Learning Legal Skills and Reasoning

Cover
Half Title
Title Page
Copyright Page
Dedication
Table of Contents
List of figures
List of tables
Preface
Introduction
Part 1: Sources of law
Chapter 1 Domestic legislation
Learning outcomes
Introduction
What is domestic legislation?
Naming conventions for legislation
The statute book
Finding legislation
What is Parliament?
The House of Commons
The House of Lords
Royal Assent
The power of government to create legislation
Types of domestic legislation: primary and secondary
Types of primary legislation
Public General Acts
Private Acts
Hybrid Acts
Orders in Council by virtue of the royal prerogative
Private members’ bills
The procedures leading to the enactment of a Public General Act
Pre-legislative procedures Public General Bill
Public consultation, Green Papers and White Papers
Drafting of a Public General bill by parliamentary counsel
The parliamentary legislative timetable
The passage of a public bill through Parliament
Passage of a bill through the House of Commons
Voting procedures
Passage of a bill through the House of Lords
Amendment consideration
Royal Assent
Date in force of the Act
Secondary legislation
Parliamentary control over secondary legislation
Procedure for making statutory instruments
The negative resolution procedure
The affirmative resolution procedure
The super-affirmative procedure
Debates to affirm or annul SIs
Other parliamentary procedures
Lists of statutory instruments laid before Parliament
Using legislation and understanding judicial statutory interpretation
Conclusion
Chapter summary
Chapter 2 Domestic case law
Learning outcomes
Introduction
The development of the common law
Development of equity
Custom
English law and the doctrine of precedent
The courts
Generic terms applied to courts
Description of the main domestic courts
Appellate courts
Appeal Court: criminal division
Appeal Court: civil division
Superior courts
The Crown Court
Inferior courts
The County Court
The Magistrates’ Court
Tribunals
Courts outside the hierarchical system of the English legal system
The Judicial Committee of the Privy Council
The European Court of Human Rights
ECtHR
The hierarchy of the domestic courts (with reference to tribunals and the European Court of Human Rights)
Conclusion
Chapter summary
Chapter 3 International and European law
Learning outcomes
Introduction
International law
What is a treaty?
How do states agree to treaties?
Drafting
Signature
Ratification
Effectiveness of the Treaty
Reservations
What does a treaty look like?
Later changes to a treaty
What happens if a state breaks a treaty?
Customary international law
International organisations
The International Court of Justice
The Court
Contentious cases
Advisory opinions
What is the legal effect of a treaty in the country?
Monism
Dualism
The reality
Conclusion
European Union law
What is the European Union?
How did the European Union develop?
What are the key institutions of the European Union?
The European Council
The Council of the EU
The European Parliament
The European Commission
The Court of Justice of the EU
What is European Union law?
What are the sources of EU law?
Treaties
Secondary legislation
Effect of EU law
Locating EU law
Legislation
Cases
European Union law in the UK after Brexit
Conclusion
Chapter summary
Chapter 4 Human rights
Learning outcomes
The concept of human rights
International human right treaties
The Universal Declaration of Human Rights 1948
The International Covenants
Specialised treaties
Regional systems
The Council of Europe and the European Convention on Human Rights (ECHR)
The Council of Europe
The European Convention on Human Rights
The European Court of Human Rights
Admissibility
Margin of appreciation
Cases against the United Kingdom
Human Rights in the United Kingdom
Human Rights before 1998
The Human Rights Act 1998
Background to the Human Rights Act 1998 and current concerns
The key sections of the Human Rights Act 1998
The British Bill of Rights
Conclusion
Chapter summary
Part 2: Working with the law
Chapter 5 General study skills
Learning outcomes
Introduction
What are your goals?
Activity 9.1: what are your goals?
What is studying?
Studying law at university
What is learning?
How do you like to learn?
Learning styles
Cottrell’s learning styles
Kolb’s learning styles
Honey and Mumford’s learning styles
Which learning style should you use, and should you stick to one?
Activity 5.2: finding out your learning style
Why should you know your learning style?
What is independent study?
How to develop habits of independent study
The cycles patterns and schedules of standard university study
The pattern of your degree
Modules
The cycle of the academic year
Planning your weekly and yearly timetable
The range of skills required for successful legal study
Competent use of electronic communication
Making the best use of teaching
One to one learning opportunities with staff
Lecturer office hours/drop-in hour
Lectures
Seminars/tutorials
Working in groups with fellow students (formally and informally)
Effective note taking
Taking notes
Strategies for note taking
The structure of notes
Linear text
Spray diagrams
Mind maps
Notes from verbal presentations
Questions arising in your mind as you write notes
Personal development planning
Conclusion
Chapter summary
Chapter 6 Finding material
Learning outcomes
Introduction
Using the library
Getting started
The library catalogue
The main library catalogue
Printed material
Reference
Thin resources (pamphlets)
Parliamentary papers
Journals
Law reports
Legislation
Books
Electronic material
Accessing the e-library collection
Types of electronic material and their standard locations
Your librarian
How to find legislation
How to locate domestic legislation
How to understand citations for domestic legislation
How to locate statutes in print form in the university library
Chronological table of statutes
How to use Halsbury’s Statutes
How to locate statutes online
European treaties and secondary legislation
Locating the European Convention on Human Rights (ECHR) and its protocols
How to find cases
Locating cases in the English legal system
The development of law reporting in the English legal system
The hierarchy of the law reports
How to understand citations
Neutral citations
How to locate cases online
European cases
Locating European Union law cases
Locating ECHR law reports
Finding secondary material
Introduction
General issues
Search strategies
Journal articles
What are journals?
