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