|
...agreement leads me to defend or explain aspects of 'Thick Decisions' in response to what are occasionally surprising criticisms.
I am not inclined to defend my approach against criticisms which suggest that 'Thick Decisions' should have done things which were never intended or clearly beyond its legitimate scope. The article was not presented as comprehensive account of law-anthropology relations, but rather to indicate 'how a judge practically managed law and evidence' (Edmond 2004a: 190) in a decision which made up part of the HIB litigation. The title was, after all, 'Thick Decisions' and not 'Law and Anthropology'. Clearly, the article was not offering a macro-theory of law-expert relations, a fully-blown analysis of power or detailed account of the treatment of (anthropological) expertise in all legal and quasi-legal settings. The article evidently has contributions to make on these issues but generally maintains more modest explanatory pretensions (see also Good 2004).
Nevertheless, we can be usefully guided by the thoughtful responses which draw attention to important aspects of law-expert relations and are suggestive of future lines of inquiry and possibly intervention. I will list what I consider to be the main criticisms of 'Thick Decisions' along with my responses seriatim.
Focussing on von Doussa's judgment, Edmond ignores the background to the trial, including the preparation, performances, discovery materials and 10, 000 pages of transcript (Fergie 2004: 51, 53-54).
The purpose of 'Thick Decisions' was to consider the appropriation of anthropological expertise in judgments using the Hindmarsh Island Bridge (HIB) litigation in the Federal Court as an example. The analysis did not purport to provide a comprehensive examination of the large volume of materials 'behind' the judgment or provide a detailed assessment of the performance of various protagonists during the trial and its preparation. The analysis does, however, explain how a judge may draw upon such materials to support or impose closure. This approach unavoidably focused attention upon, without necessarily privileging, judicial perspectives. Having said this, I agree that these areas are important and constitutive dimensions of legal practice and that further study would disclose an even richer realm. Nothing in 'Thick Decisions' was intended to deny or elide this important consideration.
Those familiar with socio-legal literatures would be aware that almost all potential litigation is 'lumped' or settled well before entering the courtroom (Galanter 1974). Consequently, backstage and pre-trial activities should not be trivialised when endeavouring to understand legal practice and its long shadow (Mnookin and Kornhauser 1979). Sensitivity to broader dimensions of law-expert relations has been a conspicuous feature of my work on law and science. My PhD thesis, for example, studied the Chamberlain 'case' across thousands of pages of transcript, numerous documents, media accounts, coronial inquiries, a trial, multiple appeals and a Royal Commission. This work explored representations of evidence diachronically. In particular, it considered how images of evidence and expertise along with rules and procedures were contested and adapted to support particular outcomes at different stages (see, for example, Edmond 1998, 1999). To be accused of insensitivity to the tremendous volume of materials, practices, performances, and strategies around trials, appeals and judgments is, therefore, quite surprising. All the more surprising because I have even proposed a method--legal regression--for following the orderly accounts of evidence presented in judgments back to the messiness, or contingency, associated with the production of reports and testimony--particularly tactical submissions and the results of aggressive...
NOTE: All illustrations and photos
have been removed from this article.
More articles from Oceania
Marx's Ghost: conversations with archaeologists., September 01, 2004
Who Owns Native Culture?, September 01, 2004
Looking for additional articles?
Search our database of over 3 million articles.
Looking for more in-depth information on this industry?
Search our complete database of Industry & Market reports by text, subject, publication
name or publication date.
About Goliath
Whether you're looking for sales prospects, competitive information, company
analysis or best practices in managing your organization,
Goliath can help you meet your business needs.
Our extensive business information databases empower business
professionals with both the breadth and depth of credible,
authoritative information they need to support their business
goals. Whether it be strategic planning, sales prospecting,
company research or defining management best practices -
Goliath is your leading source for accurate information.
|
)%20%20&position=1)