CASE RESOLVING

CASE RESOLVING

By Naiara Arriola & Irati [email protected]

[email protected]

University of DeustoGeneral Problems of Transnational Law

Intensive ProgramSeptember 2008

mailto:[email protected]

mailto:[email protected]

http://www.uwb.edu.pl/galerie/index.php?cat=6

http://www.ucc.ie/en/

http://www1.uea.ac.uk/cm/home

http://www.kuleuven.be/kuleuven/

http://www.ulg.ac.be/

http://www-urs.u-strasbg.fr/fr/universite/faculte-ecoles-instituts.html

http://eacea.ec.europa.eu/index.htm

http://eacea.ec.europa.eu/index.htm

http://www.oapee.es/home.html

http://www.oapee.es/home.html

Universidad de Deusto

AGENDA

SKILLS INVOLVE IN THE STUDY OF LAW

- By Hanson, S.

- Exercises, Analyse outcomes, some proposals

HOW TO MADE A WRITTEN REPORT?

- Exercises, Analyse outcomes, some proposals

ROLL PLAYING

- Moot Court


Skills involve in the study of law

Skills (by Hanson, S.)

1) General study skills

2) General language skills

3) Intelectual and technical skills

4) Argument construction

5) Specific substantive subjects


Intellectual and technichal skills

1) How to locate primary and secondary legal sources

2) How to read/ analyse the law

3) How to write


1st exerciseUsing the brainstorming technique, answer the following questions

(groups of 3):

1) How would you locate legal sources?

2) Where would you find them?

3) Look for legal sources that could be applied in the case (Martinica v. Shoes Factory)

- Primary legal sources

- Secondary legal sources


How to locate primary and secondary legal sources

• Primary legal sources: - Civil Law’s tradition: domestic law, international conventions, European Union Law...

- Common Law’s tradition: case law, domestic law, international conventions, European Union Law...

• Secondary legal sources: case law, Scholars’ settled view

- Civil Law’s tradition: case law, Scholarship...

- Common Law’s tradition: Scholarship...


How to locate primary and secondary legal sources

• European Union:

http://europe.eu/index.en.htm

• United Nations Commision on International Trade Law (UNCITRAL)

http://www.uncitral.org/uncitral/en/index.html

• UNILEX (a database of Case Law and bibliography on the United Nations Convention on Contracts for International Sale of Goods and the UNIDROIT principles. BONELL, M.J. and VENEZIANO, A. (editors).

http://www.unilex.info/

• CISG database o f the Institute of International Commercial Law of the Pace Law School. Pace University, New York.

http://www.cisg.law.pace.edu/

http://europe.eu/index.en.htm

http://www.uncitral.org/uncitral/en/index.html

http://www.unilex.info/

http://www.cisg.law.pace.edu/


2nd EXERCISE

Using the brainstorming technique, answer the following questions (groups of 3):

1) How would you analyse primary legal sources?

2) How would you analyse secondary legal sources?


How to read/ analyse the law

-Primary legal sources:

• Understand draftting issues in primary legal sources

• Understand how primary legal sources are constructed

• Interpreting rules of primary legal sources, using second legal sources...



- Secondary legal sources: Case law

• Look for the hierarchy of the court

• Identify the rules applied by the court

• Identify others conflicting cases

• Identify the facts which will help you deciding whether the case is applicable

• Identify the outcome


3.2) How to read/ analyse the law

- Secondary legal sources: Scholarship

• Indentify different views

• Identify and explain the arguments in different views

• Compare and evaluate the arguments

• Draw a conclusion




- Understand the relationship between primary legal sources and secondary legal sources

• First, read and analyse the rules of primary legal sources

• Second, look for the interpretation carry out in secondary legal sources: case law and Scholarship


3rd EXERCISE


1) What is an “argument”?

2) What is a “legal argument”?


Argument construction

- Distinguish between the general meaning of argument and legal argument

• Argument: an statement or a fact addressed to prove an assertion/ position (Factual Basis)

• Legal Argument : a series of statements which are interpretated in accordance with law in order to prove or disprove a given position (Legal Basis)



- Differentiate and apply deductive and inductive reasoning

• Deductive = Universal Statements + Scientific Tools

• Inductive = Observe Particular Statements + Generalize

Particular Statements

Universal Statement


4th EXERCISE


1) Which is the most suitable reasoning method in order to resolve a case?

