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The Privy Council

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Shag from Brookline says:

    Is a book on “Outhouse Justice” in the works?

  2. Charles Paul Hoffman says:

    A couple of quick corrections, plus a note about Privy Council records:

    First, apparently New Zealand proper abolished appeals to the Judicial Committee of the Privy Council (in favour of a new Supreme Court of New Zealand) for cases heard subsequent to 2003 (though appeals from the New Zealand associated states of Cook Islands and Niue). Apologies for the dated New Zealand information—I have heard this stated repeatedly in recent years, so it appears that it is one of those “things people know” that has not kept pace with actual facts on the ground. That said, a number of Commonwealth states—primarily in the Caribbean—do still appeal to the Privy Council, the largest of which is Jamaica. There’s also an odd agreement whereby the Privy Council hears appeals on behalf of the Sultan of Brunei, in much the same way it hears other cases on behalf of the British sovereign.

    Second, on the dissent front, the Judicial Committee of the Privy Council did eventually start issuing dissents in the early 1960s, so newer cases will look more or less like other Commonwealth appellate decisions. For the earlier cases, while there are no published dissents, it is sometimes possible to go back to the original Privy Council records to check vote counts, but some records may have been destroyed during World War II, when the Privy Council building was bombed during the Blitz.

    For those interested, Privy Council records are now split between the British Library, which inherited records from the House of Lords, and the National Archives, which has the holdings of the Privy Council itself (theoretically the collections are copies of each other, but I expect this is not true in practice). As of last year, though, the British Library holdings were kept offsite in northern England, and there were significant delays in accessing materials, while the National Archives materials were still being processed and thus unavailable. Not sure if the situation has improved, so anyone interested in working with Privy Council materials should check with the BL and NA before scheduling that flight to London.

    Finally, the story of Canada’s relationship with the Privy Council is fairly interesting—there was quite a lot of frustration with appeals to a foreign court, especially in the later period, and the Privy Council imposed on the country a form of federalism unanticipated by the Fathers of Confederation—but it will have to wait for another time.

  3. Gerard Magliocca says:

    Thanks. Mr. Hoffman is an expert on Canadian law who got me interested in the Privy Council.

  4. Derrick says:

    I still find it weird to see sovereign states still appealing to the Privy Council. Is it the case that they do not trust their own judicial systems or mainly because their laws were modeled on the British laws? What I know is that all the former British colonies in Africa, led by Ghana, set up their own judicial institutions after gaining independence. It is not uncommon, however, to find British traces in the existing laws of their former colonies although majority of such laws have been repealed.

  5. Charles Paul Hoffman says:

    Derrick—most of the states that still allow appeals to the Privy Council are fairly small. Jamaica, which I believe is the largest, has a population of less than three million. It is thus a means to have a world-class judiciary without having to pay for one. There is also a long-standing tradition of having a high-ranking judge from the country from which appeal is made join the Privy Council panel, e.g., a Canadian in Canadian cases, etc. I’m not sure on the precise figures, but my understanding is that the panels tend to defer to that judge on questions of national law, but might not defer on more general questions of the common law.

    Glancing at the JCPC’s most recently decided cases (http://www.jcpc.gov.uk/decided-cases/), I notice that the most recent case, Lundy v Queen, is actually a New Zealand case appealed prior to 2003 that has taken a decade to make its way through the Privy Council. For what it’s worth, the panel included the Chief Justice of New Zealand.

  6. Shag from Brookline says:

    Linda Greenhouse’s “ATree Grows in Canada” available at:

    http://www.nytimes.com/2013/10/17/opinion/greenhouse-a-tree-grows-in-canada.html?hp&_r=0

    discusses the role of the Privy Council that led to the Canadian holiday “Persons Day” commemorating women as “persons” qualified to serve in the Canadian Senate The Originalism Blog has a couple of posts on “Persons Day.” Squaring the Privy Council decision with originalism is difficult, what with the “living tree” reference. Linda Greenhouse takes a shot at the no longer faint-hearted originalism of Justice Scalia referring to his “fossilized tree” now as a whole-hearted originalist.