Common Law Legal Method PDF

Common Law Legal Method Section 2\ The Foundations of Legal Analysis Plan du Cours: 1. The primary sources of the law in the Common Law systems 2. Hierarchy of courts (UK & US) 3. Common Law and Precedent and the doctrine of Stare Decisis 4. Jurisdiction 5. Various types of authority/aut...

Common Law Legal Method Section 2\ The Foundations of Legal Analysis Plan du Cours: 1. The primary sources of the law in the Common Law systems 2. Hierarchy of courts (UK & US) 3. Common Law and Precedent and the doctrine of Stare Decisis 4. Jurisdiction 5. Various types of authority/authorities Objective: - Comprehending how a lawyer understands how the law works - Understanding how lawmakers make an change the law to be able to make credible and persuasive arguments Lawmakers \--\> Courts (judicial body)\ Legislatures (parliament --- non judicial body)\ \ *\[The legislature has legislative power = creates legislation\]\ *\ Legal rules come from and arise from different sources (case law and statues) and they evolve over time (can't be found anywhere/everywhere like in civil law, ex: code civil)\ \ - Category 1 : Case law --- common law\ - Category 2 : Statues \--\> legislation \--\> act of parliament (UK) / act of congress (US) --- enacted law\ \ These 2 are still subject to interpretation by courts = not set in stone \--\> always evolving. - Most US/UK law emerge from common law. - Historically the law made by judges was the most important source of law. - Important cases & issues were presented to them so the courts had no other choice but to create new laws \--\> created on a case by case basis. - However recently more and more laws have been enacted so currently legislation is becoming the main source of law. - Legislatures are passing statues not only to address novel legal issues but also to change common law with which they disagree (in circumstances where society evolved and the set rules seem obsolete). - Most of the time enacted laws are more comprehensive than common law. - Enacted law passes laws that will cover possible situations that might arise. - Common law = solves the situations right as it happens (right now) ---\> as such it starts out with very simple rules which in time will become more sophisticated. - Enacted law = thinks far ahead and envisions situations that might occur ---\> that's why it's more sophisticated from the beginning. Difference between the Law and Morality - May coincide/go hand in hand ---\> but not always necessarily true. - Morality may be seen as a basis for the law but it would be very problematic to use morality as a guide to know what is subject to legal interpretation. - The fact that some laws may be considered immoral doesn't remove from the fact that it remains the law. 2 possible approaches: a. Positivist approach ---\> considers that morality does not determine what is to be considered law. b. Natural(-ist) approach \--\> considers that when the law making process fails to recognize a moral dimension to law it is fundamentally flawed.\ \ Positivist Naturalist\ Law (even if immoral) = law Law (immoral) ≠ law = what is and isn't the law depends on the source from which it emanates. Most important primary Sources of Law Statues = is an act of legislature that among other things prescribes and governs conduct, it is a formal written enactment of the legislative body.\ \ In the UK: - It is a set document that sets out legal rules and normally has been passed by both Houses of Parliament (House of Lords & House of Commons) (in the form of a bill) and then agreed on by the Crown. In the US - It is a bill that has been passed in identical form by both the Senate and the House (of representatives/Congress) which is then sent to the president for his signature. UK USA House of Lords Senate House of Commons Congress / House of Representatives Common Law \--\> - Customs - Case Law Enacted Law \--\> - Statues (règle à l'échelle national) \-\--\> courts cannot modify/amend statutes (ex: the 1st amendment of the US Constitution) - Regulations (law that comes from administrative bodies). - Ordinances - Municipal law Once a statute is enacted it becomes an independent source of law = it will remain fixed/the same unless it is changed or abolished by the legislature or if it is considered/declared unconstitutional by a court.\ \ In the UK there is a distinction between primary and secondary legislation.\ \ Primary :\ Used to describe the main laws that are enacted by the legislative bodies of the UK :\ UK Parliament ---\> 1 main one + devolved legislatures\ England\ Wales\ Northern Ireland\ Scotland\ \ Devolved legislatures ---\> deal with delegated territorial matters\ Scottish Parliament\ Welsh Parliament\ The Northern Ireland assembly\ \ Secondary (subordinate) :\ It's a delegated legislation that is made by a person or a body under authority contained in the primary legislation\ = pieces of legislation that are enacted by bodies which aren't legislative bodies but have been given authority by a parliament act (generally executive bodies (ministers), sometimes but rarely the Crown as well)\ Statutory instrument\ \ In the US ---\> Federal & State level\ \ \ Case Law\ Is law derived from the opinion of courts\ \ Common law\ Judicial decision which interpret statutes (and other enacted law)\ \ What is the way in which courts make law :\ 1.They may create legal principle/doctrine when it's necessary to resolve a case, when there is no binding law that exists to resolve the matter. However a court cannot crate a new law whenever they wish, only in the absence of a preexisting enacted law.