The Unexpected Scalia
A Conservative Justice’s Liberal Opinions
By David M Dorsen
ISBN: 978 1 10718 410 7
CAMBRIDGE UNIVERSITY PRESS
Clear and crisp with the biographical gravitas expected of such an important legal figure who wasn’t really 'a Liberal'
This is a particularly fascinating insight into the life of an important legal figure in the USA, Justice Antonin Scalia. We were privileged to meet Scalia and his wife, Maureen, in London not long before his death in 2016. One never forgets meeting certain people and we shall remember our encounter with Scalia as a man as well as his position as an enduring and substantial figure in American jurisprudence.
It is very clear that Antonin Scalia was one of “the most important, outspoken, and controversial Justices in the past century”. This touching and detailed biography is long overdue. David Dorsen’s meticulous work describes Scalia’s endorsements of “originalism”, which means the requirement to decide cases as they would have been decided in 1789, and “textualism”, which limits judges in what they could consider when interpreting text, thus causing major changes in the way the Supreme Court decides cases. Dorsen’s description of what “a liberal” is, contained in the introduction, is most useful although readers will arrive at their own opinions!
Of course, a number of Scalia’s views are not shared by that many people in the United Kingdom. He is described by Dorsen in the following way as “a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty”. In fact, quite an exhaustive list of all the most controversial issues of our contemporary times… and not at all “liberal”!
What we found refreshing is that Scalia often “followed where his doctrine would take him, leading him to write many liberal opinions” according to Dorsen. The key to Scalia’s approach is why did he write so many liberal opinions. His answer was that “his legal philosophy compelled him to do so”, otherwise as he said, “he would have been inconsistent or worse”. And that is the answer in the book!
As a close friend of Scalia, David Dorsen is placed in a very strong position to explain what he describes as “the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century”. But it does, of course depend on your own point of view which is why this biography is such an important publication on both sides of the Atlantic.
It was a privilege to meet him. One always has some anecdotes which are quite personal when meeting the opinion-formers and deciders of our time, and Scalia was no exception. We were not expecting to like him very much but we found him charming. And, as with all biographies, it is so useful to read about important figures like Scalia because there is so much that one finds out.
The question I asked him (I couldn’t resist it) was on American Realism. “What”, I said “did you have for breakfast this morning?” “Boiled eggs”, he replied, with his wife enthusiastically agreeing, “and they were very nice”.
And, as you can guess, he was charming throughout and knew exactly why I had asked the question… I wonder how often he had been asked that before, but I didn’t get an answer.
So American Realism is alive and well, and we do know what judges have for their breakfast and that it doesn’t cloud their judicial thinking. Thank you- we did not agree with all his views but we have lost a towering American legal figure, but we do have this excellent biography from David Dorsen to remember him.
The book was published on 2nd February 2017.
Judicial College Guidelines For The Assessment Of General Damages In Personal Injury Cases
Includes Guidance on 10% Uplift
Foreword by Lord Justice Irwin
Compiled for the Judicial College by Mr Justice Langstaff, Peter Carson, Stuart Mckechnie, Steven Snowden QC and Richard Wilkinson
ISBN: 978 0 19881 452 8
OXFORD UNIVERSITY PRESS
Twenty-five years old and more essential than ever
A decision some twenty-five years ago by the Judicial Studies Board established a working party to prepare the original Guidelines for the judiciary. As Lord Donaldson said, the Guidelines were “not intended to represent, and does not represent, a new or different approach to the problem” of how to assess general damages, especially where no two cases are ever precisely the same.
Today, in 2017, Lord Justice Irwin says in his Foreword that Donaldson’s view is now “a voice from a different era” concerning the assessment of damages. The reason being that the judges now will only from time to time be called on to take a decision on assessment because it is no longer “one of the commonest tasks of a judge sitting in a civil court” and working out the assessment level.
