Intro Common Law Legal Method PDF

Common law legal method I. Introduc*on 1- Theore*cal and fundamental elements a. Prac*cal ques*on establishing a solid base i. Different types of classes 1) Lectures Take notes intelligently -> main goal is to understand the course o Textbook to learn how to f...

Common law legal method I. Introduc*on 1- Theore*cal and fundamental elements a. Prac*cal ques*on establishing a solid base i. Different types of classes 1) Lectures Take notes intelligently -> main goal is to understand the course o Textbook to learn how to formulate 2) Tutorials Graduate or post grad Mandatory reading -> complete them before the tutorials Exam like tutorials exercises ii. Notetaking 1) Lectures Dissen*ng = to differ an opinion 2) Tutorials Summarise the reading before the class Case briefing 3) Laptops or notebooks Notebooks -> make it easier for the exam 4) Using visual aids Colour code o Associate a colour to an element of the material -> make a specific colour code § Case law, statute -> same colour § Key word § Dates Use front as well Use abbrevia*on Visual learner iii. Study groups 1) Iden*fying your objec*ves 2) Working in groups Learn how to read quicker Preparing the tutorials -> diff convo vi. Time management 1) Lectures  Time saver to go -> ask ques*on, know the subject, get familiar with the exapta*on, their style Faire aYen*on au mot-clé 2) Tutorials Time yourself per specific task Keep pomodoro technique To-do list Most brain taking task in the morning Earplugs 3) Down*me SLEEP 7h min At least half a day off 4) Pu\ng it all together: reasonable and aYainable work schedule Colour and symbol coded calendar and to-do list -> like personal stuff blue, class schedule in green, preparing stuff in red, … 2- Pu\ng everything into prac*ce Rendre au moins un td avant les galops d’essaie II. The founda*ons of legal analysis – a brief overview How the law makers make and change the law o Credible and persuasive argument Generally, to talk about judges and parliament o We talk about courts and legislature § Legislature: create the legisla:on (legislatures has legisla*ve power over legisla*on) § Legisla:ve: the adjec*ve = the legisla:ve power § Legisla:on: created by the legisla:ve power o In CML system no were to look it up on internet for the law § Why it’s important to understand that the law comes from different sources Case law Statutes (= legisla:on, Act of parliament -> UK, Act of congress -> USA) § The legal rules arise either from: Common law (case law) ® customs can be found within case law bc they were used for century Enacted law (statute => made into an act) § They evolve constantly  § A@er a rule is changed all the other possible interpreta:on of it have to follow the “new” law Historically, the law made by the judge was the most important o The parliament has to write law case by case § Confron*ng different claims and charges (puni*ve sanc*on) Historically it worked More and more laws have been enacted in the UK and USA o Enacted law is becoming the main source of law § Legislatures are addressing new legal issues o Changing common laws on which they disagree o Now legisla:ons are more comprehensible than CML o Enacted law tries to create law that will cover possible future situa:on § With *me, common law rules are going to be more sophis:cated legal rules Difference between morality and law o Most of the *me, they may coincide but that’s not always true § Morality may underpin the law § But problema:c to use morality as a guide to law Some*mes some law may be considered immoral, but that fact doesn’t take away the fact that it remains the law Two approaches: o Posi:vist approaches: considered that morality doesn’t determine what is to be considered law o Natural lawyer approaches: the law-making process when it fails to recognise a moral dimension to law is fundamentally flawed § If we use a posi*vist approached the ques*on is how do, we determine where the law comes from and what it is and isn’t We need to look at the sources from which it emanates 1- The most important primary sources of law Common law system is rooted on case law but also the doctrine of legal precedent o We need to understand the importance of statute today § Statute: act of legislature that among other things proscribes and governs conduct. It’s a formal, wriGen enactment of the legisla:ve body In the UK, it’s a set of documents that sets out legal rules and it has to be passed by both houses of parliament and agreed to by the crown o The house of Lords o The house of Commons  In the US, the statute is a bill that has been passed in iden:cal form by both the Senate and the House of representa:ves (congress). Then send to the president for his signature Statutes are only one kind of enacted law o Such as customs and case law are comprising case law § Courts cannot modify statute Legal synonym of modify amend o Once a statute is enacted it becomes an independent source of law § Will remain fixt unless it is amended of abolished by the legislature or declare uncons:tu:onal by the court In the UK, there is a dis:nc:on between primary and secondary legisla:on o Primary: the term used to describe the main laws passed by the legisla:ve bodies of the UK § Devolved legislatures: one main parliament: the UK but Wales and Scotland have their own parliament and Northen Ireland as its own assembly The UK delegated some maters to those assembly In the US too there’s delegated legislatures: one parliament (congress) on a federal level but also delegated legislatures (state level) o Secondary: delegated legisla:on made by a person or body under authority contained in primary legisla:on § Created by en:ty that doesn’t have legisla:ve power To the execu:ve power o Ex: during covid the parliament gave health ministry the right to create law Case law o To define case law: law derived from the opinion of courts § Common law (principals, legal rules) § Judicial decision that interprets statutes (and other enacted law) o The way in which court makes law is first the crea:on of a legal principal, legal doctrine when it is necessary to solve and resolve a case § A court can only create new law in the absence of preexis:ng enacted law § A court makes law by deciding cases that interpret exis:ng legal doctrine § A court makes law by interpre:ng ambiguous or vague language in enacted law 2- The hierarchy of courts  The authorita:ve weight or value depends on which court within the hierarchy of courts rendered the opinion o Depending on the court the decision emanates from it will have more or less value o Divided in superior court and lower courts § Superior court => unlimited jurisdic:on both on a geographical level and on a monetary level § Lower court => limited geographical jurisdic:on o Appellate court or court of appeal and trial § Lower court are usually trial court § And you appeal to the superior court o Civil and criminal The hierarchy of courts in the US o Dis:nc:on between federal court and state’s court The hierarchy of courts in England and Wales 3- Concept of Common Law and precedent Common law is case law rendered in the absence of enacted law  A precedent is a judicial opinion that illustrates the applica:on of legal rules and doctrine to the facts of a specific case o Court ® decision = case law § This case law cons*tute precedent (une règle à suivre) o When it’s on analogous fact it’s create a precedent The doctrine of legal precedent is called Stare Decisis => stare decisis et quieta non movere => those things which have been so ojen adjudged ought to rest in peace o Those decisions will be binding on some other court hearings § Courts can only depart from stare decisis when it is absolutely necessary => to reflect contemporary values / in a case in which apply the precedent to the case will be an injus*ce Prior judicial precedents have the force of law, binding by lawyer o Analogous ¹ similar 4- Jurisdic*on It refers to: o The power of the court to hear of decide on a case o The territorial limits within which the jurisdic:on of a court may be exercised o The territorial scope of the legisla:ve competence of parliament Legisla*on created by the Sco\sh parliament is only applicable within ScoYland itself Judicial jurisdic:on: some courts are limited in their geographical jurisdic:on => cannot operates off their border 5- Various types of authority and authori*es - Sources of law = law o Legisla*on o Case law o Customs o Interna*onal law - Authori7es = sources – cited o Case o Statute Sources of law -> primary authority o Regula*on o Textbook o Legal ar*cles/journals Other cited sources -> secondary authority o Legal newspapers Authori:es: any cited source that courts and aGorneys use to oppose or support a legal proposi:on o Many types of authori*es exist § Statute § Precedent (case law, court decision)  Scholars § Bound by authority More or less persuasive depending on the authority Primary authority § Any source of law Legisla:on Case law o Cons*tu*on in the US o Can be split into 2 categories § Primary binding authority Any source of law that a court must follow o Mandatory for a judge when crea*ng their decision to follow the word of this specific authority § Primary persuasive authority A source of law that is not binding on a court but simply persuasive in nature o The judge can be influenced, inspired