Feedback on Equity assignment
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Introduction(s)
1.1
Although it might seem trite, it is necessary, if you are to convey a unified and coherent argument, to
introduce the question and the arguments which you intend to rely upon in an appropriate and,
above all, clear and concise manner. It is not sufficient to repeat the question and it is not sufficient
to simply start with background information, for example, the history and development of equity.
What needs to be done is to put the question into some kind of context. This does not mean a long
diatribe about the nature of equity fusion fallacy but briefly give some information that would assist
the reader in understanding what it is you are talking about.
1.2
You also need to provide a preview of the arguments you are going to adopt. Again this does not
need to be long and if they can be condensed into one phrase so be it. But it must be there.
1.3
Where there is leeway, is whether or not you choose to provide a thesis. In my view it is useful to
indicate what your view is in the introduction because then the marker or reader will know what it is
you are trying to say, so, for example, if you give a contrary view it will not seem like you are jumping
back and forth between the different positions but rather that you are simply presenting a counter
argument. Nonetheless, there is some discretion as to whether or not you choose to set out your
opinion in your introduction. If you do not, however, you need to ensure that you are consistent in
your thesis throughout the paper.
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Structure
2.1
As you will have commonly seen from judgments and articles, nowadays it is imperative that you use
subheadings. Whilst this may not have been so in the past, your essay will be better and certainly
more clear if you develop a structure which is signposted by subheadings.
2.2
It is not essential that you provide subheadings and students did not lose marks for not providing a
subheading. However the general ability of students to convey their arguments were very
specifically related to the clarity and the simplicity of their structure and therefore whether or not they
did provide subheadings.
2.3
I also think that it is important that you adhere your structure to the central point you are trying to
make. This will be dealt with below when I discuss the question issue but having a central theme
running throughout your article and therefore crafting your structure onto that thesis is of great
benefit in attempting to answer this sometimes quite complicated question.
2.4
The most important fact you need to remember is that your structure must be clear and it must
answer the question that you propose in your thesis.
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Form
3.1
This necessitates a discussion of a number of points which I will set out under subheadings below.
Do not slab quote
3.2
Markers are not interested in your ability to find pertinent paragraphs of other people’s work and
include them in your essay. We am not marking their work, we am marking yours. It is your ability to
synthesise the information contained within those paragraphs and put it into an analytical framework
that gives you marks. Every now and again a quote may be necessary and desirable, eg, if it is a
statement of principle that is well written, or conveys a lot of information in synthesised form. But this
should really never be more than one or two lines in an essay of only 2,000 words. Where your
essay is 10,000 or more then long quoting maybe required. But in short essays where the points are
relatively confined, you do not need to provide all of the background or ancillary information
contained within a quote.
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Facts of cases
3.3
Sometimes it will be necessary to describe the facts of the case in order to convey the point. But
that is usually only where the facts of the case are directly relevant to answering the question put to
you, or the sub-point you are trying to make. This does not include all the facts of the case, but rather
only the essential facts that are directly relevant to the point you are trying to make. For this
question, there were ways you could have constructed your arguments to make Walsh v Lonsdale
relevant in this sense. However, giving a long explanation of the facts in Harris v Digital Pulse, for
example, was unnecessary.
3.4
If you are to use facts of cases, these need to be related directly to the question. Otherwise, it will
read as merely filler or at best tangential.
Spelling and grammar
3.5
One of the most important features of legal writing is the ability to write clearly and with purpose and
presented in such a way as to be readily legible. Making spelling, expression and grammatical
errors can be very distracting to the reader and often give a negative impression of your work.
Whilst marks are not usually deducted for minor or occasional errors in spelling and grammar,
continual errors are often indicative of either a failure to proofread the work or a lack of investment in
it. This often flows into other areas such as inconsistencies in arguments and, if the spelling or
grammatical error creates issues with the expression, then it can be difficult to understand the point
that is sought to be made.
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Depth of research
4.1
The question that you are required to answer was in some respects quite a difficult one. It did require
at least a moderate amount of sustained research into the issue outside of your course materials.
Simply quoting the Radan and Stewart textbook was insufficient to satisfy the requirements of
research. Failing to research wider than the text book and the more obvious lent such essays a very
narrow scope, often causing those students to underdevelop their arguments, or miss some issues.
4.2
The best essays were those that utilised the set readings as well as general articles, other textbooks
and cases outside the set readings to explain the points.
