How to write a legal essay, Appunti di Diritto Internazionale

Scarica How to write a legal essay e più Appunti in PDF di Diritto Internazionale solo su Docsity! A Guide to Writing Law Essays Fergus Ryan SUMMARY Writing a legal essay may seem like a daunting task. If you have previously written essays, you may imagine that a law essay is an entirely different beast. Nonetheless, with some caveats, the same broad principles apply to writing a good law essay as apply to any other essay. A key point is that your writing should be clear and precise, and not ambiguous. Contrary to popular thought, a good law essay should be written in plain, accessible English, with minimal unnecessary complication. Preparation is key (don’t leave everything until the last minute). Make sure your essay has a logical, clear structure. Answer the question you have been asked. Make sure your response is relevant. Include discussion of relevant case law and legislation. Write as much as possible in your own words and clearly acknowledge all references/sources used. It should be clear in all cases that direct quotes from external sources are quotes. Finally, avoid obvious spelling and grammatical mistakes that may distract the reader. Use punctuation. Learn from past mistakes. If given feedback, read it and work to improve your future essays based on that feedback.  Do a search on legal databases such as Justis, Westlaw and LexisNexis for relevant articles and cases on the point, using keywords and key phrases that relate to the topic. Recent journal articles will be of most use.  Secondary material such as Law Reform Commission reports and the Annual Review of Irish Law may also be useful.  Check to see if there are any relevant Court of Justice of the European Union, European Court of Human Rights, or foreign court decisions on the issue. Comparative materials can be useful but be careful not to mix up Irish law with that of another jurisdiction.  Students often rely exclusively on websites, the authority of some of which may be in doubt. Online sources are not always your friend. Check the author and the author’s credentials. If the website author is not an academic or trained journalist, it is wise to exercise some caution. This is particularly the case if the source is anonymous. Make sure you read legislation, case law, legal texts, and journal articles. Do not rely solely on materials available free on the internet. Regardless of how authoritative the source, double-check the original primary source – e.g. the relevant legislation or the case. 4. Avoid ‘Overkill’ The poet Seán Ó Ríordáin wrote a pertinent poem about an academic who spent a lifetime mastering Irish, putting off writing until he was thoroughly fluent. The academic finally achieved fluency, but died the next day.1 Similarly, if you put off writing until you have the perfect level of knowledge, your essay will never be finished. A careful balance is required between gathering enough material to complete your essay and gathering too much and becoming overwhelmed by the material. With advances in information technology, the amount of information 1 Seán Ó Ríordáin “Údar” in Seán Ó Ríordáin, Tar éis mo bháis agus dánta eile (Saiseal agus Dill 1978); see Frank Sewell (ed.), Selected Poems, Seán Ó Ríordáin (Yale University Press 2014) 214-215. available to you will often be substantial. In some cases, students spend all their time gathering materials as a substitute for writing, and start the writing up process too late. Once you have read some material, start the writing process. Very often, in the writing process you will discover gaps in your knowledge. You can then go back and find further detail on those points where your knowledge is lacking. II. STRUCTURE An essay should be structured coherently and should flow logically from beginning to end. If the essay addresses a number of separate themes or issues, it is best to address each in turn. It can be useful to split the essay into separate sections, with separate sub-headings, each addressing a particular aspect of the essay. Each part should build on the previous part, such that the essay has a logical flow.  Introduction, middle, conclusion – All essays should have: o An introduction, setting out the context for the reader  Provide ‘roadmaps’. Schweppe et al. talk of ‘roadmaps’, paragraphs that set out in advance what it is the essay or the particular part of the essay will address. These can be useful in ‘setting the scene.’  ‘From the general to the specific’. A good rule of thumb is to work from the general – broad, general overarching points - to the specific – particular applications of the law, or exceptions thereto, or particular cases. Start by addressing the general context of the problem or issue being addressed. You can then proceed to address the legal principles applicable in the area, and, following that, any specific problems that have emerged from the application of these principles.  The Chronological Approach. Where the law has developed or evolved over time, it often makes sense to address developments chronologically, i.e. from the earliest to the latest developments. Jumping back and forth between time periods can cause confusion.  