by Alan Paterson. Oxford, UK and Portland, OR: Hart Publishing, 2013, 366pp. Cloth $50.00. ISBN: 978-1849463836.
Reviewed by Herbert M. Kritzer, University of Minnesota Law School, kritzer [at] umn.edu.
pp.305-312
Roughly 40 years ago (1972-73), Alan Paterson undertook an interview-based study of the judges of the United Kingdom’s highest court, then technically a part of the House of Lords. The result was his path-breaking book, THE LAW LORDS (1982). What made Paterson’s study unique was his ability to obtain interviews with fifteen sitting and former Law Lords, along with forty-six barristers who had appeared as advocates before the Appellate Committee of the House of Lords (which was the formal designation of the subgroup within the House of Lords that acted as the UK’s court of last resort). Now we have his marvelous new book, FINAL JUDGMENT, which revisits the Law Lords who have now become the Justices of the UK Supreme Court. As this review tries to make clear, this is a book that anyone teaching or writing about the U.S. Supreme Court or equivalent courts around the world should read.
Paterson undertook this study in part to capture the end of the judicial function of the House of Lords (his original working title was THE LAST LAW LORDS, p.ix). The product reflects both that conclusion and the first years of the new UK Supreme Court (for a more extensive retrospective examination of the House of Lords in its judicial role, see Blom-Cooper et al. 2009). What he has produced is a study of change, both the change that occurred between the time of his first study and the end of the Law Lords, and the changes that can be discerned from the early years of the new UK Supreme Court. As with THE LAW LORDS, Paterson’s study is primarily based on interviews. While as a Ph.D. candidate at Oxford in the early 1970s, gaining access was a challenge; forty years later Paterson is one of the leading socio-legal scholars in the UK and access was much less of a problem (Paterson refers to “the huge responsiveness of those whom [he] approached for interviews this time round,” p.ix). His interviews included twenty-seven current or former Law Lords and Justices of the UK Supreme Court, plus twenty-four interviews with advocates (“counsel” in British parlance), other judges, and staff serving the Law Lords or Justices. In addition he had access to the judicial notebooks kept by two prominent Law Lords. These qualitative materials are supplemented by statistical summaries of various patterns.
In the LAW LORDS, Paterson focused on how the Law Lords of the 1960s and 1970s saw their judicial role. In FINAL JUDGMENT, his focus is on the process of decision-making among the Law Lords and the Justices. In this way, it is perhaps most similar to H.W. Perry’s, DECIDING TO DECIDE (1991), but it goes beyond the static view of Perry’s [*306] analysis to examine how things have shifted over time. The central concept that Paterson employs to understand the process is “dialogue”; that is the Law Lords and the Justices are engaged in dialogues among themselves and with various groups as they seek to make decisions and fashion opinions. The partners in these dialogues include colleagues, counsel, government officials, other courts, academics, and judicial assistants (similar to law clerks working for American judges). While Paterson has chosen to use the term “dialogues,” he is essentially using the term to refer to interactions; sometime those interactions involve two-way communication while at other times there seems to be little actual two-way communication occurring.
(Before turning to the substance of my review, let me note some terminological choices I have made in order to simplify my discussion in various places. Where I wish to refer to both the House of Lords in its judicial capacity and the new UK Supreme Court, I will refer to the courts of last resort – “CLRs” in keeping with the British penchant for acronyms. To refer jointly to the Law Lords and the Justices of the UK Supreme Court, I will use “CLR judges.”)
Chapter 1 briefly introduces the research, providing information on context and methodology. Helpfully for readers not well-versed in the British legal system, Paterson provides a glossary of many key terms. As I read the book, I occasionally noted a few terms that might have been included but were not. As would be true of someone without a great deal of familiarity with American law and legal history reading about the U.S. Supreme Court, Americans will find that Paterson makes many references to cases that will likely be familiar to the British audience but mean little to most non-Brits. There were also occasional elements where a bit more explanation might have been helpful. For example, at various places Paterson makes comparative references to the Privy Council which today functions as a court of last resort for a few former British colonies; a bit of discussion, perhaps in a footnote, of the exact relationship between the Privy Council and both the former Law Lords and the current Justices would have been helpful to the uninitiated. While these issues may at times be distracting to the non-British reader, they detract little from the overall analysis.
