The future role of the judge - umpire, manager, mediator or service provider?
Judging the future
UNSW Faculty of Law 40th Anniversary Lecture
RTF version - 91 kbI am no soothsayer. As the Hon. Michael Kirby AC CMG once observed, when they are appointed judges receive a small number of benefits but a crystal ball is not one of them.[1]
One man's image of a 21st century judge is Judge Joseph Dredd. Judge Dredd simultaneously served as police officer and judge. He administered instant "justice" using a "Lawgiver" pistol (programmed to recognise his palm print alone), a "daystick", a knife, and stun and gas grenades. He rode a "Lawmaster" motorbike, armed with machine guns, a laser cannon and artificial intelligence.[2] By 2070, when his creator envisaged that the US Constitution will be overthrown, judges like him will also hold supreme political power. This is a scenario the like of which Montesquieu described as "miserable indeed".[3] Judge Dredd is not the judge of the present, although the comic strip was first set in the year 2000. But is he the judge of the future?
Judge Dredd was certainly a service provider.
On the question of service delivery, however, I put myself squarely in the Spigelman camp. When he was New South Wales Chief Justice, the Hon. James Spigelman AC explained that the courts do not deliver a service. He went on:
The courts administer justice in accordance with law. They no more deliver a 'service' in the form of judgments, than the Parliaments deliver a 'service' in the form of statutes.[4]
Referring to the late 20th century obsession with key performance indicators, he noted that efficiency would be enhanced if judges made up their minds before the cases began.
Judge Dredd was particularly efficient. He dispensed with the need for long drawn-out legal tousles - trying, sentencing and executing criminals on the spot. But in the system of justice we value, and which I venture to suggest we will still value forty years hence, judges are not service providers. And while some former judges have made very successful post-retirement careers out of mediation, the role of the judge is not to mediate disputes. It is to adjudicate upon them. That is not to say that the judge should not encourage, facilitate, or indeed, order the mediation of disputes, merely, that in my view mediation is not judges' work.[5]
I do believe, however, that mediation and other alternative forms of dispute resolution will continue to grow in popularity. That is as it should be. The growth of ADR may result in fewer cases coming before the courts or fewer decisions being called for, although, with the corresponding growth in legislation, I doubt it.
In my view what judges do is unlikely to change much over the next 40 years. The mere fact that the judge's role has changed little over centuries supports that conclusion. But some things will change. In the limited time available to me I want to take a look at two of them. There is nothing particularly novel in what I am about to say. Indeed, in his 1983 Boyer lectures Michael Kirby considered some of the same issues. But I do think there is some value in reflecting on these matters again nearly thirty years later.
First, the face of the judiciary in 2051 is likely to be very different to what it is now.
Secondly, the way we do things will be different.
Today, despite the efforts of a number of governments to change it, the typical judge is a white male.
When the Federal Court of Australia was established in 1976 it included no female judges. Indeed, it was another 16 years before the first woman was appointed.
Today, of the 44 judges on our court eight (or 18%) are women, three of whom have been appointed since 2007, one of whom is soon to retire.
Interestingly, in March this year statistics published by the Australian Institute of Judicial Administration showed that of a total of 50 judges on the NSW Supreme Court and Court of Appeal, nine (or 18%) were women.[6] Currently there are 49 and ten women or 20% of the total.
Those figures roughly correspond with the percentage of women at the NSW bar. When I was at law school there was roughly the same percentage of female students.
For decades now, however, female law students have outnumbered and generally outperformed their male counterparts.
From my time at university I remember only one Asian and four indigenous law graduates. Now indigenous Australians and women and men with Asian and also Middle Eastern backgrounds are graduating in law in increasing numbers.
The transition from law student to judge is admittedly not a smooth or an assured one. Nevertheless, and in spite of the slow growth in female numbers, I believe it is only a matter of time before these graduates find their way onto the bench.
