COURSE MANUAL

LEGAL METHODS I

Course Instructors
Marco Traversa, Natasha Nayak, Rashmi Raman, Sunita Tripathy

SEMESTER I (Five year B.A., LL.B)

2014

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 CONTENTS

1. Part I

a. General Information...3

2. Part II

a. Course Description...3
b. Course Goals and Objectives....4
c. Course Intended Learning Outcomes....5
d. Grading of Student Achievement.....8

3. Part III

a. Readings.......9
b. Keyword Syllabus...10

4. Part IV- Weekly Teaching Outline

a. Week I-----Understanding the Law and its Sources...11

b. Week II---- Introduction to Legal Institutions and Processes.13
c. Week III---Introduction to Research: How to use a Law Library?
.14
d. Week IV--- Foundations of Modern Law
.................................................................15
e. Week V---Legislation and Subordinate legislation...16
f. Week VI--- Canons of Statutory Interpretation..17
g. Week VII---The Nature of the Judicial Process & the Doctrine of
Precedent..19
h. Week VIII The Nature of the Judicial Process & Role of Lawyering20
i. Week IX-- The Nature of the Judicial Process & Role of Lawyering21
j. Week X--- Judicial Law Making.22
k. Week XI Approaches to Legal Reasoning....23
l. Week XII---Revision .....24

5. Annexes ( Reading Materials)

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 Information on Legal Methods I offered by Jindal Global Law School
Semester 1 in 2014

The information provided herein is by the Course Coordinator. The following information
contains the official record of the details of the course.

Part I

Course Title: Legal Methods I

Course Code: LW1101

Course Duration: One Semester

No. of Credit Units: 6 credits

Level: Under-graduate level (Foundational)

Medium of Instruction: English

Pre-requisites: Nil

Pre-cursors: Nil

Equivalent Courses: Nil

Exclusive Courses: Nil

The above information shall form part of the University database may be
uploaded to Dspace into the KOHA Library system and catalogued and may
be distributed amongst the students of the first year BA., LLB and BB.,LLB
course if necessary.

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PART II

A. Course Description

This introductory course covers legal methods for students of law; one learns to critically
read statutes, cases and other legal and legally-relevant material, and to identify and
resolve issues that involve the law. The syllabus includes selected analytical legal
materials and aims to provide a familiarity with the context, syntax and grammar of law
that is vital to address situations that lawyers, judges and legal institutions have to
regularly engage with. Through the detailed study of selected legal materials, the course
also hopes to provide students of law with a picture of the different approaches,
attitudes, theories and philosophies that make law such an exciting subject of scholarly
studies.

Materials studied include classic and modern legal cases from the Indian, Anglo-
American and continental European legal systems in the fields of tort, contract, criminal
law, public law and property. In addition to working directly with selected original and
appellate decisions (and the arguments and pleadings involved in these), students will
also learn to use important texts and writings that hold a strong influence on
contemporary legal method and the law. A few of the cases and texts in the syllabus
have been specifically chosen to build a foundation for the sustained study of legislative
history, institutional roles, statutory interpretation, and legal reasoning.

Stories and literary excerpts, films, workshop-format interactions with experts, and field
trips to institutions will contribute to the holistic treatment of the subject matter.

B. Course Aims

The course
- seeks to develop skills that law students need for effectively researching and
using cases, statutes and other legal materials.
- provides familiarity with legal structures, processes, and institutions.
- fosters ability to identify, read, analyze and formulate substantive arguments in
favor of or against a legal proposition
- develops understanding of the processes of law-making by legislative, judicial,
administrative and informal law-making bodies
- Introduces court craft and legal reasoning
- Introduces the terminology, syntax and meaning of law through a step-by-step
systematic approach
- fosters ability to identify relevant information and distinguish it from irrelevant
information in a legal context
- introduces the structural hierarchy of values and norms in legal systems

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 - encourages legal reading and writing in a clear, coherent and critical manner

- develops an interdisciplinary perspective to the study of law and its role in our
lives

At the end of the course, the student will be able to:

- demonstrate an ability to locate, identify and analyze the sources of law in a legal
system
- conduct case law analysis, i.e. identify and understand the principles and policies
supporting the decision
- develop an understanding of the role of courts and legislatures and other
administrative organs
- approach legal issues in a structured manner and frame responses to the issues
as a lawyer would do.

