Letters to a Law Student relays all that a prospective law student needs to know before embarking on their studies. It p...
‘This is a splendid book. It is well written, readable and wholly absorbing … a “must have” for every student of the law.’ From the Foreword by Lord Grabiner Q.C.
‘The style is refreshingly honest and provides the reader with some excellent pointers and practical advice.’ Jason Grimster LLB (Hons) Cert Ed, Head of Law, Brockenhurst College, Hampshire ‘Plenty of insightful information and practical advice - a good choice for the prospective law student.’ Rob Cheeseman, first year law undergraduate, University of Derby
Letters to a Law Student is the definitive guide to studying law at university. It aims to turn the often daunting task of studying law into an enjoyable and stimulating experience. At the same time, reading Letters to a Law Student will help anyone who is thinking about studying law at university decide whether doing a law degree is the right option for them. Written in a lively and entertaining style, the book offers clear and helpful advice on all aspects of the study of law, including:
•
• • • •
How to write first-class legal essays and problem answers What’s the best way to revise for your law exams? How to do well in your exams What you will do after you leave university
Letters to a Law Student is essential reading for anyone who is doing, or thinking about doing, a law degree at university. Nicholas J. McBride is a Fellow of Pembroke College, Cambridge; he was formerly a Fellow of All Souls College, Oxford. He is (with Roderick Bagshaw) the author of the bestselling textbook Tort Law, now in its second edition. ISBN 0-582-89425-5
Nicholas J. McBride
• • • •
Whether you should study law at university How to choose where to study law How to do well on the LNAT What’s the best way to study law? How to get the most out of your teachers
Letters to a Law Student
‘Well-written, concise and informative. It opened my eyes to what the law degree was really all about. I can’t think of anything as essential to a law student who is just about to start university.’ James Ratcliffe, A-Level student, Brockenhurst College, Hampshire
Letters to a Law Student A guide to studying law at university
Nicholas J. McBride
With a foreword by
LORD GRABINER Q.C.
9 780582 894259 www.pearson-books.com
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Letters to a Law Student
‘This is a splendid book. It is well written, readable and wholly absorbing. . . . a “must have” for every student of the law.’ From the Foreword by Lord Grabiner QC ‘The style is refreshingly honest and provides the reader with some excellent pointers and practical advice.’ Jason Grimster LLB (Hons) Cert Ed, Head of Law, Brockenhurst College, Hampshire. ‘Well-written, concise and informative. It opened my eyes to what the law degree was really all about. I can’t think of anything as essential to a law student who is just about to start university.’ James Ratcliffe, A-Level student, Brockenhurst College, Hampshire. ‘Plenty of insightful information and practical advice - a good choice for the prospective law student.’ Rob Cheeseman, first year law undergraduate, University of Derby.
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We work with leading authors to develop the strongest educational materials in law, bringing cutting-edge thinking and best learning practice to a global market. Under a range of well-known imprints, including Longman, we craft high quality print and electronic publications which help readers to understand and apply their content, whether studying or at work. To find out more about the complete range of our publishing, please visit us on the World Wide Web at: www.pearsoned.co.uk
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Letters to a Law Student A guide to studying law at university
Nicholas J. McBride Fellow in Law, Pembroke College, University of Cambridge
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PEARSON EDUCATION LIMITED Edinburgh Gate Harlow Essex CM20 2JE England and Associated Companies throughout the world Visit us on the World Wide Web at: www.pearsoned.co.uk First published 2007 © Pearson Education Limited 2007 The right of Nicholas J McBride to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without either the prior written permission of the publisher or a licence permitting restricted copying in the United Kingdom issued by the Copyright Licensing Agency Ltd, 90 Tottenham Court Road, London W1T 4LP. ISBN-13: 978-0-582-89425-9 ISBN-10: 0-582-89425-5 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data McBride, Nicholas J. Letters to a law student : a guide to studying law at university / Nicholas J. McBride. p. cm. Includes bibliographical references and index. ISBN-13: 978-0-582-89425-9 (pbk.) ISBN-10: 0-582-89425-5 (pbk.) 1. Law students--England--Handbooks, manuals, etc. 2. Law--Study and teaching--England. I. Title. KD442.M36 2007 340.071'142--dc22 2006045529 10 9 8 7 6 5 4 3 2 1 10 09 08 07 06 Typeset in 101/2 x 14pt Minion by 71 Printed in Great Britain by Henry Ling Ltd., at the Dorset Press, Dorchester, Dorset The publisher’s policy is to use paper manufactured from sustainable forests.
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To Mikayla, Helayna, Inés, Eloise, Corin and Arthur Matthew 18:3
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Contents Foreword by Lord Grabiner QC ix Preface xi Acknowledgments xv
PART 1 Thinking About Studying Law 1 LETTER LETTER LETTER LETTER
1 2 3 4
What Will I Be Doing? 3 The Right Stuff? 17 But Do I Want to Become a Lawyer? 35 Law Degree or CPE? 45
PART 2 Preparing to Study Law 51 LETTER LETTER LETTER LETTER LETTER
5 6 7 8 9
Choosing a University 53 Tips on Taking the LNAT 63 Advance Reading 75 Four Traps to Avoid 79 Thirteen Tips Before You Start 89
PART 3 How to Study Law 99 LETTER LETTER LETTER LETTER LETTER
10 11 12 13 14
Using the Internet 101 How to Approach Your Studies 105 Reading Textbooks and Articles 121 Reading Cases and Statutes 139 Getting the Most Out of Your Teachers 161
PART 4 Preparing for Your Exams 171 LETTER 15 Writing Essays (1) 173 LETTER 16 Writing Essays (2) 191
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CONTENTS
LETTER 17 Answering Problem Questions 205 LETTER 18 Tips on Revising 227 LETTER 19 Tips for Your Exams 239
PART 5 Thinking About Your Future 247 LETTER 20 Moving On 249 Notes on the Text 267 Index 275
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Foreword This book is primarily aimed at law students, including aspirant ones. It takes the highly original form of letters written by a law teacher to Sam, an A-Level student who goes on to become an undergraduate law student. Some of the letters or parts of them will also be invaluable to non-law students. There is shrewd guidance on how to go about one’s studies; developing and applying an exam technique; planning and writing an essay; making and storing notes so as to maximise their value and to justify the time spent accumulating them; and, of course, revising for the inevitable exam. The guidance and advice in the letters should be followed: they will enable the student to realise her or his full potential. As an undergraduate law student, one of my first year courses was called ‘English Legal System’. The textbooks were ‘black letter’ and, frankly, a bit tedious. As I read through Nick McBride’s book, I became more and more convinced that this was the ideal educational tool and a ‘must have’ for every student of the law. The letters are stuffed with common sense and the wisdom and experience of an outstanding law teacher. Time and again, the letters identify and elaborate upon some great legal issue: What is the rule of law? What is the relationship between law and morality? What should be the test of intention in the law of murder? There is an incisive essay on this subject which bravely, and rightly on the particular point, includes the sentence ‘Glanville Williams is wrong’. The reader must understand that the late Professor Williams was one of the most outstanding legal scholars of the 20th century. Nick McBride’s observation brings home to the student the critical importance of challenging fundamental assumptions (including those which may have been set down by distinguished commentators) with rational and logical analysis, concisely expressed. ix
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At all times the reader is encouraged in the learning process to think about issues in a sensible, flexible and intelligent way: to apply reasoning and common sense rather than mechanically to invoke the principle enunciated in some recent well-known case which may only have some general relevance to the subject. Occasionally, you get a crisp incontrovertible proposition of law such as ‘You cannot deceive a machine: Goodwin’. The reader will never forget this point but it is made as an illustration of how to make use of decided cases. The purpose of all the letters is to teach the student how to think for him or herself, how to get to the heart of the problem and how to solve it. This is a splendid book. It is well written, readable and wholly absorbing. The problem examples littered throughout are modern and realistic. The student will swiftly come to realise that the study and practice of law is an exciting and living thing which enables solutions to be found to what, at first sight, may seem to be quite intractable and brand new problems. My only regret is that this book of letters was not available to me when I was a student.
Lord Grabiner QC
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Preface This book has been written for anyone who is doing, or thinking about doing, a law degree at university. The book comprises a series of letters to a law student, Sam. The first letter is sent to Sam while Sam is doing ALevels and thinking about doing a law degree at university. The final letter finds Sam studying law at university. It gives Sam some advice as to what legal career Sam might pursue after leaving university. The 18 letters in between track Sam’s progress from school to university, giving advice to Sam on various issues such as how to study law, how to write legal essays, and how to revise for exams. Sam does not exist, and no one who is thinking about studying law or is currently studying law will share all of the concerns that prompt the letters to Sam set out in this book. Some letters will be of more relevance to you than others. If you are thinking about whether law is the ‘right’ choice for you as a degree subject, you should definitely read Part I of this book. You may also find it useful to read letters 9, 11, 12, 13 and 14 to get some idea of what you’d actually be doing if you studied law at university. I’ve made a start at doing this in the first letter in this book, but the later letters will give you a much better idea of what is involved in studying law at university. If, on the other hand, you’ve already secured a place to study law at university, then Part I of this book will be of limited relevance to you – though you may find some parts of the second and third letters useful. If you’ve yet to take up your place at university, you should start reading this book at letter 7 and not stop until you’ve finished letter 17. The final three letters can be left to a later stage. If you’ve already started studying law at university, start at letter 8 and keep on reading until you have finished letter 19. You can leave the job of reading letter 7 to just before your next summer holiday. xi
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Letter 5 will obviously be relevant to you if you’re in the process of applying for a place to study law at university; and letter 6 will be relevant to you if one of the universities you are applying to requires you to sit the LNAT (the new national legal aptitude test). If you’ve applied for a place to study law at Oxford or Cambridge and are preparing to go for interview there, you might find it helpful to read letters 3, 8 and the final section of letter 12. Because Sam doesn’t exist, it was necessary to give Sam an identity – to make certain assumptions about Sam. I’ve assumed that Sam is doing a normal three-year law degree. So Sam is not doing a mixed law degree, such as a degree in Law & Politics or Law & Criminology; and Sam is not doing a degree that involves going somewhere on the Continent for one or two years to find out what the law says over there. I’ve also assumed that Sam is studying law at an English or Welsh university, and not a university in Northern Ireland or Scotland. Finally, I’ve assumed that Sam takes exams and that how Sam does in those exams will determine what class of law degree Sam will get. So Sam’s law degree does not involve doing coursework or a dissertation. Making these assumptions has, of course, made the focus of this book a little narrower that some might like. For example, there is no advice in this book for students as to how best to approach the job of doing coursework or how best to write a dissertation. But I’m not unduly concerned by this. One of the themes of the later letters in this book is the need for students to stop being so passive in the way they study law and adopt a much more active approach to their studies. Those who are capable of rising to this challenge will be more than capable of adapting the lessons taught in this book to their individual circumstances. Another criticism that might be made of this book in some quarters is that it is too ‘prescriptive’ – it gives law students detailed guidance as to how they should study law instead of leaving it up to them to decide for themselves how best to approach the job of ‘learning the law’. Not surprisingly, I would reject this criticism. In theory, the idea of allowing everyone to find their own way of studying law and letting ‘a thousand flowers bloom’ sounds very appealing. But in practice, giving law students little or no guidance as to how they should approach their studies leaves xii
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them in a wasteland, feeling confused, upset and very lonely. It is better, surely, to provide students with a model for studying law that they can all adopt and then allow them to make improvements to that model in the light of their own individual circumstances. That is what I have tried to do in this book, among other things. There are only a handful of books in this world that are incapable of being improved and this book is definitely not one of them. Students or teachers who have read this book and have constructive suggestions as to how it might be changed for the better shouldn’t hesitate to get in touch with me at
[email protected]. I would very much welcome hearing from you.
Nick McBride Pembroke College, Cambridge 1 February 2006
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Acknowledgments Thanks are owed first of all to Pat Bond for approaching me a few years ago, when he was commissioning editor in Law at Pearson Education, to ask if I’d be interested in writing an introductory book on studying law. We both acknowledged the need for such a book. However, I couldn’t find a decent way of structuring the book or even think of a good title for it. After Pat left Pearson Education, Michelle Gallagher, his successor, came across my correspondence with Pat and encouraged me to revisit the idea. It was at this stage that the idea occurred to me to write the book in the form of a series of letters to an imaginary law student – thus solving both the problems of structure and title. Despite the fact that no one had ever before written a book for UK law students using a letter format, Michelle was brave enough to commission me to write the book. About a year later, Michelle left Pearson Education to have a baby, and her place was ably taken by Rebekah Taylor who has done a fantastic job of supervising this project to completion, providing me with a great deal of support and excellent comments on all of the letters in this book. I’d like to thank everyone else at Pearson Education who was involved in the production of this book, especially Linda Dhondy, Philippa Fiszzon, Cheryl Cheasley, Kelly Meyer, Mary Dalton and Kay Holman. This book could not have been written without the continuing support of my wonderful college – Pembroke College, Cambridge – both in giving me a job teaching law and in providing a warm, friendly environment in which to work. I find it hard to imagine that there are many better places in the world to teach or study law. The students who are currently lucky enough to study law at Pembroke gave me a great deal of help with this book. Maryam Adamji, Hannah Bill, Hugh Kam, Clare Kissin, Siobhan Sparkes McNamara, Beka Sykes (hello!), Peter Sugden and Megan Woolgar xv
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read chapters of this book in draft form and gave me a lot of good advice as to how they might be improved. I owe an immense debt to Natalie Wilkins, whose dissatisfaction with traditional methods of studying law inspired me to come up with many of the ideas and suggestions that form the core of the second half of this book. Roderick Bagshaw, Fellow in Law at Magdalen College, Oxford, read a fair number of the letters in this book and provided so much wise advice as to what they should and should not say that I began to think that Pearson Education should have commissioned him to write this book and not me. Dr Sean Butler, Director of Studies in Law at St Edmund’s College, Cambridge, read most of this book when it was almost finished and improved it immensely with his suggestions for alterations. Professor John Bell – who is also at Pembroke College, Cambridge – gave me a lot of help with this book, both by talking about it with me and by providing me with some information about teaching practices in other universities. Helpful comments on drafts of various letters in this book were also provided by reviewers commissioned by Pearson Education: Jason Grimster (Brockenhurst College, Hampshire), Sally Russell
(Sussex Downs College) and Tony Wragg (University of Derby) acted as lecturer reviewers, and Rob Cheeseman (undergraduate law student at the University of
Derby) and James Ratcliffe (A-Level student at Brockenhurst College, Hampshire) acted as student reviewers. In the last letter of the book, I thought it would be nice to do something a little bit different and I asked a number of people, mostly ex-students, to write some pieces for it. I am immensely grateful to Andrew Jackson, Suzanne Kingston, John McLinden, Anna Midgley, Kirstin Russell, Emily Smith and one other person for taking up the challenge. I’m more than happy to acknowledge the continuing debt I owe my teachers – especially John Davies and Hugh Collins – for setting me off down the track of studying law and providing me with a great deal of help in my early years. I also owe a huge debt to someone who only ever taught me for one term at Oxford, but who managed in that eight weeks to give me a great deal of helpful advice on how to study, and write about, law. The xvi
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advice he gave me then has stayed with me ever since and has had a big influence on this book, especially letter 15. The teacher was Professor Peter Birks, now sadly lost to us. Thanks, as always, are owed to my family (especially my mother and my brother, Ben), Bridget Callaghan and her husband Craig, Isabel Haskey, and Sam Smeeton for their unwavering help and support. Finally, I’d like to thank Lord Grabiner QC for the enthusiastic encouragement he gave me while this book was still at a very early stage in its development and for kindly agreeing to write a foreword.
Publisher’s Acknowledgments We are grateful to the following for permission to reproduce copyright material: Edexcel Limited for the use of five essay questions taken from the 2004 LNAT test. Edexcel Limited accepts no responsibility whatsoever for the accuracy or method of working in the answers to the 2004 LNAT test given in Letter 6.
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1 PART 1
Thinking About Studying Law
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1
LETTER ONE
What Will I Be Doing? Dear Sam, I hope you don’t mind my writing to you in this way. I saw your mother a week ago and she asked me if I would get in touch with you. So far as I understand it, you are in your first year of doing A-Levels in History, Biology and Maths; you are starting to think about what you might study at university; you have no real interest in pursuing your current A-Level subjects to degree level and no real idea what you might want to do when you leave university; and you have started to think that you might do a law degree at university. However, you don’t know very much about law and would like a bit of information as to what is involved in doing a law degree. Which is where I come in. If you do a law degree, it seems to me that you’ll do three things in particular. First, you’ll learn how to find out what the law says on a particular point or issue. For example, suppose that after you leave university, you are at a party. Someone comes up to you and says, ‘You’ve done a law degree, haven’t you? Right – I’ve got a problem with my neighbour. His dog is terrifying my cat with his barking and his growling. What can I do about it?’ Even if you don’t know the answer to this question off the top of your head, the fact that you’ve done a law degree should have given you sufficient skills to enable you to find out what the law says on this issue. The second thing you’ll do if you do a law degree is learn what the law actually says on a variety of points and issues. You won’t cover every single aspect of English law in your studies – but you will gain a good knowledge 3
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of its most important areas. You will have heard of some of these areas – for example, criminal law. But there are other important areas of English law that you won’t have heard of but which you will be learning a lot about – for example, tort law. (You’re probably not aware of it, but you already know a bit about tort law. If you want to sue someone else for compensation for an injury that you’ve suffered, you should consult a tort lawyer. Whenever you see headlines in the newspapers about the ‘compensation culture’ and how damaging it is – they’re talking about tort law.) I should emphasise that if you do a law degree, you won’t spend all your time learning about the most important areas of English law. You’ll also be given the opportunity to study some more specialised areas of English law, such as company law or labour law. The third thing you’ll do if you do a law degree is develop some views as to what the law should say. This aspect of doing a law degree makes it very similar to doing a degree in politics. After all, if you study politics you are essentially concerned with the question: What sort of community should we live in? Our community’s laws play a fundamental role in shaping what sort of community we live in. At the moment, we live in a community where people are allowed to break their promises unless they were made as part of a commercial deal; a community where someone will incur no sanction if he stands by and allows a complete stranger to drown right in front of his eyes; a community where someone who has bought a car that she wrongly thought was stolen can still be punished by the State for attempting to handle stolen goods. We live in that kind of community because our laws make it so. So when we ask – What should the law say? – we are essentially asking the same question as the politics students – What sort of community should we live in? So that’s a brief overview of the sort of things you’ll be doing if you do a law degree at university. To give you a better idea as to what’s involved in studying law, I’ll now look at each of these three different aspects in a bit more detail.
Finding Out What the Law Says So, how do you find out what the law says on a given issue or question? Well, let’s assume you were riding down the road outside your house on 4
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your horse, and your neighbour’s dog ran out into the middle of the road and bit your horse. You want to find out if you can sue your neighbour for compensation for the vet bills you incurred having your horse’s injuries treated. So how do you find out whether you can sue your neighbour? Well, to answer that question, I have to talk a little bit about how our law is made. Try and imagine that you are standing on a riverbank, watching the river flow by. The river is English law. This river is made up of a huge mass of rules, doctrines and principles. Flowing by just now is the ‘rule in Rylands v Fletcher’. That rule says that if you bring a dangerous thing onto your land in the course of using your land in a non-natural way, you’ll have to pay your neighbour compensation if that dangerous thing escapes from your land and does harm to his land. You’ll find that rule in the tort law books. If you look over there, on the right, you’ll see the ‘doctrine of consideration’. That says that if you make a promise to me and I don’t give you something in return for it, then you’re free to break your promise. You’ll find that doctrine in the contract law books, which tell us when promises will be legally binding and what remedies will be available if someone breaches a legally binding promise. And over there is the principle that the law should apply equally to everyone. That’s such a fundamental element of English law, I’m sure we’ll see it again. It’s not clear what part of English law that principle belongs to – probably constitutional law, which is the part of English law that determines how we are governed by the State. Now this river has three different sources. Three different bodies supply the rules, doctrines and principles that make up the river of English law. These three bodies are Parliament, the courts and the European Union. Each of these bodies has a different way of making law. To put it another way, each of these bodies has a different way of introducing a new rule, doctrine or principle into English law. How Parliament makes law Parliament makes law in a very straightforward way. The principal way it makes law is by passing an Act of Parliament. Once the Act of Parliament is passed, it becomes part of the law. And this is so whatever the Act says – even if it says, to take an infamous example, ‘All blue-eyed babies are to be 5
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killed at birth.’ This is because the ‘doctrine of Parliamentary sovereignty’ says that there are no limits on Parliament’s power to make law through passing Acts of Parliament. The other way Parliament makes law is by giving someone else the power to make law. For example, Parliament might delegate the power to make law in a particular area to a government minister. The minister will then have the power to change the law in that area by issuing what’s called a statutory instrument. Note that the doctrine of Parliamentary sovereignty means that Parliament can give the power to make law to whoever it likes. In theory, it could give you or me the power to make law. The fact that Parliament can give the power to make law to whoever it likes accounts for why the European Union now has the power to make law in England. Parliament gave it the power to make law in England by passing the European Communities Act 1972. So how does the European Union do this? How the European Union makes law Member states of the European Union make law in England by entering into treaties of the European Union, such as the Treaty of Rome (1957) or the Treaty of Maastricht (1992). Once approved by Parliament, the provisions in these Treaties become part of the law in England under section 2(1) of the European Communities Act 1972. There are two ways the institutions of the European Union make law in England. The first is by passing regulations. These automatically become part of English law under section 2(1) of the European Communities Act 1972. An example of such a regulation is the notorious Commission Regulation 2257/94, which ‘defines the quality requirements to be met by unripened green bananas after preparation and packaging’. The other way the institutions of the European Union make law in England is by passing directives. As their name suggests, these direct all the countries belonging to the European Union to change their law on a particular point or issue, so that the law in all those countries will say the same thing on that point or issue. Normally, these directives are implemented (or obeyed) in the United Kingdom by a government minister. She will exercise the power to make law that Parliament has given her and issue a statutory instrument, changing the law in the way the European 6
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Union directs. But sometimes the government will implement a European Union directive by passing an Act of Parliament. For example, the Consumer Protection Act 1987 was passed to implement Council Directive 85/374/EEC, which directed the United Kingdom to change its law so that a person who was harmed by a dangerously defective product would be allowed to sue the manufacturer of that product without having to show that the manufacturer was in any way at fault for the fact that the product was defective. How the courts make law Before the Consumer Protection Act 1987 was enacted, it was law made by the courts that determined when a consumer who was injured by a dangerously defective product could sue the manufacturer of that product for compensation. That earlier law said the consumer could only sue if he or she could show the manufacturer was at fault for the fact that the product was defective. So how do the courts make law in England? Well, the courts make law by deciding cases. The courts don’t make law every time they decide a case. Most of the time the courts decide cases by applying the law as it stands at the time the case is decided. However, every so often they will decide a case in a way that we can say brought about a change in the law. You see, whenever a court decides a case it will say something along the lines of ‘It is the law that. . .’ or ‘The law says that. . .’ This proposition will form the basis for the court’s decision. Normally, when a court says ‘It is the law that. . .’ or ‘The law says that. . .’ the court is just stating what the law already says. But occasionally something quite different will happen. For example, we’ve already seen that the law says at present that if you make a promise to me and I don’t give you anything in return for it, your promise won’t be legally binding. Now let’s take a trip into the future. Imagine that 20 years from now, Sandra Smith promised to pay Jeremy Jones £500 and Jones relied on this promise by buying a car. Smith then went back on her promise to pay Jones £500, and Jones sued her for the money. Smith argued in the court, ‘My promise isn’t legally binding on me – Jones never gave me anything in return for my promise.’ But the court dismissed her argument, saying, ‘If a promise has been relied upon 7
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by the person to whom the promise was made, then that promise is legally binding. This is the case here – Jones relied on Smith’s promise to pay him £500. So Smith must pay Jones the £500 she promised him.’ Now before Jones v Smith was decided it was completely clear that the law did not say that a promise that has been relied upon will be legally binding. This may lead future courts, in deciding other cases, to say that the court in Jones v Smith got the law wrong when it said that a relied-upon promise is legally binding. If they do this, then we can say – as we would have said before Jones v Smith was decided – that the law does not say that a relied-upon promise is legally binding. But it may happen that future courts will accept what the court in Jones v Smith said and proceed on the basis that the law does say that a reliedupon promise is legally binding. If they do so, then we can say that the courts have changed the law. Before the case of Jones v Smith was decided, it was clear that the fact that a promise had been relied upon did not make it legally binding. But now the position is different and relied-upon promises are now legally binding. The courts as a whole have exercised their law-making power to change the law so that it does now say that reliedupon promises are legally binding. And while it would be wrong to say that the decision of the court in Jones v Smith changed the law all on its own, we can say that the decision of the court in that case helped to bring about the change. Back to the dog and the horse Now that you understand a bit more about how our law is made, you’re in a better position to understand how we find out whether you can sue your neighbour for compensation. We basically look at the three different sources of English law to see if any of them give you a right to sue your neighbour. The law coming from the European Union won’t help us here – so far as I know, the European Union hasn’t passed any regulations or directives dealing with the issue of when the owner of a dog will be held liable for harm done by that dog. More promising is the law that comes from the courts – what’s called the common law. There are a lot of cases which seem to say that if your neighbour knew that his dog was likely to harm your 8
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horse if he didn’t keep it under control, and he failed to take reasonable steps to keep the dog under control, and the dog bit your horse as a result, then you’ll be entitled to sue your neighbour for compensation. Turning now to the law that comes from Parliament – which is called statute law – things get even better. Section 3 of the Animals Act 1971, provides that, ‘Where a dog causes damage by killing or injuring livestock, any person who is a keeper of the dog is liable for the damage.’ If we look up the definition of ‘livestock’ in section 11 of the Act, it says that ‘livestock’ includes ‘horses’. And if we look up the definition of ‘keeper’ in section 6 of the Act, it says that ‘a person is a keeper of an animal if . . . he owns the animal or has it in his possession’ – which fits your neighbour to a T. So the outcome of our research is this – the common law says that you can sue your neighbour if he was at fault for the fact that his dog bit your horse. But statute law goes even further and says that you can sue him even if he took the greatest care possible to stop his dog biting your horse. The mere fact that his dog caused your ‘livestock’ damage is enough to make him liable. By the time you have done a law degree, this sort of thing will be second nature to you. You will acquire all the legal research skills you need to find out the law on any given issue, including issues you’ve never considered before. You will become an expert at reading cases and finding out what they say. You’ll acquire the information technology skills you need to search databases such as Westlaw or LexisNexis to find out all the relevant cases on a particular point. Similarly, you’ll be more than capable of searching through the available statutory and European Union materials to see if Parliament or the European Union has done anything to affect the law on a particular point.
Knowing What the Law Says As I said earlier, the second thing you’d be expected to do as a law student is acquire a good understanding of what the law actually says. It would be nice if the whole of English law could be summed up in one 500-page book – ‘English Law’. You could then be given a copy of this book to read and by the time you finished your studies, you would know it off by heart. But, unfortunately, the river of English law is just too deep and wide for 9
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this to be possible. So as a law student you’re never going to achieve a mastery of the whole of English law. (Indeed, I don’t think it’s possible for anyone to do this any more.) The most you can hope for is to achieve a good knowledge of the most important areas of English law. Talk of areas implies that English law can be split up into different parts. But how do lawyers go about dividing up English law? Well, they usually begin by making a distinction between private law and public law. To make sense of this distinction, it helps to think of our community as a group of people governed by the State. Private law is concerned with relationships between members of the group of people. Its primary concern is to tell us what rights the members of the group have against each other and what remedies will be available when those rights are infringed. Public law is concerned with the relationship between the group of people and the State. Its primary concern is to define what powers the State has, how those powers are to be exercised, whether there exist any limits on how those powers may be exercised and if so what those limits are. So the distinction between private law and public law works quite well to divide English law into two parts. One part of English law is concerned with the relationships between members of our community. And the other part is concerned with the relationship between the members of our community and the State by which we are governed. But English law needs to be divided up even further to make it digestible – the private law side of English law needs to be broken down into smaller parts, as does the public law side. How do lawyers do this? Private law On the private law side, lawyers make a distinction between tort law, contract law and property law. Tort law tells us what basic rights we have against each other and what remedies will be available when those rights are infringed. So, for example, tort law tells us that I have a right against you that you don’t blacken my name unfairly. If you infringe that right, then I will be entitled to sue you for damages as a way of clearing my name. 10
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Now the basic rights that tort law gives us can be added to or taken away by entering into binding agreements with other people. Contract law defines when an agreement between two people will be legally binding and what remedies will be available if that agreement is breached. So tort law tells us what rights we have against other people even if we haven’t entered into a contract (a binding agreement) with them, while contract law tells us how our rights are affected if we enter into a binding agreement with someone else. Both tort law and contract law are fundamental parts of private law, which is why if you do a law degree you will definitely be required to study both of these areas of the law. Property law also forms part of private law because many of the basic rights that tort law recognises we have against each other arise out of the fact that we have an interest in property. So, for example, tort law tells us that if I own a piece of land called Blackacre I will have a right against you so that you cannot walk across Blackacre without my consent. But how do we know if I own Blackacre? That’s where property law comes in. Property law tells us what sort of interests we can acquire in property, how those interests are acquired, how they can be disposed of to others and how they can be lost. Instead of studying the whole of property law at university as part of your law degree, you will simply study parts of it. You will study land law. As the name suggests, land law deals with what sort of interests we can acquire in land, how those interests are acquired, how they can be disposed of to others and how they can be lost. You will also study equity (also known as the law of trusts). This area of law is an important component of property law – but its basic concepts are too complex for me to explain here. Public law On the public law side of English law, lawyers make a distinction between criminal law, constitutional law and administrative law. (Though constitutional law and administrative law are sometimes melded together by legal writers into a hybrid subject called constitutional and administrative law, or – more simply – public law.) Criminal law is obviously an important part of public law because it tells us when we can be punished by the State. As a general rule, there are only 11
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two forms of behaviour that are punishable by the State under the criminal law. The first is behaviour that involves deliberately infringing someone else’s rights (in the archaic language of criminal lawyers, behaviour that involves committing an actus reus (a wrongful act) with a mens rea (a bad mind)). The second is anti-social behaviour. Most crimes fall into one of these two categories. I’ve briefly mentioned constitutional law already – this area of the law determines how we are governed by the State. So constitutional law: tells us how law is made in our community (something I’ve already
gone into) places limits on how the laws are enforced by the police lays down rules and conventions to govern the workings of Parliament determines what happens if there is a clash between the law that comes
from the courts and the law that comes from Parliament (Parliament wins – the doctrine of Parliamentary sovereignty again) determines what happens if there is a clash between the law that comes
from Parliament and the law that comes from the European Union (seemingly, the European Union wins – unless Parliament has made it absolutely clear that its law is to prevail over the law that comes from the European Union). Administrative law tells us when we can get a court to order a public body not to act in a particular way or get a court to set aside something that a public body has done. So, for example, if a local authority has granted a shop a licence to open all hours, it might be possible to get a court to order the local authority to revoke the licence. Whether you can or not is determined by administrative law. All of these three areas of public law are very important, and you will certainly be required to learn more about them if you do a law degree at university. Components of a law degree So if you do an English law degree you will certainly have to learn about tort law, contract law, land law, equity (or the law of trusts), criminal law, 12
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constitutional law and administrative law. Because of the impact that membership of the European Union has on English law, you will also have to learn about European Union law. These subjects will form the ‘core’ of any law degree you might do. Around this ‘core’ float lots of other subjects centred on particular topics or issues within English law such as family law, criminology, company law, commercial law, labour law and environmental law. You will probably be given the option of studying a few of these ‘non-core’ subjects. And floating still further out from the ‘core’ are other subjects that have a more distant relevance to English law as it stands at present. These subjects include: Roman law (basically, the law of the Roman empire), legal history (which is concerned with the study of how the ‘core’ subjects evolved into the state they are in now), comparative law (which compares what English law has to say on various issues with what French law and German law have to say on those same issues), and jurisprudence (which is concerned with theoretical questions involving law such as: What is law? How best can we analyse the basic concepts that make up the law? What is the relationship between law and morality? and so on). If you are lucky, you will also be given the chance to study some of these subjects as part of your law degree. I hope that gives you some kind of idea of the sort of subjects you’d study if you did a law degree at university. If you are interested in exploring these subjects a bit further and seeing if you have a genuine interest in them, I’d recommend you have a look at Tony Honoré’s book About Law: An Introduction (published in 1996).
Evaluating the Law The third thing you’ll be expected to do in your law degree is to evaluate the law – to decide whether or not it is in need of reform. This is not something you can opt out of doing. When you sit your law exams at university, you won’t just be asked to answer problem questions, where you give your opinion on what the law says in a particular situation. You will probably also have to write essays, which will usually invite you to say whether you think a particular area of the law is in a satisfactory state or whether you think a particular reform in the law has worked well or not. 13
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You may wonder why you will have to do this – Why isn’t it enough if you know what the law says on a particular point? Why do you also have to take a view on what the law should say on that point? Well, one reason is that many law students eventually become law-makers – whether as judges, Members of Parliament, civil servants responsible for suggesting and drafting legislation or as people working for the institutions of the European Union. The universities would be failing in their responsibilities if they failed to train these future law-makers to think intelligently about the law and form rational, defensible views about whether a particular area of the law needs to be changed or not. Moreover, in cases where the law in a particular area is uncertain, usually the most effective argument that can be made in court in favour of your client’s case is, ‘If you do not find in favour of my client, the law will be left in an unsatisfactory state.’ This is a powerful argument to make because the courts are deeply committed to the idea that the law should be rational. So if they are faced with a choice between saying that ‘The law says x’ (and finding against your client) or saying that ‘The law says y’ (and finding for your client), your best shot at convincing them to say the latter is to convince them that if they said anything else then the law would be left in a mess or would work in an arbitrary way. But, of course, you won’t be able to do this unless you have developed the ability to talk intelligently and reasonably about what the law should say. So being able to evaluate the law and discuss whether it is in need of reform is an essential legal skill that you will develop if you do a law degree. Of course, nobody expects you to arrive at university already primed to make interesting and incisive arguments as to what the law should say on any given issue. Instead, you will be told to read lots of books and articles written by academics on whether particular areas of the law are in need of reform and if so how, and use those as a basis for developing some views of your own as to how, if at all, those areas of the law could be improved.
In Conclusion To sum up then, if you do a law degree at university, you’ll be expected to quickly master a lot of new skills and information, and many of the 14
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things you’ll have to do – such as reading cases and statutes – will initially seem very strange and difficult. But if you stick with it, you’ll eventually find your feet, and discover one of the most interesting, challenging, wide-ranging and topical subjects that you can study at university. I hope you’ve found this letter helpful, Sam. If you’ve got any other queries that you’d like my help on, please don’t hesitate to get in touch. Best wishes,
Nick McBride
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The Right Stuff? Dear Sam, Thank you for your letter. You’re quite right: I didn’t say anything in my last letter about what sort of qualities you would need to do well as a university law student and that’s obviously an important consideration in determining whether a law degree is the right choice for you. It seems to me that there are seven qualities that you need to possess to be a successful law student. To be a successful lawyer, you’re going to need to have other qualities in addition to these seven. For example, someone who works in the field of family law will almost certainly need to be very good at dealing with people in difficult situations. However, there’s no point in my going into those other qualities in this letter. You shouldn’t be put off doing a law degree because you are temporarily lacking in one or more of the additional qualities that you will need to be a successful lawyer. By the time you leave university, you will be a very different person from the person you are now and may well have acquired those qualities. So I’ll just focus on the seven qualities that I think any law student needs if he or she is going to make a success of his or her studies.
1 Study Skills You will obviously need to have good study skills. Some of these (for example, the ability to concentrate for long periods of time, the ability to work hard, a love of reading) are maybe a bit too obvious to be worth spelling out.
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One less obvious study skill that you will need to have is self-reliance. You are going to have to be able to work on your own, to puzzle things out for yourself, to look up things yourself without anyone else’s assistance, to find alternative sources of information when the sources that you’ve been pointed to run dry. Law is the most ‘self-taught’ subject that you can study at university. Anyone who is uncomfortable with working on their own, who prefers to be ‘spoon fed’ information, will find it hard to be a successful law student.
2 Drive Studying law is very much like flying a helicopter. From very high up, the ground below looks smooth and even. But as you fly in for a closer look, you can see that this is an illusion: the ground has lots of features and details that you couldn’t see from higher up. Similarly, you can study law at different levels. You can ‘fly high’ and simply master the basic principles underlying the law; or you can ‘fly low’ and come to appreciate the detailed features of the law that mark and qualify those basic principles. Now sometimes it’s good to ‘fly high’ when studying law. It’s good to get an understanding of the basic principles underlying some area of the law before flying in for a closer look. But someone who is content in his studies to ‘fly high’ all the time is flirting with disaster. He will come to think that the law is very simple and easy to understand – but this is an illusion created by the fact that he hasn’t pushed himself to come to grips with the details of the law. Such a person is not likely to do well. To be successful as a law student, you have to push yourself to make the effort to ‘fly low’ and get a better view of the details of the law. A good law student will constantly ask herself: Is there anything more to learn here? Am I missing anything? Too often law students fail to do this. They are content to ‘fly high’ and learn their law from books that present the law in an oversimplified, ‘nutshell’ form. As a result, they lack the detailed knowledge of the law that they need in order to do well in their exams.
3 Logic A successful law student will think logically. To explain what I mean by this, suppose that a law student is supplied with a couple of pieces of information 18
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that support a particular conclusion. If he can’t see the conclusion that is supported by those pieces of information, then he isn’t thinking logically. Take this problem: Someone will commit the crime of murder if his or her actions cause another to die and he or she performed those actions intending to kill someone or to cause someone to suffer serious bodily harm and he or she had no lawful justification or excuse for acting as he or she did. D sent his enemy, A, a parcel bomb, which was designed to explode and kill A when A opened it. Shortly after he posted the bomb, D repented of his plans and ’phoned the police to warn them of what he had done. He gave the police detailed instructions as to how to disarm the bomb. B, a member of the Bomb Squad, was given the job of defusing the bomb but in doing so he accidentally cut the wrong wire. As a result, the bomb blew up and B was killed. Is D guilty of murder?
Here you are supplied with two pieces of information: a definition of when someone will be guilty of murder; and some facts. You are asked to reach a conclusion as to whether D is guilty of murder. Reaching the conclusion should be very simple if you think logically. All we have to do is apply the facts to the definition of when someone will be guilty of murder. Analysing the definition (which is in three parts) we need to consider whether each part is satisfied by the facts of this case: 1 Did D’s actions cause another to die? (Note that the definition merely
say that D’s actions must have caused ‘another’ to die – not that they must have caused the death of the person he was trying to kill.) Of course D’s actions caused B to die: had D not sent A a parcel bomb through the post, B would not have died. 2 Did D perform those actions with the intention of killing ‘someone’ or of
causing ‘someone’ to suffer serious bodily harm? The answer is ‘yes’. We’ve seen from our answer to 1 that what D did to cause B’s death was send a parcel bomb through the post – had he not done that, B would 19
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not have died. Now, when D sent the parcel bomb through the post, he had an intention to kill someone or to cause someone to suffer serious bodily harm. 3 Did D have any lawful justification or excuse for acting as he did? Of
course he didn’t. So the conclusion that is supported by the two pieces of information we have been given is that D is guilty of murder. If you think logically, you would see that. But when I try this problem out on students seeking a place to study law at my college, the vast majority tend not to think logically about the problem. They usually conclude that D is not guilty of murder because D was trying to kill A and not B, or because D no longer had an intention to kill anyone at the time B died. These are completely irrelevant considerations. What’s gone wrong in their reasoning is that instead of determining whether the information they have been given supports the conclusion that D is guilty of murder, they consult their ‘feelings’ and ask themselves whether it would be ‘fair’ to find D guilty of murder and if those ‘feelings’ indicate that it wouldn’t be ‘fair’ to find D guilty of murder (because, for example, he never intended to kill B or because he had a change of heart and didn’t want to kill anyone at the time B died) then they conclude that D is not guilty of murder. If you are going to do well as a law student, you’ve got to resist the temptation to think in this way and instead cultivate the habit of thinking logically. Here’s a little test to see how logical you are. Consider this problem:
Someone will commit the crime of theft if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving that other of it. D paid for a 40p chocolate bar at a corner shop with a £5 note. A – who served D – was working in the shop while she finished a psychology degree. She was doing a dissertation on people’s levels of honesty and decided to test D’s honesty by giving him £9.60 in change. She wanted to see whether he would correct her and tell her that he had paid for the bar using a £5 note, not a £10 note. When A gave him his change, D thought that he must have paid for the bar using a £10 note. He therefore put the change in his wallet and walked out of the shop. It was 20
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only when he checked his wallet again just outside the shop that he realised A’s ‘error’. D decided to keep the excess change. Has D committed the crime of theft?
There are three possible answers: ‘yes’, ‘no’ or ‘we don’t know’. What do you think the answer is? I’ll put the answer at the end of this letter.
4 Meticulousness A successful law student will be meticulous. By this I mean two things. First of all, a successful law student will be rigorous in applying the legal rules that he is supplied with. So, for example, suppose the law says that, ‘If a defendant does x in circumstances ABC, he will be guilty of theft unless either Y or Z are true.’ And suppose you are asked to determine whether a defendant has committed the offence of theft in a particular situation. If you’re rigorous about applying the above legal rule to determine whether the defendant has committed theft, then you’ll ask yourself: Did the defendant do x? If so, did he do x in circumstances ABC? If so, are either Y or Z true?
You won’t fail to consider any of these questions. Secondly, a successful law student will have a good eye for detail. Suppose, for example, in deciding the case of Fox v Swan, the court said that, ‘If A uses B’s property, then A will be held liable to pay B a reasonable sum for the use he has made of B’s property.’ Then, ten pages later in its judgment the court suggested that, ‘It may be that A will incur no liability to B if he uses B’s property to avert an emergency, but we defer consideration of that point to a later date.’ A successful law student will take note of this suggestion as possibly qualifying the rule laid down by the court in its judgment ten pages earlier. She will not overlook in it and blindly assume that the case of Fox v Swan held that if A uses B’s property, A will always be held liable to pay B a reasonable sum for the use he’s made of B’s property. 21
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Here’s a test for how meticulous you are that you might like to try: Series Alpha sets out the first 50 numbers that make up the number ‘pi’: 31415926535897932384626433832795028841971693993751 Series Beta sets out a series of 50 letters using the ten most frequently used letters in the English language: RTESEONESIEHIATHLTREHTNAIETOSTIHNOAONERIATIERNAETO The ten most frequently used letters in the English language are (arranged in order of frequency): ETAOINSRHL In Series Beta, the letter ‘E’ stands for the most popular number in Series Alpha. (Note: the letters in Series Beta are not arranged in the same order as the numbers in Series Alpha.) The letter ‘T’ stands for the second most popular number in Series Alpha. The letter ‘A’ stands for the third most popular number in Series Alpha. And so on, and so on, so that the letter ‘L’ stands for the least popular number in Series Alpha. Suppose, for example, that the most popular number in Series Alpha is 1 and the next most popular number in Series Alpha is 4. If this were the case (which it isn’t), ‘E’ would represent the number 1 in Series Beta, and ‘T’ would represent the number 4 in Series Beta. What happens if two numbers in Series Alpha are equally popular? Suppose, for example, that we found out that the most popular numbers in Series Alpha are 2, 6 and 8 because they each appear seven times in Series Alpha. If that were the case (which it isn’t), what number would ‘E’ represent in Series Beta? The answer is – ‘E’ would represent the number 8 in Series Beta because it is of a higher numerical value than 6 or 2. Likewise, of the two most popular numbers left, ‘T’ would represent the number 6 in Series Beta because 6 is of a higher numerical value than 2, and ‘A’ would represent the number 2 in Series Beta. Suppose that after 2, 6 and 8, the next two most popular numbers in Series Alpha are 3 and 9 because they each appear five times in Series Alpha. If that were the case (which, again, it isn’t), ‘O’ would represent the number 9 22
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in Series Beta because 9 is of a higher numerical value than 3, and ‘I’ would represent the number 3 in Series Beta.
One number makes one more appearance in Series Beta than it does in Series Alpha. Which is it?
One number makes one less appearance in Series Beta than it does in Series Alpha. Which is it?
You’ll find the answers at the end of this letter.
5 Flexibility A successful law student will be flexible – she will be able to see both sides of an argument. Which is not to say that a successful law student will be incapable of coming to a conclusion as to which side of an argument is stronger – but she won’t fall into the trap of thinking that only one side of the argument has any merit at all. Consider, for example, the following question: D and his family were kidnapped by terrorists. The terrorists threatened to kill D’s family unless D assassinated the Prime Minister the next day using a gun which the terrorists gave to D. D duly shot the Prime Minister dead the following day and the terrorists released D’s family. Do you think D should be punished for what he has done?
A successful law student will be able to set out the pros and cons of the case of punishing D in this situation. He would be able to write the lines for both sides in the following debate over whether it would be right to punish D for killing the Prime Minister: Pro-punishment: Punishing D for killing the PM would make it more difficult for terrorists to force people to do the sort of thing D did. Anti-punishment: But why? Even if D knew that he was going to be punished for killing the PM, he would still have acted in the same way.
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Pro: Well – it’s important to punish D so as to ensure that people in D’s situation only act in the way D did when it is absolutely necessary to do so. Anti: But if it’s established that D did have to act in the way he did, what harm would be done by letting him off? Pro: The fundamental point is that the law should encourage people to do the right thing and D definitely did the wrong thing by killing the PM. Anti: But again I go back to the point I made earlier: even if D knew he was going to be punished for killing the PM, he would still have acted in the same way. So how would punishing D encourage people in D’s position to do the right thing? Pro: Well, maybe it wouldn’t – but we don’t just punish people in order to deter people from doing the wrong thing. We also punish people because they deserve to be punished for acting wickedly – and D deserves to be punished because he deliberately did the wrong thing in the situation in which he found himself. Anti: Okay – but who’s to say that D chose to do the wrong thing here? Killing the PM saved more lives than were lost. Pro: You can’t justify sacrificing one person’s life on the ground that doing so will serve the ‘greater good’. Anti: Who says you can’t? We allow cars to travel on the motorway at 70 mph even though we know that a certain number of lives would be saved each year if those cars were made to travel at 40 mph. We justify the yearly sacrifice of those lives on the basis of the ‘common good’. Pro: But we’re not trying to kill the people who die on the motorway. If you set out to kill someone, the fact that you are doing it for the ‘greater good’ can never make it right to kill that person. Anti: That’s ridiculous – what difference does it make if, on the one hand, you are trying to kill someone and, on the other hand, you know that someone is certainly going to die as a result of your actions (for example, setting the speed limit at 70 mph rather than 40 mph)?
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And so on, and so on. Here’s an exercise that you can attempt in order to judge how flexible you are: David was part of a team of policemen trying to catch a serial killer known as the ‘Riverside Strangler’. One night while David was on duty he received a call from a man purporting to be the ‘Riverside Strangler’. The caller said: ‘You police are so useless. You’ll never catch me without my help. I’ll tell you what – I’ll tell you where and when I’m next going to strike. I’m going to kill my next victim on Ashurst Lane, sometime between midnight and 3 am next Monday. Catch me if you can.’ David dismissed the call as a prank call and failed to report it to his superiors. The following Monday, at about 1 am, Sally Jones was strangled to death on Ashurst Lane. David confessed to his superiors that he had been given prior warning that the ‘Riverside Strangler’ would strike when and where he did. David was immediately sacked. The story of David’s dismissal got into the newspapers. Sally Jones’ husband – Carl Jones – wants to sue David for compensation for the death of his wife.
Can you write out three arguments in favour of allowing Carl’s claim and three arguments in favour of dismissing his claim? I’ll set out my arguments at the end of this letter.
