer looking at hard copies of reports.

Twining (1997:223) draws a distinction between ‘law talk’ and ‘talk about law’, and ‘law books’ and ‘books about law’. He invites readers to wander through any law library, asking, ‘How many law books are there here? How many sections do not contain a signiﬁcant number of books about law? What kinds of legal literature are not in this law library?’.86 When practitioners use the SCV Library they have a multimodal experience that includes the ambience of the building, its history and their own person history, including their admission as officers of this Court. But while the connection is not severable (since it is a part of one’s personal history) the strength of connection varies.

Meagher QC87 lived in a different world. The contrast between the context in which Meagher operated and current practice shows up in electronic resources. E-learning is also now common in higher education and has changed the shape of teaching (Garrison and Anderson 2003). It is clear that e-learning offers new possibilities for innovative ways of teaching and leartning.88 However, it may also lend itself to subversion of educational purposes to the administratively desirable goal of efficiency. The impulse to control and systematise in the name of efficiency 86 A university’s ‘books about law’ tend to live in the general collection rather than in the law library. The University of Melbourne is a case in point. 87 Vignette (c) above, ‘Vale Victoriana’. 88 Much new work in the area of technology-enhanced learning is being done, and there is a growing and constantly changing literature; here, technology oﬀers promise of revitalising legal teaching and learning.

220 chapter 4B: Case Study: Themes and Conclusion is a current complaint against academia (doing ‘near-terminal damage’ (Saunders 2006)). In addition to changing work patterns and taking over much routine task performance, computers can accelerate Taylorism (described by a US attorney as ‘turbocharged’ by computer oversight89 of the workforce (Ella 2012)).

Cognitive science, cognitive law

There has been interest in cognitive law sufficient to be called a ‘movement’ since the 1980s; my literature review suggests that a cognitive approach to cultural meaning (Strauss and Quinn 1997) would be very fruitful for students of legal culture. Those in the movement are interested in cognitive effects of all kinds as they impinge on law. Law itself is cognitive in a unique way, arguably the discipline of cognition. Other disciplines are ‘ologies’ of cognition, studying it as a phenomenon, or, as in education, attempting to maximise it in others. But a judge’s actual job is to cogitate and decide. This is why the ‘being in touch’ schema matters for judges.

The approach taken in this research makes the disciplinary practices of neuroscience as they relate to forensics quite signiﬁcant to a potential judicial education curriculum. However, in my interviews, when I asked several but not all judges whether neuroscience, or perhaps a co-operative educational arrangement between the judiciary and the newly established Australian branch of the Royal Society might be useful, none seemed very enthusiastic. Keeping up with the relevant changes in law was a large enough task.

One judge said

neuroscience is all very interesting, in fact it’s fascinating to me personally, but it’s hardly a good use of time when we can call to the court any expert we need. When I need to know about engineering I need a very narrow slice, like the temperature at which a bolt of this composition will shear under that pressure. I don’t have to understand all of metallurgy. They [the experts] took years to get all that [background]. I just want to know this one little thing that answers this point. I don’t need to get on top of the whole thing. This response is the standard legal-research-capability response that law school actively teaches students early on. Legal research is on a ‘need-to-know’ basis and lawyers are expected to be conﬁdent they can ﬁnd what they want, from the right person, when it is needed. The loose/tight coupling perspective taken above points to weaknesses in that way of thinking, which relate to salience-in-use.

Legal scholars are trained to be ‘bowerbirds’ or ‘cherry-pickers’ of other disciplines, and in this sense ‘[l]egal scholarship is a scavenger’ (Blasi 1996:74).

89 Meaning overseeing, not forgetfulness: a ‘Janus-word’, like ‘cleave’ or ‘sanction’.

221 From Court to College

Perhaps this can be said of academia generally. In the case of science, lawyers accept experts’ analytical focus on narrow, scientific facts pre-filtered for scientific meaning, which is not the same as legal meaning.

However, the lawyer’s well-established research-capability schema has an associated shadow or absence (a ‘non-schema’) in the sense that there is little apparent concern among lawyers either about the need for other ways of thinking or, if new programs are embarked upon, the causal efficacy of whatever goals, programs, leadership, and the like are taken in from other disciplines with different ‘deep logics’; results are assumed to ﬂow from the fact that programs are in place (see Lakomski 2005), or about their limited capacity to undertake rigorous empirical research on the law. It is largely a non-salient skill gap, although this is changing. It has been a worry for the UK Nuffield Foundation and the Economic and Social Research Council (ESRC) for many years (Adler 2007).

New technologies grafted onto old contexts

During the course of the research I attended a presentation for practitioners and judges at the Supreme Court which highligted the difficulties implicit in bringing changes to established ways of doing things.

Stereotype activation is now understood to take place at a preconscious or subconscious level. Blasi (2002), one of the early legal scholars in this area, says

scientific knowledge of how stereotypes operate in the human mind has accumulated steadily. Striking recent experimental results have required science to build new models of human thinking and behavior. New theories explain – and sophisticated computer models now simu- late – a broad range of experimental findings. Researchers in the new field of social cognitive neuroscience have developed techniques for illuminating not only how but where in the brain race is processed … Many of the most recent scientific discoveries have significant implications for how lawyers and legal [*1244] scholars should think about stereotypes and prejudice. With a handful of exceptions, however, legal scholars and practicing lawyers have generally ignored these developments … As a result, advocates are often operating on the basis of an implicit theory of prejudice that is as flawed as the theory guiding the evolution of constitutional doctrine. [f/n omitted] (Blasi 2002:12) In neuroscience, MRI and fMRI images and reconstructions are so compelling as visual images that it is difficult to remember that these really are representations, in the way our mental images of the world are not. These images are ‘a glimpse of the human organ in action’ (NG-IHM).90 When they are produced in court, they may be too persuasive. Lawyers have to guard against the seductiveness of the

90 National Geographic source, The Brain segment in the DVD The Incredible Human Machine.

222 chapter 4B: Case Study: Themes and Conclusion image when used not as an exploratory tool, as it is in science, but in an adversarial forensic setting where it supports a rhetorical methodology of persuasion (becomes a rhetorical affordance) rather than being subject to the scientiﬁc method applicable in its home territory (a constraint).

The world of neuroscience, still in its infancy, is achieving technological breakthroughs (equivalent to the microscope and telescope) and progressing rapidly to expand knowledge about the amazing human brain (Hirsch 2010).

Lawyers are used to regarding autopsy reports as conclusive: evidence of the past is ﬁxed there in the cadaver, which speaks (some) non-revisable truth about the moment of death. But science is inﬁnitely revisable; that is its point, it progresses. Forensic science is heavily interpretive as well (the Chamberlain case in an exemplar). And brain images constructed from the brains of others say nothing conclusive about this brain; nor can images of this brain constructed at a later time say anything historically (forensically) conclusive. To the question, ‘Forensic Neuropsychology: are we there yet?’ (Hom 2003) the answer remains, ‘not yet’ (Gazzaniga 2008, 2009; Martell 2009).

Much is being learned. But as a lawyer would put it, the probative value of an individual brain scan is, for now at least, outweighed by its prejudicial (seductive) value: the illusion that it discloses the secrets of the psyche. There is no law-like observation that can applied to an individual mind (understood as brain process); neurological research that maps brain systems yields stochastic, not absolute results, offering laws that can only be expressed in statistical terms, and are not predictive at the level of the individual. This is one reason brain scans are not (yet) offered in court to demonstrate intent. Gazzaniga (2005) is one neuroscientist concerned about premature overreach in this legal context. It remains the case that a brain scan cannot tell you what I am thinking, even if it can tell you which functional system appears to be involved at the date of the scan (which by itself has no probative value concerning past neural ﬁrings; lie detection tests are also problematic (Greely and Illes 2007; Madrigal 2010; Nadelhoffer 2010; Schauer 2009; Stoller and Wolpe 2007; Wolpe et al. 2005)).91 As Mitchell (2007) warns, ‘You are not your brain scan!’ yet there has been much trivialising brain hype reminiscent of the excitement over the human genome project, predicting simple one-to-one mapping between genes and conditions (the ‘anxiety gene’ (Canli 2008).

As an interviewee said, law does (or can) keep up with science, and has an established system of calling expert witnesses to explain just that portion of the evidence that is technical, and frequently discuss issues including concurrent or

91 See further American Journal of Bioethics (2005) 5(2) (entire issue devoted to neruroethics).

223 From Court to College cooperative and discursive, rather than adversarial, expert evidence (NJC/ANUCL 2011). There is little doubt that neuroscience will become as commonplace as ﬁngerprint evidence. Most likely, as is its incremental habit, law will continue to keep up. But at the minute, the scholarship is young, and still contested, so for the moment it seems like ‘ornithology for the birds’ (Slezak 2007).

Conﬁdence in the courts

Conﬁdence in the courts is a legal mantra (a deeply culturally embedded schema) repeatedly found in speeches (e.g. in Benesh and Howell 2001; Dessau 2007; Gleeson 2007; Rottman and Tomkins 2001; Ruddock 2007). The frequency of its use as a persistent theme across the twentieth century is shown in Ngram 5 in Appendix C.

The expression appears on the JCV website and in its documents:

College Board Section 8 of the … and engaged court system, thereby enhancing community confidence in the judiciary. College Outcomes We look for: widespread participation92 in College programs and activities … high levels of judicial support for the … work practices [lead to] increased levels of public confidence that the judiciary is keeping pace with social change … The speech titled ‘Confidence in the courts’ which the Chief Justice of the High Court made at the Confidence in the courts conference (Gleeson 2007). A collection of literary tropes (metaphors suggesting underlying schemas) in one short paragraph from this speech:

The law itself may be notoriously unclear. In a climate of fear and insecurity, the public’s commitment to the rule of law, and its confidence in the power of an independent judiciary, may be tested in the furnace. (Gleeson 2006) Three are legal schemas (confidence in the courts, rule of law, and independent judiciary). Climate of fear is certainly a metaphorical trope, but I think it is more – a generic schema, more complex than a single idea. It is found frequently in the media and entails a cluster of elements within its pattern. Tested in the furnace is more readily described as a metaphor (a carrier and clarifier of meaning; and this one also a cliché which prompts recognition). A cliché is just a metaphor that is a very old friend, not very vibrant any more, but not yet dead. It is not quite a schema (a deeper pattern of related ideas clustered together), although it could

92 When participation is in eﬀect mandatory, or even if judges attend from a sense of collegiality or duty, attendance is not a useful measure of program quality. 224 chapter 4B: Case Study: Themes and Conclusion become more complex over time if it gathered other accretions of meaning. Even so, metaphors are ‘excellent clues to the cultural schemas that underlie them’ (Strauss and Quinn 1997).

The notion of judges being tried or tested also emerges in the discourse. The Chief Justice delivered a speech, titled Judges on the Karma Wheel: The Future of Judging (Warren 2006a). A Leximancer analysis places the focal point of the speech is the operation of the court in trials, and that the commercial list gets a particular mention. Court, trial and cases are connected themes. The highest emotional valence is recorded at the theme courts rather than the themes judge or judges. Trial and cases are midway between them in emotional valence. My interpretation of this is that the problem space is not seen as a personal to the judges. It is rather a matter of the court at a higher level, perhaps systemically, and certainly it relates to cases and trials. The future is at a distance, suggesting it is not immediately at front of mind (i.e. that the issue is more immediate). Although the speech is titled in a way that suggests the theme of Karma might be important, in fact it does not feature in the Chief Justice’s speech, and Leximancer has not picked it out as a concept of any relevance. It is operating as a hook on which to hang the real story – the increasing difficulty of courts in doing their job.

This is how the speech dealt with karma:

Some Buddhist cultures use what are loosely referred to as karma wheels to ﬁnd the future. Strictly speaking, Buddhists call them ‘The wheel of life’. Karma is fate, destiny. So, what will be the judicial fate? … Now I started out by adverting to the karma wheel and what judges might expect to see as their futures. Leximancer ignored this passage. It did, however, pick out the concept of experience as a signiﬁcant topic within the theme judges along with modern and judicial. This (experience) has been an important theme emerging in this research, for both Bench and Bar.

From the point of view of my own learning, in this exercise I am treating this research as a problem situation. The Leximancer analysis has contrast-salience with a human coder. As a human coder, I am quite likely to have singled out the word karma as salient, but this could well have been because it is colourful and new in this context (McAtee and McGuire 2007; Postema 2008; Seta et al. 2008; Taylor and Fiske 1978). For evolutionary reasons humans constantly scan the environment for anything new. When I reﬂect on this, I must agree with Leximancer that the knowledge about karma is not relevant to the ﬁeld of inquiry. In Deweyan terms, there is no ‘carrying forward of the vital impulse, importing certain differences in things, [which] is the aim of knowledge’ [MWv14:130]. There is in knowledge

225 From Court to College

‘a certain promoting’ [MWv14:130], a motivated, propulsive force forward. The Karma wheel, with supreme irony, is performing in a static, rather than dynamic way here. So it is a piece of extraneous information, not relevant knowledge. Leximancer picked that up faster than I did.

4B.5 Conclusions

The connections between Bench and Bar are changing. They were not what I had imagined them to be at the start of the research. I had thought I would be exploring quite a strongly dyadic relationship, but changes in law and in society in the direction of a broadening of gender-inclusiveness, growth in the size of the Bar and ‘churning’ among its members, and reciprocal perceptions of declining quality.93 Changes in frequency of use of particular terms such as ‘conﬁdence in courts’ reﬂect changes in social preoccupations, and the larger social themes of economic growth, governance and rule of law suggest not causal connections, but a constellation of ideas that occur together and may appear to be causally associated in the Zeitgeist. Exploring judges’ attitude towards their own education, I found a range of attitudes which were reasonable in the circumstances. This led me to conceive of the ‘reasonable judicial learner’ who was dutiful and co-operative, but had varying degrees of enthusiasm for JE, for various reasons. Time and the relevance of the material were the major issues.

Technology is increasingly seen as an answer to training needs. In the training logic of instruction, culture is irrelevant except as a marker of corporate diversity, and there is little than can’t be taught using technology and social media. Information is just handed over to the learner. (Who needs a mother, when you can just tweet or ask the Internet how to cook?) In post-graduate practical training, the NSW College of Law made this change ﬁrst, processing thousands of students for every hundred attending Leo Cussen in person for seven months. Leo Cussen was itself forced to offer an online learning model to match the competition: students preferred to learn legal practice online, fast, at convenient times, rather than show up daily for more time as students. The Law Institute now also offers ‘online learning’. Indeed, this may be ideal for training, if training understood as instruction about technical matters, as discussed in Chapter 2. To the extent that 93 Heard this from both Bench and Bar, and also from the Bar about the quality of new graduates, but since it is impossible to deal fairly with that perception here, I have not gone into it in this thesis. The Bar’s im- position of an entrance exam (in which failure rates are high) could equally be evidence of protectionism or conern about quality.

226 chapter 4B: Case Study: Themes and Conclusion

JE offers training, it is a curate’s egg – good in parts. It is over-resourced in its own building, when technology would do, and it is under-resourced in real education for growth. Taking a both/and Pragmatist perspective allows a new approach to emerge from this problem-space, in which judges interested in education can remain in charge of the process and ‘pick their battles’.

On my analysis, the personal cost–beneﬁt calculation I found to be operative at the individual level applies equally to JE as a whole, from all its perspectives, at all levels. This led me to seek an over-arching principle for assessing the quality of JE in ways that neither measured the progress of individual judges nor constrained the directions that a high quality JE might take when placed in the hands of willing judges, yet took into account the personal, organisational and societal importance of JE. The conclusions in Chapter 5 grew out of my reﬂections on these matters, in light of the literature in Chapter 2.

227 From Court to College

CHAPTER 5

Conclusion and Perspectives: Beyond Training and Within Culture

5.1 Established models of CPD, CLE and MCLE 5.2 Judicial education: An old/new belief system, or intelligent inquiry? 5.3 An accountant’s perspective: Cost, opportunity cost, sunk costs 5.4 Empty futures: New Management, professionalisation and organisational learning 5.5 Possibilities beyond a Victorian College?

This chapter draws together the themes emerging from the research in Chapter 4 in light of the literature in Chapter 2, as outlined in Chapter 1, with particular reference to Rømer’s (2012) reinterpretation of Dewey. The aspect of the habitual ‘legal mindset’ that is focused on problem-solving, categorisation, defence and persuasion appears to bear on the topic of judicial education in Victoria in ways that have impelled its progression towards an administratively driven training regime and away from a more open and enquiring educational mindset.

Justice Oliver Wendell Holmes once noted that he would not give a ﬁg for simplicity this side of complexity, but he would give his life for simplicity on the other side of complexity. (Organ 1996:4)

Judicial education was easily achieved in Australia – perhaps too easily, and therefore uncritically, since every society needs dissent (Sunstein 2003). As a new category, it was brokered in ways that altered the degrees of looseness and tightness with which various elements in the legal profession are coupled (Orton and Weick 1990; Weick 1976). The political reasons would also have tightened the couplings between court and public (conﬁdence in courts, and keeping judges ‘in touch’ and ‘engaged with’ those who come before them). The logic of these reasons is questionable. And by proceeding in a way that relied upon old couplings (re-enacting, as a kind of cultural habit, previously established forms of CLE), opportunities have been missed, and primacy may have been given to less- educationally valuable institutional forms. JE was established by a ‘deliberating group’ meeting for that purpose and thus subject to the risk of homophily or ‘groupthink’ effects and other biases (Janis 1982; Sunstein 2006; Sunstein 2001).

Any change now would need to be made within the available ‘zone of manoeuvre’ –the area or social space, affording strategic possibilities, within which

228 chapter 5: Conclusion: Beyond Training and Within Culture interaction effects may occur in the relations within and between organisations in particular contexts, given their capacities at the time (Clark 1999; Sanderson 2004). One difficulty is that these constraints include an environment that demands corporate-style control of processes and training as, in effect, an accountability measure for all professionals – largely for the political purpose of public reassurance and without enquiring too deeply into its actual value or implications. A universal, largely undifferentiated, need is assumed, across the mandatory CLE spectrum, and a compliance culture (Interligi 2010) has clearly taken shape.

Such a regime is determinative in character: it closes down options as it embeds in habit ‘the way we do things around here’. Yet indeterminacy (loose coupling) may be extremely fruitful for development of a sustaining and sustainable professional ethos over the long term though real education (for judges as well as lawyers). This is difficult, since indeterminacy is confronting for lawyers. It goes ‘against the grain’ of legal thinking. The deep logic of law as protection exercises its force through legal method, which progressively narrows the scope of indeterminacy, locating bright-line distinctions hidden within the penumbra of legal doubt. This is how judges do their work, and the process is partly intuitive, partly rational.

What follows (1) briefly recapitulates the established models of CPD, CLE, JE; (2) describes judicial education as a new belief system based on folk-theory policy; (3) considers JE from within the ruling economic perspective of cost, opportunity cost, and sunk costs; (4) looks briefly at what New Management and professionalisation have meant for JE, and considers the absence of organisational learning and self- directed learning perspectives; then (5) returns to the lawyer’s own litmus-test question (Cui Bono?). Concluding (6) that there are, indeed, possibilities beyond College, it (7) cautiously recommends further research by rather than on judicial education, with guidance from unaccustomed quarters; and (8) suggests a new way to think about JE as judicial education and training (JET), described briefly at (9).

229 From Court to College

5.1 Established models of CPD, CLE and MCLE This anti-intellectualism is characterised by an unwillingness to reﬂect on the goals of legal education … (Feinman and Feldman 1985)

Within the profession, we have generally approached the content of education programmes in an ad hoc way … (Dowsett 1998)

From different times and places, legal academics have pointed out that changes in legal education and the practice of law are separate and distinct. A former Dean of ANU Law (Coper 2008) calls these spheres ‘separate worlds’. Even further separated are the worlds of law and education. Yet the point of departure for JE has been ‘the way we do things around here’ in CLE, and CLE has been largely the product of common-sense, top-down, deliberative consensus about the need for a compliance regime, rather than a bottom-up, motivated participation in real education.

The case study in Chapter 4 is a snapshot from the ﬁrst decade of judicial education in Victoria. It focuses on judicial education for Supreme Court judges in the context of the broader ﬁeld of legal education. The research suggests that much of JE at JCV – including its administrative logic, its scheduled program of events, its comfortable relations with a ‘family’ of staff members, and its primary goal of achieving its own building – is habitual, in the sense discussed in Chapter 2, and with the expected results: a form of ‘academic drift’ towards a single organisational form.

It is difficult to overstate the importance of preventing JE from solidifying into any one organisational form if it is to be ‘real’ education. The deep embedding of legal culture within its subject matter (and the reciprocal embedding of the subject matter of law within a wider legal culture) is central to my argument that a Deweyan understanding of education should inform JE: not directing it along established educational pathways, but opening possibilities for exploration within a problem-space. Habit, imagination and judgment can then come together in what Rømer (2012:135) argues is a conceptual circularity that yields neither a formal educational process nor a natural one. Rather, ‘the subject and the world simultaneously emerge in an open, intelligent and quivering instant’ through these contextualised aspects of experience. This was borne out in my research by the judge who reported ‘writing his way into’ a judgment in order to understand what he thought its conclusion was to be’. Educational ground can be prepared

230 chapter 5: Conclusion: Beyond Training and Within Culture in various ways, but it is a mistake to think that setting out programs of learning- content, however skilfully crafted, can move beyond the preparatory role occupied by habit. It is the ‘intelligent and quivering instant’ that yields the act of judgment, and creativity. Such an instant needs to be allowed to emerge, rather than being pushed or pulled into existence through external forces. Thus I argue that focusing on method (constantly exploring in changing contexts) is better than trying to devise whole programs in advance; and there is a totally overlooked value in the via negativa (allowing or letting rather than constantly pursuing an activity in the name of programmed experience).

Thorndike’s victory over Dewey (Lageman 1989, 1997) has made it harder for insights about the nature of culture at a psychological level and in interactions with social institutions (Berger 1963, Strauss and Quinn 1997) to take hold in education and educational research. Reform and modernisation remain premised on a behaviourist understanding of psychology that has never been shaken; in corporate consulting, trait-based theories and factor analysis predominate. The world of professional education might have been rather different, had Dewey prevailed, in law and in medicine. Instead, as de Cossart and Fish (2005) note for medicine in the UK, ‘The current mania in UK politics to modernise everything in sight has grave implications for the future of edical practice’.

Similarly, stressing the importance of context for JE might mean encouraging varying methods, physical spaces, problem-spaces, times, time-spans, and life- stages, to name a few framing devices that might serve to encourage a more perspectival view of JE for its participants – almost anything that would avoid the ‘tick-box’ view of professionalism (Fish and de Cossart 2006). The ‘steering group’ method employed by JCV is a good start; my objection to the JCV model is ﬁrst, its reliance on external siting in a ‘learning space’ rather than emerging bottom-up from within the courts, and second, its reliance on the tried-and-true, comfortable workshop delivery model administered according to a calendar (a ‘prospectus’ of menu offerings from a selection of neatly planned events). Real Deweyan education is necessarily situated in various contexts and emergent, which means to some extent unplanned, and possibly even chaotic. The research established uncertainty about what judges wanted, and I was unable to suggest anything beyond the writing programs that had unanimous appeal, and that is not surprising.