2) Deside the reasoing method that you will use to resolve the case (Martinica v. Shoes Factory)


* The mayority of arguments revolving around the use of facts and legal authority to resolve legal cases are constructed by the following structure:

1st Using deductive argument construct a central deductive argument

Ex. - To steal is to act contrary to law (first deductive argument)

- Particular case: Carol has stolen

Central deductive argument: Carol has acted contrary to law



Argument construction2nd Reasoning by inductive method, construct two deductive arguments: one, affirming the central deductive argument and another, denying it.

Defense thesis: Carol has NOT stolen

Prosecution thesis: Carol has stolen

Inductive reasoning:

-She was reading

- Then she remember that she has to go to class

- She is on anti-depressant prescription

- She has not intention to take the book

Inductive reasoning:

-She was seen by a witness putting the book in her bag.

- She was stopped outside by the guard and the book was in her bag

- The computer system had not recorded a sale of that book



- Develop critical thinking = reasoning logically, ability to locate underlying assumptions, skills of analycise and argument, give creativity to the activity of thinking, the ability to compare and contrast, ability to reflect, ability to search for hidden assumptions behind the general accepted acts or thougthts...

- Understand the connection between factual analysis and legal analysis



- Understand the way in which an argument is based on: factual analysis, legal reasoning, persuasion and critical thinking

- Construct a competent argument in relation to a legal problem to be solved acording to rules of legal reasoning acceptable



Identification of nature of the

problem

Location of pottentially relevant:

-Facts

- Legal sources

Evaluation of problems and

solutions

Reflection as to conclusion

Reading, summarising

and evaluation of relevant text

Drafting of potential solutions


Specific substantive subjects

- Knowledge of :

• Subject matters in law

• Sustantive law: private law, trade law, civil law...


How to write

- An Essay, A Summary, A Written report, A Coursework, Footnotes, bibliography references…- Skills:

• Ability to Identify the object of the study

• Knowledge of the law related to the issue

• Ability to locate primary and secondary sources that will be apply

• Ability to construct a sustained argument

• Ability to structure work effectively

• Ability to make quotations, bibliography references and footnotes


How to made a written report

A) Follow an agenda in order to prepare and construct the written report

B) Structure the written report effectively

C) Make quotations, bibliography references and footnotes


5th EXERCISE


Make a decision with regard to the steps you would follow to write a legal report about the resolution of the case (Martinica v. Shoes Factory)


Follow an agenda in order to prepare and construct the written report

1st Read carefully the case and identify the main problem

2nd Identify the relevant facts

3rd Think on the legal sources you will apply


4th Locate primary and secondary legal sources: legal rules, analogous cases, textbooks and articles

5th Read carefully, note, organise and reflect on material collected

Law cases:

•What are the facts?

•What legal rules have been applied and why?

•What aspects of this case are relevant to may report?




Textbooks

• What is being described?

• Does it fit with my understanding of the cases?

• What is of relevance to my report?

Articles

• What is the writer’s argument?

• Is it well supported by the evidence?

• Does the writer’s argument support or deny my argument in the report?



6th Try to resolve the case: begin to form possible arguments

Analysis of facts

Legal Analysis

Critical analysis: inductive and deductive modes of reasoning



7th Begin to write the report

Notes of primary and secondary legal sources

Notes of your arguments

Make a diagram

8th Write the first draft of the written report

9th Review the first draft and write the final version of the report

Put ideas in order


6th EXERCISE


1) How would be the general structure or form of a written report?

2) Decide the structure you will use in the case (Martinica v. Shoes Factory).


Structure the written report effectively

General form of a written report:

1) Purpose or object

2) De facto arguments (Factual Basis)

3) De iure arguments (Legal Basis)

4) Conclusions


7th EXERCISE


1) What is a quotation?

2) Do you know different ways of quoting?

3) What is a bibliography reference?


Quotations and references of primary and secondary legal sources in the written report

- Quotation = take an idea from an author using the exact same words as the original author inside the text of the report (In quotation marks “”).

- Reference = take an idea from an author without using the exact same words.

1) ARTICLES AND BOOKS, PRIMARY LEGAL SOURCES AND CASE LAW


Quotations and references of articles and books

- Quotations: Types

• Direct quotations = using the exact same words as the original author + taking the text from the work of the same author

• Indirect quotations = using the exact same words as the original author + taking the text through others authors


Quotations and references of articles and books

- Quotations: methods

• Continental method Direct quotation: indentify the author by a footnote

Indirect quotation: identify the author by a footnote

• Anglo-Saxon method Direct quotation: indentify the author writing down the year and the page of the work inside the text in brakets

Indirect quotation: identify the author by writing down the surname(s) of the author who you have taken the quotation from and the year of his work, and the surname(s) of the primary author, in brakets.


