David S. Louk
2021 Temple Bar Scholar Report
The Temple Bar Scholarship afforded me and my fellow American lawyers the remarkable opportunity to see and experience the English legal system firsthand, with multiple occasions to learn how English lawyers appear in court (as barristers), engage with clients (as solicitors), and adjudicate legal disputes (as Judges, Justices, Recorders, Chancellors, Queen’s Benchers, and Lords and Ladies—yes, there really are that many different titles for judges!). From my four weeks in London, the most striking contrast between the American and English legal systems is how much the old adage that lawyers are “officers of the court,”
Ex Parte Garland, 71 U.S. 333 (1866)—which often seems little more than a trope in our highly adversarial American legal system—appears to be a central motivating feature of the English legal system. Indeed, each of my four weeks in the program afforded me the opportunity to witness how English barristers, solicitors, and judges fulfilled their roles as officers of the court with the utmost professionalism and duty to serve the law above their own interests.
During our first week, we met with a number of senior judges and lawyers, including the Master of the Rolls (head of the Court of Appeal as well as the civil division), the Lord Chief Justice of England and Wales (the head of the judiciary), the Chairman of the Bar Pro Bono Unit, the Chancellor of the High Court (responsible for day-to-day operations of the business and property courts), the President of the Law Society (the independent professional body for solicitors), the President of the Supreme Court of the United Kingdom, the Head of the Commercial Courts of England and Wales, and the Treasurers and Officers of several of the Inns of Court. While it became a recurring joke among us Americans that the English legal system has about as many titles as it does lawyers, the numerous honorifics reflect the countless ways that barristers are called upon to serve not only their legal community but the country at large.
As just one example, the four Inns of Court—Inner Temple, Middle Temple, Gray’s Inn, and Lincoln’s Inn—serve not only as the social hubs for members of the Bar, as in the U.S., but also as their central training and credentialing bodies. In essence, the four Inns, largely on a voluntary basis, function as the clearing house for bringing each aspiring barrister up the ranks from reading for the bar, to pupilage, to “taking the call” to the Bar, to continuing legal education, to “taking silk” as a Queen’s Counsel. Because every aspiring barrister must be a member of one of the Inns and must read for the bar exams under their supervision, these voluntary organizations provide preparation and professional development for the entirety of the English and Welsh Bar. I had the opportunity to visit, dine in, and attend formal dinners at several of the Inns, and I came away with admiration for how the Inns of Court system provides a convivial, collegial, and scholastic home base for barristers.
This culture of community and civil service among members of the Bar extends beyond their professional legal education and social affiliation and into their daily practice as barristers. I saw this firsthand in my second week, when I sat with a member of the Queen’s Counsel, who is a more senior lawyer who has “taken silk” (the famed gown and wig!) on the basis of merit and over a decade of exemplary legal practice. “QCs,” as they are usually called, have opportunities unheard of even for the most senior partners in American law firms: for one, they are allowed to sit as judges on a part-time basis. The QC I sat with during my second week serves as a Recorder of the Crown Court, which means that he works as a part-time circuit judge presiding over criminal matters across England and Wales. Thus, he might start his week in private practice counseling on a complex multinational reinsurance matter in London, and end his week presiding over an assault trial over a hundred of miles away in Sheffield.
This QC also performed another role that stands in stark contrast to the American lawyer: as Deputy Chancellor for a Diocese of the Church of England. Because England has a state church, its canon law is integrated into the broader English legal system, and interested senior lawyers have opportunities to serve on a part-time basis as members of the ecclesiastical chancellery, which adjudicates certain controversies and processes that implicate the parishes of the Church of England. During the week I sat with him, the QC reviewed a number of applications for refurbishment or alteration of church buildings and grounds, assessing these proposals against both the Church of England’s own historical preservation criteria and the anticipated impact on the broader community. Needless to say, neither the role of Recorder nor Diocesan Chancellor is an especially well compensated one, but members of the Bar feel called to serve and these positions are desirable, prestigious, and indispensable to the functioning of the English legal system. In this sense, barristers really are officers of the court.
My third week afforded me the chance to witness two other ways in which English barristers serve the courts. I sat with a second QC, who represented a government agency responsible for verifying the employment eligibility of candidates for certain kinds of jobs that involve work with sensitive populations. Compared to our American system, this was remarkable in two respects. First, barristers in private practice regularly represent both the government and the parties adversarial to it. For instance, a barrister might sit as the prosecutor on behalf of the Crown one week, and advocate on behalf of a criminal defendant the next. This diversity of clients and matters not only helps sharpen barristers’ understandings of the best arguments on all sides of a case, but also affords them some professional distance from the causes of their clients. Given how hardened the lines can be drawn in American private practice between the plaintiff and defense bars, and in American criminal law between prosecutors and public defendants, this diversity in adversarial role was extremely refreshing to see.