by it but not forcibly bound by it Secondary authority o Sources other than the law o Any cited source that is either going to comment on the law, discuss it or editorialize about the law o Since a secondary authority is not the law, it’s not binding but only persuasive § A court can follow it but not forced to do so Statement of a judge ajer a decision o Ra:o decidendi => the legal rezoning or principal underlying a court decision, it forms the binding parts of the case § Allows the judges to get to a decision § Legal rule created by a case Lower courts are obligated to follow the ra*o o Obiter dicta => comments or observa*ons made by a judge in a legal decision which are not essen*al to the outcome of a case § Not essen*al so not binding § Things that the judge say that aren’t necessary in the result of a case Courts are influenced by it o Secondary authority ------------------------------------------------------------------------------------------------------------------------- 1- Where to find a piece of legisla:on In the UK and most CML legal system  o The law is not codified nor centralize We can find them on the parliament websites o Once they are a bill, then going through both houses and then once it’s an Act of Parliament § The different states of the Act from bill to Act o If the bill is touchier, it will take longer to get through both houses § So, access to the parliament issues and if the bill will pass or not legisla:on.gov.uk o Date of the month and all the info of the legisla*ons that were passed § Keep up to date with what’s happening in the UK How legisla*on was created and why it changed and how o Every legisla*on since 1898 but also some from the XVIs Print edi:on by the sta*onary office § Private company that took over a public ins*tu*on o The Halsbury’s statutes § You look for the acts in the Alphabe*cal table of index Parliamentary archive o On internet but also on paper o Compare the current state of the law and its history 2- Find cases Law reports o Assemble cases into specific books § By discipline § Branch of law § Years o All publish by different companies o A “law report” was barrister who aGend other earrings and gather and write a report of the case on going § The facts, the issues, the different arguments, the decision § They will them published it with their name on it: “nominate report” o Because law is based on case law you need to wait for other’s updates § Extremely hard bc not accurate and of the quality § Hard to find a case unless you knew who published it o ICLR = Incorporated Council of Law Report § Highest authority of law reports Their reports are wriYen with capital L and R § Official “Law Report” o Hierarchy in the Law Reports § Weekly Law Reports (WLR) – published by ICLR § All England Law Reports (All ER) – published by Lexis  § Criminal Appeal Reports (Cr App R) - o To find the case: § AC = appeal cases § KB – QB = King’s/Queen’s Bench Published by the ICLR § Ch = Chancery § Fam = family division Other access: o Supreme court (2005-2009 = years of crea*on of the SC) website § Judgement back to 1996 o BAILII (Bri*sh and Irish Legal Informa*on Ins*tute) § Useful Cases based on case cita*ons, name, exact phrase, … 3- Reading and understanding a statute Easier than a case law o Always the same format Analyse and interpret the law by reading statutes on a specific manner o Can’t rely on the things founded on the internet bc much more open to interpreta*on than French law § Statutory Interpreta:on (SI) Exercise that lawyers need to do all the *me in order to an*cipate the other party’s posi*on to rebut Use all the informa:on available in the statute itself o The short :tle = name of the statute and the date § The content of the statute and the date at which it was passed o Cita:on = the chapter in which it was published § Long *tle Find the meaning of the statute § With both we can understand the meaning of it o In order for the law to be passed it needs the royal assent = the law immediately comes into effect § E.g. the Cons*tu*onal Reform Act of 2005 Change within the cons*tu*on Became a statute in 2005 so received royal assent this year o But the commencement (entrée en vigueur) in 2009 bc needed a transi*on period o Table of content: § Know where to find the informa*on without reading it all o Parts  o Heading o Sec:on o Defini:on § Of the main essen*al terms Explanatory notes for when the Act was being debated when it was a bill o Info at the beginning of the statute o Info not necessary but showing the argument of both part Referring to Hansard o On the parliament website o All element of the debate in each house § Debate, se\ng, division Using