BSM 743 Topic 1 Lecture Notes Part 2 PDF

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Lecture Notes Week 1 Topic 1: Induction and Legal Skills

Part 2. Legal Skills Like other disciplines, law as a discipline has its own internal mechanisms and norms. We will help you to learn these. You will learn how lawyers think and reason. There are many books and even chapters in books you can read on legal reasoning. To truly understand the law, you need to understand how it operates, how it is made, applied and implemented. The study of law is essentially textual analysis, and there are some important elements within legal analysis that you must master. Also note that our discussion of the basics of law will be from the perspective of the common law as a legal tradition (meaning the way the people of England and Wales and many other countries of the Commonwealth think about and or approach law). In the UK1 there are two main sources of law: legislation and case law (the next topic explores the sources of law in much more detail but a brief outline is necessary at this point). Legislation is the law made by Parliament and case law is law as established in the cases heard in court. Some legal areas such as criminal law and company law are very heavily legislated; some areas such as contract and tort/delict are still predominantly created by case law. Even in areas of law where there is lots of statute, exactly how that legislation will be applied in court, how it is interpreted, is determined by the judges in cases (i.e. case law). So, you need to learn to find and read legislation and case law. 1. Finding Legislation The law made by Parliament and other delegated bodies can be found in many forms.2 There are handwritten parchments dating back to about 1299. Most modern legislations can be found in print or digital formats. These collections are held by libraries or institutions such as Parliament and the Courts and online portals such as Westlaw and Lexis. For our purposes, there is one online official site for UK legislation, which is free and can be accessed through the internet at the following address: www.legislation.gov.uk. This site is very reliable and should probably be your first point of call when searching for a UK legislation. For those interested in an alternative source of print collections of legislation, the most widely available of these include the Law Reports: Statutes, Halsbury’s Statutes and current Law Statutes Annotated.

2. Law Reports For cases to establish a legal precedent in any sort of efficient manner you need a system in which the cases are written down and published. To 1

Note that the UK is made up four countries, England, Wales, Scotland and Northern Ireland. Not all of the jurisdictions belong wholly to the common law tradition. Scotland is a mixed jurisdiction; the legal system combines elements of the Civil law and the common law traditions. 2 Hanson, S, Learning Legal Skills and Reasoning, 4th ed., Routledge, 2016, p.12

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achieve this all higher courts have a court-authorised reporter attached to them to report the facts, the central arguments and the decision of the courts, in a law report. These are collected in volumes and published regularly, online and in hard copy. In the UK we have a wide range of law reports, and although there is no official set of reports there is an agreed hierarchy of preference. The most reliable reporting is considered to be found in the Law Reports Series published by the Incorporated Council of Law Reporting (ICLR). This is a set of reports including the Weekly Law Reports, and the Court of Appeal and the Appeal Cases. These reports contain a headnote, a summary of the facts, the arguments of each counsel (note the legal spelling of counsel) for the parties and the written legal reasoning of the judge(s) for their decision. Each report is checked by the relevant judge before publication. Reports of the ICLR are regarded as the best authorities and these reports should be cited if it is reported in more than one publication. There are also private publishers, such as Lloyds Law Reports and the All England Law Reports. These reports are also highly regarded and accurate and often the private reports are focussed on specialised areas of law (e.g. Lloyds focuses on maritime law). The point is if the same case is reported in both a private publisher and an ICLR one (such as the Appeal Cases Reports) you should cite the ICLR report.

3. Legal Citation Legal citation is a basic and crucial skill for lawyers and law students. It tells the reader in which case the legal principle is found, and where in that case. When you begin to read cases, you will find that they may be tens of pages long, and there may be multiple judgments. You need to demonstrate both the case, and possibly where in the case the passage is found (if you are quoting from a case you will need to cite exactly where the quote is from). There are two forms of citation: (i) neutral citation and (ii) citations of the private publishers. Since 2001 every approved judgment in the higher English courts (we will study the court structure next week so don’t worry too much about this now) has been given a very simple citation it will look like:

R v Simpson [2003] EWCA Crim 1499

Names of the parties

Year

Jurisdiction

The court

Criminal

Sequence

of the court

(Court of

Law

Number

(i.e.

Appeal)

England and Wales)

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The names of the parties are R v Simpson The year the case was reported is 2003 The case was heard in England and Wales in the Court of Appeal It is a criminal law case (the Criminal Division of the Court of Appeal) It is the 1499th case reported in the criminal Division of the Court of Appeal of England and Wales in 2003. A case may be reported in different law reports and therefore will have different citations. In your assessments, you would only need to include one citation. However, in some formal instances, lawyers tend to include the citation of other reports if the case is reported elsewhere. In your reading, you might see something that looks like this: R v Simpson [2003] EWCA Crim 1499, [2004] QB 118, [2003] 3 All ER 531. Please note that the example above is a criminal case, in civil cases you would see the names of two parties such as Thomson v Adshell.