CLEO/ILAC: There are a number of useful acronyms to help you address the structure of the essay. These are usually most appropriate to tackling a  Other cases are ‘first division’ cases, useful to elaborate upon a point but not crucial to your answer. While such cases may add to the law as it stands at any one time, the innovation is less significant than that of a ‘premier division’ case.  Then there are the ‘non-league’ cases, cases that simply follow precedent and add little to the law as it stands. While it may also be useful to be able to cite such cases, the priority in any response is to identify the ‘premier’ cases first and to spend most time dealing with these before citing less significant cases. Make sure to discuss the relevant Irish cases, where available and relevant, as these are most pertinent in an Irish context. 2. Analysis In law essays, the analysis often focuses on matters of doctrine (the development of certain principles of law) or the interpretation of law. Doctrinal analysis usually focuses on the intellectual and logical basis for a judge’s decision or the wording of legislation. Such analysis is often abstracted from the real-life impact of the relevant law. A good essay, however, will go beyond the purely doctrinal, text-based analysis and look at the likely impact of laws in the real world. To this end, an analysis drawing where relevant on other disciplines (inter-disciplinary analysis) and addressing the application of the law in the ‘real world’ can be useful. If, for instance, you are discussing the Housing Act 1966, it is useful to discuss the Act in context: what kind of problems lead to the enactment of the Act, how many people require social housing, what are the issues faced by tenants in social housing and so on. 3. Argument Flowing through the essay, there should be a central argument or point that you wish to make. Throughout your essay, this argument should be supported and developed. This is not to say that you can or should ignore those who disagree with this argument or cases that undermine it. Counter-arguments and alternatives must be addressed in a respectful, considered manner. IV. STYLE: LEGAL WRITING 1. Use of language – Plain English Contrary to popular belief and perception, the best law essays use simple, straightforward language. A good rule of thumb is to ask whether an educated person who has not studied law would be able to understand the essay. One common mistake is to try to fit too many ideas into one sentence. If a sentence stretches beyond three lines, look into breaking it up into more than one sentence. Sentences should be reasonably short and contain one idea or key point per sentence. Keep matters clear and concise. This does not mean that you can be imprecise or simplistic, but try to make sure that the points you make are as straightforward as possible. 2. Where possible, avoid jargon and complicated formulations There is a false belief that good legal essays should be complicated and use big words. Professions often use arcane (meaning mysterious, secret, or obscure) and esoteric (meaning understood only by a select few) language in part to show off, or to intimate that their professional experience is required. In fact the best legal essays are clear, concise and straightforward. Avoid using jargon for the sake of using jargon. If you do use jargon, or a word that is not commonly understood, provide a clear definition for your reader. That is not to say that on occasion you will have to use what is called a ‘term of art’, a word or phrase that has a particular meaning in law – such as locus standi, consideration, or contra proferentem. Avoid, in particular, words the meaning of which is unclear to you. If in doubt, use a dictionary to check the word’s meaning. (b) indented 1 inch to the right and separated from the previous and subsequent paragraph by a line space if they are more than three lines long A general rule of thumb is that quotations should be used to support your argument rather than supplant it. They should not eclipse your own written work. Excessive quotation, even where properly attributed and where the quotes are laid out correctly, may lose you marks. Combatting plagiarism:  It’s much easier to avoid plagiarism if you understand what you are writing about and have a personal interest in the subject matter.  Use your brain – think for yourself! Do not accept other people’s opinions and perspectives as gospel.  Develop your own personal style of writing. Read regularly. Write regularly.  