COURSE MANUAL LEGAL METHODS I Course Instructors Marco Traversa, Natasha Nayak, Rashmi Raman, Sunita Tripathy SEMESTER I (Five year B.A., LL.B) 2014 1 CONTENTS 1. Part I a. General Information..………………………………………………….……………………3 2. Part II a. b. c. d. Course Description…….……………………………………………….……………………….3 Course Goals and Objectives…………………………………….………………………...4 Course Intended Learning Outcomes….………………….…………………………..5 Grading of Student Achievement………….…………….……….……………………..8 3. Part III a. Readings…………………………………………………..…………….…….………………..….9 b. Keyword Syllabus…………………………………………………….…….………………….10 4. Part IV- Weekly Teaching Outline a. Week I-----Understanding the Law and its Sources…….…..…………………11 b. Week II---- Introduction to Legal Institutions and Processes….…………13 c. Week III---Introduction to Research: How to use a Law Library? ……………………………………………………………………………………………………….…14 d. Week IV--Foundations of Modern Law ………………………………………….................................................................15 e. Week V---Legislation and Subordinate legislation……………………….…..16 f. Week VI--- Canons of Statutory Interpretation………………………………..17 g. Week VII---The Nature of the Judicial Process & the Doctrine of Precedent…………………………………………………………………………….….…………19 h. Week VIII The Nature of the Judicial Process & Role of Lawyering…20 i. Week IX-- The Nature of the Judicial Process & Role of Lawyering…21 j. Week X--- Judicial Law Making………………………………………………….………22 k. Week XI— Approaches to Legal Reasoning………………………….……..…….23 l. Week XII---Revision ………………………………………………………………..………...24 5. Annexes ( Reading Materials) 2 Information on Legal Methods I offered by Jindal Global Law School Semester 1 in 2014 The information provided herein is by the Course Coordinator. The following information contains the official record of the details of the course. Part I Course Title: Legal Methods I Course Code: LW1101 Course Duration: One Semester No. of Credit Units: 6 credits Level: Under-graduate level (Foundational) Medium of Instruction: English Pre-requisites: Nil Pre-cursors: Nil Equivalent Courses: Nil Exclusive Courses: Nil The above information shall form part of the University database may be uploaded to Dspace into the KOHA Library system and catalogued and may be distributed amongst the students of the first year BA., LLB and BB.,LLB course if necessary. 3 PART II A. Course Description This introductory course covers legal methods for students of law; one learns to critically read statutes, cases and other legal and legally-relevant material, and to identify and resolve issues that involve the law. The syllabus includes selected analytical legal materials and aims to provide a familiarity with the context, syntax and grammar of law that is vital to address situations that lawyers, judges and legal institutions have to regularly engage with. Through the detailed study of selected legal materials, the course also hopes to provide students of law with a picture of the different approaches, attitudes, theories and philosophies that make law such an exciting subject of scholarly studies. Materials studied include classic and modern legal cases from the Indian, AngloAmerican and continental European legal systems in the fields of tort, contract, criminal law, public law and property. In addition to working directly with selected original and appellate decisions (and the arguments and pleadings involved in these), students will also learn to use important texts and writings that hold a strong influence on contemporary legal method and the law. A few of the cases and texts in the syllabus have been specifically chosen to build a foundation for the sustained study of legislative history, institutional roles, statutory interpretation, and legal reasoning. Stories and literary excerpts, films, workshop-format interactions with experts, and field trips to institutions will contribute to the holistic treatment of the subject matter. B. Course Aims The course - seeks to develop skills that law students need for effectively researching and using cases, statutes and other legal materials. - provides familiarity with legal structures, processes, and institutions. - fosters ability to identify, read, analyze and formulate substantive arguments in favor of or against a legal proposition - develops understanding of the processes of law-making by legislative, judicial, administrative and informal law-making bodies - Introduces court craft