Hannah L. Templin

2024 Temple Bar Scholar Report

The Temple Bar Scholarship Program provided an excellent window into the differences between the US and UK legal systems.  Scholars spent our first week orienting ourselves in legal London—touring the inns of court, speaking with judges, visiting chambers, and attending a ceremony at Westminster Abbey marking the start of the new legal year.  Afterwards, we were placed with barristers who brought us to court, provided us with examples of pleadings or judgments, and shared their experience practicing in England.  We ended our time in London at the UK Supreme Court, where the justices hosted us for a week of oral argument.  Many thanks to Cindy Dennis for arranging the program and to the judges and barristers who welcomed us into their offices and shared their insights!

An American lawyer’s principal role is advocate. The Model Rules of Professional Conduct define a lawyer first and foremost as “a representative of clients” and suggest that our contributions to the legal system or entire country flow from zealous advocacy.  English lawyers are also zealous advocates, of course.  But the UK legal system seems to emphasize a lawyer’s expertise more than his or her relationship with clients.

Start with the credentialing process.  Prospective American lawyers must pass a bar exam before we set up shop, but afterwards, there are no restrictions on the scope of our practice.  We can become transactional attorneys, in-house counsel, or litigators—or all three over the course of our careers.  And a single lawyer often manages all aspects of a case: client relations, discovery, and oral argument.  In England, by contrast, prospective lawyers choose between client-facing or transactional work and litigation—i.e., between becoming a solicitor or a barrister.  Most English lawyers become solicitors, and their primary role is managing clients and developing the case, including by gathering witness statements.  Solicitors can obtain authorization to appear in court, but they rarely do so.  Instead, in-court proceedings are handled by-and-large by the relatively small percentage of English lawyers who become barristers.  The process for becoming a barrister is arduous: candidates must complete a one-year apprenticeship (called “pupilage”) to a more experienced barrister before they can appear in court.

Next, consider the lawyer’s practice.  Most American lawyers have a generalist, non-ideological practice, but some work to advance a particular view of the law.  Criminal lawyers either prosecute or defend. Conservative or liberal lawyers can join state or federal governments that share their political values or alternatively public interest firms that advocate on particular issues—free speech, religious liberty, prison reform, deregulation, etc.  That sort of ideological sorting is foreign to the UK.  Barristers are self-employed, so while they may represent the government, there isn’t a class of “government barristers” like there is in the US.  Further, barristers are required to take any case, assuming they have time and sufficient expertise.  Thus, a criminal barrister may prosecute one week and defend the next, and a commercial lawyer may represent plaintiffs one day and a corporate defendant the next.

Finally, compare the courts.  The United States has some specialist courts—the Court of Federal Claims, the Court of Appeals for the Armed Forces, or state courts of criminal appeals, to name a few—but most courts are generalist.  Federal trial judges hear criminal trials alongside complex commercial ones, and appellate judges are assigned to appeals at random.  By contrast, England has several specialist courts, such as the Old Bailey, which handles criminal cases, and the self-explanatory Commercial Court.  What’s more, judges sometimes need special authorization to hear certain types of cases.  For instance, not all criminal judges can preside over murder or rape trials.  And—at least on the Supreme Court—a justice’s assignment to a particular case is not necessarily random.  For instance, in a case we observed about sexual assault trials in Scotland, the panel was intentionally comprised of Scottish, female, and criminal-focused justices.

This specialization extends into the judicial nominations process.  Federal judges in the United States often have impressive resumes, but there is no set path to the nomination.  Nominees may be fairly young, perhaps in their 30s or 40s.  They need not serve on a state court before their federal nomination. And appellate judges are not expected to work their way up from the district court.  In England, by contrast, judges are often appointed later in their career—when they are in their 50s or 60s, perhaps.  Prospective judges have often served as part-time volunteers before they formally take the bench.  And commonly, appellate judges have previously served on a lower court before elevation.

The UK view of judges as specialists may explain another difference between our systems: many barristers or judges are horrified by the idea that a judge might have a particular judicial philosophy or ideology.   UK judicial assistants (i.e., law clerks) were surprised that the American justices hire their clerks based, in part, on ideological fit.  The application process at the UK Supreme Court, by contrast, is centralized, and many judicial assistants said that they do not know their boss’s ideological leanings.  That is perhaps unsurprising considering that many barristers believe that all UK judges share the same interpretive methodology, as borne out by the high rates of unanimity at the Supreme Court.  (In the 2022-2023 court term, the Supreme Court reported dissents in only 7 judgments!)