6 Judgement It’s important for a law student to have good judgement if she is going to be successful in her studies. If you have good judgement, two things will be true of you. First, you will be able to tell the difference between what’s important and what’s not important. In other words, you will have good evaluation skills. Secondly, you will be able to see what’s going to help you and what’s not going to help you achieve your goals. In other words, you will be blessed with practical wisdom. So someone who has got good judgement will have good evaluation skills and will be blessed with practical wisdom. It is crucial that you have good evaluation skills if you are to be a successful law student. When taking notes on the materials you are told to read, 25
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it’s vitally important that you are able to discriminate between what’s important to remember and what’s not. The same point applies when you are taking notes in lectures. In order to test your evaluation skills, consider the following passage, which is taken from Frederic Bastiat’s pamphlet, The Law (published in 1850): What is Law? What, then, is law? It is the collective organization of the individual right to lawful defense. Each of us has a natural right – from God – to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend – even by force – his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right – its reason for existing, its lawfulness – is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force – for the same reason – cannot lawfully be used to destroy the person, liberty, or property of individuals or groups. Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces? If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to 26
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do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.
A Just and Enduring Government If a nation were founded on this basis, it seems to me that order would prevail among the people, in thought as well as in deed. It seems to me that such a nation would have the most simple, easy to accept, economical, limited, nonoppressive, just, and enduring government imaginable – whatever its political form might be. Under such an administration, everyone would understand that he possessed all the privileges as well as all the responsibilities of his existence. No one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack. When successful, we would not have to thank the state for our success. And, conversely, when unsuccessful, we would no more think of blaming the state for our misfortune than would the farmers blame the state because of hail or frost. The state would be felt only by the invaluable blessings of safety provided by this concept of government. It can be further stated that, thanks to the non-intervention of the state in private affairs, our wants and their satisfactions would develop themselves in a logical manner. We would not see poor families seeking literary instruction before they have bread. We would not see cities populated at the expense of rural districts, nor rural districts at the expense of cities. We would not see the great displacements of capital, labor, and population that are caused by legislative decisions. The sources of our existence are made uncertain and precarious by these state-created displacements. And, furthermore, these acts burden the government with increased responsibilities.
The Complete Perversion of the Law But, unfortunately, law by no means confines itself to its proper functions. And when it has exceeded its proper functions, it has not done so merely in some inconsequential and debatable matters.
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The law has gone further than this; it has acted in direct opposition to its own purpose. The law has been used to destroy its own objective: It has been applied to annihilating the justice that it was supposed to maintain; to limiting and destroying rights which its real purpose was to respect. The law has placed the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others. It has converted plunder into a right, in order to protect plunder. And it has converted lawful defense into a crime, in order to punish lawful defense. How has this perversion of the law been accomplished? And what have been the results? The law has been perverted by the influence of two entirely different causes: stupid greed and false philanthropy. Let us speak of the first.
A Fatal Tendency of Mankind Self-preservation and self-development are common aspirations among all people. And if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing. But there is also another tendency that is common among people. When they can, they wish to live and prosper at the expense of others. This is no rash accusation. Nor does it come from a gloomy and uncharitable spirit. The annals of history bear witness to the truth of it: the incessant wars, mass migrations, religious persecutions, universal slavery, dishonesty in commerce, and monopolies. This fatal desire has its origin in the very nature of man – in that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with the least possible pain.
Property and Plunder Man can live and satisfy his wants only by ceaseless labor; by the ceaseless application of his faculties to natural resources. This process is the origin of property.
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But it is also true that a man may live and satisfy his wants by seizing and consuming the products of the labor of others. This process is the origin of plunder. Now since man is naturally inclined to avoid pain – and since labor is pain in itself – it follows that men will resort to plunder whenever plunder is easier than work. History shows this quite clearly. And under these conditions, neither religion nor morality can stop it. When, then, does plunder stop? It stops when it becomes more painful and more dangerous than labor. It is evident, then, that the proper purpose of law is to use the power of its collective force to stop this fatal tendency to plunder instead of to work. All the measures of the law should protect property and punish plunder. But, generally, the law is made by one man or one class of men. And since law cannot operate without the sanction and support of a dominating force, this force must be entrusted to those who make the laws. This fact, combined with the fatal tendency that exists in the heart of man to satisfy his wants with the least possible effort, explains the almost universal perversion of the law. Thus it is easy to understand how law, instead of checking injustice, becomes the invincible weapon of injustice. It is easy to understand why the law is used by the legislator to destroy in varying degrees among the rest of the people, their personal independence by slavery, their liberty by oppression, and their property by plunder. This is done for the benefit of the person who makes the law, and in proportion to the power that he holds.
This passage is about 1,300 words long. Try and summarise it in about 100 words – and then compare your summary with mine, at the end of this letter. A law student needs to be blessed with practical wisdom if he is to do well in his exams. He needs to be able to tell what will help him impress the examiners and what will not. Suppose, for example, that you are given 29
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an essay to write that asks you to suggest some reforms to the law on murder. Here are three possible essays you can write, each 96 lines long: A An essay suggesting 16 reforms, devoting six lines to each B An essay suggesting eight reforms, devoting 12 lines to each C An essay suggesting three reforms, devoting 32 lines to each.
Other things being equal, which essay is likely to impress the examiner the most? The answer is C. There is no way that you will be able to make out a convincing case for reforming an aspect of the law on murder in six or 12 lines – so essays A and B are going to strike the examiner as being lightweight. Only essay C has any chance of getting a high mark from the examiner. A law student who is blessed with practical wisdom will realise this and confine himself to suggesting three reforms and spend quite a lot of time on each one. A law student who is not so blessed may well decide to adopt a ‘scattergun’ approach, suggesting lots of reforms, hoping that the examiner will be amazed by his thoroughgoing critique of the law of murder. Sadly, the examiner will probably not be impressed.
7 Interest in Non-legal Subjects C.L.R. James, the West Indian writer, once observed, ‘What do they of cricket know, who only cricket know?’ The idea he was expressing in these lines was that cricket is a lot more than just a game – so those who view it as just a game don’t really understand cricket at all. The same is true of law. As a law student, you’ll be expected to criticise the law and develop views as to what it should say. In order to do either of these things, you will need to go outside the law, into the realms of politics and economics, and evaluate the law using the insights you’ve gathered from those subjects as to how society should be organised. So a successful law student will cultivate a keen interest in political and economic ideas, and use those ideas to add spice and interest to her essays on the law.
Acquiring these Qualities Those, then, are the seven qualities that I think you will need to have if you are going to be a successful law student. So, do you have those qualities or not? Don’t necessarily assume that you know the answer to this question. 30
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Ask around – your teachers or your parents may know your strengths and weaknesses a lot better than you do. Now what should you do if you conclude that you are lacking in one or more of these qualities? Should you give up on the idea of studying law? Not at all! A tennis player with a weak backhand doesn’t throw her rackets away. Either she works on her backhand until it’s no longer a weakness or she changes her game so she doesn’t have to use her backhand very often. The same thinking applies here. Leaving good judgement aside for a moment, all of the qualities I’ve talked about can be acquired with practice. If you want to acquire any of the qualities I’ve been talking about, all you have to do is act as though you have that quality and you will gradually come to acquire it. So, for example, if you find it hard to think logically, buy some puzzle magazines and start doing the puzzles. You will gradually find yourself thinking more and more logically. Similarly, if you find it hard to be meticulous buy a book of Sudoku puzzles, start doing them and you will gradually become much more meticulous. If you have no interest in politics or economics, go down to your local library, borrow some books on those areas that look stimulating and start reading them – you’ll soon find yourself developing an interest in those subjects. This is, after all, how real-life law students improve their grades over time. Take a law student who did quite badly in his exams at the end of his first year because he wasn’t very good at thinking logically. The same law student may well end up getting a first class mark in his exams at the end of his third year. The improvement in his marks will be due to the fact that in the course of his second and third year studies, he will have had to answer a lot of problem questions – legal puzzles. Answering these questions will have helped him to think more and more logically, thus eliminating the weakness that pulled him down in his first year exams. By the end of the third year, that weakness will have disappeared completely, allowing him to obtain a much higher mark in his third year exams. Now what should you do if you lack good judgement? Unfortunately, good judgement can’t be acquired through practice – it can only be acquired through experience, and there’s nothing much you can do to ensure that you have the right kinds of experiences that will allow you to acquire good judgement. So good judgement is a very difficult thing to acquire if you 31
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don’t already have it. However, lack of good judgement can be covered up, in the same way that a tennis player with a weak backhand can take steps to cover it up by changing her game so that she doesn’t have to call on her backhand very often. If you lack practical wisdom, you can learn to follow certain rules (for example, for writing essays) that will substitute for your lack of practical wisdom and help you do well in your exams. Of course, these rules won’t help you in all situations and then your lack of practical wisdom may well trip you up, but they will suffice for most purposes. If you lack good evaluation skills, that’s harder to cover up – but not impossible. You can learn from other people or books what are the most important points in some article you’ve been told to read. You can even learn to approach the article with a certain set of questions (such as, What point does this article make? What arguments does the author make in support of his point?) that will help highlight for you the important features of that article. So if you lack any of the qualities that I’ve said you’ll need to become a successful law student, you certainly shouldn’t rule out the idea of studying law at university. But what you should do is ask yourself: ‘Am I willing to do the work that I will need to do in order to acquire these qualities, or to cover up for the fact that I don’t have them?’ If the answer is ‘no’, then think about doing something other than law at university. But if the answer is ‘yes’ then nothing I’ve said in this letter should put you off the idea of studying law. Best wishes,
Nick P.S. The answer to the problem on the law of theft that I set you earlier is ‘No – D is not guilty of theft’. At the time D took the £9.60 change from A he was not dishonest. When he decided to keep the excess change, he may have been dishonest but by that stage the change belonged to D, so D could not be said to have been ‘appropriating property belonging to another’ when he decided to keep all of the change. 32
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The answer to the meticulousness test I set out earlier in this letter is that the number 2 (represented by the letter ‘I’ in Series Beta) appears six times in Series Beta, but only five times in Series Alpha; while the number 7 (represented by the letter ‘S’ in Series Beta) appears three times in Series Beta and four times in Series Alpha. Here are three arguments in favour of allowing Carl’s claim against David: 1 Doing so will encourage the police to do their jobs properly. 2 Allowing Carl to sue David will allow Carl to think that some good has come out of his wife’s death – he’s been enabled to obtain a judgment against David that will encourage the police generally to be more careful in their investigations in future – and therefore make it easier for him to come to terms with his wife’s death.
3 If Carl had employed a bodyguard to look after Sally and he had failed to protect Sally from being strangled, there’s no doubt that the bodyguard would be held liable to Carl for Sally’s death. Carl has – through paying taxes – employed people like David to look after people like Sally, so there is no real difference between David’s case and that of our hypothetical bodyguard. If the bodyguard would be held liable, so should David.
And here are three arguments in favour of dismissing Carl’s claim against David: 1 Allowing Carl’s claim will only encourage the police to pursue every single call they receive – no matter how silly it might seem – in order to avoid the slightest risk of being sued. As a result police resources will be wasted and it will be much harder for the police to do their jobs effectively.
2 If the objective of allowing Carl to sue David is to punish David for what he did, so as to encourage people like David to do their jobs properly in future, there is no need to allow Carl’s claim against David. David has already been punished enough through the loss of his job. The prospect of being subject to disciplinary
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proceedings should be enough to encourage the police generally to do their jobs properly.
3 It is not clear what would have happened had David followed up the call he received. Maybe the ‘Riverside Strangler’ would still have managed to kill Sally Jones or maybe he would have killed someone else in some other location. So it is very difficult to tell whether any net harm was caused by David’s inaction – and given this, it would be unjust to hold David liable for what he did or what he failed to do.
Finally, here’s my summary of the passage from Bastiat’s The Law: The law exists to protect people’s rights to life, liberty and the enjoyment of their property. If the law simply concerned itself with protecting people’s rights, then no one would have any cause to blame the State for his misfortunes, and people would be free to satisfy their needs without any interference from the government. Unfortunately, the law has to be made and enforced by men, and because men are naturally greedy, those who are in charge of the law abuse it to deprive other people of their rights. (89 words)
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But Do I Want to Become a Lawyer? Dear Sam, Thanks for your letter. I think it’s a mistake to rule out the idea of doing a law degree just because your friends have put you off the idea of becoming a lawyer when you leave university. You’re overlooking the fact that doing a law degree can prepare you for many careers, other than being a lawyer. Students who do a law degree become very adept at: expressing themselves concisely, precisely and convincingly analysing and spotting flaws in arguments or proposals that are made
to them mastering and summarising huge amounts of detail being able to see all sides of a complex issue or case.
These skills would serve you very well if you wanted to go into journalism, or work in government or for a firm of management consultants, or in a public relations department, or for a charity or some other kind of nongovernmental organisation. Now I admit that you can obtain similar skills by doing some other degree such as a degree in history or classics. But if you think you’d get more enjoyment out of studying law for three years than you would studying subjects such as history or classics, you shouldn’t be put off doing a law degree by the fact that you don’t currently intend to become a lawyer when you leave university. The skills you will acquire in doing a law degree will make you highly desirable in lots of employment market sectors. 35
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But I wonder why, in any case, your friends have put you off the idea of becoming a lawyer when you leave university. I find it hard to believe that you’re ruling out the idea because you think that working as a lawyer would be boring. There are two main kinds of lawyers in England – solicitors and barristers. The traditional role of a solicitor has been to handle people’s legal affairs outside court. However, recently solicitors have been given rights to represent their clients in court as well. Barristers perform two kinds of roles. First of all, there’s the advocacy role – arguing cases in court. Secondly, there’s the expert advice role – giving solicitors specialist legal advice on tricky legal questions that solicitors have come across in the course of handling their clients’ affairs. Working as a barrister arguing cases in court is generally seen as a very exciting and interesting career, one which always throws up new challenges and new issues to deal with. I was recently told about a very senior judge who was asked by a student why he became a barrister. ‘Blood and sand,’ he replied – suggesting that arguing cases in court is now the closest you can get to the excitement of gladiatorial combat. Now being a barrister isn’t for everyone; it certainly wasn’t for me when I was thinking about what to do after I finished studying law at university. But even if you became a solicitor, or a barrister specialising in giving expert opinions on tricky legal issues, there are so many different legal fields you could work in. I’m sure you would be able to find at least one – and probably much more – which interested you. Media law, sports law, education law, corporate law, commercial law, human rights law, family law, tax law, property law, criminal law, personal injury law, employment law, international law – there’s something for everyone who becomes a lawyer. But maybe it’s not the idea that practising law might be boring that’s putting you off? If you are anything like most people your age you will want to do something with your life that has some meaning, that’s worthwhile in some way. You won’t simply be interested in a career that is well-paid and relatively stimulating. And I suspect this is what’s put you off the idea of a career as a lawyer. You may think that you’d be selling your soul if you became a lawyer – and that’s entirely understandable. We all know plenty of lawyer jokes that make out that lawyers are lower than vermin. For example: ‘What do you call a thousand lawyers at the bottom of the ocean? 36
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A good start.’ But I think we – and the joke makers – need to distinguish between good lawyers and bad lawyers. I think that being a bad lawyer is one of the worst things you can be. But what good lawyers do is worthwhile and anyone who aspires to be a good lawyer should be applauded. So, what’s the difference between a good lawyer and a bad lawyer? To my mind, whether a lawyer is a ‘good’ lawyer or a ‘bad’ lawyer doesn’t depend on how much law he knows or how much money he makes. A good lawyer works to help sustain the existence of the rule of law in the country in which he lives. A bad lawyer doesn’t care about the rule of law. He is only interested in pursuing other goals such as making as much money as possible, or ‘winning at all costs’, or getting to the top of his profession. If achieving those goals means damaging or undermining the rule of law, then so much the worse for the rule of law.
The Rule of Law and its Value Now you’re probably not familiar with the concept of the rule of law, so I’ll take a bit of time to explain what it means for a country to be governed by the rule of law. There’s a lot of disagreement over this issue and this disagreement is reflected in the number of different slogans which people associate with idea of the rule of law: nulla poena sine lege (that is, ‘no punishment without authority of law’); ‘no one is above the law’; ‘government by laws, not men’; ‘laws should be clear, prospective, and easy to obey’. My view is that the rule of law is best thought of as a roof which shelters us all from the twin evils of chaos and oppression. This roof is supported by four pillars. If any of these pillars collapse, the roof will cave in and we will be fully exposed to the evils which the rule of law protects us from. So, what are these four pillars, without which the rule of law cannot exist? The bindingness of the law The first pillar of the rule of law is the bindingness of the law. Unless the people living in a country generally obey the law, that country cannot be said to live under the rule of law. Now in any modern country, it is impossible for the State to compel everyone to obey the law – if enough people want to 37
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disobey the law, no State on earth has enough resources to stop them. So this first pillar of the rule of law cannot stand unless most people living in a country positively want to obey the law – thus leaving the State with the job of compelling a small, disobedient minority to get in line. But it’s not enough – for the law to be binding – for most people to want to obey the law: the law must be capable of being obeyed. So, in general, the law must be: consistent, so that people aren’t required under the law to do two completely opposite things
clear and simple, so that people can understand what the law requires them to do
published, so that people can find out what the law requires them to do
stable, so that people don’t get confused by constant changes in the law as to what they are required to do
moral, so that people aren’t compelled to break the law by moral considerations
humane, so that people aren’t compelled to break the law by financial or physical constraints.
If this pillar of the rule of law – the bindingness of the law – collapsed in a particular country, then everyone in that country would become free to do what they liked. This might sound pretty nice in theory but, in practice, life in a country where everyone was free to do what they liked would become chaotic. It would become impossible to make any plans, to build for the future, to protect yourself from those who would do you harm. Life in such a country would become ‘nasty, brutish and short’. (The quotation is from Thomas Hobbes, the English philosopher who lived through the collapse of social order that occurred in England during the English Civil War.) Equality under the law The second pillar of the rule of law is equality under the law. Unless the laws in a particular country apply equally to everyone living in that country – both 38
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in theory and in fact – that country cannot be said to live under the rule of law. So in a country living under the rule of law, no one is unjustifiably exempted from the effect of a particular legal rule and no one is unjustifiably deprived of the benefit of a particular legal rule. For example, consider the following law: ‘No one is allowed to act in a way which he or she knows is certain to cause another’s death, except in the case where a doctor administers pain-killing drugs to a terminally ill patient with the sole aim of alleviating that patient’s pain while the patient waits to die.’ Such a law is not inconsistent with equality under the law: it is justifiable to exempt doctors who provide pain relief to terminally ill patients from the prohibition against acting in ways which one knows are certain to cause or hasten another’s death. But a law which says, ‘No one except the Head of State is allowed to act in a way which he or she knows is certain to cause another’s death,’ is inconsistent with equality under the law: there is no reason to exempt the Head of State from this prohibition. Consider also a law which says, ‘No one is allowed to act in a way which he or she knows is certain to cause another’s death, unless that other has blonde hair.’ This law is also incompatible with equality under the law: there is no reason why people with blonde hair should be deprived of the benefit of the prohibition against deliberately causing another’s death. Even if the laws in a particular country on their face apply equally to everyone, the second pillar of the rule of law will be undermined if those laws do not in fact apply equally to everyone. Suppose, for example, that the law says, ‘Someone will commit the offence of murder if he or she intentionally kills someone else,’ but in fact it’s the case that if a government official intentionally kills someone else, he or she will never actually be convicted of murder. This is either because those who are in charge of bringing prosecutions will be too scared to prosecute; or because the judges or juries who are given the job of deciding whether a government official has committed murder are always too scared to return a ‘guilty’ verdict. There is no equality under the law in a country such as this. While the law appears to apply to everyone equally, in fact it does not. The law might as well say, ‘Someone will commit the offence of murder if he or she intentionally kills someone else and he or she is not a government official,’ given that the existing prohibition on murder seems to have no practical application to government officials. 39
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Take another example: suppose that the law in a particular country says, ‘Anyone who has been wrongfully deprived of their land is entitled to bring an action to recover the possession of their land.’ But suppose further that anyone wishing to bring such an action has to pay the court hearing the claim £20,000, to cover the court’s expenses in hearing the claim. The effect of this provision is that in fact poor people will not be able to bring an action to recover possession of their land because they won’t normally be able to find the money to cover the cost of hearing their claim. So, in theory, the law here treats everyone equally. But, in fact, poor people are deprived of the benefit of the rule allowing rich and poor alike to sue to recover land of which they have been wrongfully deprived – thereby violating the requirement of equality under the law. In a country where there is no equality under the law, the law will become an instrument of oppression. One class will enjoy special exemptions and benefits under the law that another class will not. These special exemptions and benefits can be used by the privileged class to take advantage of its underprivileged counterpart. Legal protection of life, liberty and possessions The third pillar of the rule of law is legal protection of people’s lives, liberty and possessions. In a country which lives under the rule of law, that country’s legal system will place strict limits on when someone’s life, liberty or possessions may be interfered with; it will require that someone not be deprived of her life, liberty or possessions without ‘due process of law’. In a country where this third pillar of the rule of law is absent, people will be highly vulnerable to being oppressed by those who are more powerful. The law will not provide the weak with adequate protection against the possibility that those who are stronger will beat them up, lock them up or take away their possessions. People will also find it impossible to make plans for the future or get on with their lives because they will live in constant fear that tomorrow they might be beaten up, unjustly thrown in jail or stripped of their possessions.
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The neutrality of law The fourth pillar of the rule of law is the neutrality of law. In a country which lives under the rule of law, people are not directed by the law to pursue particular ends or goals. Instead, the law is concerned to maximise everyone’s freedom to pursue their ends or goals. Of course, there are limits on how much one can maximise people’s freedom to pursue their ends or goals. Someone who wants to live their life as a Nazi or a mass murderer cannot pursue their goals without seriously impinging on everyone else’s freedoms to pursue their goals. So even in a country where the law is neutral, would-be Nazis and mass murderers will not be allowed to pursue their goals. But in a country governed by the rule of law, no one should be prevented from pursuing the ends or goals they want to pursue if their doing so will not prevent other people from pursuing the ends or goals that those other people want to pursue. A country cannot be said to live under the rule of law if it places limits on people’s abilities to do such things as collect stamps, read books, discuss politics or put up Christmas trees. In a country where the fourth pillar of the rule of law is missing, law becomes an instrument of oppression. The law in such a country will not maximise everyone’s freedom to pursue the goals or ends that they want to pursue, but will instead work in ways that frustrate and diminish people’s freedom to pursue those goals or ends. The value of the rule of law I hope that by setting out the four pillars of the rule of law, I’ve convinced you that my description of the rule of law as a roof which protects us from the twin evils of chaos and oppression is an apt one. If it is, then the rule of law is surely a fundamental good – one without which we cannot enjoy any other good, such as health, prosperity or happiness. None of these other goods can be enjoyed except under the shelter provided by the rule of law.
What Good Lawyers Do I said earlier that what marks out a lawyer as a good lawyer is that he helps to sustain the existence of the rule of law in the country in which he lives.
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It follows from this that the work done by good lawyers is immensely worthwhile. Literally, everything else that we count as worth having depends on the work done by good lawyers. In contrast, bad lawyers – given the right incentive – can be encouraged to act in ways that undermine the rule of law in the country in which they live, with hugely damaging consequences for everyone who lives in that country. It follows that being a good lawyer is one of the best things you can be; while being a bad lawyer is one of the worst things you can be. Let’s spell out that last point with some concrete examples: 1 A good lawyer won’t hesitate to defend someone who is being prosecuted for a heinous crime such as sexually abusing children. Not to do so would undermine the second and third pillars of the rule of law. If suspected paedophiles went without adequate legal representation, they would not be treated equally under the law and would be deprived of the protections that the law affords all of us against being locked up by the government.
2 A good lawyer won’t hesitate to represent a company whose employees are being threatened with being killed or injured by animal rights activists and which is seeking to obtain some kind of legal remedy against the activists which will bring their threats to an end – even if doing so will inevitably result in him receiving death threats and the like from animal rights activists. Not to take on the company’s case would undermine the first pillar of the rule of law. The bindingness of the law as it applies to animal rights activists would be weakened if the company were unable to find anyone to take on its case. And not taking on the company’s case would also undermine the second pillar of the rule of law. If the company could not obtain legal representation, it would not be treated equally under the law.
3 If the government has locked up a potential terrorist when it did not in fact have legal authority to do so, a good lawyer won’t hesitate to take on that potential terrorist’s case and seek to have her freed – irrespective of what the consequences might be of having that potential terrorist on the loose. Not to take on her case would undermine the first, second and third pillars of the rule of 42
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law. The bindingness of the law as it applies to the government would be weakened if no one bothered to try to have the potential terrorist freed. The potential terrorist would not be treated equally under the law if no one sought to represent her. And the strict limits that the law places on when the government may interfere with our liberty would be rendered ineffective if the government could lock up the potential terrorist without anyone seeking to help free her.
4 A good lawyer will never ever lie either on behalf of a client or to a client. It is, of course, popularly believed that you have to be a liar to be a lawyer – hence the comedian Peter Cook’s description, ‘This man is a proven lawyer,’ and the Jim Carrey film Liar, Liar (in which a lawyer finds it almost impossible to do his work when he is put under a spell that stops him lying for one day). But good lawyers are not liars. Lying on behalf of a client or to a client about what the law says undermines the first pillar of the rule of law – the bindingness of the law.
5 A good lawyer will of course charge for her services – lawyers have to earn enough to live, after all. However, she will try, if possible, to do a certain amount of pro bono work (in effect, giving people advice and representation without charging them for it). Not to do so would tend to undermine the second pillar of the rule of law – equality under the law. If poor people cannot obtain the protection of the law because of lack of money, then they are not being treated equally under the law.
6 A good lawyer will refuse to have anything to do with the creation of a law that is unclear or difficult to obey. Helping such a law to come into effect will undermine the first pillar of the rule of law. Nor will he have anything to do with any attempt to give the government unlimited licence under the law to lock up whoever it wants. Again, doing so would undermine the third pillar of the rule of law.
In contrast, given the right incentive, a bad lawyer will think nothing of doing the complete opposite of what a good lawyer would do in any given situation. So, for example, given the right incentive, a bad lawyer will happily lie on behalf of a client, thereby helping to undermine the rule of law in the country in which she lives. 43
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So don’t be misled by the lawyer jokes into thinking that almost any career is preferable to one as a lawyer. If you aim to be a good lawyer, then I can promise you that your career will not only be very interesting, but also extremely worthwhile. I’d like to finish by recommending a book to you. I always tell any A-Level students I meet who are thinking about doing law to read Jonathan Harr, A Civil Action (published in 1996). It may well inspire you to become a lawyer. The book was made into a film – but try and read the book, it’s much better than the film. If you want to watch some really great films about the law, get hold of To Kill A Mocking Bird (1962), A Man For All Seasons (1966), The Verdict (1982), True Believer (1989) and Indictment: The McMartin Trial (2003). All of these films are available on DVD and can be ordered through Amazon – though unfortunately Indictment is only available on Region 1 (US). If those films don’t make you want to become a lawyer, then nothing will. Best wishes,
Nick
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LETTER FOUR
Law Degree or CPE? Dear Sam, I’m delighted to hear that you’ve changed your mind and decided not to rule out the idea of becoming a lawyer when you leave university, and as a result you’re thinking again about whether or not to do a law degree.
You ask, ‘Do I have to do a law degree to become a lawyer when I leave university?’ The answer is, ‘No’. You must have a degree to become a lawyer, but you won’t need to have done a law degree. There are basically two ways of becoming a lawyer, which I’ve set out in a table for you on the next page. Andy and Lara both enter university at the same time. Andy does a law degree for three years; Lara does a history degree for the same period. After they leave university, both decide to become lawyers. Andy takes a one-year vocational training course to become a lawyer – the Legal Practice Course (LPC) if he wants to become a solicitor, the Bar Vocational Course (BVC) if he wants to become a barrister. If Andy wants to be a barrister, having completed the BVC, he will go on to work in a set of chambers for a year doing what is called a ‘pupillage’ in the hope that at the end of the year he will be taken on as a permanent ‘tenant’ (member) of the set of chambers. Alternatively, if Andy wants to be a solicitor, once he has finished the LPC he will enter a firm of solicitors as a trainee solicitor and work there for two years on a ‘training contract’ before qualifying as a fully-fledged solicitor.
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2006
ANDY
LARA
Oct
Starts three-year Law degree
Starts three-year History degree
June
Finishes Law degree
Finishes History degree
2007 2008 2009
Sep
2010
June
Starts one-year
Starts one-year
Starts one-year Common
Bar Vocational
Legal Practice
Professional Exam (studying
Course (training
Course (training
‘core’ legal subjects that any
to be a barrister)
to be a solicitor)
lawyer has to know about)
Finishes BVC;
Finishes LPC
Finishes CPE
qualifies for the Bar Sep
Starts one-year
Starts two-year
pupillage at set
training contract
of chambers
with firm of
Starts BVC
Starts LPC
Finishes BVC;
Finishes LPC
solicitors 2011
June
qualifies for the Bar Sep
Accepted for
Starts one-year
Starts two-year
tenancy by
pupillage at set
training contract
chambers
of chambers
with firm of solicitors
2012
Sep
Qualifies as
Accepted for
solicitor; taken
tenancy by
on by firm
chambers
to act as associate 2013
Sep
Qualifies as solicitor; taken on by firm to act as associate
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Lara will take exactly the same route into the profession but because she has not done a law degree, before she can do the LPC or the BVC, she will have to do a one-year crash course in law. This course used to be called the Common Professional Exam (CPE), but has now been renamed the Post-Graduate Diploma in Law. But I’ll still refer to it as the CPE because it’s less of a mouthful. Anyone doing the CPE has to study the seven ‘core’ legal subjects that anyone practising as a lawyer is expected to know about. These subjects are: criminal law, constitutional law, tort law, contract law, land law, equity (or the law of trusts) and European Union law. At the end of this course, Lara will have to take exams in each of these subjects to prove her proficiency. If she passes each of the exams, she can then go on to do the LPC or the BVC. So, as you’ll see from the table, if Andy and Lara both become solicitors (or both become barristers), Lara will always lag one year behind Andy. Now having said all that, I can see that the idea of becoming a lawyer by doing a non-law degree and then the CPE might seem very attractive. This route into the legal profession seems to offer the best of all worlds. You get to have a good time doing a degree at university in something like history or English, thus keeping the option open of pursuing a career in those subjects. But if you decide against that, you can always do the CPE and then qualify to become a solicitor or a barrister. So – you may ask – why should I do a law degree at university when the only advantage of doing a law degree is that it will take me one year less to become a qualified solicitor or barrister than it would if I did a non-law degree? Well, let me begin by scotching a myth that still seems quite prevalent and that you may come across. This is the myth that law firms and sets of barristers’ chambers positively prefer you not to have done a law degree at university. That’s simply not true. The truth is they don’t care whether you’ve done a law degree or a non-law degree at university. On the academic side, what matters to them is: what class of degree you’ve obtained (you’ll need to have obtained a 2.1 or above for most big city law firms and sets of chambers); whether your degree was in an intellectually challenging subject (such as law, history, English, modern languages or a science); and that you went to a good university. Now a lot of academics find it outrageous that law firms and sets of chambers don’t really care 47
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whether you’ve done a law degree or not. But that’s the way it is and I’m not going to pretend to you that it’s not. You’re probably wondering, ‘If the people who give out law jobs don’t really care whether I’ve done a law degree or a non-law degree at university, why on earth should I do a law degree?’ Well, there are still a number of significant advantages to doing a law degree over entering the legal profession via the CPE that you’d be foolish to ignore: 1 If you do a law degree, you will study a far wider range of subjects than you would if you simply did the CPE. So if you do a law degree, you will get more of a chance to find out what sort of areas of law you might like to practise in than you would if you did the CPE. In addition, if law isn’t the right career for you, you’ll find that out very quickly if you do a law degree. In contrast, if you opt to become a lawyer via the CPE, you might only find out that law isn’t actually the right career for you after you’ve entered the profession and by then it might be too late to change your plans.
2 In a recent survey, ‘dedication to a legal career’ was ranked as the third most important quality that solicitors and barristers looked for when recruiting graduates. (The first and second most important qualities were ‘intellectual ability’ and ‘flexibility’; ‘self-confidence’ came fourth.) There will obviously be no question that someone who has done a law degree is dedicated to a legal career. In contrast, there will be a question mark over the dedication of someone who is trying to enter the profession via the CPE. Are they trying to get a job as a solicitor or a barrister because their preferred career didn’t pan out? Is their heart really set on becoming a lawyer or will they flake out the first time the going gets really tough (as it will)? If you choose to enter the profession via the CPE, you will have to do a lot more work convincing recruiters that you are committed to the idea of becoming a lawyer than someone who has done a law degree ever will.
3 There’s no doubt that someone who has done a law degree will find it far easier to perform a number of basic legal tasks – such as researching a particular legal point, reading cases, summarising 48
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the law in a particular area, and making arguments – than someone who has done the CPE. Law firms and sets of chambers tend to discount this because they think that someone who has done the CPE will pick up these skills quickly enough. But you will find your first six months at a law firm or in a set of chambers are a lot easier, and a lot less intimidating, if you have done a law degree than if you have simply done the CPE.
4 Doing a one-year post-graduate degree in law, such as an LLM or the Oxford Bachelor of Civil Law degree, is an important way of impressing sets of chambers that you have the requisite intellectual ability to succeed as a barrister. You cannot do this kind of post-graduate work in law if you have not already done a law degree.
5 One way of getting a job with a law firm or a set of chambers is to work in that firm or set of chambers for one or two weeks in your holidays while at university. (Such a stint is called a ‘vacation placement’ if you’re working in a law firm; a ‘mini-pupillage’ if you’re working in a set of chambers.) People who do law degrees are generally much better placed to get the opportunity to do this kind of work than people who do non-law degrees at university – if only because people who do law degrees are told repeatedly about the importance of working in their holidays at law firms and in sets of chambers, whereas people doing nonlaw degrees are less clued up about these kinds of things.
6 Doing a law degree allows you to make lots of contacts – with fellow students who will become lawyers in the future, with distinguished law academics and with people who have already entered the legal profession – that will serve you well both in getting a job practising law and after you become a lawyer. (For example, it’s not unheard of for former students of mine to get in touch with me for advice on particularly thorny legal questions that they have been asked to research.) Of course, people who enter the profession via the CPE lack this advantage.
7 Finally, the CPE is not a walk in the park by any means. It is a very tough course where you are expected to gain proficiency in seven very difficult subjects in just one year. In contrast, people
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who do a law degree study these subjects over two or three years, making it easier to come to grips with them. The recent survey I mentioned earlier also noted that people who obtain a distinction or merit on the CPE are as likely to receive an offer of legal employment as someone who has obtained a first class degree in law. Quite right too: the CPE is so tough that anyone who passes with distinction or merit should be extremely proud.
So, my advice would be that if you want to pursue a career in law, then do a law degree. Leave the CPE to graduates who’ve had a change of heart about their careers and have decided that they really want to practise law instead of being journalists, doctors or teachers. Best wishes,
Nick
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Preparing to Study Law
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LETTER FIVE
Choosing a University Dear Sam,
Thanks for your letter. Now that you’ve decided to do a law degree, the big question is – what universities are you going to apply to? There are a number of big books available to you to help you make that choice, such as The Guardian University Guide, The Times Good University Guide and The Push Guide to Which University. If you had to buy just one of these big books, I would recommend that you buy the The Virgin Alternative Guide to British Universities. It’s simply the best book of its kind available, packed with useful information about any university that you might be thinking about applying to. A much smaller book that I would also recommend you look at is the Push Guide to Choosing a University. It’s very helpful in setting out what sort of things you should take into account in deciding what university to apply to. The factors that I think you should take into account in making this choice would include the following. Entry requirements. Obviously, if your school is predicting that you will get two Bs and one C at A-Level, then there’s little point in thinking about applying to Oxford or Cambridge – which would normally require a prospective law student to get three As at ALevel. So pitch your choice of university according the results you can expect to get at A-Level. You can find out about the entry requirements you would have to satisfy to study law at a particular university by going to the UCAS website at www.ucas.com and
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then clicking on ‘Course Search’ – you should be able to find your way to the information you want from there. (The UCAS website is also a convenient gateway to websites for all the universities you might be interested in learning a bit more about. Go to www.ucas.com, click on ‘schools and colleges’ on the bar at the top, and then click on ‘institution guide’ on the left-hand side.)
Employability. The fact that you’ve left university with a good law degree is no guarantee that you’ll get a job as a lawyer. For instance, a 2.1 in law from X University may be much more highly rated by prospective employers than a 2.1 in law from Y University – with the result that it is harder for law graduates from Y University to get a job as a lawyer than it is for law graduates from X University. The Guardian University Guide contains a league table of all universities teaching law, and as part of that league table it gives each university a ‘Job prospects score’ out of 10. You should want to end up at a university with as high a ‘Job prospects score’ as possible. (It shouldn’t be too difficult to lay your hands on a copy of the Guardian’s league table for universities teaching law. Your school library or your local public library should have a copy of the latest Guardian University Guide. If they don’t, ask them to purchase one. Or simply go to http://education.guardian.co.uk/, click on ‘University guide’ on the main banner at the top, and then scroll down to ‘Social sciences’ and finally click on ‘Law’.)
Legal skills. Following on from the point that I’ve just made, how much scope does a particular university gives its students to engage in law-related activities that will enhance a law student’s legal skills and his attractiveness to potential employers? For example, are there opportunities for the university’s law students to work in a free legal advice clinic run by the university for the benefit of the general public? Does the university regularly hold mooting competitions, where law students get to act like barristers and argue legal points before a judge (usually an academic)? Is there a university student law review that is run by the university’s law students, and to which the university law students can contribute articles? Is there any scope to work as a (paid or unpaid) research assistant to one
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of the university’s law academics during the holidays? Consult the university’s prospectus to find out answers to these questions – or get some answers by visiting the university on an open day.
Support. How bothered is a particular university about ensuring that you – you personally – do as well as you can in your studies? All universities will say that this is very important to them. But how important is it to them – really? If most law students at X University get 2.2s, are the people who teach law at X University taking steps to improve the results that their students get – or are they content with the current situation? If you were studying at Y University and started to struggle with your studies, how much support and advice would you get from the people who teach law at Y University to help you get through the hard times? If you needed to get a First from Z University in order to get a place at a set of chambers, or a scholarship to assist you in your studies after leaving university, how much specialised coaching would the staff at Z University be willing to give you to help you achieve a first-class standard of performance in your exams? These are important questions to ask – but unfortunately you won’t find the answers in any books or prospectuses. (Though you may find some clues by consulting a university’s alternative prospectus. This will be written by the university’s current or former students. You can find most alternative prospectuses on the Internet – just Google the name of a university you are interested in along with the phrase ‘alternative prospectus’.) If you are interested in applying to X University, visit it and try and get some idea of how much support is available to its law students to help them realise their potential as law students. Better still, if a current or former student from X University comes along to give a talk at your school, try and get her to talk frankly about these issues.
Teaching quality. The government – through something called the Quality Assurance Agency (QAA) – now assesses all governmentfunded universities for the excellence of their teaching. In theory, you should be able to find out what rating each university has been given for its law teaching from the QAA website. Unfortunately, the website’s not very user-friendly. However, the Virgin Alternative Guide to British Universities has managed to dig out the relevant
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information and if you look close to the start of the book, you will find official ratings for the quality of law teaching for many British universities. Preferably, you should want to end up at a university with an ‘Excellent’ or ‘Highly satisfactory’ rating for its law teaching. However, don’t rule out the possibility that a university that merely got a ‘Satisfactory’ rating on its last inspection has since made improvements to its law course or was simply the victim of an injustice and really deserved a higher rating.
Subjects. It may be that you already know what sort of area of law you would like to practise in when you leave university. If you do, take that into account in your choice of university. Try and find out who are the top academics in the area you want to specialise in. (You can easily do this by looking at the bibliographies at the back of some books on that area of law; or by going to www.amazon.co.uk, typing in the name of the area of law you are interested and looking at the names of the authors who have written books on that area of law.) Then find out where they teach. (You can easily do this by Googling the names of the authors together with the name of the area of law they work in.) Don’t let this determine where you end up applying – but it is certainly something you should take into account. Again, if you are interested in specialising in a particular area of law when you leave university, and you are wondering whether or not to apply to Y University, find out if Y University actually lays on courses relating to that area of law as part of its law degree. (You can find this out from Y University’s prospectus – which you will be able to obtain either on-line or by writing to Y University’s admissions office.) For instance, if you are interested in practising in criminal law when you leave university, it would be good if Y University offered courses on criminology and criminal evidence as part of its law degree, in addition to a course on criminal law. If it doesn’t, then you shouldn’t necessarily rule out going to Y University (remember, lots of people practise as criminal lawyers without having done a law degree at all) – but it’s certainly something you should take into account. Finally, the idea of studying certain areas of law – such as legal theory, human rights law or international law – may really excite you.
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If that’s the case, make sure that you apply to a university that offers courses in the subjects that you are really excited by the idea of studying. The more enthused you are by the subjects you are studying in doing a law degree, the better you will do in your law degree.
Small-group teaching. Most universities teach law through a combination of lectures and teaching in small groups. The quality of the small-group teaching is far more important to your development as a lawyer than the quality of the lectures. If you have a bad lecturer on a particular subject, that’s no big deal – you can just read a textbook instead. But if the small-group teaching you receive isn’t very good, then that is a very serious matter. This is because if you are having problems understanding a particular area of law, the only chance you will get to have someone address that problem is in a small-group teaching session. So the quality of the small-group teaching that you receive is vital. Sadly, in an efffort to save money and to give their academic ‘stars’ more time to research and write important books and articles, many universities are cutting back on the quality of the small-group teaching that they offer in law by doing such things as increasing the size of the groups or delegating the job of taking small-group teaching sessions to post-graduate students. Try, if you possibly can, to apply to a university that cares about the quality of its small-group teaching. Unfortunately, no book or guide will tell you which universities offer good, small-group teaching sessions in law and which do not. If you are thinking of applying to a particular university, it would be a good idea to visit it on an open day and to sound out some of the current law students about the quality of the small-group teaching.
Facilities. While you are at it, check out the facilities too. How good is the law library? How long is it open for? If you were working late, how easy/safe would it be for you to get back to your accommodation? What’s the university’s accommodation like? How noisy do the accommodation blocks get? How many rooms provide access to the Internet? Does the university accommodate all its students? How easy is it to stay up in the holidays if you want to do some extra work? What’s the food like? What’s
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the social life like in the university? How many events are organised each term by the students/university? How much does it cost to live in the university? Does the university have a Law Society? How active is it? How many events does the university or its Law Society organise to help ensure its law graduates get jobs when they leave?
Oxford and Cambridge If your school is predicting that you will get three As at A-Level and you achieved a good number of As at GCSE (with some A*s), then you should definitely consider studying Law at either Oxford or Cambridge. Any league table of universities offering law degrees that took into account the factors that I’ve listed above would definitely place Oxford and Cambridge in the first two places, probably as equal first. But don’t take my word for it – both universities and their constituent colleges hold lots of open days that you can attend where you can talk to teachers and students and judge for yourself whether applying to Oxford or Cambridge is the right choice for you. Alternatively, if some former students at your school have gone to Oxford or Cambridge, try and get your school to invite them back to give a talk about the Oxbridge experience. They will be more than happy to come back and will provide you with a lot of invaluable insider information about what life is like at Oxford and Cambridge, and how best to approach things like interviews to get into an Oxford or Cambridge college. Oxford or Cambridge? If you are thinking about applying to Oxford or Cambridge, you’ll have to decide which university you are going to apply to – you can’t apply to both. (Unless you can play the organ, in which case there’s a chance of trying to get into either as an Organ Scholar.) I was a law student at Oxford and I’ve taught law in both universities (for five years in Oxford, nine in Cambridge) so I’m in quite a good position to compare them. The major difference between the Oxford and Cambridge law degrees arises out of their exam system. An Oxford law student does exams in three subjects at the end of his first two terms, and then he will have no 58
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exams at all until the end of his third year, when he sits ‘Finals’ – that is, exams in nine different subjects. A Cambridge law student will sit exams at the end of each of the three years she studies law at Cambridge and she’ll end up taking exams in about 14 different subjects. So studying law at Oxford tends to be a less stressful affair – at least until the time to sit Finals comes around – and affords greater opportunities to think about the law and develop some interesting views about it than is the case with studying law at Cambridge. But, at the same time, a Cambridge law student will study more subjects than an Oxford law student. As a result, a Cambridge law student will have greater scope to choose what subjects she is going to study than her Oxford counterpart. Moreover, she’ll leave university with a wider (though not deeper) knowledge of the law than someone with a law degree from Oxford. As for the other differences, I don’t want to inflict my prejudices on you. (Okay: Cambridge is a much nicer place to live in than Oxford.) If you are interested in applying to Oxford or Cambridge, visit both places, talk to the students and the teachers there and decide for yourself which place feels ‘right’ for you. Choosing a college Having decided on Oxford or Cambridge, you can’t just apply to become a member of ‘Oxford University’ or ‘Cambridge University’, as you can with any other university. You have to be offered a place by a particular college within the university. So how do you choose what college to apply to? (Of course, you can make an ‘open’ application, where a computer will allocate your application to a particular college – but I would strongly advise you not to do that. Not all colleges are the same, and it would be foolish of you to leave college selection up to the luck of the draw.) Before making your choice, you should of course find out a bit more about the various colleges by looking at their websites. (For Oxford colleges, go to www.ox.ac.uk, click on ‘Undergraduate admissions’ on the left and then ‘College information’ on the left. For Cambridge colleges, go to www.cam.ac.uk and then click on ‘The Colleges’.) But also Google the colleges for alternative sources of information about them. Searching for ‘Oxford alternative prospectus’ or ‘Cambridge alternative prospectus’ is 59
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usually quite productive. And try and visit quite a few colleges to get a feel for what the different colleges are like. In making your choice, you should take into account the following five factors, arranged in no particular order of importance.
1 Support and facilities. If you are thinking about applying to a particular college, visit it on an open day and ask yourself the same sort of questions that I set out above in relation to the amount of support a university gives its students and in relation to a university’s facilities.
2 Location. How close is the college to the centre of town? To the university’s law library? To the nearest supermarket?
3 Competitiveness. This is an important factor to take into account in choosing a college. Some colleges are easier to get into than others. For instance, in the 2005 admissions round, one college in Cambridge – call it X College – had 32 applicants to study law and made eight offers. Another Cambridge college – call it Y College – had 54 applicants to study law and made only three offers. Clearly, it was far easier in 2005 to get a place to study law at X College rather than Y College. To calculate how easy or hard it was to get a place to study law at a particular college in a particular year, all you have to do is find out: How many people applied to study law at that college in that year? Call this number a. Then find out: How many of those applicants were actually offered a place to study law at that college? Call this number b. Divide a by b. The resulting number is the college’s competitiveness score for that year. The higher a college’s competitiveness score in a given year, the harder it was to get into that college to study law that year. So in 2005, X College’s competitiveness score for law was 4. In the same year, Y College’s competitiveness score for law was a whopping 18. If you are thinking about applying to a particular college, try and find out its competitiveness scores for the last few years. These are available on the Internet. For information on Oxford colleges, go to: www.admissions.ox.ac.uk/colleges/adstats.pdf This page will give you an average competitiveness score for 60
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each college’s applications in law over the past three years. Just by looking down the page you can see which colleges are easier to get into and which are harder. For information on Cambridge colleges, go to: www.cam.ac.uk/admissions/undergraduate/ statistics/docs/law.doc This won’t give you each college’s competitiveness scores for law over the past few years – but it will give you the information you need to calculate those scores. Click on the name of the college you are interested in. This will take you to a table with a number of columns for each of the last few years’ admissions rounds in law. The crucial numbers in a column for a particular year are the first two numbers. The first number tells you how many people applied that year to study law at the college you are interested in. The second number tells you how many of those applicants were offered a place by that college. Divide the first number by the second number to give you the college’s competitiveness score for law for that year. If a Cambridge college’s competitiveness score for law has been at or above seven for the past few years, then I think it’s fair to say that it’s harder to get into that college to study law than it is to get into other Cambridge colleges and you should take that into account in making your final choice of college. However, this crude number system may disguise several reasons for a high or low score so you shouldn’t allow a college’s competitiveness score to determine whether or not you apply there. Investigate further why it is has such a high or low score, and then decide. For example, a college may have a high competitiveness score because it has outstanding facilities for studying law – in which case, it may well still be worth applying there, despite the competition.
4 Atmosphere. Some colleges are much nicer and friendlier places to live in than others. If you are interested in applying to a particular college, go there on an open day aiming to find out what it’s like to live in that college. Try and find out in particular what the atmosphere is like among the law students. Do they generally get on with each other and help each other out? Is there a law society within the college and how active is it? Are there many social events among the law students? Do the different years mix very much?
