A Question of Balance…
It was the best of times, it was the worst of times….but mainly it was just repetitive and a hectic scramble to meet deadlines!
In the last month I have marked a grand total of 221 law papers. Or, to put it in language that makes me look even more productive: I have read, marked and given feedback for 380,000 student-written words.
Apart from being tired, and thinking wistfully of my 6 months off earlier this year, marking so many papers has given me some interesting insight into the student psyche (just joking, I already knew most law students love linguistic gymnastics but don’t capitalise ‘High Court’). No, what I got insight into was the fact that balance is important. In particular, the balance between referring to cases in text and footnoting precedents.
One of the assignments that I marked specifically requested that students adopt a discursive style in their problem solving response. The paper wanted the answer to seamlessly integrate precedents with the explanation of the legal test. It was after something like this:
‘False imprisonment requires a direct (put a semicolon and then list the precedent(s)) and intentional act (put a semicolon and then list the precedent(s)), that results in the total imprisonment (put a semicolon and then list the precedent(s)), of an individual.’
I am too tired to check if that is the correct elements that need to be proved for that offence (see! Marking fatigue!), but you get the point. For this assignment, in-text references were crucial.
For the other assignments there were no specific instructions.
And what was the result? Well, the majority of students that were required to follow the style guide outlined the legal tests in the requested manner which resulted in comprehensive discussion of the legal principles.
Those students that were not required to adopt a specific guide in their assignment, on average, did marginally worse in describing the law. Most footnoted legal principles and tests rather than use in-text references, and in the process some students missed vital elements they needed to discuss and failed to discuss the relationship(s) between the elements.
When it came to applying the law, BOTH GROUPS struggled to apply the legal elements to the facts. It was done equally poorly. Many students are clearly uncomfortable directly discussing the cases. For example, doing something like this:
‘Case X suggests that imprisonment will not be total where there is a reasonable means of escape. Case Y confirms that all exit points need to be locked for imprisonment to be considered total. In the present scenario, although the front door of the house was locked, Party A had the opportunity to leave the premises via the back door, as similar to the facts in Case Y. As the door was on the ground floor of the building and not dangerous, this escape route would likely be characterised as reasonable and the imprisonment deemed not total. As such, the principle in Case X suggests that the false imprisonment action would fail.’
So what lessons can be learned from my 380,000 words of reading joy? Two things:
- Balance in-text case references and footnoted principles, and be careful not to miss out describing each element of the relevant test(s);
- Integrate balanced in-text references with your argument when analysing the applicability of the legal test(s). This will give your response critical depth and help you address each element of the relevant test(s).
And with that, I am going to go enjoy my brief marking reprieve!!
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