A Century of Citation Practice on the Supreme Court of Victoria

By Fausten, Dietrich; Nielsen, Ingrid et al. | Melbourne University Law Review, December 2007 | Go to article overview

A Century of Citation Practice on the Supreme Court of Victoria


Fausten, Dietrich, Nielsen, Ingrid, Smyth, Russell, Melbourne University Law Review


[Examination of citations contained in the written record of judicial decisions provides used insights into the evolution of the jurisprudence and policy of particular courts, and of the judges who make significant contributions to those courts. This article examines the citation practice of the Supreme Court of Victoria over the century 1905-2005 at 10-year intervals. It employs the McCormick taxonomy of citations, which distinguishes between consistency, hierarchical, coordinate and deference citations and also tracks citations to secondary authorities. The major findings of the study are that the length of judgments and the number of authorities cited by the Court have increased over time, and that consistency and hierarchical citations have been the dominant form of allusion to prior authority.]

CONTENTS

I   Introduction
II  Rationale for Citing Authorities
       A Consistency Citations
       B Hierarchical Citations
       C Coordinate Citations
       D Deference Citations
       E Secondary Authorities
III Data Collection and Methodology
IV  Output of the Supreme Court of Victoria
V   Trends in the Citation Practice of the Supreme Court of Victoria
       A Consistency and Hierarchical Citations
       B Coordinate Citations
       C Deference Citations
       D Secondary Authorities
VI  Citation Practice of Individual Judges
VII Conclusion

I INTRODUCTION

A defining feature of judicial power in Australia, as throughout most of the common law world, is that appeal court judges are required to give written reasons for their decisions. (1) Lord Denning has stated that giving written reasons is 'the whole difference between a judicial decision and an arbitrary one'. (2) These written reasons are typically supported by citation to previous authorities. Citation to previous authorities provides a means for judges to relate their reasons back to their previous decisions and the decisions of other courts. This practice provides protection against arbitrary decision making. As Lawrence Friedman and his colleagues put it, judges are expected to decide 'according to the law', which means 'they are not free to decide cases as they please, [but instead] are expected to invoke appropriate legal authority for their decisions'. (3) Citations to previous authorities are therefore one way for judges to give their decisions legitimacy. (4) This is important because legitimacy is seen by some as affecting the reactions of the other branches of government to judicial policies. (5)

Judicial citation practice provides a window into the courts--and even the judges--which are making the most important contributions to the evolution of the judicial branch's jurisprudence and policy. (6) In this respect, William M Landes and Richard A Posner postulated that the number and average age of citations are important indicators of a court's use of precedent. (7) Citations have been used to show how judges make law through tracing judicial innovation (8) and communication between courts. (9) An examination of citation practice may also reveal where judges find their cues and what values they seek to promote. (10) 'Citation patterns ... reflect conceptions of role.... These patterns may be clues, too, to the role of courts in society'. (11)

The study of judicial citation practice has gained considerable momentum during the last two decades, particularly in North America. There are studies of citation practice for the Supreme Court of the United States, (12) the US courts of appeals, (13) US state Supreme Courts, (14) the Supreme Court of Canada (15) and the Canadian provincial courts of appeal. (16) A smaller number of studies have considered the citation practice of courts in Australasia. There are, however, studies for the High Court of Australia, (17) Federal Court of Australia, (18) the Australian state Supreme Courts (19) and the New Zealand Court of Appeal. (20) Because of the financial cost of collecting large datasets, most studies have focused on citation practice within a single year or a few select years.

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