Thursday 31 October 2019 11:24am
Judicial expert Dr Joe McIntyre’s visit to the University of Otago Legal Issues Centre (UOLIC) as the 2019 Visiting Fellow proved to be a significant week, both personally and constitutionally.
Dr McIntyre is a senior lecturer in law at the University of South Australia School of Law School, and has held teaching positions at Flinders University in South Australia; at Jesus College in Cambridge, UK; at Thompson Rivers University in Kamloops, Canada; and at Charles Darwin University, in the Northern Territory. His passionate belief in strong and active judiciaries as a public good was evident throughout his stay the Legal Issues Centre, from 19 to 27 September, a visit nicely timed for Spring and the blooming of the University’s famed cherry blossoms.
In an eventful visit, Dr McIntyre’s book, The Judicial Function, was published, the UK Supreme Court delivered one of the most significant constitutional decisions in centuries, the US Congress took its first steps towards impeachment of the US President, and his visit coincided with the visit to the Otago Law School of former UK Chief Justice, Lord Thomas of Cwmgeidd, who was speaking on the digital future of the courts and the legal profession, as the New Zealand Law Foundation Distinguished Fellow for 2019.
These developments provided rich ground for Dr McIntyre to reflect on his research interests, which connect strongly with the UOLIC’s access to justice research themes.
His newly published book stemmed from his 2013 PhD on The Nature of the Judicial Function, which sought to provide a comprehensive theoretical foundation for understanding the judiciary’s scope and limits. The book seeks to present a clear vision of what it is that courts do, how they do it, and how to ensure that they perform that role well – all important questions given the increasing cost and accessibility pressures on the judiciary, and the choices to be made about what paths to follow in alternative dispute resolution and the adoption of new technologies.
Dr McIntyre hopes to facilitate discussion about these issues by reframing the way we talk about the judicial function. “We need to put aside our pre-conceived ideas and think in new ways about how the courts could progress, so it’s good to go back to the foundations of the courts’ role and methods and the implications.”
During his visit at the UOLIC, Dr McIntyre found himself applauding to the TV late at night in his hotel room, as Lady Hale, President of the UK’s Supreme Court, delivered the Court’s decision on the legality of the proroguing of the British Parliament. It was not lost on him that elsewhere in Dunedin any cheering at the TV would involve the Rugby World Cup being played out in Japan. Such is his passion for a strong judicial role in governance.
Dr McIntyre believes that judicial decision making is not just an act of dispute resolution but an act of governance and a public good that vitalizes and invigorates the law through its application. “If that function is drawn too narrowly, or overshadowed by dispute resolution or the desire to avoid litigation, it throws the system out of balance just as much as if a court over steps its boundaries into what some might call judicial law making.”
Dr McIntyre worries that this public role might be undervalued in discussions about the future of online courts, which focus on efficiency and a view that private individuals benefit most from the courts’ dispute resolution services. This tension between the public and private benefits was a focus of discussion during a mini-conference on the future of online dispute resolution, which Dr McIntyre attended with Lord Thomas and UOLIC Director Dr Bridgette Toy-Cronin.
During the mini-conference, Dr McIntyre outlined his next research focus, which is to create a shared taxonomy and language of dispute resolution methods, to facilitate conversations about the limits of online courts with respect to the judicial role. The need for a shared language was evident throughout the week’s discussions. Even the very meaning of online court needed to be ironed out — whether it means supporting infrastructure with digital technologies, introducing algorithms into decision making, or the development of alternative dispute resolution where lawyers take a back seat to online guides and processes. There is, as yet, little consistency in the literature about the subject matter of online courts, says Dr McIntyre, especially as the subject matter involves multiple disciplines.
Similar themes emerged at a multi-disciplinary workshop on Artificial Intelligence and Employment, hosted by the University of Otago’s Artificial Intelligence and Law Project during the same week, and which Dr McIntyre joined. The workshop discussions included whether we need to regulate new technology-driven services in the law profession, and the extent to which artificial intelligence could and should facilitate or even undertake decision making – another topic with profound implications for the role of judges.
Of his time at the UOLIC, Dr McIntryre, said it was good to have arrived after completing his book and think about the tableau of potential research opportunities to pursue from here. These possibilities include an examination of the rise of the UK Supreme Court, demonstrated so vividly during the week, not only through its landmark decision about extraordinary political events, but its commitment to public outreach and transparency. “It’s fascinating how the Supreme Court has built up its social legitimacy to participate so strongly in the public sphere.”