University of Technology, Sydney Law Review
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Now the first thing you are to do with an opinion is to read it. Does this sound commonplace? Does this amuse you? There is no reason why it should amuse you. You have already read past seventeen expressions of whose meaning you have no conception...It is a pity, but you must learn to read. To read each word. To understand each word. You are outlanders in this country of the law. You do not know the speech. It must be learned. Like any foreign tongue, it must be learned: by seeing words, by using them until they are familiar.[5]
READING, IT CAN be well argued, is central to the work of a legal practitioner. The law is embodied in language that requires interpretation, which is the role of the lawyer. This role requires the lawyer to know the law and to apply its tenets. Yet such a fundamental skill as reading is often overlooked in the range of skills considered necessary for a law graduate to display to be a competent practitioner. For instance, it does not appear in the MacCrate Report 1992,[6] Le Brun and Johnstone 1994[7] or the Priestley Proposals 1992.[8] The most obvious reason for this omission appears to be an assumption that all students admitted to law school can ‘read’. Law is a popular program requiring high tertiary entrance scores. Surely, such high-achieving students have mastered the skill of reading?
The purpose of this paper is to question the assumption that law students do not need to explicitly learn to read the law, to briefly review the literature available in the area of legal reading, and to outline the approach taken by a legal reading program designed to develop critical skills, trialed in the Faculty of Law at the University of Sydney.
Many scholars have confirmed the central role of reading in the learning process. Candy[9] in his work Self-Direction for Lifelong Learning, comments that ‘one of the most common forms of learning in our society is through reading’. Not only is it common, but also by its nature it allows reflection that other information and learning vehicles, e.g. listening, may not. Gibbs, Habeshaw and Habeshaw[10] point out that reading is more flexible than listening as students can read at their own pace and go over parts that were difficult to understand. Reading allows students time to stop and think. As a vehicle for developing reflective and critical thinking, therefore, reading has a vital role.
Reading as a generic skill and an intrinsic part of tertiary literacy is acknowledged. The belief that reading is a ‘basic’ skill, however, is challenged by both Candy[11] and Twining[12], who place it firmly in the domain of higher order cognitive processes. The role of reading in the acquisition of subject expertise is also well documented. Candy makes the general comment that ‘[l]iteracy is taken for granted, especially by the time people reach adulthood. In fact, literacy is only partially a generic skill; it is largely subject-specific, and educators need consciously and intentionally to develop ‘subject literacy’ so that learners can learn independently in areas of their choice.’[13] The idea of choice here implies that reader motivation to learn is heightened by the perceived relevance of the texts. A further implication is that subject literacies are distinguishable: different subjects have different views of the world, and the particular ‘subject literacy’ will reflect that view. In order to become expert, the reader must take on the skills valued by the discipline through the words in which these skills are demonstrated and represented in the texts of that discipline. For example, reading and interpretation are considered by Twining[14] to be central to the development of skills of reasoning and analysis within a the context of a law degree.
It would be misleading to regard generic skills of ‘critical reading’ as being automatically transferable to specific subject learning. Students who have developed good generic skills of reading and thinking often have difficulty transferring these skills to legal texts. Fajans and Falk[15] cite research by Lundeberg[16] indicating that law students who were ‘good readers in their prior professions experienced a diminution in their ordinary reading critical thinking skills when they read law’.
In an effort to explain these difficulties, many writers have focused on the difficulty in the terminology of the law, an approach captured in the quote from Llewellyn heading this article. Again, commenting specifically on the language of law, Riley[17] illustrates the technicality of the language by classifying ‘legal’ words into three groups: ‘pure’ law terms being words that have specific legal meanings and are used little, if at all, in everyday speech, such as mens rea, chose in action, fee simple and estoppel; words found in everyday speech that have specific meanings when used in a legal context, such as land, assault, negligence; and everyday words with special connotations in a given legal context. By way of example, Riley cites the definition of ‘egg’ in various pieces of legislation or the meaning of ‘year’ in different legislative contexts. The second group is one that causes the novice reader (especially the reader working in a second language) most confusion, because of the surface familiarity of these words. Riley[18] comments that a ‘(NESB) student flounders for the first term of legal studies, merely grasping at the correct concept, and failing initially to understand the connotations behind a word’s meaning’. Candy[19] calls these misunderstandings ‘alternate conceptions’ rather than ‘misconceptions’ while Ramsden[20] points out that in this circumstance ‘[s]imply teaching students the ‘right’ conception cannot work, because change involves an active working upon and interaction between the old way of thinking and the new’.
