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CASE RESOLVING

CASE RESOLVING. By Naiara Arriola & Irati Basoredo ibasored@der.deusto.es naiarriola@hotmail.com University of Deusto General Problems of Transnational Law Intensive Program September 2008. AGENDA. SKILLS INVOLVE IN THE STUDY OF LAW By Hanson, S.

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CASE RESOLVING

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  1. CASE RESOLVING By Naiara Arriola & Irati Basoredo ibasored@der.deusto.es naiarriola@hotmail.com University of Deusto General Problems of Transnational Law Intensive Program September 2008

  2. AGENDA • SKILLS INVOLVE IN THE STUDY OF LAW • By Hanson, S. • Exercises, Analyse outcomes, some proposals • HOW TO MADE A WRITTEN REPORT? • Exercises, Analyse outcomes, some proposals • ROLL PLAYING • Moot Court Universidad de Deusto

  3. Skills involve in the study of law • Skills (by Hanson, S.) • General study skills • General language skills • Intelectual and technical skills • Argument construction • Specific substantive subjects Universidad de Deusto

  4. Intellectual and technichal skills 1) How to locate primary and secondary legal sources 2) How to read/ analyse the law 3) How to write Universidad de Deusto

  5. 1st exercise • Using the brainstorming technique, answer the following questions (groups of 3): • How would you locate legal sources? • Where would you find them? • Look for legal sources that could be applied in the case (Martinica v. Shoes Factory) • - Primary legal sources • - Secondary legalsources Universidad de Deusto

  6. How to locate primary and 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, Scholarship... • Common Law’s tradition: Scholarship... Universidad de Deusto

  7. How to locate primary and secondary legal sources • 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/ Universidad de Deusto

  8. 2nd EXERCISE • Using the brainstorming technique, answer the following questions (groups of 3): • How would you analyse primary legal sources? • How would you analyse secondary legal sources? Universidad de Deusto

  9. How to read/ analyse the law • Primary legal sources: • Understand how primary legal sources are constructed • Understand draftting issues in primary legal sources • Interpreting rules of primary legal sources, using second legal sources... Universidad de Deusto

  10. How to read/ analyse the law • Secondary legal sources: Case law • Look for the hierarchy of the court • Identify the facts which will help you deciding whether the case is applicable • Identify the rules applied by the court • Identify the outcome • Identify others conflicting cases Universidad de Deusto

  11. 3.2) How to read/ analyse the law How to read/ analyse the law • Secondary legal sources: Scholarship • Indentify different views • Identify and explain the arguments in different views • Compare and evaluate the arguments • Draw a conclusion Universidad de Deusto

  12. How to read/ analyse the law - 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 carry out in secondary legal sources: case law and Scholarship Universidad de Deusto

  13. 3rd EXERCISE • Using the brainstorming technique, answer the following questions (groups of 3): • What is an “argument”? • What is a “legal argument”? Universidad de Deusto

  14. Argument construction • - Distinguish between the general meaning of argument and legal argument • Argument: an statement or a fact addressed to prove an assertion/ position (Factual Basis) • Legal Argument : a series of statements which are interpretated in accordance with law in order to prove or disprove a given position (Legal Basis) Universidad de Deusto

  15. Argument construction • - Differentiate and apply deductive and inductive reasoning • Deductive = Universal Statements + Scientific Tools Particular Statements • Inductive = Observe Particular Statements + Generalize Universal Statement Universidad de Deusto

  16. 4th EXERCISE • Using the brainstorming technique, answer the following questions (groups of 3): • Which is the most suitable reasoning method in order to resolve a case? • Deside the reasoing method that you will use to resolve the case (Martinica v. Shoes Factory) Universidad de Deusto

  17. Argument construction * 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. - To steal is to act contrary to law (first deductive argument) - Particular case: Carol has stolen Central deductive argument: Carol has acted contrary to law Universidad de Deusto

  18. Argument construction 2nd Reasoning by inductive method, construct two deductive arguments: one, affirming the central deductive argument and another, denying it. Prosecution thesis: Carol has stolen Defense thesis: Carol has NOT stolen • 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 • 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 Universidad de Deusto

  19. Argument construction • - Understand the connection between factual analysis and legal analysis • - 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 to search for hidden assumptions behind the general accepted acts or thougthts... Universidad de Deusto

  20. Argument construction • - Understand the way in which an argument is based 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 Universidad de Deusto

  21. Argument construction 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 Universidad de Deusto

  22. Specific substantive subjects - Knowledge of : • Subject mattersin law • Sustantive law: private law, trade law, civil law... Universidad de Deusto

  23. 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 Universidad de Deusto

  24. 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 Universidad de Deusto

  25. 5th EXERCISE Using the brainstorming technique, answer the following questions (groups of 3): Make a decision with regard to the steps you would follow to write a legal report about the resolution of thecase (Martinica v. Shoes Factory) Universidad de Deusto

  26. Follow an agenda in order to prepare and construct the written report 1stRead carefully the case and identify the main problem 2nd Identify the relevant facts 3rdThink on the legal sources you will apply Universidad de Deusto