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5 Teaching. Most colleges will employ two or three ‘Fellows’ who specialise in the teaching of law. Of course, if you are a student at X College, the law Fellows at X College won’t give you supervisions or tutorials in all of the subjects that you’ll study in your time at X College. There will be some subjects that the law Fellows at X College know nothing about. If you are going to study one of those subjects, the law Fellows at X College will arrange for you to be given tutorials or supervisions in that subject by a Fellow at a different college who specialises in that subject. Now I always think that if you are a law student at Oxford or Cambridge, it’s better to be at a college where you are taught ‘inhouse’ most of the time. In other words, it’s better to be at a college where you will be taught most of the time by the law Fellows who are employed by that college. As a student at their college – whose performance at exam times reflects on them and the college – the Fellows at that college will have a vested interest in giving you a lot more personal time and attention than would a law tutor from another college. So if you are thinking of applying to a particular college to study law, try and find out how much law teaching is done ‘in-house’ by that college. If the answer is ‘A lot’ then that’s a plus point. If the answer is ‘Not much – our Law fellows specialise in International Law and Roman Law, and they don’t really teach anything else’ then that’s a definite negative point.
That’s enough advice from me. Good luck with your applications. Let me know how you get on. Best wishes,
Nick
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LETTER SIX
Tips on Taking the LNAT Dear Sam, It occurred to me after writing my last letter that you could probably do with some advice on taking the LNAT test. After all, a lot of universities – including Oxford, Cambridge, University College London, King’s College London, Bristol, Birmingham, Durham and Nottingham – now require their law applicants to take the test. So if you are going to be applying to one of those universities, it’s important that you be prepared to for it. (LNAT, by the way, stands for ‘National Admissions Test for Law’.) If you’re going to be taking the LNAT, you should definitely have a look at the website www.lnat.ac.uk. It provides a lot of helpful information, as well as a practice paper. The practice paper is especially helpful because students taking the LNAT will do so on computer, at test centres up and down the country. So if you download the practice paper, you can get a bit of experience of exactly what it will be like to take the test.
As you’ll see from the website, the point of the LNAT – and the reason why so many major universities now use it – is to test students’ aptitude to study law. Now this doesn’t mean that if you do badly on the LNAT, no one will accept you for a place to study law. Your performance on the LNAT is only one of the things that admissions tutors will take into account in deciding whether or not to offer you a place. By the same token, if you do really well on the LNAT, that does not necessarily mean
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you are guaranteed a place to study law at whatever universities you are applying to. Having said that, a poor performance on the LNAT won’t help your case for admission to a place at university to study law; and a good performance could catch the selectors’ eye and win you a place that you might not have obtained otherwise. So it’s important that you do as well as you can on the LNAT – and to do well, you have to prepare for it. The LNAT is made up of two parts. There is a multiple choice section where you are given a passage to read and asked two or three multiple choice questions about that passage. For example:
What point has not been made so far in Nick’s letter to Sam about the LNAT?
A The LNAT test is very difficult. B Many universities require law applicants to take the LNAT. C Admissions tutors take the LNAT results into acccount in making admissions decisions.
D The official website about the LNAT is very helpful. E It is important to prepare for the LNAT if you are applying to do law at one of the universities that require its applicants to have done the LNAT.
The answer is, of course, A – I haven’t said anything so far about how difficult the LNAT is. You will be asked questions on about ten different passages. The total number of multiple choice questions you will be asked to answer is 30 and you will have 80 minutes in which to answer them. This doesn’t sound like very much time but it should in fact be ample. I completed the multiple choice section of the LNAT practice paper on the website in only 15 minutes and still obtained a very respectable mark of 25/30. (And I will contend to my dying day that at least three of my ‘wrong’ answers were in fact correct – or at least just as correct as the ‘correct’ answers – and that I should have got at least 28/30.) 64
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The second part of the LNAT is an essay section. You will be required to write one essay in 40 minutes, given the choice of five different topics or quotes to write about. For example: 1 Many people argue that admissions tests to gain places at university discriminate against students who are educationally disadvantaged. Others argue that such tests help such students by detecting in them abilities that would otherwise go unnoticed. Which side do you agree with?
2 ‘Efforts to protect the environment are misplaced. Why should we care about preserving the world for generations that are as yet unborn?’ Discuss.
3 ‘Driving different countries into a political union is simply a recipe for trouble.’ Do you agree?
4 ‘Giving aid to developing countries is still the best way of helping the poor of those countries.’ Discuss.
5 ‘It would have been better had the Internet never been invented.’ What do you think?
The LNAT website says that your essay should be about 500–600 words and not more than 750 words. Unlike the multiple choice section of the LNAT, your essay will not be marked centrally by the people who run the LNAT. Instead, it will be forwarded to the admissions tutors at any universities to which you are applying that require their applicants to do the LNAT. It will then be up to those admissions tutors to assess the quality of your essay. At the time I’m writing this letter, two books have been published to help students prepare for the LNAT. They are: Mastering the National Admissions Test for Law by Mark Shepherd (Cavendish Publishing) and Passing the National Admissions Test for Law by Rosalie Hutton, Glenn Hutton and Fraser Sampson (Law Matters Publishing). They go into far more detail about how best to approach the LNAT test than I can here and I would recommend that you buy at least one of these books, read it and try the practice tests at the back of the book. Which one would I recommend? Annoyingly, the Shepherd book is stronger than the Hutton/Sampson book 65
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on giving advice on doing the essay section of the LNAT; while the Hutton/Sampson book is stronger than the Shepherd book on giving advice on doing the multiple choice section. If I had to choose, I would go for the Shepherd book, even though it’s almost twice as expensive as the Hutton/Sampson book. The Shepherd book is much more readable and better presented than the Hutton/Sampson book, and contains five practice tests compared with only one in the Hutton/Sampson book. If you can afford both, then buy both – but if you have to go for one, then the Shepherd book is my first choice. That’s enough plugging other people’s books. Let’s get on with giving you some advice on doing the LNAT.
The Multiple Choice Section Be careful That’s my main piece of advice to you – be careful in reading and answering the questions. For example, suppose you are asked, ‘Which of the following is an unstated assumption that the writer makes in the passage?’ When you are going through the possible answers supplied, remember that you are not just looking for an answer that identifies an assumption that the writer has made in making out his argument in the passage supplied. You are looking for an answer that identifies an assumption that the writer has made in making out his argument in the passage supplied that is also not stated in the passage supplied. So don’t mark as correct an answer that identifies an assumption that the writer has expressly said that he is making in the passage supplied. That statement may represent an assumption that the writer made in making out his argument – but it’s hardly unstated, is it? If you don’t know the answer, you might as well guess In its present form, wrong answers in the multiple choice section of the LNAT are not given a negative mark. So if you do not know the answer to a given question, you might as well guess the answer. You won’t be punished if your answer is wrong, and you might well be lucky and guess the right answer. The admissions tutors at the universities you are applying to 66
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will not see your answers to the multiple choice questions – all they will see is your total mark. So if your guess is wildly wrong, then again you won’t be punished for that. No one will see your answers and think, ‘Well – this candidate can’t be very good if he or she thought that that was the right answer.’ If you have come across a question in the LNAT that has completely stumped you, don’t spend too long agonising over it. You can always go back to it if you finish the rest of the multiple choice section before the allotted 80 minutes is up. It’s more important you move on to the other questions which you will probably have a better chance of knowing the answer to. So make your best guess as to what the answer is and then swiftly move on. Once you have finished going through the whole multiple choice section then you can go back to the questions that you had real problems with and agonise over what the answers to those questions are. Getting through the test in time You will have to decide for yourself – by doing practice tests such as the ones in the Shepherd book – what sort of approach to the multiple choice questions will best allow you to get through the multiple choice section of the LNAT in the time allowed. Most people seem to adopt the following approach to answering multiple choice questions on a given passage in the LNAT. They first of all read the passage carefully; they then look at the questions; and they then refer back to the passage to help them select the correct answers to those questions. In doing the practice test on the LNAT website, I adopted a different approach. This was to look at the questions first and then search the passage for the answers. This seems to me a great timesaver if you get a question like: ‘What is the main point that the writer is making in the last paragraph?’ To answer that question, you don’t have to have read the whole of the passage supplied. You simply have to look at the last paragraph of the passage. Similarly, if you get a question like: ‘Which of the following is not a reason why the writer refers to the 1990s as the “golden age of television”?’ Again, you don’t have to have read the whole of the passage to answer that question – just look in the passage for the phrase ‘the golden age of television’ and then look around that phrase for the reasons why the writer thinks 67
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that the 1990s were the ‘golden age of television’. And if you get a question (as you do a couple of times on the practice test on the LNAT website) asking: ‘Which of the following is not a statement of opinion?’ or ‘Which of the following is a statement of opinion?’ – well, you don’t need to have read the passage at all to answer that one. I think my approach to doing the multiple choice section of the LNAT is a lot faster and allows you to spend more time on the really tricky questions. But you will have to find out for yourself whether my approach works for you – or whether you are more comfortable adopting the more conventional approach to going through the multiple choice section. The importance of practice It is important – to give yourself the best possible chance of doing well in the multiple choice section of the LNAT – to do some practice questions. This will get you used to the sort of questions that you might be asked in this section of the LNAT and also the kind of tricks the question-setters get up to in an attempt to find out how good your legal abilities really are. The LNAT website seems to suggest that one way of preparing for the LNAT is to look at LSAT papers. (The LSAT is the legal aptitude test set by American universities.) But I wouldn’t advise this: the LSAT is far harder than the LNAT and employs a far greater range of different kinds of questions. Just stick to the practice papers you will find in the Shepherd book and you will be fine.
The Essay Section Selecting your essay title Be careful in choosing what essay to do in the essay section of the LNAT. Make sure that the essay title you pick allows you to write an interesting and effective essay that will impress an admissions tutor reading it. So pick an essay title that allows you to make some strong arguments – or, even better, an essay title that allows you to make an unexpected or surprising point. 68
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For example, in the first year the LNAT was introduced, students were required to write an essay on one of the following five topics: 1 ‘Sporting achievement should not be limited by the prohibition on the use of certain performance-enhancing drugs.’ Do you agree?
2 What is your response to the view that the purpose of education is to prepare young people for the world of work?
3 ‘Women now have the chance to achieve anything they want.’ How do you respond to this statement?
4 ‘Modern society is too dependent on debt: we should all pay our way.’ Do you agree?
5 Would you agree that travel and tourism exploit poorer nations and benefit only the richer ones?
Now which of these essays would a good student do? Well, a good student would rule out doing 4 straightaway. Why? Well, the statement is so silly that there’s no possibility of agreeing with it. And any arguments that one might make against the statement are just so obvious (without incurring debts, people couldn’t afford to buy homes and cars; companies could not survive through lean times; the government would collapse) that an essay arguing that the statement is wrong wouldn’t make for particularly interesting reading. A good student would also rule out doing 5. This is partly because, again, the basis of the essay question is a statement (‘travel and tourism exploit poorer nations and benefit only the richer ones’) that is so silly that one cannot do anything but disagree with it. So the scope for saying anything interesting in response to the essay title is virtually nil. In addition, to write an effective essay on this title would seem to require a good grasp of the economic data on tourism and not many students will have that sort of information to hand. For similar reasons, a good student would also rule out doing essay 3. The statement seems obviously wrong. A woman with a baby might want to be paid £50,000 a year for working one day a week in a law firm, thus allowing her to spend most of her time raising her baby. But it can hardly be supposed that any woman (or man) would be allowed to do that. However, an essay 69
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that made that point would not be particularly interesting. It might be possible to narrow the statement in some way so as to make it more plausible – one could interpret it as saying that ‘Women now have the chance to do any kind of work they want.’ But, again, it’s hard to see how one could write an interesting essay on that topic. Either the available information indicates that women have that chance or it indicates that they do not – there does not seem to be much room for interesting debate or discussion, either way. Our good student is running out of options! What about 2?* Well, there is no way any student applying to study at a university will want to be caught agreeing with the idea that education is simply about preparing young people to do a job. So a student who did essay 2 would have to argue that the purpose of education is more wide-ranging. Could a student write an interesting essay that took that kind of line? It depends on whether she could come up with an interesting and convincing line as to what the ‘purpose’ of education is if it’s not to prepare young people for work. Merely saying that the purpose of education is to ‘cultivate one’s mind’ or to ‘expand one’s horizons’ or make one ‘question everything’ wouldn’t be enough – saying that is just not very interesting. One interesting line which would link in quite well with the statement in the essay title would be to argue that the purpose of education is not to prepare young people for work but to prepare them for leisure. You could argue that the purpose of education is to prepare young people for what they should be doing in their leisure time. And one could move from there to say that it’s noticeable that as education has become more workoriented (with Young Enterprise Schemes, work placements and so on), the way young people spend their leisure time has increasingly become a social problem (for example, binge drinking, bored youths hanging around estates, joyriding). You could then say that this makes it all the more necessary that we move back towards a notion of education as preparing young people for how they spend their leisure. That would make for quite an interesting essay on 2 which would impress any admissions tutor who read it. And note that while an essay which took this kind of line might refer to some features of contemporary life to make its points, doing this essay would not require the sort of in-depth knowledge of the real world that you would have to have if you attempted essays 3 or 5. 70
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Finally, what about 1?* Again, there seems to be some scope for writing an interesting and effective essay on this topic. It’s not so obvious that using performance-enhancing drugs in sport should be banned that it’s impossible to think of interesting arguments on either side of the issue. For example, you could observe – if you wanted to argue in favour of allowing the use of performance-enhancing drugs – that athletes already use dietary supplements to help them train. So why not allow them to use steroids to build up their stamina and help them train longer? Against this, you could argue that steroids are bad for you and atheletes who do not want to endanger their health by using steroids should not be disadvantaged when competing against other athletes. There is scope here for getting an interesting debate going – which is simply not possible with essay 4. And there is no need to have access to very specialised knowledge to engage in that debate – something which, as we’ve seen, is not possible with essays 3 or 5. The debate is at the level of general principle, rather than hard fact. So, of these five essays, a good student would do essays 1 or 2. He would definitely not do essays 3, 4 or 5. So if you do the LNAT, be careful about your choice of essay – make sure you go through the same kind of process that I’ve gone through above. Discard the essay titles which – however doable they might seem – offer little prospect of allowing you to write an interesting and effective essay. (*Edexcel Ltd accepts no responsibility whatsoever for the accuracy or method of working in the answers given.)
Essay structure Suppose you have been told to write an essay on ‘Is X true?’ You have probably been taught to write an essay on this topic using the following structure: 1 Introduction 2 Arguments for thinking that X is true 3 Arguments for thinking that X is not true 4 Your opinion on whether X is true, given the balance of the arguments
5 Conclusion
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Please don’t adopt this kind of structure in writing your LNAT essay. Nothing is more guaranteed to send an admissions tutor to sleep than an essay that goes, ‘On the one hand, it could be argued that. . . On the other hand, it could be argued that. . . On balance, I think that. . . So we can conclude that. . .’ If you want to impress an admissions tutor who is reading your essay – and remember she will probably have a large pile of these essays to wade through so you will want to do something to catch her eye – you will have to adopt a quite different approach. I’d like to encourage you to adopt this structure in writing your LNAT essay: 1 Conclusion 2 Arguments in favour of your conclusion 3 Arguments against your conclusion and an explanation as to why they do not work
4 Restatement of your conclusion
This is a much more direct way of writing your essay and there are three big advantages to this method. First, your essay will be very easy to follow and understand – by stating at the start where you stand, you make it obvious where you are ‘coming from’. Secondly, your essay will be much more interesting than an essay written in the more careful, plodding style you have probably been educated to use. Thirdly, your essay will be a lot less wordy – a big advantage when you only have 500–600 words to play with. Of course, you can only employ this kind of essay structure if you know before you begin what your conclusion is going to be. So take some time before you start writing the essay to think it out and think about what sort of line you are going to take in the essay. Preparation It might be an idea to try a few practice essay questions to get used to this different style of writing essays that I’m encouraging you to adopt. But the other thing you must do by way of preparation for the essay section of the LNAT is to start reading – in full – a serious daily newspaper such as The Times, The Daily Telegraph, the Independent or the Guardian. Pay 72
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particular attention to the opinion/comment sections of these newspapers. It might be an idea to try and read the opinion/comment sections of both The Daily Telegraph and the Guardian each day, so that you are exposed to a spectrum of viewpoints. Also try, if you can, to read The Spectator or the New Statesman every week. Doing this will be of huge benefit to you in doing the essay section of the LNAT. First, reading serious newspapers and magazines will boost your knowledge of current affairs and therefore your ability to handle an essay question on current affairs. Secondly, such reading will expose you to political ideas and discussions that you can then draw on in writing your essay. Thirdly, reading some serious, good debates on difficult issues will help you see the sort of thing that you’ll be expected to do in your essay. So that’s all the advice I have to offer you on doing the LNAT. There is still a lot more to be said but you’ll find everything else you need to know about doing the LNAT in the Shepherd and Hutton/Sampson books. Good luck with them, and good luck with the test, if you sit it. Best wishes,
Nick
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LETTER SEVEN
Advance Reading Dear Sam, That’s excellent news about your offer – I’m sure you’ll have no trouble getting the A-Level grades you need to meet it. Do I have any advice as to some books it might be useful for you to read between now and October when (all being well) you’ll start studying law? Of course I do!
Whoever’s going to be teaching you in October will probably send you a list of books to read before you go to university. My advice on that would be to have a look at the books, but don’t carry on reading them if they’re boring you. If you’re reading a book (any book) and you’re bored by it, then there’s absolutely no point in carrying on with it. The information in the book will simply not go into your brain. And if you are set a book on a particular subject that you’ll be studying next year, like tort law or criminal law, my advice would be – don’t try to read the whole book. Again, it’s just too much information for you to absorb. Read two or three of the opening chapters, and try and get to know them really well so that you’ve completely absorbed the information in those opening chapters by the time you get to university. Then you’ll be in a good position to make a great start to your studies on arrival. As to what other books you should read, my advice would be threefold. First, read a lot of books before you go to university. You’ll be reading a lot of material when you get to university, so if you start reading a lot now, studying at university won’t come as such a culture shock.
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Secondly, try and read books that you won’t have much time to read when you’re at university. So try not to spend too much time reading books that are on subjects that you’ll be studying at university. You’ll be able to read those books when you get there. Instead, you should try and read some good books that will give you tips on how you should approach your studies when you get to university and absorb the lessons that they have to teach you so that you’ll be ready to apply them from day one of your studies. Remember that you’ll have so much to read once you get to university, you won’t necessarily have time to read any books that give you tips on how you should approach your studies. So it’s important to take advantage of the free time you have now to read such books. Thirdly, do you remember what I said in my second letter to you about how important it is that you cultivate an interest in political and economic ideas if you are going to do well as a law student? I meet and teach so many students who are utterly bland and colourless in their views – and they are always rewarded with bland and colourless marks in their end-of-year exams. So take the opportunity between now and October to expand your mind a bit and spice up your views by reading interesting and challenging books of ideas, particularly on political and economic issues. In light of all that, here are some recommendations as to what you might read between now and October that almost certainly won’t make any official ‘summer reading list’ that your future tutors will send you. Study Skills Mark Black, The Insider’s Guide to Getting a First (White Ladder Press, 2005)
Thomas Dixon, How to Get a First (Routledge, 2005) Adam Robinson, What Smart Students Know (Three Rivers Press, 1993)
Interesting Books Henry Hazlitt, Economics in One Lesson (Crown, 1988) Andrew Heywood, Political Ideologies: An Introduction (Palgrave, 2003) 76
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Philip K. Howard, The Death of Common Sense (Warner Books, 1994)
Philip K. Howard, The Lost Art of Drawing the Line (Random House, 2001)
Peter Kreeft, Making Choices: Practical Wisdom for Everyday Moral Decisions (Servant Publications, 1990)
Peter Kreeft, Philosophy 101 by Socrates: An Introduction to Philosophy (Ignatius Press, 2002)
C. S. Lewis, The Abolition of Man (first published, 1943) Roger Scruton, An Intelligent Person’s Guide to Modern Culture (St Augustine’s Press, 2000)
Thomas Sowell, Applied Economics (Basic Books, 2003)
The study skills books apart, all of these books constitute ‘brain food’: consuming them will make you think more, and more creatively than you do at present. All of these books are available on Amazon and most of them are also available on the second-hand book website www.abebooks.com. Best wishes,
Nick
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LETTER EIGHT
Four Traps to Avoid Dear Sam, Many congratulations on your A-Level results. Now that you’re all set up to start studying law in October, I thought it might be a good idea to warn you of four intellectual traps that you’ve got to avoid falling into if you’re going to make a success of your studies.
Relativism Right at the start of his classic book The Closing of the American Mind, Allan Bloom – a very great American academic – observed, ‘There is one thing a professor can be absolutely certain of: almost every student entering the university believes, or says he believes, that truth is relative.’ It’s understandable why students should take this position. Students, as a whole, want to be nice, open-minded and tolerant people; and this is, of course, greatly to their credit. Now suppose that I tell you that the world is flat. There are only two ways you can react. You can tell me that I’m wrong, implying thereby that I’m stupid and badly educated – which isn’t very nice. Or you can say, ‘Well, all truth is relative, so I’m not in a position to tell you that you’re wrong. For you the world is flat; for me, it’s roughly spherical – but there’s nothing for us to disagree about. We’re both right, from within our different perspectives.’ This seems a much nicer, open-minded and tolerant response, and is thus much more attractive to students.
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However, thinking this way is both extremely silly and very damaging to your ability to be a successful law student. First of all, why is it silly to think that ‘all truth is relative’? Well, we know that the statement ‘all truth is relative’ cannot be absolutely true, because if this statement were absolutely true then not all truth would be relative. So only two possibilities remain. Either the statement ‘all truth is relative’ is absolutely false – in which case we shouldn’t accept it. Or the statement ‘all truth is relative’ is only true for some people and is false for other people – in which case, why should we accept that it’s true? Either way, it’s senseless to think that ‘all truth is relative’. As the philosopher Roger Scruton observes, ‘A writer who says that there are no truths, or that all truth is “merely relative” is asking you not to believe him. So don’t.’ Secondly, why is it damaging for a law student to believe that ‘all truth is relative’? Well, one of the most important things you will have to learn to do as a law student is to write essays. And people who think that ‘all truth is relative’ tend to write terrible essays. A good essay presents reasons for thinking that a particular proposition is true. A good essay takes a stand. It says, ‘X is true – and these are the reasons why everyone should think that X is true.’ So suppose you are asked to write an essay on ‘Is the law on murder in need of reform?’ and suppose you want to say that it is. A good essay which took this line would say, ‘The law on murder is in need of reform,’ and go on to set out the reasons why everyone should think that the law on murder is in need of reform. Now if you’ve got into the habit of thinking that ‘all truth is relative’ you won’t be able to do this. The idea that you can take a stand, the idea that you can say that certain things are true, the idea that you can present reasons for thinking that X is true, the idea that it might be irrational for someone to deny that X is true – all this will be utterly alien to you. As a result, your essay on ‘Is the law on murder in need of reform?’ will simply boil down to, ‘Well, I think it is, other people may disagree, and they’re entitled to their opinion but equally I’m entitled to my opinion, and my opinion is that the law of murder is in need of reform.’ An essay along these lines will be rewarded with a dreadful mark. In fact it won’t be an essay at all, but a report – a report of what you think. 80
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So if you’ve got into the habit of thinking that ‘all truth is relative’, please get out of it as quickly as possible. You simply cannot do well as a law student thinking like that.
Moral Relativism ‘Well,’ you may say, ‘It may make no sense to think that “all truth is relative” when we are talking about questions of fact. But surely when we are talking about values or morality, everyone has different opinions, and it’s simply not possible to say that one person’s opinions are correct and another person’s opinions are wrong. So in the area of values or morality, it is true to say that “all truth is relative”’. If you think like this, you’ve already fallen into the second trap that I want to urge you to avoid: the trap of moral relativism. Let’s try and get you out of the trap by considering a concrete example. In his great novel The Brothers Karamazov, Fyodor Dostoevsky set out a number of documented instances of cruelty to children that occurred a couple of centuries ago in Russia. This is the last one: There was a general at the beginning of the century, a general with high connections and a very wealthy landowner . . . He had hundreds of dogs in his kennels and nearly a hundred handlers . . . [O]ne day a house-serf, a little boy, only eight years old, threw a stone while he was playing and hurt the paw of the general’s favourite hound. ‘Why is my favourite dog limping?’ It was reported to him that this boy had . . . hurt her paw. ‘So it was you,’ the general looked the boy up and down. ‘Take him!’ They took him, took him from his mother, and locked him up for the night. In the morning at dawn, the general rode out in full dress for the hunt . . . surrounded by . . . dogs, handlers, huntsmen, all on horseback. The house-serfs are gathered for their edification, the guilty boy’s mother in front of them all. The boy is led out of the lockup . . . The general orders them to undress the boy; the child is stripped naked, he shivers, he’s crazy with fear, he doesn’t dare make a peep . . . ‘Drive him!’ the
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general commands. The huntsmen shout, ‘Run, run!’ The boy runs . . . ‘[Get] him!’ screams the general and looses the whole pack of wolfhounds on him. He hunted him down before his mother’s eyes, and the dogs tore the child to pieces . . .
A true story. So what do you think? Was it morally wrong for the general to do what he did? I hope you will say, ‘Yes it was – and anyone who thinks otherwise is wrong.’ If you do, then you have to concede that moral relativism is incorrect: it is possible to say that someone’s values or opinions on matters of morality are wrong. Now if you’re anything like the students I see when I interview them for places at my college, you’ll probably say, ‘Well, it’s my personal opinion that it was wrong for the general to do what he did and if I could have stopped him I would have. At the same time, I recognise that other people might think it was okay for the general to do what he did – and if they do, I can’t say they’re incorrect. They’re entitled to their opinion.’ But if you say this, then you are contradicting yourself. If you genuinely think, ‘It was wrong for the general to do what he did,’ then you must also think that the statement, ‘It was okay for the general to do what he did,’ is incorrect. But if you do think that statement is incorrect, then you must think that you, me or anyone else would be making a mistake if we said that, ‘It was okay for the general to do what he did.’ The truth is that moral relativism cannot be seriously defended. It’s an affectation, adopted out of a laudable desire not to be offensive or cruel by telling other people that what they are doing is bad or morally wrong. Indeed, it’s a self-refuting affectation because the people who adopt it would be the first to insist that it is morally wrong to be offensive or cruel to other people – and that anyone who thinks differently is simply wrong. If you’ve adopted this affectation, I want you to get rid of it straightaway. Instead of saying: ‘Well, it’s my personal opinion that it’s wrong to do x, but others could well take a different view,’ start saying: ‘It is wrong to do x – and these are the reasons why it’s wrong to do x.’ Instead of saying: ‘Well, it’s my personal opinion that it’s better to do x than y, but if someone else took a different view I couldn’t say they were wrong,’ start saying: 82
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‘It’s better to do x than y – and here are the reasons why it would be wrong to think that it’s better to do y than x.’ Instead of saying, ‘It’s very difficult to say whether it would be a bad thing if x happened – on balance I think it would be, but other people could take a different view,’ start saying: ‘It would be a bad thing if x happened – and here’s why the arguments for thinking that it would be a bad thing if x happened outweigh the arguments for thinking that it would be a good thing if x happened.’ The reason why I am urging you to do this is that you’ll often be asked as a law student to evaluate a particular area of the law – to say whether you think it is in need of reform. Now, you’ll find it very hard to say whether you think a particular area of the law is in need of reform if you are unwilling to make value judgements. For example, you could argue that a particular area of the law is in need of reform because that area of the law treats people who do x in exactly the same way as it does people who do y, but it shouldn’t do this because it is worse for someone to do x than it is for someone to do y. But arguing like this involves making a value judgement – that it’s worse to do x than y. A moral relativist won’t be willing to make a value judgement like this and so a moral relativist won’t be able to criticise the law for treating people who do x and people who do y in exactly the same way. The best a moral relativist will be able to say is that, ‘In my personal opinion, it’s worse for someone to do x than it is for someone to do y. So in my view, the law is in need of reform because it treats people who do x in the same way as it treats people who do y. But it’s possible for other people to take a different view, and if their view prevails then obviously the law should stay the way it is now.’ This is a really terrible argument – in fact it’s not an argument at all – and will be rewarded with a really bad mark. So if you’ve got into the habit of thinking like a moral relativist, get out of it as soon as possible.
The Quest for Certainty The next trap you’ve got to avoid falling into is the belief that the law on every issue is always certain. This is simply not true: it’s often very difficult to say what the law says on a particular issue. The sources of uncertainty in the law are threefold. 83
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First, the law is full of gaps – there are lots of areas and issues where we don’t know what the law says, because Parliament hasn’t legislated to cover that area or issue and the courts haven’t yet been asked to decide what the law says on that area or issue. For example, suppose that I write a play that receives a great deal of acclaim. I subsequently allow the play to be performed at a theatre for six months, on the basis that I’m to receive 10% of the box office. Suppose the play closes after two nights because the acting and the production received universally bad reviews. Could I sue the actors and the producer of the play for the money I would have earned had their acting and staging of the play been halfway competent? Nobody really knows: there’s no statute governing the issue and the issue has never come up to be decided by the courts. The law on this issue is therefore uncertain. Secondly, legal rules are often vague, making it very hard to know how they apply in concrete situations. So, for example, the Unfair Terms in Consumer Contracts Regulations 1999 provide that a term in a contract between a consumer and a business will be invalid if ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’. This is so incredibly vague it will often be very hard to tell whether a given term in a contract between a business and a consumer will be valid or invalid. For example, suppose that I hire a car from you and the car hire contract provides that if the car suffers any damage for any reason while it is in my possession, then I am obliged to compensate the car hire company for the damage done. It’s uncertain whether this term is valid or not under the 1999 Regulations. Thirdly, on occasion the law is contradictory. One legal rule will point in one direction while another legal rule will point in another, and it’s hard to know which legal rule one should follow. For example, let’s suppose there are two children called Adrian and Brooke, and let’s suppose that Adrian is under 18 and Brooke is under 13. Now sections 9 and 13(1) of the Sexual Offences Act 2003 combined provide that Adrian will commit the offence of ‘sexual activity with a child’ if he intentionally touches Brooke and his touching is ‘sexual’. Because Adrian is under 18, section 13(2) of the Act
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provides that in this situation the maximum punishment Adrian can receive is imprisonment for five years. However, section 7 of the Act provides that if Adrian intentionally touches Brooke and his touching is ‘sexual’ then he will also commit the offence of ‘sexual assault of a child under 13’ – and the maximum punishment for committing that offence is imprisonment for 14 years. But this seems to contradict the effect of section 13(2). What is the point of Parliament having provided in section 13(2) that if Adrian intentionally touches Brooke in a ‘sexual’ way, the maximum punishment he can receive is five years’ imprisonment if prosecutors can evade the effect of this provision by charging Adrian with an offence under section 7? This contradiction – or tension – within the Sexual Offences Act 2003 makes it very uncertain what the legal position will be if Adrian intentionally touches Brooke in a sexual way.
Now if you go around assuming that the law is certain on every issue, two things will happen, both of them damaging. First of all, you will start getting the law wrong, stating it in an overly simplistic way that overlooks all the uncertainties that afflict it. As a result, you won’t enjoy much success in answering questions on what the law says. Secondly, you will start getting frustrated with your teachers when they are unable to tell you what the law says on certain issues. This frustration will cause you to start to think, wrongly, that you have bad teachers and as a result you will stop paying attention to what they have to tell you – which is always a bad move. So try and embrace the idea that the law is uncertain on various issues and questions. Indeed, it would be a very good idea to carry around an ‘uncertainty book’ in which you can write down any issues or questions on which the law is uncertain and suggestions as to how that uncertainty might be resolved. This will prove invaluable for your exams, as examiners often set questions around areas of the law where the law is uncertain in order: to test your ability to recognise that the law in those areas is uncertain
and to see whether you can intelligently discuss how the courts might resolve
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Seeing Uncertainty Everywhere Now you should embrace the idea that the law isn’t always certain but you should reject the idea that the law is always uncertain. This idea – which is most closely associated with an American school of thought called the Critical Legal Studies Movement – is demonstrably untrue. If I, being of sound mind, take a rifle, climb to the top of a tower in the middle of a square and shoot dead someone walking around in the square below, I will have committed murder. If I contract to paint your house on Sunday and I spend that Sunday watching football instead, you will be entitled to sue me for damages. If I am an examiner and I charge a student £1,000 to get an advance look at the paper that I have set, the exam board for which I’m working will be entitled to sue me for that £1,000 and anything that I’ve acquired with it. If a local authority has been allocated money by Parliament to improve transport facilities in its area but instead it decides to use that money to buy cars for members of the party that controls the local authority, disaffected council taxpayers will be entitled to bring an action for judicial review and have the local authority’s decision set aside. There is as little doubt that these things will happen as there is doubt that apples falling off trees will always fall towards the ground. The idea that the law is always uncertain is, admittedly, very liberating for lawyers – it gives them a lot more freedom to fool around with legal rules and doctrines to achieve whatever results they desire. But that feeling of liberation doesn’t make the idea any more true. If I think I can fly, I may feel more liberated – but I still won’t be able to fly. The truth is that if the law were always uncertain, then there’d be no point in our having a legal system at all. After all, what is the point of our having laws if they don’t provide us with any effective guidance as to what we can and cannot do; if they don’t provide us with any reliable information as to what actions we can bring against other people and in what circumstances; if they don’t place any real limits on what the State may do to us? What are our laws for if not that? Fortunately, the law for the most part is certain and you should resist the temptation to think that the law is always uncertain, however dizzyingly exciting such a thought may seem.
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So those are four traps that you’ve got to avoid falling into in your legal studies. I hope you’re having a good summer and enjoying reading some of the books I recommended. Best wishes,
Nick
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LETTER NINE
Thirteen Tips Before You Start Dear Sam, Thanks for your letter asking me if I have any last minute tips before you go to university. I have thirteen of them!
1 Listen This is the most important tip I can give you – not least because if you don’t take this piece of advice on board, everything else I have to say to you will be a waste of time. Listen to any advice that you are given. You are starting an entirely new subject and you will need a lot of guidance to make a success of your studies. Now I’m not saying that all the guidance you will get will be helpful, but almost all of it will be – so keep your ears open and pay attention to everything your teachers have to tell you. In order to do this, you will need to do a couple of other things. First of all, be humble. Try and realise that you have a lot to learn and act accordingly. If your teacher tells you something about the law or gives you a bit of advice about your work, try and stop yourself thinking straightaway, ‘That’s ridiculous!’ or ‘That can’t be true!’ or ‘She’s talking rubbish!’ or ‘Well, I disagree’ or ‘Nobody’s ever told me that before – he can’t know what he’s talking about.’ These instant reactions are the brain’s way of shutting up shop – of refusing to listen to what it is being told. Instead, try and 89
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keep an open mind. Try and recognise that you don’t know everything and that what your teacher has told you probably has a lot of merit. Secondly, make it easy for yourself to listen to what you are being told. If you are being taught in a small group, you won’t be able to pay attention to anything your teacher is saying if you haven’t done any of the work that you’ve been told to do for that session, with the result that you are sitting there worrying about whether the teacher is going to call on you to say something and show you up in front of everyone else. Instead of being focused on what your teacher has to say, your mind will be on the clock – you’ll be thinking, ‘Only 20 more minutes to go until I’m off the hook,’ or, ‘We’ve still got 45 minutes to go??? – It feels like I’ve been here an hour already!’ So make sure that when you have a small-group teaching session you are extremely well prepared for it, so that you can walk into the session with confidence, eager to listen to whatever your teacher has to tell you. If you are in a lecture, you won’t be able to hear anything the lecturer is saying if you are thinking about what you are going to be doing tonight, or about what you did last night, or worrying about a small-group session you’ve got this afternoon that you haven’t done any work for, or checking out which students in the lecture hall are particularly good looking, or reading notes passed to you by other students. Try and avoid doing all of these things in lectures. Keep your mind (and your eyes) focused on the lecturer.
2 Be Self-critical Do you remember what I said in my second letter to you about studying law being very much like taking a ride in a helicopter and looking down at the ground below? If you ‘fly high’ the ground looks smooth and uniform; it’s only when you ‘fly low’ that you get to see its detailed features, where it’s broken up and where it changes colour. This feature of studying law means that law is a great subject for giving students a false sense of security. They can be lulled into thinking that the law’s no problem, that they understand it and that they’re going to be fine in the exams – when none of those things is true. What they’ve been doing is ‘flying high’ all the time in their studies – only learning the law in a very 90
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superficial way, and not coming to grips with its difficulties and complexities. And it’s only when they do their exams and see their results that they realise that they never really ‘got’ law at all. Don’t be like them. Ask yourself constantly: Am I going into this subject deeply enough? What don’t I know – what do I still have to learn? Do the books I’m using look like the sort of books that top students would use? If not, what sort of books do top students use and how can I get hold of them? Is this book that I’m using inviting me to ‘fly high’ over the law by constantly skating over difficult issues? (Danger phrases to look out for are: ‘Broadly speaking. . .’; ‘It’s safe to assume. . .’; ‘Generally,. . .’; ‘Usually,. . .’)
3 Be Positive You will find studying law a very tough experience at times. You will be studying a whole new subject from scratch, one that is unlike any other subject you have studied before. You will be acquiring a whole new set of skills and taking what skills you have for making notes and writing essays to an entirely new level. Doing this will be hard – but it is do-able. The important thing is not to get discouraged, but to keep on going. The first time you read a case, you are likely to find it a bewildering experience. But if you stick with it and keep reading cases, the feelings of disorientation will disappear and you will start to understand how judges reach their decisions – and how you have to reason and argue when you are discussing points of law. The same is true of reading textbooks and articles, going to lectures and doing written work – you will feel an initial sense of discouragement because what you are doing is unfamiliar. You need to put that sense of discouragement aside and stick with your studies; eventually, everything will come good in the end.
4 Speak Up If there’s some point you don’t understand about the law, don’t be afraid to ask your teachers about it when you get the chance. Don’t think, ‘I don’t want to embarrass myself in front of everyone else by making myself look stupid.’ Chances are everyone else is having a problem with that point as well and they’ll be grateful to you for speaking up and giving your teachers the chance to address it in front of everyone. 91
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Similarly, if you are having a problem with your studies, don’t be afraid to go to whoever is in charge of your studies to tell them about it and ask for their help. The problem you’re having is probably one they have come across before and they’ll be able to draw on their experience to give you some good advice. Don’t be afraid to ask for and get as much help as you need. You have the right of freedom of speech. Exercise it.
5 Work Together You should envy people who studied law in the 1970s. There was so much less law in the 1970s that it must have been much easier to study then. There is so much more law around now – so many more cases, so many more statutes, so many more regulations – I really wonder whether one student working alone can really master enough of it to do well in his exams. Maybe it’s still possible – but my recommendation would be that you don’t try to find out. Instead, study law by working together with other students. If you and another group of students have been given some reading to do on a particular topic, split it up. You should each read the set textbook and then split the rest of the reading up. Then set a time to meet up and discuss what you’ve read. Form study groups of five or six people. Pick out five or six topics that are likely to come up in the exam and each of you undertake to research and write an essay on one of those topics. Then exchange your essays and discuss them with each other. Pick out five or six typical problem questions that have come up in past exam papers and each of you undertake to write an answer to one of those problem questions. Then exchange your answers and discuss them. If you do things like this, then your life as a law student will be much easier and more interesting – and your grades in the exams higher than if you operate as a lone legal eagle.
6 Try and Move Beyond Your Reading Lists You’ve got to remember that any reading lists that you’re given are pitched at students of average ability. Obviously, your teachers aren’t going to set 92
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reading lists that are really easy to get through; but neither are they going to set reading lists which only really brilliant students can handle. Instead, they set reading lists which are somewhere in middle – taxing, but not too taxing. So students who want to do really well in their exams – and show themselves to be of above-average ability – should constantly be looking to move beyond their reading lists, and read things which aren’t on them. Now if you follow my previous piece of advice and work with other people to carve up any reading lists that you’re given, it shouldn’t take you too long to get through your lists and this will leave you some spare time to do extra reading. How do you find out what else you should read? Well, there are a variety of ways of doing this. You could ask your teachers if they could recommend any extra reading. You could look in the footnotes of the textbooks and articles that you’ve already been referred to and see whether they cite any other books or articles that might be worth looking up. You could do searches on the Internet for resources that even your teachers might not know about – particularly American articles. (Because the American legal system is derived from the English legal system, you can frequently find American articles on topics that are also highly relevant to English law – though remember that American law is different from English law in many respects, and you’ve got be on the lookout for those differences.) Or you could just walk along the shelves of your law library, opening relevantsounding journals and collections of papers, and seeing what’s in them. Again, if you’re working in a study group of five or six people, divide up the job of doing extra reading. Each member of the group could undertake to find two articles or papers on a particular topic which aren’t on the reading list and summarise them for the rest of the group. You would soon find that your legal knowledge far outstripped that of anyone outside your study group. For example, suppose that you were in a study group of six people, and that all of you were supposed to study eight different topics for an exam in a particular subject. If you follow my advice then you and the fellow members of your study group would end up going into the exam being able to refer to a staggering 96 extra articles and papers that were not on your reading lists and to which no one else outside your study group could be expected to refer. How could anyone in your study group not do well in the exam with such a huge advantage? 93
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7 Be Nice This piece of advice is just plain common sense. You are not going to be able to persuade your fellow students to work with you unless you are pleasant to them. And your teachers will be far more willing to go out of their way to help you (and give you positive references when you leave university) if you are nice to them. In small-group teaching sessions be friendly, full of questions and radiate eagerness to learn. Your teacher will respond to this and will end up doing far more for you than she would if you were hostile and uncommunicative. Similarly, if you have e-mailed a question to your teacher and she has sent a reply, don’t just leave it there (as seems to be common practice nowadays) – send an e-mail back thanking her for taking the time to respond to you. This is both courteous and will make your teacher far more willing to respond next time you send her a question by e-mail.
8 Remember That Law is Like a Science The idea that law is a science has fallen out of vogue in recent years, but I think this is a mistake. Lawyers are very much like scientists. Scientists study lots of raw data and come up with theories, which account for the results given by the raw data. Lawyers do the same. They take large numbers of cases and try and extrapolate from them ‘rules’ or ‘principles’ which help explain why the cases were decided in the way they were. Whether a particular scientific theory is correct or not is determined by how well it ‘fits’ the available data, how well it ‘fits’ our general ideas about how nature works and whether the results of future experiments turn out to be consistent with that theory or not. Lawyers adopt the same procedure in determining whether a particular ‘rule’ or ‘principle’ is part of the law or not. They see how well it ‘fits’ the decided cases, how well it ‘fits’ our general ideas about what the law does and whether future, as yet undecided, cases are likely to be decided in line with that ‘rule’ or ‘principle’. There is one other important respect in which law is like a science – and it’s one any law student needs to take very seriously indeed. Anyone doing a science subject needs to memorise a huge amount of information: formulas, definitions, equations and so on. A law student also has to memorise an equally huge amount of information – rules, principles, 94
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definitions, cases, statutes and so on – if he is going to be successful. So every day, work to improve your legal memory. How can you do that? Well, the best way to memorise any information is to use it repeatedly. This is just plain commonsense. The best way to remember how to get to a particular place is to visit it a few times until the route becomes second nature to you. The best way to remember how to operate a particular machine is to operate it a few times until operating it becomes as natural to you as eating or walking. The best way to learn the location of all the keys on a QWERTY keyboard is to use one repeatedly over a long period of time. It follows that the best way to remember, say, a case is to use that case a few times – in discussing a legal issue among friends, in writing an essay or in answering a problem. The reason why most law students find it so difficult to remember legal information is that they are so passive. They spend all their time simply writing down whatever they are told in lectures and copying out chunks of material from their textbooks. But doing this won’t help you to remember what you’ve been told in lectures and what you’ve read in a textbook. You need to use that information if you are going to have any chance of remembering it. You need to: get involved with discussing legal issues with your fellow students participate in legal moots (mock cases where you argue a particular
side in a case) put on at your university write loads of essays and answers to legal problems (even if no one is
going to mark them).
9 Don’t Rely Too Much on Your Textbooks One of the most important differences between doing A-Levels and doing a law degree is the attitude you should have towards your textbooks. At A-Level, you could count on your textbooks to be correct and to tell you everything you needed to know to get a good grade in your exams. Neither of these things are likely to be true of the textbooks you will be looking at when doing a law degree. First of all, legal textbooks frequently get the law wrong or make statements or assumptions about the law that are debatable. So if a textbook 95
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says, ‘The law says x,’ you shouldn’t necessarily think that the law does actually say x. (A particular danger sign that a textbook is telling you something that is either debatable or simply wrong is when it makes a statement about the law without backing it up by reference to any cases or statutes.) Secondly, most textbooks do not tell you everything you need to know about the law to get a good mark in the exams. For reasons of space, most textbooks do not spend much time discussing how the law should be developed or reformed – and what discussion there is, is likely to be quite superficial. For in-depth discussions of how the law should be reformed or developed, you need to look at monographs (short books on a single issue) or articles. In addition, most textbooks ‘play safe’ and spend almost all of their time simply reporting what the decided cases say; they spend very little time going beyond the cases and discussing what the legal position is in various hypothetical, problematic situations. But these are precisely the sort of situations you are likely to be confronted with in your exams. So you should treat textbooks as fallible introductions to the various subjects you are studying. They get you started and give you some idea of the terrain over which you are going to be moving – but it’s dangerous to over-rely on them.
10 Start Thinking About the Exams From Day One Another difference between doing A-Levels and studying law at university is that as a law student you have to start preparing for your exams almost as soon as you start studying. You can’t afford to leave everything until six weeks before the exams – there is just too much information that you will need to assimilate and too much preparation that you will need to do for that to be a feasible option. So start thinking about the exams as soon as you start studying. When you are reading a textbook, ask yourself, ‘What points or issues are likely to come up in an exam?’ and pay special attention to those. When you are reading an article, try and condense its basic argument down to a few lines that can be reproduced in an essay in the exam. When you are writing an essay or answering a legal problem, don’t write any more than you could write in an exam. When one of your teachers sets you some reading to do on a particular topic, before you even start going through the reading 96
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list, have a look at past exam papers and see what sort of questions are set on that topic and direct your reading towards putting yourself in a position to answer those kinds of questions.
11 Try to Fall in Love With the Law This may sound like a strange piece of advice, but again it’s common sense. If you are going to be successful in your studies, you are going to have to spend most of the next three years studying law. Now imagine that the law is a person. If you were going to be spending most of the next three years living with a particular person, would you choose to live with someone you loved or someone you hated? Obviously, you’d choose to live with someone you loved. And the reason why is obvious too – if you had to spend most of the next three years living with a particular person, those three years would be far pleasanter if you loved that person than if you hated them. In the same way, your next three years will be far pleasanter if you manage to fall in love with the law. And how do you manage to do that? Well, again, how do you fall in love with someone? The answer’s obvious – you spend a lot of time with them, getting to know a lot about them. In the same way, if you are going to fall in love with the law, you need to spend a lot of time with it, studying it and reading about it. With luck, in time you should find yourself falling in love with the law and getting excited about the idea of finding out new things about it. So really commit yourself to your studies and give law a chance to cast its spell on you. If it does, then your next three years will be a lot easier than if you start your studies half-heartedly, don’t really give the law a chance and as a result end up dreading every hour that you have to spend studying it.
12 Make the Most of Your Time There’s going to be a lot to read and do if you are going to do well as a law student, so make the most of your time. Each day, work out some goals that you want to achieve that day and then try your best to stick to your plan. If you succeed, then you’ll get a great feeling of satisfaction – that you’ve done a good day’s work. If you don’t, then review your day – was your plan a bit too ambitious or were you a bit too weak-willed to resist the lure of a ‘quick coffee’? If the former, then adjust your plan for tomorrow. If the latter, then resolve to do better tomorrow. 97
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13 Take Time Off From Your Studies My final bit of advice is – don’t spend all your time studying law. You don’t want to get burned-out from constantly studying law. Try and ensure that you do something nice at the end of every day to reward yourself for the study effort you’ve put in during the course of the day and make sure that one day a week you spend half of the day having a good time doing something completely different. So those are my last-minute words of advice to you. They may seem fairly straightforward and commonsensical but I would guess that 95% of the people studying law at university do the complete opposite of what I have advised above. But I’ve absolutely no doubt that the remaining 5% are far happier and more successful as law students than the other 95%. So try your best to be one of the 5% who follow this advice. Good luck,
Nick
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How to Study Law
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LETTER TEN
Using the Internet Dear Sam, I’m glad to hear that you’re now fixed up with a computer and your e-mail account is working. I’ll now send any future letters by attaching them to an e-mail rather than sending them through the post. Now that you’re hooked up to the Internet, I thought you might find it helpful if I gave you a list of useful websites. The list is divided into two: sites that you have to pay to access (but which you might be able to access through your university network with a password); and sites that are free to access.
