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My law student  friends will already know that the UK is replacing its court of final appeal, the Judicial Board of the House of Lords with a new court. What they will not know is that America is claiming this as a victory for themselves: see Wall St Journal article here: http://online.wsj.com/article/SB125573382497890937.html?mod=rss_whats_news_us#

You see as  Justice Breyer (Associate Justice of the United States Supreme Court, I have to remind you cause he’s the forgettable one) says, “over 200 years or more of our Supreme Court history, the cases are filled with references that show our law is based on English law. They are perhaps taking a leaf from our book.”

You see, the UK decided to rename its highest court to the Supreme Court of the UK. Apparently Americans thought that sounded too similar to the Supreme Court of the US, and have pre-emptively decided that they were copying the Americans. Don’t worry about the fact that the highest courts in the former British Empire are also called the Supreme Court (Australia being an axception,our state courts were already called Supreme Courts and we thought it would be silly to have both our federal and state courts called the same thing).

They also proclaim that this is following the American-style separation of powers. Its not really important that the Westminster Principle of Minsterial Responsibility still ties the executive and the legislature into one branch. Nor is it important that the UK only split its legislature and its judicature because it joined the EU, and the EU Human Rights Charter forces them to split the two. Nor indeed is it important that the very notion of separation of powers derives from Baron de Montesequieu’s (somewhat short-sighted) observations of the UK’s system of government.

And let’s not also forget that the whole change is remarkably controversial because, as critics all say, the UK risks having a completely dysfunctional system of government like the US where the judges and the legislature vie for power.

However, more amusingly, this article also reveals the deep shame Americans feel about splitting off from the Empire in the first place. Dangit, they say, we should have done it peacefully like the Australians, the Canadians, the South Africans, the New Zealanders… all this guilt. Maybe that’s why, as the WSJ notes, the SCOTUS still regularly cites English precedent. Scalia J cited 10 UK cases in one 2008 decision. One the left, Stevens J cited English decisions going back to the Magna Carta in a 2004 Guantanamo case. On the other hand, the UK courts rarely bother consulting American cases. Funny that.

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3 Comments

  1. I always though it was the Judicial Committee of the Privy Council.

    Anyway, have you read this article. It notes that SCOTUS is guiding fewer and fewer overseas courts. Something about poor quality of jurisprudence…

  2. Yes, the Judicial Committee of the Privy Council, but I was under the impression that the full title of the House of Lords (as a court) was the Judicial Board. However, a quick Google search reveals that I am wrong.

    That is a really fascinating article. Probably something to do with overseas courts being too lazy to find ratio in 4:3 decisions where each justice rules on a completely different rationale to the others.

  3. Oh and lol at the SCOTUS decisions impacting foreign constitutional law, but Scalia et al refusing to use foreign law to inform understanding of US Constitutional law.

    How parochial.


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