Legal writing - Phrases to help with law essays PDF

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Phrases to help with law essays...

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In this essay, I suggest that whilst… Fundamentally flawed… It appears to be predicated on… A detailed scrutiny of… Any attempt at…must therefore be approached… In order to substantiate these claims, this essay is structure ad follows. A first section scrutinises… Reflected in the evidence provided by national statistics, notably, From that critical start point The fundamental problem of recent public and legal discourse surrounding… It is important to note, furthermore that There is a considerable degree of Indeed, …thus… Taken at face value…/ Prima facie The discussion thus far, however, has omitted As ---- has noted, ‘’ The one counterpoint that must be mentioned in concluding is ,as first recognized by the courts in ---At the same time, however, that picture falls short of… The suggestion put forward by---that…is thus perhaps too stark in analysis Whilst this solution is not all encompassing…it is nevertheless I argue, first, that As indicated earlier, I take the view that The other main set of issues identified as a matter for discussion Articulated by… I contend that Epoch I argue ---- may be correct in asserting that My second associated point is that It would appear that

Normative I have essentially expressed This essay has expressed On the other hand As---- have argued ----‘s argument is unconvincing as it fails to recognise/account for…

VARY SENTENCE LENGTHS!! AUTHORITY!! Isopinion in article biased? Sub headings Don’t reword the question Ethical debate? Ask q’s of interpretation, esp. w/judges

ll first class essays will include:    

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Attention to detail when considering the precise requirements of the question. A good essay will not talk generically about a subject, but will seek to address the precise controversy raised in the wording of the question. An in-depth understanding and knowledge of the relevant law, accurately described. Clear structure and a stated and well-defended thesis (argument). A demonstration of the wider context within which the law exists. This may include the relevant policy considerations, the historical development of the law and its genesis, and the academic controversies which exist regarding this precise area of the law An excellent critical approach in answering the question posed, involving analysis and evaluation, as well as accurate description of the ‘black letter law’. The best candidates demonstrate creativity and flair in their answers, and engage in lateral thinking. The inclusion of less obvious points of law or analysis. Appropriate use of sources, supporting arguments and ideas. Correct and appropriate use of quotations, paraphrasing and citation. The consideration of opposing arguments and sources. The exclusion of irrelevant law and arguments. Excellent style, concise writing, and flawless grammar and language. Poor style will only hinder the marker from identifying your arguments. The key to good style can be summed up in three words: Keep it simple!

Different types of essays While essay questions can take an infinite number of forms, they can generally be grouped into three types, each of which requires a slightly different form of answer. However, they all still require a thesis, analysis and a good structure, A. Legal theory Questions on legal theory are asking you to discuss why the law takes the form and shape that it does, and to discuss its merits. Lots of candidates perform poorly in essays because they fail to understand this aspect of essay-writing. They do not require you to merely discuss what the law is, but also WHY it is like this and/or whether it should be like this. This is probably the most common form of essay question. Here are some examples from different subjects:    

“The rules of offer and acceptance are no longer suitable for modern transactions.” Discuss. Could Community law have achieved any effet utile without the mechanism of direct effect? Tort law has no coherent uniting thread. Discuss. The Separation of Powers has no place in the UK Constitution. Discuss.

B. Legal reform Legal reform questions can take two principal forms: those questions which ask you to evaluate a recent reform of the law, and those which ask you to consider whether a certain area of law should be reformed. These questions require you to engage in the same process as legal theory questions but put greater emphasis on the comparison between two different legal solutions to a problem (either new and old, or current and future). To answer these questions you need be familiar with the problems with the past (or current) law, and the ability of the new (or proposed law) at resolving these problems. Identifying these questions is relatively simple – they will draw attention to a recent change in the law (such as legislation or a landmark case) or ask you to suggest such a change. Here are some examples:    

The Contracts (Rights of Third Parties) Act 1999 has not resolved the problems it set out to resolve. Discuss. The decision of the ECJ in Viking has resolved the tension between free movement and freedom of association in a satisfactory manner. Discuss. How should the law of manslaughter be reformed? The law regarding charitable trusts is now settled and satisfactory. Discuss.

