Final Judgment: The Last Law Lords and the Supreme Court

Final Judgment: The Last Law Lords and the Supreme Court

by Alan Paterson


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Product Details

ISBN-13: 9781849463836
Publisher: Hart Publishing
Publication date: 10/20/2013
Pages: 366
Product dimensions: 6.30(w) x 9.30(h) x 1.10(d)

About the Author

Alan Paterson, LLB (Edin), DPhil (Oxon), Solicitor, OBE, FRSA, FRSE is a Professor of Law and Director of the Centre for Professional Legal Studies at the Strathclyde University Law School. His research has focused on the legal profession, access to justice, poverty legal services and the judiciary.

Table of Contents

Foreword Lord Hope of Craighead KT vii

Preface and Acknowledgments ix

Table of Cases xvii

Table of Legislation xxix

1 Introduction, Context and Methodology 1

Sources and Methodology 3

Judicial Notebooks 4

Elite Interviews 5

The Drawbacks of Oral History 6

Definitions 9

2 The Dialogue with Counsel 15

Introduction 15

The Context of the Dialogue Between Counsel and the Judges in the Final Court 16

Expectations which Constrain 20

Initiating the Dialogue 29

The Courtroom Dialogue 32

How has the Dialogue Between Counsel and The Court Changed? 39

Have the Qualities of Good Appellate Advocacy Changed? 42

Persuasive Advocacy 42

Robustness and Resilience 44

Courage 44

Timing 46

Written Advocacy 47

Does Advocacy Matter in the Final Court? 49

Case Studies in Effective Advocacy 53

Factors Which Make a Difference 55

Conclusion 63

3 Dialogues with Colleagues-The Stages for Discourse 66

Introduction 66

The Preparatory Stages 66

Laying the round work 66

Involvement in Permission to Appeal Decisions 67

Being Chosen: The Selection of the Hearing Panel 70

Doing the Homework: Reading of the Preliminary Materials 73

The Oral Hearing 76

Judicial Dialogues in the Courtroom 76

Conclaves Off-stage: Dialogue Outside the Courtroom 81

The First Conference 83

Sharing of Preliminary Conclusions and Discussion 84

The Allocation of the Lead Judgment 91

Implications for the Future 94

The Drafting Stage 97

Order and Production of Circulation 97

Multiple Judgments and the Pursuit of Unity 99

Dissenting Opinions 110

Circulation Time 120

Conclusion 121

4 Dialogues with Colleagues-Efficacy in Judicial Dialogues 123

Introduction 123

Context 123

Stages 123

Time and Timing 127

The Composition of the Panel 130

Approaches to Collective Decision-Making: The Art of Persuasion 130

Engagement of Judgments 135

Team-working 141

Leadership in the House of Lords 146

Dissents, Individualism and Collegiality 152

Task Leadership and the US Supreme Court 154

Social Leadership 156

Leadership Skills in the Supreme Court 158

Social Leadership in the Supreme Court 165

Geography 167

Conclusion 169

5 Inter-Judicial Dialogues in Practice 170

Voting Relationships 170

Changes of Mind 176

The Bingham Era 2000-09 181

The UK Supreme Court 2009-13 195

Conclusion 207

6 Wider Dialogues Old and New 209

The Dialogue with the Court of Appeal 209

The Dialogue with Academics 213

Dialogues with Courts Overseas 221

The Dialogue with Strasbourg 222

Scots Appeals and London: A Fraught Relationship? 233

Deference 237

The Devolution Issues Jurisdiction 242

Conclusion 245

The Dialogue with Judicial Assistants 247

The Job of the Judicial Assistant 248

7 The Dialogue with Other Branches of Government 258

Setting the Scene 258

The Dialogue with Parliament 258

Judicial Activism and its Drawbacks 259

Hard Cases Make Bad Law 262

Justice, Certainty and Fairness 263

Drawing the Line 268

Who Really Draws the Line? 273

Where Should the Lines be Drawn? 275

Arguments from Parliamentary Activity and Inactivity 276

Lines of Communication 282

Conclusion 285

The Dialogue with the Executive 286

Intra-governmental Relations 287

Attempts by the Executive to Engage with the Court 301

Accountability 304

The Challenge of Accountability 306

8 Final Reflections 312

Index 323

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