In cases prior to 2001 a different but similar form of citation was used. This was conceived and based around paper printing and huge shelves of volumes of law reports. It might have looked something like this:

George Mitchell v Finnery Lock Seeds Ltd [1983] 2 A.C. 803

Names of the parties

Year

The volume of the Law

The law report

Page

Report

(Appeal Cases)

number

The reason for the switch was to facilitate the location and citation of cases in an online format (i.e. by searching online in the legal databases such as Justis, Westlaw, BAILII, and Lexis). Whilst the examples above are from England Wales there is a similar system of law reporting in Scotland. However, all the law reports that you will get access to in the Legal databases such as Westlaw and Lexis Library are authoritative. There is a lot more detail to citation and referencing of both primary and secondary legal sources. To try to reduce the length of this document we have not reproduced all of that detail here but you need to read the materials on legal referencing available in the Assessment Support section of the Moodle page, and the Information and Course Materials page. 4. Reading a Case A case (sometimes called a judgment) is the written legal analysis handed

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down by the court explaining the judge’s/judges’ reasons for the decision.3 There is no prescribed format of a judgment, no set issues that should be covered by a judgment. However, most contain: (i) an account of the facts as agreed (or disputed by the parties); (ii) a restatement of the legal arguments submitted by the parties; (iii) a legal analysis of the law as it currently stands by the judge; and (iv) a decision by the judge(s) supported by a legally reasoned justification. Cases can achieve a number of things: 1. establish, modify, refine an existing legal principle 2. explain how a law, term or legal principle established in statute will be interpreted 3. demonstrate how a previously established legal principle, (in legislation or case law) is likely to be applied in the future 4. in the cases that refuse to uphold the application of the legal principle in a particular situation, they reveal the limits of the legal principle. It is important to remember that not all cases actually establish law, most do not, and indeed the vast majority of cases are not reported at all. These latter cases are concerned with disputed facts and, therefore, they do not establish law. In such cases, judges simply apply the law to disputed facts. Cases that deal with disputed points of law are the ones that are more likely to establish new legal principles. So, in essence how does this work? Stated very simply, by comparing how judges have followed the law in previous cases with the factual problem before us, we will be able to assess what the likely outcome of the legal problem will be. This is the heart of legal reasoning. Obviously, the process is a lot more complicated than that. You need to read a whole case to discern what the legal principle is and how it may be applied by considering the decision and the legal reasoning in light of the facts of the case. Accordingly, there are some specific legal terms that you need to master: Facts – these are the material facts on which the cases are predicated. Issues – these are the legal questions, which the court has to answer if it is to resolve the matter before it. Held - this is a summary of what the court decided in this case – this can include the factual outcome for the parties (i.e. which arguments the court agreed with) as well as the point of law that is decided. Distinguished – this is when the case is differentiated from a 3 Please note the spelling of judgment. When you are referring to a legal judgment handed down by a judge it is spelt without an ‘e’ after the ‘g’.

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previous case in some way, often on the basis that the facts are somehow different in an important way. Applied – this is when the decision in an earlier case is agreed with in this case and followed, or applied.

Without pre-empting what will be covered in Topic 2, please note that there are different courts. Most courts, like the High Court in England and Wales will normally sit one judge in civil cases. This single judge will write the judgment we have described. Appeal courts always sit as a panel of judges, known as the bench. Each judge would write their decision and they collectively must conclude whether they allow or dismiss the case. Unless all agree, the decision is decided by a majority. The judges may agree the outcome but give different legal reasons. Often you will have one judge leading the decision and others will concur, this is known as the leading judgment. If a judge (or judges) disagrees with the others they will also give full reasons for their decisions; these are called dissenting judgments and are not binding. Judgments can be short or they can run into hundreds of pages. As you can see, judgments contain different elements and not everything written in judgment is binding. So how do we know what is important in a judgment? There are principles to help us and it is to these we now turn. 4.a. Ratio decidendi (reason for a decision) 4 When a lawyer, or you as law students are reading a case, what you have to do is to extract what we call the ratio decidendi. In essence the ratio decidendi is the point(s) of law decided in a case. It is the ratio decidendi of a case that is binding in future cases. A more nuanced concept of ratio decidendi is that it is the point of law in light of the relevant facts of the case. The art of the lawyer is to read every judge’s opinion in the judgment and extract the ratio decidendi (the point of law) from them. In an appeal judgment there is more than one written opinion in each judgment and it may be difficult to discern the ratio decidendi, even if you have a single leading judgment. Ratio decidendi is often shortened to ratio and the basis for a decision will be referred to as its ratio. Once we have understood the ratio decidendi of this case and probably quite a few other cases we can see how they fit together to create a legal landscape. We need to think of case law as an interlocking patchwork or jigsaw of legal principles that establishes the law. Do not forget that part of this landscape is the laws as established by legislation, and the interpretation of that legislation in case law. So, law is a multi-layered and complex topography. Sometimes the law will be highly developed and have considered the potential problems from many vantage points so the interlocking case law and legislation may have a comprehensive response to almost any problem thrown at it. Sometimes there are gaps between the 4 Law and Scots law in particular, uses a number of Latin phrases for concepts and principles. Unfortunately, there is no way to avoid them and you simply need to become familiar and comfortable with this technical legal terminology. Please note all legal Latin must be italicised.