Quotations and references of primary legal sources

- The quotation of a INTERNATIONAL CONVENTION woud require:

• The full name of the International Convention

• The international Organisation under whose auspices this regulation was introduced

• Place and date it was signed, and the date was ratified by the State.

• The Official State Bulletin where it was published



- The quotation of a EUROPEAN COMMUNITY LEGISLATION woud require:

• Original law (Treaties) like International Conventions


• Derived law = Regulations, Directives and Decisions Council Regulation (EC) No. 2201/2003, 27th November 2003, relating to jurisdiction, recognition and execution of Judicial judgments regarding marriage and parental responsability, thereby overturning Council Regulation No. 1347/2000, Official Diary of European Union, No. L 338, 23rd December 2003, p. 1.


Council Decision, 19th December 2002, authorising member States to sign, in the interest of the Community, the Convention of the Hague of 1996 relating to jurisdiction, applicable law, recognition, execution and cooperation on matters of parental responsability, and child protection measures, Official Diary of the European Union, No. L 48, 21st of February 2003, p. 1.

Council Directive 2002/8/EC, 27th January 2003, designed to improve access to justice for cross-border litigations by establishing minimun common rules relating to free justice for said litigations, Official Diary of the European Communities, No. L 26, 31st January 2003, p. 1.


Quotations and references of case law

- International case law

- European Community case law

Judgment of the International Court of Justice, the Hague 18th December 2003, No. 2003/4, resolving the Appeal against the Judgment of 11th of September 1992, in the case of the insular cross-border and maritime territorial disagreement (EL SALVADOR v. HONDURAS; NICARAGUA as intervening party). On the web of the International Court of Justice: http://www.icj-cij.org/cijwww/cdocket/cesh/ceshframe.htm (last consulted on the 19th January 2004).

Judgment of the Court of Justice of the European Communities (6th Chamber), 15th January 2004, c. C-230/01, Intervention Board for Agricultural Produce v. Enycoed Farming Partnership, Re. 2004, p. 175.

http://www.icj-cij.org/cijwww/cdocket/cesh/ceshframe.htm


Bibliography

- Making a bibliography reference

- Arranging a list of bibliographycal references in order


8th EXERCISE


1) How would you make the bibliography?

2) How would you make a reference of a book, article...?


Bibliography

- Making a bibliography reference

• BOOKS

• CHAPTERS OF BOOKS

• ARTICLES

• REPORTS FROM ORGANISATIONS

• DOCUMENTS PUBLISHED ON THE INTERNET


Bibliography

• BOOKS One author

SURNAME(S), N. Title (italised). Place: publisher, year of publication.

Two or three authors

SURNAME(S), N., SURNAME(S), N. and SURNAME(S), N. Title (italised). Place: publisher, year of publication.

More than three authors

SURNAME(S), N., et al. Title (italised). Place: publisher, year of publication.


Bibliography

• BOOKS

Editor(s)

SURNAME(S), N. and SURNAME(S) (eds)...

Edition

SURNAME(S), N. Title. No. Edition. Place: publisher, year of publication.


Bibliography

• CHAPTERS OF BOOKS

A chapter written by an identified author and published in a book of several authors

SURNAME(S), N. “Title of the Chapter”. Title of the volume of work (italised). Place: publisher, year of publication.


Bibliography

• ARTICLES

SURNAME(S), N. “Title of the article”. Title of the publication (italised). Year of publication, vol., No., pp.

vol. = volume

No. = issue

pp. = pages


• REPORTS FROM ORGANISATIONS

Bibliography

ORGANISATION. Title of the report (italised). Publishing company, year, No., pp. Series, No. in the series.

• DOCUMENTS PUBLISHED ON THE INTERNET

SURNAME(S), N. “Title of the document”. Name of the person/ organisation responsable for the web site. Published in the web page (date last consulted).


Bibliography

- Arranging a list of bibliographycal references in order

• Bibliography references are to be listed in alphabetical order of authors’ surnames

• It must include only those cited in the text

• If you have quoted the same work of an author but from several years, these must be place in chronological order, beginning with the oldest edition

• If you have quoted several works of an author which are from the same year, these must be placed in alphabetical order of titles


9th EXERCISE


Make and list the bibliography of the written report about the case Martinica v. Shoes Factory

CASE RESOLVING

Documents

Transcript of CASE RESOLVING