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 C. Course Intended Learning Outcomes

Course Intending Learning Weight Teaching and Learning Assessment Tasks/Activities

Outcomes: Activities

By the end of the course students

should be able to:

Critically read court 50% Reading of relevant cases,

decisions, scholarly legal statutes, and other legal End-of-course in class
opinions, and other legal materials examination (50% of
marks)
material, construe statutes,
Students are expected
understand the principles and to read the wide Class participation and
policies supporting legal range of materials Tutorials (25% of marks
decisions in various contexts, included in the for attendance,
formulate substantive Course Manual or in presentations and
arguments in favor of or handouts. These participation- Class
against an identified legal materials include participation will involve
select text book class discussion, moots
proposition and, above all,
excerpts, edited case and informal
gain a familiarity of legal reports, unabridged presentations.)
terminology and the working cases, journal articles,
methods of some of the key selected legislations Assignments (25%)
legal systems. and lecture notes.
There is no principal
text book for this
course, although
students may find
Glanville Williams
Learning the Law
quite informative.
Lectures:
Students will acquire
basic knowledge on
how to read cases,
statutes, scholarly
writings and other
legal material, and
formulate arguments
for or against a legal
proposition.

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 Tutorials:
Students will be given
a fact situation based
on the topic being
discussed in class.
Students will be
required to critically
analyze the given law-
fact situation and
respond through
structured
presentations, class
discussions and
writing exercises.
Demonstrate an interest in an 30% Lectures:
interdisciplinary approach to Students will develop Students will be
law and acquire basic an understanding of evaluated through:
knowledge on legal reasoning interdisciplinary
and court craft. Students will perspectives on law Tutorials
be able to distinguish through the critical
relevant information from reading of various Assignments.
irrelevant one in various legal cases, book excerpts,
contexts. literary pieces, films Class Participation.
and law review
articles. Students will
be able to critically
explore and
strengthen ideas for
legal reforms and
practice through
these learning
activities.

Tutorials:
Students will be
involved in
presentations and
participatory verbal
activities in which
they will critically
evaluate issues and
concerns on selected
topics.

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 Apply the legal principles to 20% Lectures: Students ability to analyze
solve legal problems by: Students will learn and critically evaluate a legal
how to comprehend a problem and their ability to
- researching issues of Law, legal issue and to find solve the problem, will be
and apply legal rules tested through the following
- effectively communicating to a given means:
their solutions orally and in situation/case
writing. through background End-of-course
readings and case-law examination
analysis. The course
will also provide an Tutorials
introduction to legal
methods to study Class participation
Institutional roles,
juridical concepts,
and competing values
that animate legal
systems.

Tutorials:
Students will be
required to make
presentations on
problems and
questions allotted to
them and all students
will be required to
actively participate in
all tutorial
discussions.

D. Grading of Student Achievement

To pass this course, students must obtain a minimum of 50% in each of the coursework
and the examination elements of the assessment. Coursework for this purpose means
those ways in which students are assessed otherwise than by the end of semester
examination. End of semester exam will be in the form of a traditional 2-3 hours written
exam.

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Part III

A. Readings:

Unless otherwise indicated, all readings essential for this course are included in the
course manual.

Essential reading:
1. Glanville Williams, Learning The Law (11th edn.,) provided to every student.
2. Ian Mcleod, Legal Method (7th edn.,) provided to every student.

Supplementary Reading

An exhaustive reading list is provided under the section Weekly Teaching Outline.
However, a familiarity with the following reading materials will be desirable.

Books
1. Peter Strauss, Legal Method (Foundation Press, NY, 2005)
2. Salmond on Jurisprudence (12th edn)

Articles and Book extracts

3. Robert Cover, Violence and the word, 95 Yale L.J.1601.
4. Alec Stone Sweet, Western European Courts in Comparative Perspective in
Towards a Comparative Understanding of Judicial Review.

Acts/Statutes/Ordinances

Some familiarity with the following Legislations is desirable for a successful study of
Legal Methods I.

1. Constitution of India
2. General Clauses Act
3. Indian Evidence Act

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 B. Keyword Syllabus

This introductory course aims to familiarize students with using cases, statutes, and
secondary materials in their education. Much of the emphasis is placed on the general
structure of the law and legal methods. The detailed syllabus is as follows:

- What are the sources of law? What are the concepts and principles underlying
the law? What is the proper role of judges and how would they accommodate
competing values while adjudicating disputes?

