Arguing About Stare Decisis

(the doctrine of precedent)

Does it provide -
Consistency?

• Certainty?
• Efficiency?
• Flexibility?

Or does it promote
Inflexibility?

• Uncertainty?
• Fixity?
• Unconstitutionality?

[Slapper and Kelly briefly outline the arguments on  pages 144-153 of their book "The English Legal System - 14th Edition].




Other books develop these - and put other arguments. If you are taking a Law Degree exam (English Legal System - or the Open University's W200 course), it is worth summarising the arguments about the strengths and weaknesses of the doctrine of precedent. Then prepare short arguments - one version arguing for the utility of the doctrine and other arguing that it has more disadvantages than advantages. How would you put across each argument? How would you anticipate objections? Should you face an invitation in an exam to discuss precedent you'll have developed the knowledge and flexibility to answer it. Remember, there is no right answer. An examiner is looking for evidence of critical evaluation; and an ability to present a logical argument.

You should also be able to explain the "mechanics" of the doctrine - can you describe and explain

• the significance of law reporting?
• the rules about which courts bind which?
• when previous decisions are not binding? [and Young v Bristol Aeroplane Co Ltd]
• 'Ratio decidendi'?
• 'Obiter dictum'?
• Overruling?
• the Practical importance of Precedent?

Revising for Law Exams?

 

Washminster is written by an Associate Lecturer on the Open University's W200 and W201 Law courses. These cover what more traditional universities may describe as

• English Legal System
• EU Law
• Constitutional & Administrative Law
• Criminal Law

As a result there are a number of posts designed to assist with exam revision in these subjects (and revision techniques generally). Most of these were published in the August/September of each year (immediately preceding the OU exams).

If you are facing exams (Law Degree; Law A-Levels), do feel free either to use the search engine to the right of this post - or browse through the posts in date order (year & month).

A Bill of Rights for Britain

For as long as I can remember exams for both UK Constitutional Law & British Politics have often included questions inviting the student to discuss the merits and disadvantages of establishing a Bill of Rights specifically for the UK system. It's a super exam question - because it enables the student to demonstrate their understanding of "rights"; to discuss how far a piece of paper can actually protect them; the relationships between elected legislatures and governments and the Judiciary; and the problems caused for such a Bill due to the doctrine of Parliamentary Sovereignty.

The Political & Constitutional Reform Committee - one of the House of Common's Select Committee has been looking at the issue - and a debate has been held in Westminster Hall. It's worth having a look at the debate - It can be accessed directly here or the PDF of Hansard can be downloaded - You'll find the debate about a third of the way through, starting at Column 216 WH. That can be downloaded from here.

Avoiding unwanted questions

 

Yesterday I wrote about the skill of asking questions. Today I have a couple of comments about avoiding giving the answer called for.

It is part of a politician's skills to be able to deflect questions he doesn't want to answer. You will see it at Question Time in the House of Commons. It can also be seen outside the chamber when the media are seeking to get answers. I know that prospective politicians are given training (as are Press spokespersons for companies and charities) into steering an answer to ensure that the person being questioned gets THEIR point across.

But does it work?

In the short term perhaps. But in the long term such evasiveness does not go down well with voters. Similarly in exams - it will do you no good at all to write about what you want to say, when the examiner is seeking to test a particular area of subject knowledge that you don't want to discuss. Deliberate evasiveness may look clever - but it won't earn marks. Similarly walking into an exam room and telling the examiner what you've learnt, rather than answering the question set - and this can be the result of misreading a question, as much as evasion - won't be rewarded.

Letter to a student worrying about the exams...

Dear Student.

 

You are worried about the forthcoming exam. As President Roosevelt said in his first inauguration address - "the only thing we have to fear is fear itself"

 

 

 Exam nerves are natural - and most people suffer from them. In fact my experience is that I needn't worry about my students who worry about their exams - the ones to worry about are the ones not worried. Their complacency usually shows that they haven't engaged with the subject yet. I remember one girl who got so het-up about the exam that I had to take her out of the hall 10 minutes after the exam began - and she was sick. She returned - and walked off with first class honours!!!

 

I will continue to attempt to address the issue of exam nerves and revision in my tutorials; tutorial key point videos and washminster posts.

 

Try to treat exams as a game (OK, not a fun game!) - but actually exams resemble a game - with its rules (such as you must answer 4 questions in 3 hours; you must answer two questions from each part etc - break the rules in either football or exams and you are penalised.

 

 

Like crossword games - the wording of questions have certain conventions, they contain clues that help you solve the problem)

 

There are no word targets! You have 3 hours to answer 4 questions of equal value. I argue that the most valuable time is at the start of the exam

 

 

- give yourself time for the "panic" after seeing the questions to subside (we've had suffered it - the fightback begins when you start saying - "this is a disaster, what can I can salvage from it..." - and the memory & logic returns);

 

- to consider which questions give YOU the best opportunity to demonstrate your knowledge and understanding;

 

- to think about and make a detailed plan for each answer - and ensure that it's arguments are logical and complete, and have as much support (cases and statute & academic writers cited)_as possible.

 

Allowing for a few minutes at the end to review - and add anything you might has missed earlier -

you probably have 30 minutes or so to turn that each essay plan into an answer.

 

If, like me - you don't physically write much - as opposed to typing it on a computer - it may be useful to get a little "exercise" to get used to writing for a long time.

 

All the very best

 

David

An ideal Law Exam Question?

'Discuss the view that "Parliamentary legislation is excessively complex and its confusions undermine the rule of the law"'

This isn't actually an exam question that has been set in a British university - but it would an excellent question - either for "English Legal System" (allowing an explanation of issues relating to 'statutory interpretation') or "Constitutional Law" (enabling a student to demonstrate their understanding of the concept of the Rule of Law)

If I were a student, I'd read the following article - from which the quote is taken - and reflect on what points I could make - even going as far as preparing an essay plan.

http://www.guardian.co.uk/law/2013/apr/16/parliamentary-legislation-too-complex-report

On the 'Rule of Law' (and other UK constitutional principles), it's difficult to beat Lord Bingham's short, readable and thought provoking book of the same name.

Compare and Contrast

It’s no coincidence that the phrase “Compare and Contrast” often appears in exams and essays. It’s a great way of developing understanding. It is possible to get some idea of the British constitutional system just by reading descriptions of the rules applicable in the UK – but ‘compare and contrast’ with the constitutions of other countries, and you’ll deepen your understanding greatly. Similarly, working out how other countries have devised ways of resolving similar problems can give greater insight into our own solutions.

One of the purposes of the Washminster blog is to provide the tools to do such comparisons. Its main focus is the legislatures of the UK; US; France and the European Union. However, context is needed – so the politics, history and traditions of each country/Union is needed too. Your comments are welcome – just let me know if there are particular topics you’d like to see dealt with by Washminster.

Education Select Committee

Yesterday I attended the evidence session of the Education Select Committee which is looking into the GCSE fiasco. I often watch select committees (either in person or via the parliamentlive website), but I’ve rarely felt as angry as I did after hearing from some of the Heads about the impact of the injustice done to some young people.


The witnesses were

Brian Lightman, General Secretary, Association of School and College Leaders (ASCL), Mike Griffiths, Headmaster, Northampton school for boys, and ASCL President, Russell Hobby, General Secretary, National Association of Head Teachers (NAHT), and Kenny Fredericks, Principal, George Green's School, Isle of dogs, and member of NAHT executive.

In the second session – key individuals from Ofqual including Glenys Stacey gave evidence.