and legal reasoning - Introduces the terminology, syntax and meaning of law through a step-by-step systematic approach - fosters ability to identify relevant information and distinguish it from irrelevant information in a legal context - introduces the structural hierarchy of values and norms in legal systems 4 - encourages legal reading and writing in a clear, coherent and critical manner - develops an interdisciplinary perspective to the study of law and its role in our lives At the end of the course, the student will be able to: - demonstrate an ability to locate, identify and analyze the sources of law in a legal system conduct case law analysis, i.e. identify and understand the principles and policies supporting the decision develop an understanding of the role of courts and legislatures and other administrative organs approach legal issues in a structured manner and frame responses to the issues as a lawyer would do. 5 C. Course Intended Learning Outcomes Course Intending Learning Outcomes: Weight Teaching and Learning Activities Assessment Tasks/Activities By the end of the course students should be able to: Critically read court 50% decisions, scholarly legal opinions, and other legal material, construe statutes, understand the principles and policies supporting legal decisions in various contexts, formulate substantive arguments in favor of or against an identified legal proposition and, above all, gain a familiarity of legal terminology and the working methods of some of the key legal systems. Reading of relevant cases, statutes, and other legal materials Students are expected to read the wide range of materials included in the Course Manual or in handouts. These materials include select text book excerpts, edited case reports, unabridged cases, journal articles, selected legislations and lecture notes. There is no principal text book for this course, although students may find Glanville Williams’ Learning the Law quite informative. Lectures: Students will acquire basic knowledge on how to read cases, statutes, scholarly writings and other legal material, and formulate arguments for or against a legal proposition. End-of-course in class examination (50% of marks) Class participation and Tutorials (25% of marks for attendance, presentations and participationClass participation will involve class discussion, moots and informal presentations.) Assignments (25%) 6 Demonstrate an interest in an 30% interdisciplinary approach to law and acquire basic knowledge on legal reasoning and court craft. Students will be able to distinguish relevant information from irrelevant one in various legal contexts. Tutorials: Students will be given a fact situation based on the topic being discussed in class. Students will be required to critically analyze the given lawfact situation and respond through structured presentations, class discussions and writing exercises. Lectures: Students will develop an understanding of interdisciplinary perspectives on law through the critical reading of various cases, book excerpts, literary pieces, films and law review articles. Students will be able to critically explore and strengthen ideas for legal reforms and practice through these learning activities. Students will evaluated through: Tutorials Assignments. Class Participation. Tutorials: Students will be involved in presentations and participatory verbal activities in which they will critically evaluate issues and concerns on selected topics. 7 be Apply the legal principles to 20% solve legal problems by: - researching issues of Law, - effectively communicating their solutions orally and in writing. Lectures: Students will learn how to comprehend a legal issue and to find and apply legal rules to a given situation/case through background readings and case-law analysis. The course will also provide an introduction to legal methods to study Institutional roles, juridical concepts, and competing values that animate legal systems. Students’ ability to analyze and critically evaluate a legal problem and their ability to solve the problem, will be tested through the following means: End-of-course examination Tutorials Class participation Tutorials: Students will be required to make presentations on problems and questions allotted to them and all students will be required to actively participate in all tutorial discussions. D. Grading of Student Achievement To pass this course, students must obtain a minimum of 50% in each of the coursework and the examination elements of the assessment. Coursework for this purpose means those ways in which students are assessed otherwise than by the end of semester examination. End of semester exam will be in the form of a traditional 2-3 hours written exam. 8 Part III A. Readings: Unless otherwise indicated, all readings essential for this course are included in the course manual. Essential reading: 1. Glanville Williams, Learning The Law (11th edn.,) – provided to every student. 