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

• Author: Genevieve Coonan
• Position: LL.B. (Dub.), B.L., Lecturer, Dublin Institute of Technology, Former Senior Judicial Researcher, Courts Service of Ireland
• Pages: 171-196

2006] The Role of Judicial Research Assistants 171

THE ROLE OF JUDICIAL RESEARCH

ASSISTANTS IN SUPPORTING THE DECISION-

MAKING ROLE OF THE IRISH JUDICIARY

GENEVIEVE COONAN*

INTRODUCTION

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

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* 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,

Slovenia.

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.

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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.

I. WHAT IS A “LAW CLERK”?

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,

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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

1769.

4 Byrne and McCutcheon, The Irish Legal System (4th ed., Butterworths, 2003),

at 112.