From a sociocratic viewpoint, ‘real’ JE might mean starting small, with motivated judges, at ﬁrst merely noticing the distinction between policy and decisions about operations (Buck and Villines 2007). While this distinction is not unique to

231 From Court to College sociocracy, my research suggests that it is important to recognise, since most of the time we are unaware that we are, in fact, entrained by habit: we do not recognise that we are ‘following a policy — it’s just the way things are done ... Thus short-term operations decisions can drift into being applied as long-term policy decisions.’1 My research detected a tendency towards construction and repetition – a perfectly natural tendency – which plays out as a pattern of habits that emerged from CLE (the prior experience of judicial educators). However, its effect is to embed past habits inherited from CLE, rather than constantly re-framing the problem-space, which I argue to be the preferable approach.

The original research data was gathered when members of the Bar were relatively unaware of the program for judges and the offerings were meagre. The Chief Justice says, in her recent video on the JCV website, that in the last five years ‘awareness of the need for JE has risen dramatically’, and there is little doubt that if the Bar survey were repeated now, it would find that awareness of JE had risen. But it is not quite the same thing to say ‘awareness of the existence of JE’ and to say ‘awareness of the need’, since the need has not ever been established as such, so ‘need’ has been smuggled in. This may be a small spin, but it is spin – and ‘judges don’t spin’ (Warren 2010a). Only with a needs assessment can it fairly be said that a need has been demonstrated. Certainly the view of the brokers of JE that there was a need has prevailed. In Victoria, academisation began with the profession’s handing over of its gatekeeper role to universities (degrees first alongside articles, then in their place). Pre-admission Articles gradually gave way to practical training courses, which then became graduate diplomas in legal practice, so loosely connected to professional practice that at the University of New South Wales the course was taught online with only a small face-to-face component. In Melbourne, the Leo Cussen Institute was by comparison a Rolls-Royce model of practical training, but even that model was still only loosely connected with real practice. It was role-playing, not situated learning, and the students (still called students, although they were graduates) did not have access to the legal practices of their mentors. It was all very administratively comfortable and firmly institutionalised. In the end, competition forced Leo Cussen to adopt partial online learning as well, thus loosening the connections with practice even further.

At the Bar, mentorship at ﬁrst included, then became increasingly reliant on, a formal Bar Readers’ course and increasingly complex Reading Regulations, and ﬁnally a Bar entrance exam. 1 Sociocracy website at www.sociocracy.info/policy-and-operations-decisions/.

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The move towards formalisation continued in the transition from voluntary to mandatory continuing education in the profession in 2004, with quantitative record-keeping and attendance requirements, and dominance of the process by the Law Institute and the Leo Cussen Institute, the chief providers of continuing legal education. The model of continuing education as a calendar of events repeated annually in a predictable pattern was ﬁrmly set and embedded even more strongly by being made mandatory. There was little room for anything else, but lawyers themselves liked it that way, and when asked about their preferred form of continuing education overwhelmingly endorsed the system then in place.

The process continued with the introduction of programmed education for judges, again with a published curriculum and quantitative attendance benchmarks for education consisting largely of programmed events.

At JCV, the judicial power of those in the pro-JE interest group enabled a speedy transition from a fledgling body with a minuscule budget to an embedded institution with its own dedicated learning centre. Although the enterprise appeared to have been established with malice as ‘judge’s school’ (Baggio 2001; Hulls 2003e; LIJ 2007; Wallace 2006; Whinnett 2006; Woods 2006), the way the participants were able to view the world and themselves meant they could turn the enterprise to good account by participating. And they were the heads of jurisdiction in a hierarchical system. This, coupled with the beliefs of participants, which arise as a matter of shared social meaning, has accelerated the process of institutionalisation. The interest groups were not quite ‘minds on fire’ for education (Brown and Adler 2008), but they were willing participants who were able to rise above pettiness, and their belief systems, coupled with social power, enabled the endeavour to flourish.

Participants’ commitment is central to an institution’s social structure (Selznick 1957:98), and those in charge will always care more (Selznick 1957:98). In brokering JE, its advocates were assisted by the introduction of the term ‘judicial officer’ (generality shifting) Diani and McAdam (2003:271) along with the changes to titles and forms of address (Your Honour, and the change from ‘magistrate’ to ‘judge’).

New non-incremental social programs are ‘qualitatively different from incremental ones … they involve “new connections”; they are discrete, discontinuous events; usually involving deliberative effort; and they may have only a minor relatedness to existing [programs]’ (Nemet 2009:700). JE is, paradoxically, both a radical discontinuity in this sense of being unprecedented, and also a clearly foreshadowed continuation of prior habits.

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5.2 Judicial education: An old/new belief system, or intelligent inquiry? As for the privacy complaint. You must be crazy, unless you like the idea of going 16 rounds with some gentlemanly psychopath from [insert major law ﬁrm here], who probably sat on the industry consultation group that drafted the extension of the Privacy Act to the private sector in the ﬁrst place … (Mint Slice 2010)

My research leads me to conclude that while judges had control of the process, they did not approach it as an intelligent inquiry (a process of discovery of something new, in Rømer’s ‘quivering moment’), as they might have done. Rather, suffused with the lawyer’s conﬁdence in setting about things in a common-sense way, they got on with it in the best way they (already) knew. But their know-how operated from the premises of instrumental law, not of education.

Conventional wisdom about legal education is problematic in several ways. Belief in education as a good is a popular assumption, but it does not disclose the mechanism through which that good is supposed to be achieved: how the desired outcome is to be achieved, either in the personal dimension or the societal, nor how it might be made meaningful in either of those dimensions. Those who ‘believe in education’ may fail to consider politically challenging uses of education that reinforce undesirable aspects of a system (in other words, tightening undesirable couplings that inhibit growth, or loosening desirable ones that foster growth): a movement in the wrong direction, in Deweyan terms.

Cultural models of education (what it should be like, how children learn) are formalised and do not ﬁt the way people (still, long after they have passed childhood) continually learn as a natural consequence of interacting with their environment, adapting to the conditions around them. These conditions include the social (cultural) environment, which is relationship- and meaning-based. Even the idea of ‘lifelong learning’ is premised on an assumption that in order to learn we have to ‘decide’ or ‘be encouraged’ to learn, and participate in learning, as if it is something we ‘go away to do’, whereas in reality the brain is a continuous- learning machine and we learn whether we like it or not, in every situation we are in. This is not new; Dewey stressed it. But it is still largely ignored because formal learning is a ‘positive step’ requiring planned action. The ‘situated learning’ literature has clearly demonstrated the point that learning occurs in context (indeed is epiphenomenal to experience, which cannot escape its context), but institutional habits have proved stronger than the (sometimes strong) desire

234 chapter 5: Conclusion: Beyond Training and Within Culture of educators to change the system. The system is now tightly coupled with an outcomes-focused, New Management efficiency/quality assurance training model in higher education and beyond, through CLE and on into JE. The lifelong learning movement is another outgrowth of the requirements of industry for workers with standardised, interchangeable skills (that is, lifelong retraining). Presented as an opportunity, ‘as a means for enabling individuals, organisations and nations to meet the challenges of an increasingly competitive world’ it also signals ‘a strong sense of expectation, even compulsion, with emphasis given to vocational forms of study and participation’ (Tight 1998).

Much of this (habitual) drive towards continuous training is linked to professionalisation, and from 1963, when the NJC was established in the USA, the two powerful ideas of ‘education’ and ‘justice’ were yoked together, in a kind of double ‘halo effect’ (Nisbett and Wilson 1977a) of association which made an implicit causal claim that the ﬁrst assured the second. In all my reading and research, I have not found anyone suggesting that JE results in better judges. The focus has been on public perceptions.

Judges are by their role, and probably also by inclination, dutiful. That is how I found them to be. Otherwise they could not stay in that role for very long (and some do regret the move, leaving ‘the cushioned ease [that] experience has revealed is a bed of nails’ as Sir Maurice Byers put it (Byers 1987:180)). Obligation is a psychological state, as Dewey noted:

But in duty, the distinction between present self and ideal seems pushed to the point of dualism … [Duty] presents itself as a demand, an exaction, if not a coercion. It stands over against the agent and utters the ‘categorical imperative’ (Kant), ‘thou shalt,’ ‘thou oughtst,’ instead of drawing the agent on by its own intrinsic attractive- ness [Dewey, EWv5:311]. When judges believe they have a duty to attend JE they are making a responsibility judgment about how they should behave. But in the sphere of judgment of responsibility when defendants come before the court, especially for sentencing, judges consider a complex mixture of behaviour, intention and agency. The facts have social as well as legal meaning, and this social meaning attaches to everything judges do professionally. This is an important insight of sociology and law (Lempert and Sanders 1986).

Duty is a matter of belief about what is right, and beliefs can be misplaced. Neuroscience and evolutionary psychology have brought cognitive bias into sharp focus, and provided explanatory mechanisms grounded in human development

235 From Court to College for much behaviour we think is rational. Thus for example a judge who was struggling to ﬁnish paperwork, as he frankly admitted, was stressed by the task and unable to see that he might think laterally about it. He was adamant that there was ‘all this’ mass of paper and that it had to ‘pass through his head’ and thus no one could help; that he could not write short judgments, because he had to set out a full analysis of what had gone before, and so on. He was paralysed by duty, as other judges who have been slow to deliver judgments have clearly been. Yet some of the great judges have written their most famous and incisive judgments in a few pages. It may be that judges now tend to over-write. This judicial task of judgment-writing has two aspects: the decision and the justiﬁcation. Some judges, as I found, ‘write their way in’ to the judgment, and may as a result be dismissive of formulaic writing. Others are grateful for the structure and happy to write to a formula. But while the law school ‘IRAC’ technique makes good basic mental furniture for a novice, expertise is an internalisation of method which produces results so naturally that the expert is hard-put to locate any rule at work. For the expert, rules have receded and pattern-recognition has become ‘insight’ or ‘intuition’. Its wellspring is habit.

Over time, the underlying meanings of the ideas of vocation and profession have changed; again, a loosening and tightening of couplings, and category shifts. There is much discussion in the literature about the nature of professions at a superﬁcial level. However, less obviously, at the deep-meaning level, each of the original, self-regulating professions has emerged to ﬁll a meaning-role with a centrally important place in society. Each could be called a ‘protective’ discipline, although each fails to some extent. Thus law protects property and person;2 medicine protects life and limb;3 the military protects the polis; 4 and the church protects the soul.5

In legal education, Feinman and Feldman (1985:930) argue that there is a ‘clear choice … between a strategy of challenge raising fundamental issues about law, lawyering, and learning-and a strategy of concession-being “practical”, seeking incremental gains.’ Like these authors, I have reﬂected deeply on the merits of a theoretically grounded challenge to the status quo, since ‘Confronting a dominant consciousness is a tremendous threat not only to a curriculum or to legal theory but

3 For a bitterly humorous account of medicine as the second-oldest profession, see Sackett and Oxman (2003). There is a large literature on the disenchantment of medical practice, not covered here. 4 In a highly charged political atmosphere, Australian Customs (2010) protects the borders, not against goods but against refugees (Devetak 2004). 5 But not children: two recent Australian Royal Commissions on child abuse in churches echo ﬁndings from the US and elsewhere (Middleton et al 2014). 236 chapter 5: Conclusion: Beyond Training and Within Culture to the way in which people constitute their self-identities’ (1985:930) and this thesis, by raising theory-challenging objections to lawyers’ way of educating, does exactly that. While these authors say the choice is stark and the cost of incrementalism is ‘abandoning our interest in transforming legal education’ and ‘not doing what was important’ (1985:930), I think the political climate and Zeitgeist dooms such a wholesale attempt to failure. The literature also shows that motivation and habit are so intertwined, and motivation so well quarantined from the agenda of others, that to call for a radical departure from the training mindset of CLE is to invite failure.

While judicial training can be designed the old way, designers of judicial education would need to form some new and challenging habits: embracing their ignorance; staying open to continuous, responsive change; treating JE as ongoing rather than a one-off experience; expecting erratic change over time; avoiding ﬁnite, pre-packaged and repeated sessions with ‘expected outcomes’; and focusing on emergent ﬁts. In short, developing a ‘design attitude’ that sees each project as a chance to question basic assumptions and ‘resolve to leave the world a better place than we found it’ (Boland and Collopy 2004).

Similarly with education: as discussed in Chapter 2, the deep logics of law and education are protection and growth, respectively, while training is a corporate operation model for workplace skills in interchangeable human work-units.

Each of these has different, and important, implications, but there appears to be no appetite, among legal educators, to theorise (conceptualise, or reconceptualise) continuing legal education or judicial education. But a ‘theory free zone’ is impossible. What we are left with is the host of implicit, unexamined theories that constitute ‘common sense’. Cognitive scientists call it ‘folk theory’, psychologists call it ‘naïve psychologising’. A philosopher or researcher in residence (along the lines of a new program that places early-career research scientists in Parliament) might be one useful innovation (Owens 2016).

Yet the power of habit can also be to agitate (Bissell 2012), and in this, an entry point to real education may be law and literature, for which ‘a small band of enthusiasts’ have ‘educational ambition (Bradney 2000:343). If judges are to be ‘kept in touch’ it is difficult to think of anything that might do it better than literature, ‘not conﬁned to novels and plays and poems within the canon of high literature, but includes essays, histories, philosophy, ordinary language, and the specialized discourses that dominate other ﬁelds, as well as the study of language itself and the humanistic study of other cultures’ (White 1989:2015n3).

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Those who design new institutions are inevitably ﬂying blind to some extent. They do not know what is possible, so it seems safer to stick to what has been done before, and make assumptions based on past experience. However, they ‘nearly always misunderstand to some degree, [so] they should view their efforts as experiments that might not turn out as predicted, and they should pay careful attention to the outcomes of these experiments’ (Dunbar and Starbuck 2005:176). In other words, ‘Designers need to respect their ignorance of the organizational goals that they should be pursuing, of the situations they are attempting to affect, and of the consequences of their actions’ (Dunbar and Starbuck 2005:176). Since one of the tendencies has been to see the ‘practical’ disciplines of law and education through an impersonal, instrumental-economic lens, as Judge Posner does (White 1989), then, taking the lead from Bissell (2012), we might capitalise on the agitative power of habit to turn the accountant’s view on its head, using its own tools to challenge its methods of valuation.

5.3 An accountant’s perspective: Cost, opportunity cost, sunk costs [T]he point is that we must decide what it is that we want to do before we expend resources in designing a programme.– Justice Dowsett (1998)

Budgeted time of 10 hours was set as a standard for resourcing reasons, to establish a right to that time, so judges were free to attend. It was a benchmark of accountability for resources (Roper 2006). This thesis is not in any sense an economic analysis. However, the standard has been set as 10 hours of judges’ time per year, and accounting practice does present some different ways of calculating cost (called ‘value’). Contrary to the common-sense view that a cost is nothing but a budgeted expenditure or use of a resource, accounting opens up different ways of thinking about what JE might be costing, as a ﬁrst step towards a cost–beneﬁt analysis (by the judges).

As these ideas relate to JE:

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 Value-cost (annual grant to cover expenses): currently approximately $2.25 million per year, and rising (higher in NSW). These costs are higher, as Justice Dowsett noted, if the system is centralised and the co-ordinators paid. But I want to argue that while it is right as far as it goes, this costs perspective is itself a product of old ways of thinking about organisations as structured control centres that need to occupy spaces in time (the calendar) and place (the building). Now, with new metaphors (e.g. action nets (Czarniawska 2004) and local knowledge (Brown and Duguid 2002)) it is possible to escape from the ‘organisation-as-control’ mindset. It is hard to overstate the constraints on imagination set in place by the habit of using language in that old way.

 Sunk costs (unknown): money spent that turns out to have been wasted and is neither recoverable nor coming back in the form of some kind of quantitative or qualitative dividend in the future. In the literature of political and organisational decision making there is a related notion of ‘escalation’ as an effect of commitment, which retards the ability to back down (as with sunk costs, there may be a tendency to ‘throw good money after bad’).

 Opportunity costs of funding: the cost of doing this, which precludes doing something else with the resources. Using resources on ineffective programs is a wasted opportunity. Many of the points made by Justice Dowsett (1998) in his paper on JE are apposite here. Dowsett stresses that since funding is limited, ‘It would be unfortunate, even counter-productive, if a proliferation of judicial education opportunities were to reduce support for well-established activities such as annual or biennial national conferences, AIJA activities and activities of the Judicial Conference, or travel opportunities.’

 Replacement costs: ‘Judges involved in the programme in any capacity will have to be released from other duties. This will create a need for more judges’ (Dowsett 1998).

 Opportunity cost of judges’ salaried time (diversion from the main task): 1 week (5 days) per judge per year in attendances, plus preparation time for steering committees, presenters, and authors of papers and journal articles, and time spent learning about presenting workshops.

 Discounted future the assumption that the value of a good diminishes with the passage of time (this is the view within the current economic system, which is why depreciation of assets is a central concept in accounting).

239 From Court to College

When applied to educational problems, it means that what is further away in time is reduced in value to the point of insigniﬁcance (Adam and Groves 2007a).

 Finally, loss of a chance. This is a new and elusive idea in the law of compensatory damages, but broadly speaking, it means having had an opportunity to do something that would have produced value, and being prevented from getting on and doing it by what happened. What happened was JCV in Victoria. What did not happen was something truly innovative, non-institutional, situated, experimental, consultative, or individually tailored, to name a few possibilities.

In the case of JE, the determination not to join the national system led to ‘sunk costs’ in Victoria, and limited Victorian funds ﬂowing in to support the national system, as was noted by the Chief Justice of South Australia in 2006 at the Conﬁdence in Courts Conference in Canberra. (It’s not too late’, he added.)

Again, Justice Dowsett’s warning is apposite:

If the programme is conducted centrally, there will be substantial travel and accommodation expenses. There will obviously be oﬃce expenses, including rent, secretarial costs and possibly the cost of a professional co-ordinator, although there may be suitable retired judges willing to act in an honorary capacity. Once again, I stress the need to avoid empire-building. (Dowsett 1998:np) In accounting terms, an adversarial model is a zero-sum model: confronted with different positions, the natural human response (and its legally ampliﬁed, lawyer’s response) is to pit one against the other, not only competing, but opposing, in a binary way. This either/or thinking makes mental entries in a clear-cut, two-sided ledger: everything must be a debit or a credit.

This discussion about costs omits socially meliorative or psychological (eudaimonic or hedonic)6 costs and beneﬁts, which depend on willingness to interpret ‘value’ other than in economic (monetary) terms. These are elusive, but more profound, because they touch on the ‘deep logic’ of meaningfulness beyond the ‘shallow logic’ of money. In addition, value may be intrinsic, instrumental or constitutive (194)).7

6 On the diﬀerence, see Ryan and Deci (2001), and for a critique of that division, see Kashdan et al (2008). Again, there is a substantial literature here, ranging from ethics to positive psychology. 7 In the sense intended here, JE could contribute in a manner that was constitutive of some larger whole, as ’an institution that contributes to ‘the ﬂourishing of networked relationships across space and through time’ (Adam and Groves 2007:194).

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One cost of deliberative determinations is that the decision creates a minority ‘loser’ (Diamond nd). Other costs are tied to different educational and organisational structures. The best way to think about them is to choose the best possible ruling metaphor (mindfully, not intuitively), and then to insist on evidence. There are many ways to foreclose on fruitfulness in the future (giving ourselves ‘empty futures’). The ruling model that positions unrestricted economic growth as a primary good is an example of the ‘dominance of empty futures’ (Adam and Groves 2007a).

5.4 Empty futures: New Management, professionalisation and organisational learning [We are at] a moment when educational reform seems to be rushing pell-mell into a barren and sterile search for yet another right answer …

– Deborah W. Meier (reviewing Noddings 1997)

The literature considered in Chapter 2 (the significance of metaphors in the shaping and expression of culture; the deep logics of different organisational forms; the organisational form as itself an expression of the desire to control messy human reality): all these things are features of the system which need to be noticed, and taken account of, if the system is to change (break out of its habits). A corporate model for administration, training and reporting does not have a good ‘fit’ with the judiciary’s independence and determinative, rather than executive (CEO-style, or trainee-style), authority. In addition, there is no Socratic ‘gadfly’ to challenge the institution, and it is not clear who will benefit from it.

Control over the future is illusory, and the quest for certainty is illusory (Dewey 1929). Management is, above all, a quest for certainty and control: yet enterprises that are ‘too big to fail’ do fail – and may also be ‘too big to know’: that is, to operate as a networked system that learns from all its constituents (Weinberger (2012).

In court administration, the AIJA pressed for a managerial approach (Alford et al. 2004) and in 2015 the courts achieved their wish: a new body to manage courts, Court Services Victoria. A Memorandum of Understanding was signed in May 2015. Highlights of CSV’s ﬁrst six months (CSV 2015) have been published, but it is too early to judge the success of this move. Doing so in any way that judges quality rather than accounting measures will, as usual, be challenging.

The sharpest issue I see for JE is the Education/Training distinction, and the CLE structures so far exhibit a ‘training’ mindset. Training is about conforming

241 From Court to College to industrial norms. It is well suited to skills mastery such as computer-based searching, and it is conducted in workshops with the help of instructors, presenters or facilitators. It is best presented in a training space, which can be hired as needed. An entire training industry exists and can easily be tapped into for workplace skills. Dedicating a building to serve as a ‘university for judges’ when what is offered is merely training, is at best wasteful. At worst, it is a dangerous temptation to build empires. The test of training is competence, which can be assessed without any threat to judicial independence. It is generally assessed as individual progress. Training is pointless without assessment, and it is pointless unless the person being trained needs the training for some cogent reason.

Judicial education would be adult informal education, at all three levels (personal, organisational or societal) or any of them, devised by the judges themselves, in contexts that are actual problem-spaces rather than nice ideas for a program, or programs repeated for convenience. Assessment of education would not only offend principles of judicial independence, it is pointless, because it is impossible. It is only attempted by credentialing organisations because they need to supply certiﬁcation, and this is a market requirement, not an educational one.

As far as JE is concerned, if the ways of assessing its quality are necessarily broad, that gives the judges a chance to broaden the way they look at the entire exercise, not as a content-delivery system with carefully categorised topics, as happens now, but to change the organisational logic itself: to broker a sociocratic alternative.

Paradoxically, while judges have clearly been using their legal skills to construct JE, they have not made use of their skill in sceptical interrogation, which seems to have been set aside upon appointment. Lawyers habitually ask inconvenient questions, and generally do so from within an adversarial framework. However, the lawyer’s question, ‘Cui bono?’ (Who beneﬁts?) is not only very powerful (because it ﬂushes out interests); it can be used in positive ways as well as negative.

(a) Cui Bono, and where is the gadﬂy? Most importantly … it is about sending the message … (Hulls 2003b)

Attorney-General Hulls wanted the JCV, and enshrined it in legislation. The purpose was clearly not educational. That does not mean the judges cannot, in taking control of the process, change its direction. But to do so, they need to establish the purpose

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clearly, and know what they think the connection is between attendance and being, say, a better judge. They need to ask, ‘Cui bono?’ both negatively and positively.

It is clearly ‘mere puff’ to say JCV is ‘keeping judges in touch’ (with whom? and how?). But beyond corporate spin, how good are lawyers at continuing education and organisational learning? How effective are the established systems? It has not been possible to assess them at the individual level, yet this is the level at which judges attend sessions, and also the level at which they make judicial determinations. How does anything at one level affect the one above? This has been called ‘the big question’ of the social sciences.

Lawyers’ habitual denial of theory by taking a ‘common-sense’, instrumental view of law preserves professional identities, but may retard educational excellence. Lack of teaching skill is a longstanding issue for legal education, including CLE (Gold 1986 in Roper 1999). In fact, judges who have been involved in JE have attended workshops on teaching methods, and are presumably also developing these skills through practice as well. Whether all this is a good use of their time is perhaps a question only they can answer, but if one paper took a Court of Appeal judge 70 hours to write, in addition to delivery time and meetings, the justiﬁcation does need to be strong.