2. Ian Mcleod, Legal Method (7th edn.,) – provided to every student. Supplementary Reading An exhaustive reading list is provided under the section ‘Weekly Teaching Outline’. However, a familiarity with the following reading materials will be desirable. Books 1. Peter Strauss, Legal Method (Foundation Press, NY, 2005) 2. Salmond on Jurisprudence (12th edn) Articles and Book extracts 3. Robert Cover, Violence and the word, 95 Yale L.J.1601. 4. Alec Stone Sweet, “Western European Courts in Comparative Perspective” in Towards a Comparative Understanding of Judicial Review. Acts/Statutes/Ordinances Some familiarity with the following Legislations is desirable for a successful study of Legal Methods I. 1. Constitution of India 2. General Clauses Act 3. Indian Evidence Act 9 B. Keyword Syllabus This introductory course aims to familiarize students with using cases, statutes, and secondary materials in their education. Much of the emphasis is placed on the general structure of the law and legal methods. The detailed syllabus is as follows: - What are the sources of law? What are the concepts and principles underlying the law? What is the proper role of judges and how would they accommodate competing values while adjudicating disputes? - Introduction to India’s legal system, its organization and administration; Study of the foundational aspects of the Indian legal system, its evolution as a common law system, the role of the Constitution. The role of courts in the Indian legal system in contrast with the roles of legislatures and other agencies; Comparative aspects of other legal systems and legal traditions. - Examination of different types of dispute resolution such as adversarial and inquisitorial methods, rules of evidence; rules of procedure-civil &criminal, burden of proof, etc. - An introduction to logic: How to think like a Lawyer? How to make distinctions between “fact” and “law”, “material facts”, etc? Introduction to forms of legal reasoning (analogic, syllogistic, deductive and inductive) and their proper application in the elaboration and application of legal resources. - Statutes and Fundamentals of Statutory Interpretation. How to use the statutory text and secondary legislation? To what extent preparatory material and considerations of policy and equity influence the text? What are the canons of statutory interpretation. - Meaning and application of the concept of stare decisis; when and how courts overrule precedents? concept of ratio decidendi and the techniques of identifying and extracting the holding of a case; what is the importance of dicta and how to use it properly? - Judicial role in creating case law; how much creative power does- must –should a judge have? 10 - Legal Research- Legal skills in finding, using and citing various resources of law. PART IV- WEEKLY TEACHING OUTLINE LECTURE PROGRAMME Teaching Week 1 2 3 4 5 6 7 Lecture Topic UNDERSTANDING THE LAW AND ITS SOURCES INTRODUCTION TO LEGAL SYSTEMS AND INSTITUTIONS INTRODUCTION TO RESEARCH: HOW TO USE THE LAW LIBRARY? FOUNDATIONS OF MODERN LAW : CANONS OF STATUTORY INTERPRETATION AND PRECEDENT STATUTES AND SUBORDINATE LEGISLATION CASES – DOCTRINE OF PRECEDENT 8 HOW TO PREPARE A CASE BRIEF? 9 10 APPROACHES TO REASONING AND ANALYSIS BASIC CONCEPTS – 11 PROPOSITIONS,ARGUMENTS,EXPLANATIONS,PARAPHRASING REASONING : DEDUCTIVE, INDUCTIVE AND FALLACIES 12 REVISION 11 Week I 1.1 UNDERSTANDING THE LAW AND ITS SOURCES In the first week, the focus will be on the different approaches to the concept of law, justice and morality. The reading materials and discussions will introduce and explore the key question of ‘What is law?’ and will lay down the foundations for a general framework for legal thought. A useful starting point will be a discussion of the fictitious case of Speluncean explorers authored by Lon Fuller. "The Case of the Speluncean Explorers," Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. Read this case carefully and consider which of Fuller’s fictitious judges you would agree with. You may also consider: 1. What is the correct philosophy of law? That is, what is the law and how do we know it? 2. What is the proper role of judges? 