2468.20 - Case analysis
Bachelor degree or equivalent with adequate component of law.
This course how the law works in the adjudicative stages, and how legal decisions are reached and justified. Against this background the purpose of the course is to provide students with knowledge of and ability to read and analyze court decisions and other adjudicative decisions, categorize these into varying writing styles and modes of argumentation, and thereby enable the students better to understand the connection between the law in general and the law applied to the individual cases.
The course emphasizes the ability to read and analyze judicial opinions and other adjudicative opinions, and different styles and methods to write and argue these opinions. The course will mainly cover these concrete topics: - The opinion or decision in a broad sense (also called judicial deliverance) and its different elements. - The public announcement (or publications) of court opinions and the significance thereof. - The rule or the principle upon which the opinion rests (ratio decidendi) and the part of the reasoning that is less decisive (obiter dicta). - Judicial opinions as legal sources. - Logic and theory on argumentation. - Legal argumentation. - Different approaches to judicial reasoning, like minimalism, and the difference between deductive/syllogistic and analogical ways of reasoning. - Different writing styles, as the difference between formalistic (or purity of) style as opposed to pragmatic (or impurity of) style. - Unanimous decisions and dissenting opinions. - Foreign courts and their opinions. - Other adjudicative institutions than courts. - The giving-reasons requirement in different perspectives.
Learning and teaching approaches
Between 40 and 50 hours. The course consists of lectures, student presentations, critical discussion and application of assigned readings. In addition several short written exercises for submission will be part of class teaching.
After completing this course, the students shall be able to: - Explain the importance of public accessibility of judicial opinions. - Read judicial opinions. - Analyse judicial opinions (or judicial deliverances) and identify different constitutive elements. - Explain the importance of judicial opinions as sources of law. - Identify the ratio decidendi of an opinion and its obiter dicta and explain the difference. - Have knowledge of basic logical theory and theory on argumentation. - Understand how judicial argumentation is played out in the intersection between deductive argumentation, analogical argumentation and pragmatic multifacetted argumentation. - Evaluate the importance and dilemmas of unanimous versus dissenting opinions for the authority and legitimacy of judicial opinions. - Have knowledge of foreign courts and non-court adjudicative institutions and their styles and ways of reasoning. - Classify actual judicial opinions according to different writing styles, as formalistic (or pure) style as opposed to pragmatic (or inpure) style. - Classify actual judicial opinions as either minimalist or maximalist and evaluate the relative (de)merits of the different approaches - Describe the judicial reason giving requirement and evaluate the significance thereof for judicial legitimacy. - Reflect on a possible difference between authentic versus constructed (or referred to) ratio decidendi. - Evaluate methodological considerations that might be spesific to reason giving at the highest appellate level. - Present and formulate knowledge and arguments correctly and succinctly in eloquent and correct language.
The exam has two components. A bounded home assignment from middle to early second half of the course will count for 1/3. The home assignment will be of minimum 7 pages length (each page 2.400 characters with spaces) with at least one week duration (details we be supplied in the syllabus). A final written 5 hour exam at the end of the course will count for 2/3. Only one grade will be given. It is a precondition for passing the exam that both partial exams can be considered passed. It is also a precondition for attending exam that the earlier mentioned short exercises are submitted and approved by teacher (Number and length of exercises for submission will be prescribed in further detail in the syllabus).
Bárður Larsen & Kristian Joensen: Materials on Case Analysis, mainly covering judicial opinions, scholarly articles and book chapters. Required reading is between 400-500 pages.