Ishan K. Bhabha
2012 Temple Bar Scholar Report
On the first Monday of the Temple Bar scholarship, I gathered with my fellow scholars outside the Great West Door of Westminster Abbey to attend the mass that marks the official opening of the English legal year. As we walked out of the rain and into the chapel, a number of us noticed with surprise that directly above the door was the statue of a person very familiar to American eyes: Martin Luther King, Jr. Having passed under Dr. King's statue, we entered the magnificent Abbey and encountered a much less familiar sight, a multitude of judges and lawyers in colored gowns and long-bottom wigs about to participate in a religious service. Although I did not realize it at the time, the stark juxtaposition of the familiar with the foreign presented by walking under a statue of Dr. King to attend a religious service starting the legal year was the perfect introduction to my month in England. Throughout the month I was time and again conscious of the striking similarities and differences between the American and British legal systems-often presenting themselves at exactly the same moment.
The first week of the scholarship was a whirlwind tour of legal London, and it gave my fellow scholars and me unusual access to the UK's foremost legal minds. I was most impressed by the careers and experiences of the judges and barristers we met, and even more by their candor and openness. Although the English legal system goes back to 1066 and even earlier, throughout our discussions I was struck by how flexible and adaptive it is. Two clear examples of this are the formation of the British Supreme Court in 2009, and the increasing impact of European Law on British law since the 1970s and 1980s. While the former change may end up having more symbolic rather than substantive impact, the latter has had a huge influence on the types of claims litigants have brought to the courts and the substance of the law used to adjudicate those claims. Even from the few discussion we had over the week it was obvious that both in issues of public and private law there is no a consensus on how European law should be dealt with by UK courts. Although the judges we met had differing views on the correct way in which courts should "take account of" (the statutory requirement) European law, all seemed to embrace what they saw as the common law role of judges, namely to develop and adapt the law through their decisions.
Apart from meeting various judges, we were also were generously hosted by the four Inns of Court, who not only showed us their beautiful grounds but also treated us to lunch and with it a description of the unique role played by the inns. Something that became increasingly clear to me over my two weeks in barristers' chambers was the shared set of values barristers possess, seen through their ethical obligations to their clients, the courts, and each other. I have to believe that the inns' purpose as a professional home to barristers plays an important role in shaping this shared ethic by providing a forum for frequent personal interaction and training for young lawyers. Such relationships are begun in classes hosted by the inns, and then strengthened in the dining halls and reinforced through a lifetime of practicing in adjacent chambers located throughout the historic buildings. Although the close relations amongst the relatively small number of barristers (15,000) clustered mainly in London is not surprising, I think the shared ethic of the profession has much to do with the unique role of the inns.
The next two weeks gave us a more tangible introduction to the life of a barrister through our placements in chambers. I had the privilege to be assigned to two terrific sets, Blackstone Chambers and Fountain Court. During my two weeks I experienced the wide range of a barrister's practice, from representing clients before professional disciplinary organizations, to advising clients on potential litigation strategies in commercial disputes, to arguing (in wig and gown!) in court. Not only did I observe barristers practicing at all levels from trial litigation to the Supreme Court, but I also had the good fortune to witness the breadth of substantive areas of law they engage with, including both private and public law. Although barristers are independent contractors, I was struck by their collegiality and professional collaboration. Larger cases often bring together Queens Counsel and juniors who work in teams quite similar to those in American law firms. I also enjoyed informal chamber lunches and drinks after work. Whether it is the size of the profession, the geographic proximity of the offices, or something else entirely, I noted numerous times how close the barrister community appeared as a whole.
Finally, we spent a memorable week at the UK Supreme Court, where once again the combination of the foreign and the familiar struck me. Because, for now at least, the Court is the final court of appeal for England, Wales, Northern Ireland, and Scotland, it has aspects of both a national and supra-national court. One case we heard dealt with aspects of Scottish law concerning mental health patients. The argument, which lasted far longer than it would have in the US (because advocates would have been allotted much shorter speaking times), dealt not only with the intricacies of Scottish practice, but also English law and, to some extent, European norms. Though certainly the US Supreme Court at times also deals with similar issues concerning the contrast between state and federal law, the mix of different systems of jurisprudence was far more prominent in the UK context. Another salient difference was the nature of the argument itself. The advocates had extensive prepared remarks that went into the minutiae of the specific facts of the case and also took the justices to a wide variety of legal precedents, not all of which appeared directly on point. This led to a far longer argument, and one that was on the whole punctuated by less questioning than would have been the case in the United States. Nevertheless, despite the unfamiliarity of daylong arguments sessions and multinational law, the basic judicial task facing the Justices, namely tackling difficult questions in an effort to reach a reasonable outcome, was very familiar to me after my year clerking on the US Supreme Court.
As I hope is evident from my report, my month in London was eye-opening, intellectually stimulating, and thoroughly enjoyable. I feel very lucky to have been selected for the Temple Bar Scholarship and want to thank the American Inns of Court for making this opportunity possible, as well as the four British Inns of Court for hosting my colleagues and me throughout the first week. Individually, many thanks to Cindy Dennis for all her hard work in organizing the month as well as BG Malinda Dunn (Ret.) for chaperoning us during the first week and giving us (excessively) generous introductions at the Temple Bar Reception. Stephen Moriarty QC not only hosted us at a wonderful dinner, but was a fantastic person to shadow during my week at Fountain Court Chambers, ensuring I always had something interesting to observe. Likewise, many thanks to Lord Lester of Herne Hill, Tom Hickman, James Seagan, and the lawyers at Blackstone Chambers. During my week at the Supreme Court, I was assigned to Lord Nicholas Wilson and his warmth and concern about my experience, and his efforts to ensure I was enjoying myself were extraordinary. As we say in the US he "totally blew me away." I would also like to thank Geoff Kertesz for hosting me during my very interesting last day at Withers LLP. Finally, many thanks to the Judicial Assistants at the UK Supreme Court for all the time they spent with us, making sure we were plugged into the cases, meeting our Justices, and getting the most out of our month London.
Ishan K. Bhabha earned his J.D. from Harvard Law School, where he was an articles editor for the Harvard Law Review as well as a member of the Harvard International Law Journal. He received his A.B. in government, magna cum laude, from Harvard College. After finishing law school, he served as a clerk for Judge Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit. More recently, his experience includes serving as an honors program attorney in the criminal division of the Department of Justice, appellate section. He is currently a judicial clerk for Associate Justice Anthony M. Kennedy of the Supreme Court of the United States.