3. What is the relationship between justice, the law, and the various agencies of the government? 4. How should judges rule in this case? Essential readings: 1) “Speluncean Explorers”, Harvard Law Review, vol. 62, no. 4 (1949) pp. 616-645. 2) James Holland and Julian S Webb, Learning Legal Rules, (Oxford: 2010), 17 3) Chapter 1 in GLANWILLE WILLIAMS, LE ARNING THE LAW (11th Edn). 4) Chapter 2 in SALMOND ON JURISPRUDENCE, (12TH Edn), pp. 109-140. 5) Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, (OUP: 2009), 1-3 Recommended reading: (1) Chapter 2 in Neil Maccormick, Legal Reasoning and Legal Theory (Indian edition), pp 18-41. (2) Carl F Stychin and Linda Mulcahy, Legal Methods: Texts and Materials (Sweet and Maxwell, London: 2003), 1-19, 47-49 (3) HLA Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law Review 593 (1958) (4) Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy (5) Manik Bandopadhyaya, The Thief (A short story) (6) Saadat Hassan Manto, The New Constitution (A short story) 12 (7) Ian Mcleod, “Natural Law and Positivism in Context: the Case of the Speluncean Explorers, in LEGAL THEORY, Palgrave Macmillan Law Masters (4th ed.,), pp- 3439. (8) Orrin S. Kerr, “How to Read a Legal Opinion: A Guide for New Law Students”, 11 Green Bag Journal (1). (9) Ian Mcleod, “Natural Law and Natural Rights in English and European Community Law”, in LEGAL THEORY, Palgrave Macmillan Law Masters (4th Edn). pp-61-62. (10) Chapter 1: “Persistent Questions from HLA Hart” in THE CONCEPT OF LAW, pp. 1 – 17. (11) Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Legal Reasoning. (12) Martti Koskenniemi, "From Apology to Utopia", epilogue (2005) [to study the indeterminacy thesis] (13) Ronald Dworkin, Legal Rules and Social Theory, Yale Law Journal, 1972 (14) Aristotle, Posterior Analytics, 350 B.C. (15) Aristotle, Nicomachean Ethics (16) Aristotle, Politics, Book 2 *NOTE. There will be no tutorial in the first week. 13 Week II 2.1 INTRODUCTION TO LEGAL INSTITUTIONS AND PROCESSES This session will provide an introduction to India’s legal system, its organization and administration. Key attributes of a legal system will be identified and discussed, and comparative perspectives on legal systems in other countries will be explored. A brief introduction to the United Nations system and international law will also be included. Fact finding and dispute resolution will be an important focus of this session. This session will examine the role of various tools available to the courts and the litigants in the discovery of facts. The students will be introduced to the process and methods of collection of evidence; adversarial and inquisitorial methods, concepts of examinationin-chief and cross-examination, etc. Case discussion: K.M.Nanavati v. State of Maharashtra, AIR 1962 SC 605, which was the last case in India to be tried under a jury system. Students will familiarize themselves with concepts such as allocation of burden of proof, application of exception to a general rule, process of collection and establishment of evidence, role of witnesses, acquittals and convictions, etc. Case discussion: French Cour de Cassation case (on complete reparation for injuries), Cass. 2e civ., Feb 22, 1995, 1996 D. Jur. 69 – discussion of this case will provide an introduction to the continental civil law tradition. Essential Readings: (1) Cases mentioned above (2) DD Basu, Introduction to the Constitution of India, (LexisNexis:2008), 3249 (3) Poonam Khanna, Judicial System in India in Towards Legal Literacy: An Introduction to Law in India (Kamala Sankaran and Ujjwal Kumar Singh ed., 2008), 27-44 (4) Chapter V: Fact Finding and Dispute Resolution in LEGAL METHODS, Sweet & Maxwell. (5) Introduction and Chapter 1 of Mirjan R. Damaska, “The Face of Justice and State Authority – A Comparative Approach to the Legal Process”, pp. 1 – 46. (6) Constitution of India – Preamble and selected articles. (7) Upendra Baxi,"The Crisis of the Indian Legal System" (8) United Nations Charter – selected excerpts. (9) Statute of the International Court of Justice – selected excerpts. 