Lecture 1: “Taking the Judges Seriously”

Event date
30 April 2018
Event time
17:30 - 18:30
Oxford week
The Gulbenkian
Jane Stapleton




Professor Jane Stapleton DCL - Master of Christ’s College Cambridge, an Emeritus Fellow of Balliol College and an Emeritus Distinguished Professor of the Australian National University (ANU).

Series Abstract:

Periodically academia is swept with enthusiasm for a grand theory which describes tort law as being fundamentally “all about one thing”, like carrot purée. This series of lectures explores a different type of scholarship, one that places at centre stage what judges do and say, and how they understand their role. Such scholarship is capable of both smoothly absorbing legal change signalled by courts and influencing courts with its insights, so it is convenient to describe it as “reflexive tort scholarship”.

Lecture 1 looks generally at this technique while the following lectures present detailed examples of where it can lead. It is because of its tight focus on judicial reasoning that reflexive tort scholarship is so well placed to assist judges, and indeed to collaborate with them in the process of the common law’s development. The theme of this series of lectures is that this is at least as thrilling a prospect for a young legal scholar as any offered by grand tort theories.

Lecture 1: “Taking the Judges Seriously”

Lecture 1 looks at reflexive tort scholarship in general terms: how it is addressed to and seeks dialogue with the Bench; how it focuses on and critically evaluates the heterogeneous reasons judges give in justification for their decisions; and how it acknowledges the vital constitutional responsibility judges bear to crystalise developments in the common law in response to social change.

The environment of judicial decision-making is sketched, including practical constraints, precedent, the interface with the legislature, and retrospectivity. The last of these is explored in the context of how judges, both in judgments and extra-judicially, express their understanding of their role. The Lecture addresses why, how, when and in response to what influences the common law of tort evolves, revealing why no grand theorist of tort law can afford to take seriously what judges say they are doing.

By critically evaluating the context and content of judicial reasoning, reflexive tort scholarship allows tensions in judicial reasoning and doctrinal outcomes to be confronted, precedents to be re-structured, and terminology to be reassessed, illuminating the role of appellate judges in the common law process in a more compelling way than grand theories are able to do.

About Jane

Jane Stapleton DCL is Master of Christ’s College Cambridge, an Emeritus Fellow of Balliol College and an Emeritus Professor of the Australian National University (ANU). Originally trained as a scientist, she resigned a postdoctoral post in Cambridge to retrain as a lawyer, first at the ANU then at Oxford where she taught for many years. She subsequently held posts at the University of Texas and the ANU.

Professor Stapleton is a Corresponding Fellow of the British Academy, an Honorary Bencher of Gray's Inn, a Council Member of the American Law Institute, an Honorary Fellow of St John’s College Cambridge and a Fellow of the Australian Academy of Law. She is a recipient of: the Association of American Law Schools’ Prosser Award which honours those "who have made an outstanding contribution to the world of tort law scholarship”; and the American Bar Association’s Robert B. McKay Law Professor Award which honours “attorneys who have shown commitment to the advancement of justice, scholarship and the legal profession, demonstrated by outstanding contributions to the fields of tort and insurance law”.

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