Edit what you write rigorously – read back your work carefully and review it,  When quoting from another person, use single quote marks (‘ ’), or, if it is a quote of four lines or more, indent it clearly, and acknowledge the sources using a footnote or endnote. The consequences of plagiarism are serious and may include, in the most serious cases, dismissal from the programme, a failing grade for the relevant subject or the imposition of a requirement to resubmit work for assessment. Other consequences include diminished marks for written work. Please note that even where only a small amount of plagiarism is detected, lecturers are automatically put on notice that other parts of the same work may be plagiarized, even if this is not the case. VI. CITATION AND REFERENCING ‘Citation’ and ‘referencing’ are sometimes used interchangeably, though they have subtly different meanings. Both, however, effectively involve identifying and acknowledging the sources of information used in writing. The purpose is twofold: (a) to acknowledge from where you obtained information used in your writing and (b) to provide support for the points and arguments you make. A major purpose of acknowledging sources is to give credit where credit is due. If you pass off information as something you came up with yourself, without assistance, you may be accused of plagiarism. Another purpose, however, is to increase the authority of your writing, by demonstrating that what you say can be and is supported by other authoritative commentaries. A citation identifies from where certain specific information is sourced. Part of the purpose of citing is to show the reader where you obtained the relevant information, but an allied objective is to provide support for the point you are making. Citation is a crucial strategy in avoiding plagiarism. It clearly highlights the source of the idea or information you are using. A reference provides detail (bibliographic information) on that source, so that the source can be easily found and consulted by the reader. Referencing means listing full details of the sources of the information you discuss in your essay. References allow the reader to check the correctness of your statements, and help you to demonstrate that your arguments are informed. Citation and Referencing methods. There are different citation and referencing methods and styles used in different disciplines. The referencing method used in law at Maynooth University is called Oscola Ireland. It can be sourced here: http://legalcitation.ie/wp-content/uploads/2016/04/OSCOLA-Ireland- 2016.pdf. There is a useful one page guide to referencing with Oscola Ireland here: http://legalcitation.ie/wp-content/uploads/2016/04/OSCOLA-Ireland-Quick- Reference-Guide.pdf In some referencing methods, such as APA, Chicago, or Harvard, the citation appears in an shortened form in the text, while the full reference is contained in a list at the end of the essay. In Oscola Ireland, the referencing methods used typically involve the inclusion of sources in footnotes, with citations and references effectively combined in the same footnote. List of references/’works cited’. At the end of your essay, some lecturers might ask you to include a set of references or of works cited in your essay. A list of references is a list of sources consulted and used in the writing of the essay. All books, articles, texts and other sources (other than cases and legislation) used in writing the essay should be included in this list. These should be listed in alphabetic order by surname of the author. Cases and legislation need not be cited in the list of references. References should follow the OSCOLA Ireland method. A bibliography is very like a list of references except that it may also contain additional material not directly used in the essay, or used for background information only. There, their and they’re There – a place or position – over there. Their – belonging to them – their coats. They’re – an abbreviation of they are – Linda and Brad are not Irish; they’re Australian. Statute An Act of Parliament is a statute with three Ts not a ‘statue’. Precedent A previous judgment binding on a court of law is a ‘precedent’, the plural of which is ‘precedents’ not ‘precedence’. Discreet and discrete Discreet means respectful of privacy, able to keep a confidence. Discrete means separate or distinct. Where and were Where relates to location – Where is Aungier Street in relation to St. Stephen’s Green? Were is the past tense of are. “Where were you yesterday?” Martial and Marital This error can sometimes arise because of automatic corrections by spellcheck. Marital refers to the institution of marriage, while martial relates to the armed forces as in ‘martial law’. A martial affair is undoubtedly more perilous than a marital affair. Council and counsel Council is a group of people – Kildare County Council, Council of State Counsel – an advisor; senior/junior counsel Councillor – member of a council Counsellor – a person who advises Advice and advise Advice is a noun – Mary gave me some good advice. Advise – verb – the doctor advised me not to go to work until I had recovered Affect and effect Affect is a verb, effect a noun. The new EU regulation on farmland use may affect John, as he is a farmer The new EU regulation will have a serious effect on John’s livelihood Receive In general, i comes before e except after c - receive, deceive, conceive, but chief, thief, relief – though there are some exceptions – their. Except and accept Except means ‘but for’; while accept means to take something to which you are entitled. “I accept the award” - “The State comprises all Irish counties except for the six counties of Northern Ireland” In