Dr Jeremy Patrick, a Senior Lecturer in the University of Southern Queensland School of Law and Justice, has published a new article titled 'Legal Realism and Australian Constitutional Law'. The article appears in Volume 32 of the Journal of Judicial Administration. Here is the abstract:
"Our traditional understanding of judicial decision-making is that judges apply the law to a set of facts and reach a result. This is known as legal formalism. But what if this is backwards? What if the process of judicial reasoning is to decide on the result, and then rhetorically justify it with particular interpretations of legal rules and facts? This paper applies the descriptive theory of legal realism in a particular context (Australian constitutional law) alongside a qualitative empirical study to help decide whether legal formalism or legal realism best explains High Court decision-making."
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