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Model Essay

How to write a law essay

Depending on the required work length, writing a law essay can be a long and involved process. START AS EARLY AS POSSIBLE! Many students develop their own style of attacking an essay topic. Generally however it is useful to break the essay-writing process down into the following steps:

1.Analysing your essay topic

Before you can create an effective argument, you must determine exactly what you are being asked to answer. Your lecturer would have chosen his/her words carefully when setting the essay topic so avoid making generalisations and interpreting the question to suit your interests or level of knowledge. Seek clarification from your lecturer where necessary. It is often a good idea to highlight key words in the essay question and use them to structure your essay.

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2. Researching Be thorough in your researching and try to locate as wide a variety of sources as possible i.e books, journals, texts, internet articles. Make extensive use of electronic database for tracking down journal articles. Many law journals are available online these days and youll find that printing out web articles is much cheaper than photocopying from the hard-copy journals.

3. Reading/note taking This will no doubt be the longest part of the essay writing process. You should have a tentative essay plan in mind at this stage.

- Firstly skim through your sources and try to work out some categories for your notes.

- Now read through each source thoroughly, highlighting your printouts and tabbing your books, as you go.

- Record extensive dot-point notes for each category (either on paper or on your word processor). Write/type out direct quotes verbatim. Ensure that you record all of your references as you go (trust us, this will make your life so much easier later on).

4. Planning You probably wont be able to finalize a definitive essay plan until after you have teased out all of the relevant information from your sources. The following diagram provides you with a useful way of planning out your essay.

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INTRODUCTION

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MAIN BODY

Para 1

Para 2

Para 3

Para 4. ----------------------------------------------------------------------------------------------------------

CONCLUSION

Start broadly - Define key terms - Determine your point of view on the topic. - Highlight your main points.

The body is narrow - Specifically answer the question. - Use topic sentences and linking paragraphs - Dont waffle! - Reference quotes

End broadly - Reflect on your main argument - Highlight implications of your discussion for

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5. Draft The hard part! Personal writing styles will differ; some preferring to stick rigidly to their plan and whittle down the essay in chunks; others taking a stream of consciousness approach in order to just get everything up on the screen before worrying about the text making any sense. Try to follow your plan but by no means worry about writing in perfect English at this stage. Thats what the next step is for. Make liberal use of direct quotes and ensure that they are properly sourced.

6. Revising and refining This is where you turn your shambolic essay into a piece of solid gold that you can be proud of hurling through the essay shute on due date day. Be sure that you fully ANSWER THE QUESTION. It is imperative that there is a logical argument flowing through your entire essay that is easy for your marker to ascertain. If you have time, TAKE THE ESSAY TO YOUR UNIS STUDY-SKILLS CENTRE. The dedicated individuals working at Study-Skills will be happy to read over your essay and give you thoughtful criticism and advice.

6. Footnoting Everything must be fully referenced in a law essay, not just direct quotes. EVERY SINGLE PARAGRAPH MUST BE REFERENCED. Dont underestimate how long this can take you. Legal referencing is very precise and particular. Find out which legal referencing style your lectures prefer. It will no doubt be in the referencing format. If you keep a record of all your references as you go along, you will avoid having to frantically fumble through your notes at 2am the morning before its due, trying to work out where you pulled your quotes.

Happy essay-writing!

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Essay Question: What is the role of stare decisis in the common law tradition? Do you think that the Supreme Court of Canadas acknowledgement that it can overrule its own prior decisions runs contrary to the doctrine of stare decisis in the common law?

