This chapter presents the skills needed to find cases. It first explains the meanings of case citations before moving on to discuss how to locate domestic cases. It then describes how to find decisions of the European Court of Human Rights, the Court of Justice of the European Union, and the General Court.
Chapter
6. Finding cases
Chapter
1. Studying the English legal system
This chapter introduces you to the study of the English legal system in higher education. After explaining some of the different expectations of studying at this level, the chapter’s focus is on how you learn and how to succeed on the module. There is considerable advice and tips on how to get the most out of lectures and seminars. The coverage introduces some key terminology and emphasises the importance of independent research and reading both primary sources (legislation and case law) and secondary sources (textbooks and journal articles). Finally, the chapter provides guidance on how to tackle assessments such as written essays, oral presentations, and examinations.
Chapter
2. An overview of the English legal system
This chapter provides an introduction to some of the key concepts, themes, and institutions of the English legal system. It offers an overview of fundamental concepts and principles such as parliamentary supremacy, the rule of law, legislation, the common law, and equity. The chapter will help you gain a firm grasp of terminology and know the differences between the criminal law and civil law. The general relationship between the English legal system and the European Convention on Human Rights (ECHR) as well as the limited, but on-going relationship with European Union (EU) law is outlined too. In the latter part of the chapter, a summary of the courts, their composition, and their jurisdiction, as well as an overview of legal bodies and personnel in the English legal system, is provided.
Chapter
5. The doctrine of judicial precedent
This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). The rules and principles of the doctrine of judicial precedent are explored, including how precedents are created, developed, and followed. The chapter analyses the legal rule that establishes the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. This hierarchy helps to determine whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case examples and highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.
Chapter
4. Choice and use of authorities
This chapter focuses on the main tool of the mooter's trade — case authorities. It provides answers to the following questions: What is ‘exchange of authorities’ and is it appropriate to rely on the opponent's authorities? How should authorities be chosen? How should authorities be cited? Should research be delegated to others? Can other people's ideas be used? Should help be sought from tutors? In what ways can the law library be used in preparing for a moot presentation? What is the difference between square and round brackets in a case citation? How should electronic information resources be used? When and how should overseas authorities be referred to? What does the Latin mean in a law report? How can old cases be obtained? Is an authority ever too old to use? In addition to reading a report of a judgment of a case, should counsels' arguments also be read?
Chapter
10. Retained EU Law and Legal Method
Since 1973, the English legal system has been radically affected by what is now called ‘EU law’. Following the Brexit referendum the UK has now left the EU but there remains a legacy of nearly fifty years of EU-related legislation and case law to contend with. The solution has been to keep a large amount of that EU-derived law, termed ‘Retained Law’, as if it had been created by our Parliament and courts in the first place. The mechanism for dealing with how that has been achieved, and the implication for the future, is discussed here.
Chapter
2. Finding the Law
This chapter introduces the main resources and techniques needed for legal research, the development of legal ‘information literacy’, and the appropriate methods to undertake research: the capabilities necessary for learning and working in an information-rich, digital society. It demonstrates how digital technologies are changing the nature of law and legal information from physical to a virtual space, and with it the research process. Digital media have created new challenges, for example for intellectual property law, for data security and protection, and for the criminal law in responding to a wide range of electronic crime. The discussion of specific research tools and techniques covers literary sources; case law; legislation; EU law; and using a number of online resources.
Chapter
5. The Doctrine of Judicial Precedent
This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.
Chapter
6. How Precedent Operates: Ratio Decidendi and Obiter Dictum
The aim of this chapter is to emphasise that legal analysis is not just a question of comparing facts or using a set of balancing scales to see if the facts weigh about the same. The situation is often much more complicated than that. This chapter discusses the following: the development of case law and why cases may be distinguished as well as applied on the material facts; defining ratio decidendi; perception and ratio; ratio and interpretation; obiter dictum; how precedents develop; answering legal questions on precedent; material facts; what can happen to a case; the postal rule cases; and the ‘uncertainty principle’ of cases.
Chapter
4. Sources of Law II: Case Law
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. This chapter focuses on case law, a major source of law providing for the interpretation of statutes and the application of law to particular circumstances. Case law, also known as the common law, is a set of judge-made rules that have either a binding or persuasive effect on future cases. Judge-made means that a member of the judiciary has decided a case in a certain way, which has led to the development of that particular piece of law. Certain courts are obliged to follow previous judgments, whereas other can ignore them due to their seniority. Indeed, the doctrine of precedent denotes a system of case law—binding or not—that a lower court may or may not have to follow. Whether precedent is binding is dependent on whether there is a statement of law, as opposed to fact, certain reasoning for that decision (known as ratio decidendi), and the decision of a superior court.
