Varieties of Judicial Method in the Late 20th Century

This article examines aspects of judicial method in both trial and appellate courts in recent decades. First, it surveys the common law world as it stood in 1960. It criticises various judicial practices in the United States which have not generally been adopted in Australia: delegation of judicial work to others; the delivery of minimally reasoned 'unpublished' opinions; and the production of single unanimous or majority judgments which result from bargaining. It discusses changes in the conditions affecting litigation: the decline of jury trial; increases in the volume and complexity of legislation, and the rate at which it is amended; technological changes affecting the volume of documentary evidence and submissions; and the over-sophistication of judicial assistants. The article also examines changes in judicial doctrine and custom: the insubordination of intermediate appellate courts; the conduct of hearings and judgment delivery; and the increasing length of judgments. It concludes by collecting examples of different styles of judicial writing in Australia and the United States.