What might be possible to learn at a college?. From the Bar Survey, barristers’ beliefs about training (e.g. through JCV) are that it is potentially useful for mastering technology (66.7%) and for managing cases and work (53.3%), but less than half of the respondents thought it could keep judges abreast of developments (47.4%) or give them business acumen or managerial skills (40.5%), and even fewer thought that judicial conduct (35.8%), making decisions and giving reasons (35.2%), managing one’s health and well-being (34.2%), knowing the system (27%), applying the law (25.5%), or knowing the law (25.2%) could be learned there.

But beyond that, if the ultimate point of education is the beneﬁt of democracy, then educational policies and practices, which have both opportunity costs and social consequences, need to be assessed not on values-statements, but in ways that test their usefulness. It continues to be a problem that ‘[d]espite its importance, continuing professional education is in an anarchic position that limits the ability of anyone to monitor its quality and effectiveness’ (Azzaretto 1990:71).

Rhetoric is not action, and it is not easily translated into action. ‘There are,’ as Weber remarked, no known ‘scientiﬁcally ascertainable ideals’, and it is harder in a subjectivist culture to ‘create our ideals from within’, but we ‘must not and cannot

243 From Court to College promise a fool’s paradise and an easy road to it, neither in thought nor in action’ (Weber, in Alexander 2006:vii).

Values-talk increased over the second half of the twentieth century, while talk about rationality remained consistently lower. When essentialised, as they are in ‘mission statements’, values are empty, the childish assumptions of folk theory (Gelman 2003). Values are culturally laden, and neither good nor bad except in context. Law, too, may be used instrumentally in socially corrosive ways (Tamanaha 2007a), but its detail arises sometimes quite haphazardly, from the interactions between a series of acts and accidents of cultural meaning. That is the larger legal ﬁction, that law is innately rational and always intended. But the big ideas are socially emergent. Science itself ‘fumbles and sometimes forges ahead’ (Haack 2007), notwithstanding that its practitioners present a different story.

Reiﬁed values, when promoted by practitioners whose primary method of communication is persuasive rhetoric, are frequently found in ‘stream- of-consciousness philosophising’ in which common-sense intuitions (naïve psychology) become the foundations for notions such as ‘real’ wisdom or ‘real’ leadership. The imaginary foundations of universals in analytical philosophy were no better (and no worse, because they amounted to the same thing) than the common-sense intuitions of lawyers. But at least those foundations were challenged 150 years ago.

The continuing fictions in the social sciences, which are modelled on the natural sciences – their ‘blushing secrets’ (Alexander 2007:641) – are first, the pretence that human interactions are predictable, and second, the pretence that human behaviour can be understood out of its context. A third is that quality is a countable commodity. Certainly, behaviour without a context means little. As Hardin put it, ‘One does not know whether a man killing an elephant or setting fire to the grassland is harming others until one knows the total system in which his act appears’ (Hardin 1968), and this is true of all facts (social acts). This is why casuistry (case-based reasoning) is the best instrument lawyers have. To misquote Peter Drucker, casuistry eats logic for breakfast, because law is about people, who are full of cognitive biases from essentialism (Gelman 2003) to confirmation bias (Mercier and Sperber 2011; Stupple and Ball 2011) – and the evolutionary function of reasoning itself may even be argument (i.e. persuasion: Mercier and Sperber (2011)). The ‘ramshackle reasoning’ of the common law (Gava 2008) is analogical reasoning, grounded firmly in common-sense; it uses concrete reasoning from cases. Common sense built on centuries of experience supplies a kind of ‘legal intuition’. The common law is a kind of 800-year-old normative web which we

244 chapter 5: Conclusion: Beyond Training and Within Culture might expect to operate just like the web of science: competing theories go head- to-head and yield principles (legal laws and scientiﬁc laws), but they also must ﬁt coherently into the whole. However, lawyers have not built up an equivalent body of common sense about education. On a more modest scale, there was one, but they abandoned it when they exchanged the system of pupillage for the academy.

Lawyers in practice may feel they do not need education in a Deweyan sense, that ‘ﬁling cabinet top-ups’ (i.e. training) will do. A habit of nuanced critical assessment of cultural assumptions, started at law school, might conceivably be able to bridge the divide, bringing ‘richer and deeper experience at law school and a better chance of ﬁnding meaning in their professional lives’ (Coper 2008:249), but it is, as Coper notes, a difficult task. In any event, when lawyers move out of legal practice and administration into education, they need thinking patterns beyond those of ‘thinking like a lawyer’.

As for wider impact – how might that be measured? Dowsett (1998) asks, ‘What is the significance to a judge and to the community if he or she does or does not undertake an available education programme?’ I think the answer to that must be a socially directed answer, the answer Dewey gave to values-questions, which places democracy as the summum bonum. From a social-benefit perspective, that brings this endeavour back to the Classical Pragmatist notion of melioration not as a single ‘fix’ but a trajectory of change in a direction that moves the whole system gradually forward, at first just by supplying small, local, experimental perturbations and seeing what happens to the system’s habits. As ‘the basic unit of human behaviour’ (Albert and Ramstad 1997), habit resists change, and yields only indirectly, by ‘modifying conditions, by an intelligent selecting and weighting of the objects which engage attention’ (Dewey 1922:20).

At the intersection of law and education two questions arise together: the lawyer’s ‘cui bono?’ (who beneﬁts?) question and the scholar’s ‘so what?’ (how is that interesting) knowledge-question. One points to motive, the other to value.

What we believe about ourselves and others is not necessarily the actual state of affairs. The things that are currently contested in the media and academia may not be substantively different in intensity or scope from what obtained in other times – perhaps it is just that we are more aware of them. Further, a snapshot of wider Australian society would ﬁnd the usual complex mix of situations and opinions in every area where values are brought to bear on action. However, it seems fair to say that where we can point to intense debate or sustained expressions of concern in academia or the media, there is likely to be some kind of change occurring which

245 From Court to College is generating reaction, or at the very least that some previously un-noticed state of affairs has now been brought to salience. Again, the emotional heat generated by value-statements may be avoided by describing these things systemically in terms of loosenings and tightenings of couplings and connections within the social fabric, as I try to do in the case study. But in the end, all this boils down, here, to the distinction between education and training, and the beneﬁcial purpose of each. Gleeson argues that in the past, when judges were chosen from the ranks of barristers, it was assumed that they required no training; now, particularly since the ranks were broadening, it can no longer be assumed that judges come equipped with court skills on appointment (even for barristers, but doubly so others). He then frames a budgetary argument in terms of governments no longer being able to save money on training: ‘Outside the ranks of experienced advocates the sort of people that governments might want to appoint to judicial office’ are likely to decline an offer of appointment ‘unless proper arrangements are made to equip them to perform the task’ (Gleeson 2003). The Victorian legislation echoes this idea: it is a JCV function to ‘give particular attention to the training of newly appointed judicial officers’ (JCV Act s 5(2)(b)). This is also where the recent conﬂation of judiciary and magistracy muddies the water.

The participants should be participating in setting the method — hence I suggest sociocracy to help the participant judges set policy, rather than assisting on workshop panels for program content planning: the distinction is important (Villines 2016). In addition, a needs analysis should come ﬁrst.

Roper in effect said Manyana‘ ’ to a needs analysis and theory.8 For the judges, with their deeply legal habits, Manyana may never come. Perhaps, at the sharp end of doctrine as authority, they cannot afford the luxury of real education, and may never escape the increasingly repressive accountability/governance environment in which they are immersed. After all, what they do is the ultimatepoint of doctrine: they determine cases for doctrinally sound reasons. As gatekeepers peering into greener pastures, academics can afford to dream of less-constrictive scholarly subjects – Foucauldian analysis of the discourses in the law school, say (James 2004). From this perspective, the Priestley Eleven trade-school core crowds out the curriculum against newer and thus more academically interesting topics that

8 Attempting to do so would have made the preparation of his Standards and Curriculum close to impossible, as he knew at the time and I have since discovered.

246 chapter 5: Conclusion: Beyond Training and Within Culture have greater scope for publication and career progress. As fewer law graduates actually enter legal practice, the justiﬁcation for retaining the doctrinal focus of the law school diminishes. The Bar’s introduction of a qualifying Bar exam, and the numbers failing it, suggest a shift in power; but the Bar itself is also stretched, struggling to sustain both quality and traditions in the face of rapid churning – and even in the longer term to survive, in the face of global law ﬁrms and arbitration at the high end,9 and alternative dispute resolution and proliferating tribunals at the low end.

Wisdom is out of fashion in the academy (Schwartz 2010, 2011), although it emerged in the research on barristers’ views (Ch 4A), and in the appointment of judges, where lists of abstract ‘qualities’ to be possessed by appropriate candidates are given. By contrast, Justice Palmer’s description of wisdom not as a fixed trait or quality, but as wisdom-in-action emergent from experience, operates in a beneficial direction, through sustained social contribution. His ‘stability and good order’ is acted towards, not fixed:

the sort of wisdom that produces a well-balanced person equipped to use the law responsibly and beneﬁcially, a lawyer who is ultimately a contributor to the stability and good order of our society. To return to Leibniz’s metaphor, habit draws the bow of wisdom, which is no more than a potential fuelled by experience: the cumulative effects of aBramble Bush law school, a competent, ethical profession, and legally experienced judges who are at least as good as the counsel who appear before them (and vice versa) become, in expression, legal arēte. But even that is a big ask. In our disenchanted, economically focused bureaucratic state, the mechanistic Cartesian world hypothesis remains dominant: governments express naïve faith in ‘pulling levers’ and companies express naïve faith in ‘drivers’ and leader-initiated, goal-directed action, while students express faith in PowerPoint handouts. The lawyer’s belief in law itself is deeply challenged, whether the metaphor behind that meaning-narrative is Logos, Nomos, Fortuna, Justicia, the Rule of Law, or the Jealous Mistress. In this world, where law is a means to an end and there has been a ‘collapse of higher law and a deterioration of the common good’ (Tamanaha 2006:215), judges are probably stuck with training and can do little beyond getting the best use possible from it, ensuring that it works well for others and is not wasteful of resources or overly driven by its own administration.

9 That courts are now expected to position themselves as ‘competing for business’ as service providers is clear from the ‘state of the judicature’ speeches introduced by the current Chief Justice.

247 From Court to College

Paradoxically, a failure to recognise one’s own cultural licensing arrangements can arise when earnest attempts are made to be open to ‘the Other’. It may be true that the ‘nice thing about culture is that everyone has it’ as Strathern (1995) puts it, but there is a persistent tendency for those in a dominant culture not to see that they, too, are living according to culturally motivated habits. For example the impulse towards Indigenous Cultural Awareness may result in a committee of that name, and a project to produce an Aboriginal Benchbook for Western Australian Courts (Fryer-Smith 2002); a conference may be held to promote ‘cultural awareness’ through a programme focused entirely, and at length, on various cultures that must be understood in order to be dealt with – yet the notion of cultural reciprocity is alien.10 We are yet to incorporate that culture within, rather than ‘dealing with’ its problems as evidence of an embarrassing history with the Other. Yet there is a great wellspring of relational and ecological deep meaning in Aboriginal culture, which could help to move us away from a mechanistic world hypothesis.

An institution moving in the right direction would see that. Martin Krygier11 remarks (in the context of saying there are no institutional virtues and vices, just as there are no virtues and vices ‘in the blood’ of individuals):

The eﬀects of good institutions and good public values are transferable to people of many origins who live under these institutions and learn to practice and trust these values, so long as the institutions are determined to enforce them and the environ- ing culture nurtures and requires them. (Krygier 2005) On the active side, an educational direction is always a via positiva manifesting as willingness to work together actively and in a self-directed but co-operative way towards education, asking questions within the problem-space of the constraints imposed in each court, each different environment in which JE is enacted. Being open to growth requires a willingness, like Socrates, to accept risk: to acknowledge ignorance, examine and reﬂect carefully, and challenge the authority of experts and know-alls who have the world nicely mapped out. The questions asked by Socrates were awkward, but they proved how little the people in the marketplace actually understood about things they claimed to know with certainty. As Dewey kept stressing, we have to get over the need to be certain (Dewey 1929; Scott 2001).

10 AIJA two-day conference in 2006. As a member of the AIJA I pointed out that there was no session on legal culture and suggested ﬁlling the gap, but the program was too full of ‘Other’ (ethnic) cultures to consider it. 11 An Australian interdisciplinary philosopher–sociologist in law, with particular interest in the sociology of the rule of law.

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Lawyers’ response, the ‘ordinary religion’ of the law school, is to make a sceptical attitude part of its values base (Cramton 1978).

Judges such as Underwood (2004) and Dowsett (1998) recognise the need for ‘self-directed collaborative learning’, but also that it will not come about unless the culture is right: ‘unless the court creates the right atmosphere and opportunities for it to occur’ (Underwood 2004). Judges are educated, capable ‘people who have already achieved substantial advancement’ and reject ‘standardized judicial approaches’ (Dowsett 1998). They are likely to be motivated only by education that is both co-operatively built and optional. They need to come to it by themselves.

Thus, an educational direction also requires space. The via negativa is a matter of getting out of the way, letting and allowing growth to occur emergently, or haphazardly, as the common law itself has done: to stop always measuring performance, aiming like an arrow seeking target, delivering deliverables, listing outcomes, bullet-pointing reforms, and constantly attempting to ﬂy direct to some new ﬁxed goal. Berman (1983:vi), lamenting the absence of ‘a larger vision’, quoted Holmes addressing law students: ‘Your business as lawyers is to see the relation between your particular fact and the whole frame of the universe.’ How much more so for judges? Such breadth would be truly ‘Dixonian’, and judges are just about the only people left who have the security of tenure that gives them the luxury of thinking as broadly as they like, if they care to do it.

Contrary to earlier Hobbesian assumptions that nature is ‘red in tooth and claw’, behavioural economics and evolutionary psychology are reframing human behaviour as frequently irrational but also altruistic. Even so, legally trained individuals who are motivated, in rumination or mindful self-reflection, to wonder, ‘Is it something about me …?’ are far less likely to ask, and less practised in asking, ‘Is it something about us?’. Individualism prevails, particularly for judges, whose work habits are solitary (Gleeson 2003). Seminars remain ‘a process of instruction’ and ‘[a]part from the occasional exception, this is about as far as judicial education of judges has progressed in this country’ (Underwood 2004). But it takes just a small shift of metaphor (Pepper 1942) to reframe worlds in ways that move beyond Descartes’ cogito (I think, therefore I am) and positive psychology’s persistent individualism (‘I want to flourish’) towards Ubuntu (I am because you are) and sociocracy’s democratically flourishing networks. This is Justice Underwood’s ‘thriving’ with JE as a ‘process of construction’, which would, I argue, have its best

249 From Court to College chance of promoting growth in the interests of the public good if it were based on action research within the courts themselves, from the Deweyan perspective of an experimental method in which the participant judges are explorers rather than pupils. They might then use the Pragmatist methodology of a ratchet-movement to secure progress through action in preference to ‘reforms’ premised on ‘outcomes’ thinking based on stated or unstated theory.

5.5 Possibilities beyond a Victorian College? That which has webbed feet, waddles and quacks is likely to be a duck. Putting a saddle on it and calling it Phar Lap will not change that fact.

– Gostencnik DP, National Union of Workers [2015] FWC [26].

Setting up a new organisation based on the ‘common sense’ intuition that a deliberative panel made up of heads of jurisdictions plus government nominees is the best form of organisational structure ignores other possibilities that are beyond the specialised legal knowledge possessed by that group.

From the perspective of Reasonable Learner Stance 1, the idea of ‘Australian judicial educators’ might be thought a good thing. The educators have all been committed to continuing legal education for many years and are thus ideally placed to conduct judicial education. Hoever, a judge at Stance 4, saying ‘Just leave me alone to get on with my job’ will become increasingly irritated by a system settling into JE becoming ‘business as usual’. For that reason, a sociocratic approach (or some other collaborative decision-making process by which judges could set their own educational policy from within the court) is needed.

To the extent that the JCV Board is structuring program content by appointing a panel to create workshop sessions, it is moving in the direction of tapping into local expertise rather than relying on external experts (later prospectuses show a loosening of couplings with academia, which for a while gave the appearance of tightening that connection).

There is also a place for training (for example, in forensic science, which is a matter of managing epistemic risk (Lawless 2010). Encouraging experts and lawyers ‘to educate the triers to interpret the images properly’ (Feigenson 2006:233) is a risk-management strategy that is coherent with law’s protective function. However, not all processes in a court have an epistemic purpose or focus (Walker 2005).

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Even so, Victoria’s decision to set up its own system was made for overtly political reasons, which included ‘‘Taking it up to the Feds’ in the name of ‘strong leadership by a State Government’ (Hulls 2003b), and it has been enshrined in legislation with an explicit governance/compliance orientation. This has resulted, as my research shows, in a model of education that is both ‘old thinking’ (in organisation terms) and echoes mandatory CLE in many ways. Those ways include a strong drive to establish JCV’s own premises, thus re-enacting old habits formed at LCI: wanting the security of a comfortable ‘home’ and ‘state of the art’ facilities in which to deliver programs. Arguably, ﬁxed premises with training rooms and banks of computers, which stand idle much of the time, as at LCI, are the least- pressing concerns of JE (since the city is well served with conference facilities and training rooms available for hire) and may also have the undesirable effects of a ‘compliance’ mindset in which recorded hours of attendance count as training, and educational efforts settle into repeated cycles of events on annual programs, an administrative mindset among ‘old retainer’ educators, and a decreased likelihood of innovative, in-house or informal educational efforts.

Roper (1999:13) reported the Governing Council of the JCA’s policy as: ‘there should be regular rotation and change of teaching staff’, and this is also the LCI model. However, by itself, changing the teaching staff may embed organisational culture even more ﬁrmly in permanent legal staff and administrators, whom lawyers may be accustomed to considering as ‘background facilitators’ rather than active agents with their own perspectives, but who are then the carriers of cultures. Justice Dowsett’s (1998) guidance recognises this: ‘Staff should change regularly to maximize input from the whole judiciary and to avoid the institutionalization of the views of a small group’. He repeatedly stresses the need to ‘avoid empire- building’. In this tiny ﬁeld of JE, such institutionalisation is very hard to avoid.

The ‘calendar of events’ model of training discussed in the case study is also a very limited way to think about learning, given that most learning is situated and informal or accidental (Brown et al. 1989). ‘Many teaching methods implicitly assume that conceptual knowledge is independent of the situations in which it is learned and used. Lack of success [is often] a direct result of this assumption’ (Brown et al. 1989:32). This is particularly true of judges who are very busy in one area at the time an otherwise interesting education event is offered in another area. It was clear from my interviews that time pressure kept judges away from events that were not immediately relevant (which was most of them).

When one belongs to an organisation or does business with it, there are two main forms of activism when one is not satisﬁed: to voice one’s complaint in the

251 From Court to College hope of improving things, or to exit (Hirschman 1970; Hirschman 1978). Under a compliance regime exit is not open to the judges, and my research suggests that their sense of duty and general circumspection inhibits straight-talking about training, even when there is nothing on the prospectus that is actually useful to them. Judicial candour, as Shapiro (2987) argues, has its uses.12 In addition, the various possible stances judges could take on JE are constantly shifting with their circumstances. This suggests that they are likely to attend when they can, for various reasons including being supportive to those who have worked hard to create good programs. But does that level of usefulness justify the costs, in all their forms? The most-praised programs undertaken by interviewed judges were the NJC’s orientation program (what Gleeson refers to as initial ‘training’); the NJC’s ‘Phoenix’ program for later-career judges, and the judicial writing course taught by Professor Raymond through any of the training bodies: JCNSW, JCV and NJC. In fact, nothing offered at JCV could not be done just as well nationally. In physical form it is a training facility like any other, external to the courts, albeit with a nice ‘wall of words’. The resources spent by Victoria would probably have been better spent on a contribution to the NJC, which is nationally minded and has a small secretariat hosted at ANU rather than its own premises. Courses that are appropriate – small-group problem-discussion among ‘people who have already achieved substantial advancement … are well-educated and experienced’ – ‘could be easily conducted at various places around the country’ (Dowsett 1998).

To have merged with the NJC would certainly have broadened judicial collegiality and interstate/federal pooling of educational effort offered by the NJC (‘this valuable form of cross-fertilisation’ (Gleeson 2003)). The former Chief Justice of Australia, noting the differences between US and Australian state and federal judiciaries, stressed that the National Judicial College is national, rather than federal; further:

the Australian judiciary is much more cohesive … This should be a source of strength, if we make proper use of it … we have a national spirit in our judiciary. We should foster that, and take advantage of the beneﬁts it has to oﬀer’ (Gleeson 2003). The compelling logic of a judicial training program is that Victoria should throw its lot in with the NJC, contributing to national resources and at the same increasing the economies of scale (since training by its nature is ‘packaged’ and ‘delivered’).

12 Shapiro is writing in the context of the diﬀerence between scholarship and adjudication, as they touch on the need for candour and the extent to which judges may, unlike scholars, abandon it.

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‘Judicial training’ implies ‘the teaching of skills thought to be part of the judicial process’ (Dowsett 1998:np). Justice Dowsett raises two issues here. First,

a person who has enjoyed the beneﬁts of a broad education will ﬁnd that the technical skills of the judicial process are easily acquired. Indeed, he or she will be well- equipped to develop innovative and perhaps, unique approaches to judicial duties which will enrich the judiciary generally. There is no reason why all judges should perform all aspects of their work in uniform ways. (Dowsett 1998:np). Second,

If our courses are educational in the broad sense, then they will not be so easily mis- represented as oﬀering qualiﬁcation for judicial appointment … I suspect that there would be much more enthusiasm among judges for judicial education in the broad sense than there would be for judicial training in the narrow sense. But the point is that we must decide what it is that we want to do before we expend resources in designing a programme. (Dowsett 1998:np).

Taken together, elements of this research – the literature echoing Dewey, that education and training are two rather different projects; the cultural perceptions of the Bar uncovered by the survey; the views of judges and their way of approaching duties placed upon them, disclosed by the interviews – leave JE at a rather awkward place, where there are difficulties in choosing either approach for JE. Training is relatively easy, but of questionable value for the aretaic virtue of phronēsis; yet beyond training, deﬁnitions are fraught, and complex educational issues arise. One compromise stance is that JCV might approach education in a new, more research-based way, as considered next.

(a) Further research by and on judicial education The trouble with zoos [is that they] warp our understanding of wild animals and perpetuate the notion that they are here for our purposes. (Gruen 2016)

While research is clearly a ‘good thing’, it is also a ‘motherhood concept’, and that suggests it should be questioned in the same way I argue JE should be questioned. Opening the way for research on JE may be a double-edged sword.

Important changes visible in research paradigms in education and the social sciences (interdisciplinarity, dynamic systems thinking, organisational learning) have not yet ﬁltered through to the legal sensibility that still controls all forms of CLE. Engagement with academia could change this, if the engagement were broad and interdisciplinary. But calling legal academics in to help run JE, as has 253 From Court to College been the pattern in the past, is unlikely to be broadening in any paradigm-shifting way, unless those academics are atypical (that is, their practices and approaches have moved beyond the administrative constraints typically found within formal educational structures, which require a calendar-and-outcomes based approach to most learning).

First, Higher Education’s own house is not in order; teaching practice is not abreast of the best of the academy’s own theories, universities are under pressure, and the social sciences have not yet resolved whether to imitate the physical sciences (as in behaviourism) or collapse into subjectivity (postmodernism) or to take the Pragmatist solution of theory as methodology.