- Introduction to Indias legal system, its organization and administration; Study of

the foundational aspects of the Indian legal system, its evolution as a common
law system, the role of the Constitution. The role of courts in the Indian legal
system in contrast with the roles of legislatures and other agencies; Comparative
aspects of other legal systems and legal traditions.

- Examination of different types of dispute resolution such as adversarial and

inquisitorial methods, rules of evidence; rules of procedure-civil &criminal,
burden of proof, etc.

- An introduction to logic: How to think like a Lawyer? How to make distinctions

between fact and law, material facts, etc? Introduction to forms of legal
reasoning (analogic, syllogistic, deductive and inductive) and their proper
application in the elaboration and application of legal resources.

- Statutes and Fundamentals of Statutory Interpretation. How to use the statutory

text and secondary legislation? To what extent preparatory material and
considerations of policy and equity influence the text? What are the canons of
statutory interpretation.

- Meaning and application of the concept of stare decisis; when and how courts
overrule precedents? concept of ratio decidendi and the techniques of
identifying and extracting the holding of a case; what is the importance of dicta
and how to use it properly?

- Judicial role in creating case law; how much creative power does- must should a
judge have?

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 - Legal Research- Legal skills in finding, using and citing various resources of law.

PART IV- WEEKLY TEACHING OUTLINE

LECTURE PROGRAMME

Teaching Lecture Topic

Week
1 UNDERSTANDING THE LAW AND ITS SOURCES
2 INTRODUCTION TO LEGAL SYSTEMS AND INSTITUTIONS
3 INTRODUCTION TO RESEARCH: HOW TO USE THE LAW LIBRARY?
4 FOUNDATIONS OF MODERN LAW :
5 CANONS OF STATUTORY INTERPRETATION AND PRECEDENT
6 STATUTES AND SUBORDINATE LEGISLATION
7 CASES DOCTRINE OF PRECEDENT

8 HOW TO PREPARE A CASE BRIEF?

9 APPROACHES TO REASONING AND ANALYSIS

10 BASIC CONCEPTS

PROPOSITIONS,ARGUMENTS,EXPLANATIONS,PARAPHRASING
11 REASONING : DEDUCTIVE, INDUCTIVE AND FALLACIES

12 REVISION

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 Week I

1.1 UNDERSTANDING THE LAW AND ITS SOURCES

In the first week, the focus will be on the different approaches to the concept of law,
justice and morality. The reading materials and discussions will introduce and explore
the key question of What is law? and will lay down the foundations for a general
framework for legal thought.

A useful starting point will be a discussion of the fictitious case of Speluncean explorers
authored by Lon Fuller. "The Case of the Speluncean Explorers," Harvard Law Review,
vol. 62, no. 4 (1949) pp. 616-645. Read this case carefully and consider which of Fullers
fictitious judges you would agree with. You may also consider:

1. What is the correct philosophy of law? That is, what is the law and how do we
know it?
2. What is the proper role of judges?
3. What is the relationship between justice, the law, and the various agencies of the
government?
4. How should judges rule in this case?

Essential readings:
1) Speluncean Explorers, Harvard Law Review, vol. 62, no. 4 (1949) pp.
616-645.
2) James Holland and Julian S Webb, Learning Legal Rules, (Oxford: 2010), 1-
7
3) Chapter 1 in GLANWILLE WILLIAMS, LE ARNING THE LAW (11th Edn).
4) Chapter 2 in SALMOND ON JURISPRUDENCE, (12TH Edn), pp. 109-140.
5) Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal
Theory, (OUP: 2009), 1-3
Recommended reading:

(1) Chapter 2 in Neil Maccormick, Legal Reasoning and Legal Theory (Indian edition),
pp 18-41.
(2) Carl F Stychin and Linda Mulcahy, Legal Methods: Texts and Materials (Sweet and
Maxwell, London: 2003), 1-19, 47-49
(3) HLA Hart, Positivism and the Separation of Law and Morals, 71 Harvard Law
Review 593 (1958)
(4) Leslie Green, Legal Positivism, Stanford Encyclopedia of Philosophy
(5) Manik Bandopadhyaya, The Thief (A short story)
(6) Saadat Hassan Manto, The New Constitution (A short story)