\ 2. A court makes law by deciding cases that interpret existing legal doctrines.\ 3. By interpreting ambiguous or vague language in enacted law.\ \ The authoritaive weight/value of a particular precedent depends on which court within the hierarchy of courts rendered the opinion.\ \ Generally courts are divided into superior (has unlimited jurisdiction both on a geographical and monetary level) and lower courts.\ \ \ There are different ways to distinguish courts :\ \ Superior (supreme courts and courts of last resort) and Lower courts\ = where they are in the hierarchy\ \ Appellate (where you go to appeal the decision of a lower court = cour d'appel --- higher than trial court on the hierarchy as they have a broader jurisdiction) (in an appellate court w can appeal, and there are courts of appeal which are a different different thing completely) and Trial (hear a case for the 1st time = cour de première instance --- lower court because they have a limited jurisdiction)courts.\ \ Civil and Criminal courts\ \ The doctrine of Precendent\ \ Common law is case law rendered in the absence of enacted law.\ A precedent is a judicial opinion that illustrates the application of legal rules and doctrines to the fact of a specific case.\ \ Courts = rendre decision = which constitutes case law -\> sets precedent\ \ The doctrine of legal precedent is also called the doctrine of stare decisis (vient du Latin stare decisis et quieta non mevere = those things which have been so often adjudged ought to rest in peace) ---\> those decisions will be binding on some later court hearings but only on analogous (a une valeur plus précise que similaire) cases.\ \ {Prior judicial decisions have the force of law?}\ \ Courts can only depart from the stare decisis when it is absolutely necessary. There are 2 circumstances when this is possible :\ -Reflect contemporary values\ -In the case in which the application of the precedent to the new case would potentially lead to an injustice so they'll depart from the stare decisis to protect general welfare.\ \ \ Jurisdiction =\ -Refers to the power of a court to hear and decide a case.\ -Also refers to the territorial limits within which a jurisdiction of a court may be exercised.\ -And the territorial scope of the legislative competence of parliament. Different types of rules The goal is to enhance the existing legal content by creating more specific/defined pieces of legislation Where to find legislation: The law isn't codified like in France -- but they are written - On the Parliament website \--\> on page called bills and legislation - legislation.gov.uk \--\> similar to legifrance - Print \--\> books: Halsbury's Statutes - Parliamentary Archives \--\> access legislation which is no longer in use Where to find cases: 1. Law Reports = printed or digitalized edition of volumes of cases (assemble cases into specific books: by year, branch of law, discipline...) -- in the UK there is about a 100 different law report series. - History of these Reports: whenever Barristers weren't working on a case, they would attend other hearings and at the end would gather and write a summary of what the case was (parties, arguments, decision, facts...) and then would publish all this information. - Incorporated Council of Law Report (ICLR) (publishing company) began publishing in 1865 what is officially known as Law Reports \-\--\> most authoritative reports \--\> divided into series: - Appeal cases = AC King's/Queen's Bench = KB or QB Chancery Division = Ch Family Division = Fam - Law Reports = only the published editions by the (ICLR) = highest authority regarding the publishing of law reports. - law reports = all the published editions of reports regarding case law \--\> the main ones other than those published by the ICLR: - Weekly Law Reports (WLR) (published by the ICLR) -- All England Law Reports (All ER) (published by Lexis) -- Criminal Appeal Reports (CAR) (published by Westlaw). 2. Other databases - Supreme Court website - BAILII (British and Irish legal Information Institute). Reading and understanding a statute Statutory interpretation = a certain exercise that lawyers do all the time in order to interpret the statute in favor of their position or against the opposition + anticipate how it could be used against my own arguments. How to interpret statutes (from most to least authority): - Use the information available within the statute itself \--\> the short title (generally summarizes/talks about the content), the date in which it passed = have a general idea of what it talks about. Use the citation = useful because it contains the date and the chapter in which it was published = where we can find it and commentary written about it. Long title Royal assent and commencement Table of contents -- titles and sections (helps to know where to look) - Explanatory notes for when the Act was being debated when it was a bill. - Referring to Hansard = a published report of the parliamentary debates (specific to each House). - Using secondary sources \--\> secondary