Journal title abbreviations
Journal article citations
Finding online journals using Westlaw
Finding journals on Lawtel
Finding journals on Lexis®Library
Finding journals on HeinOnline (www​.heinonline​.org)
Using other search engines
The library catalogue
Books
The library catalogue
Using print-only materials
General note on module ‘set textbooks’
Official documents
Command papers
Locating parliamentary papers
Finding reports of parliamentary debates
Evaluation of material
Conclusion
Chapter summary
General
Journal articles
Books
Chapter 7 Reading and understanding legislation
Learning outcomes
Introduction
The layout of a statute
Using and handling a statute
The overall structure of legislation
The importance of careful research to ensure that the legislation you have is the latest version
The importance of understanding the layout of individual sections and links between sections
Locating the purpose of the section you are considering: exploring s 9 of the Equality Act 2010
The explanatory notes re: s 9 of the Equality Act 2010
Understanding the impact of changes to statutes
Activity: questions on Section 9
Linking a series of sections due to their interconnections
Guided exercise
Reading s 13 of the Equality Act 2010
Reading s 19 of the Equality Act 2010
Consolidation exercise
Statutory interpretation
The general idea of interpretation
Judicial interpretation
The neutrality and objectivity of law
The rules of statutory interpretation
The three main rules of statutory interpretation
The literal rule
Statutory interpretation and the European Convention on Human Rights
Statutory interpretation and secondary legislation
Summary to statutory interpretation
Conclusion
Chapter summary
Consolidation to exercise (comparison between s 9 of the Equality Act 2010 and s 3 of the Race Relations Act 1976)
Chapter 8 Reading and understanding cases
Learning outcomes
Introduction
Legal dispute resolution in court
Introducing precedent
Persuasive precedents
Relationship between legislation and precedent
Requirements for an effective system of precedent
Hierarchy of the courts
Understanding the theory of the doctrine of precedent
What does ‘similar’ mean?
Finding, understanding and using the reasoning in a case
The differing strengths of a precedent
Handling precedent in a series of cases
Interpreting precedent in practice
The practical implementation of the doctrine of precedent
Handling law reports
Engaging with the language of judgments
The anatomy of a law report
Obtaining a general overview of the case
Consideration of your summary for task 4
What is useful in the suggested case summary
How to break into difficult text
Strategy 1
Strategy 2
Strategy 3
Preliminary matter: the procedural history of the case
Activity
Constructing a usable case note
Conclusion
Chapter summary
Activity: writing a usable case note Question 1
Part 3: Applying your research
Chapter 9 Constructing an argument
Learning outcomes
Introduction
What is an argument?
Developing your skills of argument
Critical thinking
Critical thinking and conspiracy theories
Problems and rules
The nature of problems
Solving problems
The nature of rules
Constructing arguments
How to argue
Evidence
The role of judicial judgments in argument construction
Logic
Deduction
Conclusion
Chapter summary
Chapter 10 Writing law essays
Learning outcomes
Introduction
Approaching the essay question
Choosing the topic
Reflecting on the question
Researching for your essay
Searching for relevant texts
Organising material
Law cases
Textbooks
Academic books and articles
Forming an argument
Structuring your essay
The function of the essay introduction
The main body of the text
The conclusion
Writing an outline
Writing your essay
Developing your written voice: your writing style
The requirements of formal academic language
Use of language
Grammar
Punctuation
Vocabulary
Extending your general vocabulary
Extending your technical legal vocabulary
Issues with spelling
Understanding the relationship between sentences and paragraphs
The first draft
The final version
Referencing your sources
Why should I make references?
When should I make references?
How do I make a footnote?
Referencing primary source material
What is a legal citation?
UK cases
The neutral citation
The private report citation
Citing UK cases
Conventions for shortening names of parties in civil law
Conventions for shortening names of parties in criminal law
Can shortened names be used in your footnote citation?
Pinpoint referencing using cases
Referencing secondary sources
Using the OSCOLA guide
Pinpointing references
The bibliography
How do I use in-text citations?