The difficulty, however, is not limited to the recognition of concepts behind individual words. The significance of a passage of text is often conveyed by combinations of words:
[L]egal significance of a text does not depend solely on the presence or absence of recognisably ‘legal’ words......[r]ather it seems to be the ability to recognise certain combinations of words, whether ‘ordinary’ or ‘legal’ as having some significance other than that which is immediately apparent as their ‘surface’ meaning.[21]
This selection of comments is illustrative of how language in a legal context can be difficult to understand for the new law student. All disciplines have their ‘tribal speech’[22], and acquiring control over the technicality of a field is a part of the acquisition of expertise in a domain of knowledge. However, in the study of law, language is actually part of the law. As Riley[23] points out,
understanding the vocabulary of the law is in itself a legal task. In the discipline of law, perhaps more so than in any other field, words matter...Legal principles are embodied in words.
It is this close relationship between terminology and legal principles that makes automatic transfer of generic critical reading skills even more problematic in the discipline of law. Comprehension difficulties have been identified on a range of levels from the micro level of individual words to the macro level involving the cohesion of whole texts.[24] A study by Parkinson[25] focuses on the ambiguity of legal language in the interpretation of statutes and cites three levels of ambiguity: semantic, syntactical and contextual. In fact, Parkinson[26] comments that lawyers indeed seek such ambiguities as ‘in interpreting the law...litigants have an interest in finding ambiguity if the most obvious meaning is contrary to their interests, and the meanings which are presented to the court are those which benefit the litigants themselves.’
The difficulties encountered by novice law students in identifying what is significant or relevant in the text have been commented on by researchers such as Davies[27] and Le Brun and Johstone.[28] Davies suggests that a trained reader of legal texts will bring a legal context to the task, which is not available to the novice reader.
Despite these documented difficulties, the skill of ‘reading law’ is not one that is commonly considered necessary to acquire during law school. Reading is listed among the thirteen skills that a Committee of the Faculty of Law at the Queensland University of Technology considered should be acquired by law students over the course of their law school experience.[29] However, it does not find a place in the Priestley Proposals[30] or the MacCrate Report.[31] Of a range of texts used for first year courses—Bottomley and Parker[32], Davies[33], Laster[34], Hunter, Ingleby and Johnstone[35], Chisolm and Nettheim[36], Waller[37], Enright[38] and Morris, Cook, Creyke, Geddes and Holloway[39]—only Enright considers directly the skill of reading the law. The primary purpose of many of these texts is to offer an introduction to law, and to place the law in its context. Therefore most works deal with the concepts of ratio decidendi and obiter dicta, the place of legislation in the scheme of legal authority, and the precedent value of cases. However, these explanations were made on the basis that students were in fact able to understand the law that they read. As has been highlighted, this may be too great an assumption, particularly for the new legal reader.
To overcome these concerns, explicit training in the skill of critical reading of legal texts may well be required. The supplementation of general reading strategies of skimming, scanning and prediction has been suggested by several writers in order to facilitate the development of a critical and evaluative response to written material. Strategies involving verbalising argument and ideas have been suggested as a way of making connections between the target text and other texts: by interactive discussion[40] and by ‘thinking aloud protocol’[41], where a student ‘verbalises her uncensored responses to a short opinion while reading it’. A strategy of checklist type procedures (is there a logical flow to the argument? do the statements gloss over contentions points? etc.) is put forward by Enright.[42]
These studies share the view that critical reading involves interaction with the text, ‘...to make students conscious of the invisible workings of a text’[43], implying the possibility that knowledge can be challenged, evaluated, accepted and rejected by the reader. This process of questioning, filtering and selecting information will have a transforming effect which typifies learning: to quote Candy[44] there should be some evidence of learning which resulted in changed conceptions by having learners manifest as creatively as possible some qualitative shift in understanding, insight, or perspective as a result of reading.
Facilitating this qualitative shift is an important educational issue for law teachers. Ideally, law graduates must be able to not only ‘know’ the law and apply it, but also develop the ability to critique the law. Lawyers need to be able to pre-empt alternate arguments to their client’s case to effectively prepare for litigation. Law reform requires practitioners who can not only identify limitations in the law but also suggest means to improve it. This process of moving students to higher order cognitive thinking is reminiscent of Bloom’s[45] oft-cited taxonomy of objectives of Knowledge, Comprehension, Application, Analysis, Synthesis and Evaluation. The goal of the law teacher is to develop the skills of knowledge, comprehension and application, as without these skills, analysis, synthesis and evaluation cannot occur.