Sites That You Have to Pay to Access JUSTIS (www.justis.com) – an excellent site giving you online access to
the official Law Reports (Appeal Cases, Queen’s/King’s Bench Division, Chancery Reports, etc.), The Weekly Law Reports, The Times Law Reports, the Family Law Reports, the English Reports, statutes and statutory instruments, as well as European and human rights material. LexisNexis (web.lexis-nexis.com/professional) – source of a huge
amount of information; allows online access to newspaper archives, all reported and unreported cases decided in the UK, and numerous legal journals (including the Oxford Journal of Legal Studies). Westlaw (www.westlaw.com) – a handy source of quick summaries of
decided cases, as well as full reports; allows online access to numerous legal journals (including the Law Quarterly Review, Public Law and the
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Criminal Law Review); the place to go to access American legal resources, including every American law journal. HeinOnline (www.heinonline.org) – an extremely useful archive of
legal materials, including page-for-page reproductions of back copies of a huge number of legal journals, including the Cambridge Law Journal (from 1921–2000), the Law Quarterly Review (from 1885–1925), the Modern Law Review (from 1937–99), and the Oxford Journal of Legal Studies (from 1981–98). LexisNexis Butterworths Direct Services (www.butterworths.com/
butterworths.asp) – provides online access to the All England Reports and Halsbury’s Laws as well as many other specialist legal resources. Lawtel (www.lawtel.com) – among many other services, this very
useful website provides daily updates on recent legal developments in areas of the law you’re interested in, as well as transcripts of judgments in all recently decided cases. Much more easily searchable than a lot of other websites – if you want to know if a particular case has been cited in any other case, reported or unreported, this is the place to go. If you can access any of these websites through your university, they will give you advice on how to use them, so I won’t waste time by repeating what they’ll say.
Sites That Are Free to Access Cambridge Faculty of Law website (www.law.cam.ac.uk) – an excellent
site that provides a gateway to numerous free resources on the web. Click on ‘Legal Resources’ on the left-hand side of the screen and explore from there. Use this link to access a wide range of legal resources, including free online reports of House of Lords decisions and decisions of the European Court of Human Rights, the European Court of Justice and the International Court of Justice Bora Laskin Gateway (www.law-lib.utoronto.ca/resources/index.htm#1)
and the Norwich Law School Virtual Law Library (www.uea.ac.uk/ ~n180/ welcome.html) – two good gateways to numerous legal resources on the web. 102
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Law Commission website (www.lawcom.gov.uk) – provides you with
full access to Law Commission Reports and Consultation Papers, evaluating and recommending changes to various difficult areas of the law. BAILII (www.bailii.org) – provides free online access to reports of a lot
of English and Commonwealth cases. AUSTLII (www.austlii.edu.au) – the equivalent of BAILII for
Australian and New Zealand cases and legislation. Legal Information Institute (www.law.cornell.edu) – the equivalent of
BAILII for American cases and legislation. The Avalon Project (www.yale.edu/lawweb/avalon) – a huge resource
of historical legal documents. If you want to read the text of Magna Carta, this is where you go. Cardiff Index to Legal Abbreviations (www.legalabbrevs.cardiff.ac.uk)
– a very useful site when you are trying to figure out what acronyms such as ‘IRLR’ or ‘M & S’ on your reading lists refer to. McBride & Bagshaw Tort Law Website (www.pearsoned.co.uk/mcbride)
– another useful source of summaries and comments on recent tort law cases (a great time saver!) as well as other tort law resources. Hart Publishing Updates (www.hartpub.co.uk/updates/html) – mainly
useful for summaries and comments on recent developments in criminal law provided by the authors of Simester & Sullivan, Criminal Law. Steve Hedley’s Restitution Website (www.ucc.ie/law/restitution) – a
treasure trove of resources relating to the law of restitution. Google (www.google.com) – the premier Internet search engine. This
can sometimes be useful for researching tricky legal points and issues, but its search results can often produce too much information to be helpful. (If you are looking for information on a particular phrase such as ‘rule of law’, remember to put the phrase in speech marks when entering it into the search engine, so that Google looks for websites containing the entire phrase rather than websites containing each of the words in the phrase.) Wikipedia online encyclopedia (en.wikipedia.org) – a good place to
start if you are trying quickly to find out some basic information on a particular issue. 103
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The Online Books Page (onlinebooks.library.upenn.edu) – a huge
resource of free-to-access online books. Amazon (www.amazon.co.uk, www.amazon.com) – obviously an
excellent source of new and second-hand books, but can also give you valuable information as to what books might be useful on topics that you are studying. Abebooks (www.abebooks.com) – the best source of second-hand
books on the Internet. This should be more than enough for you to be getting on with. But a word of warning: don’t get too dependent on the resources you can find on the Internet. If you are trying to find out information on a particular topic or issue, and you have access to a good law library, you can often find out the information you need more quickly by simply looking on the shelves of the library for relevant-sounding books and consulting their indexes and tables of cases. And there will often be articles and papers relevant to the issue you’re researching which are untraceable on the Internet – you can only find them by taking yourself off to a law library and looking in obscure journals and collections of essays. So do use the Internet, but you’d be foolish if you allowed it to become your only source of information. Best wishes,
Nick
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LETTER ELEVEN
How to Approach Your Studies Dear Sam, I haven’t really given you any guidance yet as to how you should go about the business of studying law. So here goes, before it’s too late. I’ll split my guidance into three parts. In this letter, I’ll explain the basic approach that you should adopt to studying any ‘straight’ legal subject – that is, any subject where you are learning what the law says on particular issues. (Examples of ‘non-straight’ legal subjects would be Legal History, Roman Law or Jurisprudence.) Shortly after sending you this letter, I’ll e-mail you two more letters. The first will give you some specific guidance on how you should read such things as textbooks and articles. The second will give you some advice on how you should approach reading cases and statutes.
The important thing when studying law is to avoid being passive. Passiveness is the enemy of learning and understanding. All too often students approach their studies in a passive way. They turn up to lectures and scribble down as much as they possibly can of what the lecturer is saying. They make notes on a textbook, article or case and end up copying or highlighting most of what’s written there. They become bored and unenthused by their studies. And inevitably they tend not to do very well in their endof-year exams.
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We want to avoid all of that. What I’m going to do now is describe a method of approaching your studies that will – I hope – make studying law a much more exciting and stimulating experience than it will be for many of your colleagues.
About a Tree Let’s imagine that we are both standing in front of a big tree. I know everything there is to know about the tree and your job is to find out as much as possible from me about the tree. There are two ways we can do this. You could ask me to tell you everything I know about the tree. I would then talk for an hour or so about the tree and you would try to absorb as much as possible of the information I give you. The problem with this method of finding out as much as possible about the tree is that it’s so passive. Your job is simply to listen to me going on and on about the tree. But you won’t – your attention will wander, you’ll get bored and after only ten minutes you’ll have stopped listening to me altogether. The second method for finding out as much as possible about the tree is much better. Under this method, you ask me questions about the tree and I answer them. Using this method, you are no longer a passive – and therefore bored and unenthusiastic – participant in the learning process. You are in charge, not me. You get to dictate what I talk about. If I say something that is unclear, you have the power to make me express myself more clearly by asking me to try to answer your question again. Because you are more involved in the process of learning as much as possible about the tree, you are more engaged and will therefore pay more attention to what I have to say. As a result, you will learn far more about the tree using this method than you would if you adopted the first method. Let’s call the first method for finding out as much as possible about a particular subject the osmosis approach. ‘Osmosis’ because it involves trying to absorb information by allowing it simply to sweep over you, in the hope that some of it will sink in. Let’s call the second method for finding out as much as possible about a particular subject the question-driven approach. The overwhelming majority of law
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students adopt the osmosis approach in their studies – with the dismal results I’ve already mentioned. What I’m going to do in this letter and the following letters I’ll be sending you is to show you how to adopt a question-driven approach to your law studies.
Now – before I start, let’s immediately address one objection that my students always make when I try to encourage them to adopt a questiondriven approach to studying law. The objection is this: If I don’t know anything about a subject, how do I know what questions to ask? When my students say this kind of thing, I remind them that little children don’t seem to find it difficult to ask all sorts of questions about all sorts of subjects about which they know nothing. If little children find this very easy, then so should my students. Let’s go back to our tree. Even though you know nothing about the tree, there are still loads of questions you could ask about it: What kind of tree is this? How many different kinds of trees are there? What makes this tree different from other kinds of tree? How old is this tree? Has it suffered any damage over its lifetime? How would it have started growing? Do any birds or animals live in the tree? Is there anything about the tree that makes it a suitable habitat for cer-
tain birds or animals? Why is the tree the colour that it is? Does the tree change colour during the year – and if so, why?
And these are the questions you can ask even though you don’t know anything about the tree. Imagine how many further questions you might ask once you get to know a bit about the tree. You might say – well, of course I know what sort of questions to ask if I have to ask about a tree; but what if I have to find out about something I know absolutely nothing about? How then will I know what sort of questions to ask? Well, even in that situation, there are still basic questions you 107
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can ask that will give you enough understanding of what you are inquiring into to allow you to ask more complex questions later on. For example, suppose that we are both standing in front of a snarg – a wholly imaginary object – and you again have to find out as much as you can from me about that object. Even though you know absolutely nothing about what a snarg is, there are still questions you can ask: What is a snarg? What does it do? Is it useful for anything? How is it produced? How long does it last? If it ever dies or breaks down, how and why does that happen?
The answers I give you to these questions will then allow you to go on to ask much more complicated and detailed questions about snargs. At this point, my students usually object – But what if we fail to ask an important question? Won’t we miss out on finding out some important information? This is unlikely. If there is an important question relating to a particular subject that you are studying that you haven’t thought of yourself, you will come across it soon enough in the course of trying to find out answers to the questions you have thought of. You will then be able to add that question to the list of questions to which you are seeking answers. That’s enough preliminaries. Let’s get on with developing a question-based approach to studying law. Whenever you start studying a ‘straight’ legal subject, you should buy two A4 ring-binders. One of them you should label ‘Topic File’ and the other you should label ‘Case and Statute File’ (I’ll refer to it as your ‘case file’ for short).
The Topic File What is the topic file? The topic file is where you are going to put notes relating to different topics that are relevant to the subject you are studying. (Incidentally, it’s a good idea to buy some dividers so that you can split up the different topics in your 108
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topic file and locate them easily.) So a good topic file on Criminal Law would contain notes on the following topics, among many others – ‘The Mens Rea for Murder’; ‘Justifications/Criticisms of Strict Liability’; ‘Intoxication and the Criminal Law’; ‘Justifications for Criminal Punishment’. Now no one is going to tell you what topics should be covered in your topic file. You – or a study group you are involved in – are going to have to decide that yourself. But that’s a good thing: you are immediately being forced to be more creative in your studying than most students are; and the more creative you are in your studying, the more engaged you will be and the more you will get out of it. However, you will get a lot of guidance as to what topics should be covered in your topic file from the legal materials that you are told to read, as well as any reading lists and lectures that you are given. It’s also a good idea to look at past exam papers (almost before you start studying – it’s too late if you only look at them six weeks before the exam) to see what sort of topics often crop up as subjects for questions. Taking notes in your topic file Now you must ensure that your notes in your topic file are question-driven. Whenever you are writing down notes in your topic file on a particular topic, you should be doing so in order to answer a number of questions that are related to that topic. So, for example, suppose that in your topic file on the Criminal Law you want to cover the topic ‘Justifications for Criminal Punishment’. So take a fresh sheet of A4 paper, and write across it JUSTIFICATIONS FOR CRIMINAL PUNISHMENT
and put it in your topic file as a title page. Now write on a piece of rough paper all the questions you can think of that are relevant to that topic. Don’t hold anything back – write down any question that seems relevant, no matter how silly it might be. This is what you might come up with (note, incidentally that it is possible for someone to come up with all these questions without having read anything on ‘Justifications for Criminal Punishment’): Why is this topic important? What does punishing someone for committing a criminal offence involve? 109
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What’s the difference between punishing a criminal/taxing someone/making someone pay compensation? What good does punishing someone for committing a criminal offence do? Do different criminal punishments (imprisonment, fines, community service) serve different purposes? Should the State be the only body that is allowed to punish people for committing criminal offences? Would it ever be okay for a judge to find someone guilty of committing a criminal offence and punish him if the judge knew that he wasn’t guilty? Are there limits on what punishments we can inflict on people who have committed criminal offences? Would it be okay to make a shoplifter stand for a week outside the shop she stole from with a sign saying ‘I am a shoplifter’?
Now look at these questions and ask yourself: What are the primary questions relating to this topic? Primary questions are starting points – they identify new lines of inquiry. For example, the last question on the above list isn’t a primary question because it is merely an extension of the more general question that precedes it. It doesn’t identify a new line of inquiry. But the second to last question on the list does look like a primary question – it doesn’t seem to cover the same ground as any of the other questions. Thinking along these lines, you might come up with the following list of primary questions relating to ‘Justifications for Criminal Punishment’: Why is this topic important? What purpose or purposes are served by punishing criminals? Are there any circumstances in which it would not be justifiable to punish someone who has technically committed a criminal offence? Are there any circumstances in which it would be justifiable to punish criminally someone who was known to the authorities not to have committed an offence? 110
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Are there any limits on what kinds of punishments we can justifiably inflict on criminal offenders? Are there any limits on who can inflict those punishments?
Having identified these primary questions, you should gear your notes to answering them. You should devote an entire sheet of A4 paper to each question that you’re focusing on. So, for each primary question, take an A4 sheet of paper and write that question in the middle of the paper. And then, whenever in the course of your reading you come across an idea, view or case relevant to that question – or have an idea yourself about that question – make a note of it on that sheet. Of course, as you do more and more reading on a particular topic, you will probably come up with some more primary questions about that topic. That’s great if you do – it shows you are thinking about the topic. If a new primary question occurs to you in the course of your reading, then write it down in the middle of a new sheet of A4 and place the sheet of paper in the appropriate place in your topic file. In most cases, you’ll end up considering about six or seven primary questions for each topic in your topic file. Your notes on each primary question should not occupy more than one A4 sheet. It’s almost certain that to achieve this, you will have to rework the presentation of your notes on a given primary question over and over again as you read more material and gain more insights into the answers to that question. Don’t worry about this. When you rework your notes, you are being creative – and when you are being creative, you are thinking and engaged with your material. And that’s a good thing. It’s infinitely better to be thinking and engaged with your material than to be bored and passive in going over it. The advantages of this approach to taking notes So why is it so important to ensure that your notes in your topic file are question-driven? Here are five reasons: 1 The process of making notes on a particular topic will be more interesting if you are making notes in order to answer questions that are related to that topic. As a result, you will be more engaged
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and enthused while you are making notes – with positive effects both on your work rate and your ability to remember what you are making notes on.
2 Your notes on a particular topic will be more relevant if you are making notes in order to answer questions related to that topic. Instead of trying to guess what information might be worth making a note of, you will already know – anything that is relevant to your questions is worth making a note of; anything else is not. A side effect of this is that your note making will be a lot quicker if you are making notes in order to answer questions related to that topic. If you already know the kind of information you are looking for, it doesn’t take long to find it, even if you are ploughing through huge amounts of text.
3 You can only claim to understand a particular topic if you can come up with some (plausible) answers to questions that relate to it. (For example, we would expect someone who claims to understand King Lear to be able to give us a plausible answer to the question, ‘What is the role of the Fool in King Lear?’) It follows that someone who approaches a topic by thinking of questions relevant to that topic and then trying to come up with answers to those questions is well on the way to achieving a good understanding of that topic. In contrast, there are no guarantees that someone who makes notes on a topic by noting everything that sounds relevant to that topic will ever actually understand that topic. It is possible to make pages and pages of notes on a particular subject without understanding a word of what you are writing down. So the surest and quickest way of achieving a good understanding of a particular topic is to think of questions relating to that topic and search out answers to those questions.
4 If you make notes on a topic in order to answer questions relating to that topic, you will usually find that many of those questions are controversial – different people take different views on those questions. Your notes on those questions will reflect these disagreements. Had you not adopted a question-driven approach in making notes on the topic you are considering, you might have overlooked those disagreements entirely. So if you adopt a question-driven approach to making notes on a particular topic, your
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notes on that topic are likely to be fuller and more complex than would otherwise be the case.
5 A question-driven approach to making notes helps ensure that you don’t fall into a false sense of complacency. If – after a week or so of making notes on a particular topic – you discover that you have no or very few notes on a primary question relating to that topic, then it’ll be pretty clear that you don’t know enough about that question; and you need to get on and do some more reading specifically geared to answering that question. Don’t wait for anyone to tell you what else you should read. Take the initiative: do your own research. Open some books and look in the indexes, look in relevant-sounding journals – and beef up your notes.
Politics and your topic file Before I move on to talk about your case file, I want to return briefly to the fourth reason I gave for adopting a question-driven approach to taking notes in your topic file. Whenever you investigate a question like ‘Is this area of the law in need of reform?’ you will usually find that the question is controversial. Different people will take different views as to whether the area of law in question is in need of reform, depending on what kind of people they are – and, in particular, on what political views they hold. So when you are investigating a primary question like ‘Is this area of the law satisfactory?’ or ‘Is this area of the law in need of reform?’, get used to asking yourself: ‘What would a libertarian think of this area of the law?’ (A libertarian is someone who believes that the only thing the State should do is to protect us from being harmed by other people.)
‘What would a utilitarian think of this area of the law?’ (A utilitarian is someone who believes that the State should take steps to maximise the net welfare or happiness that exists in society as a whole. So, on this view, the State should do x if its doing so would increase the overall level of happiness in society, even if doing x will decrease certain people’s happiness.)
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‘What would a liberal think of this area of the law?’ (A liberal is someone who believes that the State should generally act to maximise everyone’s freedom to live their lives as they want.)
‘What would a perfectionist think of this area of the law?’ (A perfectionist is someone who believes that the State should encourage people to be good people.)
‘What would a communitarian think of this area of the law?’ (A communitarian is someone who thinks that the State should protect and encourage the existence of social institutions and practices that help people lead worthwhile and fulfilling lives.)
Asking these kinds of questions will very quickly expose any disagreements that exist between people of different political views as to whether the area of the law that you are looking at is satisfactory or is in need of reform.
The Case File What is the case file? Your case file will be made up of notes on cases (and statutes – but I’m going to focus on cases in what I say below). Every case in your case file must be dealt with on a separate A4 sheet. This is important. Even if you are only ever going to make one line of notes on a particular case, you must still devote one whole A4 sheet to that case and nothing else. This is to allow you maximum flexibility in making notes on cases and to reshuffle the order of cases in your case file easily so that cases on the same legal issue can be placed next to each other. Taking notes in your case file Again, no one will tell you what cases should appear in your case file – you (or your study group) will have to decide that yourself. But every time you come across a case – whether in your reading or in your lectures – that seems worth remembering, you should do the following. Get a fresh sheet of A4. Write the name of the case at the top of the sheet. Beside it, write a citation to tell you where a report of it can be found. (For 114
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example, [1972] 3 WLR 243 refers to the third volume of the 1972 Weekly Law Reports, at page 243. At that page you will find a report of the case of R v Collins, a case that every criminal law student finds very easy to remember, for reasons which will be obvious when you look it up.) Next to the citation, make a note of what court decided the case. This will usually be the Court of Appeal, which decides a case after it has been decided at first instance (that is, for the first time) and one of the parties has appealed against the first instance decision, or the House of Lords, which decides appeals against decisions handed down by the Court of Appeal. Under all that, you should write down whatever notes on the case seem relevant to the general area of law you are interested in. (Remember that cases often deal with a lot of different legal issues and you will only be interested in what a given case has to say about some of those issues – you can safely skip the rest.) You should try your best to ensure that your notes on the case are in the end reduced to one side of A4. To achieve this, you will often have to rework your notes on a case over and over again. Again, this is a good thing – reworking notes means being creative, and if you are being creative then you are interested and engaged with your material, rather than being bored and passive. Just as with your notes in your topic file, your notes on every case in your case file should be question-driven. These are the questions you should be asking – and trying to answer – in relation to every case you make notes on: 1 Why is this case important? What – if anything – did it establish? What
is its current status? Is it important because of its facts? Or is it just important because it laid down a particular rule? 2 Why was this case decided the way it was? Did the existing law dictate
that this case be decided the way it was? If not, what considerations of policy or principle led the court to decide the case the way it did? 3 Where does this case fit in? Is it consistent with the outcome of other
cases? Inconsistent? Or is it just so totally unique it can’t be compared with any other cases? 4 What would have happened had the facts been slightly different? Would
the case have been decided differently? It’s particularly important to ask this question if you are trying to argue that the decision in the case gave effect to a particular rule or principle, or if you are trying to assess 115
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whether a particular academic is right to argue that the decision in the case gave effect to a particular rule or principle. Test whether it did by asking how the case would have been decided had the facts been different: is your answer consistent with the rule or principle you have in mind? If the answer is ‘no’, then it’s unlikely that the case at hand did give effect to that rule or principle. (A silly example: suppose that A – who happens to be red-headed – was found guilty of theft. You are thinking of arguing that the court that decided A’s case gave effect to the following rule: ‘All red-headed people who are charged with theft should be found guilty.’ We can test whether this is true by asking what would have happened if A had not been red-headed. If he would still have been found guilty then that establishes that the court in A’s case was not giving effect to the rule you are thinking of.) 5 Does this case contain any interesting dicta? ‘Dicta’ are comments or
observations made by the judges in the course of deciding a case that weren’t necessarily crucial to the outcome of the case but may contain clues as to how the courts will decide other cases in the future or suggestions as to how the law should be reformed. 6 Can we criticise the way this case was decided? Does the way the case was
decided have any undesirable consequences? Would deciding the case another way have been preferable – or would doing that have created a whole host of different problems? Academic articles and casenotes (summaries of and comments on cases) will be a particularly important source of criticisms of the way particular cases were decided. 7 Does this case have anything relevant to say about any of the questions in
my topic file? If so, make a note of it in your topic file, in the appropriate places. The more links you can make between cases and questions in your topic files, the better – so this is a very important question to ask about any case you read. Obviously building up your notes on a particular case will take a little time. You may come across a case first in a textbook and that will prompt you to open a file on it in your case file and make some notes about what your textbook has to say about it. But you might also later on be told to read and make notes on the case – which will cause you to add quite a bit 116
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to your notes. And you might later on come across an article which talks about the case – and that will again cause your notes on the case to expand. There is a danger that you might forget that you’ve already opened a file on a particular case – with the result that you end up with two different files on a particular case, one opened after seeing it mentioned in a textbook, for example, and one opened after hearing it mentioned in a lecture. To avoid this, it would be a good idea to keep the cases in your case file arranged in alphabetical order. That way, when you see a case mentioned in an article, you can quickly flick through your case file to see if you’ve already opened a file on it. Just as was the case with your topic file, your case file will highlight any weaknesses in your understanding of the case law on a particular issue. If one case is constantly referred to in textbooks, lectures and articles and you only have a few lines of notes on it – you will know you haven’t been doing your job properly, and your notes on that case will have to be beefed up.
An Important Point About Your Notes One general – and very important – point about your notes in your topic files and your case files: Don’t bury the points made in your notes through bad presentation. Make your notes visually arresting. Break up your notes using indentations, arrows, dashes, circles, numbers, letters, bullet points. Use different coloured pens. Write certain words in capitals. Do anything to avoid a sea of writing that goes repeatedly all the way from the left margin to the right side of the page. For example, here is one way of writing out the Gettysburg Address (delivered by President Lincoln on 19 November 1863, at a ceremony to consecrate a cemetery for the Union soldiers who died in July 1863 at the Battle of Gettysburg): Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate 117
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a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we can not dedicate – we can not consecrate – we can not hallow – this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us – that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion – that we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.
Pretty inspiring stuff – but not presented in a particularly illuminating way. This is a much more accessible way of presenting exactly the same Address: Four score and seven years ago our fathers brought forth on this continent, a new nation
conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war
➝ testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war.
➝ We have come to dedicate a portion of that field ➝ as a final resting place for those who here gave their lives that that nation might live. 118
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It is altogether fitting and proper that we should do this. But, in a larger sense,
we can not dedicate we can not consecrate we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract.
➝ The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us
➝ that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion
➝ that we here highly resolve that these dead shall not have died in vain that this nation, under God, shall have a new birth of freedom
and that government of the people, by the people, for the people, shall not perish from the earth.
This way of presenting the Gettysburg Address makes it much easier to see at a glance how the Gettysburg Address was structured and what key points were made by President Lincoln in the Address. You get so much more, and so much more quickly, out of reading the Gettysburg Address presented in this way than in the way I first set it out. Breaking up the Gettysburg Address in this way makes it a lot easier to memorise as well. 119
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So do the same in making notes for your topic file and case file. Present your notes in such a way that if you only had ten seconds to look at a single A4 sheet of them, you would still be able to absorb every single piece of information on that sheet. Ensuring that your notes are that well presented will take a lot of work and they will have to be rewritten time and time again – but you should remember that this process of reworking is extremely beneficial and should be welcomed. So that’s the basic approach I think you should adopt when studying a ‘straight’ legal subject. I hope I’ve explained it clearly and that it sounds like a very appealing approach to you. Let me know if you come up with any improvements to it – I’d be interested to hear about them. I’ll be in touch shortly with some guidance on how you should approach reading textbooks and articles. Best wishes,
Nick
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LETTER TWELVE
Reading Textbooks and Articles Dear Sam, As promised, I’ll give you some advice in this letter on reading textbooks and articles.
Textbooks Let’s assume you’re studying ‘Liability for omissions in negligence’ and you’ve been told to read a couple of chapters from a tort textbook. Here are some ideas about how you should do it. You should read the chapters at least twice. The first time, do so without making any notes. The point of this first read-through is twofold. First, to introduce you to the area of law that you are studying: to get you acquainted with its key concepts, rules and cases. Secondly, to get you thinking about what notes you are going to make in your tort law topic file and case file on the second read-through. So the obvious topic you’ll be making notes on for your topic file is ‘Liability for omissions in negligence’. Even before you have done any reading, the following questions relating to that topic may have occurred to you: What is an omission? How does an omission differ from an act?
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Can some omissions be redescribed as acts (ie ‘failing to brake’ = ‘bad driving’)? What omissions can’t be redescribed in this way? What’s so special about omissions? Why does the law treat them differently from acts? Is the law on liability for omissions in negligence different in any way from the law on liability for omissions in the rest of tort law (or the criminal law)?
Write these down on a piece of rough paper. As you read through the textbook chapters for the first time, scribble down on the same piece of paper any other questions about ‘Liability for omissions in negligence’ that might occur to you. (Note that this first read-through provides you with an important safeguard against the possibility that you will overlook an important question relating to ‘Liability for omissions in negligence’. Another safeguard is to look at past exam papers – again, before you start the reading – to see if they identify any questions relating to ‘Liability for omissions in negligence’ that you should be looking into.) So the following extra questions may occur to you: Is there any underlying principle or rule that accounts for why in certain situations a defendant will be held liable for an omission, but in other situations he won’t be? Do the situations where a defendant will be held liable have anything in common that might account for why he is held liable in those situations? Should/does the law on liability for omissions in negligence discriminate between private persons and public bodies? Is the existing state of the law satisfactory?
Once you’ve finished reading the chapters, look over the questions you’ve scribbled down on your piece of rough paper and identify which questions are primary and which are secondary. Write each of the primary questions on a separate sheet of A4 paper. So your primary questions for ‘Liability for omissions in negligence’ will probably be: What is an omission? 122
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What principle or principles underlie the existing state of the law on liability for omissions in negligence? Is the existing state of the law on liability for omissions in negligence consistent with liability for omissions under other areas of the law? Is the existing state of the law satisfactory?
Having identified these questions you are now ready to go through the textbook a second time, making notes on all these questions in your topic file. Turning to your case file, on the first read-through of your textbook, you will want to make a note of the names of any cases that you are going to open files on in your case file. (Remember that it’s worth opening a file on even a quite minor case if it decided a legal issue that might come up in the exams.) Provided, of course, that the textbook you are reading is yours, you can do this by highlighting or underlining the names of any cases that you are going to open files on in your case file. If the textbook you are using doesn’t belong to you, then you should either write down the names of the cases on a piece of rough paper or open files on them there and then on the first read-through by writing the name and details of each one at the top of an A4 sheet. Having done this, you are now ready to make notes on each of the cases you have identified as noteworthy on the second read-through, asking yourself every time: Why is this case important? Why was this case decided the way it was? Where does this case fit in? What would have happened had the facts been different? Does the case contain any interesting dicta? Can we criticise the way this case was decided? Does this case have anything relevant to say about any of the key ques-
tions in my topic file? Remember on the second read-through to make your notes fun and creative – avoid at all costs simply copying out chunks of the textbook. 123
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That’s the basic approach. Now for a few tips. 1 Boredom If you’re getting bored reading a textbook what should you do? The answer is: stop reading. If you’re bored, you won’t be taking anything in, and there’s no point in carrying on reading when you’re not absorbing anything of what you’re reading. Deal with the source of the boredom before you carry on reading. It may be that you’ve been working too long and your brain has decided it’s had enough. In which case, take a break. Or it may be that the textbook is at fault: the writer hasn’t made enough effort to make the bit of the textbook you are reading interesting enough. In which case, search out another textbook that covers the same area but is more interesting. Or it may be that there’s something on your mind that stops you focusing on what the textbook has to say. In which case, deal with the thing that’s on your mind and then come back to the textbook. (Easier said than done in many cases, I know.) 2 Don’t stick to one textbook It’s a mistake to cover an entire subject just using one textbook. If you take virtually any legal textbook, there are going to be some chapters where the writers did a really good job and some chapters were the writers weren’t quite on their game. So if the textbook you are using to read about a particular area of the law doesn’t seem very clear or easy to read, you’re probably reading one of the chapters in the book where the writers didn’t give it 100%. If that’s the case, stop reading what you’re reading and go off and find another textbook that gives a clearer account of the area of law that you’re looking into. Ideally, when you are making notes on a particular topic, you should look at three or four textbooks to get as wide a variety of views as possible on the key questions relating to that topic. You may think that it would take a huge amount of time to do this – but you’d be wrong. Remember one of the points I made in my last letter to you: if you know what kind of information you are looking for, then it doesn’t take that long to find it. So if you know the questions you are looking for answers to, it doesn’t take long to find out a particular textbook’s answers to those questions (if it has any). 124
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3 Remember that textbooks get out of date This point may be a bit too obvious to be worth making – but it sometimes catches inexperienced students out. There are some areas of law that change quite a lot over short periods of time – tort law and criminal law are examples – with the result that textbooks in those areas get out of date quite quickly. If you are studying one of these areas, be careful about using a textbook which is more than three or four years old – many of its statements about what the law says could be out of date. The best policy, if you are using such a textbook, is to supplement it by consulting a more up-to-date textbook. 4 Look at the footnotes Don’t ignore the footnotes in a textbook. They can often be the source of: very useful observations about the law which didn’t fit easily into the
flow of the main text and were therefore relegated to the footnotes suggestions as to articles and other books that it might be helpful to
read – and, if you are really lucky, summaries of what those articles and books say, thus saving the trouble of looking at them yourself criticisms of other writers’ views which will come in handy when try-
ing to make up your mind whose views you agree or disagree with.
Articles Let’s assume that you’ve been told to read a few articles on ‘Liability for omissions in negligence’. Your textbook reading should have helped you to identify and make notes on a number of questions relating to that topic. And you should also have opened quite a few files on cases relating to ‘Liability for omissions in negligence’ in your case file. So when you look at the first article you have been told to read, you should be looking straightaway to make notes on two things. First, points relating to your questions on ‘Liability for omissions in negligence’ and any arguments supporting those points. Secondly, points relating to cases that you have opened files on in your case file and any arguments supporting those points. 125
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When you see any such points and arguments, make a note of them in the appropriate place. When making a note of a relevant point made in an article (and any arguments backing that point up), try to make your note as snappy as possible. Try and reduce what the author is saying to a soundbite. You are looking to produce something that you could later introduce into an essay or a problem answer – so anything too complex will be useless to you. Your note should take the form ‘Professor X says. . . because. . .’ and should be no more than five or six lines long. After you’ve done this and gone through the entire article making notes on it, briefly look back through the article and ask yourself two things:
1 Does the article raise an important primary question that I haven’t thought of yet and is relevant to the topic I’m looking into? If so, add the question to your list of primary questions. Write the question in the middle of a new A4 sheet. And make some notes about what the article has to say about that question on the A4 sheet. (And then look out for other articles that deal with the same question to beef up your notes on that question.)
2 Does the article deal with any cases that I haven’t opened a file on in my case file? If so, do the cases in question seem important enough to be worth making some notes on? Articles can be a very good source of references to cases decided outside the UK – particularly in Commonwealth countries such as Australia and Canada. Such cases don’t always make it into the textbooks, which are usually more narrowly concerned with UK law, and even when they do, they are normally discussed at quite a superficial level. Articles often go into non-UK cases in greater depth because they frequently point to developments in legal systems outside the UK as a guide to how the law in the UK should be reformed. You shouldn’t be averse to opening up files in your case file on non-UK cases (so long as you make it clear in your notes that they aren’t UK cases). References to such cases can often spice up an essay or a problem answer and impress the marker that you are a student worth taking seriously.
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That’s the basic approach. Now for a few tips. 1 Read the latest articles first Suppose you are given a list of four articles to read: the first on the list was published in 1995, the second in 1996, the third in 2002, and the fourth in 2004. Your natural instinct will be to go through the list from the top and begin with the article published in 1995. Your instinct is wrong – you should begin with the article published in 2004 and work your way backwards. The reason for this is that the 2004 article may well summarise and contain helpful criticisms of the earlier articles – thus making the task of reading the earlier articles a lot easier, if not completely redundant. 2 Some articles are a waste of time Don’t worry if you’ve gone through an entire article and haven’t made any notes on it at all. If you’ve honestly applied the approach set out above – and haven’t been, for example, daydreaming while your eyes moved over the article – then it’s almost certainly the article’s fault that you haven’t ended up with any notes. The plain fact is that some articles are really obscure and inconsequential, saying nothing that is of any use whatsoever. If you are unlucky enough to have been told to read such an article, discard it as quickly as possible, move onto the next one and hope for better luck next time. 3 Go beyond the reading list Once you’ve gone through all the articles you’ve been told to read, you (either on your own or in conjunction with a study group that you are a member of) should ensure that you read some other articles relevant to the subject you are looking into. Doing this will: enhance your understanding of the subject and thereby deepen your
interest in it consolidate and reinforce the knowledge you have acquired so far give you something to ‘trade’ with other students (‘I’ll show you my
notes, if you show me yours’), which may result in you forming or getting into a study group. 127
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If you’ve applied the approach to taking notes on articles that I’ve set out above, you shouldn’t find it too difficult to get through the ‘set’ articles and move onto some other articles. As I’ve said before, if you know what kind of information you are looking for, it doesn’t take long to find it. 4 Finding other articles to read In searching for other articles to read you should of course look at the most well-established English legal journals – the Law Quarterly Review, the Oxford Journal of Legal Studies, the Cambridge Law Journal, the Modern Law Review, Legal Studies, the Criminal Law Review and Public Law. However, you shouldn’t limit your search to these journals. There’s plenty of good stuff published in other journals, particularly journals specialising in certain subjects such as tort law or jurisprudence. You should also look in collections of essays that are issued in book form. These often take the form of festschriften – books honouring a particular academic or judge by collecting together a number of original essays written by academics on subjects with which the academic or judge in question has some connection. You can find a searchable databases of festschriften at: http://www.library.auckland.ac.nz/databases/alt/festschrift/ 5 Boredom What should you do if you find yourself getting bored reading an article? First of all, search your conscience and see if you have been paying it proper attention. If you haven’t, find out the reason why you haven’t been paying attention and eliminate it. If you have been paying attention and you have read at least five pages of the article, then it’s the article’s fault you’re bored and you should stop reading it properly. Briefly flick through the rest of the article to see if there’s anything in it that catches your eye as being worth noting and then move onto the next article.
An Important Point About Your Notes Now what I’m about to say is both very important and relevant to your taking notes on both textbooks and articles. 128
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Suppose that an academic has – in a textbook or an article – criticised or defended some aspect of the law. And suppose that you have made a note of this fact: ‘Professor Brown says the law on. . . is unsatisfactory/satisfactory because. . .’ Having done this, don’t just move on. Take the time to stop and think about whether you agree with Professor Brown or not. I’ll tell you why you should do this a bit later on. But before I do that, I want to say this: If you are like any other law student, you will find the piece of advice I’ve just given you very hard to follow. Students find it very difficult to get enough critical distance on an article or a textbook to allow them to avoid agreeing with the points made in that article or textbook. This explains why students often find themselves agreeing with whatever was said in the last thing they read. They have no alternative but to agree because they can’t get far enough away from whatever they are reading to do anything else. How can you avoid this problem? For example, consider this (imaginary) case. David Wilson was a policeman who had recently broken up with his girlfriend. One day – while he was on duty – he saw his ex-girlfriend with her new boyfriend, Harry Young. Wilson went up to Young and told him to stay away from ‘his’ girlfriend. Young told him to mind his own business. Wilson arrested Young. When Young asked Wilson what he was being arrested for, Wilson replied, ‘We’ll work that out later.’ Wilson took Young to his police station and had Young locked up in one of the cells. Young was only released three hours later, without charge, when he insisted on seeing his solicitor. Young sued Wilson for damages on the ground that Wilson had ‘falsely imprisoned’ him by wrongfully arresting him and locking him up. The judge awarded Young £1,000 in damages to compensate him for the fact that he had been wrongfully arrested and locked up; £2,000 as damages for the outrage and distress he felt at being treated in the way he had been by Wilson; and £7,000 in ‘punitive damages’ to punish Wilson for abusing his position. Professor Brown has criticised the fact that Young was awarded £7,000 in punitive damages: he says that punitive damages should not have been awarded. Now instead of just blindly agreeing with Professor Brown, you should always ask yourself two things. First of all, has Professor Brown made a workable argument in favour of his position? Secondly, are any of the workable arguments that Professor Brown has made in favour of his 129
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position valid? Only if the answer to both questions is ‘yes’ should you agree with Professor Brown. If the answer to either question is ‘no’ then Professor Brown has given you no reason to agree with his position. That does not necessarily mean that his position is wrong – it just means that Professor Brown’s arguments in favour of that position are fatally flawed. Let’s look at each of these questions in turn.
Workable and unworkable arguments An argument cannot be accepted if it is unworkable. An unworkable argument is completely worthless. Unworkable arguments take two different forms: Circular arguments The technical definition of a circular argument is – one which presupposes the truth of that which is being argued for. This is a bit difficult to understand, so let’s consider a concrete example. Suppose that you know two sisters called Mikayla and Helayna. They are arguing over who should get to wear a particular dress to some dance. In an attempt to resolve the argument you ask each of them to state their case as to why they should get to wear the dress. Mikayla stands up and says, ‘I should get to wear the dress because it would be better if I wore it.’ That’s a circular argument – she’s essentially saying that, all things considered, it would be preferable to allow her to wear the dress, when that is precisely the thing that has to be established. So suppose Professor Brown argued, ‘The judge should not have awarded any punitive damages to the claimant in Young v Wilson. In awarding damages in a civil case, judges should simply award claimants damages to compensate them for the harm they have suffered: they should leave the job of punishing people for the way they have behaved up to the criminal law.’ That’s a circular, and therefore unworkable, argument. Professor Brown is essentially saying: ‘The decision to award punitive damages in Young v Wilson was wrong because punitive damages should not be awarded in cases like Young v Wilson.’ That’s not an argument, that’s just an assertion. 130
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Illogical arguments The technical definition of an illogical argument is – one which reaches a conclusion that is not supported by its premises. Suppose, for example, that in our case of the two sisters, you invite both of them to have a think and come up with some better arguments why they should get to wear the dress over which they are arguing. Helayna stands up and says, ‘I should be allowed to wear the dress because all of my friends are allowed to wear whatever dresses they like.’ This is an illogical argument: the fact that Helayna’s friends are allowed to wear whatever dresses they like doesn’t give us any reason to think that Helayna should be allowed to wear whatever dress she likes. Now – let’s suppose that Professor Brown argued, ‘The decision to award punitive damages in Young v Wilson is regrettable. Awards of such damages are unheard of in other European countries. So allowing an award of punitive damages in cases like Young v Wilson puts us fundamentally out of line with our European partners.’ Again, this is an illogical argument. The fact that punitive damages are not awarded in civil cases in countries like France or Germany doesn’t give us any reason to think that we should stop awarding them here. Maybe we are in the right and our Continental friends should start following our example.
So those are two different kinds of unworkable arguments. You might well think that whenever you are confronted with an argument in a textbook or an article, you won’t need to test for whether it is workable. Surely, you are probably thinking, no reputable academic would ever make an argument that is circular or illogical? Well, you’d be surprised. Certainly, you should never assume that an argument by a legal academic – however famous and well-honoured – will not be unworkable. Valid and invalid arguments A workable argument must not be accepted if it is invalid. To find out whether a workable argument is valid, you must write out the premises 131
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underlying the argument and see if any of them are untrue. If even one of the premises turns out to be untrue, then the argument is invalid and cannot be accepted. If all of the premises are correct, then the argument is valid and must be accepted. For example, let’s go back to Mikayla and Helayna’s quarrel over who will wear the dress to the dance. Suppose Mikayla argues: ‘I should get to wear the dress because last time we went out to a party, Helayna wore that dress and it’s my turn now.’ This is a perfectly workable argument. Unpacked, it goes as follows:
1 Helayna and I should take turns wearing the dress to special events.
2 Helayna wore the dress to the last special event we went to. Therefore,
3 I should wear the dress tonight.
This argument isn’t circular (it doesn’t assume that Mikayla should get to wear the dress). And it isn’t illogical – if 1 and 2 are true, then 3 must also be true. But suppose it turns out that 2 is not true – that actually it was Mikayla who wore the dress to the last special event. In that case the whole argument falls down. It is invalid and must be dismissed. Now suppose that Professor Brown argued, ‘The award of punitive damages in Young v Wilson has set a regrettable precedent. Police officers will now be deterred from doing their duty for fear that they may end up having to pay punitive damages to the people they arrest.’ Unpacked, Professor Brown’s argument against the award of punitive damages in Young v Wilson goes as follows: 1 The law should not deter police officers from doing their duty. 2 The award of punitive damages in Young v Wilson will have the effect of discouraging police officers from arresting people, for fear that if they do so they may end up having to pay punitive damages to the people they arrest.
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Therefore,
3 Punitive damages should not have been awarded in Young v Wilson.
This argument isn’t circular or illogical – but it looks invalid. Premise 2 of the argument looks incorrect. A police officer doing her duty won’t really fear that she might have to end up having to pay punitive damages to any of the people she arrests, given that such damages would only be awarded against a police officer if she consciously abused her position by wrongfully arresting someone else. A much stronger argument against the award of punitive damages in Young v Wilson would go something like this: 1 Let’s assume that it’s true of an average policeman that only 2% of the people he arrests each year will attempt to sue him for damages if all they can sue for is compensatory damages; whereas 10% of the people he arrests each year will attempt to sue him for damages if there’s a chance they might be able to sue him for punitive damages as well as compensatory damages.
2 Let’s also assume that the average policeman regards it as an acceptable risk of the job to be sued by five of the people he arrests each year; however, he will take active steps to avoid being sued by more than five arrestees each year.
3 It follows that if we allow punitive damages to be awarded against the police, our average policeman will not be willing to arrest more than 50 people a year (because 10% of those people will attempt to sue him for damages and he does not want to be sued by more than five arrestees a year). In contrast, if we did not allow punitive damages to be awarded against the police, our average policeman would be willing to arrest 250 people a year (because only 2% of those people will attempt to sue him for damages, with the result that he can arrest 250 people a year without incurring more than five lawsuits a year).
4 It follows that allowing punitive damages to be awarded against the police will deter police officers from doing their duty.
5 The law should not deter police officers from doing their duty.
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Therefore,
6 Punitive damages should not have been awarded in Young v Wilson.
This is a much stronger argument because none of its premises look obviously wrong. Of course the figures supplied in 2 and 3 may be wrong. However, it doesn’t seem implausible to suggest that a police officer runs a greater risk of being sued for damages by his arrestees if there’s a prospect that an arrestee might be able to gain a big ‘pay-off ’ in the form of punitive damages if he sues the police officer for damages. And it doesn’t seem implausible to suggest that a police officer will take account of that fact and cut his arrest rates in order to keep the number of lawsuits that are launched against him down to an acceptable level. So does that mean we have to accept this argument against the decision to award punitive damages in Young v Wilson? Not necessarily. Often the weakest point in an argument is the one which looks the most innocuous and reasonable. It slips by without drawing any attention to itself – when in fact it is the one point in the argument that needs to be subjected to the most searching scrutiny. Have a look at step 5 in the argument again: ‘The law should not deter police officers from doing their duty.’ How reasonable, how sensible this seems! It’s not even worth thinking about whether this is incorrect! But it’s precisely when you stop thinking that you are most vulnerable to making a mistake. So think: is it right to say that, ‘The law should not deter police officers from doing their duty’? If the law’s doing x will have the effect of deterring police officers from doing their duty, would it always be wrong for the law to do x? Surely the answer is ‘no’. It may be that the law’s doing x will secure some great good which will outweigh the harm that the law’s doing x will do to the efficient workings of the police service. So it’s too simplistic to say that, ‘The law should not deter police officers from doing their duty.’ The better view is that, ‘If the law’s doing x will have the effect of deterring the police from doing their duty, the law should not do x unless doing x will produce some good that will outweigh the harm that doing x will do to the way the police work.’ 134
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So as things turn out, our ‘strong’ argument against the award of punitive damages in Young v Wilson is actually invalid. Step 5 in the argument is incorrect. It may on occasion be justifiable for the law to do something that will have the effect of deterring police officers from doing their duty. It follows that even if it’s true (as it probably is) that allowing awards of punitive damages to be made against the police will have the effect of deterring the police from making lots of arrests, that does not necessarily mean that it’s wrong to allow awards of punitive damages to be made against the police. It all depends on what good is produced by allowing such awards to be made against the police and whether that good outweighs the harm that allowing such awards to be made does to police efficiency. But I’ll leave you to think about that and work it out. Making notes about arguments So suppose that in your files you have the following note: ‘Professor Brown says award of punitive damages in Young v Wilson regrettable because (i) . . . (ii) . . . (iii) . . .’ where (i), (ii) and (iii) are arguments advanced by Professor Brown in favour of the view that punitive damages should not have been awarded in that case. You must not leave the matter there. You must first see if any of (i), (ii) or (iii) are unworkable arguments. If any of them are unworkable, then make a note of that (and the reason why the argument in question is unworkable) in the appropriate places. You must then take the remaining arguments and see if any of them are valid. If any of the arguments are invalid make a note of that (and the reason why the argument in question is invalid) in the appropriate places. Make sure that you make a note of the outcome of your inquiry. If any of Professor Brown’s arguments are workable and valid, then Professor Brown’s position must be accepted. In contrast, if none of Professor Brown’s arguments are workable and valid, then Professor Brown has given you no reason to accept his position. You should also make notes of any relevant points or arguments that have occurred to you in the course of examining Professor Brown’s arguments. 135
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Why is it important to do this? Now I promised a little while ago that I would tell you why you should do all this. There are four reasons:
1 Your notes will have a lot more depth to them if you do this sort of thing. Instead of just saying, ‘Professor Brown says award of punitive damages in Young v Wilson regrettable because (i) . . . (ii) . . . (iii) . . .’ they will also tell you which of Professor Brown’s arguments are unworkable (and why), which of his arguments are invalid (and why), and whether you should agree with Professor Brown on this issue (and why). They will also contain notes on any points or arguments that occurred to you in the course of thinking about Professor Brown’s position.