Model Advanced Common Law Obligations Essay

The genius of the common law lies in its adaptiveness to changing times. Its basic principles were not meant to become rigid formulae, inflexible

and resistant to new developments or changing concepts...1

The principle of stare decisis has withstood the test of time. It is has both informed the development of the common law and has itself been informed. It has operated to maintain the wisdom of the past in the name of certainty, predictability and stability in the law. However, stare decisis and the doctrine of precedent generally, have been charged with the perpetuation of error, substantive injustice, and hindering the flexibility of the common law. Freidmann Equity Developments Inc. v. Final Note Ltd.2 is a reminder of this dilemma inherent in the judicial function. Courts are charged with the duty to ensure that the law is reflective of social reality without departing unduly from their inherent dispute resolution function and the restraints of precedent, so as to protect reliance and faith in the administration of justice. In deciding whether to overrule its previous decision and to ignite change in the common law, the Supreme Court of Canada (SCC) set out a rather jagged approach in Final Note; its jaggedness a result of the tension noted above. The approach in Final Note is illustrative of

1 Taylor v. Scurry-Rainbow Oil (Sask.) Ltd. (2001), 203 D.L.R. (4th) 38, [2001] 11 W.W.R. 25

(Sask. C.A.). 2 Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842 [Final Note].

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both the coercive persistence of stare decisis as well as its flexible nature. The power of the SCC to overrule its prior decisions is very real in common law Canada. However, the principles used to determine when the use of this power is justified is neither a threat to the legitimacy of the judicial function nor the endurance of certainty and predictability in the law restraint, both core objectives of stare decisis.

Traditionally, the judicial role has been charged with the finding and declaration of law. As a central tenant of the declaratory theory that has governed much of 18th century legal thought, judges are bound to follow the ratio decidendi of past decisions since once law is found and declared, it continues to exist as such. Any deviation from previous precedent is merely a declaration that what was found was not law at all.3 However, this view has been criticized for overlooking the creative element in the work of the courts and has found rejection in modern day legal theory. This rejection, however, is not inconsistent with adherence to stare decisis. The role of stare decisis and underlying objective of the declaratory theory is to prevent arbitrary judicial law making based on personal idiosyncrasies. Judges must be constrained by a standard in order to prevent the rein of personal preferences. After all, to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.4

Therefore, the principle of stare decisis reflects very basic notions about the proper function of judges in the law-making process. With this in mind, the SCCs approach decision in Final Note for deciding when it should overrule its own prior does not represent a deviation from this principle of stare decisis. The fact that the Court will look to and rely on considerations such as the opinions of

3 W. Twining and D. Miers, How To Do Things With Rules: A Primer of Interpretation, 4 ed.

(London: Butterworths, 1999) 322 [Twining and Miers]. 4 Hon. Diarmuid F. OScannlain, Rediscovering the Common Law (2003/2004) 79.2 Notre Dame

Law Review 760.

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legal writers, the law of other modern countries, and lower court decisions illustrate that the Court is constrained by a standard and not free to innovate at its own pleasure. Furthermore, the SCCs reference to the factor of social change further suggests that it does not arbitrarily decide that a prior precedent was wrongly decided and can no longer stand.5 Changes in social circumstances modify the nature of potentially similar disputes. Therefore, that the previous court would have decided in the same way had it been in the same (social) context currently at issue in the new dispute is a justified limitation on the free reign of the Courts determination of the treatment of its previous precedent.

But still, change in the law by judges arouses criticism that the judges are usurping the role of the legislature. This criticism has the potential to damage public confidence in the court system and administration of justice. It has always been the concern that failing to adhere to previously decided decisions will unleash massive and uncontrollable forces in the common law. The judge is concerned with the administration of justice between parties regarding past events rather than the overall transformation of the law. Yet common law systems have recognized that rigid adherence to the separation of powers is dangerous and not viable. A legal system relies on elasticity for its survival but the extent to which judges may tamper with this elasticity has been the centre of much debate. The SCC in Final Note recognized that its role is limited in this respect and was steadfast in its declaration that change in the common law must not come from the judiciary when the proposed change will have complex and far-reaching effects, setting the law on an unknown course whose ramifications cannot be accurately measured.6 In this respect, the Court, in recognizing that it possesses neither the expertise nor the resources to undertake the function of the legislature, preserved the legitimacy of its function that the principle of stare decisis has sought to maintain throughout the history of the common law.

5 See Final Note, supra note 2 at para. 46.

6 Final Note, supra note 2 at para. 43.

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Whether the legislature is responsive to the need for change in the common law is a separate concern.