The reading workshops piloted at the University of Sydney challenged the common assumption that students can in fact gain critical skills through simply completing the standard course reading, and thus have a basic understanding of the material sufficient to apply it. Rather than looking at ‘legal’ words and concepts in isolation, the approach of the workshops was to look at the scaffolding provided by terminology and the relationships between the concepts represented by terminology, as a key to building up a legal view of the world. The background to these workshops and a general picture of the strategies developed as a first step towards facilitating the ‘qualitative shift’ discussed by Candy[46] will be discussed in the rest of the paper.
The development of these workshops took place in a context of general reflection on student learning at faculty level in the University of Sydney. Staff in the Faculty of Law have shown a consistent commitment to the goal of improving the learning of students in first year. It was observed by one author of this article that students in first year law classes in the Faculty of Law at the University of Sydney were having difficulty with material at a basic level. This was particularly apparent with students from a non-English-speaking background.
A survey was distributed to students in the lecture of the first year course Legal Institutions at the end of first semester. A hundred and seven responses were returned which represented approximately 39 per cent of students enrolled and about one half of full time students. Of those 107 responses, 21 students indicated that their comprehension of the course materials was hindered by their English skills, of which 17 were students of non-English-speaking background (NESB). There was a marked difference between the difficulty experienced by NESB students and other students with the mean on the scale of the difficulty of course materials being 4.18 (five represents the greatest difficulty on a scale of one to five) and 3.65 for English-speaking students.
Only nine students (out of 107) rated the course reading as easy. This indicates that a large majority found reading legal materials challenging. This might be partly explained by the subject specificity of legal language. Research by Martin et al[47] found that students saw tertiary study as a progression and development of skills in subjects learnt at high school. However, many first year law students have not previously been exposed to legal language and even though high school units in Legal Studies may provide some assistance, they are not taught in the same depth and with the same intellectual rigour as in Law School. Ramsden and Martin[48] comment that ‘[f]or many previously confident students, used to performing well in school in mathematics, science, languages and English, the different challenges posed by studying Law prove to be traumatic’.
The issue of preparation for tertiary studies has attracted some attention from researchers and can be briefly summarised. Several studies have evaluated and made recommendations concerning the quality of the preparation provided by high school courses, for example, Le Brun and Clark[49] concerning legal studies programs; and Gallagher and Tamir[50] concerning science. The latter study found that many students enter tertiary study with insufficient prerequisite knowledge and skills, a deficiency in abstract and formal thinking ability, an inability to synthesise facts, concepts and principles, and an inability to apply knowledge and skills to problem solving. It is reasonable to expect the same skill deficit in students entering law courses. While the Faculty of Law at the University of Sydney offers a bridging program for graduate students (students with a previous tertiary degree) which offers some exposure to legal language, a similar program is not in place for direct entry students.[51]
Analysis of the results of the first year survey led to the suggestion that a series of workshops be run to ‘teach’ reading skills specific to law, with the expectation that by the end of the developmental program students would be able to read law more critically and evaluatively. Initially, it was suggested that the course be targeted at NESB students. However, it was quickly moved to being a program open to any first year law students.
This led the authors to work collaboratively (a member of the Faculty of Law and members from the University of Sydney Learning Assistance Centre) to design an appropriate program. The Learning Assistance Centre is a small academic unit with a brief to facilitate the learning of enrolled students of the University of Sydney. One of the ways it fulfils this brief is through collaborative projects with faculties. The Centre is staffed by lecturers from fields of applied linguistics and educational psychology, and has an approach to language and literacy which draws on systemic functional linguistics. This theoretical framework looks at language as a series of purposeful patterns or systems constructing meaning in specific cultural and social contexts, and as such is particularly appropriate to projects which involve developing language as ‘a strategic, meaning-making resource’.[52] The systemic functional view of language as not just an encoder but a creator of meaning resonates particularly with the nature of the language of law. The accompanying notion that the acquisition of knowledge of how language works presents the novice reader with increasing insight into how different authors make different choices for their own purposes, is also relevant here. ‘To be alert to the ways one’s language works for creating and organising meaning is to be conscious of how to manipulate and use it.’[53] Consciousness of how language can be manipulated in argument is particularly desirable for students of law.