C. Legal history

Legal history questions are asking you to pace more emphasis on a gradual change in a certain area. They still require you to consider the issues of legal theory and legal reform, but place more emphasis on the historical changes that have occurred. In some ways, legal history questions may seem more appealing, and they are easy to structure (chronologically) and seem to involve less ‘risk’ if you know the cases and legislation well. This may be true to a certain extent, in order to achieve a second class grade at least. However, legal history questions which achieve a high mark still require legal analysis, a thesis and a good structure. A list of cases or statutes can only get you so far. You still need to be creative in your answers, perhaps more so, as questions like these will often generate many similar answers for the marker to go through. If you look at the wording carefully there are usually not only asking you to list facts or trends but also critically evaluate those trends, just as with legal theory questions. Some examples of legal history essays:    

The requirements for locus standi in UK courts have become too relaxed over time. Discuss. “Legislative reform has pushed land law closer and closer away from a system based on flexibility and fairness. ” (John Doe) Consider this statement using legislation passed since 1925. Direct effect is a doctrine which has lost its coherence as it has developed. Discuss with reference to relevant ECJ jurisprudence. Has the scope of labour law kept pace with new employment practices?

There is a fourth form of question, which is the purely theoretical legal essay question, which is usually limited to jurisprudence or legal philosophy. This will require you to consider theoretical controversies in a more abstract manner. However, such questions do no depart as far as one would imagine from the principles discussed above, but rather require greater emphasis on the theoretical merits of arguments. Persuasive authorities These are crucially important in questions of legal theory and legal reform, and play a very important role in legal history essays. At least some persuasive authorities must be considered in a law essay to achieve a good grade. 

‘Public Policy’. Public policy is the broadest form of non-binging authority, and is often poorly used by students in law essays. Public policy covers all forms of political and moral argument which can be applied to the law. It can be used to criticise or praise law or legal reform, and used to propose new laws or explain historical changes in the law. Public policy arguments must be used precisely however. Firstly, they must be identified correctly. You cannot simply say ‘this law is unfair for public policy reasons’. You must identify and explain those reasons, and then further explain how they apply to this area of law. Also, you must always consider the opposing view. If the use of constructive trusts in the context of the family home is unfair because it penalises women, what is the argument that justifies the approach? Only if you consider such counter-arguments will your use of public policy be successul.

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Legal commentary. All good law essays contain the principle and source of legal commentaries, that is to say articles and case notes written by academics. The identification of an academic’s argument and its citation, and it’s application to your current essay is a great way of increasing your mark, especially if you engage critically with the commentary, considering its validity, either on your own or by making use of other academics’ views. Remember: if you use someone’s ideas, mention their name, and the source. Without the name it is at best aimless and at worst plagiarism; with the name is great use of persuasive authority. Dissenting judgments. The use of dissenting judgments is a tell-tale sign of a top-class student. You can use them to give extra weight to your arguments, and serve the purpose of demonstrating to your marker that you have read cases. Legislative papers/Proposals for reform. Green and white papers, draft Bills of legislation, Law Commission reports and Commission proposals are all excellent sources of non-binding authority. They are of particular use in legal reform questions. International law. Because of the structure of English law international law is not immediately incorporated into our legal system. As such, it is a nonbinding authority which can be used to support a claim in legal theory essays. Law from other jurisdictions. It is often useful to look at the solution of other jurisdictions where there is a gap in English law, or you have made a case for reform. As such, this form of non-binding source is particularly appropriate for legal reform questions, but can also be used in legal theory questions as a point of comparison. Because of their similarity in structure and use of similar concepts, other common law systems are most commonly used, but you should not feel limited to those systems if you think a different legal system offers a better solution to a legal problem.

A good essay will contain the correct mix of binding and persuasive authorities. It is impossible to write an outstanding essay without including both. One is not enough. Some more tips on using authorities:  

Always obey the rules at your law school regarded correct citations. Use quotes and paraphrasing where appropriate. Do not make the mistake of including long quotes, especially from statutes, where concise paraphrasing would be more appropriate. However, a brief quote from an academic or judgment, when it makes a good point succinctly is often very impressive....