2 Your own views about the law will be greatly developed by going through this kind of process. By asking whether Professor Brown’s views should be accepted, you develop your own views. You are forced to confront questions about what the law should do, what its priorities should be, how it should resolve a trade-off between protecting individual rights (not to be wrongfully arrested) and the public interest (in having an efficient police force). You are forced to reach conclusions on those issues. Very quickly, you will become a much more interesting law student – you will have views of your own, views which aren’t just borrowed from others and wheeled out half-heartedly when the situation demands.
3 If you get into the habit of testing other people’s arguments to see whether they are workable and valid, it will become secondnature to you to test your own arguments to see whether they are workable and valid. You will stop advancing unworkable arguments in favour of your views and you will start trying to ensure that the workable arguments that you advance in favour of your views are also valid. As a result, any essays you write will be greatly improved.
4 If you can say in an exam, ‘Professor Brown argues that the law on punitive damages – as illustrated in Young v Wilson – is in need of reform because (i) . . . (ii) . . . and (iii) . . .’ that’s impressive. It shows you have done some reading and understood what you
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have read. But if you can go on to say: ‘However, none of these arguments stand up to scrutiny. His first argument is circular . . . His second argument is illogical . . . His third argument is based on an insistence that the law should not do anything to impair the efficiency of the workings of the police force. However, it is doubtful whether this is true . . .’ – that is seriously impressive, and you will be awarded very high marks.
This has been a long letter. But I’m not finished yet with giving you advice on how you should approach your studies. Give me a couple of days and I’ll e-mail you with some guidance on reading cases and statutes. Best wishes,
Nick
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Reading Cases and Statutes Dear Sam, Sorry it’s taken me a couple of weeks, rather than a couple of days, to get back to you with some advice on how you should approach the job of reading cases and statutes. As you’ll see, I had so much to say in this letter that it took me some time to write. Anyway, I hope you’ll find it’s been worth the wait!
Cases Let’s start with a very basic question. Why should you read cases? After all, many law students can do an entire law degree without reading any cases whatsoever – they simply rely on textbooks and potted summaries of the law to get them through the course. I suppose there are five reasons why it’s important that you should read cases: 1 By reading cases you get an education in how lawyers think and rea-
son. Read any case. Look at the facts of the case. Look at how the judge lays out the legal questions raised by those facts. Look at how he goes through the previously decided cases and statutes that are relevant to those legal questions. Look at how he discovers from those cases and statutes a legal rule or principle that can be used to resolve those questions. Look at how he checks that rule or principle to ensure that it is sound – that a special exception to it shouldn’t be created in this case 139
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to ensure that it doesn’t work an injustice. Look at how the judge, reassured, applies the rule or principle and moves towards a conclusion. You will have to do exactly the same thing whenever you are asked to give an opinion as to what the law says in a particular situation. So reading cases helps educate you how to be a lawyer. What would we think of a trainee surgeon who, on being invited to watch a particularly tricky operation so that he can learn from the experience, replies, ‘Sorry, no – I never watch other people operating’? Well, a student who doesn’t read cases is no different. 2 Cases are treasure houses of important insights into the law. They con-
tain hosts of observations from judges about: how the law should be reformed why the law should not be reformed in a certain way how the law might develop in the future what the law might say in certain hypothetical situations that might
become the focus of a case (or a problem question in an exam) in the future what principles underlie the law why the law has developed in the way it has why the decision in a particular case that was decided in the past was
fundamentally flawed with the result that the case should be ignored why a particular case that was decided in the past is extremely
important and so on, and so on. If you don’t read cases you are turning your back on all these insights and your notes will be much the poorer for it. 3 Reading cases encourages you to think about the law. If you read a line
of cases, you start to think – how do these cases fit together? Does one principle underlie all of them or more than one? What principle or principles are at play here? By thinking in these terms, you enhance your understanding of the law and your interest in it. Again whenever, in the course of reading a case, you come across a judge criticising or defending the law, you should adopt exactly the same procedure as I suggested you adopt when you come across an 140
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academic criticising or defending the law in a textbook or an article. You shouldn’t just make a note of the judge’s criticism or defence and then move on – you should pause to think about whether you agree with the judge. And in the process of thinking about whether you agree with the judge, your own views about the law will develop. If you don’t read cases, then you will miss out on lots of opportunities to deepen your understanding of the law and thereby increase your interest in it. 4 Reading cases helps you to see that in many situations, the legal out-
come of a case was not fixed in stone before the case was ever heard. Both sides to a case may have good arguments on their side. It’s simply not possible in many cases to predict what the judge will say. Reading cases makes you realise this – and that, in turn, will make you into a better student when answering problem questions. Instead of rushing into an answer that says, ‘D is definitely guilty of . . .’ or ‘D will undoubtedly be held liable to . . .’, you’ll be encouraged to think: ‘Hang on, can nothing be said here in D’s favour to get her off the hook?’ After all, in real life lawyers don’t usually say, ‘It’s a fair cop, my client’s guilty – you’d better get straight onto sentencing her’; neither do they usually say, ‘Yes – there’s no doubt my client’s liable. Why don’t you just get on and determine how much she should pay by way of damages?’ Right at the moment you look to see what can be said in D’s favour, you may see an argument for D that you would never have seen had you not been encouraged to realise, through the process of reading cases, that in many situations the law is not completely clear-cut. 5 Reading cases makes studying law more interesting than it otherwise
would be. You get to see how the law has in the past impacted on real people’s lives, real people’s problems. The law comes to life in and through cases. Why wouldn’t you want to read cases? Cases are the soul of the law – without them, the law can become very dull and turgid. 6 You are going to have to read cases at some point in your life – so why
not start now and become an expert at reading them? If you are going to be a practising lawyer, you are simply going to have to be able to read cases – to be able to make arguments in court, to give clients legal advice, and generally to keep up to date with recent 141
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developments in the law. Given this, you should really try to acquire the skill of reading cases while you are at university and have a fair amount of time in which to do so – the alternative is to try and acquire the skill in just a few days when you start practising as a lawyer. Even if you are not going to be a practising lawyer, to prepare for your exams you are going to have to be well-acquainted with all the recent cases that came out about the time the exams were set and will undoubtedly have provided the examiners with much inspiration when setting questions. How are you going to get acquainted with those cases except by reading them? You certainly won’t find those cases in your textbook or casebook, both of which were probably published two or three years ago. So the argument for reading cases is overwhelming. How, then, should you approach the task of reading a case? Well, in each of my last two letters, I’ve laid down the basic approach. Your reading of a case should be question-driven. You should be asking yourself as you are going through a case: Why is this case important? Why was this case decided the way it was? Where does this case fit in? What would have happened had the facts been different? Does the case contain any interesting dicta? Can we criticise the way this case was decided? Does this case have anything relevant to say about any of the questions in my topic file? You should be seeking out answers to all these questions and making notes of the answers in your case file and, where necessary, your topic file. Now for some tips on reading cases. 1 Don’t get discouraged Reading cases is a bit like riding a bike. When you start reading cases, you don’t get very far and the whole process is quite painful. But if you stick at it, I promise things will get better and you will find that reading cases gets easier and easier – and pretty soon you’ll be flying through them. But you’ll never get to that stage of development unless you are willing to grit your teeth and go through the pains involved in reading them for the first time. 2 The facts of a case It’s almost always a good idea to make a note of the facts of a case in your case file. (I make an exception for minor cases which are only important 142
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because they established some small legal rule or cleared up some small point which was previously undecided.) You shouldn’t try and get the facts of the case from the judgments in that case – the facts, as set out in the judgments, will be far too long-winded. Instead, look at the brief summary of the case which you will always find at the start. This brief summary is called the ‘headnote’. The headnote will usually summarise the facts adequately enough for your purpose. But don’t just copy the facts as set out in the headnote. Try and reduce the summary of the facts still further (this will usually be possible) and use your own words. Forcing yourself to do this will help ensure that you fully understand the facts. Having said this, some modern cases are so complicated that the headnote and even a look at the judgments won’t leave you any the wiser as to what actually happened in the case. In this situation, you should try and see if anyone has written a casenote on the case you are reading. A casenote consists in a summary of, and comments on, a case. The Law Quarterly Review and the Cambridge Law Journal are a good source of casenotes. You can also find casenotes (in smaller quantities) in the Modern Law Review. A search on Westlaw UK (inserting the name of the case into the ‘Legal Journals Index’) will tell you where casenotes on a particular case have been published. If you find a casenote on the case you are reading it will probably provide you with a good, clear summary of the facts of the case that you can use as a basis for your own summary. 3 Don’t feel you have to read everything Having said so much to encourage you to read cases, I have to admit that there is usually quite a lot of ‘fluff ’ in a case that you can skip over when reading it. You can skip over three things in particular: the judges’ explanations of the facts of the case (you will have already got the facts from the headnote or a casenote)
any parts of the case that deal with legal issues that have no relevance to the topics or issues that you are reading the case to find out about
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any quotations from previously decided cases – you are interested in what the judges said in this case, not what judges said in previous cases. (You can easily spot when a judge is quoting from another case because the text of the judgment will be indented at that point – so if you see an entire page where the text is indented, just flick past it.)
Don’t feel at all bad about simply flicking over pages where the judges are clearly simply talking about the facts or some legal issue that is irrelevant to you or quoting from other cases. Learning to do this is an essential part of learning how to read cases quickly. 4 Picking what cases to read Your textbooks, lecture lists and any reading lists you have been given should alert you to what are the most important cases to read when studying a particular area of the law. But don’t just read the cases that an average student studying that area of the law could be expected to know about. If you want to do well in your studies, you’ve got to do more than and know more than the average student. So be on the lookout for interesting cases that relate to the area of the law that you are looking into, but which you might not be expected to know about. Don’t limit yourself to UK cases. Knowing about a few relevant Australian, Canadian or US cases can add greatly to your understanding of the area of the law under review and help you make a good impression on the examiners. Also look on Westlaw to see if any very recent cases (that inevitably won’t feature in any of your textbooks or casebooks) have been decided that affect the area of law that you are studying. When setting questions, examiners often draw inspiration from the most recently decided cases – so knowing about those cases will give you a crucial advantage in the exam. Now I’m not going to lie to you – if you want to follow my advice, then you are going to have to read a lot of cases. If you find the idea of doing this a bit offputting, then please bear in mind the following:
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As you read more cases, your understanding of the law will get better and better and, as a result, you will like studying law more and more. So reading a lot of cases is actually the best way of ensuring that you enjoy studying law.
As you read more cases, you will become faster and faster at reading them. As a result, someone who only reads five cases a day can in fact take as much time to read those cases as someone who reads 15 or 20 cases a day. So reading lots of cases helps you to make the most of the study time available to you.
It’s always open to you to share the load involved in reading cases by forming a study group with five or six other (reliable) people. You could agree to read ten cases each on a particular subject and then share your notes. If you are used to reading lots of cases, it should take you a maximum of two days get through ten cases – only one day if you work hard. So after one or two days, each of the members of your study group would end up having files on 50 to 60 cases, depending on the size of the group. This is far more than any one student working alone could be expected to master and will give you a big advantage in the exams.
5 Headnotes It shouldn’t be necessary for me to make this point if you’ve followed what I’ve said so far, but I’d like to warn you off the habit some students fall into of making notes on a case by simply copying out or summarising the headnote at the start of the case. Doing this is a waste of time. It’s doubtful whether anyone who merely reads the headnote of a case will be able to answer more than two of the seven questions that you should be thinking about and trying to answer whenever you read a case. 6 Casenotes If you’ve read and taken notes on a case that is quite important, it’s worth spending a little time finding one or two casenotes on the case and adding to your notes on the case any points (and supporting arguments) made in
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those casenotes. (Make sure that any casenotes you read are actually on the case you are taking notes on. If the case you are reading is the decision of the House of Lords in a particular case, don’t read a casenote on the decision of the Court of Appeal in the same case.) This will help deepen your understanding of the case and its merits and faults. However, don’t believe everything you read in a casenote. A lot of casenotes are dashed off to meet a deadline set by the journal that has commissioned the casenote. The result is that casenotes can sometimes be quite superficial and ill thought out. So every time you come across an author claiming in a casenote that the decision in a particular case was unsatisfactory for various reasons, make a note of that – but also always ask yourself whether the author’s arguments stand up to scrutiny. 7 Casebooks There are now casebooks available covering every area of English law. These reproduce excerpts from important cases in a particular area of law, usually alongside short summaries of other relevant cases, as well as some commentary on the cases and the way they were decided. Students often find using casebooks a useful substitute to reading cases in the law reports. (And, indeed, many students never ever read cases in the law reports, but simply rely on casebooks to improve their knowledge of the case law affecting a particular area of law.) It’s easy to see why. Instead of searching through a report of a case to find passages that are relevant to the topic or issue you are looking into, a casebook does the hard work for you, finds the relevant passages and presents them to you on a plate. Despite their usefulness, it’s dangerous to rely on casebooks too much. First of all, there is a limit to how much material from a case can be set out in a casebook. A typical case will be about 25 pages long in a law report. Of course, the editors of a casebook won’t reproduce the whole case because doing so won’t leave them room to cover that many cases in their casebook. So they’ll be looking to get their coverage of the case down to about five pages. To reduce 25 pages to five you have to cut a lot of material and some of the material that’s left on the floor can be very useful. So if you rely exclusively on a casebook to read a particular case, you can often miss out on some very useful dicta and ideas in the judgments in that case. 146
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Secondly, there is a natural limit on how many cases can be dealt with in any casebook. Let’s assume that you are using a giant casebook on a particular subject – about 800 pages long. Let’s assume that 200 pages are taken up with the editors’ comments on cases, short summaries of the outcome of various minor cases and introductions to particular areas of law. That leaves 600 pages for excerpts from the big, important cases affecting the subject you are studying. At five pages a case, your giant casebook will only cover about 120 cases. This sounds like a large number, but it isn’t. A comprehensive reading list on a particular subject will probably require the reader to look at twice that number of cases. So it’s unlikely that even the largest casebook will cover all of the cases that you need to know about for your studies. Thirdly, and finally, it can be good for you to have to search through case reports yourself to find the passages that are relevant to the topic or issue that you are studying. It helps develop your skills at reading cases and finding your way around them – and it also means you get a bit more satisfaction out of reading cases. However, I must emphasise that I don’t want to put you off looking at casebooks entirely. As I said, they can be very useful at helping you see why exactly a case is significant. In addition, some of them provide the reader with a lot of stimulating and interesting commentary on the law. (I am thinking in particular here of Tony Weir’s classic A Casebook on Tort, 10th edition (Sweet & Maxwell, 2004), which is well worth reading for the comments alone.) Further, in certain subjects such as international law (where the official case reports are ridiculously long), casebooks are indispensable. Finally, if you don’t have access to a decent law library with a full set of law reports, casebooks are a lifesaver. 8 Remembering cases Students often find it a challenge to remember cases. Cases are a lot like small, shiny beads. If I told you to hold out your hand and I poured 50 such beads into it, it’s doubtful whether you’d be able to keep hold of more than ten of them. All the rest would simply bounce out of your hand and fall onto the floor. But if I ran a string through 50 beads and tied the two ends of the string together, you’d have no problem keeping hold of all 147
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of the beads in one hand. In fact, all you’d have to do is hold one of the beads and the rest would be under your control. Cases are the same. If you try and remember them individually, the likelihood is that you’ll only remember one-fifth of them. But string them together and you won’t forget a single case. So how do you string cases together? Well, what you’ve got to do is come up with a story that helps explain why the cases were decided the way they were. Say you’ve got 15 cases to remember and those cases were decided over 40 years. There are a number of different stories that you could tell to try and link these cases together. For example, try and see if the decisions in those cases were affected by political ideas and views that held sway at the time those cases were decided. If they were, then you’ve got a story onto which you can thread your 15 cases. You can say: ‘In the 1950s and ’60s, the political consensus was that the interests of society were very much more important than the interests of the individual and you can see the judges giving effect to that consensus in cases A, B and C. But that consensus started to break down in the 1970s, and by the ’80s, there was a new emphasis on protecting the interests of the individual and letting society “look after itself ” – and the decisions in cases X, Y and Z illustrate that new consensus at work.’ Alternatively, you could try and come up with a principle or policy that underlies almost all of the 15 cases. If you can, then again you’ve got a story that can link all of your cases – even the ones that don’t give effect to the principle or policy in question. You could say: ‘Almost all of these cases give effect to the following principle/policy . . . For example, in case A . . . Similarly, in case B . . . This is also true of case C . . . However in cases X, Y and Z the courts chose not to give effect to this principle/policy. For example, had the courts given effect to this principle/policy in case X, we would have expected them to find in favour of . . . But they didn’t . . . Similarly, in case Y . . .’ A more radical version of the same story would identify a fundamental conflict in the law – with roughly half of your 15 cases giving effect to one principle or policy and the other half giving effect to a completely different and opposed principle or policy. A ‘battle of the cases’ story line can prove very 148
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effective at helping you to remember a large number of cases because battles are always interesting and therefore memorable. But don’t invent battles where none exist – the story that you come up with to link your cases must actually work. Otherwise the story will have no plausibility and will be extremely hard to remember – just as it’s hard to remember the details of a crazy dream where all sorts of people were acting in odd ways. A third possible story line is to link your 15 cases to one ‘master’ case, which all your 15 cases have ‘descended’ from. For example, a very effective story line that would link your 15 cases together might go, ‘In Roe v Doe, the House of Lords decided that . . . Applying this decision has created huge problems for the courts ever since. In case A, the courts applied Roe v Doe to find . . . But in the very similar case B, the courts came to a very different conclusion, holding that . . .’ and so on. A fourth possible story line that could help you link your 15 cases may be provided by the way the cases were decided. In some of the cases did the judges adopt a very formalistic approach and decide the case by simply applying the law as it was established at the time? In the other cases, did the judges adopt a much more substantive approach and simply decide the case on its merits, not paying much regard to what the established law said? If so, then you again have a story that you can use to provide a link between your 15 cases. You can say, ‘Well, in cases A, B and C the judges adopted a very formalistic approach to deciding the cases, but in time they gradually loosened up and became much more willing to depart from the established law if the merits of case demanded it – cases X, Y and Z are examples of that.’
So if you want to remember lots of cases, remember them in groups, where each group of cases is linked by a story that helps explain why they were decided the way they were. (This is why it’s so important to ask yourself whenever you are reading a case – Where does this case fit in?) Remembering cases in this way will not only work wonders for your ability to recall cases in the end-of-year exams but it will also, of course, help deepen your understanding of, and interest in, the law. Which is all to the good.
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One last point on this – don’t miss out on any opportunity to use cases. Talk about them with your fellow lawyers. Form study groups where you can have regular discussions about them. Participate in moots where you will be called upon to use cases. Write as many essays and problem answers as you can – even if no one else ever sees them. Take advantage of any chance you get to talk about or write about cases you have studied. The more you use cases, the more deeply they will penetrate into your memory. 9 Ratio decidendi If you’ve read any introductory books on studying law, you may have been expecting me to give you some advice in this section on how you discover the ratio decidendi of a case. (Just in case you haven’t read any introductory books on studying law, the ratio decidendi – or ratio for short – of a case is the rule of law that underlay the decision in that case.) In practical terms, the only time you’ll ever have to worry about finding the ratio of a case is after you’ve left university and started practising law. If you are arguing a case in court, you may well be called upon to discuss what the ratio of a case was. For example, suppose there is a dictum in a previously decided case that is unhelpful to your argument. If you can establish that the dictum was obiter – that is, not essential to the outcome of the case (in other words, not part of the ratio of the case) – then you can invite the court deciding your case to disregard that dictum. Alternatively, suppose there is a dictum in a previously decided case that is very helpful to your argument. In that situation, you will want to establish that that dictum was part of the ratio of the case – with the result that the court before which you are arguing your case may be bound to apply it. But as a law student, you’ll never have to spend time determining what the ratio of a case was – so I don’t think I should waste your time discussing such things as how you determine what the ratio of a case was when three judges all decided the case in the same way but they all gave different reasons for their decision. Instead, I’ll now move on to talk about how you should approach the job of reading a statute. 150
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Statutes Students find reading statutes extremely boring. Unlike cases, statutes tend to be very dry and technical. As a result, it’s hard to work up any enthusiasm for reading a statute and it’s even harder to remember a statute once you’ve read it. I’m not going to pretend that I have any magic method for taking the pain out of reading statutes, but following the approach below will inject a little bit of interest into the process and make the job of remembering what that statute says a bit easier. Suppose you have been told to read a statute or some sections from a statute. (You may not be familiar with the term ‘section’, so I’ll briefly explain. Every Act of Parliament is made up of sections, or ‘s.’ for short. A section in an Act of Parliament is usually divided up into sub-sections, where each sub-section is denoted by a number in brackets. So if you want to refer to sub-section 1 of section 1 of the Guard Dogs Act 1975, you would simply write ‘s.1(1) of the Guard Dogs Act 1975’.) Of course, you shouldn’t just read the statute – you should also make some notes about it in your case file. (Remember, ‘case file’ is short for ‘cases and statutes file’.) Now, in making notes on the statute, you shouldn’t try to summarise what the statute says. There’s a very good saying that ‘You can’t paraphrase a statute’. In other words, if you attempt to summarise what a statute says, your summary will always omit some crucial details. And if you attempt to avoid missing out any crucial details in making your summary, you will usually simply end up copying out the statute. And copying out the statute is the last thing you want to do. Copying out a statute is such a passive activity that you will simply get bored, your brain will shut up shop and you won’t take in anything of what the statute says. So how should you make notes on a statute? Well, you’ll probably not be surprised to hear me say that your notes on a statute should be questiondriven. Suppose that you have been told to read sections 1–10 of the Theft Act 1968. Take a separate A4 sheet for each section. Write the name and title of the section in the middle of the sheet. (The title of the section is literally that – the short title that appears above the section.) Around the name write five questions: 151
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1 Why was this section enacted? 2 How does this section apply in concrete situations? 3 Why does this section go as far as it does? 4 Why doesn’t this section go further than it does? 5 Is this section in need of reform?
Then, on the same A4 sheet, make notes on the answers to these questions by consulting the statute, textbooks, articles, your brain and a very useful publication called Current Law Statutes (which provides the reader with comments on virtually every section in an Act of Parliament). Let’s now look at these five questions in more detail, by seeing how they would apply to certain sections of the Theft Act 1968. 1 Why was this section enacted? Section 1(1) of the Theft Act 1968 (title: ‘Basic definition of theft’) provides that: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “theft” and “steal” shall be construed accordingly.
If you are told to read s.1(1) of the Theft Act 1968, the first thing you should do is ask yourself: Why has this section been enacted? Why does the law criminalise the dishonest appropriation of property belonging to another when that property was appropriated with the intention of permanently depriving that other of it? Why doesn’t the law simply allow the owner to sue for her property back – why does the criminal law have to get involved here at all? Use your textbook, your brain, any relevant articles you have read, Current Law Statutes and any relevant dicta in any relevant cases you have read to come up with some answers to these questions and make notes of the answers in the appropriate place in your case file. No doubt the answers to these questions are pretty obvious. However, the important thing is that by asking these questions, you are thinking about s.1(1) of the Theft Act 1968 instead of just passively reading it. And your thinking about s.1(1) is doing three things: 152
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1 It is helping to make s.1(1) more interesting and therefore more enjoy-
able to read. 2 It is deepening your understanding of s.1(1), thus putting you in a
great position to answer questions about it later. 3 It is helping to cement the place of s.1(1) in your memory, which again
is helping to put you in a great position to answer questions about it later. 2 How does this section apply in concrete situations? Section 2 of the Theft Act 1968 (title: “ ‘Dishonestly’ ”) provides that:
(1) A person’s appropriation of property belonging to another is not to be regarded as dishonest –
(a) if he appropriates property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b) if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c) (except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.
(2) A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property.
Let’s assume you’ve considered why this section has been enacted. Now you’ve got to ask yourself – How does this section apply in concrete situations? To answer this question, you should come up with a number of different hypothetical scenarios and see how the section applies in each of them. You should consider at least as many scenarios as there are rules laid down in the section. So for a section like this – which lays down four rules – you should probably make notes on how the section will apply in at least four different hypothetical scenarios. But to really come to grips 153
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with this section, you should probably consider how it applies in eight different hypothetical situations. Try and think up the scenarios yourself and make them as memorable as possible by using the names of people you know about, preferably doing things that they would never do in real life. (These kinds of scenarios will stay longer in your memory than scenarios that might have been supplied to you by a textbook.) Here are some examples of scenarios you might come up with: 1 Peter realises that a DVD in a shop has been wrongly priced as being for sale for £1.59, rather than £15.99 (which is what other identical DVDs are being sold for in the shop). He takes the DVD up to the counter and pays £1.59 for it.
2 Hannah finds a wallet that has been dropped in the street. There is a £20 note in it. She hands the wallet in at a nearby police station but keeps the £20 note as a ‘finder’s fee’.
3 Megan, a student living in college, makes a cake for everyone on her staircase using ingredients that she has found in the fridge that everyone on the staircase uses to keep their food in. None of the ingredients belong to her, but she figures that as everyone on the staircase is going to get to eat some of the cake, the rightful owner of the ingredients won’t mind her using them.
4 Hugh owes Beka £5 but is refusing to pay up. Beka takes one of Hugh’s DVDs out of his room when he isn’t looking and auctions it on eBay. Someone pays her £10 for the DVD. Beka keeps £5 and slips the remaining £5 into Hugh’s wallet when he isn’t looking.
5 Maryam has read a textbook on ‘Natural Law’ which says that ‘no law is valid if it is contrary to the will of God’. Believing that God desires all living creatures to be free, she releases Clare’s parrot into the wild.
Having come up with some such scenarios, work out when s.2 will apply to acquit someone of being dishonest in these scenarios – and when it won’t. (To do this, make use of your textbooks, any relevant articles, Current Law Statutes, your brain and – importantly – any cases that have helped clarify how s.2 of the Theft Act 1968 is to be applied.) In your 154
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notes, make a note of these scenarios, how s.2 will apply in them, and the reason it applies or does not apply in each of them. It may be pretty obvious how s.2 will apply in the above scenarios. But the point of going through these scenarios isn’t to anticipate potential problem questions that you might be asked in the exam – exam questions will probably pose more tricky issues than the scenarios set out above. The point of going through these scenarios is to get a solid grasp of how s.2 of the Theft Act 1968 applies in concrete situations. This will help you to remember how s.2 works. This, in turn, will help you apply s.2 with confidence when you are faced with trickier problem questions about s.2 in the end-of-year exam. 3 Why does this section go as far as it does? Section 3(1) of the Theft Act 1968 (title: “ ‘Appropriates’ ”) provides that:
Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it, any later assumption of a right to it by keeping or dealing with it as owner.
Let’s assume you’ve considered why this section has been enacted and have got a good grasp of how it applies in concrete situations. The third question you have to ask yourself is – Why does this section go as far as it does? You will have discovered in considering the second question (How does this section apply?) that the case law seems to suggest that merely touching an item of property will amount to an ‘appropriation’ of an object. Why should merely touching an item of property potentially amount to a criminal act? Or was s.3(1) never intended to have that effect? Have the courts misinterpreted it? Again, make notes on the answers to these questions using your textbooks, any relevant articles, any relevant dicta in any relevant cases, Current Law Statutes and your brain. Asking and answering these questions will: help you to remember what s.3(1) says deepen your understanding of, and interest in, s.3(1) 155
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put you in a good position to answer our fifth question about s.3(1) (Is
this section in need of reform?) put you in a great position to answer any essay questions that might be
set on s.3(1) in the end-of-year exam. 4 Why doesn’t this section go further than it does? Section 4 of the Theft Act 1968 (title “ ‘Property’ ”) provides that:
(1) ‘Property’ includes money and all other property, real or personal, including things in action and other intangible property.
(2) A person cannot steal land. . . (3) A person who picks mushrooms growing wild on any land, or who picks flowers, fruit or foliage from a plant growing wild on any land, does not (although not in possession of the land) steal what he picks, unless he does it for reward or for sale or for other commercial purposes. For purposes of this subsection ‘mushroom’ includes any fungus, and ‘plant’ includes any shrub or tree.
(4) Wild creatures, tamed or untamed, shall be regarded as property; but a person cannot steal a wild creature not tamed nor ordinarily kept in captivity, or the [carcass] of any such creature, unless either it has been reduced into possession by or on behalf of another person and possession of it has not since been lost or abandoned, or another person is in the course of reducing it into possession.
Let’s assume you’ve taken notes on the first three questions relating to this section. So you can now move on to consider our fourth question: Why doesn’t this section go further than it does? This raises a host of sub-questions. Dead bodies don’t normally count as ‘property’ – so why doesn’t the law of theft cover someone’s taking away a dead body? Is it because there are already other areas of law that criminalise this sort of conduct? Information doesn’t normally count as ‘property’ – so why doesn’t the law of theft cover 156
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the situation where someone sneaks an advance peek at an exam paper or gives out advance copies of an exam paper to his friends? Why can’t someone steal land? (Note, however, that you can in certain situations – s.4(2) is quite long and to save space I have cut it down.) What would stealing land involve? Is this sort of conduct covered by some other area of the law? Why are you potentially guilty of theft if you pick wild mushrooms on someone else’s land for reward but not if you pick them to deprive the owner of the land of the opportunity to pick them herself? Is doing something for reward worse than doing something out of malice? The point of asking and trying to answer these questions should be obvious by now. Doing this will: help cement the details of s.4 into your memory deepen your understanding of – and therefore interest in – s.4 put you in a good position to answer our fifth question about s.4 (Is
this section in need of reform?) put you in a great position to answer any essay question that you might
be set on s.4. 5 Is this section in need of reform? Section 5(1) of the Theft Act 1968 (title: “‘Belonging to another’ ”) provides that:
Property shall be regarded as belonging to any person having possession or control of it, or having in it any proprietary right or interest (not being an equitable interest arising only from an agreement to transfer or grant an interest).
Let’s assume that you’ve run through the first four of our questions relating to this section. Having done so, you’ll have realised that s.5(1) means that someone can be convicted of theft for stealing his own property. This happened in one case where a man left his car with a garage to be repaired and after it had been repaired he drove the car away without paying for the repairs. Because the garage had possession and control of the car at the time 157
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the car-owner drove the car away, the courts held that the car ‘belonged’ to the garage under s.5(1) at the time it was driven away, with the result that the car’s owner could be convicted of stealing it. The fifth question you should ask yourself about this section and make notes on is: Is this section in need of reform? Is it right that someone can be convicted of stealing his own property? Should the law of theft go beyond protecting the ownership of property and help protect people’s possession of property? Asking these questions and trying to answer them (again, with the help of your textbooks, any relevant articles, any relevant dicta in any relevant cases and any thoughts you yourself might have) will help deepen your understanding of – and therefore interest in – the law of theft as a whole and its functions, putting you in a great position to answer essay questions either specifically on s.5 of the Theft Act 1968 or on the law of theft as a whole. Three further points So that’s the basic approach you should adopt in reading statutes (or statutory instruments, for that matter). I don’t have any further tips for you on how you should approach the job of reading a statute. However, there are three more points I want to make. 1 Statute books and the exams. Almost all universities now allow their law
students to take statute books into their exams so that they can consult them in the course of answering problem questions or writing essays. Given this, you may wonder if there is any point doing work which is geared to helping you to remember what particular statutes say. I think there is. The more time you spend in the exam looking through a statute book trying to find out what a particular statute says and trying to figure out how it applies, the less writing time you will have in the exam. You want to maximise the amount of writing time you have in your exams – so it is very important that by the time you do your exams, you have a good knowledge of all the statutes that you will need to know about for the exams. 2 Only look at statutes that you are going to be examined on. While I nor-
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do by your teachers, this doesn’t apply to statutes. There is no real point in knowing about a statute that isn’t going to figure in the exam – so unless you have been told about or asked to read a particular statute, the chances are that it’s not worth knowing about and you shouldn’t bother looking it up. 3 Statutory interpretation. Again, if you’ve read any introductory books
on studying law, you may have been expecting me to say something here on various techniques that can be used to interpret statutes, such as the ‘literal rule’ (where words in a statute are interpreted according to their plain meaning) or the ‘mischief rule’ (where words in a statute are interpreted in light of the problem or evil that the statute was trying to address) or the ‘golden rule’ (where the courts try to avoid interpreting words in a statute in a fatuous or stupid way). Again, I’m not going to waste your time by talking about such things. If a particular word in a statute is ambiguous or needs to be interpreted, your textbooks will give you sufficient guidance as to how that word has and should be interpreted. You won’t need to worry about what rule you should apply to interpret that word. This is something you may need to worry about if you are a practising lawyer advising people on how a new statute applies – but for the time being, you have better things to worry about.
Summary of This and the Previous Two Letters That concludes the third and final part of my guidance as to how you should approach your studies. I thought it might be helpful if I tried to sum up everything I’ve said in this and the last two letters in the form of ten rules. Here they are:
1 Never be passive. 2 Never work when you’re bored. 3 Always be asking questions. 4 Make connections between the things you read. 5 Make sure your notes are interesting. 6 Always think about what you read.
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7 Don’t ever assume that what you are reading must be correct. 8 Always be looking to rework and beef up your notes. 9 Always do more than your teachers expect of you. 10 Work with other people whenever you can.
If you forget everything else I’ve ever told you, don’t forget these ten rules. They are the key to ensuring that your experience of studying law will be interesting, stimulating and enjoyable. Best wishes,
Nick
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14
LETTER FOURTEEN
Getting the Most Out of Your Teachers Dear Sam, I thought, as a follow-up to my last three letters, I’d write to you with some advice about how you should approach lectures and small-group teaching sessions.
A Preliminary Point Before I get onto that, I want to emphasise one point. I once read somewhere that the difference between school and university is that at school you are a pupil and at university you are a student. Pupils learn by being taught; while students learn by studying – by finding out things for themselves. The distinction holds especially true of law students – as I said in a previous letter, law is probably the most self-taught subject that you can study at university. So you shouldn’t rely too much on lectures and smallgroup teaching sessions as a vehicle for finding out about the law. You should rather regard lectures and small-group teaching sessions as providing you with opportunities to pick up useful titbits of information and to test out your blossoming legal skills. But you mustn’t misunderstand me. I don’t want to encourage you to skip lectures and the small-group teaching sessions that have been laid on for you. While they are not an essential component of your legal education,
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they provide a very useful service that you should take full advantage of. But please remember that it is how much work you put in on your own – or in conjunction with your fellow students – that will determine how well you do in your exams, not how many lectures you have been to. If you are spending 60% of your ‘working time’ as a law student at lectures and small-group teaching sessions, and only 40% of the remaining time working on your own or with your fellow students – then you are in trouble. You are not giving yourself enough of an opportunity to develop as a law student by working away at the law yourself, rather than having it spoon-fed to you by your teachers. A healthier distribution of your working time to aim for is: spend 70% of your ‘working time’ studying on your own, or with your fellow students, and only 30% of your time attending lectures or small-group teaching sessions. If your university has laid on so many lectures for you to attend that this is impractical, think about splitting up the lectures with your fellow students so that you can cut down on the number you have to attend in person.
Lectures Okay – let’s get on with some guidance as to what you should be doing in lectures. Basically, you should be looking to make notes of points that will make useful additions to your topic and case files. So keep your ears open for: 1 Summaries of cases. These can be really useful, particularly if the lec-
turer is talking about a case which is very difficult to understand. Lecturers will usually work really hard to make cases comprehensible to the students that they are lecturing to – if only because it’s really embarrassing for a lecturer to speak to an audience that is looking at her with blank incomprehension. If a lecturer is explaining a case and some aspect of her explanation seems particularly obscure, do not hesitate to stick your hand up and ask her to express herself more clearly. Some lecturers don’t like to be interrupted by questions (though personally I welcome it – as I have already made clear, asking questions is much the most effective way of finding out about a subject). But you shouldn’t care about that – your lecturers are working for you, not the other way around. If you want to ask a question, you have a right to ask it and have it answered. 162
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2 Summaries of articles. Again, these are very useful – a really good sum-
mary of what an article says can make the actual article a breeze to read through subsequently. I should emphasise that if an article has been summed up very effectively in a lecture, I wouldn’t advise skipping the article in your subsequent reading on the basis that you already know what it says. However effective the summary, it is only a summary and there may be more in the actual article that you may find worth taking a note on – perhaps a summary of a case or an interesting argument. 3 Evaluations of the law. It is always useful to note what your lecturer
thinks of a particular area of the law – and what arguments he makes in support of his views. 4 Hints as to what will be in the exam. Obviously these are very useful –
but hard to pick up. No lecturer is going to stand up and say, ‘There is going to be a question on this subject in the exam.’ However, if your lecturer is involved in setting the paper and spends a lot of time talking about a particular subject or issue, then it’s worth making a note of that fact and giving that subject or issue special attention in your revision. How can you find out who is setting a particular exam? Well, your university won’t tell you, but here’s a handy tip. Suppose you want to find out who will be setting the paper in criminal law that you are sitting this year. Usually, universities operate a three-year cycle for examining so that the same academic sets a particular exam for three years in a row and is then rotated off examining duties entirely or into examining a different subject. Universities also usually issue ‘Examiners’ Reports’, which are written every year after the exams have been marked by the examiners who set the exams. These reports contain reflections on how students performed in the exams, usually livened by a few funny ‘bloopers’ that the markers came across in marking the exams. So if you want to find out who is going to be setting the criminal law exam this year, get the ‘Examiner’s Report’ for the criminal law paper for the last three years. If the examiner who wrote the ‘Examiner’s Report’ for criminal law last year didn’t also write the ‘Examiner’s Report’ for the two years before that, then it’s likely that she will be setting the criminal law paper this
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year – her three-year stint as the criminal law examiner won’t yet have ended. This method isn’t foolproof, though. For example, last year’s examiner might have gone on leave and not be involved with examining this year. So keep your ears open for any gossip as to who might be setting the exams in the papers you are going to be taking.
5 Aids to remembering cases. You should also be looking to take notes on
any ‘story lines’ that you can make use of to remember a string of cases, following the advice I gave you in my letter on ‘Reading Cases and Statutes’. So – make notes of any general principles that the lecturer has identified as underlying a number of cases or any speculations that the lecturer has as to why a number of cases were decided the way they were. You shouldn’t be looking to make notes on the following: 1 Statements of basic legal rules. Suppose your lecturer says, ‘A defendant
will have the mens rea of murder if he has an intention to kill or an intention to cause grievous bodily harm.’ There’s absolutely no point in your making a note of that. Your textbook reading will tell you that – so why wear out your hand trying to scribble this piece of information down in the middle of the lecture? It would be better to put your pen down, give your hand a rest and wait for the lecturer to tell you something that you won’t necessarily find in a textbook. This takes me onto a more general point. If your lecturer on a particular subject isn’t telling you anything that you couldn’t find in a textbook, then you should stop going to his lectures. This is for a very simple reason: you can read faster than your lecturer can talk. So you would make better use of the hour that the lecture will last reading a textbook rather than attending the lecture. You will find out more in that hour by reading the textbook than you will by attending the lecture. 2 History. Lecturers often like to preface their discussion of a particular
area of law with a quick run through of the history of that area. So, for example, if you are being lectured by your tort law lecturer on the law on ‘Occupiers’ Liability’, she may well spend a bit of time talking about what the law said before the Occupiers’ Liability Acts of 1957 and 1984 were 164
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enacted. Making notes on this is a complete waste of time. You are interested in what the law says now, not in what it said 50 or 20 years ago. You are interested in what reforms should be made to the law as it is now, not in what reforms were made to the law as it was 50 or 20 years ago. Having said that, history does have its place. It can help you to remember a string of cases if you see them as part of some historical trend or pattern. Arguments that a particular reform to the law has proved unsuccessful and that the law should return to where it was before that reform was implemented are always interesting and worth noting. But if the lecturer is talking about the history of a particular area of law for no other reason than as a way of introducing that area of law or because he is loath to abandon a set of carefully composed lecture notes that have been made completely redundant by a recent reform, then put your pen down and give yourself a rest. When a lecture is over, take the notes that you have made on the lecture and use them to make fresh notes in the appropriate places in your topic and case files. This will serve a number of useful purposes:
Your lecture notes are likely to be quite scruffy and messy – making fresh notes will mean you don’t have to rely on your lecture notes.
Making fresh notes will help you remember in the long term what was said in the lectures.
Making fresh notes will give you a chance to look over your lecture notes and see how many of the lecture notes you made actually seem, on reflection, worth entering into your topic and case files. If the answer is ‘Not many’, you are taking too many notes in the lectures and you need to be more discriminating in your note taking.
Making fresh notes will then allow you to make someone else a present of your lecture notes without worrying about whether you will ever see them again – very useful if you are looking to get into a study group or if you and another person are taking it in turns to make notes on lectures.
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Small-group Teaching Sessions That’s all I have to say about taking notes in lectures. What about smallgroup teaching sessions? Any university will arrange for these to take place throughout the year, in parallel with the lectures, as a way of checking the progress you are making as a law student and giving you an opportunity to raise any concerns or questions that you might have about the subjects you are studying. The advice I can give you on these sessions is quite limited because I have no idea what format they will take. However, whatever format they take, the following points should always hold good: 1 Be prepared You won’t get anything out of your small-group teaching sessions if you aren’t prepared for them. If you’re not prepared for a small-group teaching session then it will turn into an ordeal. You’ll be lost, confused and praying desperately that you aren’t called upon to speak – and every minute of the session will seem like ten minutes. Why put yourself through that kind of torture? Come prepared and then you can make the most of the session and actually get something out of it. And if you’re not prepared – for whatever reason – it’s far better to admit that and ask if you can come along to a later session than put yourself through the agony of sitting in the session, pretending to be better prepared than you are. 2 Ask questions Try and take advantage of any small-group teaching session that you attend to get whoever’s holding the session to answer your questions about the area of law that you’ll be focusing on in the session. So come to the teaching session armed with a list of questions that you want answered. Make sure you have actually got a list – don’t rely on your memory to tell you that you have such-and-such a question to ask. The pressure of a smallgroup teaching session means that your memory will often fail you. 3 Take your books and notes along A small-group teaching session isn’t a memory test – so take your textbooks and your notes along to the session so that you can consult them in the course of a general discussion of a particular legal point. 166
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4 Make notes When I hold small-group teaching sessions with first-year students, I notice that a lot of them don’t take notes when I’m talking to them. This could be because they think that what I’m saying is rubbish. However, I find that hard to believe. More likely explanations are either: (a) they think that they’ll be able to remember what I’m saying without making a note of it; or (b) they think that I’d be offended if they took my eyes off me and started writing in their notebook while I was talking. Neither of these things are true. On (a), unless a student is blessed with an absolutely exceptional memory, she will not be able to remember very much of what was said in a small-group teaching session unless she has made good notes of what was said. On (b), there is no way any of your teachers will be offended if you make notes on what they are saying as they are saying it – they are far more likely to be offended if they make some really brilliant argument and their students just stare at them and don’t make any notes to help them remember the pearls of wisdom that have just been scattered before them. As to what you should be making notes on, what I said in connection with lectures also applies here – you should be looking to make notes of points that will make useful additions to your topic and case files. And when the small-group teaching session is over, you should take your notes and use them to enter a set of fresh notes at appropriate points in your topic and case files. 5 Exercise your right of freedom of speech I’ve already made this point in an earlier letter, but I’ll repeat it here: do not be inhibited about speaking up in small-group teaching sessions. If there is some point you are unclear on, do say, ‘I don’t understand this, could you help me?’ You’re not going to get another opportunity to get some help on clearing up that point – so why not take advantage of it? Don’t be put off asking a question because you think, ‘I’ll look like an idiot if I ask about that.’ You probably won’t: your question is likely to be a really good one and everyone else in your teaching group will profit from having your question answered. And even if you do look like an idiot, so 167
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what? It’s good for you to make yourself look like an idiot once in a while. It’ll stop you being arrogant – which is never an attractive quality. It’ll make everyone else feel better about themselves – they’ll think, ‘Oh, at least I’m not doing as badly as Sam.’ And it’ll make everyone else feel a bit more comfortable about asking questions themselves – they’ll think, ‘Well, it might be a bit embarrassing to ask this question but at least I won’t be as embarrassed as badly as Sam was.’ Don’t ever leave a small-group teaching session thinking, ‘Oh – I wish I’d asked that.’ Nothing is worth that kind of regret. 6 Make the most of the opportunities that small-group teaching sessions give you This is pretty obvious advice but worth giving nonetheless. Make the most of your small-group teaching sessions. Suppose that you are being taken for small-group teaching sessions in a particular area of law by Professor White, who is a renowned scholar in that area of law. Use your time with Professor White to get her to talk about her views – not only her views about the area of law she specialises in, but also her views of what other academics have to say about that area of law. Suppose alternatively that you’ll be expected to submit an essay in advance of a particular small-group teaching session with Professor Black – the session will then be used to talk about people’s essays and how they might be improved. Try and make your essay the best it can possibly be so you can take full advantage of any feedback you will get from Professor Black in the session on how your essay might have been improved. Don’t come up with an average piece of work which will be returned to you with some really obvious criticisms that even you knew could be made of your essay. Again, suppose that in a small-group teaching session with Professor Green you’ll be considering what the law says in a particular fact situation. Prepare well for the session by thinking of as many points as you can that might be made about that situation. Then, in the session, make those points and learn from what Professor Green has to say about them. Also use the opportunity provided by the small-group session to get some guidance from Professor Green about how one should approach the task 168
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of writing about problem situations in the exams: What are the examiners looking for you to do? What are they not looking for you to do? Remember that the more you put into a small-group teaching session, the more you will get out of it. Even if you are being taught by an academic who has zero interest in teaching you, he will not fail to respond to the interest you show in getting the most out of your session with him. He will soon ‘warm up’ and start giving of his best to you. 7 Be nice This is a point that I’ve made before, but I’ll make it again – be warm, bubbly and enthusiastic in your small-group teaching sessions. No one enjoys teaching a surly or uncommunicative student and even the most dedicated teacher will soon lose interest in doing anything for you if you persistently come to her small-group sessions with a bad attitude. Of course, if you’re feeling down on a particular day when you have a smallgroup teaching session, it’s okay to make that clear – but your normal attitude in going into a small-group teaching session should be positive, friendly and outgoing.
That’s enough advice from me. Hope your studies are going well. Keep in touch and let me know how you are getting on. All the best,
Nick
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Preparing for Your Exams
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15
LETTER FIFTEEN
Writing Essays (1) Dear Sam, Thank you for your e-mail and the attached essay. I’m sorry it didn’t get a very good mark. I promise I’ll have a look at it as soon as I can and give you some advice on how it could have been improved. In the meantime, I thought you’d appreciate some general guidance on how to write essays. But before I get into that, I want to urge you not to get discouraged by the fact that you didn’t get a good essay mark. There are two ways you can react to this kind of disappointment. You can give up trying to produce good work so that next time you get a bad mark, you won’t be disappointed because it’s what you expected to get. Or you can resolve that you’ll produce something better next time, drawing on whatever lessons are to be learned from your failure this time round. I’m glad the fact that you sent your essay to me for my comments seems to indicate that you’re taking the second course of action.
Descriptive and Discursive Essays Anyway, let’s get on now with giving you some tips on writing good legal essays. Legal essays fall into two groups. First of all, there are descriptive essays, where you are asked to set out the law in some area. Examples of essay questions which invite you to write a descriptive essay are:
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Compare and contrast the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999. When will one person be held liable in tort for failing to rescue another? Have the grounds of judicial review changed significantly over the last 20 years? If so, how?
The second sort of legal essay that you might (and, in fact, will) be asked to write is a discursive essay – that is, an essay in which you discuss a particular area of law, pointing out its merits or demerits. An essay question which invites you to write a discursive essay will usually present you with a quotation (either drawn from someone’s writings, a judgment or simply made up for the occasion) which makes a particular point about a particular area of law. You will then be asked to discuss the quotation. So examples of essay questions inviting you to write a discursive essay are:
‘Neither the Unfair Terms in Consumer Contracts Regulations 1999 nor the Unfair Contract Terms Act 1977 do enough to prevent big businesses exploiting their consumers by foisting onerous contract terms on them.’ Discuss. ‘It is hard to see why someone who has failed to save another from harm when he or she could easily have done so should not be held liable.’ Discuss. ‘The past 20 years have seen a huge extension in the courts’ powers to supervise and control the behaviour of public bodies. This development is to be regretted.’ Discuss.