Chapter 2 focuses on the “dialogue with counsel.” Paterson notes two major changes since his earlier study. First, the length of time allowed for oral argument has changed significantly. Where in the 1970s arguments lasted an average of four days and much longer arguments – some lasted weeks – was not unknown (p.35), today the average argument is “only” two days. At the same time, the length and importance of the written submissions have increased. Both of these changes happened in the context of a third change: a shift in the kinds of cases being decided. Two areas, private/commercial and family have continued to make up about half of the cases. In 1970 criminal and tax cases comprised much of the rest, with human rights and public law cases only 10-15 percent of cases. In the first years (2009-13) of the UK Supreme Court, criminal and tax had fallen to less than 10 percent with human rights and public law cases rising to 40 percent; much of this shift appears to have come in the wake of the [*307] Human Rights Act 1998 which granted domestic courts the power to grant remedies for violations of the European Convention on Human Rights. Perhaps a minor yet symbolic change is that counsel can now appear without the traditional regalia if all counsel in the case agree.
With the decrease in the length of argument and the increase in the role of written submissions, the character of oral argument has shifted as one would expect. Counsel devote much less time to the background of the case. Where the judges would come to the argument with only a scant knowledge of the case because they knew this would be covered by counsel during the argument, today most of the judges come much more prepared (although the level of preparation does vary). Paterson characterizes this as a shift from a “cold bench” to a “hot bench.” There was in the earlier period when the bench was “cold” and there still is today with the “hot bench” considerable back-and-forth between the judges and counsel, though not quite to the extent of the oral argument at the U.S. Supreme Court, and there is rarely an edge to the exchanges. Paterson clearly sees the similarities, offering comparison to SCOTUS and a quote from Chief Justice Roberts on the importance of dialogue during oral argument (p.41). Paterson seems to suggest that some of the change in the content of the argument may also reflect the shift to a greater proportion of public law and human rights cases before the CLR judges. Whatever the reason for the change of content, that change has also led to a change in the qualities needed to be an effective advocate; specifically, counsel today must be prepared to go head-to-head with the judges in the style of a Socratic dialogue. Paterson closes this chapter by considering if and when counsel’s arguments (oral and written) matter; he concludes that argument can make a difference, sometimes in determining who wins but equally important in influencing the content of the decision and hence the law that emerges from the court. (He also notes in the close of the chapter the handicap for scholars created by the absence of any systematic recording, audio or written, of the argument before the CLRs. Hearings of the UK Supreme Court are now actually broadcast by Sky News, but under UK copyright law those broadcasts cannot be recorded without the permission of the Supreme Court – see http://news.sky.com/info/supreme-court).
The next three chapters turn to the dialogue among CLR judges. The first of these examines the process of interaction through a series of stages: pre-hearing, oral hearing, first post-hearing conference, and the drafting of opinions (or “speeches” as they were called under the House of Lords). Part of the pre-hearing stage is the determination of which cases will be heard. At the time of Paterson’s previous study, the Court of Appeal had granted leave to appeal to the House of Lords in a substantial proportion of the cases heard by the Law Lords; today only a small proportion of cases arrive at the UK Supreme Court after leave to appeal has been granted by the court below. A three justice committee of the court (the “Appeals Committee”) decides whether to accept an appeal brought in the absence of leave; only 200 to 250 such “petitions to appeal” arrive each year (much lower than even the number of paid petitions [*308] for certiorari received by SCOTUS). Where at one time only the three members of the Appeals Committee would even see the petitions, today the petitions go to all of the Justices and anyone who chooses to do so can express to the three-member committee his or her views as to whether a petition should be granted, although it is relatively rare for a nonmember of the committee to provide such input (p.69). Also happening during this preliminary period is the selection of the panel to hear the appeal; panels can be five, seven, or nine of the Justices. The current number of Justices is twelve, two of whom will be from Scotland and one from Northern Ireland. Panels are normally drawn up by the Court’s Registrar, subject to the review of the president and deputy president of the Court. As one might expect, a key consideration is balancing the workload of the Justices, but a second consideration is specialization whereby Justices who have significant knowledge in the area of law of an appeal are more likely to be named to the panel that will decide the appeal. Importantly, there is no norm that the three Justices who were part of an Appeals Committee that granted the petition to appeal serve on the panel that hears the appeal, although apparently in recent years it is common for at least one member of the Appeals Committee to carry over to the panel. Also, while in the House of Lords very few panels had more than five members, in the UK Supreme Court panels of seven, or even nine, occur with some regularity.