secondary sources o Secondary authority § Academic textbooks, … 4- Referencing a statute - In wri:ng ELS strict about referring to a statute o First :me use: we display the full statute name § E.g. Human Rights Act (HRA) 1998, herea7er cited as HRA 1998 No comma, no parentheses A in “Act” must be capitalized o E.g. “the Act came into force on 2nd October 2000” § Always display the date bc the short *tle may be the same, so the date differs and help to know which one is important o “Sec*on”, “sec*ons”, “s” or “ss” ® no full stop § “The Human Rights Act 1998 s Case with neutral cita:on (a@er 2001) o Case name½[year]½court½number,½[year] or (year) ½ volume ½report abbrevia*on½first page. § Corr v IBC vehicles Ltd UKHL 13, 1 AC 884 Cases without neutral cita:on (before 2001) o Case name ½[year] or (year) ½volume ½ report abbrevia*on ½ first page½(court). § Page v Smith AC 155 (HK) Before 2001, couldn’t look on the internet so all the cases were reported on law reports o Abbrevia:on indicated the law report it can be found and where in it The date only tells the year of the publica*on of the law report and not when it was decided  When typing always in italics and underlined when handwriGen No punctua:on (aside from spaces) o Except in neutral cita:on = coma Pay aYen*on to the type of brackets you use o Round brackets § Regardless of the year to find the report just need the volume in which it was published § The volume doesn’t depend on the year the case came out § Look out for the volume when it’s in parentheses o Square brackets § Need to know the year of the publica*on of the law report § Look out the year § The volume in which the report was reported on is the one in the brackets = bc volume 3 can be the one in 1997 or 1998 or 1999 First :me cita:on: cite in full - Orally Page v Smith AC 155 (HK) “and” R v Smith 2 QB 35 “The crown against” 5- How to brief a case - How to understand a case Top of the case o Page number Date with a number and 2 or more leYers o Case cita*on Names of the par*es Court Case name Info regarding the name of the judge(s) Specific date and hearing of the judgement List of key words o Summary allowing to know what the case is about o See if the case will be useful for our work without reading the whole report Headnote o Summary = introducing some ac*on but less than the “details of the ac*on” Details of the ac*on o They will be used over and over again  Names of each council = legal representa*ve of each party List of cases that were used to solve the case Judgement o Quote the name of the judges § Each one will give their own argument - How to read a case Name of the case When was it heard? o To determine if there was previous judgement that was overrule of a further one Is it civil or criminal? Appeal court? What courts? -> the hierarchy o To know the authority, it has Per*nent facts and legal issues? o That help us understand the facts we are looking for o The legal issues = what did the judges had to decide on? Legal authori*es binding on the court (if any)? o Act of Parliament o A UK supreme court previous decision § If it in the SC itself, it’s a previous decision from itself Arguments advanced by claimant, prosecu*on or appellant o Claimant = person bringing a case at trial level o Appellant = appeal a case o Prosecu*on = for criminal case -> fill a claim against a specific individual Argument advanced by the defendant or respondent Judgement of the case o What the court finally decided o Based on the majority opinion Dissen*ng judgement o Opinion of judges that differ from the final decision o Not binding on inferior court but important bc evidence/argument to support your argument Ra*o decidendi o Legal reasoning behind the judgement Ra*o of the dissen*ng judgement Important obiter dicta o All informa*on men*oned that is not necessary link to the judgement of the case Important obiter dicta of the dissen*ng judgement  Consistent with each other decisions in this area of law o Progress, new legal rule that has come o Or the state of the law before another one if we know that there was another one Why is this case important What are the implica*ons - How to brief a case Begin with case name, court, year, page (if casebook) Case facts Procedural history o Be able to tell who the claimant was and who was appellant Issues in ques*on Answer the issues (holding) Describe the court’s ra*onale for each holding Explain final disposi*on o Posi*on that the par*es are going to find themselves in Include other opinions ------------------------------------------------------------------------------------------------------------------------- How to tackle an essay ques5on Either in the form