Joseph O'Meara Masterman
2020 Temple Bar Scholar Report
“It’s simply not done.” After a month of fascinating conversation and observation, that phrase might be what lingers most. It encapsulates well the differences between the British and American legal systems that we learned and the perspective we all gained as a result.
In our first week, we were privileged to speak with numerous leaders of the bench and bar, who were far too generous with their time for people of so many titles. Our next two weeks were spent in barristers’ chambers scattered around the Inns. I was doubly privileged to spend most of those days in court, watching the “silks” orate virtuosically for many (many) hours. Our final posting was at the Supreme Court of the United Kingdom, assisting the Justices as needed, an experience that speaks for itself.
Every day, it seemed, we learned something that just did not compute in our mostly American-made minds. The U.K. Supreme Court was not established as an independent branch until this century? The barristers arguing opposite sides of the same case can come from the same chambers? Surely the legal system is in a perpetual state of crisis?
Well, such arrangements might cause trouble if anyone tried. But it simply wouldn’t be done. Where American lawyers have barriers—and would probably write them down somewhere, like the Constitution—British lawyers have custom.
I don’t mean to overstate. Neither written nor unwritten rules always work, as lawyers on both sides know. Neither of our systems is entirely written or entirely customary. And I’m not even sure anyone said the exact phrase I remember.
Still, the Temple Bar Scholarship got me thinking more deeply about how rules written and unwritten shape a legal culture. Genetically similar, our systems can still appear very different, and not just because of the wigs. Some differences might be only superficial: we call our legal filings “brief,” while in England they literally are. But perhaps such differences affect the role of litigation in constitutional construction similarly to, if not on the same scale as, structural differences like our countries’ very different concepts of judicial review. Which customs are only customs, and which are like the beaks on Darwin’s finches?
That’s too large a question for this report. But I am glad to have come home thinking about it and with a lot more thinking to do. I look forward to doing some of it in the company of all our new friends whenever they let us return the hospitality.
Joseph O'Meara Masterman is a clerk for Associate Justice Samuel Alito Jr. of the Supreme Court of the United States. As an English major at Harvard College, where he graduated summa cum laude in 2013, Masterman penned a novel as his thesis and worked on the Harvard Lampoon. He earned his law degree in 2016 from Yale Law School, where he served as executive editor of the Yale Law Journal. He has also clerked for Judge Raymond Kethledge of the U.S. Court of Appeals for the Sixth Circuit and Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit and the U.S. District Court for the Eastern District of Kentucky. A supporter of originalism, Masterman recently co-authored a piece with Thapar for the Yale Law Journal arguing that judges should resolve ambiguous cases by considering how the nation’s founders would have understood the limits of judicial roles.