As Paterson discusses the other stages of the decision process, he draws interesting comparisons to the process of the U.S. Supreme Court. For example, while oral argument is much longer than in the U.S., and perhaps plays (or played) a larger role in the decision process for many of the CLR judges, argument also serves as a vehicle of communication and persuasion among the members of the panel hearing the appeal. One change that he notes is that, with the shorter hearings, there is now less dialogue “off-stage” during the argument; previously, the Law Lords might discuss the case in their library, over lunch, or at the end of the day. The Justices have continued the practice of the Law Lords for the members of the panel to convene, if possible, immediately after the hearing for their first discussion. In contrast to the SCOTUS pattern, by tradition the most junior member of the panel speaks first with the senior member speaking after the others have expressed their views; in some cases, the panel members engage in a true discussion rather than simply stating their individual views.
In the House of Lords there had not been a strong tradition of unanimous opinions; it was common for each of the Law Lords on a panel to prepare his own “speech” even when all members of the panel agreed on which side should prevail. Through the 1970s greater unanimity was achieved and by the early 1980s, unanimity (i.e., single judgments) was on the order of about 50 percent, actually reaching 70 percent in 1993. This started declining sharply around 1996 when Lord Bingham became the Senior Law Lord, falling to under 20 percent during the last years of the Appellate Committee. The first few years of the UK Supreme Court saw the beginning of a trend of increasing unanimity, which exceeded 50 percent in 2013, the last year of Paterson’s study.[*309]
As for agreement on which side should prevail, Paterson presents data comparing the UK to the U.S., Canada, Australia, and South Africa. Unanimity on this dimension increased in the UK between 1970 and the early 1990s, and then tapered off. However, it has always been high, generally 70 percent or above (in recent years hovering around 80 percent). As Paterson shows (p.113), only the South African court among those compared has tended to be higher. Generally, in this section Paterson provides simple statistical summaries, comparing the UK courts over time, comparing the UK courts to supreme courts in other countries, and comparing patterns for individual members of the UK courts. As Paterson notes, a partial explanation for the lower dissent rate for the UK courts is structural: the court does not sit en banc and most panels are smaller than in the other courts.
Paterson next considers what he calls the efficacy of the dialogue among the CLR judges. In contrast to SCOTUS, in the UK much of the interaction among members of a panel after the post-hearing conference used to be oral, with long stretches in the House of Lords when the circulation of draft judgments provoked little response from the author’s judicial colleagues – “like ships passing in the night.” In the latter years of the Lords and in the era of the Supreme Court there has been a noticeable shift to written exchanges on draft judgments either through memos or through less formal email communications. From Paterson’s description it is clear that there is far more effort to reach a single judgment in the Supreme Court than was the case in the last decade in the House of Lords. A major portion of the discussion of efficacy focuses on leadership, both task and social. The leadership issue in the UK is more complicated than in the U.S. because of the use of panels. During the first years of the UK Supreme Court the president and deputy president appear to have sought to emphasize teamwork and team play more than had been true in the Appellate Committee. The discussion of leadership draws many parallels and contrasts to the U.S. Supreme Court. Paterson closes this chapter with a brief discussion of “geography,” by which he means how the arrangement of offices serves to facilitate or inhibit interaction. From his description there does not appear to be anything quite like the U.S. Supreme Court’s “nine little law firms,” but this probably reflects in part the fact that the CLR judges do not delegate writing to their equivalent of law clerks as is the general practice at SCOTUS. (It is in this chapter that I spotted the single error that Paterson makes in his many references to the U.S. Supreme Court. In a brief reference to Bush v. Gore, Paterson incorrectly states that the “court was initially split in accordance with the party of whichever president had appointed each Justice” [p.129]. In fact, two Republican appointees, Justices Stevens and Souter appointed by Presidents Ford and Bush the senior respectively, aligned with the only two Democratic appointees, Justices Breyer and Ginsburg.)