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fabric of the law which is only highlighted by a new factual problem posed by a case. Sometimes there are overlaps between and possible contradictory or competing interpretations. Thus, a legal analysis of a problem may have many nuances to the answer or indeed competing answers. It is precisely in these gaps or ripples in the fabric of the law that we write questions to test your ability to research a legal problem and construct a legal argument (this explains why we do NOT write model answers; they give students a false impression that there is a single answer). 4.b. Obiter dicta Obiter dicta are remarks of a judge on the law but they are not essential to the decision in the case. Obiter dicta can take a number of forms such as a judge’s view on a related legal point or on hypotheses, which involve slightly different facts to those in the case. These comments can be valuable and informative in future cases. They are authoritative indications of what the law should be if the hypothetical case arises in the future. Obiter dicta are not binding on subsequent courts or those lower in the hierarchy, they are persuasive only.5 Obiter dictum (singular) is normally abbreviated as obiter, and a comment by a judge might be said to be obiter. 4.c. General Pronouncements on the Law There is a third possible type of judicial pronouncement which is neither ratio nor obiter. Sometimes higher courts will issue a general rule on how courts in future are to go about deciding a case which falls within a particular set of scenarios. If the statement is from the Supreme Court the rule will have to be followed. This can sometimes look like the courts making law for all future cases of a certain type, but will usually at least be ‘dressed up’ as a consolidating statement on the law. 5. Legal Research6 As part of your studies you will be asked to find literature for yourselves on a particular subject, which may include books, journal articles, newspapers or law case reports. You will usually begin your search by using an electronic search engine, such as the Library catalogue to find books; Westlaw, Lexis Library, Hein Online and OGEL databases and the Google Scholar internet search engine to find journal articles; the Westlaw and Lexis Library databases to find law cases. You need to have rough idea of the different sources that we use in Law and where to find them. 5.a. Primary and Secondary Sources When you are researching law the materials you will be reading and analysing can be divided into primary and secondary sources. Roughly speaking primary sources are the sources in which law is established. This means legislation (both statutes and statutory instruments), case law,

5

Obiter dicta – plural. Obiter dictum- singular

6

These notes are reproduced from the Library Service: Quick start guide; some basic search tips for undertaking a legal literature search.

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treaties, and occasionally decisions of international courts etc. 7 Secondary sources will be those sorts of sources that discuss the law. This might range from reports of Government departments, the Law Commission (a quasi-official body that reviews problematic areas of law and suggests innovations and corrections to the law), academic writings in the form of books and articles. When you are researching you must be mindful of a hierarchy in the authority of your sources. If you are stating that the law is X, you should state exactly which case or statutory provision in which that legal principle is established. We do see students citing secondary sources (primarily text books) as the legal authority for what the law is. This may be the approved practice in the social sciences but in law, this is simply incorrect and unacceptable; you should state the primary source. When you are looking to analyse the law, it is helpful to then turn to secondary sources. This is where the hierarchy become more nuanced. Generally speaking academic articles in peer reviewed journals such as the Modern Law Review, Legal Studies etc. have more authority. In effect, they are written by legal scholars, specialists in the area, and reviewed by other academics in that area, as well as the editors of the journal, before they are published. These will be lengthy, carefully researched arguments about a legal problem, issue etc. When citing secondary sources, you need to access this quality of material. The online academic databases such as Hein Online, Google Scholar and the legal journals index in the Westlaw and Lexis will contain this sort of material. Be cautious of citing textbooks in coursework. These are extremely useful learning tools as they describe the law, but many do only that, describe rather than analyse. Also, be cautious of unverified online sources, such as Wikipedia, or pamphlets published by law firms, whilst they may be accurate there is no verification of the quality of the publication. If you keep your research to the legal databases provided, rather than a simple google search you will find a wealth of high-quality material at your fingertips! 5. b. Search Tips This guide will offer some simple search tips to increase your chances of success. 1. Firstly, accept that when looking for literature, you will have to read many sources, some of which may appear to be relevant at first glance, but which may prove not to be on further reading; you will need to browse a lot of material before selecting appropriate sources. And it is unlikely that a single source will answer your question so be prepared to use more than one database as well as the Library catalogue and internet. 2. Never enter a full sentence in a search engine; it is unlikely that any author will use exactly the same words, phrases and grammar that

7 We will be exploring the sources of law in the next topic so for now don’t worry about this distinction too much for now.

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you use yourself. Instead, decide on a few key words to describe your topic. 3. Because books are very general, begin by only using 2 key words or phrases to search the Library catalogue; when using the databases such as Westlaw, Lexis Library, Hein Online, begin by using a maximum of three key words or phrases; if you find few results, remove the least important key word and search again. If you have found too many results add another key word to your search terms. You can use as many key words as you like when searching the internet, but remember that the more terms you add, the fewer search results you will get. Again, be prepared to reduce the number o...