14 Recommended Readings: (1) Franz Kafka, Before the Law (A short story) (2) GLANVILLE AUSTIN, CORNERSTONE OF A NATION (excerpts and generally) 15 Week III 3.1 INTRODUCTION TO RESEARCH – HOW TO USE THE LAW LIBRARY This is practical module for introducing and familiarizing the student to the library resources and training them on what are the tools for conducting legal research. This week classes will be conducted in a workshop format, the following topics will be covered in consultation with the Director of the Jindal Global Law Library. a) Primary and secondary sources b) Basic legal research and tools for Legal Writing: citation, reference, plagiarism c) Convene library consultations in assorted groups of students across sections d) Training regarding the e-resources e) Class exercise Recommended readings (i) ‘Research: Sources of Law’ from material available http://www.aallnet.org/sis/lisp/research.htm, http://www.library.uq.edu.au/law/research/strategy.html#3 http://www.vtstutorials.ac.uk/tutorial/law/?sid=2485947&itemid=12969. ii) James Holland and Julian S Webb, Learning Legal Rules, pp 24-31 online on and 16 Week IV 4.1 THE FOUNDATIONS OF MODERN LAW Law is widely considered to draw its authority from the powers of political institutions. Others consider law to be grounded in judicial decisions and customary practice of nations. For instance, the sources of common law have included judicial decisions and to some extent customary practice occurring on a more local level—for example, the practice of merchants, businesses, etc. Common law is a body of law which judges regard as authoritative and which draws its force from prior judicial decisions. Common law judges write opinions that set forth the facts of a controversy in considerable detail, and explain the reasoning process in relation to the existing body of decisions that have led to their conclusions. This session will discuss the nature and evolution of common law in India and other Anglo-American legal systems and will compare it with civil law( e.g., the law of most nations of Continental Europe). Discussion of the case Priestly v. Fowler; also read the article by Michael Stein entitled Priestly v. Fowler (1837) and the Emerging Tort of Negligence, 44 BCLR, 689. Read M C Mehta v. Union of India (1987) and examine how the Supreme Court created a doctrine of liability in respect of inherently hazardous activities in the background of the rule in Rylands v. Fletcher (1868 LR 3 Ex 330). For an introduction to the continental civil law tradition, the following cases may be discussed: (1) Geman: W. v. B-M, Bundesgerichtschof, Sixth Civil Senate, 4 November 1953, 11 EBGHZ 151, (2) French: The Latour case, Conseil d’Etat, 9 July 1948. Essential Readings: (1) Cases mentioned above. (2) Chapter 2 in GLANVILLE WILLIAMS, Learning the Law (11th edn.), pp. 24-30. (3) James Holland and Julian S Webb, Learning Legal Rules, pp 24-31. Recommended reading; (1) Reinhard Zimmerman, “Civil Code or Civil Law – Towards a New European Private Law”, 20 SYRACUSE J. INT’L L. & COM. 217 (1994). 17 Week V 5.1 LEGISLATION AND SUBORDINATE LEGISLATION The class will examine how legislative activity is organized in India, particularly in the framework of the Constitution of India. This session will combine elements on case law analysis, reading statutes and statutory interpretation. Articles 245 to 255 of the Indian Constitution make clear distinction between the legislative powers of the Union of India and the States. The Indian Parliament has the exclusive power to make laws with respect to any of the matters included in the Union List and the Seventh Schedule, whereas the States legislatures exercise authority over the matters included in the State List. Case discussion: (1) V. Sudeer v. Bar Council of India (1999) 3 SCC 176 for the proposition that delegated legislation( in this case, pre-enrolment regulation legal trainees) that is beyond the rule making powers under the parent act is invalid; (2) State of Tamil Nadu v. Sabanayagam and another (1998) SCC 318- where the Supreme Court discusses the procedure for exercising conditional legislative power; please read Soni Babubhai v. State of Guajrat, to understand the prospective application of criminal statutes. Right to Information Act, 2005 (available in the Course Manual). Essential Readings: 1. Cases mentioned above 2. Chapter 3, GLANVILLE WILLIAMS, LEARNING THE LAW (11th Edn), pp. 44-46. 