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(7) Ian Mcleod, Natural Law and Positivism in Context: the Case of the Speluncean
Explorers, in LEGAL THEORY, Palgrave Macmillan Law Masters (4th ed.,), pp- 34-
39.
(8) Orrin S. Kerr, How to Read a Legal Opinion: A Guide for New Law Students, 11
Green Bag Journal (1).
(9) Ian Mcleod, Natural Law and Natural Rights in English and European Community
Law, in LEGAL THEORY, Palgrave Macmillan Law Masters (4th Edn). pp-61-62.
(10) Chapter 1: Persistent Questions from HLA Hart in THE CONCEPT OF
LAW, pp. 1 17.
(11) Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in
Legal Reasoning.
(12) Martti Koskenniemi, "From Apology to Utopia", epilogue (2005) [to study
the indeterminacy thesis]
(13) Ronald Dworkin, Legal Rules and Social Theory, Yale Law Journal, 1972
(14) Aristotle, Posterior Analytics, 350 B.C.
(15) Aristotle, Nicomachean Ethics
(16) Aristotle, Politics, Book 2

*NOTE. There will be no tutorial in the first week.

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 Week II

2.1 INTRODUCTION TO LEGAL INSTITUTIONS AND PROCESSES

This session will provide an introduction to Indias legal system, its organization and
administration. Key attributes of a legal system will be identified and discussed, and
comparative perspectives on legal systems in other countries will be explored. A brief
introduction to the United Nations system and international law will also be included.

Fact finding and dispute resolution will be an important focus of this session. This
session will examine the role of various tools available to the courts and the litigants in
the discovery of facts. The students will be introduced to the process and methods of
collection of evidence; adversarial and inquisitorial methods, concepts of examination-
in-chief and cross-examination, etc.

Case discussion: K.M.Nanavati v. State of Maharashtra, AIR 1962 SC 605, which was the
last case in India to be tried under a jury system. Students will familiarize themselves
with concepts such as allocation of burden of proof, application of exception to a general
rule, process of collection and establishment of evidence, role of witnesses, acquittals
and convictions, etc.

Case discussion: French Cour de Cassation case (on complete reparation for injuries),
Cass. 2e civ., Feb 22, 1995, 1996 D. Jur. 69 discussion of this case will provide an
introduction to the continental civil law tradition.

Essential Readings:

(1) Cases mentioned above

(2) DD Basu, Introduction to the Constitution of India, (LexisNexis:2008), 32-
49
(3) Poonam Khanna, Judicial System in India in Towards Legal Literacy: An
Introduction to Law in India (Kamala Sankaran and Ujjwal Kumar Singh
ed., 2008), 27-44
(4) Chapter V: Fact Finding and Dispute Resolution in LEGAL METHODS,
Sweet & Maxwell.
(5) Introduction and Chapter 1 of Mirjan R. Damaska, The Face of Justice
and State Authority A Comparative Approach to the Legal Process, pp.
1 46.
(6) Constitution of India Preamble and selected articles.
(7) Upendra Baxi,"The Crisis of the Indian Legal System"
(8) United Nations Charter selected excerpts.
(9) Statute of the International Court of Justice selected excerpts.

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Recommended Readings:

(1) Franz Kafka, Before the Law (A short story)

(2) GLANVILLE AUSTIN, CORNERSTONE OF A NATION (excerpts and generally)

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 Week III

3.1 INTRODUCTION TO RESEARCH HOW TO USE THE LAW LIBRARY

This is practical module for introducing and familiarizing the student to the library
resources and training them on what are the tools for conducting legal research.

This week classes will be conducted in a workshop format, the following topics will be
covered in consultation with the Director of the Jindal Global Law Library.

a) Primary and secondary sources

b) Basic legal research and tools for Legal Writing: citation, reference, plagiarism

c) Convene library consultations in assorted groups of students across sections

d) Training regarding the e-resources

e) Class exercise

Recommended readings

(i) Research: Sources of Law from material available online on

http://www.aallnet.org/sis/lisp/research.htm,
http://www.library.uq.edu.au/law/research/strategy.html#3 and
http://www.vtstutorials.ac.uk/tutorial/law/?sid=2485947&itemid=12969.
ii) James Holland and Julian S Webb, Learning Legal Rules, pp 24-31

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 Week IV

4.1 THE FOUNDATIONS OF MODERN LAW

Law is widely considered to draw its authority from the powers of political institutions.
Others consider law to be grounded in judicial decisions and customary practice of
nations. For instance, the sources of common law have included judicial decisions and to
some extent customary practice occurring on a more local levelfor example, the
practice of merchants, businesses, etc.