Second, there is risk in establishing a group of ‘experts in JE’ whose priority is to create a new academic niche, a new arena in which possibilities are closed off by being filtered through the powerful academic lens of publishing as the only legitimating form of inquiry (a ‘fixation’ on written narratives that are inadequate in complex systems and actively restrict understanding (Luhmann 1995)). While the AIJA has links with Monash University, Monash does not ‘own’ or administer the AIJA. However, in the UK, University College London (UCL) established a Judicial Institute in 2010 as ‘the UK’s first and only centre of excellence devoted to research, teaching and policy engagement about the judiciary.’ UCL’s expansion into JE has a different character suggestive of academic niche-building, at least as represented publicly. Increasing academic drift is at least a risk, if not a likelihood. It is important to remember the differences between academics and judges, and why they write:

Schlag is right that judges are not academics manqué, trying to write law review articles in the form of judicial opinions and respectfully seeking the guidance of the real academics. And he is also right that the very different orientations of the two branches of the legal profession limit academic influence on judges. As Schlag says, the first duty of a judge is to decide the case. (Posner 2009:845−6), referencing Schlag (2009) Third, an unintended consequence of bringing in external experts can be the shutting down of inquiry by those actually affected by institutional processes. While lack of expertise can create opportunities for other, specialised providers to enter the arena, this can result in deferral of interrogation of issues by the institution itself, whose members are loyal to the system within which they work, ‘with all its flaws’, and thus fail to exercise their critical voice beyond calling for funding and regulatory protection, thus fostering an ‘industry of educators’ who ‘do’ and ‘arrange’ things to help (and improve) judges. There is an added risk in interdisciplinarity: as a

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‘classically professional’ occupation with its own discipline, the ‘potential to “fake” knowledge value is limited, as what is special to the practice and what is not is more likely to be clearly deﬁned in both the ‘workplace curriculum … of the occupational practice and in the formal institutional curriculum’ (Hordern 2016:375). The strong links between profession and academy, while often a source of tension, also results in greater academic relevance, since ‘the problems and purposes of practice are more likely to be accurately deﬁned’ where there is a strong professional identity (2016:375). In particular, taking on corporate knowledge-values carries great risk, since that knowledge is not supported in this strong professional sense; a sharp divide persists between the (descriptive) academy and (normative) consultants (Robinson 2001), so listening to the ‘external voices’ or corporate consultants (who, for example, tend to believe uncritically in leadership training) may undermine the professionally supported constitution of knowledge-value within JE, and reorient its values towards the logic of corporate operations without contributing anything useful (or academically sound) to the internal dynamics of the legal system and its institutions. On the other hand, as Argyris points out, conducting only descriptive organisational research in the realist paradigm may risk reinforcing prevailing systems and failing to venture beyond the current meaning-impoverished status quo (Argyris 1969, 1990).

Fourth, luck, serendipity, humour, and letting things happen naturally are largely neglected in any academic discussion about learning, although legal humour is legendary and luck emerged from the research as something that lawyers are very aware of, particularly when perceived excellence goes unrewarded and rewards go to the relatively unskilled – often for political reasons, but also from sheer luck, such as picking up a junior brief in a big case because you just happened to be in the corridor at the time. With luck, JE could become a kind of social patterning that will provide individual well-being and ‘influence the fulfilment of desires’ (Dewey 1922:20). But what constitutes the nature of a social group is a matter of history; it is not that ‘psychic forces form a collective mind and therefore a social group’ (Dewey 1922:63), which is where essentialist, straight-line thinking takes us. Taking account of social psychology is a question of looking at ‘the primary facts’, which are about ‘collective habit, custom’. And the problem is often that ‘the rigid character of past custom has unfavourably influenced beliefs, emotions and purposes to do with morals’ (Dewey 1922:63-4). In that notion of ‘past custom’ we could include academic, as well as legal, filters. Bringing in academics just might not help very much. The Coca-Cola questions Why? What will they do about it? Why

255 From Court to College should we trust them? Have they done well in the past on equally tricky problems? apply equally here.

However, research by JE is a different thing. That would be some kind of court- based, participant-generated, grounded research on what is working in JE and what might work, experimentally (Dewey’s ‘intelligent inquiry’). It would be emergent from JE itself (that is, treating JE as a problem-space rather than a fait accompli), and ‘what works’ would be assessed according to an overarching principle, as discussed below. In addition, as in higher education, where future quality may depend on tightening the couplings of academic trust and loosening the bonds of established administrative structures (Tierney 2006), judges interested in developing quality JE will need to ﬁnd and clarify, then advocate for, shared conceptions of practice, and sustain their commitment (tightening the couplings) by constantly revisiting their contribution at various levels of impact of JE, from interpersonal relations to public life. This is the kind of thing Justice Dowsett (1998) was suggesting.

I do not make the usual open-ended call for ‘more research’ because I take the difference between adjudication and scholarship seriously (Schlag 2009; Shapiro 1987). In this, Posner, too, endorses Schlag:

Schlag rightly derides academics who try to pretend that judges are like them – try to bring the two professions, judging and academic law, together – by treating adjudication as a conversation. (Posner 2009:846) A needs assessment has not been done for JE (‘the assumption is that there is such a need’ (Roper 1999:1), and the ‘National Standard’ (Roper 2006) followed the standard set for CLE in the profession: a recommendation for 10 hours of continuing education per year; this has flowed through to Victoria, and 10 hours is the settled measure, insofar as JE is quantified. The further analysis that ‘might underlie the detailed planning of the curriculum’ (Roper 2007) has not occurred. This should be a priority for research by JE, rather than on JE, by others, with the intention of reporting findings and advocating reforms designed to control the form JE should take.

My research found great circumspection in judges’ responses in interviews, yet the same judges, in less-guarded contexts, can be decidedly frank, and they will work better together in an open and collegial environment (Fisher 2010), with self-directed, systems-aware action research (Wadsworth 2001, 2010). Trust is important, because relationships are critical to knowledge creation and transfer (Haas and Hansen 2007).

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Section 1 of Chapter 2 set out my reasons for adopting the philosophical approach of Classical Pragmatism. That approach applies equally to JE. Being broadly in sympathy with the legal realist perspective that I found was held by most interviewees, Pragmatism may also offer the best hope for further research on judicial education (JE) from within, with a scientiﬁc curiosity beyond the habitual way lawyers now think about education.

(b) Recommendation: from jet pilot training to JET [Judge X] ‘crashed a jumbo jet into the Westgate Bridge’. – Interviewed Supreme Court judge (Ch 4)

What educational benefits might flow from setting judges up in Qantas flight-training cockpits to manoeuvre jumbo jets over Melbourne? Even if it might be thought that judges need ‘leadership training’, the problem of context (briefly, the stickiness of knowledge and the situatedness and embodiment of tacit knowledge) means that such efforts are likely to yield little beyond, perhaps, the camaraderie of a group outing. Social events that build collegiality are valuable in themselves, but there is no reason to think that expensive technology purpose-built for flight training has anything to do with leadership, or that leadership training has any place in judicial education.

The jet pilot experience is a good example of the kinds of programs that can find their way onto training junkets when organisers are (at best) casting about to find ‘interesting’ things for judges to do, or (at worst) misguided about the ontological status of leadership and inclined to assume for it all kinds of unproven benefits. Because leadership is understood in an academically naïve way it is vulnerable to corporate spin, which is part of the deep logic of commerce – the ‘promotional imperative’ (Cronin 2004).

To the extent that this program is training, it should be trainee-centred, individually programmed, convenient (which suggests online), and evaluated for continuous improvement (Dessinger and Moseley 2012; Moseley and Solomon 1997). An alternative to individual assessment (which is generally believed to be untenable fort judges, although 360-degree feedback may be the thin end of a corporate-style wedge) might be appreciative enquiry within the training paradigm, but it need not be particularly exploratory. Recognising that there is a limited ‘zone of manoeuvre’ and variable motivation, it can be designed for busy judges who feel they should become familiar with, say, a new piece of legislation,

257 From Court to College the court database, or some other ‘organisational’ skill that will make them more efficient. This is, and should then be called, judicialtraining , as in the UK. Even if it is too late to unwind the bureaucratic ‘gains’ already achieved, the dual-process program recommended below, if adopted at JCV, would at least change the perspective to a more dynamic, emergent, systems-thinking approach. As noted above, there is no apparent need for training to occur in a purpose- designed, external ‘judicial learning centre’. Indeed, for educational and ﬁnancial reasons, workplace learning should generally take place in the workplace, unless specialised equipment is required, in which case standard commercial computer labs or training rooms of the kind used in corporate training are the cheapest solution. The equipment is kept up to date, generally to a standard that JCV would ﬁnd hard to maintain, and there are generally breakout rooms with catering. The organisation does not then have its own specialised training rooms left standing idle. If computer training or academic/corporate-style workshops are in fact what is going on at the JCV premises, and if the sessions are relatively few and far between, it is hard to mount a persuasive case for a dedicated training facility, particularly given the pressure for sustainability measures across the public sector, including higher education.

However, even that half the story, the training half, is not quite as simple as common-sense might have it. Apparently, the Code of Conduct for Chinese judges ‘admonishes them to keep their judicial uniforms clean and tidy’ (Gleeson 2003). This is a different level of interest and interference, and it is worth discussing, even when the instruction is ‘only training’. But even seminars about more interesting technical topics such as the new Evidence Act taught a JCV are equally ‘instruction’ (Underwood 2004). Here, a less obvious risk lurks:

If our courses … are about technical matters … they will be very easily depicted as imparting fundamental skills and thereby offering judicial qualification. (Dowsett 1998:np). That aside, a more imaginative, experiential kind of training for JE is also possible, without ‘sending judicial officers off for re-education along the lines of the Cultural Revolution, with a view to instilling in them ideologically sound habits of thought’ (Gleeson 2003). There are signs, in the JCV Prospectus, that panels are trying to do that. And other courses have been appreciated as well. Theory from organisation science may be a useful start for lawyers and legal educators who are willing stretch beyond their usual confidence to admit that their knowledge about organisations and education is imperfect. The community of practice (CoP) model discussed in Chapter 2, in its more ecological and emergent conception,

258 chapter 5: Conclusion: Beyond Training and Within Culture with a reﬁned view of ‘participation’ and awareness of the distinction between participation and practice, is a possible way forward (Handley et al. 2006). Dowsett (1998) suggests that while judges need to be in control (inside a court), nothing is likely to happen unless there is the equivalent of a ‘learning officer’ (one of the judges, appointed by them all) to encourage action.

The CoP-based, collaborative approach of sociocracy (referred to in Chapter 2) may offer a structure in which collaborative discussions about JE might take place. Ideally, any organisation will be flexible enough to ‘evolve towards fit’ and overcome potential rigidities to build capability in the organisation. That is different from starting with the legal educator’s notion that they are doing things to (or for) judges (Armytage 1996); Justice Underwood’s (2004) topic for a CLEAA conference was, as he noted, ‘Educating judges – What do we need?’ and not ‘Educating judges – What do they want?’ Like Classical Pragmatism, systems theory and organisational learning theories (Senge et al. 1994) stress shared responsibility for problems emerging from the system’s own operations (surely the essence of what judges would be working on together, if JE were considered as a problem-space rather than a filing cabinet top-up station). In this approach, people (judges) are just as important as the administrative team and the board. Functional divisions are counter-productive, because they support a single, authoritative view of what JE is ‘about’ in its deeper sense, and what funds its continuing momentum (Senge et al. 1999). My research shows that judges have different motivations, as well as being differently motivated at different times, and the constraints and affordances often have little to do with JE itself, to which they exhibit a kind of circumspect dutifulness. What Justice Underwood (2004) wants to do with judicial education is reminiscent of the approach Twining (1997, 1998) takes to enlarging the discipline of law by reading its context more broadly than the academy, or lawyers, are prone to do.

An alternative to the kind of curriculum that is the signature practice of CLE (a content/subject curriculum with sessions in a program of events) is a systemic, holistic, process curriculum (Cunningham 2010:292) in which strategically supported, self-managed, collaborative learning is the goal (Cunningham 1999). There would be training, but it should still be possible to adopt the Classical Pragmatist desiderata of growth at the personal level and collective agency at the institutional level, along with the lawyer’s desire for general enhancement of the rule of law at the broadest societal level.

259 From Court to College

Pragmatism and sociocracy encourage both/and thinking, a major step beyond Cartesian dualism. Taking a further step beyond Dewey, newer systems thinking encourages multi-track networks to get away from ‘carving the world at its joints’ (as if there were any joints in all that ‘blooming, buzzing confusion’) and into networked co-production of knowledge. This perspective on the themes that emerged from the research (Chapters 1 and 4) the literature (Chapter 2) and the conclusion drawn from them immediately above, lead to the following proposal for a new JE&T, or JET.

‘The Law is enhanced.’ – Felix Frankfurter (in Kitto 1986)

The two tracks of JE&T would, in this scheme, be training and education. That is not new; but training and education should not only be called for what they are; it is time to test and state their underlying assumptions, and assess the need for them.13 If, as I argue, the logics of training and education are deeply at odds, on several dimensions, and the logics of protection and growth are similarly at odds, it is a mistake to think that they can be combined.

The three levels of engagement of JE (as education) would then be:14

 At the personal level, the test would be whether what the judges are doing enhances judicial arēte (Leibniz’s drawn-arrow potential; Rømer’s (2012:135) ‘quivering instant’ at the intersection of habit, imagination and judgment that constitutes Deweyan intelligence-in-experience).15

 At the institutional level, the law is enhanced by a happy and effectively functioning court, with increasing, and better-quality, collegiality.

 At the societal level, where meliorative effect is harder to assess (and which was not the subject on my ﬁeldwork), some kind of non-formulaic research, of almost any kind (Alvesson and Gabriel 2013).

13 See NG3 in Appendices: the terms ‘legal education’ and ‘legal training’ have, over time undergone a re- versal in their relative frequency. 14 In the Curriculum (Roper 2006) they take the form put to barristers in my survey (Chapter 4A): that is, content-based subject areas rather than the perspective taken here. As I argue throughout, thinking of knowledge as ‘content’ sets up entirely the wrong governing metaphor from the start, and metaphors license action in limited ways (Chapter 2). 15 Conceived as training, this could be health-related well-being training.

260 chapter 5: Conclusion: Beyond Training and Within Culture When Sir Owen Dixon16 was appointed Chief Justice of Australia, US Justice Frankfurter cabled his congratulations, saying simply, ‘The Law is enhanced’. Justice Frankfurter’s aphorism could serve as a litmus test at all three levels at which I argue that JE, to justify its existence, needs to be meliorative – the personal, the institutional, and the societal. As a test of value and quality at the intersection of education and law, growth and protection, enhancement of what is worthwhile offers a broad test of quality. Such tests are powerful because they do not list minutiae and plug loopholes. Rather, they establish a broad idea, such as ‘misleading or deceptive conduct’ or ‘the neighbour principle’. Dixon’s own passion was for justice and the rule of law, not as concrete goals but as directions of conduct – intellect and passion for law not being mutually exclusive (Ryan 1986).

It is a litmus test of direction in action to say ‘the law is enhanced by …’. Each case is different. Each educational inquiry is both practical and experimental:

Practical activity deals with individualized and unique situations which are never exactly duplicable and about which, accordingly, no complete assurance is possible.

– John Dewey (1929a:3)

Finally, although education takes trust and a willingness to be vulnerable, education’s role is not defensive.17 Sticking to training is safer, and may suit the deep logic of legal cultural habits, in which protection is deeply ingrained. However, neither training nor education has much to do with keeping judges ‘in touch’ with anything. Training improves skills, and education is what they make of it, formally, informally, and spread across time and space. As a simple test, enhancing the law would serve as a guide to appropriate judicial training and education, for judges and their educational support staff and administrators. These should not, I think, be called ‘judicial educators’, nor fancy themselves to be ‘educating judges’ (Armytage 2015; Armytage 1996), even if they claim to be doing it with a ‘magic touch’ (Catlin 1986).

16 The scholarly literature contests what has been called ‘Dixonian strict legalism’ (Gava 2008), but that does not concern me here (see Tamanaha (2007b; 2014) on the realism of the supposed formalists). 17 See analysis of the JCV protective shield logo in Chapter 4.

261 Afterword

To me, a lawyer is basically the person who knows the rules of the country. We’re all throwing the dice, playing the game, moving the pieces around the board, but if there is a problem, the lawyer is the only person who has read the inside top of the box.

—Jerry Seinfeld, Seinfeld, ‘The Visa’, episode 56, ﬁrst US broadcast 27 January 1993.

We might add that because lawyers also wrote what was inside the top of the box, they have to be doubly sure they paraphrase the rules and administer the game’s constraints with ﬁduciary intent. Of no other profession do we demand quite the same virtue, aretaic or deontic. But there is good reason for doing so. Mint Slice (2010)1 is not alone in having doubts. Lawyers are not only the ones who have mastered the rules most thoroughly; they also stand to gain most by bending them, or complying with them cynically. At the Watergate hearings, John Dean ‘thought it ‘incredible’ that ten of the ﬁfteen men involved were lawyers … [but] Lawyering is within the relatively narrow category of occupations where borderline dishonesty is fairly lucrative’ (Schnapper 1878).

Beyond that, it should be trite to note that lawyers and judges are like everyone else in the most basic sense of being human: both merely human (as others like to remind them) and fully human (as they know themselves, and expressed clearly to me during this research). Dewey (1884, p 278) said of mankind in general, and of psychology’s attempt to quantify a human in particular:

We know that his life is bound up with the life of society, of the nation in the ethos and nomos; we know that he is closely connected with all the past by the lines of education, tradition, and heredity; we know that man is indeed the microcosm who has gathered into himself the riches of the world, both of space and of time, the world physical and the world psychical. We know also of the complexities of the individual life. We know that our mental life is not a syllogistic sorites, but an enthymeme most of whose members are suppressed; that large tracts never come into consciousness; that those which do get into consciousness, are vague and transitory, with a meaning hard to catch and read; are inﬁnitely complex, involving traces of the entire life history of the individual, or are vicarious, having signiﬁcance only in that for which they stand; that psychical life is a continuance, having no breaks into ‘distinct ideas which are separate existences’; that analysis is but a process of abstraction, leaving

1 Quote opening section 5.2 above.

262 Afterword

us with a parcel of parts from which the ‘geistige Band’ is absent; that our distinctions, however necessary, are unreal and largely arbitrary; that mind is no compart- ment box nor bureau of departmental powers; in short, that we know almost nothing about the actual activities and processes of the soul. Once lawyers step outside doctrine and into education, they are forced in this zone. Training is easier and more comfortable than education, which must, one way or another, tackle all these aspects of being human because it is about growth.

To revisit von Glaserfeld, with whom this dissertation opened:

[T]he operations by means of which we assemble our experiential world can be explored, and … an awareness of this operating … can help us do it diﬀerently and, perhaps, better.

Just allowing space for emergence through the via negativa has merit, too.

Every day includes much more non-being than being.

-Virginia Woolf

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314 Appendix A: Bar survey results 1 Overview of closed (quantitative) and open (qualitative) questions (table) 2 Bar survey: A snapshot of education and experience at the Bar

1 Overview of closed (quantitative) and open (qualitative) questions

Open (O) or Closed (C) Topic

C 1 Sex

C 2 Years of call

C 3 Practice areas (open)

O&C 4 Courts (+ ‘other’  specify)

O&C 5 Court/paperwork(+ ‘other’  specify)

C 6 CLE Bar

O 7 Open comment

C 8 Forms of Ed -- weight

O 9 Value of CLE –types

C 10 Attend if voluntary?

O or C 11 Other CLE (e.g. Leo)? (Q closed for paper version, open online)*

O 12 Post-qual learn

O 13 Cf barrister/judge work

O 14 Appoint from Bar

C 15 Important roles of J

O 16 Open comment

C 17 Prerequisites to appointment and continuing learning

O 18 Open comment

O 19 Top 3 of judges

O 20 Conditional Q paperwork

C 21 Heard about NJC docs

O 22 Views about NJC JE

O 23-26 Contact/comment admin details

From Court to College Appendices 315 2 Responses to Bar survey questions

RESPONSES TO QUESTIONNAIRE SECTION 21 – DEMOGRAPHICS

Q1 Are you male or female?

Q1 JUNIORS 0–2 years call (n=27)  Male 59.3%  Female 40.7%

Q1 JUNIORS 3–5 years call (n=27)  Male 74.1%  Female 25.9%

Q1 JUNIORS 6–9 years call (n=41)  Male 65.9%  Female 34.1%

1 Section 1 contained the coversheet and instructions.

From Court to College Appendices 316 Q1 JUNIORS 10+ years call (n=87)  Male 81.2%  Female 18.8%

Skipped: 2

Q1 Silk (n=30)  Male 89.7%  Female 10.3%

Bar figures give a similar proportion of 11.4% of Bar and 1.3% of Bar respectively, for male and female silks (Victorian Bar 2012c).

