Tuesday, June 29, 2010

Back in town...

Apologies for a bit of a delay since my last post, I was on holiday and did not want to risk getting sand in my computer on the beach. I did however manage to mix in a bit of studying with all the sun and fun. I took one of the textbooks from university with me - Politics of the Common Law. I have to say that overall I am quite disappointed with it. I will admit that I managed to get only about 60% of the way through it but still it was rather a poor read. I would tend to blame the editors rather than the authors however for allowing the book to get out of hand. For example - there is a lot of talk about what is going to be covered, and then the material is not covered until much later. Not much value in continuing to tell you what is going to be covered, better to just get on with it. Also, how many times do we have to be hit in one chapter with the word "trope"? I am the first to admit that I am not 100% sure of the meaning but do I still need to be assaulted 5 times in the course of 20 pages? Finally, there is something in the book that I really find inexcusable - the use of the first person singular "I". Far too many personal musings of one of the authors which serves no purpose other than to take us down memory lane to his time at university. Really a big disappointment. I should say that the book is not entirely without merit, I do really enjoy a number of the in-depth case analyses which they present. Overall however I can not really see the merit of this book being included in the curriculum, I would hate to speculate that because the authors also occupying places of authority in the university they are motivated by some self-interest, I will leave that up to you to decide.

Wednesday, June 16, 2010

When the doors open...

So yesterday I received the famed "box" from university. As I might have said, this is forms the basis for my studies of the LLB. It contains study guides for my courses, text books, additional reading materials, online registration material for the courses and libraries, etc. I have to admit the box was a bit smaller than I expected and did not contain all of the material I was hoping for but this is merely due to the fact that I've registered so early. I will not actually sit my first exams until May of next year so many items are not yet prepared for students I would imagine. I did however get a few study guides, textbooks and the online registration materials. All of this is more than enough to keep me very busy for several months.

I've had a look inside the university's virtual learning environment for students and I have to say that it looks brilliant. Lot's of information there, the full learning materials for the course plus various online presentations which I did not know existed. Really good stuff. Also I've had a look at their online library - absolutely filled with databases and legal material. I used to work in a legal library when I was doing my undergraduate degree ages ago so I have some familiarity with the sources but is so full that I expect it will take me some time just to get oriented with what is there and how I can best use it. I did manage to find a journal article that Ashworth had written about ASBO's that I could not find elsewhere so I will consider than my small victory for the day.

Next post as promised I will try and do a rebuttal of the idea that fixed precedent is a valuable principle...

Monday, June 14, 2010

Now you see it, now you...

Here is an interesting quote from Slapper & Kelly: “These considerations raise the question that if the law, as represented in either common law or statute law, is out of line with current social beliefs and practices, then should it not be incumbent upon the judiciary to decide cases in line with the currently prevailing standards, even if this means ignoring previous decisions and interpretations?” This cuts to the heart of two issues of fundamental importance in common law: whether or not courts create law and principle of stare decisis.

In the UK, the Parliament is said to be sovereign. Law making powers are given to this elected body. While Parliament can delegate the power to make laws, such power has not been given to the judiciary. Yet, various methods of interpretation devised by the judiciary and tacitly accepted by the legislature allow the court leeway in applying the law. Resistance from the legislature usually occurs when the court is seen as “filling in the gaps” which they believe exist in the law. The doctrine of stare decisis provides that once an authoritative court has interpreted the law, the other courts within the judiciary must interpret similar cases in a similar manner.

However, what is the practical effect when the court reverses itself? Until 1966 and the Practice Statement [1966] 3 All ER 77 issued by the Lord Chancellor, Lord Gardiner, the court did not. It was the responsibility of the legislature to correct what it believed were interpretative errors by the courts. Indeed, Parliament showed that it was willing to address not only interpretative errors but also judgments which it disagreed with by passing new laws which the court was then obliged to recognize and apply, even ones with retroactive effect (see Burmah Oil Co Ltd v The Lord Advocate (1965)). Do not the courts themselves take on such authority when they reverse long standing precedents? If it has long been held by the courts that doing X is not a crime and then in one new case before it the court decides that social beliefs and practices have moved so far from the established precedent that they suddenly decided that doing X is in fact a crime have they not created a new law? What’s worse does it not appear that such a law was created with retroactive effect? The defendant had relative security that his actions at the time were legal. However does not the reversal of precedent belay such a claim? At least when Parliament creates a new law it usually not apply retroactively, people may adjust their behavior but in this case the defendant is held liable for actions which were previously not prohibited by law.