Common law is a body of law which judges regard as authoritative and which draws its
force from prior judicial decisions. Common law judges write opinions that set forth the
facts of a controversy in considerable detail, and explain the reasoning process in
relation to the existing body of decisions that have led to their conclusions.
This session will discuss the nature and evolution of common law in India and other
Anglo-American legal systems and will compare it with civil law( e.g., the law of most
nations of Continental Europe).

Discussion of the case Priestly v. Fowler; also read the article by Michael Stein entitled
Priestly v. Fowler (1837) and the Emerging Tort of Negligence, 44 BCLR, 689.

Read M C Mehta v. Union of India (1987) and examine how the Supreme Court created a
doctrine of liability in respect of inherently hazardous activities in the background of the
rule in Rylands v. Fletcher (1868 LR 3 Ex 330).

For an introduction to the continental civil law tradition, the following cases may be
discussed: (1) Geman: W. v. B-M, Bundesgerichtschof, Sixth Civil Senate, 4 November
1953, 11 EBGHZ 151, (2) French: The Latour case, Conseil dEtat, 9 July 1948.

Essential Readings:
(1) Cases mentioned above.
(2) Chapter 2 in GLANVILLE WILLIAMS, Learning the Law (11th edn.), pp. 24-30.
(3) James Holland and Julian S Webb, Learning Legal Rules, pp 24-31.

Recommended reading;
(1) Reinhard Zimmerman, Civil Code or Civil Law Towards a New European Private
Law, 20 SYRACUSE J. INTL L. & COM. 217 (1994).

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 Week V

5.1 LEGISLATION AND SUBORDINATE LEGISLATION

The class will examine how legislative activity is organized in India, particularly in the
framework of the Constitution of India. This session will combine elements on case law
analysis, reading statutes and statutory interpretation.

Articles 245 to 255 of the Indian Constitution make clear distinction between the
legislative powers of the Union of India and the States. The Indian Parliament has the
exclusive power to make laws with respect to any of the matters included in the Union
List and the Seventh Schedule, whereas the States legislatures exercise authority over
the matters included in the State List.

Case discussion: (1) V. Sudeer v. Bar Council of India (1999) 3 SCC 176 for the
proposition that delegated legislation( in this case, pre-enrolment regulation legal
trainees) that is beyond the rule making powers under the parent act is invalid; (2) State
of Tamil Nadu v. Sabanayagam and another (1998) SCC 318- where the Supreme Court
discusses the procedure for exercising conditional legislative power; please read Soni
Babubhai v. State of Guajrat, to understand the prospective application of criminal
statutes.

Right to Information Act, 2005 (available in the Course Manual).

Essential Readings:

1. Cases mentioned above

2. Chapter 3, GLANVILLE WILLIAMS, LEARNING THE LAW (11th Edn), pp. 44-46.
3. Legislation- Passage of Legislative Proposals in Parliament [extracts from the
Parliament website: http://164.100.47.132/LssNew/Legislation/Legislation.aspx].

Recommended reading:

(1) Anirudh Prasad, Centre-State Relations in India : Constitutional Provisions,

Judicial Review and Recent Trends (Deep Publications Pvt. Ltd., New Delhi, 1985)
Excerpts

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 Week VI

6.1 CANONS OF STATUTORY INTERPRETATION

Are there any canons of statutory interpretation?

Pluralists approach to Interpretation: Please read Kent Greenawalts A Pluralist

Approach to Interpretation (excerpts from Peter Strausss Legal Method). This article
provides in a capsule summary of seven dimensions of choice that characterize the
interpretation of legal texts. The seven dimensions of choice include:

1. Writer or reader?
2. Subjective or objective?
3. Abstract or contextual?
4. Specific Aim or General Objective
5. Meaning, External Policies, and Justice
6. Inquiry Limited to the Document or Including External Evidence
7. Time of writing or Time of Interpretation

The application of literal rule - a rule which mandates that when the statute is clear and
unambiguous, the courts should give effect to the words as they are understood.