Introductory legal reading and writing lectures had been offered at the end of first semester by the Learning Assistance Centre as lunchtime drop-in sessions for all law students, both undergraduate and graduate. These sessions were presented as a joint initiative with the Faculty of Law, and intended as pilots to test student response to discipline specific skills support. The enthusiastic reception of these lectures demonstrated that in fact students were conscious of a need for direct skill development. As a result of the first year survey, it was decided to repeat the introductory reading lecture in the second semester first year unit Law, Lawyers and Justice. This introductory session looked at skimming and scanning strategies appropriate to certain types of legal texts. It also identified characteristics of sentence structure in statutes and legislation (which represent legal writing at its most complex) based on the analysis work of Bhatia[54], as well as looking at the staging of cases as a support for reading. It was also decided to offer two further sessions in Law, Lawyers and Justice designed to develop higher order reading skills in the context of course readings. These sessions were designed as two workshops of two hours each, so that students had time to actively engage in reflective practice of the skills. This process fits with the experiential model of learning as first suggested by Kolb.55 This model seeks to provide the learner with a concrete experience upon which to reflect. This leads to the formation of abstract concepts and generalisations, which the learner can then test by active experimentation. Nathanson[56] describes this as the ‘now familiar skills-teaching cycle: theory, demonstration, practice, feedback.’
The two workshops were regarded as a first step in building the skills of comprehension of legal readings. The team, conscious of the indisputable link between assessment and learning outcomes[57], proposed that the workshops be designed to enhance the reading skills needed to complete two course assessment tasks—a long essay and a case-based take home examination. Consideration was therefore given to the range of legal reading students would encounter in order to complete these tasks, including speeches, law reform proposals, scholarly articles, chapters from books, cases, and legislation. Specific aims of the two workshops are summarised below:
Workshop 1—Reading for your long essay:
Workshop 2—Reading Cases:
Cases were chosen as the focus of the second workshop not only because they formed the core reading of the students’ second assignment but because they are integral to reading, understanding and applying the law. Cases also display structural and language patterns which set them apart from legal journal articles, textbooks and speeches. This latter set of texts tends to share more similarities with other kinds of academic texts with which students may be familiar.
In the workshops, two critical features of legal discourse were introduced, viz. technicality and argumentation. In developing the workshops, we were concerned not only to promote students’ understanding of the importance of these two features of themselves, but also how the two work together to construct meanings in different kinds of texts. In fact, as will be described below, the concepts of integration and contextualisation were fundamental in the design of the workshops and the material presented.
Recognising and understanding the various technical terms of a discipline are an important part of critical literacy, not only for law students but for students in general. However, to understand the meaning of a technical term does not merely involve learning the meaning of the term in isolation, but also involves understanding how it relates to other terms. An appreciation of the meaning of the legal term partisanship, for instance, rests on an understanding that partisanship is one of the two main principles (as set out in the textbook) governing the ethical duties of a lawyer to his or her client (the second principle is zealousness).
The first workshop introduced taxonomic diagrams as a useful strategy for conceptualising and illustrating relations between technical terms in a text. Originating in the biological sciences, taxonomic diagrams allow entities and issues to be hierarchically arranged into classes and subclasses. In one exercise, students were asked to read an excerpt from their textbook (for the Law, Lawyers and Justice course) and to attempt to draw a taxonomic diagram illustrating how the technical terms introduced in the excerpt relate to one another. Textbooks (rather than articles or speeches) are especially useful for such an exercise since one of the major functions of textbooks is to introduce technical terms and their definitions as explicitly as possible. In other words, textbooks are primarily concerned with ideational knowledge construction. In the following excerpt, the technical terms introduced are in italics (the taxonomy constructed is shown in Figure 1):
In broad terms, there are two classes of ethical duties. The first concerns duties to the client. The second concerns duties to the administration of justice. In the event of a conflict between the two, the duties to the administration of justice are supposed to prevail.
Ethical duties to the client can mostly be attributed to one or other of two principles; principles of partisanship and zealousness. Thus the principle of partisanship generates a duty that lawyers must act only in the client’s interests and not have a conflicting obligation to anyone else...The principle of zealousness leads to duties that require a lawyer to do all that is legally permissible and consistent with the lawyer’s duties to the administration of justice on behalf of her or his client.[58]
partisanship
client
zealousness
ethical duties
administration of justice
Figure 1. Taxonomic diagram derived from textbook excerpt
The development of taxonomies based on course readings has a dual pedagogic function. Not only do taxonomies introduce a useful method for students to analyse relations between pieces of information and manage informational complexity (but with the aim of appreciating the complexity rather than oversimplifying it), they also reinforce current course content.
