“War against the Constitution”

This chapter recounts the battles outside and within the Supreme Court over the five cases, first argued in 1952, argued again the following year, and decided in May 1954 under the caption Brown v. Board of Education of Topeka, Kansas. The chapter draws on transcripts of the lawyers’ oral arguments, notes of justices from the Court’s closed-door conferences to debate and decide cases, and the Court’s unanimous opinion striking down public school segregation. Among the dozen-plus lawyers who argued the five cases, Thurgood Marshall as NAACP general counsel and John W. Davis, former Democratic presidential candidate and U.S. solicitor general, who both argued in the South Carolina case, presented a sharp contrast over the rights of states to impose segregation in public schools. The Court’s closed-door conference after these arguments exposed a rift, with at least one and possibly four justices unwilling to jettison the Plessy “separate but equal” doctrine. Concerned that a split decision would inflame the heated national debate, Justice Felix Frankfurter proposed a second round of arguments a year later; the sudden death in September 1953 of Chief Justice Fred Vinson led President Dwight Eisenhower to name California governor Earl Warren to replace him. Warren used his personal charm and political skills to cajole the Court’s holdouts to join a unanimous decision. However, a third round of arguments on “implementation” of integration allowed Jim Crow schools to proceed with “all deliberate speed” in complying with the Court’s decree, which led to decade-long foot-dragging by southern officials. The chapter concludes with an account of the Little Rock, Arkansas, integration case, Cooper v. Aaron, holding that state officials could not wage “war against the Constitution” by resisting the Court’s orders.

6. Personnel of the English Legal System

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter looks at the multitude of different professionals, both legal and lay, in the English legal system (ELS). Legal professionals, often referred to as ‘lawyers’, includes such individuals as solicitors, barristers, legal executives, and paralegals. Barristers and solicitors were traditionally two very distinct roles in the ELS. Nowadays, a fusion of roles has occurred, meaning that the two professions are not as different as they formerly were. Meanwhile, judiciary refers to the various judicial ‘offices’ and ‘office-holders’. Law officers are the individuals responsible for the operation of the ELS and include such persons as the Attorney General and the Solicitor General. Court staff are the individuals involved in the day-to-day running of the ELS and include such persons as clerks, ushers, legal advisers, and many other persons. Finally, laypersons refer to a special class of individuals—namely magistrates and juries responsible for trying cases in the Crown Court and magistrates’ court respectively.

Constitutionalism and the Westminster Model

This chapter evaluates the constitutional framework of the United Kingdom, revealing a disturbing new settlement of State power. In particular, it hones in on the ‘Westminster Model’ of government which advertises a strict separation of powers supposedly insulating judges from direct executive influence. An altogether different reality emanating from the archival trove of intergovernmental files is found; one which challenges the grundnorm of judicial independence embedded within the Westminster model of governance. Although Executive dominance of the judiciary runs contrary to basic texts and beliefs, this chapter lays out an alternative perspective which implicates the senior judiciary in subterranean policymaking that has led to the steady erosion of procedural due process. It examines where the Civil Service fits into this picture, and draws attention to its servants’ inherent shortcomings as ‘bureaucrats of the law’ having assumed responsibility in large part for the body of sub-standard work distributed under the misnomer: ‘Judges’’ Rules. It explains how, on the critical issue of an individual’s vulnerability when confronted by police power, civil servants, tasked with furthering the ‘public interest’, were far more adept at bolstering ‘police interests’, with backing from the then Head of the Judiciary (Lord Chancellor) and his Law Officers (the Attorney-General and Solicitor-General). By documenting key historical events that impacted upon the criminally suspected or accused, awareness of which has been muted or unknown, this Chapter explains how the doctrine of the Separation of Powers is contravened and the principle of judicial independence muddied to the point of non-recognition.

The evolution of a public sentinel: Australia’s Solicitor General

N/A

Gentlemanliness, Status and Law in Anthony Trollope’s Lady Anna

Despite the little critical attention it has received, Lady Anna is exemplary in Trollope’s output as a novel in which contemporary ideas of Englishness, gentlemanliness and the law are not only questioned, but also complicated and conflated in various ways. Whereas the majority of scholars have focused their analyses on the legal intricacies of the dispute involving Lady Anna and occasionally on the reflection on true gentlemanliness, which indeed is the central concern of the novel (most often simply to ascertain whether the son of a tailor could be a gentleman or not), the present contribution intends to re-assess the paradigms of masculinities embodied by the male protagonists of Trollope’s novel, and to verify to what extent the gentlemanly status can also be granted to the law’s representatives, in particular to the Solicitor-General Sir William Patterson in both his private and public roles. The various and opposite criteria adopted by the different characters to judge and define a gentleman mirror the epistemological changes that had been re-shaping the debate on its figure, thus disclosing a social texture in which old and new notions of gentlemanliness co-existed.

Sir John Salmond and Maori Land Tenure

This chapter is deals with Salmond's engagement with Maori land issues, principally in his capacity as counsel to the Law Drafting Office and while Solicitor-General. Salmond appears to have had firm views on the extent of Native title in New Zealand, arguing either that all land vested in dominium in the Crown on the acquisition of British sovereignty, or, as a kind of fall-back position, that there were at least some parts of the Dominion, such as navigable lakes or the foreshore, where native title could not be asserted in any circumstances, not even in the Native Land Court. While it is tempting to conclude that Salmond's views were nothing more than the orthodoxy of the day, this paper argues that matters were more contested than is sometimes thought. Salmond developed considerable expertise in the technicalities of Maori land law, an expertise developed initially in the drafting of the Native Lands Bill of 1909 and which is reflected in various opinions he prepared while Solicitor-General and in his famous dissenting judgment in Boyd v Mayor of Wellington.