Lawyer as Court Reporter in a Virtual Courtroom: Lessons from 600 Years of English Legal History

by John P. Messina

  1. Introduction
    1. The systemic harm caused by result-oriented decisions
    2. Result-oriented decisions are a modern problem
    3. Using the internet to combat a result-oriented style of judging
    4. The impediments to effective critiques of result-oriented decisions
    5. Summary of §§II-IV
  2. The Intrinsically Oral (Public) Nature of the English Common Law From the 12th through 15th Centuries
    1. The scholarly consensus that the public nature of trials is an “historical accident.” [6]
    2. Modern and medieval methods for proclaiming the law, contrasted
    3. The intrinsically oral (public) nature of a common law system
    4. The intrinsically oral (public) nature of the common law jury as fact-finders
    5. Oral pleadings
    6. The emergence of professional lawyers: 13th century
    7. The oral nature of a practitioner’s continuing education
    8. The oral nature of an apprentice’s legal education
    9. Legal literature prior to 1481
      1. The Plea Rolls
      2. Treatises and other commentaries
      3. The Year Books
      4. The Abridgements
      5. Registers of writs
    10. The limited accessibility of legal literature prior to 1481. [11]
  3. The Transition From Manuscripts to Printed Books, and From Proprietary Reports to the Official Reports: 1481-1865
    1. Lawyers’ self-help manuscripts
    2. Legal literature: 1481-1640s
      1. The Year Books [12]
      2. The Abridgements
      3. The Named Reporters (1571-1616)
      4. Lord Coke’s Institutes
    3. The further evolution of the reporter system: 1640s-1865
      1. The Named Reporters (1616-1766)
      2. Burrow’s Reports (1766-80)
      3. The “authorized” reports and their competitors (1800-65)
      4. The 400-year tradition of oral rulings “in which the reasons for decision had been freely disclosed by judges…in oral comments addressed to an expert bar.” [14]
      5. The Official Law Reports-1865 to date
  4. The Functional Benefits of Public Trials
    1. The relevance of social psychology to, but the paucity of studies on, the functional benefits of public trials
    2. The intuitive insights of Hale, Blackstone, and Bentham
      1. Mathew Hale (1609-76)
      2. William Blackstone (1723-80) [16]
      3. Jeremy Bentham (1748-1832)[16]
    3. The Supreme Court’s endorsement of Bentham’s intuitive insight. [17]

I. Introduction.

The common law is based on respect for precedent. Judges undermine that respect when they publish result-oriented decisions that lawyers and other judges must treat as authoritative precedents. (§A, below.)

The publication of result-oriented decisions is a modern phenomenon. For centuries, English lawyers and their apprentices, not judges, controlled the publication of judges’ rulings. In their role as reporters, English lawyers could filter out result-oriented rulings that didn’t deserve to be treated as precedent. (§B, below.)

American lawyers are in no position to limit the publication of result-oriented rulings, but they can use the internet to alert the legal community to result-oriented rulings that don’t deserve to be treated as binding precedents. (§C, below.)

A. The systemic harm caused by result-oriented decisions.

In a common law system, the essence of the judicial function is to give a reasoned explanation that transcends the particular case the judge is called upon to decide.[1] That transcendent explanation is a precedent. That precedent will control the outcome of later cases with similar fact patterns. New precedent emerges when the facts presented in a later case raise an issue not previously considered.

When a case is ripe for decision, the judge prepares a statement of the case that recites all of the relevant facts and issues. A fair and complete statement will show whether the case fits a fact pattern governed by an existing precedent, or whether the case presents a variation that warrants an extension, modification, or reversal of precedent, or the creation of a new one.

A result-oriented decision is one that omits to disclose material facts or issues so as to justify the favored outcome.[2] The reason for omitting the pertinent information, instead of disclosing it and ruling in defiance of it, may be explained by the concept of self-presentment—the universal desire to present oneself as favorably as one can to others. See §IV-A, below. Since the essence of the judicial function is a reasoned explanation for the outcome of a case, a ruling made in spite of information calling for a different outcome would present the judge as injudicious.

The lawyer for the losing litigant will, of course, know that the judge is injudicious, but the broader audience for the published opinion—the bench, the bar, and the academy—will not. Their knowledge of the case will be limited to what the judge has disclosed within the four corners of the opinion.

A result-oriented decision is not only unjust to the losing party, but also it undermines the integrity of the common law—it avoids the force of precedent, or it creates a new one, by using a litigation narrative that is fraudulent, in that it omits information material to the audience’s evaluation of the decision as an authoritative precedent.