The focus on knowledge construction typical of textbooks (that is, knowledge which can be captured to a certain extent in taxonomic diagrams) can be contrasted with the focus on argumentation typical of speeches and articles. These texts do not construct knowledge so much as deconstruct or reconstruct it depending on the author’s point of view. This is achieved by taking current knowledge and problematising, probing and arguing about it. In this alternative ‘construction’ the author draws selectively upon particular ideational aspects of the legal field to argue a point. Knowledge construction is thus subordinated to the function of argumentation and exhortation: while textbooks emphasise ‘what is’, speeches and articles foreground ‘what should be’.
To explore these differences in focus, students were asked to compare the textbook excerpts with a speech and journal article on a similar topic. In particular, students were asked to note which terms from the textbook were being focused on in these other texts, how they were being used to argue a particular point of view and whether the use of the terms suggested variations of the taxonomies the students had constructed earlier. For instance, the article excerpt included below (which appears at the end of the journal article) presents three main principles of the adversarial system, adding non-accountability to zeal and partisanship. Students need to be made aware of such differences and to be able to determine where the third principle in this case lies in the larger scheme of things. At the same time, attention was drawn to how the journal article foregrounds argumentation in the form of agreement and disagreement with other scholars, for example, in the explicit reference to argument, approaches, intent[ions], standard conceptions and doubt:
The American legal philosopher David Luban in his book Lawyers and Justice argues that lawyering in the adversary system rests on three major principles: zeal, partisanship, and non-accountability. Lawyers must, within certain limits imposed by law and procedure, be zealous and partisan in the pursuit of their client’s interests. If they do this then they are not accountable or responsible for the consequences.
Such an approach to lawyering clearly has some justification if the adversary system works in the way that is intended. I have elsewhere suggested, however, that many of the justifications for the standard conception of the lawyer’s role are dependent on factual premises about dispute resolution which are now considerably in doubt...’[59]
The speech delivered by Nicholas Cowdery QC[60] displays a similar focus on argumentation: the technical terms partisanship, zeal and non-accountability are introduced in the context of an observation about problematic aspects of the adversarial system:
The adversarial system of litigation in which we operate and which carries over into our dealings party to party is another obstacle to the marriage of lawyers and justice...
Professor Luban of Georgetown University also argues that the adversary system implies a vision of legal ethics combining extreme partisanship with moral non-accountability. The principle of partisanship requires advocates to advance their clients’ partisan interests with the maximum zeal permitted by law. The principle of non-accountability insists that an advocate is morally responsible for neither the ends pursued by the client nor the means of pursuing those ends (provided that both means and ends are lawful). (Is it a breach of professional standards not to go judge-shopping to the fullest possible extent?).
Partisanship follows from party control of the litigation and the responsibility for advancing the client’s arguments and attacking the adversary’s. Moral responsibility for the means or ends, it is said, may compel retreat from partisan zeal.
Professor Luban cites Macaulay: an advocate ‘with a wig on his head and a band around his neck will do for a guinea what he would otherwise think it wicked and infamous to do for an empire’.
The practical outcome of such an ethos is to serve the financial interests of lawyers and the prosperous who can afford their services. The less fortunate and more scrupulous suffer.[61]
Cases, like speeches and articles (and unlike textbooks) also acknowledge and incorporate several viewpoints. This focus on argument, combined with the particular structure and formality of case presentation, is undoubtedly one of the main reasons that students comment that, of all their readings, cases are especially difficult to understand. While cases foreground argumentation over knowledge construction, they are more specifically concerned with arguing points of law, i.e. ‘what is’ v ‘what is not’ the law, based on precedent and the particular facts of the case. Since argumentation is such an important feature of cases, students were taken through a close reading of the various stages of argumentation in two judgments in a case (one of which was dissenting). The aim was for students to follow the main argument(s) of the judge, counter-arguments, and the counter-counter-arguments put forward, focusing on vocabulary and grammatical cues. It is essential for students to be able to tease out the different aspects of the argument since a judgment can be successfully based on one aspect but not the other.
To focus students’ attention on different aspects of argumentation and parts of the case, a checklist of questions, organised under the three headings—Precedent Value, The Case and The Implications of The Case—was introduced and discussed. These questions helped students to (i) orient themselves to the general context of the case (Precedent Value), (ii) gain an overview of the main facts and judgements (The Case), and (iii) consider wider consequences of the case (The Implications of The Case).
The use of precedent in the argument is illustrated in the following extracts from the case report:
The primary argument of the applicant relies in part on the explications of the right to a fair trial in the instruments to which we have referred. The argument is that, at least in any indictable matter to be tried before a judge with or without a jury that may result in imprisonment upon conviction, the interests of justice require that an indigent accused who wishes to have legal representation be provided with such representation at public expense. The central proposition in this submission is that the absence of representation for an accused who cannot afford to engage counsel necessarily means that the trial is unfair and that any conviction should be quashed.
