Minority report

I love it when lawyers are critical of law-makers, whether parliament or judges. We are so polite. One contributor to this book puts it nicely: ‘It is respectfully submitted the minority view may be preferable.’ This is legalese for ‘they got it wrong’. The book’s thesis is that the dissenting view is sometimes better law which is followed later by the courts. That is not much comfort to the litigant who came second, of course. I remember a story of someone tracking down the descendants of famous litigants, putting them in a room and seeing if they got on well together. But that might be apocryphal.  

This is a collection of articles by academic authors which focuses on the dissenting judgments in various leading cases. The areas of law include tort, commercial law, public law and crime. It reminds me of my law course and the discussion of finer points of law on charter parties, third parties and exclusion contracts. The most interesting section is about the US perspective on judicial dissent. It discusses a case on eugenics and includes the statement that ‘three generations of imbeciles are enough’ (referring to the subject matter of the case, and not the judges). The tradition in America at one time was for the minority judges not to hand down dissenting judgments at all and simply acquiesce with the majority. There were exceptions to that rule of course but it seems to have fallen out of favour now. 

Some chapters cover obscure areas of study. I found the criminal section interesting and also an article on Denning’s dissent in a contract case when he was in a minority of one (as he often was). When I was a student, Lord Denning was a hero of mine but he seems to be less well-known now. There is an interesting comment on his efforts to reform law without the assistance of parliament. 

There is much to be said for dissent. All legal reforms must have been a dissenting view at one point in time. This interesting and unusual topic reminds us that in law, the minority view is often the voice of common sense. But then lawyers are used to being in the minority.  

David Pickup is a partner at Pickup & Scott Solicitors, Aylesbury