B. Result-oriented decisions are a modern problem.

Result-oriented decisions that are published and intended to operate as binding precedent are a modern problem. They were unknown during the first 600 years of the common law tradition, for two reasons:

First, from the 13th Century through the early 19th Century and later, judges delivered their rulings orally, not in writing. Their rulings could be cited as precedent only if they were reported in the Year Books, the Named Reporters, or the “approved” reporters. See §§II-I-3; III-B-1, 3; III-C-1-3, below.

Second, the reports of judges’ oral rulings were prepared by practicing lawyers and their apprentices, not by the judges. The reports were based on notes that apprentices made to learn the law, and that practicing lawyers made to keep abreast of the law. See §III-A, below.

Moreover, the reports were not subject to the judge’s review or approval. Indeed, the bench and the bar believed that “reporters must be independent, that judges should have no influence or control over the law reports, even though it was the judges own words and deeds that were being recorded.” Dawson, p. 81-82

C. Using the internet to combat a result-oriented style of judging.

Judge Posner has said that “the threat of searing professional criticism is [an] effective check on irresponsible judicial actions.”[3] If judges know that their result-oriented practices would come to the attention of audiences whose opinions the judges value, concern about appearing injudicious to those audiences might suffice to curb those practices.

The internet is a low-cost tool for reaching those audiences. The lawyer for a litigant victimized by a result-oriented ruling can create a web site featuring the result-oriented decision and take the following steps:

D. The impediments to effective critiques of result-oriented decisions. 

Lawyers who represent litigants victimized by result-oriented rulings are well qualified to critique the judges who issue them. There are, however, three impediments to effective critiques.

Risk of retaliation against lawyer-critics: If the result-oriented decision is an interlocutory ruling, a public critique runs the risk that the judge will retaliate in subtle ways that could be fatal to the client’s cause before the case reaches the court of appeals.

Publicly criticizing a result-oriented judge after a case has ended creates a more sinister risk—that the retaliation will come in the form of result-oriented rulings against other, unrelated clients of the critiquing lawyer. Indeed, a lawyer who has previously criticized a judge in public may have an ethical obligation to disclose that critique, and the associated risks, to a new client whose case has been assigned to that judge’s docket. A rational client might opt to avoid the risk by hiring a new lawyer.

The economic consequences associated with publicly critiquing a sitting judge discourage most lawyers from issuing such critiques in the first place.

The disparity of stature: Before they receive life tenure, federal judges are investigated by the FBI, vetted by the Senate Judiciary Committee, and subject to the approval of a majority of the Senate.  For these good reasons, federal judges enjoy a presumption of good character that can’t be matched by any practicing lawyer—other than a retired federal judge who has returned to the bar.

To overcome this disparity in stature, a lawyer who would critique a federal judge must make a case that is compelling and clear. Otherwise, the critique will be brushed aside as the whining of a losing lawyer.

Scarcity of traditional forums: A lawyer willing to risk the consequences of publicly critiquing a judge has three possible forums: an academically rigorous law review, the more informal setting of a bar association journal, or the internet.

Unless the substance of the case underlying the critique has some intrinsic public significance, however, neither of the traditional forums is likely to publish an essay whose primary focus is on a misbehaving judge.

E. Summary of §§II-IV.

Sections II and III, below, survey the history underlying the role of English lawyers as reporters.

Section IV summarizes the benefits of public proceedings, as described by commentators over the centuries.

II. The Intrinsically Oral (Public) Nature of the English Common Law From the 12th through 15th Centuries.

A. The scholarly consensus that the public nature of trials is an “historical accident.”

American courts are descended from the common law courts that arose in 12th Century England. Like their 12th Century ancestors, American courts have always been open to the public.

In the United States, the right to a public trial is enshrined in the Bill of Rights,[4] but neither the source of that right, nor the reasons for recognizing it, were ever discussed during the Constitutional Convention or during the debates over the Bill of Rights. Herman, p. 18; Government Printing Office, Constitution of the United States: Analysis and Interpretation 1547-48 (2002 ed.).

Susan Herman, a law professor and now president of the ACLU, was commissioned to investigate the origins of the right to a public trial in England and the United States.[5] Her 2006 book found no shortage of “commentary effusing about the functions served by public judicial proceedings,” but she found “no document, no debate, and no point in time at which public trials were ordained.” Herman, p. 22 (emphasis added).

In the Introduction to Herman’s book Erwin Chemerinsky, himself a distinguished constitutional law scholar, argued that “[h]istory does not reveal any ascertainable reason for the institution of the public trial in England or for its adoption by the framers of the Constitution. Most commentators refer to the public nature of trials as having been an historical accident.Herman, p. xviii (emphasis added).

B. Modern and medieval methods for proclaiming the law, contrasted.

In order for the law to be known and enforced, it must be proclaimed.

Modern legislatures and courts proclaim statutes and case law textually, in printed and digital formats. Lawyers and non-lawyers alike can access these texts by purchasing printed copies at book stores; by borrowing printed copies from a library; or by reading digital copies in electronic libraries maintained by government agencies or by private firms.

In medieval times—i.e., before the printing press,[6] before lending libraries, and before digital technology—the law could only be proclaimed orally or through manuscripts.

Creating and copying manuscripts is a labor-intensive and time-consuming process, so scribes could not produce them in large numbers. Manuscripts proclaiming the law were available for study in only a few locales—monasteries, the manors of large landowners, Serjeants’ Inns[7], and the Inns of Court.[8]

The limited reach of manuscripts left oral proclamation as the more effective method for making the law known to the general population. See Musson, pp. 5, 6.

C. The intrinsically oral (public) nature of a common law system.

In a common law system the law arises out of customs and practices that the people observe, and which they accept as enforceable norms.[9] The customs and practices that become law are, in the first instance, orally proclaimed by the people themselves, not by the government. In this respect a common law system is intrinsically public.

Common law systems evolve by bringing disputes to court, where they are resolved through application of the prevailing customs and practices. To the extent that an adjudication gives rise to a new custom and practice enforceable as a norm, it, too, must be proclaimed. The new norm could not be proclaimed as the new common law, however, if the trial that created it were held in secret.

In this respect, the public nature of trials is intrinsic to a common law system.

D. The intrinsically oral (public) nature of the common law jury as fact-finders.

In the 13th century the judicial function was divided up and distributed throughout the community.

Legal issues were pleaded and argued in London, in the central courts, where they were decided by the judge. Once issue was joined, fact-finding was entrusted to “the voice of the countryside”—jurors in the local courts. Dawson, p. 5 (quoting Pollack & Maitland). “Direction of the jury, the framing of the questions they must answer, the extraction and recording of the answers they gave, were entrusted in large measure to responsible laymen, often without help from any judges at all.” Dawson, p. 5.

In other words, the common law’s mechanism for fact-finding was, in its origins, a community activity, and in that respect fact-finding was an intrinsically public function.

E. Oral pleadings.

The common law right to a public trial by jury evolved over the 12th through 15th centuries.[10] During those formative years pleadings were always presented orally, never in writing.

The transition to written pleadings began in the 15th century, but “it was not fully accomplished till the sixteenth century.”[11]

F. The emergence of professional lawyers: 13th century.

Pinpointing the date professional lawyers first appeared in the common law system is difficult, but by the reign of Henry II (1154-89), a party could appear through a “responsalis,” who had power to bind his principal. Plucknett, pp. 215, 216. Early in the 13th Century “a fuller type of representation becomes general, and…we read much of the ‘attorney’, who had already proved more useful than the ‘responsalis.’” Plucknett, p. 216.

G. The oral nature of a practitioner’s continuing education.

The legal literature available to attorneys and other practitioners—the narratores and serjeants (Plucknett, pp. 216-24) —was quite limited. See §§I-J, below. The only practical way for them to update their legal knowledge was by watching proceedings in court and taking notes, and by exchanging notes and consulting with colleagues who did the same. Plucknett, p. 268.

The lawyers’ courtroom notes became the source material for the Year Books, discussed below in §I-3. The Year Books were the cornerstone of legal education and training from the late 13th century well into the 17th century.

H. The oral nature of an apprentice’s legal education.

On the continent aspiring lawyers studied Roman law and canon law at universities. In England, on the other hand, “neither Roman nor canon law, both full of intricacies of their own, could help beginners to understand the intricacies of the English writs, the disorderly mass of their procedural rules, or a substantive law that was non-Roman in essentials elements. Even for a man who did not aim high something different was needed.” Dawson, p. 35.

The “something different” was vocational training. Young men came to London and “attached themselves to older lawyers and watched their work, did some drafting under supervision, and in return picked up scraps of legal knowledge.” Dawson, p.36.

Under a royal edict issued in 1292, the training of apprentices was placed under the direction and control of the Court of Common Pleas. During term time, the apprentices learned by watching the judges and the lawyers in that court, where they were given a special enclosure, called “the crib,” from which they could follow the proceedings. Plucknett, pp. 217-18.

“Like others who shared common interests…[the apprentices] probably gathered in small guilds, eating, sleeping, and talking together. These groups for some time must have made their own arrangements, renting houses, then disbanding or shifting from place to place….” Dawson, p. 36. Over the course of the 14th century, these ad hoc arrangements evolved into the Inns of Court. 

The normal training period at the Inns of Court was about eight years. Apprentices continued to learn by going to court and watching lawyers and judges from “the crib.” During the courts’ vacations the apprentices continued their training at the Inns, where they participated in moots and formal readings. See generally Dawson, pp. 34-50.

From the late 13th century well into the 17th century, “legal education was built on an overwhelmingly oral foundation.” Henderson, pp.  290-91.

I. Legal literature prior to 1481.

The printing press was introduced into England in the 1470s. The first printed law book, issued in 1481, was Littleton’s Tenures.

Before the advent of the printing press the primary legal literature consisted of manuscripts of statutes and the following:

1. The Plea Rolls.

At the end of the 12th century the King’s Courts started keeping a written record of their business.[12] These records, known as plea rolls, began as “hasty, rapidly written [entries], full of slips and interlineations.” Plucknett, p. 257-58. By the 14th century, they had evolved into “formal language…written in a large hand. Subsidiary notes are commonly made in very hasty writing, but the formal record always appears in precise phrases and careful writing.” Id., p. 257-58.

Plea rolls were never verbatim accounts, but in any case that had progressed to the stage of decision, the plea rolls were likely to include “a good account of the facts alleged, of the contentions urged by both of the parties, the issues thus presented for the court’s decision, and the decision rendered, including as well the relief awarded.” Dawson, 51.

Plea rolls were, however, cumbersome to handle and poorly indexed. Dawson, p. 51. They were also virtually inaccessible to lawyers—there were no copies of the plea rolls, only the originals, and these remained under the control of the clerks. Plucknett, pp. 344, 404-05.

There is “no possibility of any system of case law developing when the cases are inaccessible to the profession.” Plucknett, p. 260. Treatises, commentaries, and the Year Books, discussed next, gave the profession that access. The evolution of these media went hand-in-hand with the evolution of the English common law.

2. Treatises and other commentaries.

Prior to the 16th century English legal literature “was very weak in systematic expositions of the law in treatise or textbook form.” Henderson, p. 289. The only “serious attempt at a comprehensive treatise” was an unfinished work, published circa 1250 by Henry de Bracton, a Judge of Assize and a Justice in Eyre, but never, it appears, a judge in the Court of Common Pleas (Plucknett, p. 259), where he’d have had unfettered access to the plea rolls.

Bracton’s treatise was based on “his transcripts of some two thousand cases from the plea rolls,” but at some point he received an order “demanding the instant return of all plea rolls in his possession,” which may explain why his work was never completed. Plucknett, p. 260.

Plucknett suggests that “Bracton’s use of cases was favourably received by the profession” and created “a real demand for case material” that, in turn, “gave the first impetus towards the preparation of the Year Books.” Id. at 260-61. Bracton’s book was “extraordinarily popular” for a time, but it fell into disuse after 1350. Henderson, p. 290.

For a discussion of lesser treatises and commentaries, see Plucknett, pp. 256-57, 260-67, 277-79.

3. The Year Books.

The Year Books covered cases that were litigated between 1268 and the early 1530s. The first Year Book manuscript was created around 1292; the last, in 1535. Dawson, pp. 9, 50-51; Plucknett, p. 273.[13]

The Year Books were not a sudden creation; rather, they were “preceded by much experiment with various forms of law reporting.” Dawson, p. 9.

The Year Books are sometimes referred to as “the law reports of medieval England” (Seipp), but they “did not exist for the same reason as the modern law reports. They were not intended to be collections of precedents whose authority should be binding in later cases.” Plucknett, p. 272.[14] Rather, they were intended to elucidate the forms of oral pleading that a lawyer had to present in court to state a claim or defense. Plucknett, p. 268.

The early Year Books resembled a “professional newspaper which combines material of technical interest with the lighter side of professional life…[such as] gossip and anecdotes.” Plucknett, p. 270. The later Year Books are “less vivacious,” consisting mainly of “full dress debates by many judges of really important legal questions.” Plucknett, p. 272.

The audience for the Year Books “mainly wanted to learn the technique of oral pleading, the ‘book moves,’ as Maitland put it, in abstruse games of legal chess. Often the pleaders alone were quoted and the judges were not heard from at all. Many Year Book reports do not attempt to record the court’s decision.” Dawson, p. 56.

The Year Books were “private compilations produced by private enterprise.” Dawson, p. 54. They were “almost the only means by which information as to the work of the central common law courts was distributed within the circle of interested persons.” Id., p. 55.

4. The Abridgements.

The Year Books were arranged chronologically independent of subject, so any search for a relevant precedent was laborious. This impediment was lessened by the Abridgements, which were abstracts of Year Book cases organized by subject. Plucknett, p. 273-74. The earliest known Abridgement dates to the reign of Edward II (1307-27).[15]

Abridgements created during the 1300s and 1400s were probably student exercises, but practicing lawyers were apt to cut-and-paste them into an arrangement resembling a modern-day digest. Plucknett, p. 274.

5. Registers of writs.

A writ was a standardized document, written by a clerk, that a litigant had to buy in the course of a law suit. Henderson , p. 289n.5. Collections of writs were compiled into registers by “anyone who cared to undertake it.” Plucknett, pp. 276-77.

J. The limited accessibility of legal literature prior to 1481.

As of 1481—the year the first law book was printed—a lawyer practicing in the central courts needed access to three kinds of manuscripts: statutes, registers of writs, and collections of case law. Henderson, p. 288. It is unlikely that individual lawyers had personal copies of such manuscripts.[16]

With one caveat, this literature could be found in four locales—the Inns of Court, the Serjeants’ Inns, monasteries, and the manors of large landowners. Henderson, p. 288-89. The caveat concerns the Year Books. The historical record suggests that there were never more than 20 copies of any Year Book, and often there were only two or three—not enough copies for each of the four Inns of Court and the two Serjeants’ Inns to have one. Henderson, pp. 288-90.

III. The Transition From Manuscripts to Printed Books, and From Proprietary Reports to the Official Reports: 1481-1865.

A. Lawyers’ self-help manuscripts.

From the 13th century through at least the early 19th century, the working methods of English lawyers depended on self-help measures—preparing notes of their own cases “supplemented by some mutual aid through borrowing and copying [from other lawyers] as manuscripts passed from hand to hand among leading practitioners.” Lawyers made “notes of points or conclusions that seemed interesting to the notetaker and that would be useful in his own professional career or possibly to his friends.” Dawson, pp. 76, 77. See also Plucknett, p. 268n.2; Henderson, p. 292.

These private notes, which since the 13th century had been the primary source material for the Year Books, would become the source material for the Named Reporters described below in §§B-3 and C-1-2.

B. Legal literature: 1481-1640s.

1. The Year Books

Year Books continued to be compiled through 1535, some in manuscript and others in print. Even after 1535 “reports written in Year Book style continued to be prepared, and many still survive in manuscript.” Dawson, p. 65; Henderson, p. 292.

London printers also began publishing, in book form, back issues of the hand-written Year Books. By 1558, “a tolerably complete series of Year Books from the middle of Edward III’s reign [1312-77] onwards” had been published. Plucknett, p. 273. 

2. The Abridgements.

The abridgements became “the chief means of access to the vast repository of Year Book learning for all but a few antiquarians…” Dawson, p.65. The three best known were Statham, Fitzherbert, and Brooke.

3. The Named Reporters (1571-1616).

The Year Books were eventually replaced “by something which was at first not so very different, namely the early reporters.” Plucknett, p. 280.

4. Lord Coke’s Institutes.

Between 1628-44, Coke published four Institutes, or treatises, covering real property, statutes, criminal law, jurisdiction, and a history of the courts.

C. The further evolution of the reporter system: 1640s-1865.

1. The Named Reporters (1616-1766).

The reporters who followed Coke were “much lesser men…. Their reports are frequently short and inaccurate, and sometimes unintelligible.” The poorness of the reports from 1616 until the 1760s “makes the legal history of that period a difficult study.” Plucknett, p. 281

2. Burrow’s Reports (1766-80).

Sir James Burrow was a barrister who published five volumes of reports between 1766-80. His Reports “established the modern pattern of what a law report should contain: the reporter’s statement of the facts, a summary of the arguments of counsel, and the court’s judgment.”[18] Burrow’s Reports “approximat[ed] in fullness and accuracy the standards of a modern law report.” Dawson, p. 77.

Burrow’s Reports were based on notes he had collected on King’s Bench cases. He was prompted to publish them after years of incessant requests from colleagues to borrow his notes, “not to mention frequent conversations upon very dry and uninteresting subjects, which my consulters were paid for considering, but I had no sort of concern in.” Widener, quoting John W. Wallace, The Reporters Arranged and Characterized (4th ed. 1882).

3. The “authorized” reports and their competitors (1800-65).

In the early 1800s the central common law courts appointed “authorized” reporters, usually two per court. No written record of the arrangements survive, but the authorized reporters “no doubt had free access to court records. In some instances their drafts were reviewed and corrected by the judges before publication, but there are no clues as to how often this occurred.” The reports of the authorized reporters showed “a rapid rise in…quality and completeness” over the reports of the Named Reporters. Dawson, p. 80-81.

Up until the 1830s, the authorized reporters had an economic advantage over competitors—“their versions of the cases they reported were the only versions that the judges allowed to be cited before them in argument. This court-conferred monopoly assured the ‘authorized’ reporters a substantial income at a time of rising market demand.” Dawson, p. 80-81.

Complaints arose about “long delays in publication, the high prices charged, and (some said) the tendency to undue prolixity in an enterprise conducted for private profit.” The remedy was to end the monopoly and restore free competition. Rival series of reports proliferated, some of them quire unreliable. Dawson, p. 81.

4. The 400-year tradition of oral rulings “in which the reasons for decision had been freely disclosed by judges…in oral comments addressed to an expert bar.”

The bar protested over the over-supply of reports. One alternative mentioned starting in 1849 but promptly rejected was

to require of the judges themselves that they write out their own reasoned opinions as one of the responsibilities of judicial office. It was known that some judges had developed the practice of writing opinions in important cases. Some lawyers had the temerity to suggest that it would be “desirable” for all judgments in every superior court to be reduced to writing “under the authority of the court.” But a former Chancellor…expressed a general consensus: “The Judges cannot be required to write their judgments. That must be left to their own discretion.” In the minds of some this was not merely due to a reluctance to impose on the judges an unaccustomed burden. To an astonishing degree there survived the notion that reporters must be independent, that judges should have no influence or control over the law reports, even though it was the judges own words and deeds that were being recorded. It was difficult to erase the practice of 400 years in which the reasons for decision had been freely disclosed by judges but only in oral comments addressed to an expert bar which, like thoughts expressed at the luncheon table, were preserved through being absorbed into the common learning.

Dawson, p. 81-82 (footnotes omitted).

5. The Official Law Reports-1865 to date.

The controversy was resolved in 1865 when the Incorporated Council of Law Reporting for England & Wales (ICLR) was formed “to undertake the management and direction of the printing and sale of the reports. Editors and reporters would be expected to devote their whole time to the discharge of their duties and salaries should be sufficient to secure the services of men duly qualified by learning and experience.”[19]

The ICLR is a non-profit private enterprise, without state aid.

IV. The Functional Benefits of Public Trials.

A. The relevance of social psychology to, but the paucity of studies on, the functional benefits of public trials.

Social psychology is a 20th century discipline that studies “the manner in which the personality, attitudes, motivations, and behavior of the individual influence and are influenced by social groups.”[20]  The first published study in this area was an experiment in 1898 by Norman Triplett on the phenomenon of social facilitation, but Kurt Lewin (1890-1947) is viewed by most as the founder of the discipline’s modern methods and theories.[21]

The subjects studied by social psychologists include the manner in which an individual’s behavior is affected by the presence of others. The key concept, developed by Erving Goffman in the 1950s[22], is self-presentation, which refers to social behavior that communicates some information about oneself to others. The behavior need not be conscious, and the impression it conveys need not be accurate, either objectively or in the self-presenter’s own view. The motivation for the behavior is the desire to present oneself as favorably as one can when others are present.[23]

Using the analytical tools developed by Goffman and others, a social psychologist could explain why a witness is likely to testify truthfully, or a judge is likely to act judiciously, when the courtroom audience includes persons whose opinions are valued by the witness or the judge. We have found no such studies, however, though a Google search turned up dozens of studies on televised trials and the impact that television camera has on the behavior of witnesses, lawyers, judges, and juries.

B. The intuitive insights of Hale, Blackstone, and Bentham.

Self-presentation may be a 20th century concept, but the motivation it identifies—that people desire to present themselves as favorably as they can when others are present—was intuited by commentators on the common law in the 17th, 18th, and 19th centuries.

1. Mathew Hale (1609-76).

Hale was a Judge of the Common Pleas and from 1671-76, Chief Justice of the King’s Bench. His History of the Common Law, written around 1670 but published posthumously in 1713, is the first known comment on the truth-enhancing quality of public trials. Herman, p. 23.  

Hale notes that in England, evidence is given “in the open court and in the presence of the parties, counsel, and all by-standers.” He then describes the benefit that obtains when evidence is presented publicly rather than in secret:

 [T]he excellency of this Open course of evidence to the jury, in the presence of the judge, jury, parties, and counsel and even of the adverse witnesses, appears in these particulars.

1st. That it is openly, and not in private before a commissioner or two, and a couple of clerks; where oftentimes witnesses will deliver that which they will be ashamed to testify publicly.[24] (emphasis added)

Implicit in Hale’s observation is the notion that when a witness testifies in the presence of those who might know whether his testimony is mendacious, he is shamed into hewing to the truth.

2. William Blackstone (1723-80)

Blackstone was a King’s Counselor, Member of Parliament, and Lecturer at Oxford College. In 1765-69 he published his Commentaries on the Laws of England, Books I-IV [“Commentaries”], which were the “first important and most systematic treatment of the principles of the common law.”[25]

Echoing Hale, Blackstone argued that a public trial “is much more conducive to the clearing up of truth” than a secret trial:

[O]pen examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk, in the ecclesiastical courts, and all others that have borrowed their practice from the civil law: where a witness may frequently depose that in private, which he will he ashamed to testify in a public and solemn tribunal.

 III Commentaries *373.

As with Hale, implicit in Blackstone’s observation is the notion that when a witness testifies in the presence of those who might know whether his testimony is mendacious, he is shamed into hewing to the truth.

