Daniel A. Rubens

2014 Temple Bar Scholar Report 

The timing of this year's Temple Bar Scholarship Program could not have been more fitting. As we were often reminded during our stay in London, the coming months will mark the 800th anniversary of Magna Carta. That document, of course, is renowned throughout the world as a symbol of the rule of law and the protection of individual liberties. Ironically, some of our hosts remarked, Americans tend to celebrate the Great Charter with even more enthusiasm than the English themselves. During my month of immersion in London's legal center as a Temple Bar Scholar, I often saw a similar dynamic at play: despite the relative youth of the United States as compared with the English legal system's ancient lineage, there are many instances in which the English have opted to adapt and innovate practices that Americans have retained in their traditional forms. The Temple Bar program helped me to appreciate not only the important and extensive shared foundations of the Anglo-American legal tradition, but also the surprising ways in which these common concepts have followed different trajectories on either side of the Atlantic.

One of the early highlights of our month-long visit was attending the Opening of the Legal Year Ceremony in Westminster Abbey, an event replete with distinctive customs. Never before had I witnessed a legal occasion marked by as much pomp and circumstance: a lengthy procession of judges attired in a kaleidoscope of colorful robes and varied horsehair wigs, the recitation of prayers, and the singing of hymns. Viewed from the perspective of an American accustomed to separation of church and state, this religious ceremony honoring the legal community felt strange at times, but it was evident that these traditional observances serve to foster a feeling of continuity and shared purpose.

As I began to get my bearings navigating the major sites in England's legal center, I noticed that this sense of cohesiveness is reflected in and reinforced by Legal London's geography. With barristers' sets largely clustered around the four historic Inns of Court, one would regularly encounter familiar faces while traversing the narrow walkways and manicured quadrangles. Quite a contrast from commercial practice in United States, where lawyers tend to be dispersed in skyscrapers scattered throughout our cities, and opportunities for serendipitous face-to-face encounters are few and far between.

The first days of our program included a number of instructive meetings with the leaders of the United Kingdom's bench and bar. These discussions reoriented my focus from differences to similarities: Once we got down to business, it became clear that the big questions on our hosts' minds hit very close to home. To be sure, some of the paramount issues we canvassed are particular to the European context: to what extent, for example, should the English courts be bound by determinations of the European Court of Human Rights in Strasbourg? But much else touched on universal concerns: How can access to justice be maintained during a time when legal aid budgets are being drastically slashed? What steps can be taken to open the legal profession to persons of all means, when the cost of education and training is often prohibitive to all but the wealthiest? And how can we ensure that the highest ranks of the legal profession reflect gender equality and the ethnic diversity of the nation at large? Although these conundrums do not lend themselves to easy answers, it was fascinating to hear our hosts' fresh perspectives.

My placements in two sets of barristers' chambers (3 Verulam Buildings and Fountain Court) and a firm of solicitors (Peters & Peters) provided an invaluable glimpse into the practice of lawyers at the top of their game. Again, while some of the trappings of English proceedings strike an American observer as rather quaint-the forms of address of "My Lord," "Your Lordship," and "my learned friend" come to mind-I saw that the English system stands ready to innovate and adapt.

With respect to commercial litigation, the values of modernity and openness manifest themselves in the sleek, contemporary architecture of the recently constructed Rolls Building, home to the Commercial Court and Chancery Division. What took place inside the courtrooms there likewise struck me as anything but antiquated. The presiding judge, who was a specialist in the field, would appear dressed in business attire (that is, sans wig or robe), just like the barristers who presented argument. In accordance with this collegial atmosphere, counsel's presentations were unfailingly polite and modulated. Perhaps these qualities stem from the fact that commercial cases are tried to a judge rather than a jury, English law having largely done away with the civil jury right that our Seventh Amendment still guarantees.

Our time in London concluded with a memorable placement at the Supreme Court of the United Kingdom. The U.K.'s highest court, counterintuitively, is an institution still in its infancy; it has existed only since 2009, when the judicial functions of the House of Lords were transferred to the newly created tribunal located across Parliament Square in the former Middlesex Guildhall. The decision to house the Supreme Court in a freestanding building symbolizes the judiciary's independence, and the building's public spaces have been designed to ensure that the Court and its proceedings are accessible and comprehensible to visitors. The Justices and their judicial assistants demonstrated this institutional commitment to transparency while serving as our gracious hosts for the week, fully integrating us into the Court's operations and taking pains to help us understand and contextualize what we saw.

Again, much was unfamiliar-the English style of oral advocacy is free-flowing and protracted, with arguments often spanning multiple full days. The Justices have fostered a relaxed, collaborative atmosphere by situating their bench on the same level as arguing counsel and, like their Commercial Court counterparts, eschewing wigs and robes.

Substantively speaking, it was difficult to conceive of a U.S. analog to the main argument we watched that week, which involved the allocation of European Union structural funds among various regions of the United Kingdom. Similarly exotic was an appeal where the Supreme Court Justices sat as the Judicial Committee of the Privy Council in review of a judgment of Gibraltar's highest court concerning a dispute over the ownership of a valuable collection of Art Deco furniture.

On that note, I was amazed to learn that the U.K. Supreme Court Justices, in their Privy Council capacity, continue to serve as the court of last resort for a number of current and former Commonwealth countries and overseas territories. That ongoing role is a reminder that English jurisprudence is global in scope. As we saw repeatedly over the course of the month, a large percentage of the commercial disputes heard in English courts involve foreign citizens or enterprises on one or both sides, a testament to the worldwide perception of English tribunals as stable and unbiased decisionmakers.

Shortly after returning to Washington, I had the pleasure of attending a Magna Carta celebration at the Supreme Court, an event hosted by the American Inns of Court along with the Honourable Society of the Inner Temple and the Honourable Society of the Middle Temple. What a treat it was to hear the Temple Church Choir perform in the Great Hall, and then to proceed to the Courtroom for a spirited panel discussion featuring leading judges and scholars from both sides of the pond. Looking up at the engraving of King John holding Magna Carta on the Courtroom's frieze, I was reminded yet again of the profound ties between our two legal systems, as well as the many personal connections I forged during the program. This event was a perfect bookend to the month in London, and a welcome reminder that even though my time as a Temple Bar Scholar has come to an end, there will be many opportunities ahead to continue these transatlantic exchanges.

I am deeply grateful to Cindy Dennis, Chief Judge Carl E. Stewart, Brigadier General (Ret.) Malinda Dunn, the American Inns of Court, COMBAR, and our many kind hosts in London for their help in designing and sustaining this once-in-a-lifetime experience.

Daniel A. Rubens is a law clerk for Associate Justice Ruth Bader Ginsburg of the Supreme Court of the United States. He graduated with distinction from Stanford University with a bachelor's degree in History and minors in Economics and Spanish. Enrolling at Harvard Law School, Rubens participated in the Supreme Court and Appellate Litigation Clinic and served as Executive Editor of the Harvard Law Review. After earning his juris doctor magna cum laude, Rubens worked as an associate at Wachtell, Lipton, Rosen & Katz and completed clerkships with Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York and with Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit.