Stern on Mansfield, Burrow, and the Reformulation of the Legal Decision @ArsScripta @CambridgeUP

Simon Stern, University of Toronto, Faculty of Law, is publishing Mansfield, Burrow, and the Reformulation of the Legal Decision in British Law and Literature in the Long Eighteenth Century (Melissa Ganz, ed., Cambridge University Press) (forthcoming).

Whereas scholarship on the role of precedents and precedential reasoning in law has tended to focus on questions concerning a commitment to stare decisis, and the nature of analogy and justification, this discussion focuses on rhetorical and formal features of legal opinions, such that they present themselves as eligible for use as precedents. A judge’s deliberate effort to create a precedent manifests a distinctive conception of the judicial role—a conception that carries with it a raft of assumptions about the law’s role in guiding behavior, the public’s access to judicial decisions, and judges’ ability to understand and anticipate the typical person’s response (such that the proposed solution can be expected to achieve its goal). Lord Mansfield, Chief Justice of the King’s Bench from 1756 to 1788, used a range of rhetorical and formal features to indicate that he was changing the law and to signal that a given decision should govern future cases. These include express rejection of earlier cases, careful articulation of the holding in a prominent place to enable its future use, and more explicit presentation of the facts than many of his precursors and contemporaries. His law reporter, James Burrow, credited as the creator of the headnote, complemented these efforts through his use of typography and page layout. Burrow’s ideas about clearer, fuller, and more focused reporting of legal decisions probably owed a considerable amount to his longstanding involvement with the Royal Society, whose published Transactions exhibit a series of generic changes in the first half of the eighteenth century, anticipating in some respects those that Burrow would adopt.

Download the essay from SSRN at the link.