3. Jeremy Bentham (1748-1832)

Bentham was a student of Blackstone. Though he never practiced law, he wrote about the law a great deal, critiquing the existing law and strongly advocating legal reform.

In Chapter X of Rationale of Judicial Evidence 511-606 (1827), Bentham devotes 96 pages to a refined analysis of the merits of “publicity” (his term for public proceedings) over “privacy” (his term for proceedings where public access is either restricted or barred altogether). He posits that in most cases, publicity is “conducive to the direct ends of justice,” whereas privacy is conducive to those ends in only a limited number of exceptional circumstances. Id. at 513-14.

Bentham argues that “[t]he advantages of publicity are neither inconsiderable nor unobvious” and operate on both witnesses and judges. (Id. at 522.) A witness is more likely to tell the truth when he knows he’s being watched “by a thousand eyes:”

In many cases, say rather in most…, the publicity of the examination or deposition operates as a check upon mendacity or incorrectness. However sure he may think himself of not being contradicted by the deposition of any percipient witness; yet, if the circumstances of the case have but afforded a single such witness, the prudence or imprudence, the probity or improbity, of that one original witness, may have given birth to derivative and extrajudicial testimonies in any number. “Environed, as he sees himself, by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to him from a thousand tongues; many a known face, and every unknown one, presents to him a possible source of detection, from whence the truth he is struggling to suppress, may, through some unsuspected channel, burst forth to his confusion.” (emphasis added; footnote omitted)

Id. at 522-23.

Similarly, a judge is more likely to refrain “from active partiality and improbity” when he beholds “[s]o many bystanders…attending in his court, so many witnesses…[to] his righteousness:”

Nor is this principle either less efficient or less indispensible, in the character of a security against misdecision considered as liable to be produced by misconduct in any shape on the part of the judge. Upon his moral faculties it acts as a check, restraining him from active partiality and improbity in every shape: upon his intellectual faculties it acts as a spur, urging him to that habit of unremitting exertion, without which his attention can never be kept up to the pitch of his duty. Without any addition to the mass of delay, vexation, and expense, it keeps the judge himself, while trying under trial. Under the auspices of publicity, the original cause in the court of law, and the appeal to the court of public opinion, are going on at the same time. So many bystanders as an unrighteous judge (or rather a judge who would otherwise have been unrighteous) beholds attending in his court, so many witnesses he sees of his righteousness; so many ready executioners, so many industrious proclaimers, of his sentence.

On the other hand, suppose the proceedings to be completely secret, and the court, on occasion, to consist of no more than a single judge,—that judge will be at once indolent and arbitrary; how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check to oppose it. Without publicity, all other checks are insufficient; in comparison to publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance. (emphasis added; footnote omitted)

Id. at 523-24.

C. The Supreme Court’s endorsement of Bentham’s intuitive insight.

The right to a public trial took hold in 1791, when the states ratified the Bill of Rights. The first serious examination of that right came 158 years later, in In re Oliver, 333 U.S. 257 (1948).

In that case a Michigan circuit judge, acting under a unique Michigan law, was conducting a “one-man grand jury” investigation into certain gambling and official corruption offenses. He subpoenaed Oliver and compelled him to testify in a session closed to the public. The judge/one-man-grand-juror thought that Oliver’s testimony didn’t “jell,” so he charged Oliver with criminal contempt, convicted him on the spot, and sentenced him to 60 days in jail. Oliver appealed on various due process grounds and on the ground that he had been denied assistance of counsel, but he did not allege a violation of his right to a public trial. The Michigan Supreme Court affirmed.

The U.S. Supreme Court framed its decision around the issue Oliver hadn’t raised: “[O]ur first question is this: Can an accused be tried and convicted for contempt of court in grand jury secrecy?” 333 U.S. at 266. The Court traced the history of the public trial right and noted “[t]he traditional Anglo-American distrust for secret trials.” 333 U.S. at 268. Then, paraphrasing and quoting Bentham, the Court praised the restraint that public scrutiny places on abusive judicial how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check to oppose it. Without publicity, all other checks are insufficient; in comparison to publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.”

333 U.S. at 270-71. The Court reversed the Michigan Supreme Court, holding that the secret trial denied Oliver procedural due process.[26]

/s/ John P. Messina

[1] J. Dawson, The Oracles of the Law xi-xii (1967), citing Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 15-16 (1959). Subsequent references to Dawson’s work appear in the text as “Dawson, p.__.”

[2] This definition blends concepts from two federal judges—Richard Posner, The Federal Courts: Challenge and Reform 311-12 (Harvard Univ. Press1996), and Diamuid O’Scannlain, On Judicial Activism, Open Spaces Quarterly, vol. 4, No. 1. See discussion in Result-Oriented Judging: A Process-Oriented Definition, pp. 7-8.

