HEAL UoS

Test case biographies travelled to Nottingham

In 2014, 2015, Testing project on March 23, 2015 at 8:56 am

The formal end-date for the British Academy/Leverhulme funded project on ‘Test Case Biographies as a Method for Studying Hidden Law-Making’ fell on 15 March 2015. As we turn our attention to writing up the Final Report, and complete at least one publication that has emerged from the project, it is useful to retrospectively write about our paper at the SLS annual conference last year (somewhat belatedly, we admit – and the title of this post adopts that of our write up re the SLSA paper).

On 10 September 2014, Professor Jonathan Montgomery (UCL) and Dr Caroline Jones (Southampton) presented their initial project findings in a paper entitled ‘Test Case Biographies in the (Hidden) Province of Medical Jurisprudence’, in the Medical Law stream at the annual Society of Legal Scholars conference, held at the University of Nottingham.

Abstract: This paper outlines the method(s) developed to create ‘biographies’ of pivotal health care law test cases, in order to explore their provenance and impact, and reflects on the implications of what emerges from this biographical approach for understanding the role of judicial rulings in the development of the law.

Three leading health care law cases, displaying a range of typical variables, will be used to illuminate how social and ethical dilemmas give rise to litigation, rather than other approaches to resolving issues, and the implications for legal theory and policy making. The cases are Quintavalle v HFEA [2005] UKHL 28, wherein a pressure group, CORE, intervened to challenge a regulatory decision, in which it had no personal interest; Burke v GMC [2005] EWCA Civ 1003, where a court ruling was sought regarding the application of non-statutory guidance on the provision of life-sustaining treatment; and R (on the application of AC) v Berkshire West PCT [2011] EWCA Civ 247, on the rationality of a ‘rationing’ decision, and the interplay between procedural and substantive values.

The paper considers how to situate judges within the biography of a case and whether insights from ‘case biographies’ might have a role within judicial decision-making.

And, what we actually spoke on:

As can often be the case, with the benefit of time and reflection between submission of the abstract and the conference, the focus of the paper we delivered was a little different. We did not, for example, consider or situate judges within the biography of a case, except inasmuch as we drew attention to Munby’s consideration of ‘intolerability’ as an example of a distinct style of judging, drawing from our earlier Modern Law Review paper ‘Hidden Law-Making in the Province of Medical Jurisprudence’.

We did, however, outline our findings and reflections – at that time – on the three case studies; tentatively concluding that we have not identified a biographical ‘method’ per se, but note that by asking questions about/around biographical considerations we have spotted different things about these cases. We have illuminated some aspects, albeit we make no claims to ‘truth’ regarding various narrative constructions that emerge from the data, nor seek to explain why things have happened (or indeed why they happened in the way that they did) – these are much more difficult claims. Nevertheless, we realised that there is no single biography of a case (if indeed we ever believed there was), but there are lots of different biographical aspects going on in a given case context, both within the legal stories of legal actors, but also outside of law that intersect and engage with the ‘legal’ aspects. Drawing out some of these strands has been interesting and illuminating, and the task now is for further reflection and critique, not least with existing ideas around democratic, political and philosophical legitimacy.

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