‘Delicate plants’, ‘loose cannons’, or ‘a marriage of true minds’? The role of academic literature in judicial decision-making

Abstract

ABSTRACT This is the text of the Harris Society Annual Lecture 2023, delivered at Keble College, Oxford, on 16 May 2023. The Lecture is reproduced here with minor editorial changes. The Lecture discusses the role of academic literature in judicial decision-making, and argues that academics help judges to reach decisions that are more conceptually sound, morally satisfactory, and legally coherent. To make this argument, it asks whether academics are ‘delicate plants’ (that is, overly analytical and abstract) or alternatively ‘loose cannons’ (proposing unduly radical suggestions for law reform). After reviewing the historical relationship between academics and the judiciary, a series of cases in which academics have made major contributions to legal development are discussed, including in the field of unjust enrichment and criminal attempts. Following that, cases are discussed in which academic literature might be seen as overly analytical, either because the academics took a more abstract approach than the judiciary, or focussed on socio-economic concerns rather than ‘black letter’ law. It is argued that the concern about academics being ‘delicate plants’ has been overstated and, in particular, the value of socio-economic scholarship should not be underestimated. The next section moves to discuss cases in which judges have disregarded academic literature because it was overly forward-thinking; although, again, the label of academics as ‘loose cannons’, it is argued, is going too far. The Lecture concludes by discussing how academic literature can continue to be applied usefully by judges in the future.