The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
- Sir John Baker is perhaps the leading English legal historian since Maitland, and the author of the widely and justly acclaimed An Introduction to English Legal History. Those involved in debates on statutory interpretation should make themselves familiar with his case comment on Pepper v. Hart. He discusses the rule against invoking the opinions expressed by legislators in their debates, situating it within the common law tradition. He also trenchantly discusses the relation of the text to legislative purpose. This brief piece deserves to be better known. And one of his points, which could be paraphrased as "we're all purposivists now" can be usefully (and subversively?) paired with Justice Kagan's "we're all textualists now." The case comment is Statutory Interpretation and Parliamentary Intention, 52 Cambridge L. J. 353-357 (1993).
- This morning I was reading a brief review of his The Law's Two Bodies: Some Evidential Problems in English Legal History (2002). The review included these lines, which are fascinating for a teacher of civil procedure, since they suggest the current emphasis on settlement is a kind of regression to the mean: "[Also very valuable] is [Baker's] insistence that, well into the sixteenth century, the intention of litigation, and thus of the rules and procedures of the courts, was to avoid final decision-making. The complex rules, the tedious formalities, provided a framework within which litigants could be persuaded to negotiate a compromise settlement." Owen Fiss would not be pleased.