Here are some tips on writing legal essays that you should bear in mind whether you are writing a descriptive essay or a discursive essay. 1 Express yourself as clearly as possible Shortly before he died, Hugh Trevor-Roper, the famous historian, said: ‘My cardinal rule for myself is that no one should ever have to read a sentence of mine twice in order to understand it. If they do – then I am at 174
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fault.’ Too many students fail to follow this rule. They fall into the trap of identifying complexity with cleverness. They think that the harder your essays are to understand, the cleverer you will appear. (Many philosophers make the same error.) The opposite is true: the more twisted and complicated your essay, the less it will appear that you actually understand anything about the subject of your essay. There’s a story told about the great physicist Richard Feynman. He was asked to prepare a lecture on why spin-one-half particles obey Fermi-Dirac statistics. (I don’t know what this means either.) Feynman promised to produce a lecture that could be delivered to first-year physics students. But despite all his attempts, he couldn’t do it. ‘I couldn’t reduce it to freshman [first-year] level,’ he said. ‘That means we don’t really understand it.’ Think like Feynman: if I can’t express myself simply and clearly on a particular subject, then that means I don’t really understand what I’m writing about. A good way of testing whether your essay is clear enough to be understood is this: Imagine a friend has asked you the question that is the subject of the essay. Would your friend be baffled by your response or have to ask you to clarify certain points you have made? If so, your essay is not clear enough and you should rework it.
2 Make your essays easy to follow Use devices such as headings and numbered points to make it easier for your reader to understand what you are saying – just as I’m doing right now. I have eight general tips to give you on writing legal essays. So to help you see that I have eight tips to give you, and not six or seven, I’ve numbered them. And I’ve used headings alongside the numbered points in order to help you see at a glance what these tips are. The overall effect, I hope, is to make what I’m saying much clearer and easier to follow than would be the case if I simply wrote out a dozen or so paragraphs on ‘General tips for writing legal essays’ without using numbers or headings to separate them. Using such devices will not only help your reader understand what you are trying to say – it will also help you to stick to your argument and not 175
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wander off into making irrelevant points. If, for example, this section of my letter were not labelled ‘Make your essays easy to follow’ it would be very easy for me to stray off the point I’m trying to make in this section and start talking about how long your essays should be – thus diluting the force of the point I want to make in this section and making it harder for you to grasp and remember that point. But the fact that this section is labelled ‘Make your essays easy to follow’ means there is no danger of my straying off the point. I wouldn’t look very clever if, having given this section such a heading, I then started in the same section to talk about how long your essays should be. You don’t just have to take my word for it as to the usefulness of using headings and numbered points in your essays. Look at any decision handed down nowadays by an English judge and you will almost invariably find that the judge has used headings and numbered points to make his judgment easier to follow. (Each paragraph of the judge’s decision will also be numbered – but that is not something I would recommend to you. It has been done so as to make it easier for academics and other judges to refer to a particular passage in a judicial decision. They no longer need to refer to a particular page of a particular report of the case; nowadays they can just give the number of the paragraph containing the passage referred to.) So far as I know, Lord Denning was the first judge to do this – and that’s one of the reasons why his judgments are a model of clarity. 3 Assume that the reader knows enough to have asked the question Students often wonder in writing legal essays how much knowledge they should assume on the part of the reader. The answer is that you should write your essay on the basis that it will be read by someone who knows just enough to have asked the question which you are answering. So if you are writing an essay on ‘Compare and contrast the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regulations 1999’, in writing your essay you are entitled to assume that your reader has heard of the 1977 Act and the 1999 Regulations, but you should not assume that your reader knows much more than that. If she had a detailed knowledge of the provisions of the 1977 Act and the 1999 Regulations, she 176
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would not be asking you to compare and contrast them. So it will be necessary for you carefully to explain what the Act and the Regulations have to say in the course of comparing and contrasting them. But if you are writing an essay on: ‘Neither the Unfair Terms in Consumer Contracts Regulations 1999 nor the Unfair Contract Terms Act 1977 do enough to prevent big businesses exploiting their consumers by foisting onerous contract terms on them.’ Discuss.
you can write your essay on the basis that your reader does have a working knowledge of the 1977 Act and the 1999 Regulations. It is precisely because he has that working knowledge that he feels able to ask you your opinion as to whether those statutory provisions do enough to protect consumers. No doubt it would still be good style in writing this essay to explain briefly how the 1977 Act and the 1999 Regulations protect consumers – but you can do so much more briefly than you would in writing a descriptive essay which required you to compare and contrast the effect of the 1977 Act and the 1999 Regulations. 4 Don’t make unsubstantiated assertions This is a very common fault among law students in writing legal essays. Look at the following couple of sentences: In a number of cases (such as Interfoto Picture Library v Stiletto Visual Programmes) the courts have acted paternalistically and held that contracting parties should not be bound by terms which are particularly onerous or outrageous. However, the courts will usually hold contracting parties bound by the terms to which they have agreed.
This is lazy writing. The assertion made in the first sentence is simply not backed up. The writer may think that she has justified her assertion by pointing to the Interfoto case – but that is not enough. 177
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Suppose that John tells you that Mary is very selfish. You say, ‘Really? What makes you think that?’ He replies, ‘Well, she acted very selfishly in that matter involving Jessica’s holiday.’ Now – if you’ve never heard of this incident, you won’t be satisfied with his reply. You’ll ask him to explain what happened in regard to Jessica’s holiday, what Mary did and how what she did shows that she is very selfish. The same point applies here. The reader cannot be taken to know about the Interfoto case – so before that case can be used as evidence in favour of the proposition that the courts sometimes act paternalistically in contract cases, an explanation needs to be given as to what happened in the Interfoto case, what was decided, what the reasons for the decision were, and how that shows that the courts acted paternalistically in that case. So a less lazy writer who wanted to make the same point made by the writer above would write: In a number of cases, the courts have acted paternalistically and held that contracting parties should not be bound by terms which are particularly onerous or outrageous. For instance, in Interfoto Picture Library v Stiletto Visual Programmes, the claimants ran a library of photographic transparencies. They sent the defendants – who wanted some transparencies for a presentation to a client – 47 transparencies. The transparencies were to be returned within two weeks. If they were not, then the defendants would become liable to pay the claimants £5 per transparency for every extra day they were retained. In the event, the defendants held onto the transparencies for 13 days more than they were supposed to. As a result, the claimants sent the defendants a bill, charging the defendants more than £3,000 for keeping the transparencies for those 13 days. The Court of Appeal held that the defendants were not bound to pay the bill. The claimants’ condition that the defendants would have to pay £5 for every transparency for each extra day they held onto the transparency was so unusual and unreasonable (a normal hiring fee for a transparency would be £ 3.50 a week) that the defendants could not be held bound by it unless it had been sufficiently brought to their attention. As this had not happened in this case, the defendants were not bound by the claimants’ condition.
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And so on. You must guard against the sort of lazy writing I’m talking about here creeping into your essays – and not only because your essays won’t be as impressive if you write sentences like the first one in the first panel above. Another reason you must avoid this kind of lazy writing is that lazy writing protects sloppy thought. For example, look at the extended passage above that explains exactly what happened in the Interfoto case. Do you think – now that you know what happened in that case – the facts of the Interfoto case support the proposition at the start of the passage? Do you think the Court of Appeal was acting paternalistically in holding that the defendants did not have to pay the claimants’ bill? The Court of Appeal would have been acting paternalistically if the defendants had said to the claimants, ‘Yes – we’re happy to pay this hugely exorbitant fee if we don’t return the transparencies on time,’ and the Court of Appeal had said, ‘Despite the fact that the defendants agreed to pay this very high late return fee, we’re not going to hold them bound by their agreement because they were very foolish to make that agreement and we’re going to protect them from the consequences of their foolishness.’ Did the Court of Appeal do this? No, it didn’t. Instead, the Court said, ‘The defendants aren’t bound to pay this very high late return fee because we don’t believe they genuinely agreed to pay it when they ordered the transparencies. They wouldn’t have been expecting to pay such a high fee when they ordered the transparencies and no one brought the fact that they were expected to pay such a high fee to their attention.’ So the Court of Appeal wasn’t acting paternalistically when it gave its judgment in the Interfoto case. It was just giving effect to the run-of-the-mill idea that contracting parties will only be bound by the terms to which they have agreed. Now if the writer of the couple of sentences we started off with (see the first panel) had bothered to back up her assertion that the courts sometimes act paternalistically in contract cases by going on to discuss the Interfoto case in detail, she might have discovered all this. She might have discovered that in fact the Interfoto case does not support the point she was trying to make. This, in turn, might have caused her to think a bit harder whether there is actually any support for the proposition that the courts sometimes act paternalistically in contract cases. And she might have concluded that there isn’t any support for that proposition. And she 179
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would then have had to rethink her views about contract law. But what actually happened is that the writer did none of these things and thus missed the chance to examine her beliefs critically and see whether they are justified – and all because she was too lazy to make the effort to back up seriously her assertion that the courts sometimes act paternalistically in contract cases. 5 Be as direct as possible By this I mean more than that your essays shouldn’t ramble. If you want to make an assertion about the law, make the assertion and then back it up by references to the statutes and case law. Don’t do things the other way round and summarise a lot of statutes and case law and then say, ‘As we can see from the above, the law. . .’ Don’t keep your reader in suspense. Let him know what point you are trying to make about the law before you make it. This point – about not keeping your reader in suspense – also governs how you should start your essays off. You should start any essay on any subject by summing it up – by explaining exactly what you are going to say in your essay. For example, if you are writing a discursive essay, discussing some aspect of the law, you should make sure that your reader shouldn’t ever have to wonder at any stage what point you are making in your essay. You should announce it clearly right at the start of the essay so that he is in absolutely no doubt about what you are going to say. 6 Try and make your essay as impressive as possible The more impressive your essay, the higher a mark it will get. To be impressive, a descriptive essay must be accurate in what it says and presented in an interesting way. To be impressive, a discursive essay must make an interesting point and provide good arguments in favour of that point. To provide you with some guide as to what kind of marks you will get for writing descriptive and discursive essays, I’ve drawn up the following tables:
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Not interestingly
NOT ACCURATE
ACCURATE
No more than 50%
No more than 70%
No more than 60%
No more than 85%
presented Presented in an interesting way A table of marks for a descriptive essay
NOT INTERESTING
INTERESTING
Not well-argued
No more than 50%
No more than 60%
Well-argued
No more than 70%
No more than 85%
A table of marks for a discursive essay
Just to give you some idea of what these marks represent in terms of quality: an essay that gets less than 40% is a failure an essay that gets between 40% and 49% is poor an essay that gets between 50% and 59% is average an essay that gets between 60% and 69% is good an essay that gets more than 70% is excellent.
So don’t ever think, ‘I got 55% for one of my essays. That’s pretty good.’ It’s not – it’s okay, it’s average. You should be aiming to write essays that score above 60%. The above tables tell us that if you are writing a descriptive essay, it’s better to be accurate than interesting: an accurate essay that is presented in quite a boring way may get rewarded by a mark of up to 70%, while the maximum you could get for an inaccurate essay that is presented in an interesting way (using tables, diagrams, interesting examples and so on) would be 60%. But to have a good chance of getting an excellent mark, you will have to ensure that your essay is both accurate and presented in an interesting way. An essay like that could score up to 85%. (Why no more than 85%? Well, whoever is marking your essay will usually think that
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only God gets more than 85%. She has no idea what an essay that deserves more than 85% would look like – but she also knows that no human being’s going to write it.) If you are writing a discursive essay, it’s better to make a boring point that is supported by good arguments (for which essay you could score up to 70%) than write an essay that makes an interesting point but which isn’t very well supported (that sort of essay could only score up to 60% and will usually get a lot less than that). If you want an excellent mark, you might be able to squeak a mark of 70% – which would count as an excellent mark – by writing a boring essay which is very well-argued. But the best way of ensuring that you get an excellent mark for your essay is to write an essay that makes an interesting point and provides good arguments in support of that point. That sort of essay could score up to 85% – well over the ‘excellent’ borderline. So – suppose that you are set the following essay to write: Have the grounds of judicial review changed significantly over the past 20 years? If so, how?
Don’t just write a descriptive essay answering this question. Try hard to think of a way of writing an essay on this question that communicates the information about how the law on judicial review has changed over the past 20 years in an interesting way. For example, you might think about structuring the essay around eight hypothetical judicial review cases, and discuss how those cases would have been decided 20 years ago and how they might be decided now. Or – if the cases will bear it – you might be able to identify and explain two different judical philosophies as to the scope of judicial review: one which obtained 20 years ago and one which obtains now. By setting out these differing philosophies, you will not only help to explain how the law on judicial review has changed over the past 20 years but, as a bonus, you will help explain why it has changed. Again suppose that in an exam you have the option of writing a discursive essay on the following topic: 182
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‘The 1980s and the 1990s saw a huge extension in the courts’ powers to supervise and control the behaviour of public bodies. This development is to be regretted.’ Discuss.
Suppose you disagree with this quote – you think this huge extension in the courts’ powers is to be welcomed. Instead of rushing ahead and writing an essay taking that line, think. Would that actually be an interesting point to make? The answer is: probably not. Most people would acknowledge that it is a good thing that the courts have intervened to limit the power of public bodies to act unlawfully, irrationally, arbitrarily, disproportionately or in breach of someone’s human rights. So it would be hard (though not impossible) to score an excellent mark for an essay arguing that the quote in the above essay title was incorrect. Such an essay would not make an interesting enough point to compete seriously for an excellent mark. Given this, you might be best advised to opt to do a different essay, where you have something more interesting to say. 7 Don’t go with your first instincts Suppose that you are thinking of buying a birthday present for your friend Alex. Your first idea for a present is that you’ll buy Alex a DVD. Now, having had that idea, would you normally rush out immediately and buy a DVD for Alex? Of course not. You would wait a bit and see if you could think of a better present. And, after a bit of thought, you would normally be able to come up with a better idea. That’s because it’s highly unlikely that out of the millions of different presents you could get for Alex, your very first idea as to what to get Alex will prove to be the best one. The same applies to writing essays. Suppose that you’ve been asked to write an essay on a particular topic. And suppose you’ve had an idea as to what you might say in your essay. It’s highly unlikely that your idea will be incapable of being improved upon. So resist the temptation to go with your first idea as to what you might say in the essay. See if you can come up with a better way of doing the essay. You’ll usually find that even with just five minutes’ more thought, a better idea comes along. Going with your first instinct as to how to do an essay question will almost always 183
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result in you turning in an essay which isn’t as good as you were capable of producing. So resist the temptation to go with that first instinct and instead spend some time thinking about how you might produce an even better essay than the one you first thought of. 8 Don’t waste the opportunity presented by the chance to write an essay Some students regard essays as unpleasant inconveniences, to be gotten out of the way as quickly as possible. As a result they make little effort to ensure that their essays are of good quality. Don’t think like this. Other students regard essays as future revision aids. In writing their essays, they try and pack as much information as possible into them (whether or not that information is directly relevant to the essay at hand), so that when they have to revise their work, they won’t have to look at their notes – they can just read the essays they wrote at the time they did that work. Don’t think like this, either. Remember that how you do in your exams will be determined almost as much as by how good you are at writing effective essays as it will be by how much you know about the law. So you shouldn’t pass up any of the opportunities that you will get to test out and improve your essay-writing skills. Every time, then, you are given the chance to write an essay, regard it as training for your exams and make a real effort to make the essay as good as you can possibly make it. If you do this, then over time you will find it easier and easier to write sharp and effective essays – and the challenge of writing such essays in the exams will become more and more manageable.
Pursuing the same idea, if you will only get, say, 45 minutes in your exams to write an essay, the essays you write in term time should not be longer than you could write, writing flat out, in 45 minutes. (Obviously, you should spend a lot longer than 45 minutes writing the essays you are set in term time.) There’s no point in writing long and elegant essays during term, only to find in the exams that you have no idea how to make the points you want to make in 45 minutes’ worth of writing time. Don’t insert long quotes into the essays that you write during term – you won’t 184
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be able to do this in your exams. (Unless you have a remarkable memory; but in any case, the examiner will want to know what you have to say, not to be given an exhibition of your memory skills.) For the same reason, don’t use footnotes in your term-time essays.
More Advice on Discursive Essays These, then, are the tips I would give you for writing any legal essay, whether it is descriptive or discursive. But I do have some further advice for you on writing discursive essays – that is, essays which call on you to discuss the merits or demerits of the law. These are not only the most common kind of essays you’ll be asked to write – they are also the essays that students find hardest to write. In writing such essays, you might find it useful to bear in mind the following. 1 Make sure your essay has a point A discursive essay that fails to make some kind of point about the law under discussion is a waste of time – both to write and to read. So make sure when you start off writing a discursive essay that you know what point you are going to make in the essay and how you are going to go about making it. And start the essay by setting out the point that you are going to make. Try and ensure that the opening paragraph of your essay includes the phrase: ‘In this essay, I will argue that. . .’ Students often find this difficult to do because they tend not to know what point they want to make in their essay until they have almost finished it. The solution is to think about the essay and plan it out either in your head or on some rough paper before you start writing it – don’t just rush into writing. 2 Don’t make your essay too complex or subtle Suppose that in an exam, one of the essay questions asks you to discuss some quote by Professor Cherry criticising the law on when someone may be punished for attempting to commit a crime. Now a good essay on this topic will either argue that Professor Cherry is right or it will argue that Professor Cherry is wrong. (By ‘good’ I mean an essay that will obtain a good mark from the examiner.) In contrast, an 185
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essay on this topic that argues that Professor Cherry is right but only up to a point will rarely be effective. It will, more likely, be a bit of a confused mess – with the reader being unable to see what exactly the writer makes of Professor Cherry’s statement. Such an essay is unlikely to get a good mark. So if you think that Professor Cherry is right but only up to a point, then you should think seriously about doing a different essay question. It would be hard for you to get a good mark writing an essay that took that kind of line. Find another essay question where you can take a stronger line. You should be aiming to write essays with a sledgehammer, rather than a rapier – so find an essay question which allows you to do that. You may be surprised by my urging you not to be oversubtle in your discursive essays – but the truth is that agonised earnestness rarely pays in the exams. Bruce McFarlane, an Oxford historian, made the same point in a letter that he wrote to a student about how he should approach writing essays in his history exams:
‘It’s no use treating an examination as if it were the Last Judgment; your scrupulous weighing of the pros and cons, your unwillingness to decide, would be admirable. . . if you were writing serious history. [But you’re] not supposed to be doing that; you’re supposed to be showing how clever you are or aren’t, and it’s absolutely suicidal to be modest, unsure, diffident or muddled. . . You’ve got to have a fairly simple, fairly plausible, intelligible “attitude” and you’ve got to plug it confidently.’
That letter was written in 1956; but its message is as true today as it was then. 3 Set out the arguments in favour of the point you want to make; and repel any counter-attacks on your position Once you have decided what line you are going to take in writing your essay – and you have made it clear at the start of your essay that that is the line you are going to take – proceed straightaway to set out the arguments in favour of the position you have decided to take. Keep your arguments 186
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simple and straightforward. Such arguments are less likely to suffer from flaws that will undermine their effectiveness. Any sort of argument which is excessively subtle or requires numerous qualifications will be no good to you. Once you have set out the arguments in favour of the position you are taking in your essay, don’t sit back. Cast around for any arguments that might be made against your views and proceed to show how these can be rebutted. Doing this can only help to make your essay more impressive. 4 Be rigorous In both making out arguments in favour of the position you are taking in your essay and in repelling arguments against your position, be rigorous. So make sure that the arguments you make in favour of your position actually work: that there is no logical flaw in them and that they do not rest on any unsubstantiated assertions. And in criticising the arguments that may be made against your position, make sure that your criticisms are valid. Ensure, for example, that you have not dismissed an argument against your position by misrepresenting it. Being rigorous is perhaps the thing that students find hardest to do in writing discursive essays. This is because it requires students to be hard on themselves: to check their reasoning to see that it does not suffer from any obvious flaws. But however hard this may be, it is something you have to do – otherwise your discursive essays will be dismissed as badly argued and thought-out. 5 Don’t think you have to be original Nobody expects you, in writing a discursive essay, to come out with some points about the law that nobody else has ever thought of – particularly when you are just starting out in your studies, as you are. So don’t be afraid or ashamed to cite various people’s arguments when writing a discursive essay. After all, there is no point in reading a dozen articles by various academics on a particular area of the law if you are not going to use the arguments they employ in those articles in writing your essays. However don’t plagiarise. If you want to refer to a particular argument that Dr Pink has made against the position you are taking in your essay, 187
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make sure that you acknowledge that the argument is Dr Pink’s. Doing so is not only morally right. It will also make you look good in the eyes of any academic reading your essay. He will be impressed that you have taken the time to familiarise yourself with, and think about, the secondary literature on the subject you are discussing. 6 Don’t split the difference You will often be set an essay on some issue which has generated a good deal of academic debate, with some academics taking one view and other academics taking a completely different and opposed view. (An example is the debate over why the courts have the power to set aside the actions of public bodies if they are ‘irrational’ or ‘disproportionate’.) Please try and avoid the temptation to suggest some sort of compromise position which purportedly reconciles the opposing views of the parties to the debate. If it were possible to do this, the debate would be over by now and everyone would have gone home. So what you are going to have to do in your essay is either agree with one side in the debate and show why the other side is in the wrong or argue that both sides are wrong and that in fact there’s a third position – which no one has considered so far – that all right-thinking people should adopt. 7 Don’t turn a discursive essay into a descriptive essay Students very often do this in writing discursive essays. So, going back to an example considered earlier, suppose a student is given a quote by Professor Cherry criticising the law on when one person may be punished for attempting to commit a crime and she is asked to discuss it. More often than not, she will begin the essay by writing, ‘Before we can examine the validity of Professor Cherry’s criticisms, it is first of all necessary to set out the law on when someone may be punished for attempting to commit a crime.’ She will then spend a huge amount of time on setting out the law in this area. Then realising that she really ought to say something about Professor Cherry’s criticisms she will hastily tack on a paragraph at the end of the essay which purports to deal with these criticisms. (Such a paragraph will almost always begin with the optimistic but unjustified assertion that, ‘As we can see from the above discussion, Professor Cherry’s criticisms are unjustified/well made out. . .’) 188
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Such an essay may get a pass mark but it will certainly never get a good one. Of course, in a discursive essay you may have to describe what the law says on a particular point – but do so briefly. Remember: the main object of writing the essay is to make some point about the particular area of law under discussion, not to describe what it says. 8 Use concrete examples wherever possible You’ve heard it said – haven’t you? – that ‘A picture is worth a thousand words.’ The same principle applies in writing discursive essays – using stories, or concrete examples, can be hugely useful in illustrating, or in helping you make, the points you want to make. For example, suppose you are set the following essay question:
‘Past consideration is not good consideration.’ Discuss.
The essay refers to the rule that a promise to pay for services rendered in the past will not be contractually binding. You may recall that for a promise to be contractually binding, something – a ‘consideration’ – has to be given in return for it. If I save your life and you then subsequently promise to pay me £100 for saving your life, I cannot be said to have saved your life in return for your promising to pay me £ 100. So my saving your life cannot count as consideration for your promise and cannot therefore make your promise contractually binding. So past consideration is not good consideration. Now it would make a good start to the above essay if you said something like:
Albert is drowning in a swimming pool. Ben jumps into the pool and saves him. In gratitude, Albert promises to pay Ben £1,000 a year for the rest of Albert’s life. Albert’s promise is not binding on him: past consideration is not good consideration. In this essay I will argue that. . .
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This not only makes for an interesting and arresting start to the essay. It also provides you with an example that you can constantly refer back to when discussing the rights and wrongs of the rule that past consideration is not good consideration. So instead of saying such things as:
The most common reason advanced for the rule that past consideration is not good consideration is that. . .
You can say: It is usually said that the courts will not enforce promises like Albert’s because. . .
The second version not only uses fewer words, it is easier to read and understand. So using concrete examples in your essays makes it much easier for you to write essays that are direct, clear and intelligible.
A Final Recommendation That’s enough from me now on the subject of writing essays. I hope you find my advice useful. If you are interested in getting any more guidance on how to write clear, well-argued essays, I would recommend – if you haven’t already done so – that you have a look at chapter 10 in Thomas Dixon’s excellent How To Get a First (Routledge, 2004). (Chapter 9 is also useful.) A classic essay on the importance of writing clearly is George Orwell’s ‘Politics and the English language’ which you should find in any decent collection of his essays. Best wishes,
Nick
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16
LETTER SIXTEEN
Writing Essays (2) Dear Sam,
I’ve now had a chance to read your essay. I promised to give you some comments on it, and that’s what I’ve done below. I’ve reproduced your essay, with some footnotes containing my comments inserted. But as a special bonus for you, I’ve followed your essay with the essay that I would have written had I been set the essay title. I hope that by comparing your essay with mine you’ll see a bit more clearly in what respects yours might have fallen short of what your teachers want from you. Okay – here goes: here’s your essay, with my comments in footnotes underneath. ‘The mens rea of murder – leave it alone’ (GLANVILLE WILLIAMS). Discuss. A defendant will commit the crime of murder if he performs the actus reus of murder with the mens rea. The actus reus of murder is causing the death of another life in being. The mens rea of murder is ‘malice aforethought’. The law is clear that a defendant will have ‘malice aforethought’ if he acted with an intention to kill or an intention to cause grievous bodily harm. So the mens rea of murder is – intent to kill or intent to cause grievous bodily harm. Before we can assess whether the mens rea for
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murder should be changed, it is first necessary to discuss when the courts 2 will find that a defendant had an intent to kill. 1
Why is it necessary? Make it clear to the reader where you are going.
2
Not a great first paragraph – what point are you going to be making in this essay? Also use headings to make it clear where you are going in your essay.
This issue has long troubled the courts. In Hyam v DPP it was held that the defendant was guilty of murder. She was held to have had the necessary intent to kill because she foresaw at the time she acted that it was 3 probable that someone would die as a result of her actions. But this was criticised in the later case of Moloney where the defendant shot his stepfather with a shotgun and was charged with murder. The House of Lords held that the defendant should not be held to have an intent to kill just because he knew it was probable or likely that his stepfather would die as a result of his pulling the trigger. Lord Bridge held that was something that should be taken into account in judging whether the defendant had an intent to kill, but foresight on its own did not necessarily amount to an intention. What sort of foresight is needed before you can find that the defendant had an intent to kill was made clear a year later in the case of Hancock and Shankland. In that case the defendants were two miners who threw a concrete block from a bridge and killed the driver of a taxi which was travelling under the bridge at the time the concrete block was thrown off. The defendants were charged with murder. The House of Lords held that they could only have been held to have had an intent to kill the taxi driver if they knew when they threw the concrete block off the bridge that there was a very high probability that the taxi driver would be killed as a 4 result. In Nedrick the Court of Appeal looked at all these cases and held that a jury would only be entitled to infer that a defendant had an intent to kill if he foresaw that it was virtually certain that someone would die as a result of his actions. In Woollin the House of Lords agreed with this, but 5 held that the rule should be that a jury would only be entitled to ‘find’ that a defendant had an intent to kill if he foresaw that it was virtually certain that someone would die as a result of his actions. 192
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3
What were the facts in Hyam?
All this is accurate (except you nowhere mention that a defendant will obviously be held to have had an intent to kill if he or she acted with the aim or purpose of killing). But where are you going with this? Why are you telling us all this? What point are you making? Only bring in cases if they help you to make a point – and make it clear before you bring in the case what point you are making. 4
There’s some debate over what the House of Lords meant by substituting ‘find’ for ‘infer’ in the Nedrick direction: are you going to go into that? If not, why not? 5
6
So the end result of all this is that if a defendant has intentionally shot someone, for example, he will be found guilty of murder – he clearly had an intent to kill. But if a defendant caused someone else’s death without wanting that to happen, he could still be found to have had an intent to kill if he foresaw at the time that the victim was virtually certain to die as a result of his actions. But the jury does not have to find that he had an intent 7 to kill: whether they will or not will depend on all the circumstances. What does this mean?
6
This is debatable – but you haven’t made that clear.
7
I feel that this is a satisfactory state of affairs. Obviously, there are going to be some cases where we will find that a defendant had an intent to kill because he foresaw that death was virtually certain to occur as a 8 result of his actions. The plane bomber case is one example. But equally obviously, there are going to be some other cases where a defendant will obviously not have had an intent to kill even though he knew that death was virtually certain to happen. The conjoined twins case is an example of this. The doctors in that case knew that Mary would definitely die if she was separated from Jodie – but that didn’t mean they 9 had an intent to kill Mary. As the law stands at the moment, it allows juries to make up their minds in these difficult cases whether there was an intent to kill – it doesn’t force them into making the wrong decision 193
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by laying down any rules about when they can find that someone had 10 an intent to kill.
What is the plane bomber case?
8
Your discussion of this case isn’t very well written – you could have done a better job of setting out the facts, explaining them in a less rushed way. 9
How are the juries meant to know when to find that someone had an intent to kill if they aren’t given any direction on that issue? You don’t seem concerned about this obvious point. 10
However, some have criticised the existing state of the law, Lord Goff being the most prominent example. He suggests that the mens rea for murder should be changed and that a defendant should be held guilty of murder if he was ‘indifferent’ to the risk of death that his actions created. This would not really make much difference in a lot of cases. The plane bomber would still be found guilty of murder and the doctors in the Jodie and Mary case would not be found guilty of murder. Adopting Lord Goff ’s proposal might mean that drunk drivers would be found guilty of 11 murder. This would not be acceptable. So Lord Goff ’s proposal should be rejected. But I agree with him that the rule that a defendant has the mens rea of murder if he had an intent to cause grievous bodily harm needs to 12 be changed. It produces too many cases of unfairness and injustice. I would agree with the Criminal Law Revision Committee that a defendant who intended to cause grievous bodily harm should only be found to have the mens rea of murder if he knew that there was a risk that his 13 actions might cause death.
11
Does Lord Goff agree? How might he deal with this point?
12
Concrete examples of such cases to help make out your point?
13
Fatal error! Never ever agree with an official law reform proposal – it’s just too boring to get you a good mark.
So subject to this one point, I agree with Glanville Williams that the mens 14 rea of murder should be left alone. 194
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14
Overall – a bit flat. It doesn’t really say anything that interesting, and is not that well executed. There’s no real mention of any of the academic debates in this area, apart from Lord Goff’s views. Has no one else said anything of any interest?
Now – here’s the essay I would have written.
A defendant will have the mens rea for murder if he or she acts with an intent to kill or an intent to cause grievous bodily harm. There is widespread agreement that the rule that a defendant will have the mens rea for murder if he or she acted with an intent to cause grievous bodily harm (‘the gbh rule’) is in need of reform. In this essay I will concentrate my fire on the rule that a defendant will have the mens rea for murder if he or she acted with an intent to kill. I will argue that this rule needs to be reformed. However one interprets the term ‘intent’, asking ‘Did the defendant have an intent to kill?’ does not provide an adequate basis for determining whether the defendant should be found guilty of murder. Four different interpretations of the term ‘intent’ can be distinguished.
Aim or purpose On the first view, a defendant can only be said to have acted with an ‘intent to kill’ if he or she acted with the aim or purpose of killing. This view of intent is endorsed by John Finnis. However, on this view many defendants whom we would want to convict of murder will be acquitted because they will lack the mens rea for murder. Consider the example of the Bad Doctor, who extracts a patient’s heart with the aim or purpose of experimenting on it. The Bad Doctor knows that the patient will die if he takes out the patient’s heart, but he does not care about that. The patient does die and the Bad Doctor is charged with murder. On this first view of when we can say that someone had an ‘intent to kill’ the Bad Doctor did not act with an ‘intent to kill’. He did not extract the patient’s heart with the aim
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or purpose of killing the patient. If the patient could have survived without his heart, the Bad Doctor would have been perfectly content. So on this first view of when we can say that someone had an ‘intent to kill’ the Bad Doctor lacks the mens rea for murder and is entitled to be acquitted of murder and convicted of manslaughter. This is surely unacceptable. John Finnis’ view of intention has equally unpalatable consequences in the case of the Plane Bomber, who plants a bomb on a plane which is designed to blow the plane up when it is in mid-air. The Plane Bomber has some insured cargo on the plane and when the plane blows up, destroying the cargo, he plans to collect on the insurance. The plane blows up as planned and all the passengers and crew on the plane are killed. The Plane Bomber is caught and charged with murder. On John Finnis’ view, he should be acquitted and found guilty of manslaughter instead because the Plane Bomber had no intent to kill when he planted the bomb on the plane. It was no part of his aim or purpose to kill the passengers or crew. Had they all – by some miracle – survived, the Plane Bomber would have been perfectly happy. But to acquit the Plane Bomber of murder would be just as unacceptable as acquitting the Bad Doctor of murder.
Aim or purpose or ‘oblique intent’ Glanville Williams argues that a defendant can be said to have acted with an ‘intent to kill’ if:
A the defendant acted as he did with the aim or purpose of killing; or
B the defendant acted as he did realising that it was virtually certain that someone would die as a result of his actions. On this view, the Bad Doctor and the Plane Bomber would both be found guilty of murder. Both realised when they did what they did that it was virtually certain that someone would die as a result of their actions. However, adopting Glanville Williams’ view is not free from problems. Consider the following three cases:
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1 The Conjoined Twins case. In Re A (conjoined twins), doctors proposed to save the life of one Siamese twin (Jodie) by separating her from her weaker twin (Mary). The doctors in this case realised that it was virtually certain that doing this would result in Mary’s death – Mary was dependent on her link with Jodie to live. So on Glanville Williams’ view, the doctors in Re A had an ‘intent to kill’ and would therefore need to rely on a defence to avoid a murder conviction if they carried out the operation.
2 The Mountaineer case. A Mountaineer is climbing a mountain with a companion when the companion (who is below the Mountaineer and is linked with him by a rope) slips and falls into a deep crevasse. The Mountaineer’s companion is left dangling in the crevasse and the Mountaineer is trapped on the mountain, unable to move or call for assistance. He cannot pull the rope up because the weight on the rope is too heavy and he dare not move his feet for fear of being pulled into the crevasse by the weight of his companion on the rope. Night approaches and both the Mountaineer and his companion are in severe danger of dying of exposure. The Mountaineer decides to cut the rope and his companion falls to his death. On Glanville Williams’ view, the Mountaineer has the mens rea for murder and will need to rely on some kind of defence to escape conviction.
3 The Good Doctor case. A Good Doctor administers a dose of morphine to a cancer patient in order to relieve the agonising pain being experienced by the patient. The dose given to the patient – who only has a few days to live – is just enough to relieve the pain (a smaller dose would have had no effect on the patient’s level of pain) but at the same time is so large that the Good Doctor realises that the patient is now virtually certain to die within a few hours. On Glanville Williams’ view, the Good Doctor had an ‘intent to kill’ when he administered the morphine – he realised at the time he acted that it was virtually certain that his doing so would accelerate the patient’s death. So, on Glanville Williams’ view of intent, the Good Doctor will need to rely on a defence to avoid a conviction for murder. No one seriously thinks that any of the defendants in these cases should be labelled ‘murderers’ – but adopting Glanville Williams’ view of ‘intent’ creates the danger that precisely this will happen.
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Glanville Williams would doubtless have responded, ‘But the danger can be averted by providing these defendants with defences.’ But this response is less than satisfactory. The reason for this is that if the defendants in these cases are provided with defences, those same defences might then be exploited by defendants who acted with the aim or purpose of killing – defendants whom no one wants to see acquitted of murder. So, for example, if we allow the Good Doctor a defence on the ground that he was acting in order to relieve his patient’s pain, what is to stop Bad Doctor II taking advantage of the same defence when he euthanases a cancer patient in order to bring that patient’s pain to an end? Similarly, if we allow the doctors in the Conjoined Twins case or the Mountaineer a defence on the basis that they had to do what they did in order to avoid two people dying, as opposed to one, what is to stop Bad Doctor III taking advantage of the same defence when he kills a terminally ill patient in order to extract the patient’s heart and give it to another, otherwise healthy patient, who is in desperate need of a heart transplant? Adopting Glanville Williams’ view of ‘intent’ has the effect of putting strains on the law of murder with which it simply cannot cope.
Aim or purpose or ‘oblique intent’ subject to a proviso In its 2005 Consultation Paper on A New Homicide Act for England and Wales? the Law Commission sets out a possible approach for finding when someone had an intent to kill. Under this approach, a defendant will be held to have had an intent to kill if, subject to the proviso set out below:
A the defendant acted with the aim or purpose of killing; or B when the defendant acted, he knew that death was virtually certain to result from his actions; or
C when the defendant acted, he acted with the aim or purpose of achieving a particular goal and he knew that death was virtually certain to result if that goal were achieved. The proviso is this: a defendant cannot be deemed to have acted with an intent to kill if he or she acted as he or she did with the specific purpose of avoiding killing anyone.
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This approach has the virtue of making it clear that Plane Bomber II – who uses a bomb that he knows is unreliable – will be held to have had an intent to kill if the bomb goes off and kills the passengers and crew. While at the time he planted the bomb he did not appreciate that it was virtually certain that the passengers and crew would be killed, he did appreciate that if things worked out as he hoped and the bomb went off, it was virtually certain that the passengers and crew would be killed. This approach also has the virtue of saving the Good Father – who, in desperation, throws his baby from the top of a burning building knowing that it is virtually certain that the baby will be killed but desperately hoping that the baby will not be – from being found to have had an intent to kill. The proviso will apply in his case: as he acted with the specific purpose of avoiding killing anyone, he will not be found to have had an intent to kill. However, the fundamental problems that afflict Glanville Williams’ approach to the issue of intention also afflict the Law Commission’s approach. The proviso will not apply to save either the Mountaineer or the doctors in the Conjoined Twins case, or the Good Doctor, from being found to have had an intent to kill. None of these can be said to have acted with the specific purpose of avoiding killing anyone. Their only purpose in acting in the way they did was to achieve some quite different goal: relieving pain in the case of the Good Doctor, saving the stronger twin in the Conjoined Twins case, and saving himself in the Mountaineer’s case. The Law Commission concedes as much in its Consultation Paper in discussing the case of the Good Doctor. It concludes that the Good Doctor will be found not guilty of murder not because he did not have an intent to kill, but because he has a defence based on the weak ground that what he did has always been regarded as legitimate. So if we adopt the Law Commission’s proposed approach to intention, the only way to save people like the Mountaineer, the doctors in the Conjoined Twins case and the Good Doctor from being convicted of murder will be to supply them with defences, thereby creating unacceptable strains within the criminal law.
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Common sense On this fourth view – which may be the one currently adopted by the judiciary – a jury in a murder case should simply rely on its common sense to determine whether, given all the circumstances, a defendant can be said to have acted with an ‘intent to kill’. Obviously, if the defendant acted with the aim or purpose of killing then they should find that he had an ‘intent to kill’. But if the defendant did not act with the aim or purpose of killing but instead realised that it was virtually certain that death would result from his actions, then the jury will still be entitled to find that the defendant had an ‘intent to kill’. But they will not have to find that the defendant had such an intent. They should simply use their common sense and look at all the circumstances to determine whether the defendant had an ‘intent to kill’ in this situation. This view is not free from problems. In the Bad Doctor case, the Plane Bomber case, the Conjoined Twins case, the Mountaineer case and the Good Doctor case, the defendants did not act with the aim or purpose of killing, but they did realise that death was a virtually certain consequence of their actions. On the view under inspection here, a jury will be ‘entitled’ to find that the defendant had an ‘intent to kill’ in some, all or none of these cases. How is a jury meant to determine in which of these cases there was an ‘intent to kill’? Consistency would seem to demand that they either find that there was an ‘intent to kill’ in all of these cases or an ‘intent to kill’ in none of these cases. Either result is unacceptable, for the reasons set out above in criticising John Finnis’ and Glanville Williams’ views of ‘intent’. If the jury only finds an ‘intent to kill’ in some of these cases, they can only be doing so by taking into account factors which are irrelevant to the issue of whether there was an ‘intent to kill’ – such as whether the jury thinks the defendant deserves to be found guilty of murder. This is an equally unacceptable result. Defendants are entitled to expect that juries do not, in answering the questions put to them, take into account considerations that are irrelevant to those questions. So adopting the ‘common sense’ view of ‘intent’ can only result in difficulties.
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Depraved indifference: the way forward So, whichever view one takes of ‘intent’, asking in a murder case whether a given defendant had an ‘intent to kill’ will in certain cases give rise to problems. Either a defendant who deserves to be convicted of murder will be acquitted on the ground that he did not have an ‘intent to kill’. Or a defendant who does not deserve the label ‘murderer’ will have to rely on a defence to avoid a murder conviction – which defence may well be denied to him because of the problems that providing him with such a defence will entail for cases where a defendant acted with the aim or purpose of killing. Given this, there is a good case to be made for sweeping away the idea that a defendant will be found to have had the mens rea for murder if he had an intent to kill – and with it, the ‘gbh rule’. A new start must be made. What is needed is for the mens rea for murder to be defined in such a way that the Assassin (who acts with the aim or purpose of killing, usually as a means to achieving some other end such as earning money), the Bad Doctor and the Plane Bomber will all be held to have had the mens rea for murder; while at the same time, the doctors in the Conjoined Twins case, the Mountaineer and the Good Doctor will not. Lord Goff suggests that the Scottish concept of ‘wicked recklessness’ provides a way of discriminating between these cases; I would prefer to employ the American concept of ‘depraved indifference’. The word ‘depraved’ connotes a degree of inhumanity that the word ‘wicked’ does not. A knowingly drunk driver who mows down and kills a pedestrian might be said by some to be ‘wickedly reckless’; but no one could say that he is ‘depraved’. So, I suggest that the mens rea of murder be changed so that a defendant who has caused another’s death will be held to have had the mens rea of murder if, at the time he acted, he demonstrated a ‘depraved indifference’ to the value of human life. Implementation of this proposal would have the effect we desire. The Assassin, the Bad Doctor and the Plane Bomber would all be held to have had the mens rea for murder – all showed a ‘depraved indifference’ to the value of human life at the time they did what they did. At the same time, the doctors in the Conjoined Twins case, the Mountaineer
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and the Good Doctor will not be held to have had the mens rea for murder – none of them showed a ‘depraved indifference’ to the value of human life at the time they did what they did.
An objection It might be objected that if the law of murder were reformed in the way proposed, it would become intolerably uncertain. Whether a defendant was convicted of murder would depend on a jury’s wavering and varying intuitions as to what amounts to ‘depraved indifference’ to the value of human life. There would be no guarantee that like cases would be treated alike. The objection is overstated. The fact that a high degree of consensus exists on the issue of when someone shows a ‘depraved indifference’ to the value of human life is shown by the fact that everyone would agree that the Assassin, the Bad Doctor and the Plane Bomber show a ‘depraved indifference’ to the value of human life; and everyone would agree that the doctors in the Conjoined Twins case, the Mountaineer and the Good Doctor do not. Admittedly, there are cases where reasonable people could disagree over whether a given defendant showed a ‘depraved indifference’ to the value of human life. For example, consider the case where a Terrorist plants a bomb in a shopping mall and then in good time telephones a warning to the police. The police do not clear the mall in time and someone is killed by the bomb going off. In such a case, arguments could be made both in favour of, and against the view that the Terrorist showed a ‘depraved indifference’ to the value of human life when he acted as he did. On the one hand, the Terrorist actively wanted to expose other people to the risk of being killed; on the other, it was part of his plan that no one should actually be killed by the bomb. But in such doubtful cases, juries could be instructed to acquit the defendant of murder and convict him of some lesser offence.
Conclusion Glanville Williams is wrong. The mens rea of murder needs to be changed. Asking whether a defendant in a murder case had an ‘intent to kill’ does not provide a satisfactory basis for determining whether he should be found guilty of murder. This is so whatever view one takes of the meaning of the word ‘intent’. The law needs to
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be changed so that it says that a defendant who has caused the death of another will have had the mens rea for murder at the time he acted if, at that time, he showed a ‘depraved indifference’ to the value of human life.
You can see immediately that there are a number of key differences between my essay and yours. My essay uses a lot of concrete examples to make its points. My essay only mentions one case – and I only mention that case because it helps me make a point. My essay shows a greater awareness of the academic arguments in this area than yours did. My essay uses headings to help break up the essay and help show the reader where I’m going. My essay is less rushed than your essay – I take as much time as I need to make the point I want to make and then the essay stops. There is no ‘padding’ and no drifting off the point. In my essay I make it clear from the start what I am going to be saying – and for good measure, I conclude by restating what I have already said. In my essay I try and make interesting points, instead of getting hung up on boring or obvious points (such as that the ‘gbh rule’ should be abolished). I’ll stop comparing our essays now because I’m scared that if I go on you’ll become depressed. That’s not my intention (in the sense of ‘aim or purpose’). I’m simply pointing these things out to you because I want to help you write excellent essays in the future. If you adhere to the advice I’ve given you in this letter and the previous letter, there’s absolutely no reason why you shouldn’t in time start writing top-class essays. Remember that writing good essays is an art and one which isn’t really practised nowadays until you get to university – and even then not much attention is paid to it. So you shouldn’t beat yourself up over the fact that you aren’t very skilful at writing good essays at the moment – and you shouldn’t expect to become very skilful overnight. But with time and practice, there’s no reason why you shouldn’t succeed eventually. So be of good cheer, as the Bible says, and make the most of every opportunity you get from now on to write essays. Best wishes,
Nick
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17
LETTER SEVENTEEN
Answering Problem Questions Dear Sam, Having spent so long on advising you on writing essays, it’d be remiss of me if I didn’t also give you some advice on answering problem questions. So here goes.
Three Types of Problem Question There are basically three types of problem question that you might be asked to answer. The first is an essay disguised as a problem. Let’s call this a ‘Type A problem question’. Here’s an example:
Peter Smith is the leader of a political party that secured a majority of 80 MPs in the House of Commons at a general election held six months ago. Peter Smith duly became Prime Minister. He immediately offended the Queen by cancelling the Prime Minister’s weekly audiences with her. When the newspapers reported that ‘associates of the Queen’ had criticised Peter Smith for being ‘arrogant’, Peter Smith announced that his government would submit to Parliament a Bill that would allow a referendum to be called over whether the Queen should continue to act as Head of State or should be replaced by an elected President.
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Fred Jones – the Chancellor of the Exchequer and Peter Smith’s deputy – was incensed by this announcement as he was an ardent monarchist. He contacted the Queen to tell her that if he were Prime Minister, his government would not dream of seeking to remove her as Head of State. He also told the Queen that if he were invited to form a government, he was confident he could command a majority in the House of Commons as he had always been more popular than Peter Smith among MPs in their party. On receiving this news, the Queen summoned Peter Smith to see her and dismissed him as Prime Minister. She then invited Fred Jones to form a government, which he is in the process of doing. Peter Smith has now applied to the courts for a judicial review of the Queen’s decision, asking that they declare that the Queen acted unlawfully in dismissing him as Prime Minister. Discuss.
This problem question is really inviting you to write a descriptive essay that: explains the scope of the courts’ powers to review exercises of what is
called the royal prerogative (that is, powers that are exercised by the Monarch; these powers include the power to dissolve Parliament and the power to appoint the Prime Minister); and uses that explanation as a basis for offering an opinion on what the
prospects are of Peter Smith’s application for judicial review succeeding in this case. The second type of problem question you might be asked to answer is a genuine problem. Let’s call this a ‘Type B problem question’. This sort of question raises one or more issues that are genuinely problematic. What the law says on these issues will be very uncertain and you will be expected to expose that uncertainty and discuss how it might be resolved by the courts were they ever confronted with the problem question you are answering. An example of a Type B problem question is: Alf was employed by Bean plc. He owned a house worth £200,000, on which there was outstanding mortgage of £150,000. He also had 206
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an insurance policy with Crusty Insurers, under which Crusty undertook to pay off Alf’s mortgage if – while the insurance policy was in force – Alf was diagnosed as suffering from one of a number of illnesses, including cancer. In September 2003, Alf went for a medical check-up with Dr Dim. This check-up was arranged and paid for by Bean plc to ensure that their employees were healthy and occurred every year. Dr Dim carelessly failed to spot that Alf had a number of symptoms indicating that he had testicular cancer. Dr Dim also wrote in his report on Alf, ‘He clearly shows signs of being an alcoholic.’ In fact, Alf did not drink alcohol at all. On seeing Dr Dim’s report, Bean plc sacked Alf. Alf had to sell his house because he could not keep up the mortgage repayments – thus allowing his insurance policy with Crusty to lapse – and moved back in with his parents. It is now two years later. Bean plc is insolvent. Alf is still unemployed and his doctors have just diagnosed him as suffering from testicular cancer. His doctors tell him that if he has chemotherapy there is a 20% chance that the cancer will be cured. They also tell him that if his symptoms had been diagnosed two years ago and he had received chemotherapy then, there is an 80% chance that the cancer would have been cured. Advise Alf as to what, if any, claims in tort he can bring against Dr Dim.