For centuries, stare decisis and rules of precedent have sought and maintained certainty and predictability in the law. Certainty and predictability are the cornerstones of public confidence in the judicial process and the law itself. In this respect, stare decisis is concerned with the protection of individual reliance interests, particularly in the law of contracts. By adhering to prior decisions, the courts allow individuals to structure their relationships according to certain common law rules and predict the legal consequences of their actions.7 Individuals must believe that they can structure their activities around pre-established rules without suffering a detriment as a result of unpredictable changes in the law to which they have relied. Middleton J.A. for the Ontario Court of Appeal in Sweney v. The Department of Highways was correct to recognize that

liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities8

However, the SCCs approach in Final Note does not threaten the endurance of certainty and predictability in the administration of justice. While the Court has recognized that certain situations demand it abandon precedent to invoke change in the law, the factors that the SCC has put forward to determine when it will do so demonstrate that it will not result in extreme detriment to the reliance interests of individuals. In considering whether to overrule its prior decision, the Court refers to whether there were dissenting judges in the prior decision and whether provincial appellate courts have departed from principles in the original decision.9 These factors espouse the requirement that there be

7 Ibid at para. 51.

8 Sweney v. The Department of Highways, [1933] O.W.N. 783.

9 See Final Note, supra note 2 at para. 43.

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adequate notice to individuals, who have potentially relied on a precedent, that change is needed to a common law rule and thus forthcoming. Lord Nicholas in Re Spectrum Plus Ltd. recognized the ability of courts to provide such notice, as development of the common lawdoes not come like a bolt out of a clear sky. Invariably the clouds gather first, often from different quarters, indicating with increasingly obviousness what is coming.10

Furthermore, the approach in Final Note is also consistent with the role of stare decisis in the common law tradition in terms of the nature of its creation and development. Rigid adherence to the principle of stare decisis is impossible. Previous cases are always capable of being distinguished and analogized on the facts or issues. Consequently the courts have developed practices of precedent to guide them in their treatment of precedent. Techniques have always existed which have allowed Courts to justify that a precedent was wrongly decided or of weak authority.11 Donoghue v. Stevenson12 is evidence of the flexibility of such techniques, as both the majority and the dissent were able to reconcile the same prior precedents in deciding the issue of law.13 Therefore the approach in Final Note is but merely the progression and exercise of the practices of precedent employed to determine how prior cases should be treated.

In conclusion, that the aforementioned practices and power exist is not evidence that the SCC will depart from the requirements of stare decisis to unleash uncertainty into the common law. The normative force of treating like cases alike is very strong and explains why SCC has taken such a rigid approach to overruling its prior decisions. A treatment of precedent that rigorously usurps the legitimacy of the judicial function and creates uncertainty and chaos in the law and judicial process is inconsistent with the tradition of stare decisis. In considering factors that may justify an overruling of precedent, the SCC has not

10 Re Spectrum Plus Ltd (in liquidation), [2005] UKHL 41, [2005] 2 A.C. 680 at para. 33.

11 Twining and Miers, supra note 3 at 336.

12 See Donoghue v. Stevenson [1932] AC 562.

13 Ibid.

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deserted the tradition of stare decisis and all the objectives it seeks to instill. The proper application of these factors may be a matter of dispute, but in any case the Courts approach is consistent with the role of stare decisis as it has developed within the common law tradition.

Bibliography

Jurisprudence

Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842. Re Spectrum Plus Ltd (in liquidation), [2005] UKHL 41, [2005] 2 A.C. Sweney v. The Department of Highways, [1933] O.W.N. 783. Taylor v. Scurry-Rainbow Oil (Sask.) Ltd. (2001), 203 D.L.R. (4th) 38, [2001] 11 W.W.R. 25 (Sask. C.A.).

Doctrine

Hon. Diarmuid F. OScannlain, Rediscovering the Common Law (2003/2004) 79.2 Notre Dame Law Review 755-764. Twining, William and David Miers. How to Do Things With Rules: A Primer of Interpretation, 4 ed. (London: Butterworths, 1999).

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