Vol. 10 No. 3 (March 2000) pp. 206-207.
CHANGE AND CONTINUITY: STATUTE, EQUITY AND FEDERALISM by William Gummow. Oxford University Press, 1999. 122 pp.

Reviewed by J. H. Bogart, Giauque, Crockett, Bendinger & Peterson, Salt Lake

City, Utah.

CHANGE AND CONTINUITY is the latest contribution to Oxford University's Clarendon Law Lectures. These three lectures by the Hon. William Gummow, a Justice of the High Court of Australia, present a number of surprises, at least for American readers. Organizationally, the three lectures roughly follow the order and subjects of the subtitle. However, a description of the contents is not the best way to approach this work. That would amount to a recitation of a long line of cases, virtually all unfamiliar to American readers, together with related commentary. The better approach here is to give a sense of the subjects discussed. Those who have no taste for case analysis and an old-fashioned legal analysis will find this a rather unsatisfactory work. Those who do will be rewarded.

It should be noted that the author is a sitting judge. That a sitting judge would write a theoretically intelligent, let alone interesting, work is the first surprise. Despite the rather larger number of appellate judges in the U.S., fewer, relatively and absolutely, have produced work of high quality. Indeed, only two of the current Justices of the Supreme Court could plausibly be thought up to such a task on their own.

What Gummow has to say is a useful and delicate balance of theory and legal analysis. I should say now that this is a work directed at lawyers and legal theory, not traditional political science or political philosophy. Gummow's topic is the interaction of multiple forms or branches of law or, perhaps more accurately, sources of law making. What he is interested in is the interaction of common law with equity and with statutory law. Gummow has very little to say about the influences and interactions of the law of distinct states, e.g., of Australian and English law. Once the scope of the topic is understood, there is a good deal of interest here, from both a theoretical and practical perspective.

Although American law schools continue to teach law and equity as distinct, that is no more than an historical curiosity. There is in fact no real distinction in practice, either as to application or sources. Indeed, aside from tort law (and that is shrinking), there is relatively little that would count as genuine common law in most U. S. jurisdictions. What Gummow has to say about equity and law is interesting mostly for the light it casts on the problems of case interpretation and on whatever insight is provided by serious discussion by a sitting jurist. This part of the book is of greater interest to those concerned with legal practice in a jurisdiction where equity remains a vital source of law.

American case law is increasingly the interpretation

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of statutory and administrative or regulatory law, not the application of common law. That is what makes this an interesting work for American readers. Perhaps for that reason I think it is the most interesting part of Gummow's work. It is easy to say more or less nothing on the topic of statutory interpretation, and courts fairly regularly do. (Indeed, the introductory sections of the California Civil Code pretty well embody what most judges have managed to say, and that never rises above the level of homily.) Plain meaning of the text and the like are pleasant enough nostrums, but such statements do not enlighten anyone on how to interpret or apply statutory texts. Gummow has nuanced, intelligent things to say about statutory interpretation, including about the historical development of problem of statutory interpretation. The analysis is largely based on Australian cases, but the issues and doctrines are all familiar from American legal history as well.

It is important to note is that the lecture on federalism does not concern federalism as commonly understood in the United States. Here, most of time we think of federalism, at least in the context of legal academy and practice, as a system of dual and interacting jurisdictions. In rough, it involves distinct municipal systems, e.g., federal and state legal systems, and the problems of exclusive and concurrent jurisdiction of the respective judicial systems. These are such issues as state immunity, limits on the authority of Congress, etc. One might think that Gummow would be concerned with analogous problems among the Commonwealth countries, or within Australia. What Gummow has in mind is something quite different, although, once understood, clearly analogous to the issues of federalism as commonly understood in the United States. The focus of this lecture is on the problems raised by intervening acts of co-equal lawmaking bodies, e.g., acceptance of treaties.