As Irwin LJ concludes, it is the case now that the real dispute on quantum lies elsewhere. He writes that “the argument as to the level of damages for pain and suffering will usually be an incidental issue in a case where the decisive matters are liability, the nature of a care regime, disputed contributory negligence or something more technical”.
And all this is down to one factor- “these Guidelines have operated to diminish hugely the incidence of unsettled arguments as to damages for ‘PSLA’ (pain, suffering and loss of amenity)”. The guidelines have settled the law and given us an admirable service in the past and the new edition continues to give us the best information available for assessments and how we arrive at them.
As a passing final thought, Irwin LJ mentions both the Jackson reforms and the proposals on “whiplash”. Both areas have fallen victim to the dominance of Brexit matters in Parliament and the June election. However, the future is catching up with all of us fast. The question posed is will the reforms and “whiplash” get Parliamentary time?
We hope the answer is “yes” for the same piece of draft legislation will be essential for the enactment of the electronic civil court by means of the ‘Online Procedure Rules’ which Irwin rightly describes as “an essential part of the Courts’ Reform programme. He ends ominously with these words- “the clichéd Chinese curse of life in interesting times sounds less hackneyed than usual”. Donaldson and the JSB grasped the nettle 25 years ago with these Guidelines so there should be no excuse!
So, you and your practice need this guide if you are involved in any aspect of personal injury work. We hope that other suitable guides will be published by the Judicial College and OUP in the future (for instance, online courts) because they make our working lives much easier as practitioners and they are a boon for unrepresented parties as well.
These guidelines were published as a 14th edition on 28th September 2017.
Arlidge, Eady & Smith On Contempt
General Editors: Patricia Londono, David Eady, Professor A T H Smith and Lord Eassie
ISBN: 978 0 41406 380 8
SWEET & MAXWELL/THOMSON REUTERS
The Common Law Library
The common law library remains as refreshing as ever with the new fifth edition on contempt laws
One of the most enduring aspects of the top level legal works is Sweet and Maxwell’s Common Law Library. It remains of the highest authoritative value as legal publications for the judiciary, lawyers and academics. If you want to identify where the law can be found on any major area of substantive importance look no further than this Library of books. And that remains the case with the new fifth edition of the Law of Contempt which first appeared in 1982.
The new edition appears some five years after its predecessor at a time of substantial technological change, particularly with regard to the role of the juror. As the editors write, “there has been a resurgence of interest in those who have in various ways by their actions undermined the integrity of trial by jury”. Therefore, the editors have included some most useful commentary on recent case law authorities both here and in Europe.
Of course, the temptations of the internet will remain as real concerns for the judiciary plus the ever present issues of human rights laws which are very well covered in the new edition which has incorporated all the supplements since the fourth edition.
The editors state that “open justice has been a continuing theme”, and this is especially so with family matters and the protection of journalists’ sources. The text has been revised to include a number of new practice directions and other guidance which we found most useful. They cover matters like access, reporting restrictions and the publication of judgments which will be of particular interest to many readers.
For the first time, more consideration is given to the access and availability of visual recordings at a time when IT is progressing at a very fast pace. The Preface to the book makes some important observations about visual access although it is, of course, confined to the higher courts at present. It is very clear that this area will require another visit for the next edition when the fourth industrial revolution really hits the legal world.
There is a final word of warning. Most proceedings we are involved in are slow moving and technical “so that there is little to hold the attention of the casual onlooker.” The advice (or approach) is that “the presence of cameras does not intrude upon or inhibit the court process”. Therefore, rightly so, protection must be afforded to those who may not be able to cope so well with such distractions. In essence, after the comments from experiences in the New Zealand courts, it will be a slow process of evolution… but probably inevitable.
A team of ten additional contributors make this new edition as complete as it can be and they, together with the editors, have made this work the definitive authority on contempt at a time of change; we cannot do our work as practitioners without these Common Law Library books so thank you all very much for what you have achieved here.
The publication date is 23rd May 2017.