The second and even more remarkable aspect of the QC’s representation was that his adversary was a lay person, a pro se litigant who had no prior experience with English legal proceedings. So, while the QC was instructed to take the case on appeal in order to vindicate a point of law concerning the statutory authority of the agency, the pro se litigant was simply there to vindicate their individual legal claim. Recognizing this disparity in knowledge, the presiding judge went so far as to say openly in court that they trusted that because the barrister is an officer of the court, he would adequately explain the appellate process to his lay adversary. Indeed, in an informal meeting just before the hearing, the QC walked his adversary through everything from how to address the judges of the court to the steps of the oral advocacy process. This level of professionalism afforded the pro se litigant the opportunity to participate fully in the process and to feel they had a chance at a fair hearing, and the QC was extraordinary kindly in taking the time to walk the pro se litigant through the steps of the process just prior to his own lengthy argument.
The culminating fourth week of the program afforded us the opportunity to sit as temporary “clerks” to Justices of the Supreme Court of the United Kingdom. Here, too, the professionalism of the English system shown through clearly. In contrast to the highly partisan judicial selection process in the United States (Senate confirmation for federal judges, partisan elections for many state judges), in the United Kingdom Justices are selected on the basis of a formal and open application process conducted by a publicly supervised and non-partisan selection commission. Given this apolitical procedure, it should come as no surprise that the UK Supreme Court is considerably less partisan than our own Supreme Court has become in recent years. Several other aspects of the UK Supreme Court’s inner workings also stood out in contrast to our own court. First, the President and Vice President of the Supreme Court supervise the selection of the five Justices who typically sit on a given panel, ensuring sufficient expertise in the matter at hand and diversity of jurisdictional origin (the Justices come from England, Wales, Scotland, and Northern Ireland). It is presumed that a particular Justice’s view of the law will have no influence in the disposition of the case at hand, and thus its outcome is not at stake in selecting the Justices who will hear the case. This stands in contrast our own Supreme Court, whose composition is highly charged, since the replacement of just one Justice can lead to the overturning of an entire doctrine of American law.
Several other aspects of the Court’s processes were also notable. For one, precisely because only five of the twelve Justices sit on most panels, no individual Justice is considered indispensable, and most matters of the Court are resolved unanimously—we were told that dissents are quite uncommon. For another,
stare decisis is taken much more seriously by the UK Supreme Court, which generally leaves matters more settled than in the U.S., where several of our own judicial doctrines are presently in a state of flux. As a result of these features, the Court is seen as a more stabilizing influence, is viewed more neutrally, and does not feature, to anywhere near the same degree, in contentious public political debates. Perhaps precisely because of this, one other aspect of the Court’s procedures was notable: to ensure accuracy in disposition, it is the practice of many English courts, including the UK Supreme Court, to circulate draft judgments to the parties to inspect for any typographical or factual errors. It is hard for me to imagine that the U.S. Supreme Court could send the parties advanced copies of a major constitutional ruling—say, the constitutionality of the Affordable Care Act—and expect its disposition to remain confidential for the weeks ahead of formal release! (On the other hand, rulings from the UK Supreme Court rarely make frontpage news!)
In all, my four weeks as a Temple Bar Scholar were eye-opening, enlightening, and highly enjoyable, and I came away from the experience with great admiration and respect for the English legal system. I am grateful to the American Inns of Court for this once-in-a-lifetime opportunity.
David S. Louk is a law clerk to Associate Justice Stephen G. Breyer of the Supreme Court of the United States and clerked for Associate Justice Ruth Bader Ginsburg until her death. Before that, he was an academic fellow at Columbia Law School and a law clerk to Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit and Judge James E. Boasberg of the U.S. District Court for the District of Columbia. In addition to a 2015 law degree from Yale Law School, where Louk was an articles editor for the Yale Law Review and editor of the Yale Journal of International Law and executive and managing editor of the Global Constitutionalism Seminar, he has a doctorate in jurisprudence and social policy from the University of California Berkeley, a master’s in international relations from the University of Oxford, and an undergraduate degree in political science from Stanford University.