The role of judicial research assistants in supporting the decisionmaking role of the irish judiciary

AuthorGenevieve Coonan
PositionLL.B. (Dub.), B.L., Lecturer, Dublin Institute of Technology, Former Senior Judicial Researcher, Courts Service of Ireland
2006] The Role of Judicial Research Assistants 171
Law clerks can play an important and valued role within a
legal system. In researching legal topics and lending assistance in
whatever way is necessary, they provide a much needed support
facility for the judiciary. However, the boundaries of their role
within a legal system can often become blurred1 and this can
sometimes cause them to encroach upon the judicial function. As
Richard Posner noted in his famous article “The Jurisprudence of
Skepticism”, some modern judicial opinions all too often “reflect
the reading of the law clerks rather than the judges”.2
In spite of this, most commentators agree that in general the
advantages brought about by a system of clerking far outweigh
* LL.B. (Dub.), B.L., Lecturer, Dublin Institute of Technology, Former Senior
Judicial Researcher, Courts Service of Ireland. This article is based on a speech
delivered at the Third Conference of Secretaries General of Constitutional
Courts and Courts of Equivalent Jurisdictions on 29 September, 2005 in Bled,
1 Gertz describes clerks as “boundary-spanners”, a position which he argues
places them in a unique position to exercise discretion and influence decision-
making – see Gertz, “Influence in Court Systems: The Clerk as Interface”
(1977-1978) 3 Justice System Journal 31, at 32. This idea has also been echoed
by Jacob – see Jacob, “Courts as Organisations” in Boyum and Mather (eds.)
Empirical Theories about Courts (Longman, 1983). He argues that:
Almost every organisation is found to possess an informal
structure that is not entirely consonant with the formal one. In
almost every organisation, some of those who are nominal
inferiors exert influence and power over nominal superiors.
2 Posner, “The Jurisprudence of Skepticism”, (1988) 86 Michigan Law Review
827, at 865. Kester has similarly argued that, “Once an institution that supplied
mentors to instruct bright graduates, the clerkship has grown into a corps of
post-adolescent mandarins, Judges for a Year after the fashion of Queen for a
Day” – see Kester, “The Law Clerk Explosion (1983) 9 Litigation 20, at 20.
Judicial Studies Institute Journal [6:1
the potential for its abuse.3 These advantages can be seen in a
number of different jurisdictions, including America, Canada and
the United Kingdom. Since 1993 Ireland has also reaped the
benefits of a modified system of clerking. In that year, the
Research Assistants scheme was introduced, the function of
which is to aid the Irish judiciary in “legal research generally and
the difficult task of preparing their judgments”.4 It is the purpose
of this paper to examine in greater detail the work carried out by
Research Assistants, how that work is organised and, in
particular, the potential role that Research Assistants could play
in supporting the decision-making process of constitutional courts
in Ireland.
Before examining the work that Research Assistants carry
out and, more specifically, the nature of the support they lend to
the decision-making process of constitutional courts, we must
first ascertain precisely what a “law clerk” is and, in turn, whether
Research Assistants fit into that definition. Persons familiar with
American law will instantly recognise the term as connoting those
shadowy individuals who are trained in the law to assist judges in
researching legal opinions. However, in many other corners of the
globe different terminology is used to describe such persons. For
example, in the United Kingdom they are known as Judicial
Assistants and in Australia, the term used is Judicial Associate.
Indeed, there has been much confusion in the past, in both Canada
and America, surrounding use of the term “law clerk”. As Baier
points out,
3 For an excellent discussion as to why this is so, see Mahoney, “The Second
Circuit Review - 1986-1987 Term: Foreword: Law Clerks: for better or for
worse?” (1988) 54 Brooklyn Law Review 321. Lord Woolf has also argued that
there is a greater danger of something being overlooked by judges who are
overstretched and unsupported than if they have clerks to ensure that nothing is
missed – see “Bringing the court up to speed” (1996) 146 New Law Journal
4 Byrne and McCutcheon, The Irish Legal System (4th ed., Butterworths, 2003),
at 112.

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