You won’t know this at the moment because you haven’t studied tort law in sufficient depth, but it is genuinely uncertain whether Alf can bring a claim against Dr Dim in this situation. There are arguments on both sides – and in answering this problem question, you would be expected to show an awareness of this fact. The third kind of problem question you might be asked to answer is a shoot the ducks problem. Let’s call this a ‘Type C problem question’. Here’s an example: Albert was HIV positive; no one other than Albert and his doctor was aware of that fact. Albert had always fancied Britney, who was
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engaged to Charlie. One night Albert and Britney were at a party together, and Albert spiked Britney’s orange juice with very strong alcohol. Britney got very drunk and told Albert that she was scared that Charlie had been unfaithful to her. Albert lied to Britney, telling her that he had found out that Charlie had slept with Britney’s best friend, Debra, a week ago. Albert suggested that Britney get her revenge by having sex with him. Britney said, ‘Okay – but only if you use protection and pay me £300 cash in advance.’ Albert didn’t have the money, but approached his very rich friend Ernest, who was also at the party, and told him, ‘Look – I’m in a tight spot. I sold some cocaine to a friend of mine and he was caught by the police. He’s threatening to tell them I was his supplier unless I pay him £500 tonight.’ This was untrue. Ernest – who has often bought drugs from Albert – went to a cashpoint and withdrew the £500 needed, which he then gave to Albert back at the party. In the meantime, Albert bought a pack of condoms from a machine, using counterfeit coins. Albert then gave Britney £300, telling her, ‘Don’t tell Ernest I gave you this – I borrowed some money off him recently by telling him I was strapped for cash and he wouldn’t like it too much if he heard I’d been flashing this much money around.’ Britney then had sex with Albert. Unfortunately, the condom they used was defective and Britney is now HIV positive. What crimes, if any, have been committed in this situation?
This question isn’t genuinely problematic – the law on what crimes have been committed in this situation is pretty clear. What you have to do in answering this question is identify all the crimes that have been committed in this situation – the more crimes you spot, the higher your mark. So a Type C problem question is more of a memory test than anything else – can you remember enough of your Criminal Law to be able to pick out all the offences that have been committed in this situation? In what follows, I’ll give you some tips on answering Type B and Type C problem questions; the advice I gave you in the previous two letters should suffice to give you sufficient guidance on how to answer Type A problem questions. Unless I make the contrary clear, you should take it that my tips apply to answering both Type B and Type C problem questions. 208
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Some Tips 1 Issue spotting One of the most common reasons why students fail to do well in answering problem questions is that they fail to spot, and discuss, all of the relevant issues raised by a problem question. To avoid this failing, when you are thinking about a problem question, try first of all to look at the problem question from the point of the view of the person or persons who will be initiating proceedings in that situation. This will be the claimant or claimants if the problem is a contract problem or a tort problem; the applicant for judicial review if the problem is a public law problem; the prosecutor if the problem is a criminal law problem; and so on. Ask yourself – What sort of arguments will this person or these persons be making in this situation? So if it’s a criminal problem you are considering, you’ll be asking yourself – What sort of offences will the prosecutor be saying have been committed in this situation? What points will she be making to support her contention that those offences have been committed in that situation? Having done that, try then to look at the problem question from the other side – from the perspective of the person or persons who will be defending proceedings in that situation. This will be the defendant or defendants if the problem is a contract problem or a tort problem; the public body against whom judicial review is being sought if the problem is a public law problem; the defendant or defendants if the problem is a criminal problem; and so on. Ask yourself – What sort of arguments would I be trying to make if I were acting on behalf of the persons defending proceedings in this situation? How would I try and knock out the case that is being made against them by the person initiating proceedings? So if it’s a criminal problem you are considering, you’ll be asking yourself – Is there any way of establishing that the defendants did not commit the offences they are going to be charged with? Is there any element in the definition of those offences that creates a weak point in the case against those defendants? Now of course, if you are doing a Type C problem it will often be the case that nothing can be said on behalf of those defending proceedings in the situation you are considering. A particular defendant is simply liable or 209
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guilty. But it’s essential that whenever you are looking at a problem question that you look at the problem from both sides. Doing this should help you identify all the relevant issues raised by the problem and put you in an excellent position to write a good answer to the problem question. 2 Adopt a direct approach in writing a problem answer Having said all that, I must emphasise straightaway that this process of looking at a problem question from both sides should be engaged in as a an exercise – whether in your mind or on a bit of rough paper – when you are considering the problem question for the first time and thinking about what to say in response. When you write your final answer to – say – the Type C problem set out above, you must not write things like:
The prosecution will argue that Albert committed the crime of rape when he had sex with Britney. They will argue that Britney did not consent to have sex with Albert when she had sex with him. They will argue that section 76(2)(a) of the Sexual Offences Act 2003 applies here. They will argue that Britney cannot be said to have consented to have sex with Albert because he intentionally deceived her ‘as to the nature and purpose of’ what they were going to do together – either by deceiving her about the fact that he was HIV positive or by deceiving her about whether Charlie had been unfaithful to her. On the other hand, Albert will argue that section 76(2)(a) will not apply here because: (1) the fact that he was HIV positive did not make his and Britney’s having sex totally different in nature from what Britney thought it would be; (2) he did not intentionally deceive her about the fact that he was HIV positive – he merely failed to tell Britney about that fact; and (3) the fact that he lied to Britney about Charlie being unfaithful to her did not mean he deceived her about ‘the nature and purpose of’ what they were going to do together. If the prosecution is unsuccessful on this point, they will argue that section 75(2)(f) of the Sexual Offences Act 2003 operates here to raise a presumption that Britney did not consent because Albert administered to her a substance that was capable of stupefying her 210
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at the time she had sex with Albert. On the other hand, Albert will argue that this presumption is rebutted in this case because, despite the fact that he gave her the alcohol, Britney did genuinely consent to having sex with him: a drunken consent is still consent.
This is a terrible way of answering a problem question. It makes you look like you don’t know what to think. Alternatively – and even worse – it makes it look like you are deliberately being cagey in order to avoid taking a position that might be incorrect. Looking at a problem question from both sides is merely meant to help you identify the issues raised by a problem question. You should adopt a quite different approach when actually writing your answer to the problem question. I think the best problem answers adopt a very direct style. They always tell the reader where they are going before they get there. So I wouldn’t recommend that you say, in answering the type C problem set out above: I will now consider whether Albert was guilty of rape when he had sex with Britney. In order to establish that Albert was guilty of rape, it must be established that: (1) Albert had sex with Britney without her consent; and (2) Albert had no reasonable grounds for believing that Britney was consenting to have sex with him. On the first issue, section 76(2)(a) of the Sexual Offences Act 2003 provides that Britney could not be said to have consented to have sex with Albert if he intentionally deceived her as to the ‘nature and the purpose’ of what they were going to do. But this probably does not apply here because Albert did not intentionally deceive her as to the ‘nature and purpose’ of what they were going to do. The fact that he was HIV positive did not change the ‘nature and purpose’ of what they were going to do; and in any case Albert did not intentionally deceive Britney about his HIV status. Albert did deceive Britney about the fact that Charlie had been unfaithful to her but that did not change the ‘nature and purpose’ of what they were going to do. Section 75(2)(f) of the Sexual Offences Act 2003 provides that there is a presumption that a complainant in a rape case is not to be
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taken to have consented if ‘any person administered to. . . the complainant, without the complainant’s consent, a substance which. . . was capable of causing the complainant to be stupefied or overpowered at the time’ the complainant had sex. This section applies here because before having sex with Britney, Albert administered a substance to her that was capable of causing her to be stupefied at the time she had sex with Albert. But the presumption that Britney did not consent that is raised by section 75(2)(f) is rebutted in this case because Britney was not in fact stupefied when she had sex with Albert and did in fact genuinely consent to have sex with him. So it seems that Albert will not be found guilty of rape because Britney will be found to have consented to have sex with him – so the first element of rape will be missing here.
This is a big improvement on the ‘sitting on the fence’ answer to this problem that I set out above; and it is probably a good idea for beginners to adopt this very ‘careful’ style in answering problem questions, so that they don’t miss anything. But you should ultimately be aiming to write something much more direct in your problem answers: Albert was not guilty of rape when he had sex with Britney: she genuinely consented to have sex with him. Section 76(2)(a) of the Sexual Offences Act 2003 does not apply here to raise a conclusive presumption that Britney did not consent to have sex with Albert. Albert did not intentionally deceive Britney about whether he was HIV positive (he merely failed to tell her he was HIV positive) and even if he did, his deception did not relate to the nature and purpose of what they were going to do together: sex with a man who is HIV positive is no different in nature or purpose to sex with a man who is not. Albert did intentionally deceive Britney about whether Charlie had been unfaithful to her, but that deception did not relate to the nature and purpose of what they were going to do together. Because Albert administered to Britney a substance that was capable of stupefying her at the time she had sex with him, section 75(2)(f) of the 2003 Act does apply here to raise a presumption that Britney did not consent to have sex with Albert. But it is submitted that, that presumption is rebutted here because Britney was not in fact stupefied at the time she had sex with 212
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Albert and fully knew what she was doing. The fact that she would probably not have had sex with Albert had she not been drunk is, of course, irrelevant: a drunken consent is still consent.
This answer is much less ponderous than the ‘careful’ answer that immediately preceded it. It is therefore much easier to read and – crucially – uses far fewer words to make the same points. This can be absolutely vital when you are doing a Type C problem question in an exam and have to make lots of points in very limited time. Even when you are doing a Type B problem, I would recommend adopting a direct style. So in answering the Type B problem set out at the start of this letter, I wouldn’t recommend – except to beginners – that one write: In order to sue Dr Dim in negligence, Alf will have to establish: (1) that when Dim examined him and made his report to Bean plc, Dim owed Alf a duty of care; (2) that Dim breached that duty of care; (3) that Dim’s breach of that duty of care caused Alf to suffer some kind of loss; and (4) that that loss is actionable. On the first issue, it is difficult to say whether Dim owed Alf a duty of care in examining him and making his report to Bean. The authorities on this issue are in an uncertain state. On the one hand, Spring v Guardian Assurance Ltd established that an employer will owe an exemployee a duty of care in writing a reference for him because of the impact a bad reference might have on the ex-employee’s job prospects. This case could be extended incrementally to cover this one: there seems little difference between writing an unfairly bad reference for an ex-employee which causes the ex-employee not to get a job and writing an unfairly bad observation on a medical report which causes an employee to be sacked. Indeed, the second act is much worse than the first. However, in Kapfunde v Abbey National the Court of Appeal ruled that a doctor who conducts a medical inspection of a prospective employee will not owe the prospective employee a duty to take care not to ‘doom’ the prospective employee’s employment prospects by making an inaccurate diagnosis of the prospective employee’s health. On balance, it is possible to argue that Kapfunde was either wrongly decided or does not apply here. . . 213
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A much more direct approach will save time and allow one to go into the issues in more depth if writing under a time constraint: Alf will want to bring two claims against Dr Dim in this case. The first is for compensation for the fact that had Dim inspected him properly, Alf’s testicular cancer would – in all probability – have been cured. The second claim is for compensation for the losses suffered by Alf as a result of losing his job – including the insurance payment that he did not receive from Crusty when his cancer was finally diagnosed because he had had to sell his house on losing his job. The first claim will probably fail; the second claim will probably succeed. The problem with Alf’s first claim is that it is doubtful whether Dim owed him a duty to examine him properly. After all, Dim was working for Bean plc when he examined Alf and he did not tell Alf – when he examined him – that Alf had a clean bill of health, thus lulling him into a false sense of security. If Dim did not – as I contend – owe Alf a duty to examine him properly, Alf cannot sue Dim for the losses he has suffered as a result of Dim’s failure to examine him properly. In particular, he cannot sue Dim for the fact that in all probability he would not now have testicular cancer had Dim examined him properly. Alf is much more likely to be successful in bringing his second claim for compensation against Dim. Alf will be able to claim that Dim owed him a duty to take care not to misrepresent his medical condition to Bean; that Dim breached that duty; and that Dim is liable for the loss of employment and consequential losses that Dim’s breach caused Alf to suffer. The main authority in favour of the proposition that Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean is Spring v Guardian Assurance Ltd. In that case. . . Admittedly, the decision of the Court of Appeal in the Kapfunde case seems to indicate that Dim did not owe Alf a duty of care in this case. In that case. . . However, the decision in Kapfunde was flawed by a misinterpretation of the basis of the House of Lords’ decision in Spring. . . In any case, even if Kapfunde is good law, it can be distinguished here: there is a big difference between stopping a prospective employee getting a job by giving him a bad medical report and getting a prospective employee sacked by giving him a bad report.
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Do you see the difference? The direct style is much more assured and controlled. It makes you look more of a ‘star’ and therefore much more likely to impress whoever is reading your answer. At the same time, adopting a direct style doesn’t stop you acknowledging uncertainties or ambiguities in the law – something which is crucial when doing a Type B problem. But instead of being paralysed by those uncertainties and ambiguities, you are acknowledging them in order to clear them up. Of course, you can’t adopt a direct style in answering a problem question unless you know where you are going. So it is essential before you write out your final problem answer, that you scribble down on a piece of rough paper the points or issues raised by the problem question and consider how those points or issues are likely to be resolved by the courts. Once you’ve done that, you can then start to plan how you will set out your answer. 3 In doing a problem question in an exam, give the examiners what they want Here is a small part of a problem question set in a Criminal Law exam: . . . Jeremy walked out of the bar in a drunken state and got into his car. He drove off at 60 mph and five minutes later accidentally ran over and killed Kyle, who was crossing the road. . .
You are asked to discuss what offences, if any, have been committed in this situation. Should you discuss whether Jeremy is guilty of murder in this situation? The answer is ‘no’ – it’s so obvious that he’s not guilty of murder (he didn’t intend to kill anyone when he was driving drunk down the road at 60 mph), there’s really no point in discussing it. You should consider instead whether Jeremy is guilty of some lesser homicide offence, such as manslaughter or causing death by dangerous driving. Here’s another small part of a problem question set in a Criminal Law exam: . . . Kyle suggested to Jeremy that they play a game of Russian Roulette. Kyle took a revolver with six chambers and placed a bullet in one of the chambers, leaving the other five chambers empty.
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Kyle spun the chambers, pointed the gun at Jeremy and pulled the trigger. The gun ‘clicked’ harmlessly. Kyle handed the gun over to Jeremy and invited him to play. Jeremy spun the chambers, pointed the gun at Kyle, and pulled the trigger. The gun fired and Kyle was shot dead instantly. . .
Again, you are asked to discuss what, if any, offences have been committed in this situation. Should you discuss whether Jeremy is guilty of murder? The answer is ‘yes’ – even though, just as in the previous situation, it’s obvious he is not guilty of murder (because, again, Jeremy could not be said to have intended to kill Kyle when he pulled the trigger). So why should you consider whether Jeremy is guilty of murder in this situation, but not in the previous situation? The answer is that in answering a problem question in an exam, you should discuss whatever issues the examiner wants you to discuss. Now it’s highly likely that the examiner who set the second problem question wants you to discuss whether Jeremy is guilty of murder, so as to make you demonstrate that you understand that someone will only be guilty of murder if he causes death with an intent to kill and that you understand when someone will be held to have had an intent to kill. So if you don’t discuss whether Jeremy is guilty of murder and just go straightaway to consider whether Jeremy is guilty of a lesser homicide offence, the examiner will think, ‘I wonder whether this candidate didn’t discuss whether Jeremy is guilty of murder because she knew that he’s not guilty – or because she just didn’t think about the possibility.’ And the examiner will mark you down just in case the latter is true. So in doing a problem question in an exam, give the examiners what they want. Discuss the issues that the examiner had in mind in setting the problem question. You may be wondering: How on earth am I going to know what the examiner wants? Well, if you do the issue spotting exercise that I gave you earlier, you won’t fail to see any issues that are raised by a problem question. And then you’ve just got to use your judgement to weed out the issues that the examiner can’t have meant you to discuss when he set the problem question. Whatever is left at the end of this weeding out process, you should discuss. 216
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4 Presume that everything is relevant Let’s consider a small part of the Type C problem that was set out at the start of this letter:
Ernest – who has often bought drugs from Albert – went to a cashpoint and withdrew the £500 needed, which he then gave to Albert back at the party. In the meantime, Albert bought a pack of condoms from a machine, using counterfeit coins.
In considering how to answer a problem question, you should presume that all the details in the problem question are going to be relevant to your answer. Asking yourself, ‘Why’s that detail been inserted into the question?’ can often help you identify issues that you might otherwise have missed. So, for example, why has the person who set the above problem gone out of his way to say that Albert used counterfeit coins to buy the condoms? Thinking about this helps you to see that there’s an issue here which the problem setter wants you to discuss: Whether Albert is guilty of committing the offence of obtaining property by deception. (He’s not: in law, you can’t deceive a machine.) But you should only presume that all the details in a problem question are going to be relevant to your answer. If you blindly assume that every detail in a problem question must be relevant, it can seriously unhinge your answer. For example, the above problem question goes out of its way to say that Ernest has often bought drugs from Albert. Does this mean that the person who set this problem wants you to discuss what offences Ernest might have committed in buying drugs from Albert and what offences Albert might have committed in selling drugs to Ernest? This is highly unlikely. (How do I know? Again, it’s just a matter of good judgement.) It’s more likely that this detail has been inserted to keep the problem going along. It helps to explain why Ernest believes Albert’s story and why he is willing to help Albert out. It follows that if you spend lots of time explaining what offences were committed by Ernest and Albert in buying and selling drugs, you will just be wasting time that could be more profitably spent on discussing other issues raised by the question. 217
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So in doing a problem question you’ve simply got to trust your judgement and your knowledge of the law. If a problem question contains a particular detail and you’ve concluded that – (a) it’s not relevant to your answer; and (b) you’re not meant by the person who set the question to discuss why it’s not relevant – then just ignore it. 5 Using cases in answering problem questions In answering problem questions, you should follow this rule: Support every legal statement you make by referring to a case or a statute unless the legal statement in question is so well-known to be true among lawyers that it doesn’t need to be supported.
This needs a bit of explanation. A legal statement is one which only a lawyer is qualified to make. ‘The sun is shining’ is obviously not a legal statement – anyone might be qualified to make that kind of statement. ‘In law, you can’t deceive a machine’ is a legal statement – only someone who knows something about the law, a lawyer, is qualified to make that kind of statement. Some legal statements are so well-known to be true that you can make them without providing any support for them. Examples of such statements are: ‘A defendant will have had the mens rea for murder if he acted with an intent to kill or an intent to cause grievous bodily harm’; ‘A promise is not contractually binding in English law unless it is supported by consideration or made in a deed’; ‘A defendant will only be held liable to pay damages in negligence to a claimant if he has breached a duty of care owed to that claimant.’ Now in providing support for a legal statement that you have made, it’s usually sufficient to refer simply to the name of a case in which that statement was endorsed, either by putting the name of the case in brackets after your statement or by putting a colon after your statement and then the name of the case. Like so: In law, you cannot deceive a machine (Goodwin). In law, you cannot deceive a machine: Goodwin.
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Here you are referring to the case of R v Goodwin [1996] Crim LR 262. You need do no more than refer to the name of the case. Setting out the facts of the case and discussing how it was decided won’t add any more support to your statement, so it would just be a waste of time. But if you are making a legal statement that is more controversial and which finds no direct support in the cases, then you will need to do a lot more to support your statement than simply refer to the name of a case. Take, for example, the statement that: Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean plc.
Now there is no case that directly supports this statement. In Spring v Guardian Assurance Ltd [1995] 2 AC 296, the House of Lords ruled that an employer will owe an ex-employee a duty of care not to supply the exemployee with an unfairly bad reference. In order to argue that the decision in Spring supports the statement that Dim owed Alf a duty of care not to misrepresent his medical condition to Bean plc, you are going to have to show that the House of Lords’ decision in Spring rested on some principle, that this principle applies in Alf ’s case and indicates that Dim owed Alf a duty of care not to misrepresent his medical condition to Bean plc.
So, for example, in my textbook on tort law, I argue that the decision in Spring rests on a ‘dependency principle’, which says that if A takes on a job (such as giving a reference) knowing that B’s future welfare is almost entirely dependent on A’s doing that job properly, then A will owe B a duty to do that job with a reasonable degree of skill and care. If this is 219
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right, then that would indicate that Dim owed Alf a duty of care not to misrepresent his medical condition to Bean plc. After all, when Dim took on the job of examining Alf, he knew that Alf ’s future employment prospects with Bean plc were almost entirely dependent on his examining Alf with a reasonable degree of care and skill. So if the decision in Spring does rest on the ‘dependency principle’, then the decision does provide some support for the statement that Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean. But in order to make out that the House of Lords’ decision in Spring does rest on the ‘dependency principle’, you would have to refer in quite a lot of detail to the facts of the case and what the judges said in that case, showing how the ‘dependency principle’ provides the most appealing explanation of why the judges came to the decision they did in the Spring case. So in order to provide effective support in your problem answer for the proposition that Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean, you will have to discuss the decision in Spring in some depth. Certainly, it wouldn’t be enough simply to say: Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean plc: Spring v Guardian Assurance Ltd.
Nor would it be enough to say: Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean plc: see Spring v Guardian Assurance Ltd, which holds that if A takes on a job knowing that B’s future welfare is almost entirely dependent on A’s doing that job with a reasonable degree of skill and care, then B will owe A a duty to do that job with a reasonable degree of skill and care.
Instead, you would have to say something along the following lines: Some support for the proposition that Dim owed Alf a duty to take care not to misrepresent his medical condition to Bean plc is provided by the case of Spring v Guardian Assurance Ltd. In that case 220
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. . .[insert summary of the facts here]. The House of Lords found that the defendant had owed the claimant a duty to take care not to supply him with an unfairly damaging reference. Lord Goff argued that a duty of care was owed because the defendant had ‘assumed a responsibility’ to the claimant. This seems implausible: at no stage did the defendant promise to supply the claimant with a fair reference and indeed the reference was not even supplied at the claimant’s request. There is some suggestion in the subsequent case law (see the decision of the Court of Appeal in Kapfunde) that the source of the duty of care in Spring was that the claimant and the defendant were at one time in an employer–employee relationship and that the decision in Spring does no more than establish that employers will owe ex-employees a duty to take care not to provide them with unfairly damaging references. However, a close examination of the facts in Spring shows that the claimant and the defendant were never in an employer–employee relationship, and the House of Lords went out of its way to indicate that this issue was immaterial to its decision. Moreover, it seems implausible to suggest that the House of Lords would have reached a different decision in Spring had, say, the claimant been an ex-student and the defendant a university tutor; or if the claimant had been applying for a research position and the defendant had been an independent referee brought in to assess the quality of the claimant’s work. The better view, it is suggested, is that the duty of care in Spring arose out of the high degree of dependency that existed between the claimant and the defendant, where the claimant’s future job prospects – as the defendant well knew when he took on the job of writing a reference for the claimant – were almost entirely dependent on the defendant’s taking care not to supply the claimant with a reasonable degree of skill and care. . . [refer to any helpful dicta in the Spring decision that support this interpretation here]. If that is right, then it possible to argue that the decision in Spring provides some support for the proposition that Dim owed Alf a duty of care in this case. Just like the defendant in Spring, when Dim took on the job of examining Alf, he knew full well that Alf’s future employment prospects with Bean were almost entirely dependent on Dim’s taking care not to misrepresent Alf’s medical condition to Bean. As a result, it can be argued that Dim owed Alf a duty to take care not to misrepresent Alf’s medical condition to Bean. 221
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This is the sort of thing you would be expected to write if you wanted to get a good mark for your answer. (I hope what I’ve just written also makes it clear, if it wasn’t clear already, why just making a note of the headnote of the cases you are told to read will leave you hopelessly unprepared to do well in the exams.) 6 Don’t criticise the law in a problem answer In writing an answer to a problem question, you should simply seek to explain what the law says. You shouldn’t seek to go on to criticise what the law says – that sort of thing should be reserved for an essay, not a problem answer. Of course, if you are doing a Type B problem question, where it is genuinely uncertain what the law says on a particular issue, it’s legitimate to say that you think the courts would ultimately decide that the law says x rather than y, because if the law said y it would be in an unsatisfactory state. But once you have settled on what the law says, that’s the end of it – you shouldn’t go on to say that you think that what the law says is good or bad. 7 Headings Make sure to use headings to divide up your problem answer. This has a number of advantages. First, it will make your answer much easier to read and follow. Secondly, using headings will help you see at a glance what issues you have already covered – and as a result what issues remain to be discussed. So using headings can help ensure that you don’t inadvertently fail to discuss some vital issue raised by the problem question. Thirdly, using headings can be a great time saver. Instead of saying: I will now consider whether Albert has committed the offence of rape. . . I will now consider whether Albert has committed the offence of obtaining property by deception. . . I will now consider whether Albert has committed the offence of theft. . . I will now consider whether Albert has committed the offence of obtaining services by deception. . . I will now consider whether Albert has committed the offence of maliciously inflicting grievous bodily harm. . . 222
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You can simply say: Offences that may have been committed by Albert Rape ... Obtaining property by deception ... Theft ... Obtaining services by deception ... Maliciously inflicting grievous bodily harm ...
I recommend that in doing criminal problems, you should normally use a heading for each possible defendant and then sub-headings for each crime that that defendant might have committed. In doing tort problems, you should use a heading for each possible claimant, then subheadings for each defendant that that claimant might be suing and then sub-subheadings for each cause of action the claimant might have against a particular defendant, if she has more than one. In the case of problems on other subjects, which can’t be so neatly structured as criminal problems or tort problems, your headings should identify each of the issues that stand in the way of whoever is initiating the proceedings succeeding in her action, prosecution or application, as the case may be. 8 Tort problems Talking of tort problems, you can get further specific guidance from me on how to do such problems – as well as a number of model answers to sample tort problems – by going to the website that accompanies my Tort Law textbook. Go to www.pearsoned.co.uk/mcbride, then click on ‘Companion website’ and scroll down to ‘Tort law problem resource’. 223
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9 Abbreviations and note form In order to save time in the exams, many students write problem answers using abbreviations and a note form style of writing. For example: A not glty of rape: B consented. Irrebuttable presumption of no consent (SOA, s.76(2)(a)) does not apply here: no intentional deception of B as to ‘nature and purpose’ of act (deception about HIV does not count because sex with HIV+ man no different from sex with HIV man; deception about C not relevant). May be presumption of no consent under SOA, s.75(2)(f) because A spiked B’s drink, but presumption rebutted here because B – despite spiking – still consented to sex.
Abbreviations are fine and I would have no problem with you using them – but ensure that you introduce them properly. If you are going to be using the letter ‘A’ for ‘Albert’ then the first time you refer to ‘Albert’ write his name out in full followed by, in brackets, the abbreviation you will be using for ‘Albert’. Like so: ‘. . . Albert (‘A’). . .’ Similarly, if you are going to be using an abbreviation for an Act of Parliament, like the Sexual Offences Act 2003, the first time you refer to the Act, refer to it by its proper name and then follow it, in brackets, with the abbreviation you are going to use for that Act from now on. Like so: ‘. . . the Sexual Offences Act 2003 (‘SOA’). . .’. So far as using note form and shortened words to write a problem answer is concerned, I would recommend that you try and avoid doing this in an exam. If you are under severe time pressure then okay – but otherwise you should try and turn in something that is more polished and elegant. Why? Simply because note form answers are hard to read and examiners don’t like having to be made to work harder than necessary when they are marking exams – and they are liable to punish students who go out of their way to make their lives difficult. 10 Essay or problem question? My students sometimes ask me, ‘If we have a choice in the exam between doing an essay or a problem question, which should we go for?’ It’s tricky.
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I think it’s easier to write an essay that will get a high mark than a problem answer that will get a high mark. (I’m talking here about discursive essays, which are the main kind of essays you might get asked to write in an exam.) The reason for this is that the general standard of essay writing among students is so low that an essay that is well-written, interesting and well-argued will be seized on by the examiner with tears of gratitude and awarded with a very high mark. In contrast, to get a high mark for a problem answer – in particular, an answer to a Type C problem question – it’s essential that you cover all the issues raised by the problem question and don’t make a mistake in discussing those issues. If you miss even one issue or mis-state the law on one point, that will drag your mark down. So I often compare writing a problem answer with defusing a bomb – one false step and it’s all over. And when I’m marking a problem answer that has started off well, I often find myself holding my breath – I’m in such suspense to know whether the writer is going to be able to get to the end of the answer without it all going horribly wrong. In contrast, if you make one weak argument in an essay that is otherwise of a high standard, the examiner will usually be indulgent and think, ‘Well, so what if she made one weak argument? The overall standard was so good, this should definitely get a high mark.’ Given that, you might think my advice to my students would be to choose to do an essay over a problem answer every time. But there is a downside to that choice. It’s this: marking an essay involves a lot more judgement on the part of the examiner than marking a problem answer. So if you write an essay, you’re always taking a bit of a chance with what mark you get for it. It may be that your essay is, objectively, really good – but it’s given a poor mark because it rubbed the examiner up the wrong way or because the examiner was in a bad mood when he marked it. In contrast, if you write a problem answer that covers all the issues raised by the question, does so in an intelligent way, doesn’t mis-state the law, backs up every legal statement by reference to a case or a statute – you can be sure you are going to get an excellent mark for your answer whoever the examiner is.
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To sum up, then:
It’s easier to guarantee a high mark for a problem answer than it is for an essay – you can never be sure that an essay you write will get a high mark. But, on the other hand, it’s easier to get a high mark for an essay than it is for a problem answer. So what should you do if you have a choice between writing an essay and a problem answer? If you are confident that you could write a better essay than a problem answer (or vice versa), then obviously go for the essay (or problem answer, as the case may be). If you are so talented that you think you could do both really well, go for the essay if you don’t think there’s much chance that what you say will rub anyone up the wrong way. (You’ll just have to take a chance on the examiner not being in a bad mood when she marks your essay.) If, on the other hand, what you have to say is quite controversial and might annoy the examiner if she takes a different view, there’s no point in taking a chance – do the problem answer instead.
That’s enough advice from me for today – and perhaps forever! Good luck with your studies and don’t hesitate to get in touch if you need any more help. Best wishes,
Nick
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LETTER EIGHTEEN
Tips on Revising Dear Sam, I didn’t think I’d be writing to you again so soon after my last letter. I can hardly believe your first term has finished – it’s gone by so quickly! But I’m pleased you got in touch to ask me for some advice as to how best to go about revising the work you’ve done already during the Christmas holidays. It’s essential that you make the most of your holidays and not leave the job of revising your work until the exams are almost upon you. There are two things you’ve got to do when revising your subjects. First, improve your knowledge of the areas of law that you have been studying. Secondly, improve your skills at answering essay and problem questions. I’ll talk about both in turn. To keep things simple, I’ll give you advice on how to revise the work you’ve already done on ‘X law’ – where ‘X’ stands for ‘criminal’, ‘constitutional’, ‘tort’, ‘contract’ or the name of any other subject you might be revising. My advice applies equally well whatever the subject.
Improving Your Knowledge I hope you followed the advice on studying law that I gave you a few letters ago. If you have been – and you’ve been doing such things as continually thinking about and making notes on topics relating to X law; continually adding to your notes on relevant cases and statutes on X law; and continually reworking your notes in your topic file and your case file on X law – then a great deal of knowledge about X law should by now have started to sink into your long-term memory. 227
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But whether you have been doing these things or not, there are still some things you can do to improve your knowledge of the areas of X law that you’ve been studying already. And I don’t mean making lots of ‘revision notes’. We’ve got to get away from that method of revising. Making revision notes is a hateful and depressing method of revision that will simply bore you silly. Within half an hour of starting to make revision notes your mind will have turned off in disgust and nothing you do after that first 30 minutes will actually be absorbed. What we want to do is employ more creative and interesting ways of revising – ones which will open up your mind and make it receptive to absorbing the knowledge with which you are supplying it. But before I get onto those, I want to say something that’s very important. In revising X law, you should concentrate on improving your knowledge of the areas of X law, and issues surrounding X law, that are likely to come up in the exam. This isn’t rocket science. If issue A isn’t very likely to form the basis of a question in your exam on X law and issue B is very likely to come up in a question in that exam, then it makes sense to concentrate your efforts on improving your knowledge of issue B, rather than issue A. (Though you shouldn’t neglect issue A entirely.) Tips on what may come up in an exam But – you will definitely be asking – how can I tell what’s going to be coming up in the exam? Well, of course, you can’t tell exactly – but you can make some educated guesses. Here are some tips on spotting what is likely to come up in the exam. 1 Past papers. Look at the past papers that have been set on X law over the past few years. Is there an issue that tends, time and time again, to form the basis of a question in the X law exam? If so, be prepared for a question on that issue to come up again.
2 Last year’s paper. Pay particular attention to last year’s paper. Examiners tend not to set the same sort of essay questions two years in a row, so if there was an essay question on last year’s paper on a particular issue, it’s not likely you will get a similar essay question this year. So preparing for such a question to come up will often be a complete waste of time.
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3 Recent developments. Examiners are human beings. When an examiner sits down to write an exam, he can often feel very jaded and uninspired. Lacking in ideas for good essay and problem questions, he will often turn to recent cases and articles for inspiration. So, in your revision, pay a lot of attention to recent developments in X law. A case decided in the past year is far more likely to form the basis of a problem question in the exam than a case that was decided five years ago. An article that was published in the past year is far more likely to supply a quote for an essay question than an article that was published five years ago. An issue relating to X Law that has made the newspapers in the past year is far more likely to form the basis of an essay question or a problem question than an issue that was dominating the headlines five years ago. So make sure that your revision concentrates a lot on improving your knowledge of:
recent cases relating to X law (and what academics have to say about them)
recent articles on X law (don’t limit yourself to the articles you have been told to read: explore the journals and recently published books for articles that the examiner might have come across)
recent issues relating to X law that have made the news. 4 The examiner. I’ve made this point before, but if you know who the examiner setting your paper is, then listen out for any hints that she might give in her lectures as to what might be covered in the exam paper and, just as importantly, what won’t be covered in the exam paper. Also try and find out what the examiner has been writing about in the past year or so. It may be that she will draw on her work for ideas for essay or problem questions.
That’s enough tips on how to spot what might come up in the exam – let’s now get onto some tips on how to improve your knowledge of the areas of X law that you’ve been studying so far. 229
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1 Writing essays and problem answers This is by far the most effective way of improving your knowledge. By pulling your notes together to write an essay or a problem answer, you will be helping all the material in your notes sink into your long-term memory. Remember that I told you in a previous letter that the most effective way of remembering anything was to use it? Well, by using the information in your notes to write essays and problem answers, you will be helping yourself to remember that information. See how wonderfully things are arranged for us! There are two things you have to do as part of your revision to give yourself a chance of doing well in your exam on X law – improve your knowledge of X law, and improve your skills at writing essays and problem questions on X law. And it turns out that there is a way of doing both of these things at the same time – writing lots of essays and problem answers! So go through the past papers, pick out some essays and problem answers that are representative of the kind of thing that might come up in the exam and attempt them with the assistance of your notes. If I had my way, you would spend most of your revision time doing this – the benefits are enormous. 2 Making diagrams linking various cases together Pursuing the same theme of using information as the most effective way of remembering it, use your notes in your case file to construct diagrams linking various cases. Remember what I said in an earlier letter – that cases become much easier to remember if they’re strung together? Well, that’s the object of constructing diagrams linking various cases together. Let your mind go free in conjuring up possible topics which could be used as the basis for a diagram. Your topic file should provide a good source of ideas, but you shouldn’t be limited to the topics in your topic file. So, for example, if you were revising criminal law, a possible topic for a diagram might be ‘U-turns in the criminal law’ – with the diagram setting out all the cases where the courts have reversed earlier well-established decisions on the criminal law along with some explanation as to why. Alternatively, if you were revising constitutional law, a possible topic might be ‘The rise 230
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and fall of Parliamentary sovereignty’ – with the diagram setting out all the cases on Parliamentary sovereignty, indicating which cases have tended to uphold it and which cases have tended to undermine it. And if you were revising contract law, a possible topic might be ‘Lord Denning’s impact on contract law’ – with the diagram taking a number of contract cases decided by Lord Denning and tracing how those cases have affected, and been affected by, the subsequent case law. These topics would all make the basis for really interesting diagrams that would help develop your understanding of the law a great deal. But, ultimately, it doesn’t really matter what your diagrams are about – the important thing is that you use your notes in your case file to construct them. Your using those notes will help them sink into your long-term memory. 3 Thinking about news stories Try and think about any news stories you come across from a legal angle. For example, at the time I’m writing this, Channel 4 is showing a series called ‘Space Cadets’. Channel 4 has managed to fool a number of people that they are being trained to go into space. In fact, they won’t even leave the ground – Channel 4 will use special effects to make the ‘space cadets’ think that they are being launched into, and travelling in, space. The series depicts the gruelling training that the ‘space cadets’ have undergone to get them fit enough to go into space and will culminate in the ‘launch’ into space. Now on hearing about this series, a good law student will immediately start thinking about the legal implications. Are Channel 4 committing a crime by fooling the ‘space cadets’ into thinking that they are going into space – maybe dishonestly obtaining services by deception? Could Channel 4 be sued by the ‘space cadets’ once the truth comes out? Could the ‘space cadets’ argue that there is a contract between them and Channel 4 under which Channel 4 has undertaken to use its best endeavours to get them into space? If so, what remedies would be available to the ‘space cadets’ once they discover that Channel 4 has breached this contract? Could the ‘space cadets’ sue Channel 4 for a share of the profits that Channel 4 will make from showing this series? 231
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Lots of interesting issues – and by thinking about them, and consulting your notes to try and resolve them, you will be helping the information in your notes to sink into your long-term memory. And who knows? Maybe the examiner will draw inspiration from this story and use it as the basis of a problem question in the exam – in which case, you will have a big advantage over everybody else in the exam. 4 Mooting A ‘moot’ is a mock case, centred around one or two difficult points of law. Doing a moot – representing one side or the other in the case – can be an excellent way of revising the area of law covered by that case. Once again, by using the cases and statutes, you help yourself remember them in the long term. Your university law society will normally run quite a few mooting competitions – when you go back next term, try and get involved in them. Don’t be nervous about speaking in front of an audience – if you are well prepared, you will be absolutely fine. 5 Extra reading Reading more material relating to the subjects you have been studying in X law is a good way of both expanding your knowledge of X law and helping what you have already learned about X law sink into your long-term memory. Make sure that what you read is interesting, so your mind doesn’t shut up shop while you are reading it. So the more off-beat and ‘alternative’ the material, the better. Even better if it crosses a number of different traditional boundaries within X law and gets you seeing connections between cases that you might not have seen before. Books published by Sweet & Maxwell in the ‘Understanding Law’ series and books published by Cambridge University Press (previously published by Butterworths/ LexisNexis) in the ‘Law in Context’ series are particularly good for this purpose.
These are all methods of improving your knowledge of X Law that you can employ on your own. If you are a member of a study group, then there are some additional methods open to you. 232
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6 Writing papers I’ve been told that one academic I know tells his students to revise by writing a textbook on the subject they are revising. It’s not a bad suggestion. Writing a textbook on a subject forces a student to make the subject clear to herself. In addition, writing a textbook is a very effective way of making the details of the law sink into a student’s long-term memory. The problem with this suggestion is that one student acting alone probably doesn’t have enough time available to embark on such an ambitious project. But if you are a member of a study group revising X law, you could collaborate on writing a textbook on X law by getting each member of the group to write a paper on a different area of the X law. The idea is that each paper – American students call it an ‘outline’ – would summarise everything that there is to be said about the area of law covered by that paper. Writing your paper would help you in the same ways as writing a textbook would. It forces you to make clear to yourself the area of the law you are writing about (even more so as you would be writing, in part, for other people). It would also help you get the details of that area of the law into your long-term memory. And you would of course benefit from reading the papers written by the other members of the study group. What would make the whole exercise even more beneficial would be if you circulated drafts of your papers for comments from other members of the study group. Getting comments back from other members on your draft would be immensely helpful to you. If you’d somehow failed to consider a particular point or issue affecting the area of law covered by your paper, then the other members would get the opportunity to bring that omission to your attention in their comments on your draft. Without their comments, you might have failed utterly to consider that point or issue in your revision. Similarly, if in your draft you’d failed to express yourself clearly enough on some point or other, that failure could be brought to your attention by the other members. You could then think about whether your failure to express yourself clearly enough reveals an underlying failure to understand your subject clearly enough. And if it does, you could then address that deeper failure. Without getting comments from the other members on your draft, you might never have had to confront that deeper failure of understanding. 233
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You would of course benefit a great deal from making comments on drafts of papers prepared by other members of your study group. Doing this will help you think about the areas of law covered by the other members, thereby helping the details of those areas of law sink into your longterm memory. But remember – when you are making comments on other people’s work be tactful and sympathetic, rather than bruisingly blunt. I can tell you from personal experience that the hardest thing about being a writer – by far – is reading comments on your work from other people. So do everything you can to make your comments as sweet as possible. 7 Asking each other questions You and the other members of your study group should get into the habit of asking each other questions that have cropped up in the course of your work and which you don’t know the answer to. Maybe someone else in the group knows the answer. If no one does, then you could collaborate together on looking into it. Either way, your study group’s knowledge of the law will be improved. 8 Mooting by e-mail The members of your study group could agree to participate in some ‘email moots’. The way this works is as follows. Your study group should take a problem question from a past paper and agree on what sub-questions arise out of the problem question. These sub-questions should be capable of being answered with either a ‘Yes’ or a ‘No’. So ‘Is A liable to pay compensation to B for the fact that her cat has been killed?’ is capable of being answered with a ‘Yes’ or a ‘No’. ‘For what items of damage is A liable to pay compensation to B?’ is not, of course, a question that is capable of being answered with a ‘Yes’ or a ‘No’. Having clarified what sub-questions arise out of the problem question, the members of the study group should then split into two teams – a ‘Yes’ team and a ‘No’ team. One member of the study group should remain impartial so that he can act as ‘judge’. The ‘Yes’ team will be given the job of coming up with arguments in favour of answering ‘Yes’ to all the subquestions arising out of the problem question; and the ‘No’ team will be given the job of coming up with arguments in favour of answering ‘No’ to 234
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all those questions. The arguments mustered by each team will then be sent by e-mail to the judge and copied to the other team. The judge can then invite further submissions by both teams on the other team’s arguments. The judge should then write and distribute by e-mail a model answer to the problem question, drawing on both teams’ arguments. The judge should also decide which team argued their side of the problem question best and declare that team to have won the moot. To give everyone an incentive to take the moot seriously, the whole study group can agree to go out for dinner once the moot is over, with the losing team paying for the winning team’s dinner, as well as the judge’s.
So those are my suggestions as to how to improve your knowledge of the areas of law you have been studying. I am sure you can improve on them, but I hope the general approach you should adopt is clear enough. Find ways of improving your knowledge of the law that are active and stimulating. Avoid any revision techniques that are boring or routine.
Improving Your Essay Writing and Problem Answering Skills Improving your knowledge of the areas of law you have studied is not enough to guarantee that you will do well in the exams. That’s only half the battle. You also have to be skilled at writing essays and answering problem questions. If you aren’t, then having all the knowledge in the world won’t help you in the exams. You also have to know how to use and express that knowledge effectively. Now writing good essays and problem answers is an art. And the only way of becoming skilled at an art is through practice. (The old joke: ‘Do you know the way to Carnegie Hall?’ ‘Yes – practice, practice, practice.’) So it’s essential, if you are going to do well in the exams, that you practise doing lots of past paper questions. The best way of doing this is as part of a study group. Let’s suppose that there are five members in your X law study group. Pick out five essay questions from the past papers on topics or issues that might come up again in the exam on X law. Allocate the essay questions among the members of 235
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your group. Draft an answer to your essay question and then circulate it to the other members of your group for comments. Doing this will give you an incentive to express yourself as clearly and as interestingly as possible in your essay – thereby helping you improve your general essay writing technique. Any comments you receive on your essay will of course help you improve the content of the final draft. Once you have completed the final draft, you should distribute it among the other members of your study group. They will of course benefit from reading the content of your answer and – assuming you have done a good job of writing the essay – from seeing what a really good essay looks like. You will of course benefit in the same way from reading the final drafts of their essays. Once all five essay questions have been answered to everyone’s satisfaction, repeat the process with a further five essay questions. And so on until the approach of the exams means that you have run out of time. Pick out a problem question on X law from a past paper that all the members of your study group can tackle. Each of you should chip in £5 to a general pot – making a general pot of £25. Then each member of the study group should attempt to write an answer to the problem question. The answers should then be circulated. Whoever has – in everyone’s opinion – written the best problem answer will get £20 from the general pot. The runner-up will get her £5 back. Repeat the process with a different problem question until the approach of the exams means you have run out of time. This method of proceeding will give each of you an incentive to write the best problem answer possible and all the losing members of the study group will benefit from seeing the winner’s answer – seeing why the winner’s answer was better than theirs. The hope is that by the time the exams come round, everyone in the study group will be answering problem questions to a much higher standard than they were at the start of this process. Everyone will have helped the others move up to a higher standard. If you are not a member of a study group, there is a danger that even if you practise doing lots of past paper essay and problem questions, you will churn out a lot of sub-standard work without even realising that it is sub-standard. Following my guidelines on writing essays and problem answers should help you avoid most of the stylistic and structural pitfalls that drag down the standard of students’ essays and problem answers. But 236
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to ensure that the content of your essays and problem answers is of a good quality, try and get your teachers to mark as much of your work as possible. (This is where being nice in small-group teaching sessions pays off big time.) If this is not possible, buy some of the Q&A books published by Cavendish Publishing to get an idea of what a decent answer to an essay or problem question on a given issue might mention, and use those as a benchmark of quality to aim at (and surpass, if you can). That’s enough from me. Good luck with your revision and I hope next term goes well for you. Best wishes,
Nick
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19
LETTER NINETEEN
Tips for Your Exams Dear Sam, It was good to hear from you again. I’m glad things are going so well. I’m afraid you may have wasted your time in writing to me to ask if I had any words of advice for your exams – I really don’t have much to add to what I’ve said in my previous letters. Well, maybe I do have a few things to say. But before I begin, a warning. You’ve probably had loads of advice from your teachers as what to do in the exams. If any of my advice contradicts what they’ve told you, then ignore my contradictory advice. They will know far better than me what’s the best approach for you to adopt in the exams – after all, they are going to be marking them. That said, here are a few exam tips to bear in mind.
1 Timing Spend equal time on all the questions you have to do in the exam. Suppose, for example, that you have to answer four questions in three hours, which gives you about 45 minutes for each question. Make sure that you don’t spend more than 45 minutes on each question. Do not succumb to the temptation to spend ‘just five more minutes’ on any question. The extra marks you will pick up by spending ‘just five more minutes’ on the question will be dwarfed by the marks you will lose by spending only 40 minutes on the next question. Be disciplined. If the 45 minutes for doing a particular question are up, finish your sentence and then move on to the next question. Leave about a page space between your answers to 239
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allow you to add extra material to any of your answers if you have time at the end of the exam.
2 Writing Essays I’ve said this before, but I’ll say it again – if you are writing a discursive essay (discussing a particular area of the law’s merits or demerits), make sure your essay has a point, that you make that point clear right at the start of the essay and that you spend the rest of the essay making that point out. If you find yourself writing things like, ‘First, it is necessary to discuss the history of this area of the law’ or ‘A brief survey of the cases reveals how complicated this area of the law is’, or any other phrase that invites you to engage in a boring and pointless run through the case law in the area, stop and think: Surely there’s a better way of doing this?
3 Plan Your Essays Don’t rush into doing any essay, even if you think, ‘Yes, this essay is on something I know about. I can do this essay!’ Stop and think: What’s the best way, the most effective way, the most impressive way of doing this essay? Your first instincts as to how to do the essay are usually going to be wrong. Stop and think: Is there a better way, a more effective way, a more impressive way of doing this essay? Five minutes spent thinking and planning at the start of your writing time will pay far more dividends than five extra minutes spent writing.
