LL109 Introduction to the Legal System - Cheat Sheet covering All Units, Lectures, and Reading (First)
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Course
LL109 Introduction to the Legal System (LL109)
Institution
London School Of Economics (LSE)
COMPLETE SUMMARY for LL109's Introduction to the Legal System! Students have obtained a first and high 2:1 with these notes, which include lecture notes, core reading, further reading, and case notes. Everything you need in one set of concise, comprehensive notes!
TOPICS INCLUDE:
1. Theories ...
Theories of The Trial and Court Based Adjudication
• ‘The function of the trial goes way beyond the adjudication of a particular dispute between two parties.’ Discuss’
(2011)
Adjudication
Introduction
1. The authoritative settlement of disputes through the application of legal rules (Phil Harris)
2. A process in which a neutral third party imposes an authoritative and principled decision on the disputants which
is supported by a reasoned opinion
3. Modern government inclined towards dispute resolution which are less costly, speedier, less adversarial and
better able to repair relationships (Stychin and Mulcahy)
4. Woolf Reports published in 1995 and 1996 heralded a radically different approach to the resolution of disputes
within the English legal system
5. Private mechanisms and institutions which mirror the state’s attempts to prevent or resolve disputes (Cownie et
al.)
6. Common Law: orientation towards judicial precedent and adversarial process
7. Civil Law: orientation towards code based principles and inquisitorial process
The Vanishing Trial
1. Invoking the law to resolve disputes merely perpetuates the conflict and polarises the disputes instead of
resolving the particular problem (e.g. contractual agreements)
2. Arbitration commonly undertaken in the commercial field, refusing to bring their disputes to the public sphere
3. Reasons why disputes do not find their way to court
a. Naming: difficulty in recognising what has gone wrong
b. Blaming: inability to identify the party/parties who should bear responsibility
c. Claiming: refusal to voice out and challenge another party (e.g. overlooking of breaches in long-term
partnerships, difficulty in challenging a professional opinion)
d. Shaming? Refusal to embarrass another party
e. ‘Costs rule’ a risk that unwilling parties would choose to settle instead
Adjudication In Context
1. Importance of settling dispute through concession or compromise is seen in the way most disputes in society are
resolved by informal means; rather than invoking the law which is seen as having the effect of perpetuating the
conflict and polarising the disputants instead of resolving the particular problem (Phil Harris)
2. Parties choose whether or not they will use dispute resolution agencies, accepting their jurisdiction and are
obliged to take part in proceedings whether they want to or not (Cownie et al.)
3. Dispute resolution agencies must operate within the shadow of the law
a. Cannot do that which is illegal without running the usual risks of civil or criminal action
b. In the UK, the Jewish Beth Din, a court established under Jewish religious law, requires those who wish
to use it to accept the provisions of the Arbitrations Act 1996
Constitutional and Social Functions of Courts
Adjudication/Resolving Disputes Between Parties
1. Provides for the redress of citizen grievances
2. One of the core rights enshrined in the Magna Carta and this obligation has traditionally been satisfied by the
adjudication of disputes in public courts (Stychin and Mulcahy)
3. Allows punishment to be imposed and civil wrongs to be righted after a factual analysis of what actually occurred
4. ‘Received View’ Theory of the trial (Robert Burns)
a. Sees the trial as a necessary institutional device for actualising the Rule of Law in situations where there
are disputes of fact
b. Trial is designed to guarantee that the trier of fact will ‘follow the law’
Promotes The Rule Of Law
1. Rule of Law requires a process for making factual determinations and the legal system must make provisions
for conducting orderly trials and hearings, containing rules of evidence that guarantee rational procedures of
inquiry (Rawls)
2. ‘Radiating effect’ of established rules and precedents (Galanter)
3. Factual accuracy in trials; allows individual cases to be justly decided without any bias or manipulation of facts
4. Importance of the Rule of Law (Robert Burns)
a. Substantive Legitimacy; ensuring that democratic judgment, constitutionally structured and channelled,
will be brought to bear on individual cases
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, b. Prevents abuse of power: prevents arbitrary decision making as individual government actors are
limited by the Law’s generality and relatively fixed meanings, certainty and foreseeability
c. Protecting the liberty of the citizen; allows the citizen, through his voluntary choices, to control the time
and place the coercive engines of government may be brought to bear on him
d. Principle of Regularity; precept that similar cases be treated similarly (consistency)
Imposing Factual Accuracy (Robert Burns)
1. For the individual case to be justly decided, facts must be accurately determined and available in a form that will
allow the preferred norms to be ‘applied’
2. Prevents manipulation of facts by any government official such that they would be unconstrained by legal norms
3. To treat similar cases similarly; without it, legal results will be distributed randomly and without regard to
similarities and differences among real-world situations
Enforces Civil Justice (Lord Woolf)
1. Essential to the maintenance of a civilised society as the law safeguards the rights of individuals, regulates their
dealings with others and enforces the duties of government
2. Individuals entitled access to seek remedy for the adverse effects of a breach of public duty
3. Done via courts of justice which every citizen has a constitutional right of access to obtain remedy (Lord
Diplock)
Characteristics of the Trial – Distinguishing Trials in Civil Legal Systems
Adversarial and Inquisitorial Systems (Farrar and Dugdale)
1. Adversarial Adjudication (courts in the UK)
a. Proponents of the Common law believe that it is the embodiment of procedural justice (McEwan)
b. Gives control of fact collection and presentation to the parties and the lawyers, does so in a way that is
favourable to their position in court (turn taking)
c. Witnesses are perceived to ‘belong’ to those who select, call and pay them
d. Principle of orality and public nature: all arguments in court should be made in the presence of the
public, who can then hold the judge accountable for their decisions, fundamental assumption of due
process and increased legitimacy
e. Minimalist judge acts as umpire, will not intervene even to clarify witness’s answers or correct a wrong
argument, and will base his decision on the questions/evidence put forth by both sides
f. Zero Sum: a ‘winner’ and ‘loser’ based on who has made the more convincing argument
g. Imposition of decision: binding decision of the judge, back by power of the State
2. Inquisitorial Adjudication (e.g. Tribunals in the UK/civil legal systems)
a. Adjudication body has considerable control over the way evidence in collected and presented (e.g.
