Tuesday, February 11, 2014

William Blackstone: Courtroom Dramatist?

Simon Stern, University of Toronto Faculty of Law, has posted William Blackstone: Courtroom Dramatist? which is forthcoming in Re-Interpreting Blackstone's Commentaries: A Seminal Text in National and International Contexts, ed. Wilfrid Prest (Oxford: Hart, 2014).  Here is the abstract:    
This book chapter discusses William Blackstone's role as a judge, in relation to accounts (such as Bentham's) that portrayed him as "formal, precise, and affected." Rather than evaluating legal performance, in the courtroom, by reference to binaries such as formal/informal, cautious/inquisitive, or stolid/creative, I argue that the success of a legal performance depends on the speaker (e.g., witness, lawyer, judge), the audience (e.g., jury, judge, public), and the subject (e.g., the prosecution’s motives, the defendant’s alibi, the majesty of the common law). To explore this idea, I look at eighteenth- and early nineteenth-century commentators who praised or criticized particular lawyers or judges (in the course of offering "strictures on the bar") by invoking the language of theatricality. As I show, this language was most prevalent in discussions of jury trials, and was often pointedly abandoned in discussions of purely legal arguments (e.g., arguments before appellate courts). The figures in question include William Garrow, Sir John Scott, Sir Francis Buller, and Richard Sheridan. I also consider portrayals of inarticulate lawyers on the eighteenth-century stage, arguing that for the most part, these portrayals make none of the distinctions suggested here, as to audience and subject, but instead simply treat this character as a figure of fun because he is incompetent to perform his task, whatever that task may be. I close by reconsidering a shorthand transcription of Blackstone's performance on the bench in the 1770 trial of Onslow v. Horne, arguing that his conduct comports with an emerging sense of what makes for a good legal argument -- namely, one that takes written explanation as the template for an effective style of oral presentation, and one that Blackstone's own Commentaries helped to promote.