Leeming on Lawyers' Use of History, from Entick v. Carrington to Smethurst v. Commissioner of Police @SydneyLawSchool

Mark Leeming, University of Sydney Law School, has published Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police at 49 Australian Bar Review 199 (2020). Here is the abstract.

Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.

Download the article from SSRN at the link.