authority: scientific article Referring a statute: First time use: statute name displayed in full - Human Rights Act (HRA) 1998, hereafter cited as HRA 1998 No comma A in "Act" must be capitalized - "The Act come into force on 2^nd^ October 2000" "Section", "sections", "s" or "ss" No full stop. - "The Human Rights Act 1998 s 6 states that..." - "The Human Rights Act 1998 ss 6-8 indicate that..." Referencing a case (in writing) Before 2001 cases were always cited without neutral citations (don't rely on a form of law report). Before 2001, before we use neutral citations, the way a case citation would be write \--\> case name (name of 1 party separated by a small v and then the other party) and then date in between \[\] references the year/volume at which the report was published -- AC (appeal court) is a series of the Official Law Reports in page 155 and in between the () is the court. After 2002 are still published in law reports but aren't a necessity we can just look it up on the internet -\> a neutral citation = names of each party separated by a v, the date, the court, and after a comma may also have a reference to the law report series in which it was published (not necessary) The only exception is in the case of giving information on the law report in a neutral citation -- comma OR when you are abbreviating a word (.), ex: Co. (= company) UKHL = court (UK House of Lords) Case name in italics Dates in \[\] = date/year at which it the law report was published to find the volume Dates in () = Hilas & Co volumes do not depend on the year Referencing a case (orally) Civil court case = Page v (and) Smith \[1996\] AC 155 (HL) Criminal (R) court case = R (rex/regina = The Crown) v (against) Smith \[1959\] QB 35 Re (in reference to / in regards to) McArdle = revenir sur (orally = in the matter of McArdle) How to brief a case Counsel = legal representatives of each party. When it was heard = important in order to determine if there was a previous judgment that was overruled or if there will be a future judgment that will overrule the one we're reading. Appeal case? = important to determine to know if it is being heard at least for the 2^nd^ time -- when a case is judged at a trial level the weight of the decision means that it has less authority because an appellate jurisdiction has more authority that would mean we probably know that it is more important and we'll use it to justify our argument. What court came out with the decision will help us determine where it is in the hierarchy which will tell us how much authority it has and if it is high in the hierarchy it will tell us that it will bind the lower courts. Legal issues: What did the judges have to decide on (question qui s'est poser) Claimant = the person that is going to bring the case forward for the first time. Appellant: the person that will take the judgment to a higher court to contest the decision (appealing) Prosecution (for criminal cases) = a state institution that is going to file a claim against a specific individual (only the state can punish an individual). Dissenting judgment = differ from the majority opinion (when some judges disagree with the majority opinion) \--\> isn't binding on lower courts but it is a form of authority = may use this dissenting judgment as argument to support my decision at a later time. Unanimous judgment = when all judges agree Ratio decidendi = legal reasoning behind a judgment (that lead to a judgment). Obiter dicta = all information that was mentioned that isn't necessarily related to the final decision. How to brief a case Write down the case citation Procedural history: all the different steps it went through (if possible say who the claimant was , repellant, appellant...) Answer the issues (problem) holding (solution) = judgment When citing the holding and the rationale use your own words Include other opinions Problem question: Long scenario, with a lot of facts that we're going to solve as lawyer or a judge. Tests understanding of course material and ability to put it into practice (facts + evidence). Diagnose a legal problem (identify what the legal problem is and what the steps are to be able to answer this problem). Argumentation (use the law in order to argue cases for and against the party that you are advising). Identify the areas that need further investigation. Steps: Step 1: Read the scenario carefully (use a color code) \--\> - Look up meanings. - Determine who you are asked to advise + what you are asked to advise them on (who is your client & what are they trying to achieve). - Summarize the facts/events in chronological order (in introduction -\> essential to mention this). - Draw a diagram showing who did what to whom, when and why (not as important this year (eng leg syst). Step 2: Factual analysis - Determine which facts are certain/settled/agreed. - Determine which facts are disputed (parties are not in agreement - and these are generally the ones we have to analyze). - Ask yourself why the above-mentioned facts are disputed (why are they not in agreement -- helps us determine what the legal problem is). - Make a list of facts that you may need but have not been given. Step 3: Research and legal analysis - Identify the area of law your problem question pertains to. - Determine the topic areas that are relevant to the