Irish Because of the ubiquity (common use) of English, a certain laziness has emerged in relation to the use of accents in languages other than English. Fadas, where required, should be used. A fada is a line sloping upwards from left to right, used over certain vowels to change the sound of the vowel Fear – man Féar – grass Rith mé ar an bhféar – I ran on the grass Rith mé ar an bhfear – I ran on the man Áit – place Ait - strange á é í ó ú How do I insert a fada? On some computers press alt or alt gr and the relevant letter at the same time e.g. é = alt gr + e Or look under “Insert” then “symbol” Common words used in law that should have fadas: Dáil Éireann Éire (Ireland) Stát – as in Saorstát (Free State) Uachtarán (President) 3. Apostrophes Three common problems emerge with apostrophes: 1. They are used when they are not required 2. They are not used when they are required 3. They are used when they are required but in the wrong place Apostrophes generally denote either: (a) possession or (b) the absence of a letter in a word (contraction), or elision (combination) of two words with the omission of a letter a. Possession.  To denote ownership/possession, an apostrophe followed by an s (’s) is inserted in a noun relating to the person who possesses an item.  The woman’s hat.  The company’s employees.  The town’s main factory.  The State’s capital city.  Where a word ends in s, and in particular where there is an s at the end of a word to denote that the word is plural, add the apostrophe after the s: VIII. PRESENTATION Issues of presentation may seem trivial. Surely it's the substance that matters? Nonetheless, you'd hardly submit an important planning document at work without considering how it looks. Essays are the same.  Sometimes, marks are expressly awarded for quality of presentation. Often, however, even where presentation is not expressly part of the assessment, poor presentation can subconsciously affect the result. Here are a few tips:  Make sure your essay is readable. Contrary to stereotypical views of lawyers, we don’t generally like small print (less than 12 point). Line spacing in the body of the text should be at least 1.5 pts.  If you have been given a choice of question to answer, make sure it is clear which question you have chosen.  Unless you are asked to do so, you do not need to enclose your essay in plastic or in material other than paper. Fancy plastic binders will not get you a higher mark.  Use paragraphs and ensure paragraph lengths are reasonably consistent  Make sure your fonts and font sizes are consistent.    Line Spacing. There should be line spacing of at least 1.5 in the body of the text of the essay. Footnote line spaces should be single.  Text size. Text size for the body of the text of the essay should be at least 12 point, 10 point for text in footnotes.  New paragraphs. Start a new paragraph following a line break (full space between lines). If you do so, there is no need to indent the first line of the new paragraph.  Make sure line margins are even on each side, and consistent from page to page. You may prefer to ‘justify’ the text (ctrl +J ). This tends to look neater than ‘aligning text left’. Do not ‘centre’ the text (you may do this for headings but it should not be done for the main body of the text.)  Observe and follow the instructions you’re given for the essay. For instance, I set minimum size and spacing requirements (see the above), the purpose of this being so that I can read the essay easily and, where required, insert comments. Every year students, while reminded in class of these requirements, ignore them. Attention to detail is a necessary attribute for legal practice. Ignoring such requirements suggests an inability or unwillingness to read and comply with rules.  May I include pictures? If it's appropriate and relevant, yes, but it rarely makes much of a difference in terms of marking and it usually is viewed as irrelevant window-dressing. If it adds to the commentary or helps to explain a point, images can be useful but should be used sparingly.  It's best to avoid images of the scales of justice, gavels or wigs, as these tend to be over-used and are somewhat clichéd. If you are using a picture, make sure that you have permission to use it.   IX. FURTHER READING See generally:  Jennifer Schweppe, Rónán Kennedy, Elaine Fahey, Lawrence Donnelly, How to think, write and cite: Key skills for Irish law students, (Round Hall 2011) Chapters 5 and 6  ATH Smith, Glanville Williams: Learning the Law (14th edn, Sweet and Maxwell 2010)  SI Strong, How to Write Law Essays and Exams (3rd edn, Oxford University Press 2009)  Steve Foster, How to Write Better Law Essays: Tools and Techniques for Success in Exams and Assignments (2nd edn, Longman 2009)  Dave Powell and Emma Teare, Writing for Law (Palgrave Macmillan 2010)  www.legalwriting.ie – you can register free of charge and do various exercises online to test your skills  See also Sources of Law handout and feed forward handout I advise that you read chapters 5 and 6 of How to think, write and cite and the ‘feed forward’ guide on Moodle. The following should be read alongside those sources.