of a ques*on or a statement E.g. Discuss the key stages in the evolu2on of the Common Law and their las2ng impact on the modern legal framework of England and Wales. - 1st step -> dra@ o Read the ques*on en*rely § Find the key words For each of a key word, give the defini*on or defini*ons of the words o E.g. common law => every meaning § Find neighbouring terms of the key words E.g. common law o Case law o ¹ civil law o ¹ equity § Write down key elements that comes to mind in bullet point § Reformulate the ques*on Dumb it down  o E.g. Give the important elements of the evolu*on of the English (or CML) legal system and their consequences on the current laws/sources of laws/sources of law and legal structures of E&W § important elements Dates, historical elements, turning points, main events and challenges/changes, context, actors… nd - 2 step -> prepping your work o At home § Looking through our lecture Checking that the important picture, the subject maYer is understood § Pinpoint which part of the lecture, tutorial, … could be interes*ng for the ques*on Not looking for example but for o Key concept o Key principles, key doctrine § Addi*onal research Rewrite info with our own words o If cannot be rephrase => put it as a quote with all its informa*on o Si\ng for an exam § Similar We need to find key concept and try to reexplain them § Decompose the element of the subject Discuss the key stages in the evolu*on of the Common Law o 1066: Norman conquest o 12th century: henry II formalizes the system Ø Dev of circuits o Judicature acts 1873-75 o Emergence of Equity Ø Writs too strict and inflexible o Parliament sovereignty and Bill of Right o End of circuits 1971 o Common law turned into statutes o Condi*ons for customs to be enforceable Their las*ng impact on the modern legal framework of England and Wales o Existence of King’s Bench division and of the High Cours  o Courts use both CML remedies and equitable remedies s*ll today // CML principles and equitable maxims o Customs as a source of law today o Chancery division of the hight court o Doctrine of precedent // stare decisis o Types of circuits today o Legisla*ve power given to the execu*ve (SI) § Brainstorming arguments Customs as a source of law today Equity as a source of law? more so as a tool, a judicial tool o Equity mixed with common law for the fairest results (judicature acts) The doctrine of legal precedent influencing the law today Ongoing relevance of authority of law reports Doctrine of separa*on of powers S*ll similari*es in the structure of courts since their earliest crea*on Emergence of statutes + ques*oning the primacy of common law (understand/case law) as a source of law - Step 3 -> plan A. Historical elements s*ll in use 1. Customs as a source of law today 2. Equity as a source of law? more so as a tool, a judicial tool + Equity mixed with common law for the fairest results (judicature acts) 3. The doctrine of legal precedent influencing the law today B. A historical event ques*oning the very defini*on of the system 1. Separa*on of power 2. Statute as the primary source of law è BeYer: legisla*on as a primary source of law Structure: - Intro o Écrire après avoir le plan o Contexte o Issue -> probléma*que § Reword it Ques*on that has yes or no as an answer o Is, does, can  - Body I) A- § Conclusion + transi*on B- § Conclusion + transi*on II) A- § Conclusion + transi*on B- - Conclusion o Prendre la 1ere et la dernière phrase de chaque argument et compiler => conclusion § MeYre ensemble l’idée générale et les diff arguments o MENDATORY not like in French law As many subdivisions as possible not I) A-B II) A-B like in French law The arguments need to go from general to specific o Evidence for each argument Ø Statute, scholars, … ------------------------------------------------------------------------------------------------------------------------- Problem ques5on – CML Similari*es btw essay ques*on and problem ques*on Test the understanding of the course Determine if a student can iden*fy legal problems and answer o Ability in argumenta*on § Argue for and against the party we are advising o Iden*fy the areas that need further inves*ga*ons Not one way to answer problem ques*on Statutory interpreta*on The way lawyers (jurist) are going to interpret act of Pt o Because they lack precision most of the *me Specific method to interpret STEPS: Read the scenario carefully Read the scenario first o Use a colour code § First *me reading = fact relevant for the first *me § Second *me reading = fact that are FOR SURE relevant in a colour that can hide the first one (at home) Look up words whose meanings you are unsure of Determine who you are