problem. - Relevant issues from lecture/tutorial notes. - Do additional research on the applicable legal principles and authoritative evidence (statutes, cases, articles, journals, textbooks). Step 4: Plan your answer - Organize your issues in sections/paragraphs \--\> title each section (the title shouldn't be a question, ex: On the geographical extent of the Noise Act -- pas de contenu/solution). - Assign one paragraph per issue/point. - Plan each paragraph individually. - Raisonnement en entonnoir Step 4.1: The IRAC method - I -- Issue: legal issue to be determined - R -- Rule: or rules that apply to the issue (statutes, cases, authoritative evidence, citing scholars, and rules or aids to statutory interpretation) \--\> make a coherent and cohesive of any and all legal elements that you can use to answer your issue. - A -- Application: of the rule(s) to the specific facts of the problem question. - C -- Conclusion: answering the issue (I) -\> (on the basis of my analysis, the courts are most likely to find that...). \-\--\> Predict the other party's arguments, explain them and then refute them to strengthen your own arguments and weaken the other party's arguments (do this first and while refuting mention your arguments that defend your client). \-\--\> Then draft a general conclusion as to the strengths and weaknesses of the client's case and their likely chances of success. \-\--\> There are no wrong or correct answers, it just depends on how solid, coherent and convincing your arguments are. Other names, similar structure: - CREAC \--\> Conclusion -- Rule -- Explanation -- Application -- Conclusion - IDEA \--\> Identification of the issues -- Definition of the rules -- Explanation -- Application to the facts - CLEO \--\> Claim -- Law -- Evaluation -- Outcome Step 4.2: Find your issue(s) - Ask yourself: Why would they? Why wouldn't they? Why and Why not? Step 5: Introduction - Summarize the relevant and pertinent facts of the case in chronological order. - Say who you are asked to advise (ex: we are asked to advise Elizabeth OR Elizabeth is seeking legal advice regarding). - Define the general legal issue. - Split your general legal issue into more precise (smaller) legal issues which you have identified and which you will be analyzing in order to advise your client (ex: in order to know if the noise act applies to Elizabeth or not, we first have to define the...). Methodology for sections/parts: Step 6.1: Analyzing your first issue -- Issue (15-20 mots -- 2 lines, very brief just mention) - Give a title for your first issue (can't be a question): it must not consist in a legal qualification of the issue (= your answer). It must be broad and lack specificity (ex: the geographical location of a statute). - Write the issue to be addressed in the form of a question which can be answered by yes or no. - Ask yourself: Why (is this relevant, am I being asked this questions)? Why not? This well help you identify and underline the key elements of the issue to demonstrate your understanding of the subject. Step 6.2: Rules - Take the reader through the legal principles that must be proved in order to answer your issue. - Find evidence to back up every point you make: - Case - Statute - Other authority (academic opinion from a book, journal article, encyclopedia, definitions in dictionaries, textbooks) \--\> Paraphrase rules (memorize definitions). Step 6.3: Application - Start applying each rule to the set of facts which it pertains to. \--\> Paraphrase rules (know definitions). - Explain how your evidence justifies the conclusion you want to reach given how the law applies to the facts. - Say what the law means to your client (= how does the law apply to the specificities of your client's situation). Step 6.4: Conclusion (and redraft) - Take what you now know and explain how this answers the legal issue you had set out to analyze in step 6.1. - You must explain whether the courts are likely to find in your client's favor (ex: by applying the literally rule to section 2 of the noise act it is more/very likely for/that the courts to find that). Step 7: Transition into your next issue (not mandatory -- but helps justify why you chose a certain order for your parts/arguments -- extra points if done coherently and correctly) -- (is detached from the parts) Explain how, now that you have correctly answered your first issue, you will either: - Be able to work on your next issue. - Need to analyze another issue to solve a later issue. Step 8: Conclusion (final) - Summarize the strengths and weaknesses of the client's case. - Suggest the likely outcome of the case: what are the courts most likely to find? - Provide your assessment of the client's chances of success if the case were to come to court. TIP: if you have followed the IRAC method, it will be the first and last few lines of each section. - Whenever possible, identify the remedies available to your client. - The conclusion should not leave your client unanswered legal questions. Main legal issue: - Does the Noise Act concern Elizabeth? Smaller issues (to determine, as to answer the main legal issue) -- use IRAC method for each small issue: - Does she live in London (geographical extent)? - Does her car constitute an accommodation/dwelling? - Is the noise she is committing a noise offence? - Can her car be seized?