Q2 Years of call to the Bar

Junior 02 (12.6%) n=27 Junior 35 (12.6%) n= 27 Junior 69 (19.2%) n= 41 Junior 10+ (40.7%) n=87 Silk (14%) n= 30 Other (0.9%) n= 2*

*(1) Came in march intake in 1984; (2) Also an academic

Answered 214, skipped 1

Q3 Main practice areas

1. Commercial n=101 OPEN RESPONSE 2. Criminal/crime n=43 3. Administrative/review, government, local Answered 210, skipped 1 government n=28 4. Wills, probate, trusts and equity 26 Comment: 5. Family n=20 6. Personal injuries/workers comp, torts The broad outlines of the top 10 n=20 areas are informative. However, 7. Industrial/employment n=15 the full list of practice areas 8. Building/construction, engineering n=13

From Court to College Appendices 317 illustrates the overlap between 9. Taxation, revenue, banking and finance different categories, and the n=13 difficulty of making quantitative 10. Corporations/corporate/company n=11 statements based on data that 11. Bankruptcy/insolvency n=10 shape-shifts when prodded. Just 12. Civil n=10 one categtory, commercial, also 13. Common law 8 covers items such as contracts (but 14. Property, land, acquisitions n=10 not all contracts), insurance, some 15. Trade practices, consumer protection n=9 but not all trade practices, and 16. Insurance n=7 intellectual property. Similarly with 17. Intellectual property n=7 crime. 18. Litigation n=7 19. Planning/town planning n=6 Also some barristers added 20. General/generalist, advice work n=7 comments to the effect that they 21. Appeals/appellate n=5 were just getting in and hearing, or 22. Constitutional n=5 mainly worked in one area but not 23. Discrimination/anti-discrimination, equal another. opportunity n=5 24. Contracts n=4 This apparently simple quantitative 25. Landlord and tenant, retail/residential exercise discloses the slippery tenancies n=4 nature of even quite 26. Native title n=4 uncontroversial labels such as 27. OH&S n=4 ‘commercial’ or ‘criminal’. A single 28. Professional negligence n=4 person’s work can be described 29. Children’s/child n=3 within fairly clear parameters, but 30. Immigration/migration, refugee n=3 as soon as multiple work profiles 31. Intervention orders, family violence n=5 are sought to be captured, the 32. Public law n=3 usefulness of the data collapses. 33. Magistrates’ Court n=2 34. Arbitrations n=2 If quantitative researchers respond 35. Defamation n=2 to this problem by setting up 36. Environment/environmental n=2 forced-choice responses to 37. Human rights n=2 questions, they may avoid the 38. Aviation n=1 reporting problem at the expense 39. De facto n=1 of the accuracy of the picture and 40. Guardianship/attorneys, representative its ability to capture nuances. And proceedings n=2 that is without the added 41. Legal aid, pro bono n=2 complication of time and 42. International n=2 associated aberrations: just getting 43. Inquests n=1 into an area, hoping to get into an 44. Maritime n=1 area, used to be in an area. 45. Medical n=1 46. Privacy n= 1 47. Technology n=2 48. VCAT n=1 49. Veterans n=1

Notes: ‘Superior Courts’ n=1 counted with Appellate

From Court to College Appendices 318 Qualifier: Defence n=2, Plaintiffs/prosecution only n=1, both n=2 (not counted separately from substantive area)

Q4 Courts

ALL RESPONDENTS

Answered 213, Skipped 2

1 Supreme Court of Victoria 61.0% (n=130); 2 Federal Court 46.5% (n=99); 3 County Court 45.5% (n=97); 4 Magistrates Court (Vic) 43.7% (n=93); 5 VCAT or other state tribunals 37.1% (n=79); 6 Federal Magistrates’ Court 23.5% (n=50); 7 Court of Appeal (Vic) 21.6% (n=46); 8 AAT or other Commonwealth tribunals 10.8% (n=23); 8 Interstate practice (superior courts) 10.8% (n=23); 10 Arbitration & ADR (appearing) 8.9% (n=19); 10 Family Court 8.9% (n=19); 12 High Court 6.1% (n=13); 13 Arbitration & ADR (you as arbitrator) 2.8% (n=6); 14 Interstate practice (other) 2.3% (n=5); 15 International practice 1.4% (n=3);

Other (please specify) 5.6% (n=12):  ADR as counsel and as mediator

From Court to College Appendices 319  AIRC (n=5)  Children’s Court (n=3)  Patent, Trademarks office  Planning panels  Appeal bodies electricity distribution and gas access statutes, Vic and SA

Q4 JUNIORS 0–2 years call (n=27)

In which courts do you mostly appear, do paperwork, and/or give advice? Tick as many as apply to your REGULAR practice (don’t include occasional forays into other areas). 1 Magistrates Court (Vic) 88.5%; 2 County Court 53.8%; 3 Supreme Court of Victoria 46.2%; 4 Federal Court 42.3%; 5 VCAT or other state tribunals 38.5%; 6 Federal Magistrates’ Court 34.6%; 7 AAT or other Cth tribunals 15.4%; 8 Court of Appeal (Vic) 11.5%; Magistrates’ Court work is the staple of this 9 Family Court 7.7%; group (85.5% worked in this court) followed by 10 High Court 3.8%;  Arbitration & ADR (you as Federal Court (42.3%) and Federal Magistrates’ arbitrator) 0%; Court (34.6%). A barrister of 0–2 years standing  International practice 0%;  Interstate practice (other) appearing in the higher appellate courts might 0%; seem unusual, but there are three probable  Interstate practice (superior courts) 0%; explanations: (1) an opportunity being given to a young junior to be junior to a silk; (2) being a Arbitration & ADR (appearing) 3.8%; solicitor of some years’ prior experience in the other branch of the profession; (3) minor OTHER: 3.8% Children’s Court (n=1) Skipped: 1 appearances in chambers matters or mentions.

From Court to College Appendices 320 Q4 Courts: JUNIORS 3–5 years call (n=27)

1 VCAT or other state tribunals 55.6%; 2 Supreme Court of Victoria 51.9%; 3 Magistrates Court (Vic) 51.9%; 4 Federal Court 44.4%; 5 County Court 40.7%; 6 Federal Magistrates’ Court 33.3%; 7= AAT or other Commonwealth tribunals 11.1%; 7= Arbitration & ADR (appearing) 11.1%; Magistrates’ Court work drops from being the 7= Court of Appeal (Vic) 11.1%; 10 High Court 3.7%; staple (now 51.9% and below VCAT and other 11 Family Court 3.7%; state tribunals (55.6%)). Half the barristers are 12 Interstate practice (other) 0%;  Arbitration & ADR (you as now doing Supreme Court work, and Federal arbitrator) 0%; Court work had increased marginally (44.4% of  International practice 3.7%;  Interstate practice (superior barristers had work in that court and 33.3% in courts) 0%; the Federal Magistrates’ Court (34.6%). High Other 7.4% Court and Court of Appeal work remain

Planning panels (n=1); AIRC, state constant, suggesting that experience of 3–5 tribunals, public service disciplinary tribunals (n=1) years is not yet enough to attract this work without some other factor being at play (see explanations given for this work going to new barristers 0–2 years). Appearances in the superior courts are still likely, in my estimation,2 to be mostly minor courtwork or appearances as junior to silk.

2 Based on personal experience and knowledge of the Bar.

From Court to College Appendices 321 Q4 Courts: JUNIORS 6–9 years call (n=41) 1 Magistrates Court (Vic) 55%; 2 Supreme Court of Victoria 52.5%; 3 Federal Court 45%; 3 County Court 45%; 5 VCAT or other state tribunals 40%; 6 Federal Magistrates’ Court 27.5%; 7 Family Court 12.5%; 8= Court of Appeal (Vic) 10%; 8= Interstate prac (sup. courts) 10%; 10 High Court 5%;  Interstate practice (other) 0%; Magistrates’ Court work is again the most  Arbitration & ADR (appearing) 0%; common, but there is still a wide spread of work  AAT or other Cth tribunals being done across jurisdictions. More barristers 0%;  Arbitration & ADR (you as have High Court work, but and Court of Appeal arbitrator) 0%; work remain similar. Across this range and after  International practice 0%; Other 7.5% 10 years, practice experience would be expected

Children’s Court (n=2); Patent, Trade to be at a higher level in all jurisdictions. Marks Office (n=1)

Q4 Courts: JUNIORS 10+ years call (n=87) 1 Supreme Court of Victoria 60.9%; 2 County Court 50.6%; 3 Federal Court 43.7%; 4 Magistrates Court (Vic) 35.6%; 5 VCAT or other state tribunals 29.9%; 6 Federal Magistrates’ Court 21.8%; 7 Court of Appeal (Vic) 20.7%; 8 AAT or other Cth tribunals 12.6%; 9= Family Court 11.5%; 9= Interstate practice (superior cts) 11.5%; 11 Arbitration & ADR (appearing) 10.3%; At this level, work is being done in each court 12 Interstate practice (other) 3.4%; listed. High Court practice has dropped from 13 Arbitration & ADR (you as arb) 3.4%; 5% to 1.1%, possibly because silks do the bulk 14 High Court 1.1%; of the work and appear with more junior 15 International practice 1.1%; juniors. Court of Appeal work has risen to

From Court to College Appendices 322 20.7%. Again, practice experience would be Other 6.9% expected to be at a higher level in all AIRC (n=4); ADR as counsel and as mediator (n=1); Various appeal bodies jurisdictions. At this level for the first time constituted under electricity distribution and gas access statutes in Victoria and Arbitration and ADR include the barrister as South Australia (n=1). arbitrator rather than as counsel appearing (3.4% at this level have this experience).

Q4 Courts: Silks (n=30)

1 Supreme Court of Victoria 93.3%;

2 Federal Court 63.3%;

3 Court of Appeal (Vic) 60%;

4 VCAT or other state tribunals 36.7%;

5= High Court 26.7%;

5= County Court 26.7%;

5= Interstate practice (superior cts) 26.7%; At this level, work is done in each court listed,

8 Arbitration & ADR (appearing) but in the lower jurisdictions much less 16.7%; frequently. The percentage with a High Court 9 AAT or other Cth tribunals 13.3%; practice has reached 26.7%, with this work being done as leader. The relatively high 10= Federal Magistrates’ Court 6.7%; proportion of County Court work being done

10= Magistrates Court (Vic) 6.7%; here is not surprising. This court has the bulk of criminal work, some of which is serious. Court 10= Interstate practice (other) 6.7%; of Appeal work has risen to 60%, and much of 10 Arbitration & ADR (you as arb) 6.7%; this would be criminal appellate practice. Arbitration and ADR with the barrister as 14= Family Court 3.3%; arbitrator have increased to 6.7%. The ‘rustle of 14= International practice 3.3%; silk’ in the Magistrates Court at 6.7% is probably higher than it might have been in the past, Other 6.9% before the jurisdiction of that court was

From Court to College Appendices 323 increased to give it some complex and difficult AIRC (n=4); ADR as counsel and as mediator (n=1); Various appeal bodies work. constituted under electricity distribution and gas access statutes in Victoria and South Australia (n=1).

Q5 Paperwork/courtwork proportions

ALL RESPONDENTS

Answered 213, Skipped 2

Q5 JUNIORS 0–2 years call (n=27) More paperwork than courtwork (8) More courtwork than paperwork (13) About 50-50 paperwork and courtwork (5) Other (n=0)

Typically a career at the bar begins with more courtwork than paperwork. This reflects the large number of minor matters conducted before Magistrates Courts

From Court to College Appendices 324 Q5 JUNIORS 3–5 years call (n=27) More paperwork than courtwork (14) More courtwork than paperwork (6) About 50-50 paperwork and courtwork (7) Other (n=0)

After 18 years paperwork begins to build up and for the first time outstrips the courtwork. This will typically include minor commercial matters and company matters.

Q5 JUNIORS 6–9 years call (n=41) More paperwork than courtwork (19) More courtwork than paperwork (10) About 50-50 paperwork and courtwork (10)

Other (n=1)  comes in waves. Sometimes 90% is paperwork and then I have a big case. So I guess 50% court work/paper work on average but it varies so I wanted to explain

At this level paperwork is clearly outstripping court work. The fact that many more cases settle than ever actually get to court might be reflected in this figure.

Q5 JUNIORS 10+ years call (n=87) More paperwork than courtwork (27) More courtwork than paperwork (36) About 50-50 paperwork and courtwork (23)

Other (n=1)  if mediation=court work, probably 75% crt work, 25%paperwork. if mediation is NOT court work, then 50/50

This is the senior level at which barristers are appearing in court on trials which run for weeks or months at a time. There is still a great deal of paperwork.

From Court to College Appendices 325 Q5 Silks (n=30) More paperwork than courtwork (7) More courtwork than paperwork (13) About 50-50 paperwork and courtwork (8) Paperwork at this level is expected to be largely advice work (opinions). The rules were formerly more restrictive, and silks were not permitted to draw and sign pleadings or to appear without a junior. These rules protect junior members of the bar from competition from silks. SECTION 3 – CLE FOR BARRISTERS

Q6 Kinds of knowledge

All respondents Answered 168, skipped 47

6 In your work as a barrister, what relative weight would you give to each of the following in terms of how much you depend on each of them for your CURRENT LEGAL PRACTICE. Please allocate 100 points across these 10 categories. The total must add up to 100%, but you can allocate your 100 points across any number of items. Response Points Response Answer Options Average Total Count Knowing the law (black-letter law) 28.49 4,757 167 Knowing the system (how the law works) 16.63 2,678 161 Knowing people (having contacts and 9.49 1,338 141 knowing who’s who) Understanding and getting on well with 11.74 1,832 156 people Using written or spoken language well 15.54 2,456 158 Being senior, having depth of experience 9.56 1,348 141 Business acumen, managerial skills, 5.26 615 117 planning Managing one’s health and well-being 6.43 810 126 Computer and technology skills 7.03 907 129 Other 2.27 59 26

From Court to College Appendices 326 Q 6 Juniors 0–2 years call (n=27)

In your work as a barrister, what relative weight would you give to each of the following in terms of how much you depend on each of them for your CURRENT LEGAL PRACTICE.

(The total must add up to 100%, but you can allocate your 100 points across any number of items.) 1. Knowing the law (black letter law) 26.32% 2. Knowing the system (how the law works) 17.21% 3. Knowing people (having contacts and knowing who’s who) 11.8% 4. Understanding and getting on well with people 9.71% 5. Using written or spoken language well 15.83% 6. Being senior, having depth of experience 5.94% 7. Business acumen, managerial skills, planning 6.18% 8. Managing one’s health and well-being 5.19% 9. Computer and technology skills 7.94% 10. Other (please specify) 3.75%

New barristers depend heavily on knowing the law, knowing the system, and using written or spoken language well.

From Court to College Appendices 327 Q 6 Juniors 3–5 years call (n=27)

In your work as a barrister, what relative weight would you give to each of the following in terms of how much you depend on each of them for your CURRENT LEGAL PRACTICE.

(The total must add up to 100%, but you can allocate your 100 points across any number of items.) 1. Knowing the law (black letter law) 23.39% 2. Knowing the system (how the law works) 15.54% 3. Knowing people (having contacts and knowing who’s who) 14.09% 4. Understanding and getting on well with people 12.18% 5. Using written or spoken language well 16.26% 6. Being senior, having depth of experience 7.8% 7. Business acumen, managerial skills, planning 5.22% 8. Managing one’s health and well-being 6.35% 9. Computer and technology skills 7.0% 10. Other (please specify)

As barristers gain more seniority the importance of people factors is growing, but it does not outstrip the three primary factors of knowing the law knowing the system and using language well.

From Court to College Appendices 328 Q 6 Juniors 6–9 years call (n=41)

In your work as a barrister, what relative weight would you give to each of the following in terms of how much you depend on each of them for your CURRENT LEGAL PRACTICE.

(The total must add up to 100%, but you can allocate your 100 points across any number of items.) 1. Knowing the law (black letter law) 28.33% 2. Knowing the system (how the law works) 19.83% 3. Knowing people (having contacts and knowing who’s who) 8.29% 4. Understanding and getting on well with people 12.93% 5. Using written or spoken language well 17.58% 6. Being senior, having depth of experience 7.8% 7. Business acumen, managerial skills, planning 5.33% 8. Managing one’s health and well-being 5.3% 9. Computer and technology skills 6.86% 10. Other (please specify)

At this level the three key factors of knowing the law, knowing the system, and using a written or spoken language well are solidifying as the most important and are given heavy weighting is than they are at lower levels of call. Knowing people is becoming relatively less important.

From Court to College Appendices 329 Q 6 Juniors 10+ years call (n=87)

In your work as a barrister, what relative weight would you give to each of the following in terms of how much you depend on each of them for your CURRENT LEGAL PRACTICE.

(The total must add up to 100%, but you can allocate your 100 points across any number of items.) 1. Knowing the law (black letter law) 29.36% 2. Knowing the system (how the law works) 16.88% 3. Knowing people (having contacts and knowing who’s who) 8.84% 4. Understanding and getting on well with people 12.06% 5. Using written or spoken language well 14.35% 6. Being senior, having depth of experience 11.05% 7. Business acumen, managerial skills, planning 4.72% 8. Managing one’s health and well-being 6.75% 9. Computer and technology skills 7.10% 10. Other (please specify) 2.07%  there is a considerable overlap between the following categories - 2,3 and 6

The intensification effect continues, with knowing the law reaching 29.36%

From Court to College Appendices 330 Q 6 Silk (n=30) In your work as a barrister, what relative weight would you give to each of the following in terms of how much you depend on each of them for your CURRENT LEGAL PRACTICE.

(The total must add up to 100%, but you can allocate your 100 points across any number of items.) 1. Knowing the law (black letter law) 29.69% 2. Knowing the system (how the law works) 13.08% 3. Knowing people (having contacts and knowing who’s who) 6.74% 4. Understanding and getting on well with people 11.25% 5. Using written or spoken language well 16.5% 6. Being senior, having depth of experience 12.27% 7. Business acumen, managerial skills, planning 6% 8. Managing one’s health and well-being 8.26% 9. Computer and technology skills  Other (please specify) 3.75%: (Reputation) Intensification of the knowing the law pattern continues, at the expense of other categories (constraint of 100%). The salience of knowing the system continues to drop as the knowing the law schema intensifies. Knowing the system is most salient at 3-5 years (not 0-2, which might be expected). I speculate that this is possibly because at the barrister has been around long enough to have learnt a lesson by experience, but that recedes over time and becomes less salient as the expertise involved in actually knowing the system is internalised (Dewey’s invisible ‘habit’ which makes expert responses automatic rather than deliberative). At 0-2 years the barrister is not yet aware of how much s/he doesn’t know about the system.

From Court to College Appendices 331 Q7 OPEN COMMENTS on Q6

ALL RESPONDENTS

Answered 50, Skipped 165 8 responses said ‘No’ (i.e. no comment). One of those said, ‘No, I think the questions are perfectly pitched’.

12 responses objected to the question in some way. Of those, 4 said there was overlap in categories, 7 found it difficult to allocate points, 2 referred to relative/changing conditions, 1 found the list restrictive, 1 found it ridiculous.

A Leximancer analysis with theme size set at 100% made Law the central theme, with ‘job’ a cooler, smaller theme:

With theme size set at 10%, a complex cluster of smaller issues becomes visible. The word important is used in 10 of the 50 responses, while essential and properly are used three times each.

Experience was mentioned 5 times: Experience is almost everything in the law

Language was mentioned 4 times:

the whole of law is so heavily based on LANGUAGE that being able to communicate (in writing, for paperwork, with solicitors and clients, and in court, oral presentation) is really the No. 1 thing; ‘using written language well’ would be higher; an advocate must have a proper command of the language and experience

From Court to College Appendices 332 Leximancer’s topical network map shows the solicitor at the hub of work, skills, and people concept nodes; the self (one’s) is related to practice (x2), field, ands skills.

Q8 Contribution to expertise

ALL RESPONDENTS

Answered 168, Skipped 47

8 In your work as a barrister, what relative weight would you give to each of the following in forms of education in terms of how much they have contributed to your CURRENT LEVEL OF EXPERTISE. (Again the total across the 10 categories must add up to 100%, but you can allocate your 100 points across any number of items.)

From Court to College Appendices 333 Response Answer Options Response Total Response Count Average

Law school and other university 19.13 2,850 149 study

PTC (clinical education, eg Leo) 6.62 616 93 OR articles

CLE (voluntary or compulsory, formal 7.15 851 119 programs)

Other general legal experience (eg 14.55 1,746 120 academic, solicitor)

Experience at the Bar (ie through 31.83 5,189 163 own practice)

Mentorship (formally arranged, 6.86 810 118 eg Master/pupil)

Mentorship (informal but 6.25 556 89 individual)

Working with colleagues on specific 9.95 1,224 123 cases/matters (at bar or as solicitor)

Collegiality (informal, being 7.92 903 114 part of the Bar)

Own reading, research and study 13.87 1,955 141 (including observation)

The composite result for all barristers indicates that experience at the bar is the most highly valued form of education barristers contributing to their expertise, followed at a considerable distance by law school and other University study.

From Court to College Appendices 334 Q 8 Juniors 0–2 years call (n=19) Law school/ university (23.68%) PTC/ articles (10.33%) CLE (8.38%) Other general legal experience (16.06%) Experience at the Bar (18.75%) Mentorship (formal) (6.56%) Mentorship (informal) (5.42%) Working with colleagues on case (10.00%) Collegiality (informal) 5.63%) Own reading, research and study (10.50%) Answered 19, skipped 8 Not unexpectedly, law school and experience are inverted for practitioners of 02 years standing, although the gap is smaller:

Q 8 Juniors 3–5 years call (n=30) Law school/ university (17.13%) PTC/ articles (6.00%) CLE (5.81%) Other general legal experience (18.00%) Experience at the Bar (24.74%) Mentorship (formal) (8.83%) Mentorship (informal) (7.14%) Working with colleagues on case (10.76%) Collegiality (informal) 8.75%) Own reading, research and study (10.90%) Answered 23, skipped 4

It does not take long at the Bar for the perceived value of experience to begin to outstrip the value of university learning. Other general legal experience to is now also valued slightly more highly than university education.

From Court to College Appendices 335 Q 8 Juniors 6–9 years call (n=30) Law school/ university (19.85%) PTC/ articles (6.38%) CLE (9.56%) Other general legal experience (20.57%) Experience at the Bar (32.00%) Mentorship (formal) (5.76%) Mentorship (informal) (7.63%) Working with colleagues on cases (10.11%) Collegiality (8.61%) Own reading, research and study (11.74%)

At 6–9 years call, experience at the bar has grown to 32%, with the gap between other general legal experience and university growing.

Answered 30, skipped 11

Q 8 Juniors 10+ years call (n=67) Law school/ university (17.71%) PTC/ articles (4.90%) CLE (5.96%) Other general legal experience (10.98%) Experience at the Bar (36.29%) Mentorship (formal) (6.67%) Mentorship (informal) (6.29%) Working with colleagues on cases (8.65%) Collegiality (8.68%) Own reading, research and study (15.55%)

At 10 years call, university education has receded even further, but still accounts for close to 18%. However, ‘own reading’ is catching up, and experience is over 36%.

Answered 67, skipped 20

From Court to College Appendices 336 Q 8 Silks (n=26) Law school/ university (19.91%) PTC/ articles (8.11%) CLE (7.56%) Other general legal experience (11.58%) Experience at the Bar (34.81%) Mentorship (formal) (7.25%) Mentorship (informal) (4.55%) Working with colleagues on cases (13.5%) Collegiality (7.00%) Own reading, research and study (17.36%)

For silks, the year of collegiality and informal talks in has dropped, but formal mentorship has risen slightly, suggesting perhaps that as silks gain age and experience they relate to their own masters in a new way as equals. This would be consistent with anecdotal evidence.

Answered 26, skipped 4

From Court to College Appendices 337 Q9 Contribution to expertise

ALL RESPONDENTS

Answered 168, Skipped 47

9 How valuable do you find each of the following types of CLE?

0--2 3--5 6-9 10+ Silk

From Court to College Appendices 338 Answer Total Mostly Options Valuable/very Mostly Sometimes waste Rating Response not useful useful useful of Average Count (all useful respondents) time Attending 14 57 66 25 6 2.71 168 seminars Reading 24 71 59 13 0 2.37 167 papers/articles Watching 3 26 62 49 17 3.32 157 videos/DVDs Listening to 3 17 59 52 24 3.50 155 audio tapes/CDs Small-group 6 24 61 37 17 3.24 145 workshops Masterclasses 7 25 52 35 19 3.25 138 Online interactive 2 7 28 60 32 3.88 129 sessions Online 61 61 25 6 3 1.90 156 research Half-day 5 18 79 29 14 3.20 145 conferences Full-day 5 25 72 33 15 3.19 150 conferences Extended conferences 6 18 63 36 20 3.32 143 (residential, 1 day+)

For this question, the answer options with higher scores are less favoured than those with lower scores. Thus the least useful, Online interactive sessions, expressed as percentages, is predominantly seen as ‘mostly not useful’ (46.5%) or ‘complete waste of time’ (24.4%), with only 21.7% finding them ‘sometimes useful’ and 5.4% and 1.6% finding them ‘mostly useful’ or ‘ valuable/very useful’ respectively. Online research, reading papers, and attending seminars are the top three preferred forms of CLE.

This result is entirely consistent with research I conducted at Leo Cussen Institute in 2004 (500 respondents). What this means is that the practical training courses and universities are increasingly turning to online delivery modes for reasons of economic efficiency, since once these initially expensive services are in place, they are able to take expanding numbers without appreciable increase in cost.

It seems likely that the approval rating for on line research conducted by oneself is positive because of the habits of independent thought and research inculcated in l;awyers as part of

From Court to College Appendices 339 the training to think like a lawyer.

In each range, doing one’s own online research is strongly preferred. However, there are some differences in the relative strength of preferences for seminars and reading papers. Newer barristers (possibly also younger, but that is not disclosed in this research) are more inclined to find conferences useful, and silks are less likely to do so.

From Court to College Appendices 340 Q10 Attend CLE voluntarily?