4 The Importance of First Impressions In writing an essay, pay extra special attention to the first paragraph – make sure it’s a winner. Make the examiner think, on reading the first paragraph, ‘This is going to be a first-class essay’. If you can do that, you will be far more likely to get a first-class mark for your essay than you will if the examiner thinks after your first paragraph, ‘This is going to be a second-class essay.’ First impressions are hard to dislodge. So try very hard to start your essay in an interesting and arresting way. I cannot emphasise too strongly how important this point is. Just read what Thomas Dixon has to say in his excellent How To Get a First: 240
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Speaking from the point of view of someone who regularly marks . . . exam essays, I cannot tell you how welcome it is to pick up a script and find that its author has made an effort to engage your attention, arouse your interest, provide you with a thought-provoking, arresting or unexpected opening paragraph or two. If this attention-grabbing opening is followed by or includes an account of a key scholarly dispute to which the essay relates, and a brief map of the essay itself, then, speaking for myself, I will be so overwhelmingly grateful that I will be predisposed to give the essay a first if I possibly can.
And he is not just speaking for himself: he is speaking for all examiners who mark essays, everywhere.
5 Leave Your Weakest Answer to Last The law of first impressions – that first impressions are hard to dislodge – applies also to the whole of your answer paper. Say you have to do four questions in your exam. You have picked your four questions, but you feel that your answer to one of the questions is going to be significantly weaker than your other answers. Leave your weakest answer to last. If, in your first three questions, you have established yourself in the mind of the examiner as a top student, that might make her inclined to overlook or go easy on any failures or omissions in your last answer. Who knows? Maybe she will surmise that your last answer was weaker than the others because you were exhausted or running into time trouble, and out of sympathy give you a higher mark for your last, weak answer than she would have done had you written that answer first, before any of the others.
6 Another Reason for Leaving Your Weakest Answer to Last Suppose that at your university a first-class script is one which gets a mark of 70% or above. And suppose that you have to do four questions in your exam, and the exam is marked out of 100, with each question being marked out of 25. Suppose that for your first three questions, you get marks of 18, 19 and 18. This will only leave you needing a mark of 15 on the last question to get an overall first-class mark for your paper. The examiner would have to have a heart of stone to give you a mark of 13 or 241
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14 out of 25, when you only needed a mark of 15 to get an overall first. So even if your last question, objectively, deserves a mark of 13 out of 25 because it’s so weak, it’s likely that the examiner will bump up the mark to 15 to get you over the first-class boundary. So that’s another reason for leaving your weakest answer to last. Your opening strong answers can actually give the examiner an incentive to inflate the mark for your concluding, weak answer.
7 Try and Finish with an Essay This piece of advice is subject to the preceding piece of advice – that you should always leave your weakest answer last. Suppose you have to do four questions in your exam and you have decided to do two essays and two problems. Try and make one of the essay questions the last question you will answer. The reason is that if you are running into a bit of time trouble, an essay can be compressed to fit the remaining time available without too much loss of quality. In contrast, a problem answer is less susceptible to being compressed. As a result, it’s much harder to write a problem answer to a high standard in a shortened period of time.
8 General Guidance on Problem Answers Don’t make your problem answers overcomplicated. Don’t make ridiculous assumptions/arguments as to what the actors thought/why the actors did what they did. Always have in mind the sort of answer the examiner would have had in mind when setting the question: relatively straightforward, addressing five or six key issues with reference to the relevant case law, easy to mark when done right.
9 Never Stop Thinking I wish I had £10 for every time a student has told me, ‘I can’t believe the marks I got in the exams. I thought I did really well in the exam on X law, but I got my worst mark for that. And I thought my exam in Y law was a disaster and I got my best mark in that subject.’ It’s so common for students to say this, there must be a reason for it. There must be a reason why students do worst in the papers they think they’ve done the best in and why they do best in the papers they think 242
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they’ve done the worst in. After many years of pondering this mystery, I think I’ve got the answer. How you do in the exams is related to how hard you think during the exams. If you’re having a really torrid time in an exam and really having to fight to do well, then you are being made to think very hard. In writing problem answers, you are so desperate to find anything relevant to say that you start seeing points that you might otherwise have missed. In writing essays, you work very hard to make some intelligent points, hoping that your doing so will redeem what is, in your eyes, an otherwise disastrous performance. In contrast, if you are sitting a paper that seems very straightforward to you, your brain tends to switch onto ‘auto-pilot’ and you stop really thinking about what you are doing in the exam. In writing your problem answers, you get sloppy and complacent and start to miss some relevant issues. Your essays tend to be more directed towards what you think the essay question is about rather than what it is actually about. The end result is that you will get a much better mark for your performance in the exam where you had a really tough time than you will for your performance in the exam that seemed very straightforward to you. The lesson you should draw from this is not to switch off during the exam. If the exam seems very straightforward, be on your guard. Stop and think: Are there some issues I’m missing in doing this problem question? Any relevant cases that I haven’t thought about? What is this essay really about? Is there some way I could improve on the essay I was thinking of writing on this topic? Never stop thinking along these lines.
10 Style Use headings, numbers and underlining throughout to make your exam as easy to mark and as follow as possible. If you can remember to do so, write on every other line only. This will make it very easy for you to insert corrections into your answers if you need to do so.
11 In the Exam Try to remain calm, especially at the start of the exam when you experience the shock of seeing a lot of brand new questions for the first time. 243
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When doing a problem question, don’t panic. Just think – ‘I have covered the material that will allow me to do this question. I just have to be calm and I will see the issues raised by the question and I will remember what cases and statutes are relevant to those issues.’ When thinking about how to approach an essay, just think, ‘I have thought about this before. I just have to be calm and the ideas will come as to what points I should make in my essay and how the essay should be structured.’ Jot down any ideas/cases/issues as they come to you on a bit of rough paper: don’t rely on your memory to bring them back to you when you need them – under stress you will be particularly prone to the phenomenon of being completely unable to remember something that you were thinking about just two minutes ago. On the same lines, it might be a good idea at the start of the exam to scribble down quickly any key rules or names of cases that you are very likely to need to use in the exam. You then won’t have to worry about forgetting these rules or names in the course of the exam.
12 After the Exam When the exam is over, leave the exam paper in the exam hall. There’s absolutely no point in taking it away with you and looking at it and worrying about what you should have said. By then it will be too late. And try and avoid getting into any extended discussions about what you wrote in the exam – again there’s absolutely no point. Just a simple, ‘It went okay,’ should suffice. Certainly don’t do what I did after my contract law exam in Oxford, when I foolishly went through the paper with one of my lawyer friends who had also sat the exam. He said that he had done a particular question. ‘I didn’t do that question,’ I said. ‘It was obvious it was all about The Super Servant (No 2) and I hadn’t revised that case.’ ‘What’s The Super Servant (No 2)? ’ my friend replied. The rest of his day was ruined – and so was mine.
13 A Final Point Thirteen is ‘unlucky for some’ and so I’d like in my thirteenth tip to give you some advice as to what you should do if you’re unlucky in the exams. 244
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You may prepare really well for the exams but then get caught out by a really unfair exam, ending up getting a mark that your efforts simply didn’t deserve. This can happen. Examiners are human and can foul up, just like the rest of us. My advice is – try and be philosophical and put it behind you. You’ve just got to believe that everything will work out well for you in the end and this bit of what looks like bad luck will at some point in the future turn out to be a real blessing. I’ve found this to be true in my own life and that of many people I know – and I’ve no doubt it’ll be true of yours as well.
But let’s hope it won’t come to that and that your examiners will do a good job and you will receive the credit you deserve! Good luck with the exams, Sam – and let me know your results when they come through. Best wishes,
Nick
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Thinking About Your Future
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Moving on Dear Sam, Congratulations on your exam results! I’m so pleased for you. Thanks for letting me know. You told me at the end of your e-mail that you were now starting to think about the future and what sort of lawyer you might become once you leave university. You asked if I had any advice.
I have only three words for you, my friend! They are: Chambers and Partners. Get hold of the latest Chambers and Partners Student Guide. You’ll find in it everything you need to know about pursuing a career in law after you leave university. It tells you:
What sort of careers you can pursue in the law after leaving university (solicitor, barrister, in-house lawyer, government lawyer); and in the case of each career, what kind of work it involves and what sort of skills are required to succeed in that career.
How you go about becoming a solicitor or a barrister. (If you’ll recall, in the fourth letter I sent you, I set out a time line describing how a law student, Andy, would become a practising barrister or a solicitor. You may find it helpful to have another look at that time line before carrying on with this letter – see page 46.)
Where you can go to do the LPC (Legal Practice Course – the vocational training course for solicitors) and the BVC (Bar Vocational Course).
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What the law schools offering the LPC and BVC are like; also how to apply to get into one of them and how to obtain funding to support you in your year doing the LPC or BVC.
How to apply to get some experience working in the holidays in a law firm (on what’s called a vacation placement) or in a set of barristers’ chambers (on what’s called a mini-pupillage).
The various deadlines for applications for vacation placements and mini-pupillages.
What it’s like to work for each of the major UK law firms (and how much you’ll earn); also what it’s like to be a member of each of the major sets of chambers in the UK.
The various deadlines to obtain two-year training contracts with law firms and pupillages with sets of chambers.
What law firms operate in different areas of the country – and what law firms specialise in the various areas of law that you might be interested in working in.
It’s an invaluable book. You should be able to find an up-to-date copy (it comes out every year) in your law library. If your law library doesn’t have an up-to-date copy, you or your law library can order one (it costs about £10) from www.chambersandpartners.com/chambersstudent. (You can also use this website to access a lot of useful information on the above issues; though I get the impression the book is more exhaustive than the website.) If you can get a free copy from your university careers centre or law faculty, you should also have a look at the latest edition of the Training Contract and Pupillage Handbook. This is another great source of useful information for aspiring solicitors and barristers. If a free copy isn’t available, but you’re feeling rich, you can buy a copy (it’s about £25) by going to www.tcph.co.uk. Other websites that you might find useful are as follows: www.doctorjob.com/law – this isn’t a terribly user-friendly site, but once you are used to it, you’ll find it an excellent source of:
advice as to what sort of legal career is likely to suit you best
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advice as to what’s involved in pursuing a career in the various different areas of the law (such as Personal Injury Law or Corporate Law), either as a solicitor or a barrister
advice as to the mechanics of becoming a solicitor, a barrister or a lawyer working for the government
advice on how best to present yourself at interview a large number of profiles of graduates who are now working as a lawyers, to help you make as informed a choice as possible as to what career will suit you best
information about vacation placements at various different law firms. There’s also a forum where people can post messages asking for help and advice in their quest to obtain employment in the legal sector.
www.lawcareers.net – this is a very good, straightforward site which contains a lot of useful information for people proposing to become solicitors or barristers.
www.lcan.org.uk – again, a very good, straightforward site with lots of good advice for aspiring solicitors or barristers.
www.rollonfriday.com – this is a really fun site for solicitors, with lots of gossip, jokes and insider information. Move your cursor over ‘inside info’ and then click on ‘city firms’, and you will instantly access a table comparing salaries at all the big London law firms. If you want to get some information as to what it’s like to work at one of the law firms in the table, just click on the name of the firm.
www.thelawyer.com/students – a good source of legal news and information about law firms. If you are being interviewed for a training contract by a particular law firm, it’s good to show that you know a lot about the law firm and any recent developments its been involved in. This site allows you to pick up that kind of knowledge very quickly – just type into the search engine the name of the law firm that you are applying to, click on ‘go’ and then start reading.
www.pupillages.com – this site lists all the sets of chambers offering pupillages (and acts as a gateway to the chambers’ websites,
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where available); it also provides a lot of helpful information about applying for pupillages.
www.gls.gov.uk – this site tells you all you need to know about what is involved in working for the Government Legal Service (GLS) and how to get a job working there.
www.cps.gov.uk – this site does the same thing for the Crown Prosecution Service (CPS). (You should note, though, that while you can enter the GLS straight out of university and get a pupillage or a training contract with the GLS, in order to become a Crown Prosecutor working for the CPS, you must have already qualified as a barrister or solicitor.)
Choosing a Career The basic choice you are going to have to make is between working as a solicitor or as a barrister. I would advise you to try and get some experience of what life is like on both sides of the profession by doing at least one vacation placement with a law firm and at least one mini-pupillage with a set of barristers’ chambers in the summer holiday between your second and third years of studying law. I think the idea of becoming a barrister is much more off-putting to most students than the idea of becoming a solicitor. This is usually because they’re scared of the idea of having to speak in public or the idea of making arguments in court in front of a judge who might shoot them down contemptuously. If you share that kind of fear, don’t let it put you off becoming a barrister. It may well be that if you got used to speaking in public or arguing in court, you would actually quite enjoy the experience. So try and overcome your fear by doing some mooting in university (arguing hypothetical legal cases) and going on a minipupillage, and then see whether you think becoming a barrister is the right option for you. There are two key advantages to being a barrister over being a solicitor: 1 Barristers tend to have a lot more control than solicitors do over the
kind of work they do and how much work they do. 252
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2 A typical barrister will probably see a lot more variety in the kind of
work he does than a typical solicitor will once he has qualified and started work in a particular area of practice. But, at the same time, there are a lot of advantages to being a solicitor over being a barrister: It’s a lot more competitive to become a barrister than a solicitor, so
merely opting to become a barrister requires one to have a lot of selfconfidence and courage. Solicitors enjoy a lot more job security than barristers do. As a solici-
tor safely ensconsed in a good law firm, you can be fairly sure that if you work hard and do well, you will always have a good job that pays well. Barristers are a lot more like actors – always wondering where the next job (or brief) is coming from. So, again, you would need a lot of self-confidence and courage to make a go of a career as a barrister, at least at the start of your career, before it really takes off and you acquire a lot of contacts who will supply you with work. Working as a barrister tends to be a lot more of a solitary occupation
than working as a solicitor is. If you are working on a particular project as a solicitor in a big city law firm, you’ll usually be working as part of a team and many of the team members will already know you because you have teamed up with them before. So in working on a project as a solicitor in a big city law firm, you will have access to a stable and familiar network of support that simply isn’t available to a barrister who is working on a particular case. Not everyone is able to enjoy speaking in public or able to argue a case
in court persuasively – no matter how many times they might try to get used to the experience. So these are the sort of considerations you will have to weigh up in making your choice between being a solicitor or a barrister. In order to help you make that choice, I asked some lawyers that I know to write to you, via me, and tell you something about the kind of work they do and what it involves. John McLinden is a barrister of great experience. He was admitted as a barrister of the High Court of New Zealand 253
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in 1975 and was called to the Bar of England and Wales in 1991. He teaches advocacy in the Inner Temple Advocacy Programme. His reply to my request captures a great deal of the excitement and interest involved in a barrister’s work:
As a barrister I have appeared in hundreds, if not thousands, of cases of almost every description before tribunals, magistrates, and Judges of the District and County Courts, the High Court and Court of Appeal in New Zealand and England and before the Law Lords in the Privy Council. The cases have involved people and events not only from New Zealand, Australia and the United Kingdom, but also from America, Asia, the Caribbean, Africa and Europe. I have argued points of law before such judges as Sir Thomas Eichelbaum, Lord Cooke of Thorndon, Lord Goff of Chieveley and Lord Steyn. I have addressed many juries, in both civil and criminal cases, battling my opponents (and not infrequently the judges) for their hearts and minds; one never forgets the heart stopping tension at the moment of truth as the foreman stands with a verdict that will liberate or incarcerate; vindicate or ruin a client’s character. I have seen every shade of human behaviour; every case has its own extraordinary twist. In every case, a client is trusting you to protect his or her property, livelihood, reputation and, perhaps, even his or her life. Every case gives you an opportunity to receive an ongoing education in a wide variety of subjects, such as construction, navigation, surgery, accounting, aviation; frequently learning about these subjects from witnesses who are world experts in their fields.
Asked what qualities a barrister needs, he replied:
A sense of hope and faith in justice, which will inspire your clients and sustain your belief that right will ultimately win through, even in the face of adversity. Your ability to listen, particularly to your clients. Experience will show you they have a sense of the points that may turn out to carry the day, even though they know little or nothing
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about the law. Determination, both for your interests and those of your client. It can often be difficult to get a start as a barrister. Your drive and determination will secure you a place. It will also make you popular with your clients, because they want someone who will fight for their cause. The ability to deal with other people sensitively and caringly. And finally, humility: no matter how successful you become, you should not forget that you are a transient instrument of justice.
I thought you might like also to hear from someone who was just starting out as a barrister. So I contacted Anna Midgley, one of my former students. At the time she wrote this, she was a qualified barrister doing a pupillage at a set of chambers in Bristol:
I chose to be a barrister because during a work experience placement I found the environment of the courtroom incredibly exciting, and because while doing my degree I discovered that I loved working out how to apply the logic of the law to a particular set of facts. My opinion of the Bar has not changed since I did my first minipupillage. It is a fantastic career choice if you want complete independence, both in the way you present your arguments and in your practice, throughout your career. The adrenalin that flows when you use your advocacy skills to persuade a court of the strength of your case, and the satisfaction you experience when you win your case, are both so addictive that barristers who have been in the job for 30 years remain animated and excited by what they do. I am currently in my first six months of pupillage at a common law chambers, so will experience criminal, family and civil law. Currently my role is to absorb how the job works in practice by observing experienced practitioners. I have also done written work: skeleton arguments for submission to court; research documents and case analysis in fascinating cases including murder and serious fraud. In three months I will accept work in my own name and be unsupervised in court. To be a good barrister you need to be able to extract the crucial point from a mass of information, and express it in a persuasive way. You
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have to be able to handle nerves and not to be intimidated by those better or wiser than you. It goes without saying that advocacy skills are essential, but also indispensable is empathy. Without it, you will alienate clients and will fail to understand and thus persuade your audience in court. All of these skills you can in fact learn. The only thing you have got to have naturally is determination and drive – it is hard work and an insecure competitive environment. If you don’t really want to do it, you will struggle, but if you do, you will have the best career you could ask for.
Emily Smith graduated as a law student from Pembroke College, Cambridge at the same time as Anna. Unlike Anna, she opted to become a solicitor. At the time she wrote this, she was working as a trainee solicitor in one of the biggest law firms in the UK: I knew during my law degree, that while I found my studies both interesting and fulfilling, I ultimately wanted to combine the skills and knowledge that I had learned and developed at university with a business career. After a work experience placement at a corporate law firm in London I realised that working as a solicitor in this type of arena was ideal for me. The basis of the job is the application of law, from basic contractual principles to much more complicated tax provisions. However there is also another sphere to every problem that is presented, and that is the expectation of the client that you will always have their commercial position and those of their competitors in mind when structuring a solution. I have had the opportunity to work in large teams of very talented people specialising in various areas and also to have a lot of client contact with leading people in their fields. I am currently in my first six-month seat. Over the course of a twoyear training contract I will sit in four different departments, each specialising in a different area of law. Due to the nature of the firm that I have chosen I will see mostly corporate work ranging from large-scale merger and acquisition deals to the raising of finance as well as experiencing the specialist departments that go hand in hand with this such as tax, competition and real estate. The type of work
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that I do varies from day to day and while some time is inevitably spent on more mundane tasks, such as proof reading, I have been pleasantly surprised at the high quality of research and drafting work that I have also been exposed to. In order to succeed as a solicitor you need to have the ability to think analytically and to approach a problem from different angles until you can find the best solution for your client. It is also important to be able to listen to and process instructions and to make sure that you answer the question that has been asked of you. Above all, however, I have found the most successful solicitors are those who have the ability to communicate effectively and to get on with those around them. The job is a fast-paced one, and it is one in which every member of a team is essential and is appreciated, whether they have just started out or have been a senior partner for many years. This is a career that is demanding and can require a lot of hard work, but at the end of the day it is extremely rewarding and I am enjoying it immensely.
You might be surprised at the suggestion that life as a solicitor might be ‘fast-paced’. However, this feature of life as a solicitor in a big law firm was also emphasised by another of my ex-students, Kirstin Russell. At the time she wrote this, she had finished her training contract with one of the biggest law firms in the UK and was working there as an associate: Any given day can throw up an interesting mix of work: drafting and reviewing contracts, conference calls to discuss those and other issues arising, liaising with clients and/or other parties, analysis, research and advice. The work is always very challenging and the hours are long at times. The need to balance, but be on top of and move between, several transactions at once, can be very demanding – much like the last few hours before an exam, when there is so much to do and seemingly never quite enough time to do it in.
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It is important to be able to work happily in a team of people and to be able to communicate your ideas and thoughts effectively to those people. Whether you are explaining something to your boss, your trainee or to a client, each of them needs to take away something they can understand and use.
Of course, not all solicitors do the kind of corporate, deal-making work that Emily and Kirstin specialise in. This is what a personal injury lawyer I know had to say about the kind of work he does:
I have worked as a personal injury solicitor for just over ten years. I specialise in representing people who have been injured at work. The first requirement of my work is to be able to understand what may be work-floor jargon about a technical process which has caused the accident. This involves practical intelligence and patience as employees may have no skill for describing what they they do naturally at work. Equally, they may be frustrated if you show no grasp of the topic and signs of being removed or bookish. Essentially, you have to find a common language and understanding to help each other understand what is salient in getting to the bottom of what went wrong and whose fault it was. If a claimant has in fact no case in law, he or she has to be made to understand why this is. This may involve a lot of patience and tact – as well as the ability to explain the law clearly. The ideal personal injury solicitor will be meticulous in recording and proving out of pocket losses (‘special damages’) but he or she also has to have a sense of empathy to prove the extent and justification for damages for pain, suffering and loss of quality of life caused by the injury (‘general damages’). I will normally handle about 150–200 cases at any one time (something which requires great organisational skills). When you are dealing with that many cases at the same time, it is all too easy to depersonalise them and categorise a particular case as a ‘back injury case involving 18 months’ pain – settle if we are offered £3,500’. But if you really want to do justice to that kind of case, you have to re-personalise the case, and try and imagine
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what 18 months of living in pain does to someone’s quality of life – and give your client the sense that you understand what he or she has been through. Listening skills and patience are essential to my work. In the office where I work, I see that it’s always the same few people who consistently receive the bouquets of flowers and gifts of gratitude from clients, regardless of their legal ability or profit-making record for the firm. They’re the ones who have given their client the sense that they understand their injury, that they are fighting their corner, and that they are always available for calls and updates and do not give the impression of being ‘above’ the case or too busy for it. Having said that, the worst thing you can do is to give your client false expectations as to the likely outcome of his or her case – no favours are done by not explaining at the outset that compensation in the UK is not generous. A personal injury lawyer also needs a reasonably analytical frame of mind, enabling him or her to interpret statutes and cases and apply them to the case at hand, and good negotiating skills. In negotiating with an insurer – who will cover an employer’s liability to compensate an employee who has been injured at work – you need to be able to detect whether the insurer wants to settle the case quickly and will be amenable to making a generous compensation offer to your client. Personal injury work is always interesting – there are always anecdotes! It is quite fulfilling work if you have a lot of empathy for your clients.
I hope this gives you a bit of an insight into what life is like working as a solicitor or barrister. Of course, once you’ve qualified as a solicitor or a barrister, you don’t have to work in a law firm or as a member of a set of barrister’s chambers. You could become an in-house lawyer for a company or work for the government in either the Government Legal Service (GLS) or the Crown Prosecution Service (CPS). Another of my former students, Andrew Jackson, recently entered the GLS. I asked him what his work was like. He replied: In terms of my background, prior to working for the GLS, I did a BA in Law at Oxford and an LLM at Cambridge. I did my training contract at one of the ‘Magic Circle’ firms in London and worked for
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their tax department for two years post-qualification. Having been offered my training contract during the second year of my undergraduate degree, and not having put a great deal of thought into my chosen career beyond looking for a job at a good firm that paid a good salary, I decided, after four years in the City, that it was time to reflect on what interested me outside of work, in an attempt to match up my interests with my career. One of the issues that interests me most is the environment, so I began considering my options. One option was to do environmental work for a law firm. However, it seemed to me that practising environmental law as a solicitor in private practice, particularly on the corporate side, would involve a lot of transactional work (eg risk allocation between parties to a contract), and that didn’t really interest me at all. What interested (and interests) me most is the protection of the environment as a matter of public policy (as opposed to representing private interests in environmental law matters). I did a fair bit of research on the Internet and found out that the GLS was recruiting for lawyers to work within Defra (the Department for Environment, Food and Rural Affairs). I applied, got a job, and started work in April 2005. I work in the ‘Countryside and Nature Conservation’ division of Defra legal. This is made up of ten lawyers; Defra as a whole has around 100 lawyers. The GLS as a whole consists of around 2,000 qualified lawyers (both barristers and solicitors) employed in about 40 government departments and bodies, who cover the entire spectrum of the government’s activities. The largest single body within the GLS is Tsol (the new name for the Treasury Solicitors). Tsol does most of the government’s litigation (both national and international), and provides advice to many departments within the government, as well as the Treasury and the Cabinet Office. Tsol’s European Division provides and co-ordinates legal services in support of the government’s policies in relation to the European Union. Departments that aren’t covered by Tsol, but by other bodies within the GLS, include the Land Registry, the Department for Constitutional Affairs, the Department for Work and Pensions, the Department of Health, HM Revenue and Customs, the DTI, Defra, the Department for Transport and the Home Office. The range of government departments and bodies covered by GLS means that you can choose virtually any subject 260
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you’re interested in and you will find that the GLS does legal work in that subject. And as the GLS’s work always involves work in the public interest, often concerning issues of national and international importance, working for the GLS makes for an excellent (and incredibly interesting) legal career. My work is neatly divided between litigation, drafting and advisory work, with my clients being members of the civil service on the policy side. In terms of litigation, I will be brought in to advise if, for example, someone has applied for judicial review to challenge the decision of the Secretary of State. On the drafting side, GLS lawyers are responsible for drafting statutory instruments (‘SIs’) and also work with Parliamentary Counsel on drafting Bills. On the advisory side, I deal with a whole range of queries from Defra’s policy teams on, for example, the government’s obligations under EU law or English law. One of the key differences between working as a lawyer for the government and working in private practice relates to the flexibility of a career in the GLS. As a solicitor in private practice, a typical career path post-qualification would involve working for seven or eight years in a particular area of law, before becoming a partner specialising in that area. The GLS, in contrast, encourages its lawyers to gain a broad experience of the government’s work, thus allowing the development of specialist expertise in a number of different areas. Thus, GLS lawyers frequently move every two to three years, both intra- and interdepartmentally. The GLS offers almost endless career opportunities; it’s very much up to each individual to choose the path that his or her career will take. One lawyer might choose to spend his or her entire career in a single department, while another might choose to move between departments regularly. So, though there are around 2,000 lawyers within the GLS, each has the opportunity to craft a unique career that accurately reflects his or her interests and strengths. I think the necessary qualities for a lawyer in the GLS are: a good academic background, good communication skills, a real interest in public law and policy, and a commitment to becoming an excellent government lawyer. As a final point, in terms of lifestyle, there is no comparison between the City and the GLS. In my experience, I’ve been able to strike
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an excellent work–life balance since working for the GLS. Planning evenings in advance is no longer a problem! While a GLS lawyer’s earnings will never hit the heights of a City partner, for example, as a junior solicitor or barrister, the difference in salary is not huge, and the slightly lower salary is, in my experience, more than compensated for by other benefits (improved holiday entitlement and a final salary scheme pension, for example), a better lifestyle and, crucially, work that is incredibly interesting and diverse. The GLS offers a small number of training contracts and pupillages each year (approximately 25), all of which are based in London. They also offer around 70 positions on their summer placement scheme. Of course, it’s also possible to join the GLS post-qualification (as I did) and I know a lot of people who have joined the GLS in this way.
Of course, if you’ve qualified as a solicitor or a barrister, you don’t have to limit yourself to finding work in the UK. If your French is very good and you have an enthusiasm for EU law, then you may be able to get a job working for the European Court of Justice. (This Court is the ultimate authority on the interpretation of EU Law and gets to determine such issues as whether a member state of the EU has failed properly to implement a particular directive or whether the institutions of the EU would exceed their powers if they issued a particular regulation or directive.) This is what another one of my ex-students, Suzanne Kingston, did. Just in case you are interested in following her example, I asked her to tell you a bit about the work she did. This is what she said: There are three main types of positions for lawyers at the European Court of Justice: (1) référendaire positions, where you work in the cabinet of a Member of the Court (that is, a judge of the Court or an Advocate-General); (2) ‘Juriste-Linguiste’ positions, where lawyers work translating judgments, opinions and other submissions; and (3) positions working in the ‘Research and documentation’ department of the Court, where lawyers prepare research notes at the request of Members of the Court, for example to get more information on a national law issue that has arisen in a case before the Court.
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I belonged to the first category. Each judge or Advocate-General has three référendaires in his or her cabinet. The judge’s or AdvocateGeneral’s cases are divided between the référendaires, so each référendaire has his or her own case load. In the case of an AdvocateGeneral’s référendaire, his or her main tasks will be: (1) reading submissions, researching the law and drafting opinions across the whole range of EU law fields; (2) debating the cabinet’s cases and other cases pending with the Advocate-General at frequent cabinet meetings; and (3) giving lectures on particular aspects of EU law and on the Court to visitors. Working as a référendaire is a fantastically interesting job, essentially because you’re at the heart of new developments in the Court’s case law, which is exciting and intellectually very challenging. In addition, you work with lawyers from all over the EU. The qualities needed by a référendaire include:
expertise in EU law (for example, I had completed an LLM in EU law, qualified as a barrister and worked in Brussels for three years prior to joining the Court)
experience in legal drafting the ability to think creatively and critically about the law a good knowledge of French (which is the working language of the Court).
Concluding Advice I think that’s enough advice from me about your future career plans. It’s up to you now to start researching, thinking and applying for jobs! In the end, only you will be able to tell what is the right career choice for you and only you can do the spade work that will enable you to pursue that career once you leave university. This is the last time you will hear from me for a little while. Just in case a ‘little while’ turns out to be quite some time, I wanted to give you some general advice that I think you should bear in mind whatever legal career you end up pursuing. Unlike all the other advice I’ve given you in the time we’ve known each other, I won’t attempt to explain or justify the advice 263
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below. You are free to accept or reject it, as you please. Having said that, here’s my advice: 1 Be kind to your clients. Treat them as you would like to be treated if they were in your shoes and you were in theirs. But don’t let your desire to advance your clients’ interests lead you to adopt a ‘win at all costs’ mentality. Never forget that you have a responsibility to treat your opponents fairly, showing a decent regard for their legitimate interests.
2 Never be proud or self-righteous. Remember that however worthy and just your cause is, it is your cause that is worthy and just, not you.
3 President Richard Nixon’s farewell speech to his staff – delivered the day after he had resigned the Presidency of the United States in disgrace – is one of the great speeches of the 20th century. In delivering that speech – apparently without any preparation – he achieved a level of wisdom and insight that had signally eluded him up until then. One of the final lines of the speech strikes me as being particularly wise and worth remembering: ‘Always give of your best, never get discouraged, never be petty; always remember, others may hate you, but those who hate you don’t win unless you hate them, and then you destroy yourself.’
4 Another quotation, this time from the Christian preacher John Wesley: ‘Make all you can, save all you can, give all you can.’ He’s talking about money, which is something you’ll probably be earning quite a lot of as a practising lawyer. I don’t think you’ll have any problem taking Wesley’s first two pieces of advice; but I’ll hope you’ll take the third as well. Give away as much of your money as you can afford.
5 Don’t think about your self-interest. It’s a trap always to be thinking about your career, your position or how much money you have got. Forget about all that. Do you remember the third letter I sent you, describing the difference between a good lawyer and a bad lawyer? The only thing that should matter to you as a lawyer is that you be a good lawyer. If being a good lawyer brings you advancement and lots of money, then that’s great. If it doesn’t, then don’t worry about it. It’s better to lose your job or forgo a promotion
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if saving your job or getting that promotion requires you to sell out your principles and do something unethical. After all, ‘What does it profit a man if he gains the whole world and loses his soul?’
6 It’s sometimes said that while the English eat to live, the French live to eat. Try to approach your work in the same spirit as the French eat their food. Don’t work simply because you get paid a good salary for doing the work you do, and this allows you to live a good life outside of work. Work because you live to do the work you do, because you love to do it. So if you’ve become bored and resentful of the sort of work you do as a lawyer and the only reason you can see for carrying on with it is the money it pays, stop doing that kind of work and find a different line of work as a lawyer that you will find more satisfying and fulfilling.
7 Having said that, don’t let the work you do as a lawyer take over your life. While the work you do as a lawyer will be important, there will always be other things that are more important and have to take priority.
That’s it from me – I’m done. Good luck with everything, Sam! And try not to worry about anything – whatever happens, remember that everything is going to be fine! All best wishes,
Nick
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Notes on the Text Letter One: What Will I Be Doing? All blue-eyed babies are to be killed at birth. See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th edition (Macmillan, 1927), 79. Were Parliament ever to pass a Slaughter of the Innocents (Blue-Eyed Babies) Act, saying that ‘all blue eyed babies are to be killed at birth’, the courts would have the power to issue a declaration that the Act is incompatible with the Human Rights Act 1998, which incorporates the European Convention on Human Rights into English law. But if Parliament paid no attention to this declaration, the judges would have to give effect to the Slaughter of the Innocents (Blue-Eyed Babies) Act – or resign. The courts and applying/making law. The ‘declaratory theory of law’ says that the courts never make or change the law. Instead, when the courts decide a case they merely find out what the law says and apply the law to the case at hand. The declaratory theory of law was dismissed as a ‘fairy tale’ in Lord Reid, ‘The judge as law-maker’ (1972–3) 12, Journal of the Society of Public Teachers of Law, 22. However, it was recently revived by the House of Lords in Kleinwort Benson v Lincoln City Council [1999] 2 AC 349. Relied-on promises. The text takes a somewhat simplified view of reliedon promises. In fact some relied-on promises will be binding in certain circumstances. This is particularly true of promises to waive the whole or part of a debt and promises to give someone an interest in land. Knowing what the law says. The following section is heavily influenced by Professor Peter Birks’ account of the different parts of English law in Peter
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Birks (ed.), English Private Law (OUP, 2000), volume 1, ‘Introduction’, xxxv-xliii. Equity. Too difficult to explain in the text of the letter, but not here. Up until the end of the 19th century, the English legal system had two sets of courts – courts of law and courts of equity. The courts of law would give effect to the common law – the basic, general judge-made rules and doctrine that make up the heart of English law. However, the courts of equity had the power to set aside or supplement the common law when it would be fair, just and equitable to do so. So suppose that in the early 19th century, you wanted to sue a defendant for stealing some money. To succeed in your claim, you’d have to show that you had an interest in that money. You would first try your luck in the courts of law and see if they would recognise that you had an interest in the money and allow you to sue the defendant. But if they wouldn’t recognise that you had an interest in the money, you could then try the courts of equity and see if they would be more accommodating. Suppose they were: suppose they recognised that you had an interest in the money and they allowed you to sue the defendant for stealing it. The judges in the courts of law would naturally not be too happy about this – they probably had good reasons for refusing to recognise that you had an interest in the money. However, they wouldn’t be able to do anything about the verdict that the courts of equity had given in your favour. It was established in the 17th century that the courts of equity were superior to the courts of law. Now – the English legal system no longer maintains a distinction between courts of law and courts of equity. The different courts were fused towards the end of the 19th century. However, English law still draws a distinction between the rules that were given effect to by the old courts of law and the rules that were given effect to by the old courts of equity. Imagine that there’s a bag of coins lying on your desk right now. If the old courts of law would have recognised that you have an interest in those coins, then we say that you have a legal interest in the coins. If, on the other hand, the old courts of law would not have recognised that you have an interest in the coins, but the old courts of equity would have, then we say that you have an equitable interest in the coins. 268
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It would be a mistake to think that this is just a matter of terminology. There are still – even today – significant differences in the rules on how legal and equitable interests in property can be acquired, disposed of and lost. For example, suppose that there’s a car outside your house. Suppose someone steals the car and sells it to a third party, pretending to the third party that it’s his. Now suppose that before the car was stolen, you had the greatest legal interest that anyone could have in the car – that is, suppose that you legally owned the car. If that were the case, then you could sue the third party for damages – you will still be the legal owner of the car and he will be liable to you for interfering with the car. But suppose alternatively that before the car was stolen, you merely had an equitable interest in the car. In that case, you won’t be able to sue the third party – as soon as he acquired the car, your interest in the car was destroyed and you therefore have no grounds to sue him. So if you study equity, you will be primarily concerned with studying what equitable interests someone can have in property, how they are acquired, how they can be disposed of to another and how they can be lost. Clashes between the law that comes from Parliament and the law that comes from the European Union. See Macarthys Ltd v Smith [1979] 3 All ER 325, 329; R v Secretary of State for Transport, ex p Factortame Ltd [1990] 2 AC 85; and Thoburn v Sunderland City Council [2003] QB 151.
Letter Two: The Right Stuff? What do they of cricket know? . . . See C. L. R. James, Beyond a Boundary (Hutchinson, 1963), Preface.
Letter Three: But Do I Want to Become a Lawyer? The rule of law. For the first pillar of the rule of law, see Lon Fuller, The Morality of Law (New Haven, 1969), chapter 2; also Joseph Raz, ‘The rule of law and its virtue’ (1977) 93 Law Quarterly Review 195 (reprinted in Raz, The Authority of Law (Clarendon Press, 1979), chapter 11). For the 269
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second and third pillars of the rule of law, see Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 8th edition (Macmillan, 1927), chapter 4. See also the 14th Amendment to the Constitution of the United States: ‘No State shall. . . deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of its laws.’ For the fourth pillar of the rule of law, see Friedrich A. Hayek, The Constitution of Liberty (Chicago, 1960), chapters 10 and 11.
Letter Four: Law Degree or CPE? A lot of law academics find it outrageous. See Peter Birks, ‘The rise and rise of the non-law graduate’, Society of Public Teachers of Law Reporter, No. 7, Winter 1993. A recent survey. See Vera Bermingham and John Hodgson, ‘Desiderata: What lawyers want from their recruits’ (2001) 35, Law Teacher 1, 20–1. The recent survey I noted earlier. Ibid. 19.
Letter Seven: Four Traps to Avoid Allan Bloom. See hisThe Closing of the American Mind (Simon & Schuster, 1987), 25. We know the statement ‘all truth is relative’ cannot be absolutely true. Similarly, if a Cretan told you ‘All Cretans lie, all the time’, you would automatically know that that could not be true. If his statement were true, then he would be telling the truth, in which case it wouldn’t be true to say that all Cretans lie all the time. Roger Scruton. See his Modern Philosophy (Pimlico, 2004), 6. For a slightly different attack on the idea that ‘all truth is relative’ – and the desire to be open-minded – see G. K. Chesterton, Heretics (1905), chapter 20: The human brain is a machine for coming to conclusions; if it cannot come to conclusions it is rusty. When we hear of a man too clever to believe, we are hearing of something having almost the character of 270
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a contradiction in terms. It is like hearing of a nail that was too good to hold down a carpet; or a bolt that was too strong to keep a door shut . . . Man can be defined as an animal that makes dogmas. As he piles doctrine on doctrine and conclusion on conclusion in the formation of some tremendous scheme of philosophy and religion, he is . . . becoming more and more human. When he drops one doctrine after another in a refined scepticism, when he declines to tie himself to a system, when he says that he has outgrown definitions, when he says that he disbelieves in finality, when, in his own imagination, he sits as God, holding no form of creed but contemplating all, then he is by that very process sinking slowly backwards into the vagueness of the vagrant animals and the unconsciousness of the grass. Trees have no dogmas. Turnips are singularly broad-minded.
The Brothers Karamazov. Translation © Richard Pevear and Larissa Volokhonsky 1990.
Letter Eleven: How to Approach your Studies Question-driven approach to learning about a subject. This approach is not new. In fact it is as old as Western philosophy. A different name for this approach to learning about a subject might be the Socratic method – named after Socrates, the grandfather of Western philosophy, who used a question-driven approach to find out from other people what exactly they knew about the meaning of concepts such as justice, virtue or courage. We nowadays give the name Socratic method to a particular method of teaching – that is, teaching students by asking them questions. American law schools regularly use the Socratic method to teach their students law, much to the frustration of the students: see, for example, Atticus Falcon, Planet Law School, 2nd edition (Fine Print Press, 2003) or Scott Turow, One L (Warner, 1977). In fact, the Socratic method is very effective as a teaching device – but only if the teacher is prepared regularly to inject new information into the discussion. It would be interesting – though very hard work – to teach in a university where students were taught law through the Socratic method, properly applied. So instead of giving the students lectures and making them read textbooks, teachers would talk to the students all day, giving them new pieces of information about the law 271
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every five minutes (say) while constantly asking them questions to test their developing understanding of the law. I suspect such a university would achieve far better results in law than can be achieved using the lecture-and-textbook method of teaching.
Letter Twelve: Reading Textbooks and Articles An important point about your notes. In writing this section, I was heavily influenced by Peter Kreeft’s excellent Socratic Logic (St Augustine’s Press, 2004).
Letter Fifteen: Writing Essays (1) Hugh Trevor-Roper. Interview with Graham Turner, The Daily Telegraph, 28 January 2003. Richard Feynman. See James Gleick, Genius: Richard Feynman and Modern Physics (Abacus, 1994), 399. Interfoto case. See Interfoto Picture Library v Stiletto Visual Programmes [1989] QB 433, CA. Bruce McFarlane. Letter to Michael Wheeler-Booth, 18 September 1956. See Harriss (ed.), Bruce McFarlane’s Letters to Friends 1940–1966 (Magdalen College, Oxford, 1997).
Letter Sixteen: Writing Essays (2) The mens rea of murder. See Hyam v DPP [1975] AC 55; R v Moloney [1985] AC 905; R v Hancock and Shankland [1986] AC 455; R v Nedrick [1986] 1 WLR 1025; R v Woollin [1999] 1 AC 82; Re A (children) (conjoined twins: medical treatment) [2001] Fam 147; John Finnis, ‘Intention and side effects’ in Frey & Morris (eds.), Liability and Responsibility (Cambridge University Press, 1991); Lord Goff, ‘The mental element in murder’ (1988) 104, Law Quarterly Review 30; Glanville Williams, ‘Oblique intention’ (1988) 47, Cambridge Law Journal 417; Glanville 272
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Williams, ‘The mens rea for murder – leave it alone’ (1989) 105, Law Quarterly Review 387; Law Commission Consultation Paper No. 177, A New Homicide Act for England and Wales (2005), Part 4.
Letter Nineteen: Tips for your Exams Thomas Dixon. See his How To Get A First (Routledge, 2004), 145–6.
Letter Twenty: Moving on What does it profit a man. . . Matthew 16:26; Mark 8:36. Attitudes to work. See Dorothy L. Sayers, ‘Why work?’ in her Creed or Chaos? and other Essays (Methuen, 1947).
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Index administrative law 12, 205–6 arguments circular 130 essays and 186–7 illogical 131 importance of testing 136–7 invalid 131–5 unworkable 130–1 valid 131–5 articles lectures and 163 making notes on 125–8 barrister becoming 45, 46, 47, 249 choosing to become solicitor or 252–3 getting work as 47, 49 qualities needed by 254–6 work done by 36, 254 Bar Vocational Course 45, 46, 47, 249, 250 Bastiat, Frederic 26, 34 boredom 124, 128 casebooks 146–7 cases decisions in, effect on law 7–8, 267 diagrams of, as aid to revision 230–1 how to read 142–50 importance of reading 139–42 lectures and 162 making notes on 114–17 ratio of 150 remembering 147–50, 164, 230–1 using in problem answers 218–22 certainty law and 83–6 Common Professional Exam 46–50 constitutional law 5, 11, 12
contract law 5, 11 doctrine of consideration 5, 7, 189–90 courts commitment to rationality 14 how make law 7–8, 267 criminal law 11–12 answering problems in 207–8, 210–13, 215–16, 217, 218, 222–3 making notes on 109–11 murder and 19–20, 23–4, 30, 191–203 sexual offences and 84–5, 210–13 theft and 20–1, 32, 152–8 Critical Legal Studies Movement 86 Crown Prosecution Service 252 Dostoevsky, Fyodor 81 economics 30, 76 e-mail importance of acknowledging teacher’s 94 mooting by 234–5 equality law and 5, 38–40 rule of law and 38–40 equity 11, 268–9 essays 13–14 art of writing 203 descriptive 173–4, 181, 182 discursive 174, 182, 183, 185–90 improving skills at writing 203, 235–6, 237 LNAT and 68–73 marks for 180–3 need for clarity 174–5 need for directness 180 need for evidence 177–80 need to use concrete examples 189–90
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INDEX essays (continued ) problem questions or 224–6 sample 191–203 writing, as aid to revision 230 writing, in exams 240–1 writing, tips on 173–90 European Union directives 6–7 effect on English law 6–7 law 13, 262 regulations 6 treaties of 6 working as lawyer for 262–3 exams choosing what questions to answer in 224–6 finding out what will be in the 163–4, 228–9 need to think in 242–3 need for early preparation 96–7 order of answers in, determining 241–2 statute books and 158 timing of answers in 239–40 Finnis, John 195–6, 200 Goff, Lord 194, 201 Government Legal Service 252, 259–62 Gettysburg Address 118–19
need to be positive 91 need to listen 89–90 need to speak up 91, 167–8 need to work together 92 skills needed to be successful 17–30 ten rules for studying 159–60 time-management 97 lawyers bad 37, 42, 43 good 37, 41–3, 44, 264 importance of 41–2 reputation of 36 lectures making notes on 162–5 Legal Practice Course 45, 46, 47, 249, 250 legislation delegated 6 statutory instruments 6 Lincoln, President Abraham 117 LNAT 63–73 books on 65–6 essay section 65, 68–73 multiple choice section 64, 66–8 logic arguments and 131 importance of 18–21 memory 94–5, 147–50 moots 54, 95, 232, 234–5 morality relativism and 81–3
Hobbes, Thomas 38 intention 195–200 Internet, see websites land law 11 Law Commission 198–9 law degree advantages of doing 35, 48–50 comparison with CPE 45–50 law students avoiding burn-out 98 balance between studying and lectures 162–3 methods of learning law 106–8 need to avoid being passive 105 need to be nice 94, 169
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National Admissions Test for Law, see LNAT neutrality rule of law and 41 Nixon, President Richard 264 notes on arguments 135–7 on cases 114–17 on lectures 162–5 on statutes 151–8 on textbooks 121–5 on topics/issues 109–13 presentation of 117–20 Parliament Act of 5 sovereignty of 6, 12, 231, 267
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INDEX police liability of 25, 33–4, 129–35 politics 4, 30, 76, 113–14 Post-Graduate Diploma in Law, see Common Professional Exam private law 10 problem questions 13 answering, as aid to revision 230 answering, in exams 242 essays or 224–6 improving skills at answering 236 need to be direct in answering 210–15 spotting issues raised by 209–10, 215–18 tips on answering 209–26 types of 205–8 using cases in answering 219–22 property law 11 public law 10, 11 reading lists going beyond 92–3, 127–8, 232 relativism 79–83, 270–1 revising deciding what to revise 228–9 tips on 227–35 writing essays and problem answers, as aid to 230 Rule of Law aspects of 37–41, 269–70 importance of 26–9, 37–41 requirements for 37–41 small-group teaching getting most out of 166–9 importance of 57 Socratic Method 271 solicitor becoming 45, 46, 47, 249
choosing to become barrister or 252–3 getting work as 46, 49 qualities needed by 257, 258–9 work done by 36, 256–7, 258 statutes interpretation of 159 making notes on 151–8 study groups importance of 92 improving writing skills as member of 235–7 reading lists and 93 revising as member of 233–5 textbooks deficiencies of 95–6, 124–5 making notes on 121–5 tort law 5, 8–9, 10, 25, 33–4, 231 answering problems in 206–7, 213–14, 220–2, 223 making notes on 121–3 trusts law 11 university Cambridge 58–9, 60–1 choosing where to do a law degree at 53–62 entry requirements 53–4 Oxford 58–9, 60–1 websites useful for future careers 250–2 useful for picking universities/colleges 53–4, 55, 59, 60–1 useful for studying law 101–4, 128 Wesley, John 264 Williams, Glanville 191, 194, 196–8, 200, 202
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