In the course of argument, counsel for the applicant proposed a less absolute form of this proposition. He submitted that, as an incident of a court’s duty to ensure that an accused receives a fair trial, a trial judge has a discretion to stay or adjourn the trial of an unrepresented accused and that, in the absence of exceptional circumstances, this discretion should be exercised in favour of the accused. This contention was proposed in the context of an alternative submission that the trial judge erred in refusing the applicant’s application for an adjournment of his trial for the purpose of trying to secure representation.[62]
This excerpt illustrates how an argument can be analysed into several propositions. In this case, one of the propositions is more extreme (and less able to be effectively argued for) than the other, and ultimately it was the second, ‘less absolute form of the proposition’, on which the judgment was based (see below). Mason CJ and McHugh J’s reasoning in this case proceeded to unpack the first, more extreme, proposition, and successfully argued against it in order to concentrate upon an argument for the second submission. The argument is also placed within the context of precedents:
However, the right to retain counsel and the right to have counsel provided at the expense of the State, the existence of which the applicant asserts, are not the same thing (53).
Standing in the path of the applicant’s argument are certain statements in the judgements in McInnis v. The Queen to the effect that the common law does not recognize the right of an accused to be provided with counsel at public expense. Barwick C.J. stated (54):
It is proper to observe that an accused does not have a right to be provided with counsel at public expense. He has, of course, a right to be represented by counsel at his own or someone else’s expense.
Mason J. stated (55):
Although I am in agreement with what the Privy Council said in the case of Galos Hired v. The King (56), concerning ‘The importance of persons accused of a serious crime having the advantage of counsel to assist them before the courts’, an accused in Australia does not have a right to present his case by counsel provided at public expense.
On the other hand, Murphy J., in his dissenting judgment, stated (57):
If a person on a serious charge, who desires legal assistance but is unable to afford it, is refused legal aid, a judge should not force to undergo trial without counsel. If necessary, the trial should be postponed until legal assistance is provided.
It is important to appreciate that these statements in McInnis were made in the absence of any argument directed to the existence of a right to be provided with counsel. The issue in McInnis was whether, on the particular facts of the case, there had been a miscarriage of justice by virtue of the trial judge’s refusal of an adjournment sought by the unrepresented accused. That issue was resolved in the negative but, in our opinion, the actual decision in the case did not depend upon an acceptance of the proposition, after consideration of the argument, that an indigent accused does not have a right to be provided with counsel at public expense and, therefore, the applicant need not seek to convince this Court that the decision should be reconsidered. The most that can be said against the applicant is that McInnis assumed the correctness of that proposition. In these circumstances, there is no strong reason why the Court should not reconsider the statements made in that case.
Students were also made aware of several other aspects of argumentation peculiar to the law. The first is the distinctive negative/positive language patterns concerned with teasing out ‘what is’ and ‘what is not the law’ and reflecting the fundamental adversarial nature of legal argumentation and the legal system. The second is the pattern of ratio decidendi (reality) and obiter dicta (hypothetical). These can typically be distinguished by their specific language patterns:
Ratio: it is decided, the result, held, the decision, the judgement/outcome; in my opinion.
Obiter: but if, whether, on different facts, would, in my opinion
Ratio—the judgment—includes non-hypothetical concrete features, e.g. statements, simple past verb and judgment cue words:
In our view, the trial judge’s failure to adjourn the trial resulted in an unfair trial and deprived the applicant of a real chance of acquittal. ...
In the result, we would grant special leave to appeal, allow the appeal, set aside the conviction and order a new trial.[63]
Obiter includes linguistic signals of hypotheticality (e.g. modality, conditionality, and questions):
In addition, recognition of an absolute right to counsel provided at public expense would create its own problems. First, the court would logically be driven to decide whether such a right to counsel entails the right to the ‘effective assistance’ of counsel, as it is called in the United States. That is, if an accused has a right to counsel, does he or she have a right to demand counsel of a particular degree of experience and who can conduct the defence ‘effectively’? How could such a right be monitored properly by the trial judge?[64]
One of the issues that concerned the authors was reaching the appropriate audience. The course was offered on a voluntary attendance basis. The first session was well attended. However, the later two sessions had poor showings, despite the material being directly linked to assessment tasks. We considered there to be a number of reasons for this:
A similar course was run as part of the compulsory lecture series in first semester 1999 in Legal Institutions, the partner first year course. The reason for doing this was to capture the audience. However, there was some hostility to this approach by students who felt that they ‘did not need it’ in that it was too basic.