ALL RESPONDENTS

Answered 168, Skipped 47

10 Would you attend the requisite number of formal CLE sessions if they were not compulsory?

If they were not required to attend CLE sessions, 27.4% would probably not attend. A further 24.4% probably would attend, 23.2% definitely would attend, 13.1% might attend perhaps, and 11.9% definitely would not attend. Combined positive and negative responses yield the result that 39.3% probably or definitely would not attend; 47.6 probably or definitely would attend. ‘Perhaps’ is treated as undecided. If, as Dewey says, motivation is a very important part of learning, there is a strong suspicion here that unmotivated attendance at CLE may be unrewarding because it is unmotivated. For 02 years call, the responses were: 63.1% probably or definitely would attend; 21.1% probably or definitely would not attend. For 35 years call, the responses were: 52.2% probably or definitely would attend; 30% probably would not attend. For 69 years call, the responses were: 63.3% probably or definitely would attend; 30% probably or definitely would not attend.

From Court to College Appendices 341 For 10+ years call, the responses were: 29.4% probably or definitely would attend; 57.3% probably or definitely would not attend. For silks, the responses were: 61.5% probably or definitely would attend; 23.1% probably or definitely would not attend.

These results suggest that the majority of barristers in all groups probably or definitely would attend CLE voluntarily. Several factors could be playing out in the ‘unwilling’ group (10+ ). First, the group itself is probably too undifferentiated. This is an artifact of survey convenience; more than 5 groups become unwieldy. Second, many in this group will be mid-career busy, specialising in an area in an expert way, and less likely to be casting about for potential new areas. Third, the renewal of interest at the silk stage is coherent with the interview responses from judges indicating that the NJC Phoenix program was a welcome revitalization for later-career judges. It also might suggest that silks may be better involved as experts mentoring others, rather than attending sessions as learners (given the ‘expert presenter’ format that has been established in CLE.

Q11 Non-Bar formal CLE

ALL RESPONDENTS

Answered 165, Skipped 50

11 Do you go (as a registrant) to other non-Bar formal CLE sessions (eg put on by Leo or a commercial provider)?

No, never, not much, usually not, very infrequently (n=69); Sometimes, occasionally, not regular (n=20); Yes (n=56); Often (n=2) Some named the provider (e.g. Family Law Section of the Law Council .A few comments were more informative, but insufficient in number to supply a rich picture (e.g. I am a member of the Taxation Institute of Australia which requires 30 hours CLE per year - 3 times that of the Victorian Bar). There is no charge for the sessions at the Victorian Bar, which is disincentive to attend other providers’ sessions at which payment is required, although comments suggest that if charges are modest barristers are willing to pay if the presenter is high calibre; it depends on their needs at the time.

From Court to College Appendices 342 Q12 Post-qualification learning

ALL RESPONDENTS

Answered 162, Skipped 53

12 What are the most helpful forms of post-qualification learning for barristers?

The Leximancer analysis discloses that if a single theme at 100% is selected, that theme is research, and it is related to experience and needs to be relevant to the case at hand. When the themes are expanded to 33%, research is still the most significant theme. This is coherent with the decided preference for online research done by oneself.

The top 3 words that repeatedly emerged in significant relations with others included research, experience, reading for a case  learning by doing, with a real problem that directed inquiry.

Other themes: narratives (“war stories”); a good mentor; “barristers are very generous in sharing their research results”; the Bar Reader’s Course; CLE put on by the Bar is focused on issues relevant to barristers’ practices; being in court (the experience theme); a busy practice; Getting a case in a new area of law; Getting different work now and then and having to do research.

Presented as a Leximancer topical map (below), research, experience, reading, cases, and the law are seen as central nodes. In other words, there is a very strong vocational and

From Court to College Appendices 343 instrumental understanding of what continuing legal education is and should be, and the models in which the current systems work foster a narrowly vocational approach to continuing legal education.

Q13 Bar and Bench difference

ALL RESPONDENTS

Answered 156, Skipped 59

13 What are the main differences between the work you perform as a barrister and the work of a judge of the Supreme Court of Victoria? This question was potentially interesting as disclosing issues that might arise in the transition from Bar to Bench. Mot replies restated the traditional (obvious) roles, summed up most succinctly as “Advocacy versus decision making”.

From Court to College Appendices 344 The obviousness of the answer was noticed by some: “Come on! In one you are advancing a particular view, the other deciding between competing views” and “Beyond the obvious, I have nothing to contribute here.”

Other responses:  “You could write a book on this question. They are very different roles.”  “A judge must remain separate from the combatants.”  “Barrister seeks to achieve best outcome regardless of merits. Judge these days usually tries to adjust the law so that it fits the outcome that he deems right.”  “The volume is much less as a barrister and the collegiate spirit much greater.”  “Ask me when I’m a judge (i bet everyone will say that).”  “Judge on a salary and has security of tenure.”  And my personal favourite:  “A judge decides matters. A barrister agitates matters.”

With Leximancer themes set at the coarsest granularity (left), the two strongest themes were ‘judge’ (red) and ‘case’ (green), with the judge the central focus and most emotionally relevant, and the barrister within the concept nodes relating to the case but also overlapping with the judge. At a finer-grained consideration of themes (25%), ‘barrister’ became salient as a theme.

From Court to College Appendices 345 Q14 Appointment system

ALL RESPONDENTS

Answered 158, Skipped 57

14 Bench and Bar have traditionally had close ties, and in the past the Bench has traditionally been drawn from the ranks of the Bar. Do you have any comments about the traditional system?

In this Leximancer map a query has been run to show the pathway between “solicitor” and “judge”. The pathway might conceivably have run through skills, knowledge, practice, and sense to get to ‘judge’, but it does not  the responses strongly indicated that to get to judge which is heat-mapped for greatest relevance (red circle) the best system is through the Bar: the path is straightforward: solicitor, Bar, experience, judge. The individual comments support this interpretation:

From Court to College Appendices 346  “I think advocacy prepares a barrister to become a judge by learning about the court environment -- living and breathing and working in the system”  “A sprinkling of non-Bar judges is good for the mix, but if you get a whole bench full of people without experience, and no real knowledge of the law” [sic]  “Traditional system was the best in that it usually produced Judges who had a wide experience of Court work and how the Courts operated. Again the key ingredient is experience. How can an academic or a solicitor without years of experience in preparing cases and appearing in courts have any prospect of knowing what is required of a judge or be able to act with impartiality and dignity necessary to earn the confidence and respect of the community at large and in particular litigants” This is an emotionally salient topic for barristers, whose prospects of being appointed are greatly diminished by the size of the Bar relative to the number of appointments. Only two replies mentioned women or gender, although, anecdotally, perceptions of affirmative action in appointments can create resentment as it is perceived to diminish men’s chances:

 “The traditional system is safe! To get the best and brightest judges the government will need to attract them. Often, particularly women, simply cannot be bothered with ‘playing the game’ at the bar and so do not fall within the traditional categories. There is a perception that people from outside the bar cannot be good judges. At one level that is true as they sometimes do lack the practical evidence skills and day to day experience gained at the bar. However, the additional life experience outside bar can only be a good thing, can’t it?”  “I think the Bar is a very good training ground for the Bench. Those who have not practised at the Bar generally lack the understanding of procedure and the running of a trial to easily transition to the Bench. These are not skills which can be taught, they must be learnt through practical experience.”  “The ‘tradition’ of drawing judges from the ranks of the bar is strongly based in common sense. Without prior court experience as a barrister, a judge cannot do the job as well as one who has experience as a barrister.”  “Essential”  “Obviously the Bar is logical source for the Bench. They understand procedure, ethics, evidence and the decision making process”  “The traditional system is logical and proven.”  “With the exception of the Court of Appeal how can you supervise a trial as a judge and protect it from appeal ( civil and especially criminal) if you have not run trials at first instance as a barrister.”  “It’s right.” Most responses stressed experience. Some felt the system had fallen away, some mentioned ‘political’ appointments (mates), but some also thought there was a need for diversity:

 “No longer is this so - the bench has had so many political appointees that it is difficult to retain respect for them”

From Court to College Appendices 347  “The Bar does not currently reflect the diversity of other groups in the legal industry (such as the solicitors). The traditional system of appointment would make the judiciary even less diverse.”  “It is good in so far as it produces judges who understand the trial system; but poor in so far as it reflected a narrow group of people (in terms of gender, race and class). One response to this problem is to broaden the diversity of the bar, in which some progress has been made” The comments in response to this question were longer than for other questions, and more rhetorical (arguing a position). Again, this is not surprising, given (1) self-interest but also (2) the Bar’s genuine and strong belief in the value of experience as the chief form of learning. SECTION 4 – WORKING WITH JUDGES

Q15 Roles of a judge

ALL RESPONDENTS

Answered 160, Skipped 55

15 Which of the following roles are the most important for a judge of the Supreme Court of Victoria to be competent in exercising? There are 15 roles in the list. Please put no more than THREE in the critical list. The others can go in any column.3

3 See discussion at [5.3.1] on non-compliance on some paper-based responses.

From Court to College Appendices 348 This list repeats items 1–9 in Q 6 from the judicial perspective, and adds six new ones, drawn from the NJC curriculum:

1 Knowing the law (black letter law) All respondents considered this critically important (66.9%) or important (33.1%).

2 Knowing the system (how the law works) Most respondents considered this critically important (20.4%) or important (73.94%); only 5.7% judged it not very important.

3 Knowing people (having contacts and knowing who’s who) Only 0.6% considered this critically important; another 12.3% considered it important, but most respondents considered this not relevant (42.6%), and 36.84% considered it not very important. This role received the highest disapproval rating: 7.7% judged it not desirable.

4 Understanding and getting on well with people Most respondents considered this important (66.7%) and 5.8% though it critically important. 21.8% considered it not very important and 5.8% considered it not relevant.

From Court to College Appendices 349 5 Using written or spoken language well Most respondents considered this important (72.2%) or critically important (25.9%); only 1.9% judged it not very important.

6 Being senior, having depth of experience Most respondents considered this important (66%) and 21.2% though it critically important. 10.3% considered it not very important and 2.6% considered it not relevant.

7 Business acumen, managerial skills, planning Only 1.3% considered this critically important; another 24.5% considered it important, but most respondents considered this not very important (47.1%), and 26.5% considered it not relevant. One person (0.6%) judged it not desirable.

8 Applying the law Most respondents considered this critically important (72.2%) and 27.8% though it important.

9 Managing cases, the court room and one’s work Most respondents considered this important (79.6%) and 15.1% though it critically important. 5.3% considered it not very important. 10 Making decisions and giving reasons for one’s decisions; Most respondents considered this critically important (62.9%) or important (37.1%).

11 Displaying appropriate standards of judicial conduct Most respondents considered this important (68.2%) and 26.8% though it critically important. 5.1% considered it not very important. 12 Understanding the relationship between the judiciary and society Most respondents considered this important (63.1%) and 11.5% though it critically important. 22.3% considered it not very important; 3.2% though it was not relevant.

13 Keeping abreast of developments in knowledge and in public policy that impact on the law Most respondents considered this important (66.0%) and 8.2% though it critically important. 21.4% considered it not very important; 4.4% though it was not relevant.

14 Using technology in and outside the courtroom No one considered this critically important, but 42.9% considered it important. However, 49.4% considered this not very important and 7.1% considered it not relevant. One person (0.6%) judged it not desirable.

From Court to College Appendices 350 15 Managing one’s health and well-being Only 3.2% considered this critically important, but 62.4% considered it important. However, 24.8% considered this not very important and 9.6% considered it not relevant.

This question generated some interesting variations based on years of call to the Bar. The set of small snapshot graphs (below) gives the gist.

New barristers are clearer in their agreement on what is critical. If they are relatively recently out of law school they are close to academic emphasis on ‘applying the law’ in legal method, and this might explain its disproportionate criticality (relative to more experienced barristers). By the time barristers are of 35 years call the primacy of these top 3 has softened, although the same choices are made in the same order as a 02 years. At 69 years call the top 3 are still the same, and they have even grown in importance, but they have drawn closer together, perhaps suggesting that they are seen as a constellation of related ideas. At 10+ years ‘applying the law’ assumes a renewed urgency. Possible explanations include having built up frustration at losing cases when judges have applied the law poorly; if present, this effect could be enhanced by the changing nature of practice in the later years, with more higher court work contesting difficult points. When we come to silks, we see the first significant departure from the pattern of 1,2,3 in the top 3. Now we find a top 2. No 3 in the other lists is now No 1: Making decisions & giving reasons (76.9%); Knowing the law remains in second place, but Applying the law has slipped to 40%, equal third with appropriate standards of judicial conduct.

02 years call, critical list: 35 years call, critical list: 1. Applying the law (94.1%) 1. Applying the law (66.7%) 2. Knowing the law (82.4%) 2. Knowing the law (57.1%) 3. Making decisions & reasons (70.6%) 3. Making decisions & reasons (52.4%)

From Court to College Appendices 351 69 years call, critical list: 10+ years call, critical list: 1. Applying the law (74.1%) 1. Applying the law (80.3%) 2. Knowing the law (67.9%) 2. Knowing the law (66.7%) 3. Making decisions & reasons (67.9%) 3. Making decisions & reasons (56.9%) Silk, critical list: 1. Making decisions & reasons (76.9%) 2. Knowing the law (65.4%) 3. Applying the law (40.0%) / Displaying appropriate standards (40.0%)

From Court to College Appendices 352 Q16 OPEN COMMENTS on Q15

ALL RESPONDENTS

Answered 28, Skipped 187

Here, 1 person complained about the categories; 1 did not “quite know what you mean by ‘Applying the law’”. 6 complained about being restricted to 3 critical things (they are all critical, or at least several other things are).

The strongest emergent themes were courtesy, listening, patience, understanding that counsel is not driving the case (judges applying pressure to settle); “no need to be rude”; “rude/sarcastic or dismissive conduct”; sense of justice; good instincts in relation to human behaviour; intelligence (hard work cannot substitute); correct and appropriate findings of fact (ability); interpersonal skills.

A theme of broader awareness of humanity: “to be effective, judges must understand the human condition”; ‘firm yet merciful’; “appreciation of the importance of his/her role in society”;

Role of counsel in quality: “Judge’s job is to apply the law - knowing the law is important, but a judge cant be expected to know (or to think that they know) all the law. it is also the role of the advocate - it is our job to make sure the judge knows the law”; “the quality of submissions before the Court (this is often underestimated as a factor in the quality of justice, although I suppose a judge can do nothing to alter it)”.

Objections: to listing only 3 as critical; “Items 12 and 13 assume that a judge should try to work within the broader society. That may be right but it should not be assumed - it may also be wrong”; interconnected/overlapping categories

Q17 Circumstances of learning

ALL RESPONDENTS

Answered 159, Skipped 56

From Court to College Appendices 353 Taking the same list of 15 roles, which should be prerequisite to appointment, and which might be learned or improved on the job (e.g. by training)? Multiple answers are possible.

This question explores barristers’ ideas about the limits of learning and the need for specific learning opportunities if some things might be learned on the Bench after appointment. The categories are reproduced below, with percentages listed for any item which 25% or more of the respondents endorsed. (Item numbers are those used in Q15)

Positive responses to Qs 7 and 8 are negatives for learning (high responses here would mean this item is not learnable (Q7) or not relevant (Q8).

Responses of less than 25% are ‘greyed out 1 Prerequisite to appointment 1 Knowing the law (black letter law) 74.2% 8 Applying the law 61.1% 5 Using written or spoken language well 58.2% 6 Being senior, having depth of experience 52.5% 2 Knowing the system (how the law works) 44.7% 11 Displaying appropriate standards of judicial conduct 42.8% 10 Making decisions and giving reasons for one’s decisions 41.5% 12 Understanding the relationship between the judiciary and society 29.9% 4 Understanding and getting on well with people 26.5% Below 25% 3 Knowing people (having contacts and knowing who’s who) (0.6%) 7 Business acumen, managerial skills, planning (2%) 9 Managing cases, the court room and one’s work (11.8%) 13 Keeping abreast of developments in knowledge and in public policy that impact on the law (13.5%) 14 Using technology in and outside the courtroom (3.3%) 15 Managing one’s health and well-being (8.7%)

2 Can be improved by Bench experience. 9 Managing cases, the court room and one’s work 76.3%

From Court to College Appendices 354 10 Making decisions and giving reasons for one’s decisions 67.9% 8 Applying the law 59.2% 11 Displaying appropriate standards of judicial conduct 58.5% 2 Knowing the system (how the law works) 57.9% 12 Understanding the relationship between the judiciary and society 52.9% 13 Keeping abreast of developments in knowledge and in public policy that impact on the law 52.6% 6 Being senior, having depth of experience 46.8% 14 Using technology in and outside the courtroom 45.8% 1 Knowing the law (black letter law) (47.2%) 5 Using written or spoken language well (37.3%) 7 Business acumen, managerial skills, planning 28.1% Below 25% 3 Knowing people (having contacts and knowing who’s who) (16.6%) 4 Understanding and getting on well with people (20%) 15 Managing one’s health and well-being (20.1%)

3 Can be improved by collegiality. 11 Displaying appropriate standards of judicial conduct 34% 13 Keeping abreast of developments in knowledge and in public policy that impact on the law 33.3% 9 Managing cases, the court room and one’s work 32.9% 2 Knowing the system (how the law works) 31.4% 3 Knowing people (having contacts and knowing who’s who) 30.6% 15 Managing one’s health and well-being 30.2% 4 Understanding and getting on well with people 27.7% 12 Understanding the relationship between the judiciary and society 26.8% 1 Knowing the law (black letter law) (25.2%) Below 25% 5 Using written or spoken language well (7%) 6 Being senior, having depth of experience (11.4%) 7 Business acumen, managerial skills, planning (14.4%) 8 Applying the law (20.4%)

From Court to College Appendices 355 10 Making decisions and giving reasons for one’s decisions (23.3%) 14 Using technology in and outside the courtroom (18.3%) 4 Can be improved by life experience. 4 Understanding and getting on well with people 49% 15 Managing one’s health and well-being 46.3% 12 Understanding the relationship between the judiciary and society 32.5% Below 25% 1 Knowing the law (black letter law) (6.9%) 2 Knowing the system (how the law works) (12.6%) 3 Knowing people (having contacts and knowing who’s who) (22.3%) 5 Using written or spoken language well (8.2%) 6 Being senior, having depth of experience (14.6%) 7 Business acumen, managerial skills, planning (23.5%) 8 Applying the law (5.7%) 9 Managing cases, the court room and one’s work (13.8%) 10 Making decisions and giving reasons for one’s decisions (10.7%) 11 Displaying appropriate standards of judicial conduct (18.9%) 13 Keeping abreast of developments in knowledge and in public policy that impact on the law (23.1%) 14 Using technology in and outside the courtroom (18.3%)

5 Can be improved by private study. 1 Knowing the law (black letter law) 38.4% 13 Keeping abreast of developments in knowledge and in public policy that impact on the law 36.5% 14 Using technology in and outside the courtroom 34% Below 25% 2 Knowing the system (how the law works) (8.8%) 3 Knowing people (having contacts and knowing who’s who) (0.6%) 4 Understanding and getting on well with people (1.3%) 5 Using written or spoken language well (17.7%) 6 Being senior, having depth of experience (3.8%) 7 Business acumen, managerial skills, planning (15%)

From Court to College Appendices 356 8 Applying the law (20.4%) 9 Managing cases, the court room and one’s work (8.6%) 10 Making decisions and giving reasons for one’s decisions (11.9%) 11 Displaying appropriate standards of judicial conduct (4.4%) 12 Understanding the relationship between the judiciary and society (11.5%) 15 Managing one’s health and well-being (10.1%)

6 Can be improved by training (eg judicial college). 14 Using technology in and outside the courtroom 66.7% 9 Managing cases, the court room and one’s work 53.3% 13 Keeping abreast of developments in knowledge and in public policy that impact on the law 47.4% 7 Business acumen, managerial skills, planning 40.5% 11 Displaying appropriate standards of judicial conduct 35.8% 10 Making decisions and giving reasons for one’s decisions 35.2% 15 Managing one’s health and well-being (34.2%) 2 Knowing the system (how the law works) 27% 8 Applying the law 25.5% 1 Knowing the law (black letter law) 25.2% Below 25% 3 Knowing people (having contacts and knowing who’s who) (3.8%) 4 Understanding and getting on well with people (1.3%) 5 Using written or spoken language well (24.1%) 6 Being senior, having depth of experience (6.3%) 12 Understanding the relationship between the judiciary and society (40.1%)

7 Not possible to learn after appointment. 4 Understanding and getting on well with people 11.6% Below 25% 1 Knowing the law (black letter law) (0.6%) 2 Knowing the system (how the law works) (1.3%) 3 Knowing people (having contacts and knowing who’s who) (0.6%) 5 Using written or spoken language well (8.9%)

From Court to College Appendices 357 6 Being senior, having depth of experience (7.6%) 7 Business acumen, managerial skills, planning (1.3%) 8 Applying the law (1.9%) 9 Managing cases, the court room and one’s work (0%) 10 Making decisions and giving reasons for one’s decisions (0.6%) 11 Displaying appropriate standards of judicial conduct (1.3%) 12 Understanding the relationship between the judiciary and society (0.6%) 13 Keeping abreast of developments in knowledge and in public policy that impact on the law (0%) 14 Using technology in and outside the courtroom (0.7%) 15 Managing one’s health and well-being (4.7%) 8 Not relevant after appointment 3 Knowing people (having contacts and knowing who’s who) 50.3% 7 Business acumen, managerial skills, planning 27.5% Below 25% 4 Understanding and getting on well with people 11.6% 1 Knowing the law (black letter law) (0.6%) 2 Knowing the system (how the law works) (1.3%) 5 Using written or spoken language well (0.6%) 6 Being senior, having depth of experience (4.4%) 8 Applying the law (0%) 9 Managing cases, the court room and one’s work (1.3%) 10 Making decisions and giving reasons for one’s decisions (0%) 11 Displaying appropriate standards of judicial conduct (0%) 12 Understanding the relationship between the judiciary and society (0.6%) 13 Keeping abreast of developments in knowledge and in public policy that impact on the law (2.5%) 14 Using technology in and outside the courtroom (2.0%) 15 Managing one’s health and well-being (4.7%)

From Court to College Appendices 358 Q18 OPEN COMMENTS on Q17

ALL RESPONDENTS

Answered 15, Skipped 200

Because responses to Q17 disclose an apparent view that learning various things is no longer possible once on the bench, it is worth giving the comments in full, as they shed light on why a barrister might think, for example, that it is not possible to learn law once on the bench.

One person who effectively answered that it is not possible to learn most things on the Bench can probably be assumed to be misreading the question or a donkey vote for some other reason. 1. A number of factors discussed can be improved by time on the bench, but should already be at a high standard before the judge is appointed. 2. Applying the law requires the intellectual rigour to follow the law through to the requisite conclusion rather than determining the “merits” and working back to meld the law to provide the pre-determined outcome. 3. I believe the majority of Judges would be receptive to a variety of inputs in relation to their keeping up to date with the law. The collegiality of the bench would seem to be a vast and appropriate resource in that regard, but it is only one such resource. 4. I don’t think my opinion would count for a lot here as I haven’t been a judge. 5. Judges must be smart and able to cope with difficult decision making before they go to the Bench. The appropriate selection of judges is essential and rarely can a poor selection be corrected with training of any type. 6. Judicial college is a waste of time, by the time someone is considered for appointment to the Bench either they have developed the needed skills or not. 7. Judicial life is stressful  important self-management strategies (including health, personal relationships, emotional wellbeing) must be in place before appointment! 8. The reference to “developments in knowledge and in public policy that impact on the law” is confusing to me. Developments in public policy per se should not “impact on the law” unless manifested in legislation. The judge is not an elected parliamentarian. It is undesirable for a judicial officer to take account of any public policy “development” outside that manifested in the statute. As for developments in knowledge that may impact on the law, there could be decisions here or abroad,

From Court to College Appendices 359 or academic papers, that advance the thinking on a legal issue. It is desirable for the judge to be across those developments. 9. The relationship between the judiciary and society is seen differently by different groups. 10. They should be senior and accomplished to start with, so that continuing ed just broadens and already good legal brain. If they are mediocre, they might improve with encouragement, but even so, education may best be done through collegiality and looking out for each other on the bench -- and motivating them to join in things they can really learn from.