  27. Follow an agenda in order to prepare and construct the written report 4th Locate primary and secondary legal sources: legal rules, analogous cases, textbooks and articles 5th Read carefully, note, organise and reflect on material collected • Law cases: • What are the facts? • What legal rules have been applied and why? • What aspects of this case are relevant to may report? Universidad de Deusto

  28. Follow an agenda in order to prepare and construct the written report • Textbooks • What is being described? • Does it fit with my understanding of the cases? • What is of relevance to my report? • Articles • What is the writer’s argument? • Is it well supported by the evidence? • Does the writer’s argument support or deny my argument in the report? Universidad de Deusto

  29. Follow an agenda in order to prepare and construct the written report 6th Try to resolve the case: begin to form possible arguments • Analysis of facts • Legal Analysis • Critical analysis: inductive and deductive modes of reasoning Universidad de Deusto

  30. Follow an agenda in order to prepare and construct the written report 7th Begin to write the report • Notes of primary and secondary legal sources • Notes of your arguments • Make a diagram • Put ideas in order 8th Write the first draft of the written report 9th Review the first draft and write the final version of the report Universidad de Deusto

  31. 6th EXERCISE • Using the brainstorming technique, answer the following questions (groups of 3): • How would be the general structure or form of a written report? • Decide the structure you will use in the case (Martinica v. Shoes Factory). Universidad de Deusto

  32. Structure the written report effectively General form of a written report: 1) Purpose or object 2) De facto arguments (Factual Basis) 3) De iure arguments (Legal Basis) 4) Conclusions Universidad de Deusto

  33. 7th EXERCISE • Using the brainstorming technique, answer the following questions (groups of 3): • What is a quotation? • Do you know different ways of quoting? • What is a bibliography reference? Universidad de Deusto

  34. Quotations and references of primary and secondary legal sources in the written report 1) ARTICLES AND BOOKS, PRIMARY LEGAL SOURCES AND CASE LAW - 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. Universidad de Deusto

  35. 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 Universidad de Deusto

  36. Quotations and references of articles and books - Quotations: methods • Continental method • Direct quotation: indentify the author by a footnote • Indirect quotation: identify the author by a footnote • Anglo-Saxon method • Direct quotation: indentify the author writing down the year and the page of the work inside the text in brakets • Indirect 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. Universidad de Deusto

  37. 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 Bulletinwhere it was published Universidad de Deusto

  38. Quotations and references of primary legal sources - The quotation of a EUROPEAN COMMUNITY LEGISLATION woud require: • Original law (Treaties) like International Conventions Universidad de Deusto

  39. Quotations and references of primary legal sources • Derived law = Regulations, Directives and Decisions • 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. • 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. • 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, 31stJanuary 2003, p. 1. Universidad de Deusto

  40. Quotations and references of case law - International case law • 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). - European Community case law • 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. Universidad de Deusto

  41. Bibliography - Making a bibliography reference - Arranging a list of bibliographycal references in order Universidad de Deusto

  42. 8th EXERCISE • Using the brainstorming technique, answer the following questions (groups of 3): • How would you make the bibliography? • How would you make a reference of a book, article...? Universidad de Deusto

  43. Bibliography - Making a bibliography reference • BOOKS • CHAPTERS OF BOOKS • ARTICLES • REPORTS FROM ORGANISATIONS • DOCUMENTS PUBLISHED ON THE INTERNET Universidad de Deusto

  44. Bibliography • BOOKS • One author SURNAME(S), N. Title (italised). Place: publisher, year of publication. • Two or three authors SURNAME(S), N., SURNAME(S), N. and SURNAME(S), N. Title (italised). Place: publisher, year of publication. • More than three authors SURNAME(S), N., et al. Title (italised). Place: publisher, year of publication. Universidad de Deusto

  45. Bibliography • BOOKS • Editor(s) SURNAME(S), N. and SURNAME(S) (eds)... • Edition SURNAME(S), N. Title. No. Edition. Place: publisher, year of publication. Universidad de Deusto

  46. Bibliography • CHAPTERS OF BOOKS • A chapter written by an identified author and published in a book of several authors • SURNAME(S), N. “Title of the Chapter”. Title of the volume of work(italised). Place: publisher, year of publication. Universidad de Deusto

  47. Bibliography • ARTICLES • SURNAME(S), N. “Title of the article”. Title of the publication (italised). Year of publication, vol., No., pp. vol. = volume No. = issue pp. = pages Universidad de Deusto

  48. Bibliography • REPORTS FROM ORGANISATIONS • ORGANISATION. Title of the report (italised). Publishing company, year, No., pp. Series, No. in the series. • DOCUMENTS PUBLISHED ON THE INTERNET • 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). Universidad de Deusto

  49. Bibliography - Arranging a list of bibliographycal references in order • It must include only those cited in the text • Bibliography references are to be listed in alphabetical order of authors’ surnames • 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 which are from the same year, these must be placed in alphabetical order of titles Universidad de Deusto

  50. 9th EXERCISE Using the brainstorming technique, answer the following questions (groups of 3): Make and list the bibliography of the written report about the case Martinica v. Shoes Factory Universidad de Deusto

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