Purposive approach- interpretation in light of the purpose behind the statute. Please
read the House of Lords decision in Pepper v. Hart [1993] AC, 573

Mischief rule- a rule of interpretation whereby a statute is construed in such a way as to

suppress the mischief and advance the remedy. Read Bengal Immunity Co. v. Union of
India, (AIR 1955 SC), para. 31; read also S K Batra v. Union of India, (2007)3 SCC 169 on
why courts should reject interpretation which lead to absurd results (examine the
interpretation of the term shared household).

Role of market-based approach in statutory interpretation- read the opinion of Judge

Easterbrook in ProCD v. Zeidenberg (86 F.3d 1447).

Selection of excerpts from the decisions of the Supreme Court of India in T.N.
Godavarman Tirumulkpad V. Union of India.

Overview of the Judges Appointment cases (viz., S.P Gupta v. Union of India 1981 Suppl.
SCC 87; Supreme Court Advocates-on-Record Association (1993) 4 SCC 441; and Third
Judges case (1998), concerning interpretation of the word shall always be consulted-
Extracts provided

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Essential Readings:

1) Cases mentioned above

2) Chapter 1: Basic Principles, G. P Singh, PRINCIPLES OF STATUTORY
INTERPRETATION, pp. 1 60.
3) Kent Greenawalt, A Pluralist Approach to Interpretation, excerpts available in
Peter Strauss, LEGAL METHODS ( 2005)
4) Deborah Maranville, How to Read a Statute: MAP It! available online :
courses.washington.edu/civpro03/helpful_hints/StatuteMAP.do

5) Sharon Hanson, Legal Method (Cavendish Publishing Ltd., London, 1999), 39-54

6) Extracts from George Costello, Statutory Interpretation: General Principles and

Recent Trends, Report for Congress, 2006, Congressional Research Service.
7) Vepa Sarathi, Interpretation of Statutes, (Eastern Book Co., Lucknow, 2003), pp 8-
29
8) M.N. Rau and Amita Dhanda, N.S. Bindras Interpretation of Statutes, (LexisNexis
Butterworths, New Delhi, 2007), pp. 4-17

Recommended readings

9) GLANVILLE WILLIAMS, LEARNING THE LAW (11th Edn), pp 97-111.

10) Henry M. Hart & Albert M. Sacks, Note on the Rudiments of Statutory
Interpretation, in Legal Process, Eskridge ed & Frickey, Eds. 1994, pp 1374-80.
11) Harry W. Jones, Some Cause of Uncertainty in Statutes, 36 A.B.J Journal 321
(1950 excerpts available in Peter Strauss, LEGAL METHODS (2005).
12) Excerpts, An Addendum on the Problem of Drafting Rules Cannot be
misunderstood, excerpts available in Peter Strauss, LEGAL METHODS (2005), pp
286-287.

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 WEEK VII

7.1 NATURE OF JUDICIAL PROCESS AND THE DOCTRINE OF PRECEDENT

Doctrine of Stare decisis

As a general principle the decision of an administratively superior court is controlling

over inferior courts. This doctrine is widely called as stare decisis. Stare decisis literally
means, Stand by the decision. Stare decisis ensures predictability, stability and
consistency of results, which is an inherent feature of rule of law. Understanding stare
decisis is a major element of the work of the Legal Methods course.

This course will examine as to what aspects of a decision are authoritative and what
aspects are persuasive.

The Indian judiciary has a typical pyramidal structure with numerous trial courts
(including district courts and moffusil courts), various High Courts in the states and the
Supreme Court at the apex. This Common Law concept is embodied in the Indian
Constitution. Article 141 of the Constitution of India provides that the law declared by
the Supreme Court shall be binding on all courts within the territory of India. To
understand the scope of stare decisis in India, read Bengal Immunity Co. v. Union of
India AIR 1955 SC 631. This case discusses the issue whether the Indian Supreme Court
is bound by its own decisions.

Please read Director of Settlements, A.P v. M.R. Appa Rao, AIR 2002 SC 1598.

Read the provided excerpts of Zee Telefilms Ltd. v. Union of India, AIR 2005 SC 2677
analyse how binding law, distinguishing cases, persuasive authority, and comparative
perspectives influence the judicial process.

