the role of the jurist - deusto i...1 the role of a jurist by irati basoredo ocerinjauregui...

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THE ROLE OF A JURIST

By Irati Basoredo [email protected]

University of DeustoGeneral Problems of Transnational Law

Intensive Programme September 2007

transnational.deusto.es/ip2007

Irati Basoredo Ocerinjauregui University of Deusto

AGENDA

Ø JURIST AND ITS TASKS - Exercises, Analyse outcomes, some proposals

Ø SKILLS INVOLVE IN THE STUDY OF LAW- By Hanson, S.

- Exercises, Analyse outcomes, some proposals

Ø HOW TO MADE A WRITTEN REPORT?- Exercises, Analyse outcomes, some proposals

Ø ROLL PLAYING

mailto:[email protected]

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• It is a creative technique about generating, refining, developing ideas and finding solutions.

• It is often used in business.

• A brainstorming session usually involves a group of people getting together and listing ideas

• Do not brainstorm for long periods

• Every idea is useful. Do not reject anyone

BRAINSTORMING


1st EXERCISE

Using the brainstorming technique, answer the following questions (groups of 3):

1) What is a jurist?

2) What does a jurist do? Tasks

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WHAT IS A JURIST?

-An expert in law

-A professional who studies, develops, applies or otherwise deals with the law.

- People who practise a legal profession

-Attorney, solicitor, barrister, judge, professor of law, researcher in law, students of law...


What does a jurist do?13 Basic tasks of a jurist (by Courtis, C.):

1) Identifying the object of the study

2) Describing the rules conteined in law

3) Systematizing law (identify systematic problems + make an organiced presentation)

4) Defining, creating and using concepts

5) Elaborating and using distinctions, classifications and theorys

6) Infering principles from the judicial legislation

7) Interpreting rules

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What does a jurist do?

8) Analizing and describing events

9) Argue in favour or against resolutions, interpretations...

10) Reflect to legal values (pass judgments on, advise to the judge...)

11) Predict what judges will do

12) Authenticate or criticize political systems

13) Teach, transmit and spread knowledge


Skills involve in the study of law

Skills (by Hanson, S.)

1) General study skills

2) General language skills

3) Intelectual and technical skills

4) Argument construction

5) Specific substantive subjects

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2) General language skills

2.1) Grammar, spelling, vocabulary and puntuaction

2.2) Appreciation of the influence and power of language


3) Intellectual and technichal skills

3.1) How to locate primary and secondary legal sources

3.2) How to read/ analyse the law

3.3) How to write

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2nd exerciseUsing the brainstorming technique, answer the following questions

(groups of 3):

1) How would you locate legal sources?

2) Where would you find them?

3) Look for legal sources that could be applied in the case (Martinica v. Shoes Factory)

- Primary legal sources

- Secondary legal sources



• Primary legal sources: - Civil Law’s tradition: domestic law, international conventions,European Union Law...

- Common Law’s tradition: case law, domestic law, international conventions, European Union Law...

• Secondary legal sources: case law, Scholars’settled view

- Civil Law’s tradition: case law, Scholars’ setteled view

- Common Law’s tradition: Scholars’ settled view

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• European Union:

http://europe.eu/index.en.htm

• United Nations Commision on International Trade Law (UNCITRAL)

http://www.uncitral.org/uncitral/en/index.html

• UNILEX (a database of Case Law and bibliography on the United Nations Convention on Contracts for International Sale of Goods and the UNIDROIT principles. BONELL, M.J. and VENEZIANO, A. (editors).

http://www.unilex.info/

• CISG database o f the Institute of International Commercial Law of the Pace Law School. Pace University, New York.

http://www.cisg.law.pace.edu/


3rd EXERCISE


1) How would you analyse primary legal sources?

2) How would you analyse secondary legal sources?

http://europe.eu/index.en.htm

http://www.uncitral.org/uncitral/en/index.html

http://www.unilex.info/

http://www.cisg.law.pace.edu/

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-Primary legal sources:

• Undertand draftting issues in primary legal sources

• Understand how primary legal sources are constructed

• Interpreting rules of primary legal sources, using second legal sources...



- Secondary legal sources: Case law

• Look for the hierarchy of the court

• Identify the rules applied by the court

• Identify others conflicting cases

• Identify the facts which will help you deciding whether the case is applicable

• Identify the outcome

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- Secondary legal sources: Scholars’ settled view

• Indentify different views

• Identify and explain the arguments in different views

• Compare and evaluate the arguments

• Reach a conclusion




- Understand the relationship between primary legal sources and secondary legal sources

• First, read and analyse the rules of primary legal sources

• Second, look for the interpretation made in secondary legal sources: case law and Scholars’ settled view

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4th EXERCISE


1) What is an “argument”?

2) What is a “legal argument”?



