12 September 2013

Discriminate! Selecting Material for Analysis

This article delivers the promise in a recent post-map. I examine discrimination in its analytical sense and consider how law students may profit from it. Graham Ferris considers educational theory in relation to John Dewey, then remarks that discrimination precedes analysis.1 Karl Llewellyn considers discrimination in a similar sense as Ferris, but writes about it with different words.2

1. Definitions

It is pertinent to begin with a dictionary definition:
    Verb (without object)
  1. to make a distinction (…) [based on] group, class, or category (…) rather than according to actual merit; show partiality
  2. to note or observe a difference; distinguish accurately (…)3
The second, third, and fourth definitions, here, reflect this post's topic more accurately than the first.

1.1 Pronunciation

'Discriminate' may be pronounced two ways to emphasise meaning (phonetically):
  1. Say 'discrimin-eight' to indicate it is being done, actively, there and then. For example, 'to discrimin-eight is to observe relevant differences'; or
  2. Say 'discrimin-uht' to indicate something conforms with the idea. For example, 'Fred's analysis is discrimin-uht because it is concise and does not include surplus information'.

1.2 Discrimination's Importance

As mentioned in the recent post-map, lawyers are discriminate because they choose with care every word in an argument. A lawyer may persuade a judge that Nottingham Forest FC will be promoted this year. But in a case about contributory negligence this would not demonstrate legal skill. The lawyer, contrarily, would be indiscriminate. This would indicate poor judgment, poor grasp of the case, and an inaccurate prediction about what the judge will find relevant to his or her decision-making.

It is hoped this clarifies why discrimination is important. To reiterate the importance, I examine Ferris and then Llewellyn. Afterwards I conclude with a list that I hope is helpful to law students.

2. Ferris and Analysis

Ferris asserts discrimination is
'the first stage of "legal analysis" (…). The task is [to] select[] (…) features (…) to focus upon, such [as] "factual" or "legal"[--]an active process (…) driven by the purpose of selection'.4
For example if a lawyer's aim is to argue ECHR Article 8 is relevant, then her argument would benefit from citing jurisprudence that shows examples of people whose similar circumstances brought them under Article 8's protection.

Poor discrimination, on the other hand--the lawyer's considering Article 2 jurisprudence in this (Article 8) example--would damage the argument. Such analysis would be poor because it shows the writer never realised the purpose of the argument, or of citing relevant case law. As Ferris continues, 'if the analysis [fails to] proceed on the basis of (…) appropriate discrimination (…) it will be incoherent'.5

Discrimination therefore precedes analysis, and often is done almost without thinking (which, if one considers the type of 'discrimination' where race is a factor, is an accurate inference--its users have not thought!). Even the freshest law student will open a book on contracts when researching an answer for a question on contract law. It takes practice and discipline, however, to secure high marks by virtue of one's discriminatory source-choices: these initial and continuing choices may help to keep an essay focused and rigorous.

3. Llewellyn and Reading Cases to Learn Law

Llewellyn remarks that however obvious it sounds, one must read cases to learn law. He then explains the required type of reading is more than new law students are accustomed to. More importantly, the reasons Llewellyn gives are consilient with the 'discrimination' explored above:
'[T]he judge (…) is not merely human, as are you[, but] a lawyer; which you, yet, are not. (…) [A]nd as such skilled in manipulating (…) resources of persuasion at (…) hand[,] (…) prone without thought to twist analogies, and rules, and instances, to his [or her] conclusion. (…) [A]nd as such peculiarly prone to disregard the implications which do not bear directly on his [or her] case.6
To understand what this judge and lawyer really discuss, one must have read previous cases and must read new cases with care.
  • Reading other cases will highlight what is needed to persuade courts, which allows a comparison. To compare cases is to see what, when situations change, lawyers' arguments focus on.
  • By reading other cases, one learns which words are included simply to satisfy legal formalities. These may then be ignored (discriminated against) to find just the relevant bits in new cases. For example once you realise the first part of cases is just details like dates and parties, you know these bits may be skipped until it is necessary to know those details: such as when you need to find out whether a particular case was decided before or after statutory reform; or when you need to cite a source in an argument.
  • To read cases with care and focus is to read the experts' own records about how they did law. That is, cases record judicial remarks, structures, styles, and other intellectual paraphernalia.
    • To have access to case law is remarkable because it shows the process by which those who apply law use words to support their actions.
    • The law-applied may incarcerate, liberate, fine, empower, or obligate.
    • Only certain individuals have this power.
    • Due to notions of transparency and legitimacy, cases are written records--blueprints--for how to wield this power within those high concepts' remit.
    • Exactly how to exercise power with legitimacy and transparency is only known to a certain few--those who can discriminate between important (legal) words and the words which may never be useful again. These certain few belong to an (almost-)elite class: legislators, judicial members, solicitors, barristers, etc; and to a lesser extent every critical thinker whose voice appears in the mass-media. Luckily, this is an open class. Anyone dedicated to learning law is welcome to participate.

4. Concluding List

  1. To discriminate is to select.
  2. The more one reads, the more one knows, and the easier it becomes to select with grace.
  3. To be discriminate in the analytical sense requires two traits:
    1. Selecting what information to absorb; and
    2. Selecting what information to impart.
  4. To become proficient in each of these is only a beginning, but that proficiency is a good platform on which to build other reading and writing skills.
  5. So read lots of cases and be critical: try to see that what is excluded in cases may inform you or help you understand what is included; but this only really works if you have read similar cases with which to compare structures, facts, and references.

5. Further Reading

Interested readers will find the rest of The Bramble Bush makes an afternoon fruitful.

Graham Ferris and Erika Kirk, 'Fundamental Legal Conceptions by WESLEY NEWCOMB HOHFELD, edited by Walter Wheeler Cook, New Haven, Yale University Press, 1964, xxv + 114 pp ISBN 1584771623' (2008) 17(1) Nottingham Law Journal 39 is a solid book review in which discrimination is considered.

1 Graham Ferris, 'The Legal Educational Continuum that is Visible through a Glass Dewey' (2009) 43:2 The Law Teacher 102, pt D (iii).
2 Karl N Llewellyn, The Bramble Bush: The Classic Lectures on the Law and Law School (Steve Sheppard introduction, OUP 2008) 37ff.
3 Dictionary.com, 'Discriminate' (accessed 10 September 2013).
4 Ferris, 'The Legal Educational Continuum that is Visible through a Glass Dewey' pt D (iii).
5 ibid.
6 Llewellyn, The Bramble Bush 42 (my emphasis).

Created: 12 September 2013. Version 1.0.

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