3. Legislation- Passage of Legislative Proposals in Parliament [extracts from the Parliament website: http://164.100.47.132/LssNew/Legislation/Legislation.aspx]. Recommended reading: (1) Anirudh Prasad, Centre-State Relations in India : Constitutional Provisions, Judicial Review and Recent Trends (Deep Publications Pvt. Ltd., New Delhi, 1985) – Excerpts 18 Week VI 6.1 CANONS OF STATUTORY INTERPRETATION Are there any canons of statutory interpretation? Pluralists’ approach to Interpretation: Please read Kent Greenawalt’s A Pluralist Approach to Interpretation (excerpts from Peter Strauss’s Legal Method). This article provides in a capsule summary of seven dimensions of choice that characterize the interpretation of legal texts. The seven dimensions of choice include: 1. 2. 3. 4. 5. 6. 7. Writer or reader? Subjective or objective? Abstract or contextual? Specific Aim or General Objective Meaning, External Policies, and Justice Inquiry Limited to the Document or Including External Evidence Time of writing or Time of Interpretation The application of literal rule - a rule which mandates that when the statute is clear and unambiguous, the courts should give effect to the words as they are understood. Purposive approach- interpretation in light of the purpose behind the statute. Please read the House of Lords decision in Pepper v. Hart [1993] AC, 573 Mischief rule- a rule of interpretation whereby a statute is construed in such a way as to suppress the mischief and advance the remedy. Read Bengal Immunity Co. v. Union of India, (AIR 1955 SC), para. 31; read also S K Batra v. Union of India, (2007)3 SCC 169 on why courts should reject interpretation which lead to absurd results (examine the interpretation of the term ‘shared household’). Role of market-based approach in statutory interpretation- read the opinion of Judge Easterbrook in ProCD v. Zeidenberg (86 F.3d 1447). Selection of excerpts from the decisions of the Supreme Court of India in T.N. Godavarman Tirumulkpad V. Union of India. Overview of the Judges Appointment cases (viz., S.P Gupta v. Union of India 1981 Suppl. SCC 87; Supreme Court Advocates-on-Record Association (1993) 4 SCC 441; and Third Judges case (1998), concerning interpretation of the word ‘shall always be consulted’Extracts provided 19 Essential Readings: 1) Cases mentioned above 2) Chapter 1: Basic Principles, G. P Singh, PRINCIPLES OF STATUTORY INTERPRETATION, pp. 1 – 60. 3) Kent Greenawalt, “A Pluralist Approach to Interpretation”, excerpts available in Peter Strauss, LEGAL METHODS ( 2005) 4) Deborah Maranville, ‘How to Read a Statute: MAP It!’ available online : courses.washington.edu/civpro03/helpful_hints/StatuteMAP.do 5) Sharon Hanson, Legal Method (Cavendish Publishing Ltd., London, 1999), 39-54 6) Extracts from George Costello, Statutory Interpretation: General Principles and Recent Trends, Report for Congress, 2006, Congressional Research Service. 7) Vepa Sarathi, Interpretation of Statutes, (Eastern Book Co., Lucknow, 2003), pp 829 8) M.N. Rau and Amita Dhanda, N.S. Bindra’s Interpretation of Statutes, (LexisNexis Butterworths, New Delhi, 2007), pp. 4-17 Recommended readings 9) GLANVILLE WILLIAMS, LEARNING THE LAW (11th Edn), pp 97-111. 10) Henry M. Hart & Albert M. Sacks, “Note on the Rudiments of Statutory Interpretation”, in Legal Process, Eskridge ed & Frickey, Eds. 1994, pp 1374-80. 11) Harry W. Jones, “Some Cause of Uncertainty in Statutes”, 36 A.B.J Journal 321 (1950 excerpts available in Peter Strauss, LEGAL METHODS (2005). 12) Excerpts, “An Addendum on the Problem of Drafting Rules Cannot be misunderstood,” excerpts available in Peter Strauss, LEGAL METHODS (2005), pp 286-287. 20 WEEK VII 7.1 NATURE OF JUDICIAL PROCESS AND THE DOCTRINE OF PRECEDENT Doctrine of Stare decisis As a general principle the decision of an administratively superior court is controlling over inferior courts. This doctrine is widely called as stare decisis. Stare decisis literally means, “Stand by the decision”. Stare decisis ensures predictability, stability and consistency of results, which is an inherent feature of rule of law. Understanding stare decisis is a major element of the work of the Legal Methods course. This course will examine as to what aspects of a decision are authoritative and what aspects are persuasive. The Indian judiciary has a typical pyramidal structure with numerous trial courts (including district courts and moffusil courts), various High Courts in the states and the Supreme Court at the apex. This Common Law concept is embodied in the Indian Constitution. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. To understand the scope of stare decisis in India, read Bengal Immunity Co. v. Union of India AIR 1955 SC 631. This case discusses the issue whether the Indian Supreme Court is bound by its own decisions. Please read Director of Settlements, A.P v. M.R. Appa Rao, AIR 2002 SC 1598. Read the provided excerpts of Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677 – analyse how binding law, distinguishing cases, persuasive authority, and comparative perspectives influence the judicial process. Essential reading (1) Cases mentioned above (2) Chapter 6 in GLANVILLE WILLIAMS, LEARNING THE LAW (11th edn), pp 66-96 Recommended reading (1) RUPERT CROSS AND J.W HARRIS, PRECEDENT IN ENGLISH LAW (4th edn.) (2)Robert Cover, “Violence and the Word”, 95 YALE L.J.1601. 21 Week VIII 8.1 NATURE OF JUDICIAL PROCESS AND THE ROLE OF LAWYERING- I One of the critical skills of a lawyer is the ability to select a relevant legal authority for a particular proposition of law. Lawyers are often called upon to advise clients/courts whether the decision in a previous case lays down any authoritative precedent so as to be binding on future cases. Distinction between Ratio Decidendi and Obiter Dictum Ratio decidendi—best defined as the “essential point of law which the previous court was required to strictly binding, but may be persuasive. Please read ‘Goodharts test’ and ‘Wambaugh’s reversal test. How to distinguish between holding and dictum? Under the Common Law, the same court which decided an earlier case as well as courts under that court within the same jurisdiction are supposed to follow what the first court establishes unless what the first case establishes is so grossly wrongheaded or wholly inappropriate. If a previous decision is not to be followed, it should be ideally overruled. Case discussion: MGM v. Grokster (545 U.S 913, 125 S.Ct. 2764), Examine how the courts used the precedents established in Sony v. Universal City Studios (464 U.S 417, 104 S.Ct. 774) ( available in the Course Manual). Case discussion: Wilkinson v Downtown. Please read carefully the discussion of this case in Glaville Wlliams’ book Learning the Law. Olga Tellis v. Union of India (1985) 3 SCC 545 To examine the operation of this doctrine in civil law systems, read a French decision: Wackenheim, Judgment of 27 Oct. 1995, Cons. d’Etat, 1996 D. Jur. 177 (note Lebreton). Essential Reading 1) 2) 3) 4) Cases mentioned above Chapter 2 in SALMOND ON JURISPRUDENCE (12TH Edn), pp. 141-174. Glanville Williams, Learning the Law (11th Edn), Chapter 6, pp 66-96. Nelson P. Miller and Bradley J. Charles, “Meeting the Carnegie Report's Challenge to make Legal Analysis Explicit - Subsidiary Skills to the IRAC Framework,” 59 J. Legal Educ. 192 (2009). 22 5) Kent Greenwalt, Reflections on Holding and Dictum, 39 J. LEG ED. 431 (1989) 6) Excerpts from Strauss’ Legal Method, pp. 98-110. 7) Raju Ramachandran, The Supreme Court and the basic structure doctrine, in BN Kirpal et al (eds.), SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOR OF SUPREME COURT OF INDIA, OUP, 2000. 23 WEEK IX 9.1 NATURE OF JUDICIAL PROCESS AND THE ROLE OF LAWYERING- II Concept of Overruling Case discussion: Plessy v. Ferguson (163 U.S 537, 16 S. Ct.1138). Examine how the U.S Supreme Court overruled the decision in Brown v. Board of Education (347 U.S 483, 74S.Ct 686). Examine whether Brown specifically overrule Plessy? Young v. Bristol Aeroplane Co. Ltd. L.R. (1944 K.B. 718), discusses the concept of per incuriam. Golak Nath v. Union of India AIR 1980 SC 1643 examines the issue of prospective ruling. Read Mr. X v. Hospital Z, (1998) 8 SCC 296 and subsequent cases, and analyze the judicial treatment of right to privacy and pressing social values. Concept of res judicata This doctrine bars re-litigation of same substantive issues by the same parties before the same court. Read the case of Daryo v. State of U.P (excepts provided). Essential reading (1) Cases mentioned above (2) Chapter 6 in GLANVILLE WILLIAMS, LE ARNING THE LAW (11th Edn), pp 66-96. Recommended Reading Naz Foundation v. Union of India, Judgment of Delhi Court in Writ Petition 7455/2001. 