- Distinguish between the general meaning of argument and legal argument

• Argument: an statement or a fact addressed to prove an assertion/ position

• Legal Argument : a series of statements which are interpretated in accordance with law in order to prove or disprove a given position

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- Differentiate and apply deductive and inductive reasoning

• Deductive = - universal specific

- applying general rules to particular cases

• Inductive = - specific universal

- annalysing case law, taking into consideration some particular cases reach a general conclusion.


5th EXERCISE


1) Which is the most suitable reasoning method in order to resolve a case?

2) Deside the reasoing method that you will use to resolve the case (Martinica v. Shoes Factory)

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* The mayority of arguments revolving around the use of facts and legal authority to resolve legal cases are constructed by the following structure:

1st Using deductive argument construct a central deductive argument

Ex. - General rule: To steal is to act contrary to law

- Particular case: Carol has stolen

Consecuence: Carol has acted contrary to law



4) Argument construction2nd Reasoning by inductive method, construct two deductive arguments: one, affirming the central deductive argument and another, denying it.

Defense thesis: Carol has NOT stolen

Prosecution thesis: Carol has stolen

Inductive reasoning:

-She was reading

- Then she remember that she has to go to class

- She is on anti-depressant prescription

- She has not intention to take the book

Inductive reasoning:

-She was seen by a witness putting the book in her bag.

- She was stopped outside by the guard and the book was in her bag

- The computer system had not recorded a sale of that book

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- Develop critical thinking = reasoning logically, ability to locate underlying assumptions, skills of analycise and argument, give creativity to the activity of thinking, the ability to compare and contrast, ability to reflect, ability tosearch for hidden assumptions behind the general accepted acts or thougthts...

- Understand the connection between factual analysis and legal analysis


6th EXERCISE


Considering all about argument construction, what do you think an legal argument rely on?

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- Understand the way in which an argument rely on: factual analysis, legal reasoning, persuasion and critical thinking

- Construct a competent argument in relation to a legal problem to be solved acording to rules of legal reasoning acceptable



Identification of nature of the

problem

Location of pottentially

relevant:

-Facts

- Legal sources

Evaluation of problems and

solutions

Reflection as to conclusion

Reading, summarising

and evaluation of relevant text

Drafting of potential solutions

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5) Specific substantive subjects

- Knowledge of :

• Subject matters in law

• Sustantive law: private law, trade law, civil law...


3.3) How to write

- An Essay, A Summary, A Written report, A Coursework, Footnotes, bibliography references…- Skills:

• Ability to Identify the object of the study

• Knowledge of the law related to the issue

• Ability to locate primary and secondary sources that will be apply

• Ability to construct a sustained argument

• Ability to structure work effectively

• Ability to make quotations, bibliography references and footnotes

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How to made a written report

A) Follow an agenda in order to prepare and construct the written report

B) Structure the written report effectively

C) Make quotations, bibliography references and footnotes


7th EXERCISE


Make a decision with regard to the steps you would follow to write a legal report about the resolution of the case (Martinica v. Shoes Factory)

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1st Read carefully the case and identify the main problem

2nd Identify the relevant facts

3rd Think on the legal sources you will apply


4th Locate primary and secondary legal sources: legal rules, analogous cases, textbooks and articles

5th Read carefully, note, organise and reflect on material collected

ü Law cases:

•What are the facts?

•What legal rules have been applied and why?

•What aspects of this case are relevant to may report?


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ü Text books

• What is being described?

• Does it fit with my understanding of the cases?

• What is of relevance to my report?

ü Articles

• What is the writer’s argument?

• Is is well supported by the evidence?

• Does the writer’s argument support or deny my argument in the report?



6 th Try to resolve the case: begin to form possible arguments

ü Analysis of facts

ü Legal Analysis

üCritical analysis: inductive and deductive modes of reasoning

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7th Begin to write the report

ü Notes of primary and secondary legal sources

ü Notes of your arguments

üMake a diagram

8th Write the first draft of the written report

9th Review the first drafting and write the final version of the report

ü Put ideas in order


8th EXERCISE


1) How would be the general structure or form of a written report?

2) Decide the structure you will use in the case (Martinica v. Shoes Factory).

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B) Structure the written report effectively

General form of a written report:

1) Purpose or object

2) De facto arguments

3) De iure arguments

4) Conclusions


9th EXERCISE


1) What is a quotation?

2) Do you know different ways of quoting?

3) What is a bibliography reference?

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C) Quotations and references of primary and secondary legal sources in the written report

- Quotation = take an idea from an author using theexact same words as the original author inside the text of the report (In quotation marks “”)

- Reference = take an idea from an author without using the exact same words

C1) ARTICLES AND BOOKS, PRIMARY LEGAL SOURCES AND CASE LAW


C1) Quotations and references of articles and books

- Quotations: Types

• Direct quotations = using the exact same words as the original author + taking the text from the work of the same author

• Indirect quotations = using the exact same words as the original author + taking the text through others authors

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C1) Quotations and references of articles and books

- Quotations: methods

• Continental methodü Direct quotation: indentify the author by a footnote

ü Indirect quotation: identify the author by a footnote

• Anglo-Saxon methodü Direct quotation: indentify the author writing down the year and the page of the work inside the text in brakets

üIndirect quotation: identify the author by writing down the surname(s) of the author who you have taken the quotation from and the year of his work, and the surname(s) of the primary author, in brakets.


