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ADRO 23A00 - Thinking Like a Lawyer

Type d'enseignement : Lecture and tutorials

Semester : Autumn 2018-2019

Number of hours : 48

Language of tuition : English

Pre-requisite

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Course Description

This class will engage students in a reflection on the specific components of legal reasoning and argument, on the basis of a selection of cases or texts to be prepared each week. It will also provide elements of comparative and historical legal theory in order to understand the terms in which law (lawyers) think about significant societal issues. The format is interactive and will comprise various practical exercises (hypotheticals, construction of argument, case analysis, interpretation of texts) designed to help understand the specific mentality of legal actors (judge, attorney, legislator...).

Teachers

DE LA COLINA, Maria (Associate)

Pedagogical format

Lecture course (24 hours) with tutorials (24 hours) A. Introduction Session 1: What does it mean to think like a lawyer? The specific purpose of legal reasoning. Law and its others. B. Perspectives and Traditions Session 2: Classic and Contemporary Perspectives: Naturalism; positivisms; Formalism; Realism; Critical Legal Studies; Feminism and Law and Economics. Session 3: the Common Law tradition, the Civil Law tradition and Islamic Law. C. Basic Legal Reasoning Session 4: Identifying the applicable law: choice of Law (horizontal, vertical), substantial v. procedural law. Session 5: Statutory Interpretation. Canons of interpretation. What is the role of the text? Session 6: The Precedent and Analogies. Parts to a judgement; the role of precedent in Common and Civil law. Separate opinions and dissents. Overruling and distinguishing. Analogical reasoning. Distinguishing analogies from precedent. Analogical reasoning in Islamic law. Session 7: Facts. Distinguishing facts and law. The law of evidence: i) types of admissible evidence, ii) reasons to exclude evidence, iii) relevance of evidence, iv) presumptions and v) the burden of the proof. Session 8: Judicial Discretion, bound or unbound? Policy v. principled exercise of judicial discretion. D. Contextual Legal Reasoning Session 9: Constitutional Law: constitutional hierarchy, constitutionality review in different legal systems, constitutional interpretation. Session 10: Contracts: offer and acceptance (different theories), consideration, detrimental reliance and contractual promises, obligations of result and best efforts, contractual liability. Session 11: Torts and extra-contractual liability: intentional tort, negligence (injury, causation, breach and duty) and strict liability. Different types of extra-contractual obligations and the obligation to repair. E. Law and Justice Session 12: Distributive, procedural, retributive and restorative justice . Predictive, random and impartial justice. Human rights: the last utopia?

Course validation

Requirements and grading: - Final exam: 1/3 of final course mark (open book exam) - Tutorial: 2/3 of final course mark (mid-term exam (60%), in-class participation (10%), presentation of a judicial/arbitral decision or an academic piece (30%)

Required reading

  • The following is a non-exhaustive bibliography of reference, as unfortunately no textbook would cover all or most contents of this course. While short articles or chapters of books will be circulated and posted in moodle at least 5 days before each lecture, the below are some of the main pieces covering the topics individually for those students who are interested in reading further. These pieces can be found in the Campus library.
  • H. L. A Hart, The Concept of Law, Oxford University Press; 3 edition (December 29, 2012)
  • L. L. Fuller, The Morality of Law, Yale University Press; Revised edition (1969)
  • R. Dworkin, Law's Empire, Belknap Press of Harvard University Press; 1st edition (January 1, 1986)
  • R. Dworkin, Taking Rights Seriously, Harvard University Press; Fifth Printing edition (November 1, 1978)

Additional required reading

  • H. Kelsen, Pure Theory of Law, The Lawbook Exchange, Ltd. (June 30, 2009)
  • J. Raz, The Concept of a Legal System : An Introduction to the Theory of the Legal System, Oxford
  • R. Alexy, The Argument from Injustice : A Reply to Legal Positivism, Oxford University Press; 1 edition
  • B. Cheng, General Principles of Law as Applied by International Courts and Tribunals, Cambridge
  • S.F.C. Milsom, Historical Foundations of the Common Law, Butterworth-Heinemann (January 1, 1969)