It has been a matter of some debate what difference a judge's gender makes. I incline to the view that gender can and often does make a difference and that the difference may be more noticeable when the disparity in numbers is not as great as it has been.
Professor Reg Graycar, amongst others, is sceptical of the notion that things will be different simply as a result of women being on the bench.[7] And she is right to suggest that things could change if there were an improved understanding of what judges know, how we know it and how this shapes our concept of reality. Either way, however, I doubt that a female judge would ever direct a jury that there is nothing wrong with a husband, faced with his wife's refusal to have sex, engaging in a measure of "rougher than usual handling" which may persuade the wife to agree. I also doubt that a female judge would tell a jury a lengthy anecdote (as the trial judge did in that case) about a "mentally deranged" woman making a false accusation of rape against "a respectable married businessman".[8] Justice Gaudron's insights into issues such as valuing damages for gratuitous domestic services plainly had something to do with her gender.[9] The distinguished American judge, Richard Posner, has observed that all judges' personal attributes, including sex and race, influence judging.[10] Associate Justice of the US Supreme Court, Ruth Bader Ginsburg, made a similar observation on her inauguration.[11]
According to two recent US studies of racial and sexual harassment and discrimination cases in the federal courts, both race and gender can make a considerable difference.
One, published in the Yale Law Journal in 2005,[12] involved an empirical analysis of 556 federal appellate cases of sexual harassment and discrimination decided in 1999, 2000 and 2001. Although plaintiffs lost in the vast majority of the cases, they were twice as likely to win when a female judge was on the bench and the results were independent of the ideologies of the judges. The author found that male judges were more likely to find for the plaintiff when at least one female judge was on the panel and adding a female judge more than doubled the probability that the male judge found in favour of the plaintiff in sexual harassment cases and nearly tripled the probability in sex discrimination cases. She predicted that if this pattern were to continue, increasing the gender diversity will have significant implications. If she is right, it seems to me that the implications extend well beyond the courtroom. I agree with Sandra Day O'Connor who said that
for both men and women, the first step in getting power is to become visible to others, and then to put on an impressive show. As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things and we'll all be better off for it.[13]
Moreover, because our experiences are different from our male colleagues, when women come to dominate the courts, the implausible may become plausible. And the law's view of what is reasonable and what common experience tells us may be very different from what it has been.
The second study, an empirical study of over 400 federal workplace racial harassment cases between 1981 and 2003 published in the Washington University Law Review in 2009,[14] demonstrated that, while the overall success rate was low (22%), plaintiffs were 3.3 times more likely to win before African-American judges than before white judges.[15] The authors concluded that in federal courts where non-white judges constituted about one-fifth of sitting judges, race does matter. Their research persuaded them that because African-American judges are likely to have experienced discrimination themselves, they were likely to have an invaluable knowledge and perspective of minority plaintiffs that many, if not all, whites lack.[16]
Let me now turn to the second matter - the way we will do things.
The pace of technological change over the last forty years has been almost frenetic. When I started studying at this law school in 1973 a tablet was something you put in your mouth. Bill Gates had not yet started at Harvard Law School (he dropped out after a year). It was two years after I graduated before the first IBM PC was invented. I had been at the bar four years before Mark Zuckerberg was born. Email and the internet have made profound differences to our lives, let alone the practice of the law or the administration of justice.
Still, sixteen years after Michael Kirby predicted it would become the norm,[17] we are still a long way from welcoming television cameras into the courtroom. Australians do not apparently share the American enthusiasm for televising court proceedings. I think it likely, however, that as courtrooms are increasingly equipped with the technology which allows video recordings of court proceedings and with the growth of cable television, court TV will become a reality. Cases could be streamed and you could watch what is happening over the internet. I suspect, however, that save for the pronouncement of judgments in matters of public interest (such as occurred in the case of the waterfront dispute) we will not see live telecasts in this country for a very long time, if at all.
One obvious benefit of the new technology is the ready availability of both legislation and judgments, many of them at no cost.