[3] The Federal Courts: Challenge and Reform 349.

[4] The Sixth Amendment explicitly guarantees the accused a “public trial” in all criminal prosecutions. The Seventh Amendment does not explicitly guarantee that civil trials shall be public, but it does preserve the right to a jury trial in “Suits at common law,” which, as a matter of history, were public.

[5] The commission came from Praeger Publishers. Herman’s book is number 16 in a projected 37-book series of Reference Guides to the United States Constitution.

[6] The printing press was introduced in England in the 1470s. J.H. Baker, An Introduction to English Legal History 154 (2nd ed. 1979).

[7] The serjeants were the elite courtroom lawyers during the 14th-17th centuries. Plucknett, p. 223; Dawson, pp. 23-34.

[8] Henderson, Legal Literature and the Impact of Printing on the English Legal Profession, 68 Law Library Journal 288 (1975). Subsequent references to this work appear in the text as “Henderson, p. __.”

[9] See Musson, Law and Text: the Impact on Legal Authority and Judicial Accessibility in the Late Middle Ages, p. 2 (2003). The citation is to the author's draft, available at The final version appears in The Uses of Script and Print 1300-1700, ed. by Julia Crick and Alexandra Walsham, Cambridge University Press 2003, pp. 95-115.

Subsequent references to the author’s draft of this work appear in the text as “Musson, p._”

[10] The concept of a public trial by jury began with reforms during the reign of Henry II (1154-89). L. Levy, The Palladium of Justice: Origins of Trial by Jury 13 (1999). The concept had fully ripened by 1468, when Chief Justice John Fortescue “gives a picture of jury trial which is to all intents and purposes in modern form.” T.F.T. Plucknett, A Concise History of the Common Law 129 (5th ed. 1956). (Subsequent references to A Concise History of the Common Law appear in the text as “Plucknett, p. __.”)

[11] W. Holdsworth, A History of English Law, vol. III, p. 641 (5th ed. 1942).

[12] M.T. Clanchy, From Memory to Written Record, England 1066-1307 p. 152 (1993).

[13] See also Medieval English Legal History: An Index and Paraphrase of Printed Year Book Reports, 1268– 1535, compiled by David J. Seipp, available online at Subsequent references to this work appear in the text as Seipp.

[14] See Plucknett, pp. 342-50, for an overview of the principle of precedent.

[15] P. Scott, The Chief Sources of English Legal History 200 (Harvard Univ. Press 1925).

[16] Consider, for example, Thomas Kebell, a Serjeant who was “one of the most vocal and respected lawyers of his time.” He died in 1500, 19 years after London printers began selling law books. At his death he had only four law books in his whole library of 36 books. Henderson, p. 289.

[17] Dawson cites 1568 as the initial publication date of Brooke’s Abridgement. Dawson, p. 65.

[18] M. Widener, Rare Book Librarian, Yale Law Library Rare Books Blog, at Subsequent references to this work appear in the text as “Widener.”

[19] The History of the Incorporated Council of Law Reporting for England & Wales, (accessed 2/7/10).

[20] "Social psychology," Merriam-Webster Online Dictionary psychology (accessed 2/10/10).

[21] Wikipedia, Kurt Lewin, (accessed 2/10/10).

[22] M. Leary, Self-Presentation: Impression Management and Interpersonal Behavior 6 (Westview Press 1996). Goffman’s best-known work on the subject, The Presentation of Self in Everyday Life, was published in 1959.

[23] See, e.g., R. Baumeister, A Self-Presentational View of Social Phenomena, Psychological Bulletin, vol. 91 (1), pp. 19-20 (Jan 1982). Baumeister identifies two main reasons for a person’s engaging in self-presentation. (1) Rewards that an audience can confer if it thinks favorably of the person. Audience-pleasing self-presentation is an attempt to present oneself “favorably” according to the audience’s values. (2) Self-construction, which is the desire to make one’s public image equivalent to one’s ideal self. When self-evaluation is the motive for self-presentation, the ideal self is the criterion of favorability. “[P]eople desire to be perceived as congruent to their self-images.” Id., p. 4.

[24] M. Hale, History of the Common Law of England 345 (Runnington’s ed. 1820), quoted in Radin, The Right to a Public Trial, 6 Temple L.Q. 381, 382 (1932).

[25] D. Boorstin, The Mysterious Science of the Law 3 (1996). The Commentaries were the most important attempt in fourteen centuries “to reduce to short and rational form the complex legal institutions of an entire society.” Id., p. 3.

[26] The Court rested its ruling on due process grounds because it had not yet clarified its position on whether rights specified in Bill of Rights were binding on the states. Herman, pp. 33-34.