In order to compare recent use of American cases by the High Court with that of past decades, and take advantage of the work of von Nessen, I adopted the same methodology that he had used for the period 1903 to 1987 in my collection of data for the period 1988 to 1997. I scanned every page of the Commonwealth Law Reports, from volume 164 to 190, and noted the following matters:

• each reference to a United States report;
• the name of the High Court Judge citing the American case; and
• the general subject area of law.

Where there was a joint judgment, in order to give proper weighting, the American case references were attributed to each of the judges in the joint judgment. Thus a single citation in a joint judgment of the full court would be counted seven times; where two judges put their names to a joint judgment, a citation would be counted twice, once for each judge.

The cases were divided into the following general subject areas of law:

• Constitutional law;
• Public law;
• Contract and related commercial law;
• Tort law;
• Criminal law;
• Other Common Law areas;
• Statutory law areas;
• Miscellaneous.

In addition to measuring frequency of citation per year, the number of pages of judgments for each year was used as a further reference for measuring the extent of citation of American cases.

In von Nessen's analysis of the data, he appears to have made an error in counting the High Court's work until 1910 as being a full 10 year period, whereas, in fact the High Court did not commence hearing cases until October 1903, and only delivered three judgments in that year. For analysis purposes, I have included those three cases in the 1904 year and have counted the Court as having worked for seven years in that decade instead of ten. This has resulted in a correction upwards (from that given by von Nessen) of the frequency in which the High Court cited American cases in the first decade.

Table 1, below, shows the number of citations of American cases by the High Court for each decade, and by each area of law. The most obvious points that can be drawn from this table are:

• the predominance of American citations in constitutional law matters;
• the extensive use of American cases in criminal law matters in the 1990s, whereas they were rarely cited previously;
• significantly greater American citation in the first two decades than in the subsequent six decades;
• dramatically increased American citation in the 1980s-and more than doubling the 1980s figure in the first seven years of the 1990s;
• in other areas of law, the increases and decreases in use of American cases have not been as marked, but, in all areas, the same trends generally obtain, namely, moderate use of American cases in the first two decades, decreased use from the 1920s to 1970s and greatly increased use from the 1980s.