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McRae, Donald --- "Reflections on the origins of the Otago Law Review" [2015] OtaLawRw 2; (2015) 14 Otago LR 3

Last Updated: 26 May 2017

^{Reflections on the Origins of the Otago Law Review}

Donald McRae^*

The 50th anniversary of the Otago Law Review provides an opportunity to reflect on the origins of the Law Review and of legal education at the University of Otago in those times. It was somewhat of a surprise to me to realize that that the Review was now 50 years old, but it was not a surprise to see how it has thrived and developed into the leading role that it now plays in legal education in New Zealand.

In his preface to the first issue the Dean of the Law Faculty, F W Guest, commented that the Law Review was an initiative of students and not generated by him or the Law School. And, that is true, but it underplays the fact that the intellectual environment created by Frank Guest and his Faculty colleagues, really provided the stimulus for the initiative.

The Law Faculty was very small in those days and after first year, during which we had taken general university courses and Legal System, all classes were held in the small space we had on the second floor of the Supreme Court building on Lower Stuart Street at the long table in the library and the adjacent classroom. Those two rooms together with the Dean’s office made up the Law School. The other full-time Faculty members, of whom there were two and then three, had offices in the Cadbury cardboard box factory in the next block of Castle Street.

A large class was one of 20 students and I had classes of no more than five or six. The environment was close-knit, classes were taken together and students studied together around the library table or in the Supreme Court Library just across the landing, as long as they did not raise the ire of Nancy Gilkerson, the kindly, but also intimidating, librarian. I say close-knit but it was a male community, and Dame Silvia Cartwright, who was a classmate, has since spoken movingly of the isolation she felt as one of the three women in that class. It is a sad comment on the insensitivity of we male students of those times who gave no thought to how we were being exclusionary, and with hindsight one can only have regret.

The library holdings were not large, although being able to use the Supreme Court Library supplemented this. So we had access to statutes, to basic law reports, New Zealand, United Kingdom, Australia, some United States, to some journals and law reviews again from the same countries, and in the international law field to the British Yearbook of International Law, the American Journal of International Law and international decisions through the Annual Digest and PCIJ and ICJ fields. There was simply no comparison with a modern law library but

* Donald McRae is the Hyman Soloway Professor of Business and Trade Law and Distinguished University Professor at the University of Ottawa, Canada. He graduated LLB (1966), and LLM (1967) from the University of Otago and was General Editor of the first issue of the Otago Law Review.

it provided the foundation for a legal education that has held many in good stead for the future.

The legal profession in Dunedin was generally located centrally and since many law students worked in a law office after their first or second year, taking classes at 8 am, during the lunch hour, or after 5 pm, they were in constant contact, settling transactions at the land registry office, communicating on files, or passing each other in the street. The members of the profession were well known to the students, and many of them taught us in a variety of classes. They took great pride in the quality of the education that was provided at the Law School as is evident in the introduction to the first issue of the Law Review by the President of the Otago District Law Society, B A Quelch, who speaks of how legal education is about the future practice and study of law and of the need for critical minds and incisive thought. Bert Quelch was a sole practitioner for whom I worked as a student for three years. I learned much from him about practising law with dignity and with respect for clients, for other members of the profession and for the public. Like Frank Guest he was a true mentor of my early years in law.

The intellectual leader of the Faculty of Law was undoubtedly Frank Guest, who apart from capturing the attention of the class by his habit of putting a cigarette in his mouth while teaching and almost lighting it several times, getting diverted by what he was saying, and then once it was alight letting the ash grow until it almost burnt down to his fingers, was a thoughtful and inspiring teacher. He made us think about law, to be concerned about what it does and how it does it, not just learn rules so that we could pass exams. His dry wit and his evident concern for and interest in law students made him a much admired and beloved figure. It is not surprising that a number of his students of that time went on to graduate studies and became academics, leading practitioners and judges. And, all, I am sure, would credit Frank Guest with motivating them in what they did and became.

It was this environment from which the Otago Law Review emerged. It resulted from discussions amongst students. We wanted to assert our place in legal education within New Zealand and abroad. It was, I believe, the only law review of its kind produced by a law school in New Zealand at that time. The New Zealand Universities Law Review had started a few years earlier and the Victoria University of Wellington had its own journal. But the Otago Law Review was intended to be more. Naively, we modeled the cover and colour on the Harvard Law Review to attract attention beyond the province and the country. Subsequent editors sensibly abandoned that crass imitation.

Three aspects come to mind looking at the Review 50 years later. First, the production of the Review was a truly collaborative effort. The editors included both faculty and students; the business and distribution managers were student colleagues. We were all amateurs at this game but it worked. I do not recall specifically how we funded the Law Review because there were no grants, but we got support from law firms and sold

subscriptions. The venerable Dunedin publishing house of John McIndoe Ltd took the publication on and made it possible. I had the pleasure of meeting John McIndoe again a few years ago and we reminisced about that time.

Second, the contributors to the Review reflected the legal talent of the Law School – the Faculty members Burns, Kilbride, Holden; the profession – Hayes, Johnston, Rutherford, Conradson – and graduate and undergraduate students – McKean, MeElrea, Tizard. And most of those who were already members of the legal profession had graduated from the Law Faculty. It was a true showcase of what Otago had done and could do.

Third, the topics covered in the Review were contemporary issues that we as students were dealing with in classes and were featured in debates in the legal profession. Looking at them today, they bring to mind classes we had, topics that were being broached – strata titles, regulation, prohibition and sub-delegation, indecency and censorship, law and philosophy, and the list goes on. The Law Review reflected the state of legal discussion at the time.

And when I compare the articles written in 1966 to those published in the Law Review in 2014, I find some similarity – the subjects are contemporary, but they reflect matters that we had little contact with in 1965 such as constitutional issues and environmental law, and the analysis remains insightful. Contributions now come from a range of scholars and members of the profession, locally, nationally and internationally. The change in focus is reflected in the fact that the Law Review now has an international editorial board. Yet there is continuity. The F W Guest Memorial Lecture, which was inaugurated a few years after the start of the Law Review maintains pride of place. The Otago Law Review continues to make a critical contribution to legal knowledge.

And that was the justification for the Law Review at the outset,

^{although we may have been more engaged in the excitement of creation}

^{– to show we could do it – than considering the long-term impact on}

^{legal scholarship and legal knowledge. But looking back, I feel some}

^{satisfaction in the fact that subsequent editors kept the Law Review going}

^{and did not abandon it for reasons of cost or interest.}

Yet with changes in technology, with delivery systems and with the evolution in the nature and demand for legal scholarship, questions will continue to arise about the appropriateness of the traditional print law review. Online publications, blogs, and even Facebook and Twitter force scholars to question how they communicate with each other and more broadly. There is a searching debate on these questions within other journals with which I am associated, and no doubt the editors of the Law Review are engaged with similar concerns and self-reflection. A law review is a vehicle for communicating ideas and the mode and medium for doing it will no doubt continue to be re-evaluated and change over time.

Reviewing the first days of the Law Review has given me to opportunity

to remember those who worked together to make the publication possible, teachers, students, friends who made the environment at Otago such a stimulating one, providing an enriching legal education and enabling graduates to excel nationally and internationally.

No matter where or how far one goes in law one never ceases to be the person formed by those early years of legal education. I have been able to have a very fortunate career as an academic and as an international law practitioner on a foundation laid by Frank Guest and Otago’s Faculty of Law. Contributing to the creation of the Otago Law Review was a critical and memorable part of that experience.