C2) Quotations and references of primary legal sources

- The quotation of a INTERNATIONAL CONVENTION woud require:

• The full name of the International Convention

• The international Organisation under whose auspices this regulation was introduced

• Place and date it was signed, and the date was ratified by the State.

• The Official State Bulletin in which it was published

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- The quotation of a EUROPEAN COMMUNITY LEGISLATION woud require:

• Original law (Treaties) like International Conventions


• Derived law = Regulations, Directives and Decisionsü Council Regulation (EC) No. 2201/2003, 27th November 2003, relating to jurisdiction, recognition and execution of Judicial judgments regarding marriage and parental responsability, thereby overturning Council Regulation No. 1347/2000, Official Diary of European Union, No. L 338, 23rd December 2003, p. 1.


ü Council Decision, 19th December 2002, authorising member States to sign, in the interest of the Community, the Convention of the Hague of 1996 relating to jurisdiction, applicable law, recognition, execution and cooperation on matters of parental responsability, and child protection measures, Official Diary of the European Union, No. L 48, 21st of February 2003, p. 1.

ü Council Directive 2002/8/EC, 27th January 2003, designed to improve access to justice for cross-border litigations by establishing minimun common rules relating to free justice for said litigations, Official Diary of the European Communities, No. L 26, 31st January 2003, p. 1.

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C3) Quotations and references of case law

- International case law

- European Community case law

ü Judgment of the International Court of Justice, the Hague 18th December 2003, No. 2003/4, resolving the Appeal against the Judgment of 11th of September 1992, in the case of the insular cross-border and maritime territorial disagreement (EL SALVADOR v. HONDURAS; NICARAGUA as intervening party). On the web of the International Court of Justice: http://www.icj-cij.org/cijwww/cdocket/cesh/ceshframe.htm (last consulted on the 19th January 2004).

ü Judgment of the Court of Justice of the European Communities (6th

Chamber), 15th January 2004, c. C-230/01, Intervention Board for Agricultural Produce v. Enycoed Farming Partnership, Re. 2004, p. 175.


C4) Bibliography

- Making a bibliography reference

- Arranging a list of bibliographycal references in order

http://www.icj-cij.org/cijwww/cdocket/cesh/ceshframe.htm

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10th EXERCISE


1) How would you make the bibliography?

2) How would you make a reference of a book, article...?


C4) Bibliography

- Making a bibliography reference

• BOOKS

• CHAPTERS OF BOOKS

• ARTICLES

• REPORTS FROM ORGANISATIONS

• DOCUMENTS PUBLISHED ON THE INTERNET

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C4) Bibliography

• BOOKSü One author

SURNAME(S), N. Title (italised). Place: publisher, year of publication.

ü Two or three authors

SURNAME(S), N., SURNAME(S), N. and SURNAME(S), N. Title (italised). Place: publisher, year of publication.

üMore tha three authors

SURNAME(S), N., et al. Title (italised). Place: publisher, year of publication.


C4) Bibliography

• BOOKS

ü Editor(s)

SURNAME(S), N. and SURNAME(S) (eds)...

ü Edition

SURNAME(S), N. Title. No. Edition. Place: publisher, year of publication.

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C4) Bibliography

• CHAPTERS OF BOOKS

ü A chapter written by an identified author and published in a book of several authors

ü SURNAME(S), N. “Title of the Chapter”. Title of the volume of work(italised). Place: publisher, year of publication, pp.


C4) Bibliography

• ARTICLES

ü SURNAME(S), N. “Title of the article”. Title of the publication (italised). Year of publication, vol., No., pp.

vol. = volume

No. = issue

pp. = pages

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• REPORTS FROM ORGANISATIONS

C4) Bibliography

ü ORGANISATION. Title of the report (italised). Publishing company, year, No., pp. Series, No. in the series.

• DOCUMENTS PUBLISHED ON THE INTERNET

ü SURNAME(S), N. “Title of the document”. Name of the person/ organisation responsable for the web site. Published in the web page (date last consulted).


C4) Bibliography

- Arranging a list of bibliographycal references in order

• Bibliography references are to be listed in alphabetical order of authors’ surnames

• It must include only those cited in the text

• If you have quoted the same work of an author but from several years, these must be place in chronological order, beginning with the oldest edition

• If you have quoted several works of an author, these must be place in alphabetical order of titles

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11th EXERCISE


Make and list the bibliography of the written report about the case Martinica v. Shoes Factory

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