Interesting argument in favor of truly binding precedent, perhaps next blog will take the opposing view….

Thursday, June 10, 2010

After the sun is gone...

I've come to the realization that the bulk of my time for the LLB is going to be spent doing one thing - reading. The first few weeks have been filled with activity - enrolling, getting materials, meeting fellow students, putting together tools to study. I've done a good bit of reading but somehow it always seemed as a supplement to the other items, now I recognize that it is going to be the main focus going forward.

I have to say that it has been a real high getting back into school mode. It gives me a sense of freshness, optimism as I look forward to what comes, a feeling of excitement. I've always had such a feeling, even from the first days when I went to school as a child fresh with new clothes and school supplies. While the beginning is always a lot of fun, its when you actually dig into it and realize what lies ahead that the luster begins to fade.

It is now a bit more clear to me what to expect. The vast majority of the time will be spent alone with a book reading. I can only imagine how many hours I will spend this way. I've tried to look in the study materials to see how much I should study and the indications are something around 20 hours a week which I probably average now. I feel good about the amount which I have read over the past month or so. Even though it has been a bit eclectic it seems all to fit together. I suppose now the serious work begins and I need to start plowing through the material. I will try and start sharing some of the concrete cases and items that I come across in upcoming posts so you can see where my path takes me...

Tuesday, June 8, 2010

The elephant in the room…

One thing I am curious about is the new Supreme Court. I have to confess that none of the legal books which I have read so far have had much to say about this institution beyond the comment that it is due to be created in 2009. Through my own research on the net and also via articles in the law sections of a couple of British newspapers I’ve found that it was in fact opened at the end of 2009, is fully functioning, has heard many cases, and has delivered numerous judgments. However, most of what I’ve found does not really address the substantive issues of the court and its structure. Instead they seem to focus on the symbols of the court, the cost of the building and the pomp and circumstance associated with its opening. Almost nothing has gone into detail about the judges, the effect of removing the ultimate legal authority for the UK from the House of Lords to the Supreme Court. In fact the silence on this subject seems to be deafening. Obviously the reason I am thinking about this is due to the fact that all the learning materials point us to the Law Lords as the ultimate court of appeal. As this is no longer true and I would hate to be caught out by continuing to think of them as such. I suppose the key will be to search out sources that can provide information on the structural change and its effects. I guess they don’t call it ‘independent learning’ for nothing.

Friday, June 4, 2010

In sync...

One thing I really enjoy about the LLB studies are how all the pieces seem to fall together so well. No matter what I am reading it seems to have value and tie into several of the courses. For example, I'm working on the Slapper and Kelly book right now and it is really is clear and enjoyable. Much of the material overlaps with what is presented on the Open University's free internet courses on the law. In addition, I've had a look at a website which supports the Slapper and Kelly book and the material there also works brilliantly to build on what you read. Finally, I'm managed to find Slapper's column that he writes for The Times. It is a bit off-beat compared to what is found in the book (he writes about weird cases) but he manages to put an amusing turn on the material. All in all, it seems to be a strong foundation for learning.

In other news, out of the blue this week I heard from a friend who works in the finance department in a big law firm in London. It was great to catch up and he was also kind enough to pass me some information about the vacations schemes at his firm. I know it is most likely too early for me to be thinking about a vac scheme but I thought it was too good of an opportunity to pass up. I've got all the information and I will try and see what happens in the autumn. A number of firms have a one week programme around Christmas and that would be ideal. More articles to follow on this subject in the months to come.