Megan M. Dillhoff
2015 Temple Bar Scholar Report
America is, in many ways, a sort of legal Galapagos: we have developed differences from our British origins, sometimes because of a conscious break with historical practice (we wrote a Constitution, after all), and sometimes because of the inexorable march of time and its attendant change. Whether these differences constitute evolution or mutation largely depends on the eyes of the beholder. But what I know from the Temple Bar Scholarship is that tremendous value lies in seeing these differences. Before the Temple Bar Scholarship, I unconsciously accepted many aspects of the American legal system as simply fixed things, common to all legal systems. In London, I saw a legal system doing these things, but differently. The Temple Bar Scholarship allowed me to see, firsthand, the trove of shared values, common to the English-speaking peoples—like the rule of law, an independent judiciary, and habeas corpus—and the many ways these shared-values have evolved and are continuing to do so.
The theme of legal change featured prominently in one of the cases I observed with other scholars at the UK Supreme Court. In the consolidated cases of R v. Jogee and Ruddock v. The Queen, the UK Supreme Court reconsidered its views on the legal standard for prosecuting accessory liability. The argument dealt considerably with the common law fundamentals of both criminal law and agency law, which are a shared aspect of UK-US legal history. The argument revealed, however, that the UK had decades earlier parted ways with one aspect of that history which the US has largely retained: the felony murder rule. While 46 US states maintain the felony murder rule, England and Wales abandoned it in 1957. This abandonment became an important part of the oral argument in Jogee and Ruddock and even featured in the opinion the UK Supreme Court released a few weeks ago. But had the same argument taken place in an American court, its persuasive effect would have been diminished by most states’ contemporaneous acceptance of the felony murder rule. Whether either approach to the felony murder rule amounts to evolution or mutation is the subject of another, much longer essay. What is clear is that neither approach was inevitable but instead the product of choice, and that such choices have consequences for future disputes.
I found the concept of legal change illustrated by its absence in another context: the development of the UK’s legal system as an internationally-recognized source of fair legal services. While observing cases in the Commercial Court and the Privy Council, I learned that the UK’s legal system serves an important need throughout the world for a fair and just forum for dispute resolution. In those courts, I witnessed litigation between parties with no other connection to the UK. The parties had simply agreed—sometimes at the outset of a contractual relationship—that the UK’s legal apparatus could be trusted to reach a just result, free from the corruption that characterizes many other legal systems throughout the world. While this reputation has grown in recent decades, it represents no real change from the historical roots of the UK system. The UK has long demonstrated its commitment to the rule of law and the administration of justice. This is a source of commonality between the UK and the US, and by watching international litigants seeking justice in the UK courts, I was reminded that this common heritage is not universal.
Perhaps the most obvious place in which I noticed legal change came from understanding the UK’s split legal profession, divided between solicitors and barristers. Any distinction between the two roles evaporated early in American history, representing a significant legal difference between the two jurisdictions. Thus, the split profession is largely a foreign concept to American lawyers, and it became the focus of many early discussions between the scholars and our hosts. In speaking with our hosts, however, I learned that similar changes could be on the horizon for the UK. Some of our hosts wondered aloud whether recent reforms had already undermined the split profession, and others questioned whether the professional distinction could be maintained given the increasingly integrated relationship between the UK and the rest of Europe, where the split profession does not exist. The next two decades will likely see this conflict play out, perhaps testing the distinction between legal changes freely chosen and those that follow—whether intended or not—from choices made for other reasons.
I look back on the Temple Bar Scholarship fondly. I met extraordinary legal practitioners and received authentic hospitality from each person who graciously hosted me. Since completing the Temple Bar Scholarship, I have returned home with a new insight into the roots of legal change and the choices made implicitly or explicitly in any legal system. I am grateful for the Temple Bar experience and for all of our hosts and patrons who made this experience possible.
Megan M. Dillhoff is a law clerk to Associate Justice Samuel A. Alito, Jr. of the Supreme Court of the United States. A summa cum laude graduate of Ohio Wesleyan University, Dillhoff earned her undergraduate degree in international studies and religion. She was a member of Phi Beta Kappa and a recipient of the Meek Family Service Leadership Prize. While an undergraduate, she studied abroad at Waseda University in Tokyo, Japan. Dillhoff graduated summa cum laude from Notre Dame Law School, where she served as symposium editor for the Notre Dame Law Review; and where she received three Dean's Awards. Dillhoff has held fellowships at the Claremont Institute and the Ohio Attorney General's Office, and clerked for Judge Jeffrey S. Sutton, of the U.S. Court of Appeals for the Sixth Circuit in Columbus, Ohio. She has worked as a summer associate at Keating, Muething, and Klekamp in Columbus, and has performed research on FDA regulations and the drug approval process.