The Role of the Judge in the Common Law Tradition

If the common law is a collection of customs, who is the keeper of the customs? Advocates will naturally argue their client’s position is in line with existing custom, but only one party can be right. Of course, that person is the judge (we are putting aside, for the moment, discussions about the role of the jury and how it entered legal practice). Blackstone’s description of the role and responsibility of the judge in the common law tradition is quite interesting.

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Pattern Instructions in Military Courts: Possible Origins of the Military Judge’s Benchbook

Military judges and practitioners rely heavily on the Military Judge’s Benchbook, which contains the pattern instructions used in the military justice system. However, not a lot of attention is paid on the history of this publication and its role in the development of military criminal law. In nearly five years of using this publication, I too never really wondered where it came from, or why it was initially produced. But after reading the decisions the Court of Military Appeals (now the United States Court of Appeals for the Armed Forces) issued in its initial term for my current project on the Court’s experience as a court of last resort, I came across a series of decisions that may serve as the early foundation for the development of the Benchbook.

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