David W. Denton, Jr.
2013 Temple Bar Scholar Report
The four weeks of the Temple Bar Scholarship are in many respects a journey through time. The program begins with some of the most ancient aspects of the British legal system - Westminster Abbey and the Inns of Court. The second and third weeks are spent rooted in the present, with barristers engaged in the pressing issues of the day. And the last week offers a look at the future, as the new Supreme Court of the United Kingdom addresses the direction of English law and the interaction between England and its partners in Europe.
One of our first visits was to the service to open the legal year at Westminster Abbey. The occasion puts on full display the pomp and wigs and ornate robes that make up most of the popular impression of the English legal system, but it also represents a chance for judges, politicians, and attorneys to all join in the history and tradition of English justice that they collectively strive to uphold. In the first week, we too were able to experience some of that continuity through time that characterizes the English legal system. American law can sometimes seem divorced from its English origins, separated by an ocean, a revolution, and a post-independence history shaped by unique struggles like the Civil War. Modern English lawyers stand in a more unbroken line, which we observed through experiences like attending services at the Temple Church amidst the graves of men responsible for the Magna Carta, being introduced to the luminaries of legal London in the centuries-old lower hall of Lincoln's Inn, or eating lunch at Middle Temple where the first performance of Shakespeare's Twelfth Night was held. While the American fascination with Magna Carta was occasionally a source of amusement for our hosts - one remarked that an English lawyer who cited the document would certainly be asked by the judge if he had anything more recent to rely on - it is hard not to recognize the influence of the uninterrupted chain of history on lawyers who work and eat and study in the same halls as those who created the tenets that underlie the entire common law tradition.
The second and third weeks of the program were a fast-forward into the present of English law. Modern barristers face the extraordinary challenge of combining those ancient aspects of the profession with the modern subjects of litigation and the demands of current clients. It is admittedly somewhat odd to watch a barrister in the traditional wig and gown argue a question of patent law addressing details of the most modern technology to a judge in the traditional red and black robes of the chancery court. But make no mistake, for these lawyers, practice is modern and sophisticated. Like the dockets of American lawyers, the barristers I sat with were working on issues of intellectual property, arbitration, insurance, and transnational transactions. However quaint the traditions of the bar might seem at a glance, there is no doubt that COMBAR lawyers are on the cutting edge of today's legal issues and disputes.
And in terms of confronting the realities of the present day, finances were a question of great concern to everyone with whom we met. One discussion we had frequently with our hosts concerned cuts to the budget for publicly funded attorneys. The financial crisis of recent years has required serious austerity in England, and the government has insisted that legal aid budgets bear substantial reductions. Legal aid in the UK, however, is much broader than it is in the United States, encompassing not only representation for criminal defendants but also help in some areas of family and financial law as well. Further, criminal defendants are not required to take an assigned attorney based on who is on duty that day, but instead have the right to counsel of their choice. So in some respects the concern expressed by English barristers about the cuts to legal aid was surprising, because the American conception of what representation should be funded by the state is much narrower. But on the other hand, we could easily understand their concern that these cuts would make it impossible for attorneys to make a living in criminal and family law, resulting in fewer attorneys in those areas of practice and poorer representation for the litigants perhaps most in need of professional assistance.
While some of these budgetary concerns seemed unique to the English model of legal aid, our discussions about the cost of entering the legal profession were quite common. British lawyers were frequently astounded by the cost of American law school - often on the order of ten times the cost of the bar preparation course in England. But whereas any American law school graduate who passes the bar exam can practice and work as a lawyer to earn a living, English lawyers must incur those expenses without the certainty that they will be able to secure a pupillage and ultimately be called to the bar. However, as new regulations are breaking down the ancient barriers in the profession that limited rights of appearance in court to barristers, more attorneys may find it appealing to work as solicitors, and the traditional methods of evaluating new applicants to the bar may have to adapt to those changes as well.
Our final week gave us a look at the future of English law. The Supreme Court of the United Kingdom is the newest part of the legal system, having taken over the responsibilities of the Law Lords only 4 years ago. Its newness is evident not just in its home - the old Middlesex Guildhall on the outside, modern construction with bright glass and a new seal inside - but in its docket. The bulk of our visit was spent observing an argument about ways treatment of the mentally ill might be governed by the European Convention on Human Rights. Little of the oral argument focused on English law, but instead was primarily about decisions of the European Court of Human Rights in Strasbourg, France. And the judicial assistants were curious about our views on the recently-argued question of the rights of innkeepers to refuse service to same-sex couples. To address such modern questions, the Supreme Court has taken on a modern look, with no robes, no wigs, no elevated bench, and a high-tech operation that occasionally broadcasts via YouTube.
But that modernity is coupled with the best tradition of the English bar - the generosity and collegiality of its members. Throughout our visit our hosts were extraordinarily gracious. The Justices of the Supreme Court welcomed us, and even in the midst of a week of oral arguments took time both to compare our nations' respective legal approaches and to discuss Lord Wilson's theater recommendations over lunch. Likewise the barristers I shadowed were extremely inclusive, from discussing different English and American approaches to the textual interpretation of contracts, to poring over old colonial maps in search of answers in an African border dispute. The Inns of Court made clear that we were always welcome, including us not just for a quick tour of the grounds, but for lunches and serious discussions about the issues facing the Inns in the coming years. All in all, our COMBAR hosts could not have made us feel more welcome.
It is easy to highlight the differences that struck us most during our time, but the reality is that the work of English and American lawyers is not all that different. The common law ethos of reading cases, gleaning their meaning, distinguishing their facts, applying them to an ongoing dispute, arguing the point to a judge, and drafting the resulting judgment is a familiar one that we will always share, even if we differ in the finer details. And the English tradition of excellence in the bar, devotion to service on the bench, and hospitality and graciousness in all is one that we were so fortunate to experience thanks to the Temple Bar program, and hopefully we can emulate that tradition in our own practice at home.
David W. Denton, Jr.--graduated magna cum laude from Harvard Law School in May 2011. He served on the editorial staffs of the Harvard Journal of Law and Public Policy and the Harvard Law Review, ascending to the role of executive editor of the Law Review during his final year. Denton garnered several awards while pursuing his legal education, including the George Leisure Prize for Best Oralist in the Ames Moot Court Competition; the Addison Brown Prize in Maritime or Private International Law; and the Irving Oberman Memorial Prize in Constitutional Law. Upon graduating from law school, he clerked for the Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit in Charlottesville, Virginia. A native of New York, Denton earned his undergraduate degree from Yale University, where he achieved frequent recognition for his debating skills. Denton currently resides in Washington, DC, where he serves as a clerk for Associate Justice Anthony M. Kennedy of the Supreme Court of the United States.