12 October 2013

Alienation in Law School

This post begins with an exploration of law's alienating facets. I follow this with some words about Lord Thomas CJ's remarks in the revised Criminal Practice Directions 2013 (CPD).1 I use this analysis to qualify some observations in two of my other posts; one about legal peculiarities and one about analytical discrimination.


1. Depression and Alienation: Overcoming Both

Learning law often feels oppressive. At any time during an undergraduate degree, law's magnitude and breadth may stress and overwhelm students. This in turn may alienate--that depressing state that makes any further attempts to learn or tackle law's intricacies feel hopeless and impossible.

The alienation is exacerbated because law always expands. This constant expansion discourages student-engagement because their aim is to master the subject. Attempts to master law are wrongheaded because--unlike in earlier education--there are no set boundaries to enclose the material: law expands in every direction because it must.

Law and lawyers (try to) solve(s) social problems; there are few fetters on their creativity or the breadth and complexity of those solutions, except for procedural rules--which are just more law!

There is hope for law students. An ever expanding subject matter does not preclude a fairly stable legal toolkit: the tools in that kit are (almost) finite, and so may be learned within a reasonable time. Once learned, overall 'mastery' is a misnomer because there is no need to learn every detail--all that matters is the ability to tackle successfully any encountered legal problem. If you do not believe me, read any case and you will find words proposed by lawyers attempting to solve problems-never-before-encountered-in exactly-the-same-way; yet still they manage; their very attempts are evidence of unsureness (though perhaps expressed as certainties to help with persuasion).

High skill in the legal craft, then, is certainly possible. I would argue that such proficiency is attainable by anyone, regardless of perceived intelligence, so long as the right type of effort is directed to legal study. I say perceived intelligence because it really is a matter of dedication, motivation, and constant effort. Learning complicated material is not easy for anyone; learning complicated subjects may become easier, but it always takes hard work and persistence.

1.1 Some Remarks about Grades

Part of the alienation may derive from the following familiar story: a student reads all the recommended texts, begins all assessments early, and attends every lecture, seminar, and tutorial, but still does not get above 59% in assessments. All that effort is likely to result in a 60%+ average, but there is no guarantee.

This is disheartening. It occurs because the threshold for the highest marks requires a different sort of engagement than students are taught to depend upon in their secondary and further education. Attendance and fact-recollection may be adequate to pass level 3 (ie A-Levels and Foundation Diplomas etc) but they are not enough for undergraduate study.

Undergraduate assessments must demonstrate a sharper engagement. Analysis must be detailed and pithy. Criticism must be prevalent and evidenced. Synthesis of materials must always be attempted. None of these is possible without broad and efficient reading.

The rest of this post considers analysis, reading, and writing.

2. Defeat Alienation with Discrimination

In 'V v Judgments' I said alienation may be caused by legal peculiarities, but equally may be dissolved by learning those details. In 'Discriminate! Selecting Material for Analysis' I discussed analytical discrimination to show that one must be selective with sources.

With the problem now outlined, I can fuse both these observations with the CPD to show how an effort to consider reading and discrimination during one's legal education may help; to so consider, one may add a skill to one's legal toolkit, and so dissipate some feelings of alienation.

If alienation is successfully defeated, I imagine it is because by the time one learns to discriminate, one wastes less time and has read enough law that technicalities are no longer scary.

2.1 Criminal Practice Directions 2013

The CPD is a consolidation document composed by the Lord Chief Justice, who is granted a statutory power 'to make directions as to the practice and procedure of the criminal courts'.2 The CPD looks like a case inasmuch as it is recorded in the judicial--rather than the statutory--corpus. The document is worth reading/skimming while studying criminal law, law of evidence, or criminology.

For this post, I focus on one direction in particular, the one under the heading, 'CPD General Application D: Citation of Authority and Provision of Copies of Judgments to the Court'. The Direction, Lord Thomas CJ reiterates, applies in the Magistrates' and Crown Courts, and Court of Appeal (Criminal Division).

This particular direction is relevant to this post because it concerns the brevity and precision necessarily exercised by advocates in criminal cases. Law students may benefit from following the same rules as the profession.

Lord Thomas CJ cites a case, R v Erskine; R v Williams:
[A]dapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it.3
He then extracts the relevant principle, which appears to be fairly straightforward. The aphorism means you should not waffle, or solely try to show how much you have read. Being erudite is good, but displaying wide-reading is better manifested as accurate rather than broad writing.

Knowing how to include only the most pertinent sources in your references is easier the more you read. This is because you will become familiar with judicial methods and their reasons for acceptance and rejection of sources; and then be able to do the same.

Lord Thomas CJ continues:
Advocates should not assume that because a case cited to the court is not referred to in the judgment the court has not considered it; it is more likely that the court was not assisted by it4
It is possible to get a general idea of which cited cases have been dismissed by reading cases in the better reports.5 In Knuller v DPP their lordships referred to 39 cases. Counsel cited an additional 20 cases.6 It is unreasonable to expect undergraduates to read all those different references to find the reasons why ignored cases were not cited, but the disparity is illustrative.

Advocates are fallible. The disparity shows students that even the professionals get it wrong sometimes. But students must remember that although some authorities were dismissed by the law lords, one can be almost certain the advocates presented good reasons for each case's inclusion. The CPD repeats that such reasons are paramount.7

Even in cases with neutral citations--ie those without all the extras--judges often dismiss cases in their discussions, and draw explicit attention to the rejection.8 When you realise which cases courts are likely not to be assisted by, you will also realise which cases you can afford not to cite in your own writing.