Essential reading

(1) Cases mentioned above

(2) Chapter 6 in GLANVILLE WILLIAMS, LEARNING THE LAW (11th edn), pp 66-96

Recommended reading
(1) RUPERT CROSS AND J.W HARRIS, PRECEDENT IN ENGLISH LAW (4th edn.)
(2)Robert Cover, Violence and the Word, 95 YALE L.J.1601.

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 Week VIII

8.1 NATURE OF JUDICIAL PROCESS AND THE ROLE OF LAWYERING- I

One of the critical skills of a lawyer is the ability to select a relevant legal authority for a
particular proposition of law. Lawyers are often called upon to advise clients/courts
whether the decision in a previous case lays down any authoritative precedent so as to
be binding on future cases.

Distinction between Ratio Decidendi and Obiter Dictum

Ratio decidendibest defined as the essential point of law which the previous court
was required to strictly binding, but may be persuasive. Please read Goodharts test
and Wambaughs reversal test.

How to distinguish between holding and dictum?

Under the Common Law, the same court which decided an earlier case as well as courts
under that court within the same jurisdiction are supposed to follow what the first court
establishes unless what the first case establishes is so grossly wrongheaded or wholly
inappropriate. If a previous decision is not to be followed, it should be ideally overruled.
Case discussion: MGM v. Grokster (545 U.S 913, 125 S.Ct. 2764), Examine how the
courts used the precedents established in Sony v. Universal City Studios (464 U.S 417,
104 S.Ct. 774) ( available in the Course Manual).

Case discussion: Wilkinson v Downtown. Please read carefully the discussion of this
case in Glaville Wlliams book Learning the Law.

Olga Tellis v. Union of India (1985) 3 SCC 545

To examine the operation of this doctrine in civil law systems, read a French decision:
Wackenheim, Judgment of 27 Oct. 1995, Cons. dEtat, 1996 D. Jur. 177 (note Lebreton).

Essential Reading

1) Cases mentioned above

2) Chapter 2 in SALMOND ON JURISPRUDENCE (12TH Edn), pp. 141-174.
3) Glanville Williams, Learning the Law (11th Edn), Chapter 6, pp 66-96.
4) Nelson P. Miller and Bradley J. Charles, Meeting the Carnegie Report's
Challenge to make Legal Analysis Explicit - Subsidiary Skills to the IRAC
Framework, 59 J. Legal Educ. 192 (2009).

22
5) Kent Greenwalt, Reflections on Holding and Dictum, 39 J. LEG ED. 431
(1989)
6) Excerpts from Strauss Legal Method, pp. 98-110.
7) Raju Ramachandran, The Supreme Court and the basic structure doctrine,
in BN Kirpal et al (eds.), SUPREME BUT NOT INFALLIBLE: ESSAYS IN
HONOR OF SUPREME COURT OF INDIA, OUP, 2000.

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 WEEK IX

9.1 NATURE OF JUDICIAL PROCESS AND THE ROLE OF LAWYERING- II

Concept of Overruling

Case discussion: Plessy v. Ferguson (163 U.S 537, 16 S. Ct.1138). Examine how the U.S
Supreme Court overruled the decision in Brown v. Board of Education (347 U.S 483,
74S.Ct 686). Examine whether Brown specifically overrule Plessy?

Young v. Bristol Aeroplane Co. Ltd. L.R. (1944 K.B. 718), discusses the concept of per
incuriam.

Golak Nath v. Union of India AIR 1980 SC 1643 examines the issue of prospective ruling.

Read Mr. X v. Hospital Z, (1998) 8 SCC 296 and subsequent cases, and analyze the judicial
treatment of right to privacy and pressing social values.

Concept of res judicata

This doctrine bars re-litigation of same substantive issues by the same parties before the
same court. Read the case of Daryo v. State of U.P (excepts provided).

Essential reading

(1) Cases mentioned above

(2) Chapter 6 in GLANVILLE WILLIAMS, LE ARNING THE LAW (11th Edn), pp 66-96.

Recommended Reading

Naz Foundation v. Union of India, Judgment of Delhi Court in Writ Petition 7455/2001.

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 WEEK X

10.1 JUDICIAL LAW MAKING

Judicial law making is often an outcome of judicial activism; however, issues linger as to
how much creative power they should have. These issues will be examined in this
session. Please read Visakha v. Union of India, (1997) 6 SCC 241, and consider the
arguments for and against judicial law making.