The better approach would seem to be to offer similar programs as part of a first year unit, taught by law teachers in the small group context. This raises its own problems, particularly the need to ‘train’ law teachers in this form of ‘skills’ teaching. The fundamental issue is how highly valued is the skill of critical reading? It is the authors’ view that it is so foundational that students should attend such courses to ensure a basic level is attained. There will undoubtedly be a complaint by some that they do not need such training. However, there is always the Schon[65] view that merely bringing the subconscious to the conscious is an important learning process. Even the ‘better’ students could then gain from the process.
While the body of literature dealing with the skills involved in critically reading legal texts is relatively limited, specific studies referred to in this article point to the benefits of explicit teaching of these skills as a way of building up a picture of the legal view of the world and of fast tracking students in their acquisition of expertise in the area. Indeed, the limited nature of the literature available reflects a general lack of focus on reading skills which is particularly striking in a subject area and a profession which has language and the manipulation of language as its core business. Workshops such as the ones described in this paper are a first step towards the acknowledgement that the development of critical skills in reading legal texts is inextricably linked to the development of highly valued subject specific expertise, and that legal teachers have a responsibility towards the development of subject literacy in their students.
[1]Senior Lecturer, Faculty of Law, UTS, Sydney.
[2]Learning Assistance Centre, University of Sydney.
[3]Nanyang Technological University, Singapore.
[4]Learning Assistance Centre, University of Sydney.
[5]Llewellyn, K.N., Bramble Bush, Oceana Publications, New York, 1960.
[6]MacCrate, R. ‘Preparing Lawyers to participate effectively in the Legal Profession’ (1994) 44 Journal of Legal Education 89. This Report insitigated by the Section on Legal Education of the American Bar Association titled ‘Report of the Task Force on Law Schools and the Profession: Narrowing the Gap, Legal Education and Professional Development—An Educational Continuum’ made a significant impact on the way US law schools view the role of skills in legal education.
[7]Le Brun, M. and Johnstone, R., The Quiet (r)evolution, Sydney, Law Book Company, 1994.
[7]Le Brun, M. and Johnstone, R., The Quiet (r)evolution, Sydney, Law Book Company, 1994.
[8]Priestley, L.J., Uniform Admission Requirements: Discussion Paper and Recommendations, Sydney, Centre for Legal Education, 1994.
[9]Candy, P.C., Self Direction for Lifelong Learning, Joseey-Bass, San Francisco, 1991.
[10]Gibbs, G., Hebeshaw, S. and Hebeshaw, T., 53 Interesting Things To Do in Your Lectures, Bristol, Technical Educational Services, 1992.
[11]Candy, P.C., n.9, p.334.
[12]Twining, W., ‘Legal Skills and Legal Education’ (1988), 22 The Law Teacher 4, p.p.13.
[13]Candy, P.C. n.9, p.334.
[14]Twining, W., n.12.
[15]Fajans, E. and Falk, M.R., ‘Against the Tyranny of Paraphase: Talking Back to Texts’ (1993) 78 Cornell Law Review 163, p.184.
[16]Lundeberg, M.A., ‘Metacognitive Aspects of Reading Comprehension: Studying Understanding in Legal Case Analysis’ (1987) 22 Reading Research Q 407.
[17]Riley, A., ‘The Meaning of Words in English Legal Texts: Mastering the Vocabulary of the Law—A legal Task’ (1996) 30 The Law Teacher 68.
[18]Riley, A., Ibid, p.75.
[19]Candy, P.C., n.9.
[20]Ramsden, P. ‘Studying Learning: Improving Teaching’ in P. Ramsden (ed.), Improving Learning: New Perspectives, London, Kogan Page, 1988, p.21.
[21]Davies, M. ‘Reading Cases’ (1987) 50 Modern Law Review 409, p.412.
[22]Phelps, T. ‘The New Legal Rhetoric’ (1986) 40 SW LJ 1089.
[23]Riley, A., n.18, p.68.
[24]Weinstein, C.E. and Rogers, B.T, ‘Comprehension Monitoring as a Learning Strategy’ in D’Ydewalle, G. (ed.), Proceedings of the Twenty-Third International Congress of Psychology of the International Union of Psychological Science, Acapulco, September 2–7, Vol. 3: Cognition, Information Processing and Motivation, Amsterdam, North Holland, 1985, cited in Candy n 4, Enright, C. Studying Law, Federation Press, Annadale, 1995, p.507.