prosecutor/judge interviewing witnesses before a trial)
b. More flexibility in the admissibility of evidence, leads some to suggest that it is the process more
focused on finding the truth, as compared to the complex evidence rules in the adversarial process
c. Judge not merely an umpire in the trial but an active participant
d. Close relationship of judge and prosecutor; former can intervene/ask questions alongside latter
3. Difficulty in separating the two in reality (McEwan)
a. Legal systems change over time and few are organised exclusively around one model
b. Legislative reforms in the pursuit of efficiency and reduced cost chip away at the purity of the
adversarial model across Britain
c. Inquisitorial systems increasingly introducing adversarial elements with Germany abolishing the
examining magistrate in 1975, Italy in 1988
d. Could it be a case that civil and common law jurisdictions are evolving simultaneously from their
opposite ends of the spectrum to harmonise naturally into a uniform, ‘mixed’ system?
Rise of Adversarial Ideal (Why the Adversarial is so Important in an English Context)
1. Inquisitorial approach preferred in the past as lawyers were seen to slow down proceedings – parties were
assumed to know the case better and could provide a more accurate relating of facts
2. Reluctance of lay judiciary to get involved in the intricacies of the case being argued (Mulcahy)
a. Employment of lay adjudicators who have difficulties in dealing with technical or complex issues
b. Devolution of responsibility for the technical aspect of cases gradually evolved into a procedure
dominated by advocates and their cross-examinations
c. Parties and advisers are now able to retain control over the gathering of information
3. A reflection of political ideology of the State
a. Principles of utilitarianism and the glorification of the autonomous individual preferred to keep the state
(judicial system) away from the parties and act as a mere umpire in the proceedings (Damaska)
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, b. No coincidence that increasing reliance on adversarial methods occur in the same year as increasing
adherence to the principles of utilitarianism and the glorification of the autonomous individual
(Mulcahy)
4. Feminist analysis
a. Adversarialism seen as a masculine process and an extension of the suppression of the feminist voice
within the contemporary legal culture
b. Characterised by its ‘high octane’ masculine values like performance and control, as opposed to the
feminine approaches to dispute resolution (Brown)
Trial by Jury
1. The essence of the jury trial in England and Wales the idea that 12 people are drawn at random and, without
training, asked to assess the factual circumstances that surround a particular case (Cownie et al.)
2. Juries Act 1825 – required as a qualification for jury service that a person should be a property owner or a
householder
3. The jury not there to find truth, but rather, to validate truth (Bankowski)
Advantages of Trial by Jury
1. Described as ‘the lamp that shows freedom lives’ (Lord Devlin, former Lord of Appeal in Ordinary)
2. To the public, trials by jury attract high confidence ratings and promotes civic engagement (Ministry of Justice
study 2009)
3. Prevents the application of unpopular laws and allows truth to be established against a background of community
values and sentiment (Cownie et al.)
4. Juries have a democratic role to play and represent community values even sometimes when they run counter to
the dictates of law
Criticisms of the Jury (Cownie Et Al.)