asked to advise and, if applicable, what you are asked to advise them on o Argument that may help your client Read the scenario a second *me Write a list of events in chronological order o Be careful to the flashbacks o Most summarized way possible § Highlight the MOST important facts Draw a diagram showing who did what to whom, when and why o Understand the rela*onships everyone has Remind yourself who you are asked to advise (once again): who is your client? What are they hoping to achieve? Factual analysis Determine which facts are certain/seYle o No argument regarding them Determine which fact are disputed o Divergent opinion on the facts o Determine if the client is likely to win if the case go to court § Highlight differently the facts agreed on Ask yourself why the abovemen*oned facts are disputed o Why those facts are not agreed on § What the legal problem is Make a list of facts that you may need but have not been given Research and legal analysis Iden*fy the area of law your problem ques*on pertains to o The subject we are working on Determine the topic areas that are relevant to the problem (at home) Reread your notes Reread the problem  Extract the relevant issues from the notes you have from your lectures, tutorials and readings o Write down element that might be per*nent to answer the problem ques*on Do addi*onal research on the applicable legal principles and authorita*ve evidence o Authorita*ve evidence § Applicable statute, case law, dissen*ng opinion, professional opinion Textbook, journal ar*cle, … o Made by scholar, scien*st, … § Argue in our favour Plan your answer Objec*ve: organize your issues in sec*ons/paragraphs o Try to find the legal ques*on of the legal problem and that would help us answer it o More ques*on as possible § Various legal issues Assign one paragraph per issue or point o List them o Title never as a ques*on § Never conjugated verbs § No hint on the final solu*on o Each one will have one issue Plan each paragraph individually o Issues individually IRAC method I = issue: legal issue to be determined R = rule: or rules that apply to the issue o Statute, cases, ci*ng scholars, … o List of the rules of law A = applica:on: of the rule(s) to specific facts of the problem ques*on o List mixed with the facts C = conclusion: answering the issue o Clear cut Then draj a general conclusion at to the strengths and weakness of the client’s case and their likely chances of success Finding your issue(s) Ask yourself: why would they? Why wouldn’t they? Or why and why not? Introduc:on  Summarize the relevant and per*nent facts of the case in chronological order o Only the per*nent one is to be used in your analyse Say who you are asked to advise Define the general legal issue Split your general legal issue into more precise (smaller) legal issues which you have iden*fied and which you will be analysing in order to advise your client Analysing your first issue (issue) Give a *tle for your first issue: it must not consist in legal qualifica*on of the issue (in other words, your answer) it must be broad and lack specificity Write the issue to be addressed in the form of a ques*on which can be answered by yes or no Ask yourself: why (is this relevant, am I being asked this ques*on)? Why not? This will help you iden*fy and underline the key elements of the issue to demonstrate your understanding of the subject Analysing your first issue (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 o Case o Statute o Other authority (academic opinion from a book/journal ar*cle) § Parliamentary debate, textbooks, … Go from the most important and large authority then we go to the less important and more specified Analysing your first issue (applica:on) Start applying each rule to the set of facts which it pertains to Explain how your evidence jus*fies the conclusion you want to reach given how the law applies to the facts Say what the law means to your client Analysing your first issue (conclusion and redra@) Take what you know and explain how this answers the legal issue you had set out to analyse in step I = issue You must explain whether the courts are likely to find in your client’s favour Each issue has the IRAC Transi:on into your next issue  Explain how, now you have correctly answered your first issue, you will either: o Be able to work on your next issue o Need to analyse other issue to solve a later issue 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 o If you have followed the IRAC method, it will be the first and last lines of each sec*on Whenever possible, iden*fy the remedies available to your client The conclusion should not leave your client with unanswered legal ques*ons