We will see significant improvements in speech recognition software, making simultaneous transcripts a real possibility. Searchable video recordings of evidence may become the order of the day.
But the new technology presents almost as many challenges as it provides solutions. Electronic discovery is a case in point. Moreover, the use of search engines may actually obfuscate the judge's task, for it will create new opportunities for hiding information.
In a speech earlier this year, the Hon John Doyle AC, the then Chief Justice of South Australia, pointed out that technology is challenging our system of trial. Now, as he observed, judges, witnesses and advocates need not be in same room. Bail applications are routinely heard by video link from the gaols. Witnesses often give evidence and some parties occasionally present argument by video link. Complainants in sexual offence trials routinely give evidence from external locations. Their evidence in chief is recorded at the police station and played to the jury.
In our court we provide a facility for parties and their legal representatives to participate in a virtual courtroom where pre-trial directions and other orders can be made.
Chief Justice Doyle considered that the virtual courtroom would be the norm by the end of the century.[18]
My own ability to forecast the future is not so acute. I do not doubt that technology will continue to open up new pathways. Nor do I doubt that there will be pressure to avoid coming to court when technology permits the court to come to you. There is a great deal to be said for conducting uncontentious matters electronically. It is cheaper and generally more efficient. But, despite the attraction of hearing cases through a laptop from a remote location, where there is a genuine dispute any move to eliminate the real courtroom should be resisted. The more informal the communication becomes, the more ordinary it is, the less powerful its impact, and the greater the reduction in the authority of the court and the respect for its decisions.
Whatever the future may bring, however, we must be alert to ensure that it does not bring us Judge Dredd.
[1] Judge of the Federal Court of Australia and Additional Judge of the Supreme Court of the Australian Capital Territory.
[1] Michael Kirby Boyer Lectures 1983: The Judges, p 70
[2] Colin M. Jarman and Peter Acton, Judge Dredd: The Mega-History, Lennard Publishing, 1995
[3] Montesquieu C, The Spirit of Laws (Legal Classics Library, Gryphon Editions Ltd, 1984).
[4] JJ Spigelman, Seen to be Done: The Principle of Open Justice, Keynote Address to the 31st Australian Legal Convention Canberra, 9 October 1999
[5] In a speech delivered in Beijing earlier this year Spigelman CJ raised some other concerns about judicial mediation: JJ Spigelman AC, "Judicial mediation in Australia", National Judicial College, Beijing, 25-28 April 2011: http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speeches#CJ
[6] http://www.aija.org.au/gender-statistics.html
[7] Reg Graycar, "The Gender of Judgments: An Introduction", September 2009, Sydney Law School, p 269
[8] See now Question of Law Reserved on Acquittal Pursuant to Section 351(1A) Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214.
[9] Van Gervan v Fenton (1992) 175 CLR 327 where her Honour characterised one of the respondent's submissions, which she emphatically rejected, as equating a wife to an indentured domestic servant.
[10] Richard A Posner, How Judges Think, Harvard University Press, 2008, at 369-70
[11] Valparaiso University Law Review, Vol. 28, No. 4 [1994], Art. 1
[12] Jennifer L. Peresie, "Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts", Yale Law Journal, Vol 114, p 1759
[13] Sandra Day O'Connor, Address to the 1990 Sixteenth Annual Olin Conference:
Women in Power (Nov. 14, 1990), quoted with approval by Ruth Bader Ginsberg in her 20076 address on the progress of women on the bar and the bench published in Volume 30 of the Harvard Journal of Law and Gender
[14] Pat K Chew & Robert E Kelley, "Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases", Washington University law Review, (2009) Vol 86, p 1117
[15] Ibid at p 1156.
[16] Ibid at p 1162
[17] M D Kirby, "Forum: Televising Court Proceedings" (1995) 18 University of New South Wales
Law Journal 483,485.
[18] The Hon. John Doyle AC, Chief Justice of South Australia, 21st Century Advocacy? Speech to the 2011 Advocacy Conference, 4 February 2011