This may seem like extra work, but these details are ascertainable during your required case-perusal. No extra work is needed. Simply recognise these details as you tackle your recommended reading.

3. Reading: Quantity and Quality

Alluded to above is an apparent dichotomy between approaches to reading. On one hand is a suggestion that one must read a few relevant cases in detail. On the other is a suggestion to read as many cases as possible.

3.1 How To Do Both

There are benefits to both approaches. But time is limited. So one must learn to do whichever is most efficient in the circumstances.

When learning a new topic, a broad survey is useful. When applying a specific rule to facts, one must criticise the rule; so a narrow-but-close reading is necessary. Neither excludes the other: there is a trick to reading the relevant parts of every case in a topic.
  1. Begin with the topic-overview given in a lecture and supplement this by skimming one or two relevant text- or casebooks;
  2. Certain cases will immediately stand out as leading cases--those heralded by everyone;
  3. Now read those obviously important cases, but do so with focus:
    1. Skim a case;
    2. Acknowledge--in recent jurisprudence--the clear and headed structure;
    3. Search for the cited law: either highlight these references or make a brief note. This step helps you fit the new case into:
      1. What you already know; and
      2. Other existing law;
    4. Read the section called 'Discussion and Conclusion' (or something similar), while trying to understand the judges' reasoning;
    5. Move onto the next case and repeat (i) to (iv).
This approach to reading may make your studying more efficient and easier. By removing much of the text in case law from the pile of what you have to read, you massively reduce the number of words you actually have to read.

Yet, by focussing on the most important parts in cases, you are still able to analyse the law closely. You therefore read enough--closely--to be able to demonstrate a broad engagement with the subject. And you also read in enough detail to enable you to demonstrate pithy and critical processes to secure the highest marks.

3.2 Older, Vaguer, and ECHR Cases

This is possible with older case law, too, but headings are, unfortunately, a recent development. After reading a few cases you will get accustomed to their structure and know more-or-less where to search to find the same material; that is, the discussion and conclusion, rather than the (sometimes needless) reference to counsels' expressed-but-largely-ignored arguments.

In ECHR jurisprudence, you can usually skip right to the section headed 'AS TO THE LAW' to hasten your reading. This--with the appended dissenting or concurring opinions--is usually enough to become intimate with a case.9

4. Conclusion

Dejection following alienation is a likely feeling during a law degree. You signed up to get an education for several of many good reasons. So you work hard. Sometimes that hard-work seems never to pay off. It will. Just keep going.

The problem may be a lack of effort. But the problem is just as likely due to law's nature--which is torrential enough to hamper even those who seem indefatigable.

To excel in law, you must read and keep doing so. You must also take breaks and step away from your work--too much without a pause will entangle every subtlety and vex you. Eventually most of it will make sense. From then on, the hill is not so steep.

So motivate yourself to keep reading. That feeling of alienation will dissolve. And solid legal analysis, precise referencing, and analytical discrimination will soon become possible, and maybe even enjoyable.

5. Further Reading

The 2013 CPD is over 100 pages long. Much of it will bore you; it is quite dry. Some of it will interest you because it elucidates something you read elsewhere in your studies. But if you get through the whole thing in one go you will be ready for some time off. I recommend you stop reading for a moment. Get drunk instead, or something.


Endnotes
1 [2013] EWCA Crim 1631.
2 ibid General Matters A [A.1] (Lord Thomas CJ) referring to the Courts Act 2003 s 74 and the Constitutional Reform Act 2005 pt 1 of sch 2.
3 ibid General Application D [D.2] (Lord Thomas CJ) citing R v Erskine; R v Williams [2009] EWCA Crim 1425, [2010] 1 WLR 183, (2009) 2 Cr App R 29 [75].
4 ibid [D.4] (Lord Thomas CJ).
5 Lord Thomas CJ helpfully lists the preferred hierarchy of case reports (ibid [D.5]–[D.7] (Lord Thomas CJ)). The higher up the list, the better the report; better reports are usually so because they are checked more thoroughly and presented in a clearer format.
6 Knuller (Publishing, Printing and Promotions) Ltd and Others v DPP [1973] AC 435, [1972] 3 WLR 143 (HL).
7 [2013] EWCA Crim 1631 General Application D [D.3], [D.7] (Lord Thomas CJ).
8 See eg In Re British Red Cross Balkan Fund and British Red Cross Society v Johnson [1914] 2 Ch 419, 421 (Astbury J), where the rule in Clayton's Case (1816) 1 Mer 572, 608 was held 'obviously inapplicable'. Astbury J effectively declared Clayton's Case irrelevant for the case before him. But this is not strictly what Lord Thomas CJ warns against: in In Re British Red Cross, there was a good chance that Clayton's Case would sway the judge. Be aware of the subtle distinction between an irrelevant case and a good argument based on a case that ultimately fails.
9 Often when researching a topic, you will already be familiar with the domestic case law discussed by the ECtHR, so their summary is just repetition. Obviously this is not true when the domestic law is not from the UK. In those cases the final ECtHR decision will be more persuasive than foreign-domestic law in UK courts, anyway.


Created: 11 October 2013. Version 1.0.





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