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Formatting and style
5.1
Although this is not an essential point, it is difficult to mark and provide useful feedback on a paper if
the text is very cramped and very small. In the future please ensure that your text is at least size
10 Arial or 12 Times New Roman and one a half spaced so that useful feedback can be provided.
5.2
In terms of style, students need to be wary of being either overly verbose and using words that may
extend the word count of their work but also lend a sense of confusion when not used correctly.
Conversely, students must also avoid being overly informal. Being able to strike a balance between
these two extremes can be difficult, but it is essential for scholarly writing.
5.3
Although this is a personal preference and not one with which you would lose any marks, try to avoid
the use of first person in research essays. Part of the reason for this is that where first person is
used it is often very easy to slip into informal styles of writing which is not desirable in this type of
essay. You are better off presenting your own view in the form of a third person argument or by
comparing and contrasting various views of others and coming to a conclusion based on that
contrast. Using paragraphs or sentences that commence with “I think” generally precedes a very
simple sentence that stands for a sweeping proposition but often has very little substance or backing.
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Analysing the question
6.1
As I said above, the question could have been quite difficult, particularly if you did not think long and
hard about what it was aiming at. However, the quote that was provided for you was generally quite
specific. It, along with the chapeau to the question, required you to analyse the fusion fallacy
concept, with a particular focus on the use of particular remedies that were mentioned by the
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President in the quote. Almost all students were able to recognise that this was the subject area of
analysis. However where most students became unstuck was in the requirement for critical analysis
of the question.
6.2
The question did not ask you to only establish whether or not the fusion fallacy existed in Australia or
necessarily what state it was in, although that would have been necessary in order to properly
critically analyse the statement as a whole. You should keep in mind that you are studying law in
New South Wales, and so unless otherwise prompted, your essays should focus on the law of this
jurisdiction.
6.3
What critical analysis refers to is the ability to compare and contrast two or more differing
perspectives around a particular issue and then formulating, on the basis of those two perspectives,
your own view that you have sustained from your analysis. This could be accepting one or the other,
or proposing a third, but a conclusion should be reached.
6.4
So, for example, one way that you could have gone about this was by taking the pro fusion views
expressed in a dissenting judgment of Mason P in Harris & Digital Pulse (and then tracing how those
views have evolved in other jurisdictions) and putting them against the views expressed by antifusion views of Meagher, Gummow and Lehane in their text. Importantly, merely saying there is a
difference, and providing justification for that by the outcomes of various cases is not critical analysis.
The critical component comes from looking at the reasoning of the judges in those cases, and the
scholars, not just their ultimate views. Most students managed to demonstrate that there was a
difference, but not the reasons for the difference.
6.5
To give one example, in Harris (and elsewhere), it is suggested that equitable remedies cannot be
used in response to a common law cause of action because that would be over-extending the reach
of judicial power and rather any such extension of equitable doctrines ought to come from the
Parliament. One response to that could have been that judges have made law in the past (for
example, negligence) and that it is quite appropriate for a judge, particularly those at the appellate
level who are experienced in equitable matters, to make such law. You could have then reflected on
the history of equity itself, and how it came to pass as a body of law. It could also have been noted
that there is a public interest in the creation of a fused system of law, as the present system may
(and again some examples would need to have been provided) lend itself to inconsistencies and
unfair judgments.
6.6
If that was done, and a rational viewpoint adopted, that would be an example of critical analysis, and
students who did that were rewarded highly. However, many did not get that far and rather simply
either noted the arguments or did not refer to them at all, rather focusing more on whether or not
fusion existed in the various jurisdictions.
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Planning
7.1
One of the ways in which strong analysis can be achieved is to make sure that, firstly, your structure
is very linear and based around the particular point that the question addresses. However, it can be
difficult to find what that point is. One of the most effective ways of doing that is to firstly read the
question very carefully, keeping in mind the nature of the course that you are undertaking (that is, a
course about equity) and the principles that you have been taught in that course. You are not going
to be asked to write an assignment on something that is outside the purview of the course.
7.2
Once you have done that, it is useful to write a plan of all the issues that you think are relevant to the
question. You may not necessarily include all those issues, but by getting them down on paper you
are able to see what it is that you think is relevant, and then pick out your best points. From there,
you have created your structure, and convenient subheadings for that structure. It is quite obvious
when students have not really planned their work well but rather started by just writing about
anything that first came to their mind. This tends to lead to tangential essays and a heavy reliance
on quotations, facts or “sweeping statements” where a conclusion is expressed about a large body of
(often contentious) law in a sentence or paragraph, but there is no reasoning as to how the writer got
to that conclusion.
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