This methodological uniformity may be explained by two additional differences between the US and UK legal systems.  First, the countries’ constitutions.  The United States has a written Constitution, which explicitly constrains political actors.  Congress and the Executive must stay within the lanes provided them by the first two Articles, and both the federal and state governments are obliged to respect citizens’ free exercise of religion, free speech, and other fundamental rights.  Consequently, the judiciary has been asked to adjudge the validity of political decisions since the beginning of the Republic: consider Hylton v. United States, the 1796 Supreme Court case opining on one of the hottest topics of the day, Congress’s apportionment of direct taxes.  By contrast, UK judiciary has a much smaller constitutional role.  The United Kingdom does not have a written constitution, and fundamental to its unwritten constitution is the notion of parliamentary supremacy.  Thus, courts are often implementing the wishes of Parliament, rather than asking whether they conflict with some higher law.  This is illustrated well by the fact that the UK Supreme Court is quite young: until 15 years ago, the highest “court” in England was a committee of the House of Lords.

The closest thing in the UK to our Bill of Rights is the European Convention on Human Rights.  During our week at the UK Supreme Court, we attended argument in two challenges brought under the Convention—one about the scope of an accused sex offender’s defense and another asserting a right to expungement for reformed felons.  These challenges at least superficially resemble those brought under our Due Process Clauses or Sixth Amendment.  Even so, a hypothetical judgment that the government was in violation of the Convention may have less bite than a Miranda, Mapp, or Crawford because, under parliamentary sovereignty, the government can at least theoretically decline to comply with the Court’s judgment.  And at any rate, the Supreme Court is only the equivalent of our courts of appeals in the Convention’s judicial system: it is subordinate to the European Court of Human Rights and bound by that court’s precedent.

These structural differences may explain why debates over judicial methodology are central in the United States but relatively non-existent in the United Kingdom.  American judges hearing high-stakes cases are incentivized to develop a neutral methodology—they do not want the loser to believe that the game was rigged from the start—but perhaps predictably, reach different conclusions about what that looks like.  English judges, by contrast, are bound by the methodology emanating from Strasbourg in many “political” cases, and they can pass the buck to Parliament in many others.  So it may be less imperative for them to debate judicial philosophy.

Second, the judicial nomination processes.  Because the American judiciary is a check on the political branches, the Constitution gives the political branches a check on it too.  The President nominates judges, and the Senate decides whether to confirm.  This democratic check means that if the people or their representatives are unhappy with how judges interpret the Constitution or federal laws, they can eventually replace those judges with others who take a different approach—consider FDR’s replacement of the Four Horsemen with New Dealers or the conservative push to appoint more originalists after decisions such as Miranda and Roe.  And that means judicial philosophy takes center stage in the American process.

In England, by contrast, judges are appointed by a nonpartisan commission comprised of both lawyers and laypeople.  Because the system is predicated on parliamentary supremacy, there may be less of a need for political actors to have a check on the judiciary.  If anything, the opposite problem exists: litigants may need to be reassured that their judiciary is truly independent.  Creating an independent commission to select judges based on merit is one way to address that concern—but one effect of that system may be lessening methodological disagreement.  For one thing, commissions do not generally publicize their proceedings—or at least they are not as open as a Senate committee hearing.  And it may be hard to have a rigorous methodological debate behind closed doors.  For another, the commission system may allow the dominant methodology to essentially self-perpetuate.  If lawyers and judges are asked to identify the people most qualified to sit on the bench, it should not surprise if they pick people who see the law as they do.

All that said, changes may be on the horizon.  Though many in the UK legal profession believe that their judiciary is apolitical, a growing cohort in the Conservative Party feels otherwise, particularly in the wake of a Supreme Court decision thwarting the government’s attempt to remove asylum seekers to Rwanda.  In response, some Conservatives advocate leaving the European Convention on Human Rights, and others have proposed giving the Minister of Justice some control over judicial appointments.  The Left has its criticisms too.  Several individuals we met with suggested that the judiciary is too white and too male, and they indicated that there is a push for race and sex to factor more heavily in judicial appointments.  It will be interesting to see whether the UK judiciary moves in either of those directions and, if so, what results.