Cases that Changed Our Lives again

A note on the book (which is available for purchase here) from a US perspective.

Cases that Changed Our Lives is a new publication by LexisNexis. It consists of 24 essays on great cases in the common law, from the United Kingdom, the United States and Australia, together with a preface by leading counsel for LexisNexis International and a foreword by Lord Neuberger MR, one of the United Kingdom’s most senior judges.

All lawyers have an inbuilt need to revisit the past. After all, that is the basis upon which common law is founded. The purpose behind this book is to revisit some of the great cases of the common law’s history, and to cast a fresh eye on the reasoning behind those cases and the legacy each has left on the common law. In this way it forms part of LexisNexis’ commitment to supporting the rule of law, one fundamental aspect of which is open and robust debate about the rules which govern our lives. The book is being launched at the International Bar Association Conference in Vancouver in October 2010.

As well as the questions of high legal principle, the book also reflects on some of the human stories behind the litigation. Sometimes great cases have involved great statesmen. Equally often, however, momentous legal rulings have arisen from the dealings of people whose lives were otherwise lived in complete obscurity. Others may have been famous once but have long since vanished from the public imagination.

The book was compiled in the UK, and the majority of the essays are English cases. Two cases are included from the United States. Kenneth R Thompson II, Global Chief Legal Officer for LexisNexis, has written on the constitutional milestone of Marbury v Madison. Henry Z Horbaczewski, General Counsel of Reed Elsevier, has written about the notorious Plessy v Ferguson, a case well known for the famous dissent of Justice Harlan and equally well known for the infamous decision of the majority.

The relevance of the book to American lawyers, academics and indeed anyone interested in political affairs goes well beyond those two cases, however, for two primary reasons.

First, several of the English cases had a great influence on the development of American law. Dr Bonham’s case in 1610, the subject of the first essay, was decided by Sir Edward Coke, a jurist widely read and respected amongst American lawyers of the day. The decision continued to be cited in American courts years after independence. Ironically, Coke’s central holding in the case – concerning the ability of the courts to strike down legislation – was clearly echoed in the United States in Marbury v Madison (and often cited in its antecedents), even though it came to be disowned by Coke’s successors on the English bench. And the second case in the book, the trial of Dr Sacheverell, gave rise to the “Riot Act” which was replicated on numerous occasions in the United States in the years after (as well as being a common expression in popular culture to the present day).

Secondly, and perhaps more importantly, the discussion of the cases shows legal reasoning in action, something of universal interest to lawyers from the common law tradition. Each case reveals an attempt to resolve some of the most difficult moral issues. For example, the legendary case of cannibalism on the high seas, R v Dudley & Stephens, where shipwrecked sailors resorted to killing and eating the innocent cabin boy (only to find themselves rescued and charged with murder), was the inspiration for a famous essay by the great American legal scholar Lon Fuller (“The Case of the Speluncean Explorers”, Harvard Law Review, Vol. 62, No. 4, February 1949, p 616). It remains good law to this day in England and Wales for the proposition that necessity is no defence to murder, but the moral dilemma it raised is just as acute today as in the very different world of Victorian England.

The equally tragic and much more recent cases of Diane Pretty and Debbie Purdie concerned the issue of whether assisted suicide should be legalised, thus granting each of the women (both of whom had contracted terminal illnesses) the right to die in circumstances of their own choosing. The magnitude of the moral issues needs no elaboration.

In chapter VI we consider the United Kingdom’s response to terrorism in the twenty-first century – which was of course initially in response to the appalling act of terrorism on United States’ soil in September 2001. The classic fundamentals of freedom under law – the right to habeas corpus, to know the case against oneself, to proceedings in open court – have all come under scrutiny and indeed some strain as the state has tried to deal with the evasive threat of terrorism. In particular, how does society apply apparently fundamental rights to someone strongly suspected of being a potential mass murderer, but who hasn’t in fact yet committed any crime? Is it really better, as the old legal saying goes, for ten guilty men to go free than one innocent to be wrongly imprisoned, if one or more of the ten guilty men then proceeds to engineer a terrorist attack on thousands?

With respect to each case readers will no doubt contrast the British decisions with those of leading United States’ courts. They might find particular interest in the fortunes of the supermodel Naomi Campbell, who fought to silence what she considered an invasion of her privacy by a tabloid newspaper. The newspaper, spoiling for a fight, quickly fashioned itself as the champion of press freedom. The subsequent legal battles as set out in the essay bring to mind the differing fortunes of the late Rev Jerry Falwell in the United States during his legal clash with the publishers of Hustler magazine.

Other issues covered, including property rights as between married and unmarried couples, the right of children to consent to medical treatment, land law, freezing injunctions, liability in tort and the duty of the state to protect the lives of those in custody, will all resonate with American readers.

American constitutional lawyers might also read with interest the influence of the European Union, begun as an economic arrangement but steadily (and inexorably?) marching in the direction of a federation, on English law. And they will need no introduction to the subject matter of the two Australian cases – indigenous rights and constitutional freedom of speech.

It was inevitable that whatever list of cases we devised would be controversial. Equally, some will object that there were more logical groupings for the chapters. We expect – and welcome the fact – that they will do so. Our response to such anticipated criticism is threefold. First, no-one is ever going to agree on the final list, not for a book of manageable proportions anyway.

Secondly, there is always volume II! (and possibly III, IV, and beyond ...).

Finally, if by making the “wrong” choices we have at least managed to provoke debate about the relative importance of famous cases and therefore the workings of the law, then we will have achieved what we set out to do.