Objections: interconnected/overlapping categories; computer format makes it difficult to answer last few Qs

Q19 Top 3 of judges

ALL RESPONDENTS

Answered 158, Skipped 57

19 If your practice involves courtwork, what would you say are the top three characteristics (in court) of excellent judges?

Respondents offered 466 individual words or phrases which can be grouped together in themes, with some overlap. The question asked for ‘characteristics’ in order to be as neutral as possible. The four major themes that emerged from concept mapping at a broad-brush level of generality were: relevant, law, sense, and experience:

From Court to College Appendices 360 Each of these words has significant Pragmatist connotations.

At a finer granularity, we see mid-range conceptual themes emerging: self-effacing, fairness, whole, and skills cluster around relevant, but judgment stands outside the suite of characteristics of the judge (over page):

From Court to College Appendices 361 Of the concepts listed (based on a numerical count rather than the connections generating themes), knowledge, ability and behavioural characteristics featured.

Knowledge of the law was the clear winner as the single characteristic of a good judge, through the eyes of the barrister. ‘Law’ was mentioned 78 times, legal 15 times, knowledge 72 times, and in combination (‘law’ with ‘knowledge’) 52 times, with some variations:  Know/knowing the law (n=9)  Outstanding/deep/good knowledge of the law (n=3)  Knowing people/people skills/communication/communication skills (n=14)

From Court to College Appendices 362 Able to/Ability to … was mentioned 32 times in combination with a range of other words, whereas ‘being’ was mentioned only 4 times, and ‘ having’, the marker of ownership, something possessed, appeared only once, and then merely as “View that court participants each have important roles”.

Decisions/decisiveness/deciding: also 32 mentions. Responses ranged from ‘Capacity to make decisions’ to ‘Not allowing their courtesy to prevent them from being decisive’. Again, deciding is the nub of the judicial task, and when the connections of these terms are queried, a dense network links ‘decision making’ (blue lines) and ‘decisions’ (brown lines) to these modifiers (including quick, quick but effective, reasoned, decisive, prompt):

 Sense of … appeared 13 times in various combinations (sense of fairness (n=2), proper sense of fairness, sense of justice and fairness, sense of just outcomes, sense of humour, sense of superiority (its absence), including as common sense (n=6). (See Wierzbicka (2010) on the significance of ‘sense’ in English.)

From Court to College Appendices 363  Listen/listening/listening skills/active listening (n=38). In addition one response was, ‘Gradual isolation of dispositive issues in the case’ which I would also read as willingness to listen to a position. This willingness to listen was frequently linked with non-bias, listening to a position, give a fair hearing.  Courteous/courtesy: 36 instances, four with recipients named (one ‘to counsel’, three to ‘all parties’, ‘all involved’, ‘lawyers and lay people alike’). One wanted ‘courteous but firm’, another linked courtesy to patience. One was linked to mindfulness about the difficulty of counsel’s role. Another 5 referred to polite/politeness.  Patient/patience was mentioned 20 times.  Legal (n=15) process, issues, system, knowledge, insight, skills (n=2).  Fair/fairness (n=14) plus even-handed (n=2). (See also ‘justice’; Rawls (Rawls 1999): justice as fairness is political not metaphysical)  Intelligence (n=12), plus shrewd, sharp, smart.  Open mind/open-minded (n=12).  Skills (n=11) legal (n=2), listening (n=2), people (n=2), interpersonal, analytical (n=2), communication (x2)  Willing/willingness (n=10) four connected with listening, including ‘listen and contribute to proceedings’ and ‘listen to whole argument/avoidance of prejudgment’. Others were linked to ‘ask questions on unfamiliar areas/matters’; ‘do the work’; ‘engage in dialogue’; ‘testing argument without prejudging’; ‘express opinions as the case is proceeding’.  Understanding (n=8) of law/legal principles (n=2), the issues before him, the case, human nature, complexities of human behaviour in the evaluation of the evidence of witnesses, people and role of court to serve.  Experience (n=8).  Work/work ethic/work hard/capacity for had work (n=8)  Efficiency/efficient (n=6). Efficient, correct, quick decisions.  Managing (n=3) people, court, counsel.  Non bias/predisposition/prejudice/prejudge (n=6).  Personality/temperament/MBTI (n=4)

From Court to College Appendices 364  Temper/good temper/even temper (n=6)  Respect (n=3).  Excellence (n=2).  Single-mentions included independent, kind, court craft, Myers-Briggs (J for lower courts, P for higher courts), mental acuity, shrewd, facilitate and encourage high level advocacy, good grasp of relationship between legal system and society.

The two all-important words for those outside the legal system are ‘wisdom’ (strongly associated with judges) and justice, but the responses demonstrated, as I would argue from experience, that these philosophical/political words are not the natural choice of lawyers using words as tools within the system. (cf the book by journalist Whitton (1998): the subject as catalogued is ‘Denial of justice’ and the thrust of his polemical attack, sustained over several years, is that lawyers have nine dishonest ‘magic tricks’ and using the word ‘law’ instead of being prepared to discuss ‘justice’ is one of them (see also Anderson (1999)). The survey responses here tend to confirm Whitton’s perception about relative frequency of usage of the term, but distort the reason, which I would argue lies in the legal/liberal separation of law and morality. Thus these respondents are not averse to the idea of justice (they use ‘fair/fairness’ freely, and obviously, as advocates, want ‘justice’ for their clients). But they use the less diffuse term. Justice as fairness is classic Kantian legal-liberalism.

Wisdom appeared only 5 times in these responses, twice on its own, and three times in combinations with, I interpret, different senses entailed by the syntactical forms:  wisdom and common sense (= these go hand in hand but are different)  wisdom/balance (= you could think of wisdom as balance)  wisdom: sound judgment (= wisdom means sound judgment) Justice appeared only 5 times, twice on its own, twice in company with fairness/justice, and once with balance (which had also appeared in combination with wisdom):  sense of justice and fairness (= there is a sustainable distinction)  proper sense of justice/fairness (= justice and fairness are the same thing but they have to be understood properly, i.e. legally)

From Court to College Appendices 365  balancing natural justice with the need for concise focus on relevant evidence (= a technical term for procedural fairness, ‘natural justice’)

In 2006 I heard Chief Justice McLachlin (2006) give the 14th AIJA Oration in Judicial Administration, titled The Twenty-First Century Court: Old Challenges and New, in the Banco Court at SCV (McLachlin 2006). Her Honour said,* To do their job well in this world  to render just decisions in a timely manner and maintain public confidence in the rule of law - today’s courts must retain old virtues and cultivate new ones. As in the past they must be: 1) knowledgeable; [72] 2) independent; [1] 3) impartial; [4, plus fair/bias etc] 4) connected to society; [1] 5) possess absolute integrity. [0] But they must also be: 6) more diverse, reflecting our society; [0] 7) more efficient; [6] 8) better at communicating with the public; [14] (cf listening [38]) 9) better educated. [0] Above all, they must: 10) possess conscience [0] and courage. [0] * [Numbers in brackets indicate incidence in survey, raw count]

Judges repeatedly refer to 2, 5, 10 in speeches (independence, integrity, conscience, courage), but these were named in only 1 response. No 1, Knowledge, was confirmed as outranking all other responses. While McLachlin CJ stressed communicating with the public, the Bar prefers judges to see their job as listening (to advocates putting cases) and being courteous and polite while doing so.

From Court to College Appendices 366 Q20 Paperwork problems

ALL RESPONDENTS

Answered 96, Skipped 119

20 If your practice involves paperwork, is there anything judges could do to improve any problems you experience with paperwork in proceedings generally (or to improve their own written judgments)

Leximancer’s analysis of the themes emerging from these open-ended replies focused first on judgments and ways in which judges might improve them, or the process, and the way they were written, including statements of facts, brevity, style, briefer paragraphing and expression, as well as refraining from restating the law each time they wrote a judgment. One respondent thought judgments that had been dictated were inferior to those typed. The next most important theme concerned things judges could do for paperwork efficiencies (e.g. in standardizing their responses to pleadings, as well as actions the parties could take in relation to documents, and submissions (which judges do not always appear to have read, despite the care that goes into their production).

From Court to College Appendices 367 SECTION 5 – CLE FOR JUDGES

Q21 Awareness of NJC Standards and Curriculum

ALL RESPONDENTS Answered 158, Skipped 57

21. In Australia we now have 3 judicial colleges. In Victoria judicial education has recently been made compulsory. Documents relating to judicial education have also recently been published by the National Judicial College (NJC): A Curriculum for Professional Development for Australian Judicial Officers (2007) and A National Standard For Professional Development For Australian Judicial Officers (2006) (‘Curriculum’ and ‘Standard’ respectively). How aware of those documents are you? Responses:  Not heard about them before 33.5% (n=53)  Vaguely aware of them 36.1% (n=57)  Generally aware of but not conversant with detail 26.6% (n=42)  Quite conversant with them 3.8% (n=6)  Very conversant with them 0.0% (n=0) Taken together, the high value for ‘vaguely or generally aware’ (62.7%) means that JE has at least ‘crossed the radar’ of the Bar, although a full one-third of the Bar had no idea that JE was being shaped with this degree of precision (since those documents are the backbone and first instantiation of the formalisation movement). ‘Quite conversant’ is a generous term that encompasses any kind of non-expert familiarity (implicit in the higher-level ‘very conversant’, which no one claimed), so 3.8% with seems low. Dates need to be kept in mind in interpreting this result. The documents in question (Roper 2006, 2007) were new then. These responses can contribute (weakly) to theories about loose and tight coupling of a posited BenchBar dyad, but they are more useful as a snapshot made close to the time of introduction of the idea of a framework for JE, as they establish a comparator point for future inquiries.

From Court to College Appendices 368 Q22 NJC Standard [OPEN RESPONSE]

ALL RESPONDENTS

Answered 104, Skipped 111

The NJC Standard provides for 5 days of professional development per year; the NJC Curriculum contains 8 core areas that reflect the judicial role. The Curriculum defines “Professional development” for judges, for the purposes of the Curriculum, as: “Activities in which learning takes place and through which the participants’ professional capacity is developed or enhanced.” Below is a quote from the Curriculum:

“The judicial role ... The curriculum which follows has, as its core, eight elements, each of which reflects an aspect of the judicial role. The curriculum provides programs which help judicial officers perform the judicial role. The performance of that role, for the purposes of this curriculum, comprises – [1] applying the law [2] managing cases, the court room and one’s work [3] making decisions and giving reasons for decisions [4] displaying appropriate standards of judicial conduct [5] understanding the relationship between the judiciary and society [6] keeping abreast of developments in knowledge and in public policy that impact on the law [7] using technology, in and outside the courtroom [8] managing one’s health and well-being. Every professional development program in this curriculum will deal with at least one aspect of that role. In some programs one of the elements will be the major theme or primary focus, and one or more of the other elements will be secondary themes.”

For reasons of judicial independence the curriculum is developed and controlled by judges themselves, and learning is not assessed. Do you have any views about Judicial Education in these terms, or would you be inclined to modify it in any way (how)?

From Court to College Appendices 369 In the Leximancer analysis the themes emergent from the responses (left) were strongly related to judgments (not surprisingly, since that is the central role of the judge: making and justifying judgments).

Concepts occurring within those themes are shown (right) as a topical network of concepts-in-use that establish the outlines of a schema of JE in the minds of a Bar relatively uninformed of its detailed contents, but primed by the earlier survey questions.

SECTION 6 – Formal permissions, closing off of survey Not discussed here

From Court to College Appendices 370 Appendix B: The Changing Constitution of SCV Benches 18522012

There were five in the bed, and the little one said: ‘Roll over!’ So they all rolled over, and one fell out There were four in the bed and the little one said: ‘Roll over!’ So they all rolled over, and one fell out … – Children’s nursery rhyme

In a repeated movement, a retirement from the bench makes way for a fresh appointment; everyone moves up a level in seniority (longest-serving judge on the bench) and a new member comes in at the bottom. Thus the Court is constantly renewed, yet a core of seniority remains to temper fresh minds with the experience of the past. Tracing the movements on and off the bench gives a clear sense of the relative stability of the system over time. Sir Thomas a’Beckett, son of the first Chief Justice, Sir William a’Beckett, served for 31 years after his appointment at age 50. Very long-serving judges can span the benches of more than one CJ: for example, although Hood served under Madden for 27 years, he also sat on the benches of Higinbotham (before Madden) and Irvine (afterwards). Sir Charles Lowe served for 37 years after his appointment at age 47, retiring at 84 (to a’Beckett’s 81) and then spending a further 5 years in retirement. Lowe was present for half the Irvine Bench, saw out Mann CJ and Herring CJ, and retired at the end of January 1964, missing the start of Winneke CJ’s term by only a few months. The systemic stability and tight couplings enabled by this kind of continuity are obvious.

The tables in this Appendix show the constitution of each of the 10 Benches of the SCV between the first in 1852 and the Warren Bench of 2012 (the current Chief Justice, Warren, took office at the end of 2003). The bench lists do not include Masters (Associate Judges). The information has been taken from the Supreme Court website1 cross-checked against A Short Account of The Supreme Court of Victoria and of the Law Courts and the Supreme Court Library (SCVLC 1976) and the official Victorian Law Reports and Victorian Reports. In this Appendix each Bench is designated by Chief Justice, numbered

1 See following menu path About the Court/History/Judges, last accessed 21 December 2012.

From Court to College Appendices 371 consecutively. Thus the first a’Beckett Bench is Bench 1 (a’Beckett). Similarly, the current Warren Bench is called Bench 11 (Warren), as Warren CJ is the 11th chief justice.

Sub-benches within a Bench are defined according to periods during which those benches remained constituted in the same way. I have borrowed this approach from partnership law, which provides that a partnership is re-constituted each time a partner leaves or a new partner is accepted into the partnership. Just as any change of partners has the effect of ending the old partnership and reconstituting a new partnership, so in this dissertation any change of judges re-constitutes the bench. Each reconstitution within the period of office of a particular chief justice is thus seen as a sub-bench. The a’Beckett bench, Bench 1, has two sub-benches: Bench 1A, constituted by a’Beckett CJ with Barry J and Williams J. (lasting from 1852 to 1855) and Bench 1B, the bench resulting from the reconstitution caused by Molesworth J taking office. Bench 1B was a combination of judges that lasted only until the next change, when the loss of a’Beckett CJ and the appointment of Stawell as the new chief justice – thus creating Bench 2A (Stawell), the first bench of the new chief justice.

In this tabulation, the minimum period over which sub-benches are distinguished is 1 year. For an organizational lifetime spanning more than 150 years, 1 year was chosen as the unit of analysis that would give the most coherent picture of the changes in the various benches over time. This level of detail gives between 2 and 15 differently constituted benches for each chief justice (numbered 1A, 1B etc). However, adopting 1 year as the minimum unit inevitably leads to conflation of what would otherwise be separate benches. For example, within (sub-) Bench 3D, Justice Kerferd leaves the Bench and Justice Hood arrives. There is no way of telling from this analysis whether two or three sub-benches are involved, as the changes are dealt with as if they occur together at some unspecified time during the year. However, although I group together all changes that occur in a single year, the sub-bench for 1 year (given as, for example 3D) could of course be further divided, if a more fine-grained analysis is required, into (for example) 3D(i), 3D(ii), and 3D(iii), to reflect shorter periods within the year when the Bench concerned was differently constituted. Thus if judges 1 and 2 depart and arrive at the same time, the sub-benches in that year would be two in number: sub-bench (i) covering the period when judge 1 is in office without judge 2;

From Court to College Appendices 372 and sub-bench (ii) covering the period after judge 1 leaves. But if judge 2 arrives in March and judge 1 leaves in July, the benches in that year would number 3: sub-bench (i) covering the period when judge 1 is in office without judge 2; sub-bench (ii) covering the period when both are present; and sub-bench (iii) covering the period after judge 1 leaves.

Conversely, a change of CJs causes two benches to be constituted in the one year, unless the new bench commenced at the start of a new year. Although the number of designated benches, if totalled (1A,B, 2A,B,C etc), would exceed in number the total number of years in the SCV’s history, this is not material to the dissertation; in an analysis based on the Bench itself, the date ranges are secondary to the various constitutions of the benches under each chief justice.2 Thus for my purposes a ‘Bench’ as a unit of analysis is equivalent to a full year except at the start and end of the period, but any year in which there is a change of chief justices will be recorded as two separate benches (unless the CJ took office or left office in January or December respectively).

On the other hand, the fact that under this system a part-year bench is listed as present in a certain year can make a term of office appear longer than it is in reality. For example, Table AxE06 shows that Mann, who had been on the bench since 1919, took office as CJ in October 1935, and retired in January 1944. The bare year dates give the impression of a full decade at the helm, when in fact the term is closer to 9 years. As another example, a’Beckett CJ left the bench in January 1857 and his successor Stawell CJ took office in February. Bench 1B (a’Beckett) is shown in graphical treatments in this dissertation as lasting 1 year (1856), whereas the more fine-grained analysis would introduce sub-sub-benches for 1857, showing separate benches for each movement and adding another two months to a’Beckett’s Bench. Again, this is not material to the broader discussion, and when specific dates are relevant, they are noted.

2 In fact, making finer-grained distinctions than this would be misleading, as they would imply a greater level of significance for each minor change in constitution than is warranted by the known facts. And at what point, for example, do we consider a judge’s extended absence on holiday, or sick leave, a change so important as to amount to a different constitution of the bench? On the other hand, a broader-brush approach (examining only the 11 major benches, rather than considering sub-benches) would lead to significant omissions. The level of detail offered is thus, as always, a matter of balancing competing concerns. In addition, observations about specific changes may be made in cases where that is warranted, and more is known about the bench concerned.

From Court to College Appendices 373 Between 1852 and 1880 only five judges (Barry, Williams 1, Molesworth, Fellows, and Stephen 1) and two chief justices (a’Beckett and Stawell) had sat on the court. Then the 1880s – boom times for ‘Marvellous Melbourne’ – saw benches to which Higinbotham, Williams 2, Holroyd, Kerfed, Webb, a’Beckett 2, Hodges, and Hood were appointed; after that flurry of appointments, the Higinbotham and Madden courts remained stable in their constitution (apart from retirements) throughout the 1890s and for the first few years of the new century, until the appointment of Cussen in 1906 (the year of Holroyd’s retirement at the age of 78 after 25 years on the bench). Hodges and Hood – the sole remnants of the earlier benches after a’Beckett 2, appointed in 1887, had retired in 1917 – were both at the end of long terms after the First World War, and neither remained for long beyond it; Hodges died at age 75 in 1919, while Hood retired in 1921 at age 75, and died a year later. A further period of stability followed, with no new appointments until Mann took office in 1919, followed by three appointments in the 1920s (McArthur, Macfarlane, and Lowe, who were to serve 14, 27 and 37 years respectively).

The 1930s saw the arrival of Gavan Duffy, Martin, and O’Bryan 1 (28, 23, and 27 years’ service respectively); during the 1940s another three (Fullagar 1, Barry, and Dean) joined the Bench. The period between the wars and through the 1950s (1919 to 1950) can be seen as one of the most stable in the court’s history, apart from the three- member benches at the court’s inception. During this 40-year long ‘golden age’ (Dean 1968) a core of only a dozen or so judges, under chief justices Irvine, Mann, and Herring, sat on the court. They were, in order of appointment: Cussen, Schutt, [Mann], McArthur, Macfarlane, Lowe, Gavan Duffy, Martin, O’Bryan 1, Fullagar 1, Barry, and Dean.

Fullagar 1, Barry and Dean joined in the mid-to-late 1950s; Fullagar (Sir Wilfred) left for the High Court after 5 years on the bench,3 but Barry and Dean served longer terms. Chief justices Irvine and Herring were appointed straight from the Bar; Mann served as a judge of the court for 16 years before taking up his appointment as CJ in 1935. These judges saw a period of certainty and stability that coincided with a small but strong, cohesive Bar, a firm trust in the liberal legal tradition and the rule of

3 His son, Fullagar 2 (Richard) served on the court for 20 years, from 1975.

From Court to College Appendices 374 law, and a court at the height of its reputation. Another flurry of appointments during the 1950s saw Sholl, Smith 1, Hudson, Monahan, Pape, Adam, and Little taking their places on the court.

The pace of change in society as a whole during the years that followed had its counterpart in the life of the Supreme Court. Between 1963 (the second year of the penultimate Herring bench, 7J) and 1980, not a year passed without changes to the bench. Uncharacteristically, Bench 9G (Young) lasted for two years (1980 and 1981), when 19 judges served together: Starke, McInerney, Lush, Anderson, Crockett, Kaye 1, Murray, Fullagar 2, Jenkinson, McGarvie, O'Bryan 2, Brooking, Marks, Gray, King 1, Beach, Gobbo, Southwell, and Tadgell, but the arrival of Nicholson in 1982 resulted in a reconstitution as Bench 9I (Young), and since then no sub-Bench has remained unchanged for more than a year. Although frequent reconstitutions do not by themselves indicate lack of stability or continuity, the introduction of the retirement age of 72, then 70, does means that a judge appointed at, say, age 50, as was Molesworth, cannot now attain 30 years of service by retiring at age 80 as he did. Long years of service and experience of that extent are unlikely ever again to provide a stable core of quite the same kind in the future. In addition, the larger pool of judges on the bench at any one time means there is more likelihood of comings-and-goings, less opportunity to build a relationship with every other judge on the bench, and more likelihood of personality-based sub-groups forming. A small, familiar bench is more like a family unit, with the same kinds of pressures of proximity and dissonances that cannot be escaped and therefore must be overcome or managed. To think about the ‘way of being together’ on a Bench  what I call its ménage (See Appendix C) is relational, and quite different from considering, say, team roles or personalities.

Sir John Young, Chief Justice from 1974 to 1991, saw 18 differently constituted benches over 17 years, with an astonishing total of 49 different judges on his benches. But the rate of change was to accelerate again for the next Chief Justice, J.H. Phillips, who saw 13 benches between December 1991 and his retirement in October 2003, with 54 different judges sitting in those 12 years.

Quite apart from changes in the court’s work – its content, complication, load, technology, and expertise required – as well as changing management demands and all the other changes that have occurred more widely in society over 150 years, the

From Court to College Appendices 375 contrast between the benches managed by a modern chief justice and those of the founders of the court – Sir William a’Beckett (with 3 judges in two benches over 5 years) and Sir William Stawell (one bench of 3 judges lasting 15 years and a total of 8 judges in 8 differently constituted benches to deal with over a 29-year tenure) could not be more stark.

The first female judge, Balmford, was not appointed until 1996 (names of women appointed are given in bold type).

Although the current Chief Justice was appointed only in November 2003, she had already worked with 37 different judges in 4 sub-Benches by August 2006. The contrast between Table Ax6 and Ax11 is marked.