Avoiding plagiarism
Submitting your essay
Proofreading
Presentation
Conclusion
Chapter summary
Chapter 11 Answering legal problem questions
Learning outcomes
Introduction
General academic study skills
Legal reasoning skills
Skills relating to legal problem solution
Methods for the preparation and construction of answers to problem questions
Methods for writing solutions to problem questions
The four general stages of problem solution methodology
Stage 1: identification of the legal issues arising from the facts in the problem question
Identification of all relevant facts given in the problem question
Identification of the primary and secondary legal issues raised by the facts
Checking the capacity of the defendant or a litigant to be held liable
Stage 2: identification of all relevant legal rules
Stage 3: application of relevant legal rules to the legal issues identified
Carefully consider doubts/interpretational issues and ask yourself what you consider to be the appropriate response to them
Discussion of applicable defences/mitigation
Stage 4: your determination of liability based on your prediction of the likely application of the law
The structure of your final written answer
(1) Introduction
(2) Main body: the worked out answer to the problem question
(3) Conclusion
A guided demonstration of the basics of the four-stage problem-solving method, using problem Question 2 in Table 11.1 as an example
Stage 1: identification of the legal issues arising from the facts in the problem question
Stage 2: identification of all relevant legal rules
Stage 3: application of relevant legal rules to the legal issues identified
Stage 4: your determination of liability based on your prediction of the likely application of the law
Conclusion
Chapter summary
Chapter 12 Oral presentations and mooting
Learning outcomes
Introduction
Managing stress
The components of completing a presentation
Understanding
Managing the task
Overall task management
Time limits
Research (understanding the question)
Preparing the presentation
Notes
Content
Ensure that your presentation is relevant to the question
Ensure that you build competent arguments
Structure
Delivery
Speech
Using your notes
Eye contact
Body language and gestures
Visual aid
Clothing
Teamwork
Mooting
What is mooting?
Importance of mooting
The participants in a moot
The moot master/mistress
The judge
The clerk
Counsel
The rules
Time limits
Turn-taking in a moot, the ‘order of submissions’
The ‘right to reply’
The skeleton argument
Bundles
Analysis of the moot problem
Legal research
Questions to inform your legal research
The statement of current law
Halsbury’s Laws of England
Case law
Construction of legal argument
Your legal argument
Be clear about who speaks when and who says what!
During the moot
Courtroom etiquette
Delivery
Dealing with judicial interventions
Conclusion
Chapter summary
Chapter 13 Examination strategies
Learning outcomes
Introduction
Find out about the structure of your exams
Drawing up a list of potentially examinable topics
Drawing together information on your examinable topics
Making an inventory of examinable topics so that you can choose your revision topics
Stress and exam performance
Assumptions about what exams are testing
Assumption 1: exams are a test of how much information I can remember
Assumption 2: exams are a test of the quality of my reasoning powers
Assumption 3: exams are a test of my techniques for answering examination questions
Assumption 4: exams are a test of how well I can take apart an examination question
Assumption 5: exams test how quickly I can write in the time allowed
Assumption 6: exams test how well I can argue
Assumption 7: exams test how clever I am
What does your university lecturer expect you to demonstrate in your exam?
The art of careful exam preparation – revision
Preparing a revision timetable
Compiling the list of topics that you will revise
Assisting your memory
How long before the exam should I start revising?
Revision activities and how to keep motivated (boredom sabotages revision!)
The day of the examination
Strategies during the examination
Conclusion
Chapter summary
Part 4: Skills for resolving disputes
Chapter 14 Negotiation
Learning outcomes
Introduction
What is negotiation?
Range of skills required for negotiation
The skills you bring with you to negotiation
The two main forms of negotiation
Positional negotiation
Principled negotiation
The process of a negotiation
Guided narrative on the stages in a negotiation
Pre-negotiation planning
First meeting with your team and becoming familiar with the client instructions
Second meeting with the team and allocation of tasks
Third team meeting and decisions concerning application of law, negotiating strategies and division of tasks in-negotiation
In-negotiation strategy
Post-negotiation critical review
Agenda for post-negotiation reflective review
The negotiation outcome
Conclusion
Chapter summary
Chapter 15 Mediation
Learning outcomes
Introduction
What is mediation?
The foundational principles of mediation
The mediation process
The phases of mediation
The four phases of a typical mediation
Phase 1: opening
Phase 2: exploration
Phase 3: bargaining
Phase 4: concluding
Mediation skills
The skills you bring to mediation
Positivity: [B] 2
Non-verbal gestures: [B] 2 (a)
Questioning: [B] 3
Reality testing: [B] 3 (a)
Brainstorming/option seeking: [B] 3 (b)
Listening skills: [B] 4
Reframing: [B] 4 (a)
Conclusion
Chapter summary
Chapter 16 Drafting
Learning outcomes
Introduction
What is drafting?
Range of skills required for drafting
General rules of drafting
Who is your audience?
Grammar
What is grammar?
Paragraphs and sentences
Abbreviations, jargon and slang
English dictionaries
A thesaurus
Law dictionaries
Legal writing dos and don’ts: some rules of grammar:
Letter writing
Style
Structure
Content
Standard forms and precedents
Precedents
Standard forms
Drafting other legal documents
Conclusion
Chapter summary
Conclusions
Further reading and useful websites
Index