In order to get a comparative perspective, we will be discussing a recent decision of the

U.S Supreme Court. Please read Exxon Shipping Co. v. Baker (128 S.Ct. 2605, decided in
the year 2008), wherein the U.S Supreme Court fixed punitive-to-compensatory ratio of
1:1 in respect of maritime damages an area not previously legislated by the U.S
Congress. Compare the opinion of Justice Souter and the dissenting opinion of Justice
Stevens.

Read the provided excerpts of the French decision of the Cour de Cassation (Criminal
Chamber), 27 March 1996 and consider the question of judicial definitions in a
continental civil law country.

Read the provided excerpts of the decision of the German Constitutional Court in the
Census Act case (1983), 65 BVerfGE 1.

Read the provided press release of the decision of the German Constitutional Court in
the Aviation Security Act case (2006).

Read the provided excerpts of the decision of the Israeli Supreme Court in the Maarab
case (1999).

Essential readings:
Cases mentioned above

Recommended readings:

1) Benjamin Cardozo, The Nature of Judicial Process (7th Indian Print, 2008)
(generally).
2) S. P. Sathe, Judicial Activism in India- Transgressing Borders and Enforcing Limits,
249-311 (2nd ed, 2003).
3) Cappelletti, M, The Law Making Power of the Judge and its Limits: A
Comparative Analysis(1981) 8 Monash University Law Review 15.

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10.2 UNDERSTANDING HOW THE LEGAL INSTITUTIONS FUNCTION

This may be an interactive session/field trip. Students will be informed about the exact
nature of this session later. The field trip need not be organized exactly in this week and
the details of the schedule of the meeting will be worked out soon.

A few meetings are proposed to be arranged for the students with some leading
practitioners, judges, M.Ps or public administrators. If possible one or two field trips may
be organized to the Supreme Court/High Court of Delhi/other
Tribunals/Adalats/Panchayats.

Recommended reading:

Afterword of Mirjan R. Damaska, The Face of Justice and State Authority A

Comparative Approach to the Legal Process.

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 WEEK XI

11.1 LOGIC AND LEGAL REASONING

An important skill of a lawyer is how to use the techniques of logic and legal reasoning.

Read McPherson v. Buick Motors Ltd (21 7 N.Y 382) - edited version of the case available
in the Course Manual. Also read the excerpts from the section entitled synthesis from
Peter Strauss s Legal Method; Discuss Seixas v.Woods (Supreme Court of New York,
1804, 2 Caines 48) and Winterbottom v. Wright (Exchequer of Pleas, 1842)

Inductive and deductive reasoning:

In inductive reasoning, one argues from the specific to the general. Read Donogue v.
Stevenson, and examine how Lord Atkin used inductive reasoning to propose a duty of
care for third parties (i.e neighbours). Also examine how Lord Atkin used Justice
Cardozo s reasoning in McPherson v. Buick Motors Ltd and Lord Abingers reasoning in
Winterbottom v. Wright to arrive at his conclusion in Donogue v. Stevenson.

In deductive reasoning, one argues from the general to the specific.

Syllogisms and types of fallacies:

A syllogism consists of a major premise, a minor premise and a conclusion. The major
premise usually states a general rule, which often is a statement of law. A minor premise
makes a factual assertion about a particular person or thing or a group of persons or
things, which is often the statement of fact. A conclusion connects the particular
statement in a minor premise with the general one in the major premise, and tells how
the general rule applies to the facts at hand. For an understanding read Grant v.
Australian knitting Mills [1936] A.C 85.

An overview of logic and common logical errors in reasoning: please read and analyze
the nature of legal reasoning employed in the majority and dissenting opinions in State
of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, AIR 2006 SC 212.

Essential reading:

(1) Selected case materials indicated above

1. Jack L. Landau, Logic for Lawyers, 13 Pac. L. J. 59, 59-66, 67-88, 89-98 (1981-82)
2. Irving Copi& Carl Cohen, Introduction to Logic (13th ed., Pearson Prentice Hall,
2009), 5-25, 37-53, 25-34, 482-511, 120-177

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 Week XII

12.1 REVISION/REVIEW

This will be a revision/ review class.

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 ANNEX
READING MATERIALS

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