Judgment-Writing

Aoife, Julie and MáiréadUlster Workshop, 23-24 October 2014

Northern/Irish Feminist Judgments Project• Over 100 participants

• 31 cases• ‘The Foreign Subject’• ‘The Choosing Subject’• ‘The Mothering subject’• The Embodied Subject’

• 2014-15 Drafting Workshops• Political and National Identity• Political History of the

Judiciary• Feminist Legal

Struggles/Activism• Reimagining the Judge/Litigant

• 2016 Book publication• Hart Publishing The photograph is from Rose Commiskey’s exhibition,

Against the Tide, which chronicles protests around women’s reproductive rights in Ireland in the 1980s and 1990s.

Aims of project:

• Develop feminist judgement writing as a method of critical legal analysis;

• Create dynamic and tangible resources to provoke societal discussions about judicial power, legal decision-making and social change (e.g. book, website);

• Community building.

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Core concerns:

• What are the relationships between judging, national identities, and the political lives of Northern/Irish women?

• How can the judicial role be critically re-imagined in contexts of transition from conflict, colonialism and religious patriarchy?

‘I have a dream of Ireland in which all the troublemakers have come home to roost, But for that to happen some of us have to refuse to leave...while at the institutional level the country is profoundly conservative, it is gradually becoming a pluralist culture. Ideas and debate are far in advance of the public position on just about every issue of national concern’Mary Dorcey, poet

The Craft of Judgment Writing

• Judicial Constraints and Strictures

• Method of Feminist Judging

• Craft of Judgment Writing: your experiences?

• Editorial Restrictions

Judicial Constraints and Strictures

Justice (Northern Ireland) Bill:

16 (2) The oath is—“I ............... do swear that I will well and faithfully serve in the office of ............... and that I will do right to all manner of people without fear or favour, affection or ill-will according to the laws and usages of this realm.”

Constitution of Ireland:

Article 34 (5) 1° “In the presence of Almighty God I do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute the office of Chief Justice (or as the case may be) without fear or favour, affection or ill-will towards any man, and that I will uphold the Constitution and the laws.May God direct and sustain me.”

• ‘Reading this book ought to be a chastening experience for any judge who believes himself or herself to be both true to their judicial oath and a neutral observer of the world.’

• A feminist trial should be a fairer trial’

• (Baroness Hale, 2010)

Strictures: *drawn from discussion with Brenda Hale during the English FJP

• Agreeing statement of facts and issues:– Can’t change and may be limits/unknowns;– Be accurate and honest from your point of view but can it be used/told in

different ways?

• Have to decide! (and be right):– Explanation and conclusion:– Working forwards or backwards?

• Trying to garner agreement (‘donkey work’):– Persuading others (bench, higher court, public);– Importance of clarity and prioritisation;

• Type of Judgment:– Stand alone assent/concurrence;– Dissent;– Joint - NB: Constitution of Ireland, Article 34(4)5° for questions as to the validity

of the law having regard to provisions of the Constitution.

• Doing separate research:– Tactful way of confronting certain issues;– Need to conduct by oneself;– How far does it need to be incorporated:

• Contextual material for bolstering a policy argument;• Legal material that might change view of the law.

– Importance of framing by counsel.

• Audiences:– Who do judges write for?

Method of Feminist Judging

• Asking the ‘woman question’;• Including women’s stories and experiences;• Challenging gender (and other) bias in legal doctrine and

judicial reasoning;• Recognising context and particularity;• Seek to remedy injustice and improve women’s lives;• Promote substantive equality;• Drawing on feminist legal scholarship to inform decision-

making.• Rosemary Hunter (2008) ‘Can feminist judges make

a difference?’ International Journal of the Legal Profession 15(1) 7-36.

Craft of Judgment Writing:

1. Structure: FLAC2. Setting the Scene3. Telling the Story4. Metaphor, humour and literary imagery5. Tone, distance and anonymity

• Erika Rackley: ‘The Art and Craft of Judgment Writing: Notes on the Feminist Judgments Project’ in Feminist Judgments: From Theory to Practice , Rosemary Hunter, Clare McGlynn and Erika Rackley (ed) (Hart Publishing, 2010) pp. 44-56.

Commentaries

• Achievement(s) of Feminist Judgment;• Statement of Facts, Issues & Original

Decision• Context: political, economic, social• Aims of Judgment – alternate routes?• Sources judge relied upon?

Re-drafting McGimspey:

• Some points for discussion?– Not an obvious case to choose– Question of identity• Citizenship• Politics

– Understanding the Anglo-Irish Agreement• Its aims• Role of human rights

– What the litigants wanted