Book
Scott Slorach, Judith Embley, Catherine Shephard, and Peter Goodchild
Legal Systems & Skills provides essential knowledge and skills for underpinning legal studies, providing a foundation for graduate employability both within and outside the legal service profession. It develops students’ understanding in three core areas: legal systems, legal skills, and professional development and commercial awareness. The first part of the book looks at legal systems, sources of law, legislation, case law, and legal services and ethics. The next part considers, in the context of academia and practice, how to read and understand law, legal research, problem solving, oral communication and presentations, client interviews and meetings, negotiation and mediation, mooting, advocacy and criminal advocacy competitions, writing and drafting, and revision and assessment. The final part examines employability skills, commercial awareness, business, economics and finance, law firms, and clients.
Chapter
7. Reading cases and legislation
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter describes how to read and understand primary sources of law in academia and in practice. It provides examples of legislation (statute and statutory instrument) and case law (including both new and older styles of reporting). Techniques are suggested to read and understand these primary sources of law effectively and efficiently. Annotations are provided to explain the features on which to focus and how to understand what information the sources is supplying, and where. Encouraging familiarity with the layout of a source in turn develops understanding of how to best navigate, read and understand the source. Practical strategies for reading are also included.
Chapter
11. Understanding Legal Reasoning and the Future of Law
This concluding chapter focuses on legal methods more conceptually. It aims to develop in readers a deeper understanding of what is involved in legal reasoning, understood primarily as the logical and argumentative forms of reasoning used in adjudication. It goes on to explore the question whether legal rules act as a significant justification for or constraint on judicial decision-making, as explained through the competing lenses of two important methodologies: legal formalism and legal realism. The significance of this conceptual debate about legal reasoning is illustrated with reference to current attempts to model legal decision-making through digital expert systems and AI, and these processes are used to highlight a number of themes and issues from earlier chapters in the book.
Chapter
1. Studying the English legal system
This chapter introduces you to the study of the English legal system in higher education. After explaining some of the different expectations of studying at this level, the chapter’s focus is on how you will learn and how to succeed on the module. There is considerable advice and tips on how to get the most out of lectures and seminars. The coverage introduces some key terminology and emphasises the importance of independent research and reading both primary (legislation and case law) and secondary sources (textbooks and journal articles). Finally, the chapter discusses and provides guidance on how to tackle commonly used assessments such as written essays, oral presentations, and examinations.
Book
Mark Thomas and Claire McGourlay
Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. English Legal Systems Concentrate starts with an introduction to the English legal system (ELS). It then looks at sources of law: domestic legislation, case law, and the effect of EU and international law. The text also examines the court structure. It then looks at personnel of the ELS. It moves on to consider the criminal justice system and the civil justice system. After that, it looks at funding access to the ELS. Finally, it looks to the future of the ELS.
Chapter
2. Legal systems and sources of law
Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard
This chapter focuses on the sources of law in England & Wales, and is organised as follows. Section 2.1 describes the key jurisdictions relevant to lawyers in England and Wales. Section 2.2 deals with the issue of where the law comes from: sources of law. Section 2.3 reviews the development of the two ‘traditional’ sources of law in England and Wales: case law and statutes. Sections 2.4 and 2.5 consider the status and operation of EU and international law, including the potential effect of Brexit. Section 2.7 goes on to discuss public and private law, common law, and civil law, and other classifications used by lawyers. This is followed by a discussion of legal systems and their cultures across the world.
Chapter
2. An overview of the English legal system
This chapter provides an introduction to some of the key concepts, themes, and institutions of the English legal system. It offers an overview that highlights fundamental concepts and principles such as parliamentary supremacy, the rule of law, legislation, the common law, and equity. There is a focus on ensuring you have a firm grasp of terminology and know the differences between the criminal law and civil law. The relationship between the English legal system and the European Union (EU) and the European Convention on Human Rights (ECHR) is also distinguished and explained. In the latter part of the chapter, a summary of the courts, their composition, and their jurisdiction, as well as other legal bodies and personnel in the English legal system, is provided.
Chapter
5. The doctrine of judicial precedent
This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). The rules and principles of the doctrine of judicial precedent are explored, including how precedents are created, developed, and followed. The chapter analyses the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. The relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.