[25]Parkinson, P. Tradition and Change in Australian Law, Law Book Company, Sydney, 1994.
[26]Ibid 21, p.235.
27Davies, M. n.7.
[28]Le Brun, M. and Johnstone, R., n.7.
[29]F. Martin, ‘Integration of Legal Skills into Curriculum of the Undergraduate Law Degree: The Queensland University of Technology Perspective’ (1995) 13 Journal of Professional Legal Education 45.
[30]L. J. Priestley, n.8.
[31]R. McCrate, n.6.
[32]Bottomley, S. and Parker, S., Law in Context, Federation Press, Sydney, 1997.
[33]Davies, M. Asking the Law Question, Law Book Company, Sydney, 1994.
[34]Laster, K., Law as Culture, Federation Press, Sydney, 1997.
[35]Hunter, R., Ingleby, R. and Johnstone, R., Thinking About Law Perspectives on the History, Philosophy and Sociology of Law, Allen & Unwin, Sydney, 1995.
[36]Chisholm, R. and Nettheim, G. Understanding Law, Butterworths, Sydney, 1997.
[37]L. Waller, An Introduction to Law (seventh edn), Law Book Company, Sydney, 1994.
[38]Enright, C. Studying Law, Federation Press, Sydney, 1995.
[39]Morris, G., Cook, C., Creyke, R. Geddes, R. and Holloway, I., Laying Down the Law. The Foundations of Legal Reasoning, Research and Writing in Australiai, Butterworths, Sydney, 1996.
[40]C. Engiht, n.38.
[41]Fajans, E. and Falk, M.R., n.15 p.192.
[42]Enright, C. n.38 p.506.
[43]Fajans, E. and Falk, M.R., n.15 p.182.
[44]Candy, P.C., n.9 p.334.
[45]Bloom, B.S. Engelhart, M.D. Furst, E.K. Hill, W.H., and Krathwohl, D.R. Taxonomy of Educational Objectives: Cognitive Domain, Mckay, New York.
[46]Candy, P.C., n.9.
[47]Martin et al, ‘Students’ Experience in Year 12 and their Adaption to Higher Education’ (1989) 11 Research and Development in Higher Education 38.
[48]P. Ramsden and E. Martin in N. and Tait (eds), Effective Learning and Teaching in Higher Education, University of Edinburgh Press, Edinburgh, 1992, p.721.
[49]Le Brun, M. and E.E. Clark, ‘The Growth of Legal Education in Australian Secondary School: Implications for Tertiary and Secondary Legal Education’ (1989) 1 Legal Education Review 217.
[50]Gallagher, J.J. and Tamir, P., ‘High School Prepartion and Study in College’ (1980) 5 Assessment and Evaluation in Higher Education 168.
[51]Students who enrol directly from high school (or after deferred entry).
[52]Eggins, S., An Introduction to Systemic Functional Linguistics, Pinter, London, 1994.
[53]Christie, F., ‘The changing face of literacy’ in F. Christie (ed.), Literacy for a Changing World, Australian Council for Educational Research, Melbourne, 1990, p.22.
[54]Bhatia, V.K., Analysing Genre: Language Use in Professional Settings, Longman, New York, 1993.
[55]Kolb, D.A., Experiential Learning: Experience as a Source of Learning and Development, Prentice Hall, New Jersey, 1984.
[56]Nathanson, S., ‘Developing Problem-Solving Skills’ (1994) 44 Journal of Professional Legal Education 215, p.219.
[57]Ramsden, P. Learning to Teach in Higher Education, Routledge, London, 1992.
[58]Bottomley, S. and Parker, S., Law in Context, Federation Press, Sydney, 1997, pp. 5–6.
[59]Parker, S., ‘Change Responsibility and the Legal Profession’ in S. Parker and Sampford, C. (eds) Legal Ethics and Legal Practice: Contemporary Issues, Clarendon, Melbourne, p.384.
[60]Cowdery, N., ‘Justice in Pursuit of Lawyers’, address, p.the St James Ethics Centre, 26 August 1997. Course reader for Law, Lawyers and Justice, 1998, pp. 1–7.
[61]Ibid, p.4.
[62]Dietrich v R [1992] HCA 57; [1992] 177 CLR 292, extract 292–326, Mason CJ and McHugh J.
[63]Ibid.
[64]Ibid.
[65]Schon, D., Educating the Reflective Practitioner, Jossey-Bass, San Francisco, 1986.
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