Chapter 5 concludes Paterson’s consideration of intra-court dialogue. The chapter opens with a discussion of “voting relationships” by which he means rates of agreement among the CLR judges. Similar to what is done to examine blocs on the U.S. Supreme Court, Paterson presents matrices of [*310] agreement rates for the last years of the House of Lords Appellate Committee and first years of the UK Supreme Court. Given the relatively low level of dissent, it is unsurprising that the rates of agreement are high. While there is some variation (agreement rates range from a low of 62 percent to a high of 100 percent), there is no clear evidence of the kinds of blocs one finds in the U.S. Supreme Court. Most of the chapter is devoted to an analysis of fluidity, or what Paterson labels “changes of mind.” For this discussion, he draws on a combination of his interviews and the notebooks of two former members of the Appellate Committee. The analysis here is largely descriptive with detailed discussions of specific cases, but interestingly Paterson finds that there was more change than the Law Lords themselves appeared to recall. The major conclusion that he draws from his analysis is that the “degree of flexibility of thinking … suggests that explanations of decision-making in the final court will have to rely not only on values or social ideology but also on the social aspects of decision-making” (p.207).
Chapters 6 and 7 deal with dialogues with other courts (domestic and foreign), academics, and other parts of the UK government. Paterson notes research by others that shows an increased attention to academic writing in the UK by both advocates and the senior judiciary over the 40 years since his earlier book. Most of the references by the judiciary serve to provide historical background or a summary of the basic law in the field; much less frequently do the judges turn to the academic literature for authoritative statements of the law or to follow the literature’s suggestions for what the law should be. Nonetheless the senior judiciary in the UK appears to view the writing of academics more positively than recent statements by Chief Justice Roberts suggest is the case in the U.S. Additionally, the UK justices do seem to see the academy as a somewhat significant audience for their opinions although whether that perception has any influence on the content of their opinions is unclear (compare to Baum 2006).
Chapter 6 includes a section of the relationship between the CLR judges and their judicial assistants. The judicial assistants made their appearance in 2001, and have some parallels to the law clerks who assist the justices of the U.S. Supreme Court. As with the American law clerks, judicial assistants are, with a couple of exceptions, young lawyers who serve for only one year. However, while each American justice has four (or five in the case of the Chief Justice) law clerks, there are a total of seven judicial assistants serving all twelve UK justices. Similar to the American clerks’ role in the certiorari process, the assistants prepare neutral memos on petitions to appeal although they are now sometimes asked to express their own views on whether a petition should be granted. Also similar to the American clerks, the assistants undertake legal research for the justices. However, in sharp contrast to the practice in the U.S. of having clerks prepare first drafts of opinions, the assistants do not undertake this kind of writing tasks for the UK justices, although depending on the Justice a judicial assistant may be asked to make suggestions for revising a draft judgment the Justice has prepared. Not infrequently, an assistant serves as a useful sounding board for a Justice, sometimes before a hearing and [*311] sometimes as a Justice is drafting an opinion. Paterson closes his discussion of the role of judicial assistants by wondering whether over time that role will increasingly come to resemble the role played by the law clerks serving the justices of the U.S. Supreme Court.