In addition to these tables, I prepared Excel charts showing the movements on and off the Benches. I laminated these and showed them to the judges interviewed. The judges showed considerable interest in the changing nature of the benches (see [6.4.1]), and several found it an extraordinary expression of change that had not until then been made salient to them.

The chart in Figure AxE.1 (below) shows the relative ages of all 46 judges appointed between 1852 and 1968 (starting with Sir Redmond Barry, appointed at age 39 and on the Bench for 28 years, and ending with Dunn J, appointed at age 63 and on the Bench for 9 years). The effect that mandatory retirement at age 70 would have had on the longevity of several of the early judges’ careers is clear. The close range at point 44 of 46 (to the right of the chart) is Sir Ninian Stephen, who was on the Bench for only 2 years before being appointed to the High Court. One of the first women appointed, Justice Kenny (199899), moved from SCV to the Federal Court after 2 years (not shown). Hayne J (199297, also not shown) was on the SCV Bench for 6 years before his appointment to the High Court. Another judge who was appointed from SCV to the High Court was Fullagar 1. Sir Owen Dixon does not appear in these lists because he went to the High court straight from the Bar, although he acted as a judge of SCV for a short time before that appointment.

See Campbell and Lee’s (2001) The Australian Judiciary for discussion of appointment practices, and generally.

From Court to College Appendices 376 Figure AxE.1: Age at appointment and term of office, appointments to SCV 18521984

(x axis = years of age, y axis = date; term = period between ages at appointment and retirement)

Periods on the bench are getting shorter, and shared with more judges than previously. Life experience before the bench (blue) is proportionately greater. This chart was prepared in 2007, and at that time a line had to be drawn at 1984, since only ‘completed benches’ (those consisting only of judges no longer serving at the time of preparation of the graph) could be included, and there were judges currently on the Bench who had been appointed in 1985. Repeating this exercise for later dates in the future will improve knowledge of the changing contexts of judicial terms of office.

To put the research into context, I interviewed 14 judges on Bench 11F, but since the preparations were done before the last 5 were appointed, I invited only 35. Fourteen of those accepted, and a fifteenth was willing but away at the time and the interview did not eventuate. While 40% is an excellent response rate from those invited, this is put into perspective by the fact that over the history of the court there were 92 differently constituted benches, each with a somewhat different ménage, and I spoke briefly, on one occasion, to less than half of the members of one of those 92 benches. Further, it leaves the County Court and Magistrates’ Court, the workhorses of the court system  not to mention tribunals untouched.

Thus, while my thesis presses the need for constant recalling of context, the diffuse background and its interconnections (since “pragmatism’s conception of inquiry (in any sphere, not just in philosophy) [is] a response to particular historical circumstances” [Rorty in LWv08:xi]) it also demonstrates the force of the necessity to cut, and focus, and filter, and select, in order to think about anything.

From Court to College Appendices 377 Eleven Benches under eleven Chief Justices of SCV

Table Ax00: List of benches

Bench Chief Justice Bench Period (Term of Chief Justice) and sub- benches

1A–B William à Beckett 19 January 1852 – 20 February 1857

2A–H William Foster Stawell 25 February 1857 – 24 September 1886

3A–E George Higinbotham 24 September 1886 – 31 December 1892

4A–E John Madden 9 January 1893 – 10 March 1918

5A–G William Irvine 9 April 1918 – 30 September 1935

6A–B Frederick Mann 1 October 1935 – 31 January 1944

7A–K Edmund Herring 2 February 1944 – 1 September 1964

8A–K Henry Winneke 2 September 1964 – 31 May 1974

9A–Q John McIntosh Young 1 June 1974 – 16 December 1991

10A–M John Harber Phillips 17 December 1991 – 17 October 2003

11A–J Marilyn Warren 26 November 2003 – June 2018

From Court to College Appendices 378 Table Ax01: The a’Beckett Benches

Bench Year (1st) CJ Judges

1852 a'Beckett 1 Barry 1 – Williams 1 1A

1856 a'Beckett 1 Barry 1 – Williams 1 – Molesworth 1B

Table Ax02: The Stawell Benches

Bench Year (1st) CJ Judges

2A 1857 Stawell Barry 1 – Williams 1 – Molesworth

2B 1872 Stawell Barry 1 – Williams 1 – Molesworth – Fellows

2C 1874 Stawell Barry 1 – Williams 1 – Molesworth – Fellows – Stephen 1

2D 1875 Stawell Barry 1 – Molesworth – Fellows – Stephen 1

2E 1879 Stawell Barry 1 – Molesworth – Stephen 1

2F 1880 Stawell Barry 1 – Molesworth – Stephen 1 – Higinbotham

2G 1881 Stawell Molesworth – Stephen 1 – Higinbotham – Williams 2 – Holroyd

2H 1882 Stawell Molesworth – Higinbotham – Williams 2 – Holroyd

From Court to College Appendices 379 Table Ax03: The Higinbotham Benches

Bench Year (1st) CJ Judges

3A 1886 Higinbotham Molesworth – Williams 2 – Holroyd

3B 1887 Higinbotham Williams 2 – Holroyd – Kerferd – Webb – a’Beckett 2

3C 1889 Higinbotham Williams 2 – Holroyd – Kerferd – Webb – a’Beckett 2 – Hodges

3D 1890 Higinbotham Williams 2 – Holroyd – Webb – a’Beckett 2 – Hodges – Hood

3E 1892 Higinbotham Williams 2 – Holroyd – a’Beckett 2 – Hodges – Hood

Table Ax04: The Madden Benches

Bench Year (1st) CJ Judges

4A 1893 Madden Williams 2 – Holroyd – a’Beckett 2 – Hodges – Hood

4B 1904 Madden Holroyd – a’Beckett 2 – Hodges – Hood

4C 1906 Madden Holroyd – a’Beckett 2 – Hodges – Hood – Cussen

4D 1907 Madden a’Beckett 2 – Hodges – Hood – Cussen

4E 1918 Madden Hodges – Hood – Cussen

From Court to College Appendices 380 Table Ax05: The Irvine Benches

Bench Year (1st) CJ Judges

5A 1918 Irvine Hodges – Hood – Cussen

5B 1919 Irvine Hodges – Hood – Cussen – Schutt – Mann

5C 1920 Irvine Hood – Cussen – Schutt – Mann – McArthur

5D 1922 Irvine Cussen – Schutt – Mann – McArthur – Macfarlane

5E 1927 Irvine Cussen – Mann – McArthur – Macfarlane – Lowe

5F 1933 Irvine Cussen – Mann – McArthur – Macfarlane – Lowe – Gavan Duffy

5G 1934 Irvine Mann – McArthur – Macfarlane – Lowe – Gavan Duffy – Martin

5H 1935 Irvine Mann – Macfarlane – Lowe – Gavan Duffy – Martin

Table Ax06: The Mann Benches

Bench Year (1st) CJ Judges

6A 1935 Mann Macfarlane – Gavan Duffy – Martin

6B 1939 Mann Macfarlane – Gavan Duffy – Martin – O’Bryan 1

From Court to College Appendices 381 Table Ax07: The Herring Benches

Bench Year (1st) CJ Judges

7A 1944 Herring Macfarlane – Lowe – Gavan Duffy – Martin – O’Bryan 1

7B 1945 Herring Macfarlane – Lowe – Gavan Duffy – Martin – O’Bryan 1 – Fullagar

7C 1947 Herring Macfarlane – Lowe – Gavan Duffy – Martin – O’Bryan 1 – Fullagar – Barry 2

7D 1949 Herring Macfarlane – Lowe – Gavan Duffy – Martin– O’Bryan 1 – Fullagar – Barry 2 – Dean

7E 1950 Herring Lowe – Gavan Duffy – Martin– O’Bryan 1 – Fullagar – Barry 2 – Dean – Scholl – Smith 1 – Hudson

7F 1951 Herring Lowe – Gavan Duffy – Martin– O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson

7G 1955 Herring Lowe – Gavan Duffy – Martin– O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan

7H 1958 Herring Lowe – Gavan Duffy – O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan – Pape

Lowe – Gavan Duffy – O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan –Pape – 7I 1959 Herring Adam – Little

Lowe – O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan – Pape – 7J 1962 Herring Adam – Little – Gowans – Gillard 1

Lowe – O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan – Pape – 7K 1964 Herring Adam – Little – Gowans – Gillard 1 — Starke — Barber

From Court to College Appendices 382 Table Ax08: The Winneke Benches

Bench Year (1st) CJ Judges (* 8K Young: 1 month as a judge of the court before being appointed as CJ in June)

Lowe – O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan – Pape – Adam – Little – 8A 1964 Winneke Gowans – Gillard 1 — Starke — Barber O’Bryan 1 – Barry 2 – Dean – Scholl – Smith 1 – Hudson – Monahan – Pape – Adam – Little – Gowans – 8B 1965 Winneke Gillard 1 — Starke — Barber — McInerney O’Bryan 1 – Barry 2 – Scholl – Smith 1 – Hudson – Monahan – Pape – Adam – Little – Gowans – Gillard 1 8C 1966 Winneke — Starke — Barber — McInerney – Lush – Menhennit Barry 2 – Smith 1 – Monahan – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — 8D 1967 Winneke McInerney – Lush – Menhennit – Newton 8E 1968 Winneke Barry 2 – Smith 1 – Monahan – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Norris, Dunn (acting) 8F 1969 Winneke Barry 2 – Smith 1 – Monahan – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Dunn (acting) 8G 1970 Winneke Smith 1 – Monahan – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Stephen 2 8H 1971 Winneke Smith 1 – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Stephen 2 8I 1972 Winneke Smith 1 – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Kaye 1 8J 1973 Winneke Smith 1 – Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Kaye 1 – Norris – Dunn – Murphy – Harris 8K 1974 Winneke Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Kaye 1 – Norris – Dunn – Murphy – Harris – Young* – Murray

From Court to College Appendices 383 Table Ax09: The Young Benches

Bench Year (1st) CJ Judges Pape – Adam – Little – Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – 9A 1974 Young Newton – Nelson – Anderson – Crockett – Kaye 1 – Norris – Dunn – Murphy – Harris –Murray Pape –Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – 9B 1975 Young Anderson – Crockett – Kaye 1 – Norris – Dunn – Murphy – Harris – Murray – Fullagar 2 – Jenkinson – Griffith Gowans – Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – 9C 1976 Young Anderson – Crockett – Kaye 1 –Dunn – Murphy – Harris – Murray – Fullagar 2 – Jenkinson – Griffith – McGarvie Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Newton – Nelson – Anderson – Crockett – Kaye 1 –Dunn – Murphy – Harris – Murray – Fullagar 2– 9D 1977 Young Jenkinson – Griffith – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1

Gillard 1 — Starke — Barber — McInerney – Lush – Menhennit – Anderson – Crockett – Kaye 1 – 9E 1978 Young Murphy – Harris – Murray – Fullagar 2 – Jenkinson –McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo Starke —McInerney – Lush – Menhennit – Anderson – Crockett – Kaye 1 –Murphy – Murray – Fullagar 9F 1979 Young 2 – Jenkinson – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo Starke —McInerney – Lush – Anderson – Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – 9G 1980 Young Jenkinson – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo – Southwell – Tadgell Starke —McInerney – Lush – Anderson – Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – 9H 1981 Young Jenkinson – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson Starke —McInerney – Lush – Anderson – Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – 9I 1982 Young Jenkinson – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo – Southwell

From Court to College Appendices 384 – Tadgell – Nicholson Starke —McInerney – Lush – Anderson – Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – 9J 1983 Young McGarvie –O’Bryan 2 – Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson – Hampel – Ormiston – Nathan Starke – Anderson – Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – 9K 1984 Young Brooking – Marks – Gray – King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson – Hampel – Ormiston – Nathan – Phillips 1 – Vincent Starke – Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks 9L 1985 Young – Gray – King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson – Hampel – Ormiston – Nathan – Phillips 1 – Vincent Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – 9M 1986 Young King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson – Hampel – Ormiston – Nathan – Phillips 1 – Vincent Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – 9N 1987 Young King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – 9O 1988 Young King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Nicholson – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague – Cummins – McDonald Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – 9P 1989 Young King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague – Cummins – McDonald Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – Gray – 9Q 1990 Young King 1 – Beach 1 – Gobbo – Southwell – Tadgell – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley Young/Phillips Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – King 1 9R 1991 (Dec) – Beach 1 – Gobbo – Southwell – Tadgell – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne

From Court to College Appendices 385 Table Ax10: The Phillips Benches

Bench Year (1st) CJ Judges Crockett – Kaye 1 –Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – King 1 10A 1991 Phillips (Dec) – Beach 1 – Gobbo – Southwell – Tadgell – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne Crockett – Murphy – Murray – Fullagar 2 – McGarvie –O’Bryan 2 – Brooking – Marks – Beach 1 – 10B 1992 Phillips Gobbo – Southwell – Tadgell – Hampel – Ormiston – Nathan – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Hayne – Eames Crockett – Murray – McGarvie –O’Bryan 2 – Brooking – Marks – Beach 1 – Gobbo – Southwell – 10C 1993 Phillips Tadgell – Hampel – Ormiston – Nathan – Phillips 1 – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Hayne – Eames Crockett – Murray – Brooking – Marks – Beach 1 – Gobbo – Southwell – Tadgell – Hampel – Ormiston 10D 1994 Phillips – Nathan –Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Hayne – Eames – Batt – Hansen – Mandie Crockett –Murray – Brooking – Beach 1 – Southwell – Tadgell – Hampel – Ormiston – Nathan – 10E 1995 Phillips Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Hayne – Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway Crockett –Murray – Brooking – Beach 1 – Southwell – Tadgell – Hampel – Ormiston – Nathan – 10F 1996 Phillips Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Hayne – Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway – Balmford Murray – Brooking – Beach 1 – Southwell – Tadgell – Hampel – Ormiston – Nathan – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper 10G 1997 Phillips – Hayne – Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway – Balmford – Gillard 2 – Chernov – Buchanan Murray – Brooking – Beach 1 – Tadgell – Hampel – Ormiston – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper –Eames – Batt – 10H 1998 Phillips Hansen – Mandie – Winneke 2 – Charles – Callaway – Balmford – Gillard 2 – Chernov – Kenny – Buchanan – Kellam – Warren

From Court to College Appendices 386 Brooking – Beach 1 – Tadgell – Hampel – Ormiston – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Mandie 10I 1999 Phillips – Winneke 2 – Charles – Callaway – Balmford – Gillard 2 – Chernov – Kenny – Buchanan – Kellam – Warren Brooking – Beach 1 – Tadgell – Hampel – Ormiston – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Mandie 10J 2000 Phillips – Winneke 2 – Charles – Callaway – Balmford – Gillard 2 – Chernov – Buchanan – Kellam – Warren – Bongiorno Brooking – Beach 1 – Tadgell – Ormiston – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Hedigan – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Mandie – Winneke 10K 2001 Phillips 2 – Charles – Callaway – Balmford – Gillard 2 – Chernov – Buchanan – Kellam – Warren – Bongiorno – Habersberger – Flatman – Pagone Brooking – Beach 1 – Ormiston – Vincent – Teague – Cummins – McDonald – Smith 2 – Phillips 2 – Ashley – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway 10L 2002 Phillips – Balmford – Gillard 2 – Chernov – Buchanan – Kellam – Warren – Bongiorno – Habersberger – Flatman – Pagone – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 Phillips/ Beach 1 – Ormiston – Vincent – Teague – Cummins – Smith 2 – Phillips 2 – Ashley – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway – Balmford – Gillard 2 – 10M 2003 Warren Chernov – Buchanan – Kellam – Warren – Bongiorno – Habersberger – Osborn – Nettle – Dodds- (Oct/Nov) Streeton – Redlich – Williams 3 – Morris – Kaye 2

Table Ax11: The Warren Benches

Beach 1 – Ormiston – Vincent – Teague – Cummins – Smith 2 – Phillips 2 – Ashley – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway – Balmford – Gillard 2 – 11A 2003 Warren Chernov – Buchanan – Kellam – Bongiorno – Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 – Morris – Kaye 2 Ormiston – Vincent – Teague – Cummins – Smith 2 – Phillips 2 – Ashley – Coldrey – Byrne – Harper – 11B 2004 Warren Eames – Batt – Hansen – Mandie – Winneke 2 – Charles – Callaway – Gillard 2 – Chernov – Buchanan – Kellam – Bongiorno – Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 –

From Court to College Appendices 387 Morris – Kaye 2 – Whelan – Hollingworth Ormiston – Vincent – Teague – Cummins – Smith 2 – Ashley – Coldrey – Byrne – Harper – Eames – Batt – Hansen – Winneke 2 – Charles – Callaway – Gillard 2 – Chernov – Buchanan – Kellam – Warren 11C 2005 Warren – Bongiorno – Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 – Morris – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – Maxwell Ormiston – Vincent – Teague – Cummins – Smith 2 – Ashley – Coldrey – Byrne – Harper – Eames – Hansen – Charles – Callaway – Gillard 2 – Chernov – Buchanan – Kellam – Warren – Bongiorno – 11D 2006 Warren Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 – Morris – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – Maxwell – Neave – Cavanough – Curtain Vincent – Teague – Cummins – Smith 2 – Ashley – Coldrey – Byrne – Harper – Eames – Hansen – Callaway – Gillard 2 – Chernov – Buchanan – Kellam – Warren – Bongiorno – Habersberger – Osborn – 11E 2007 Warren Nettle – Dodds-Streeton – Redlich – Williams 3 – Morris – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – Maxwell – Neave – Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry Vincent – Teague – Cummins – Smith 2 – Phillips 2 – Ashley – Coldrey – Byrne – Harper – Hansen – Chernov – Buchanan – Kellam – Warren – Bongiorno – Habersberger – Osborn – Nettle – Dodds- Streeton – Redlich – Williams 3 – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – 11F 2008 Warren Maxwell – Neave – Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry – Judd – Vickery – Kyrou – Weinberg – Beach 11F = the Bench current at time of interviews. Fourteen of these judges interviewed. Vincent – Cummins – Smith 2 – Ashley – Byrne – Harper – Hansen – Buchanan – Kellam – Bongiorno – Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 – Kaye 2 – Whelan – 11G 2009 Warren Hollingworth – Bell – Hargrave – King 2 – Maxwell – Neave – Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry – Judd – Vickery – Kyrou – Weinberg – Beach – Davies – Forrest 2 – Emerton – Ross – Croft Ashley – Byrne – Harper – Hansen – Buchanan – Bongiorno – Habersberger – Osborn – Nettle – Dodds-Streeton – Redlich – Williams 3 – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 11H 2010 Warren – Maxwell – Neave – Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry – Judd – Vickery – Kyrou – Weinberg – Beach – Davies – Forrest 2 – Emerton – Ross – Croft – Ferguson – Sifris – Almond – Tate – Dixon – Macaulay

From Court to College Appendices 388 Ashley – Harper – Hansen – Buchanan – Bongiorno – Habersberger – Osborn – Nettle – Redlich – Williams 3 – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – Maxwell – Neave – 11I 2011 Warren Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry – Judd – Vickery – Kyrou – Weinberg – Beach – Davies – Forrest 2 – Emerton – Ross – Croft – Ferguson – Sifris – Almond – Tate – Dixon – Macaulay Ashley – Harper – Hansen – Buchanan – Bongiorno – Habersberger – Osborn – Nettle – Redlich – Williams 3 – Kaye 2 – Whelan – Hollingworth – Bell – Hargrave – King 2 – Maxwell – Neave – 11J 2012 Warren Cavanough – Curtain – Pagone – Coghlan – Robson – Forrest 1 – Lasry – Judd – Vickery – Kyrou – Weinberg – Beach – Davies – Forrest 2 – Emerton – Ross – Croft – Ferguson – Sifris – Almond – Tate – Dixon – Macaulay – McMillan – Garde – Priest – Digby

From Court to College Appendices 389 APPENDIX C

HISTORICAL SURVEY: A SELECTION OF NGRAMS

These Ngrams1 are generated by searches of the corpus of Google Books, available from 1800 to 2008 in English. They are a reasonable proxy for frequency of use of words and phrases generally. They support statements made in Chapter 2 about the historical prevalence of views and concepts in the literature, but they are mainly exploratory and suggestive.

Note: the graphs show relative historical frequency of terms compared directly against each other on one graph, but are not to scale across searches because the frequency counts vary. Data is available to 2008 in this corpus.

NG 1: The terms education, training, professional development, lifelong learning and professional education NG

2: The terms professional development, lifelong learning, and professional education

NG 3: The terms legal education, legal training (legal professional development nil)

NG 4: The terms judicial education and judicial training and judicial scholarship

NG 5: The term confidence in the courts

NG 6: The terms rule of law and law and order

NG 7: The terms mission statement and corporate vision

NG 08: The terms leadership and ethics

NG 9: The terms science, technology, leadership and democracy

NG 10: The terms team, leadership, leader, manager, administrator, teamwork

NG 11: The terms leader/leaders and follower/followers

NG 12: The terms corporate governance, corporate crime, and corporate fraud

NG 13: The terms governance, accountability, transparency

NG 14: The terms values, responsibility, duty, belief, virtue, rationality

NG 15: The terms hear, speak, listen

NG 16: The terms metaphor, analogy, stereotype, trope, simile

1 In each case the source is Google Ngram viewer reviewed 27/09/2015. For an explanation see https://books.google.com/ngrams/info.

From Court to College Appendices 390 NG 17: The terms anxiety and depression (results for the single word ‘depression’ by itself are confounded by economic depression, as a spike at 1929–35 clearly shows)

NG 18: The terms economic growth, rule of law, and law and order

NG 1: Relative frequency of the terms education, training, professional development, lifelong learning and professional education

NG 2: Relative frequency of the terms professional development, lifelong learning, and professional education

From Court to College Appendices 391 NG 3: Relative frequency of the terms legal education, legal training (legal professional development nil)

NG 4: Relative frequency of the terms judicial education and judicial training and judicial scholarship (judicial professional development nil)

From Court to College Appendices 392 NG 5: Frequency of the term confidence in the courts

NG 6: Relative frequency of the terms rule of law and law and order

From Court to College Appendices 393 NG 7: Relative frequency of the terms mission statement and corporate vision

NG 08: Relative frequency of the terms leadership and ethics

From Court to College Appendices 394 NG 9: Relative frequency of the terms science, technology, leadership and democracy

NG 10: Relative frequency of the terms team, leadership, leader, manager, administrator, teamwork

From Court to College Appendices 395 NG 11: Relative frequency of the terms leader/leaders and follower/followers

NG 12: Relative frequency of the terms corporate governance, corporate crime, and corporate fraud

From Court to College Appendices 396 NG 13: Relative frequency of the terms governance, accountability, transparency

NG 14: Relative frequency of the terms values, responsibility, duty, belief, virtue, rationality

From Court to College Appendices 397 NG 16: Relative frequency of the terms hear, speak, listen

NG 15: Relative frequency of the terms metaphor, analogy, stereotype, trope, simile

From Court to College Appendices 398 NG 17: Frequency of the term anxiety and depression (results for the single word ‘depression’ by itself are confounded by economic depression, as a spike at 1929–35 clearly shows)

NG 18: Relative frequency of the terms economic growth, rule of law, and law and order

From Court to College Appendices 399

Minerva Access is the Institutional Repository of The University of Melbourne

Author/s: Mann, Trischa

Title: From court to college: the institutionalisation of judicial education during its first decade in Victoria, 2005–2015

Date: 2018

Persistent Link: http://hdl.handle.net/11343/213894

File Description: From Court to College: The institutionalisation of judicial education during its first decade in Victoria, 2005–2015

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