1. They are not merely legally untrained, but since they sit as jurors for only a short time they do not even acquire
the knowledge that comes with experience (as opposed to lay magistracy)
2. Blamed for being too quick to acquit, basing decisions of a-rational or irrational considerations
3. Often seen to be a homogeneous group of people from similar backgrounds and mind-sets
a. ‘Male, middle aged, middle minded, and middle class’ (Lord Devlin, Hamlyn Lecture 1956)
4. Juries may not be able to represent a single community – randomly selected and this may be problematic in the
context of a pluralistic multi-cultural society
5. It leaves at risk the person who stands outside the community – a jury who adjudges the defendant’s actions
guilty because they live outside the self-same community morality although they and other objective observers
would say that they act within the law
Rise of Adversarial Trial – Impact on Role and Function Jury
1. Muting of the Jury (Langbein)
a. Lawyerisation of the trial had limited the scope of the jury’s actions
b. In the age of lawyer free trials, jurors not only questioned witnesses, they also asked for further
witnesses to be summoned, and volunteered information about persons, places and commercial
practices
c. Now, when a juror’s observation entailed a statement of fact about a person or an event, it amounted to
an unsworn testimony
d. The system of adversary presentation of proofs was antithetical to non adversary initiatives in adducing
the facts, whether from judge or from jurors
e. Modern day trial sees juries weighing evidence and testimony to determine questions of fact, while
judges usually rule on questions of law (Stychin and Mulcahy)
f. Criminal juries now decide less than 1 per cent of all criminal cases in England and Wales although
they do try the defendants charged with the most serious criminal offences
2. Continuing significance and constitutional importance of the jury (Stychin and Mulcahy)
a. Since 2004, changes to the Criminal Justice Act have been introduced to compel previously exempt
people such as judges and lords to fulfil their duties to serve on juries
b. In 2005, Lord Falconer published a consultation paper which aimed to discover what more could be
done by government to help jurors perform their role
c. In 2007, the government tried to further limit the use of juries via the Fraud (Trials without jury) Bill
but this was blocked by the HL due to the jury’s contribution to the preservation of the liberty of the
individual and to the legitimacy of the Government
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, Bargaining in the Shadow of the Law – Dispute Resolution
Introduction
1. Most cases in the litigation system are either abandoned or settled prior to adjudication; Negotiation/Plea
Bargaining
a. Over 90% of claimants settled their claims out of court (Law Commission study)
b. One study found that 97% of successful personal injury cases settled out of court (Genn)
c. Often occur in conjunction with an assessment on the art of both sides of the strength of their case
where they to have it adjudication
2. New inducements to settle
a. Woolf Reforms and inducements to mediate
b. Legal aid reforms
c. Private ordering
3. Negotiated Settlements/Out-of-court settlement
a. Agreements in which the claimant in civil cases undertake not to pursue the case any further in exchange
for payment or another remedy
b. Agreement usually expressed in a written contract which is enforceable in the courts
c. Not a separate phenomena from adjudication
4. Plea Bargaining
a. Equivalent process in the criminal justice system
b. R v Goodyear [2005]: removed the ban in R v Turner [1970] and defendants could now request an
indication from the judge of their likely sentence. This is binding and judges cannot give a higher
sentence thereafter
c. Charge Bargaining: Agreements between prosecutors and defence lawyers that the defendant plead
guilty to some charges on the basis that the prosecutors drop the remainder; guilty plea to a lesser charge
on the indictment is accepted in return for the prosecution not proceeding with the more serious
charge(s)
d. Guilty pleas attract a lighter sentence: The practice whereby the accused enters a plea of guilty in return
for which he will be given some consideration that results in sentence concession
e. In some cases the discount will operate not only to reduce the severity of a particular form of sentence
but also to alter the type of sentence (e.g. custodial to non-custodial)
Relationship between Litigation and Negotiation
1. ‘Litigotiation’ (Galanter, American academic)
a. ‘There are not two distinct processes, negotiation and litigation; there is a single process of disputing
in the vicinity of official tribunals that we might call litigation, that is, the strategic pursuit of a
settlement through mobilising the court process’
b. Conduct of negotiations and the path to settlement are largely dictated by court procedures – no separate
settlement procedure
c. Settlement is achieved by preparing for trial – going through the ritualistic procedures determined
appropriate for adversarial contest in open court
2. Settlement is so pervasive that it has been argued that in civil litigation, cases resulting in contested hearings are
considered as deviant (Genn)
a. Conducted largest study of paths to justice in the UK (just over 4000 participants)
b. Only 20% of justiciable issues lead to any type of legal proceedings
Advantages of Settlement (Stychin and Mulcahy)
1. Useful for those in need of funding for expensive lawsuits
2. Constitute a quicker more predictable end to the dispute, saving court time and reducing costs
3. In civil contexts, eliminate the risk of having to pay opponent’s costs should one lose a case
4. Lack of quality and amount of evidence which may impede a court hearing
5. Greater flexibility of judgments or solutions reached by the parties
• Dispute resolution makes settlement appear a perfect substitute for judgment by trivialising the remedial
dimensions of a lawsuit, and also by reducing the social function of the lawsuit to one of resolving private
disputes; settlement appears to achieve the exact same purpose as judgment – peace between the parties – but at
a less expense to society (Fiss)
Arguments against Bargaining in the Shadow of the Law
1. Dangers of settling disputes away from courts (Fiss)
a. Purpose of adjudication should be understood in broader terms, not merely to achieve peace between
parties
b. Adjudication uses public resources and is administered by strangers not chosen by the parties but public
officials chosen by a process which the public participates
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