Paterson’s discussion of the dialogue between the CLRs and Parliament focuses on where the limit to judicial lawmaking resides. That is, under what circumstances do the CLR judges choose to defer to Parliament and when do they choose to move forward in the absence of parliamentary action? Importantly, unlike in the U.S., the CLR judges do not feel a need to claim that they do not make law. In some ways this is not surprising because the UK court of last resort is a common law court rather than a court theoretically limited to “interpretation” of a written constitution or legislative enactments. The line demarcating what the judges view as appropriate for “judicial creativity” has shifted over the forty years covered in the book, with the most important break coming in 1998 with the passage by Parliament of the Human Rights Act which incorporated into British law the European Convention on Human Rights. One issue for the courts, perhaps made more acute by the Human Rights Act, is what if any action the courts should take regarding important issues needing to be addressed when Parliament has failed to act. Unlike in the U.S. where Congress’s power to overturn a decision of the Supreme Court interpreting the Constitution is highly constrained, parliamentary supremacy imposes no such limitations in the UK; however, in practice Parliament has seldom acted to modify or reverse a decision of either the Law Lords or the Justices while such action by the U.S. Congress is fairly common (Barnes 2004) and even extends to constitutional matters (see Pickerill 2004).
The penultimate section of the book considers the interaction/dialogue between the courts of last resort and the executive. After a brief discussion of the person-to-person interaction between CLR judges and senior members of the Cabinet (other than the Lord Chancellor) in the 19th century, which had largely disappeared before the middle of the 20th century, Paterson turns to a consideration of changing level of success of the Government as a party in cases decided by the CLRs. While previously the Government enjoyed a greater degree of success than other kinds of the parties, this advantage has dropped off significantly. To some degree this reflects a shift in the kinds of cases – fewer tax cases and more human rights and public law cases – the CLRs have been deciding. The Government seems to have had particular difficulty in immigration cases which have increased as a share of the docket over the last 15 years. While Paterson does not make direct comparisons to the success of the Solicitor General before the U.S. Supreme Court, it does appear that the Government in the UK is currently enjoying less success than is the Solicitor General. Paterson concludes his consideration of the dialogue with the Executive with a brief discussion of the decline in the role played by the Lord Chancellor in selecting judges for the CLR, and suggests that those changes may be problematic in that it means that the selection may be becoming dominated by the Justices of the UK Supreme Court and hence the Court may increasingly have a self-perpetuating [*312] membership, something the Paterson clearly does not view as healthy.
While at times non-UK readers, myself very much included, may feel a bit lost in the detailed discussions of specific cases, the core analyses presented by Paterson in Final Judgment are important for anyone conducting research on or teaching about appellate courts. While the institutional roles of the UK’s CLRs differ from that of the U.S. Supreme Court (and supreme courts in other common law countries that have written constitutions), one comes away with a sense that the extended oral arguments and the practice of face-to-face communication among the CLR judges beyond the conference room lead to a form of decision making that is less structured by the judges’ political or policy preferences than is the case for the justices in the U.S. However, this does not necessarily mean that if American courts were to adopt similar procedures one would see a dampening of attitudinal effects. It may be that the greater dialogue reflects nonreplicable institutional factors such as the CLR judges being largely drawn from the same small community of elite, London-based barristers as are the advocates who appear before the judges. Regardless, Paterson’s incisive analysis provides a perspective that suggests both how and why courts of last resort can differ in ways that have significance both politically and legally.
REFERENCES
Barnes, Jeb. 2004. OVERRULED? LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS. Stanford, CA: Stanford University Press.
Baum, Lawrence. 2006. JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton: Princeton University Press.
Blom-Cooper, Louis, Brick Dickson, and Gavin Drewry, eds. 2009. THE JUDICIAL HOUSE OF LORDS, 1876-2009. Oxford: Oxford University Press.
Paterson, Alan. 1982. THE LAW LORDS. London: Macmillan.
Perry, H.W. 1991. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge: Harvard University Press.
Pickerill, J. Mitchell. 2004. CONSTITUTIONAL DELIBERATION IN CONGRESS: THE IMPACT OF JUDICIAL REVIEW IN A SEPARATED SYSTEM. Durham, NC: Duke University Press.
Copyright 2014 by the Author, Herbert M. Kritzer.