24 WEEK X 10.1 JUDICIAL LAW MAKING Judicial law making is often an outcome of judicial activism; however, issues linger as to how much creative power they should have. These issues will be examined in this session. Please read Visakha v. Union of India, (1997) 6 SCC 241, and consider the arguments for and against judicial law making. In order to get a comparative perspective, we will be discussing a recent decision of the U.S Supreme Court. Please read Exxon Shipping Co. v. Baker (128 S.Ct. 2605, decided in the year 2008), wherein the U.S Supreme Court fixed punitive-to-compensatory ratio of 1:1 in respect of maritime damages – an area not previously legislated by the U.S Congress. Compare the opinion of Justice Souter and the dissenting opinion of Justice Stevens. Read the provided excerpts of the French decision of the Cour de Cassation (Criminal Chamber), 27 March 1996 – and consider the question of judicial definitions in a continental civil law country. Read the provided excerpts of the decision of the German Constitutional Court in the Census Act case (1983), 65 BVerfGE 1. Read the provided press release of the decision of the German Constitutional Court in the Aviation Security Act case (2006). Read the provided excerpts of the decision of the Israeli Supreme Court in the Maarab case (1999). Essential readings: Cases mentioned above Recommended readings: 1) Benjamin Cardozo, The Nature of Judicial Process (7th Indian Print, 2008) (generally). 2) S. P. Sathe, Judicial Activism in India- Transgressing Borders and Enforcing Limits, 249-311 (2nd ed, 2003). 3) Cappelletti, M, “The Law Making Power of the Judge and its Limits: A Comparative Analysis”(1981) 8 Monash University Law Review 15. 25 10.2 UNDERSTANDING HOW THE LEGAL INSTITUTIONS FUNCTION This may be an interactive session/field trip. Students will be informed about the exact nature of this session later. The field trip need not be organized exactly in this week and the details of the schedule of the meeting will be worked out soon. A few meetings are proposed to be arranged for the students with some leading practitioners, judges, M.Ps or public administrators. If possible one or two field trips may be organized to the Supreme Court/High Court of Delhi/other Tribunals/Adalats/Panchayats. Recommended reading: Afterword of Mirjan R. Damaska, The Face of Justice and State Authority – A Comparative Approach to the Legal Process. 26 WEEK XI 11.1 LOGIC AND LEGAL REASONING An important skill of a lawyer is how to use the techniques of logic and legal reasoning. Read McPherson v. Buick Motors Ltd (21 7 N.Y 382) - edited version of the case available in the Course Manual. Also read the excerpts from the section entitled synthesis from Peter Strauss’ s Legal Method; Discuss Seixas v.Woods (Supreme Court of New York, 1804, 2 Caines 48) and Winterbottom v. Wright (Exchequer of Pleas, 1842) Inductive and deductive reasoning: In inductive reasoning, one argues from the ‘specific’ to the ‘general’. Read Donogue v. Stevenson, and examine how Lord Atkin used inductive reasoning to propose a duty of care for third parties (i.e ‘neighbours’). Also examine how Lord Atkin used Justice Cardozo’ s reasoning in McPherson v. Buick Motors Ltd and Lord Abinger’s reasoning in Winterbottom v. Wright to arrive at his conclusion in Donogue v. Stevenson. In deductive reasoning, one argues from the ‘general’ to the ‘specific’. Syllogisms and types of fallacies: A syllogism consists of a major premise, a minor premise and a conclusion. The major premise usually states a general rule, which often is a statement of law. A minor premise makes a factual assertion about a particular person or thing or a group of persons or things, which is often the statement of fact. A conclusion connects the particular statement in a minor premise with the general one in the major premise, and tells how the general rule applies to the facts at hand. For an understanding read Grant v. Australian knitting Mills [1936] A.C 85. An overview of logic and common logical errors in reasoning: please read and analyze the nature of legal reasoning employed in the majority and dissenting opinions in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, AIR 2006 SC 212. Essential reading: (1) Selected case materials indicated above 1. Jack L. Landau, “Logic for Lawyers”, 13 Pac. L. J. 59, 59-66, 67-88, 89-98 (1981-82) 2. Irving Copi& Carl Cohen, Introduction to Logic (13th ed., Pearson Prentice Hall, 2009), 5-25, 37-53, 25-34, 482-511, 120-177 27 28 Week XII 12.1 REVISION/REVIEW This will be a revision/ review class. 29 ANNEX READING MATERIALS 30