Practical Case Solving in European Law (Prof. Dr. Thomas Schmitz)

En este post, podrán ver mis apuntes sobre el documento: practical case solving in European law, escrito por Thomas Schmitz.

Practical Case Solving in European Law (Prof. Dr. Thomas Schmitz)
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  • The Methods and Techniques of Legal Case-Solving
    • The Analysis of the Facts and Question of the Case
      • The apprehension of the facts of the case
        • If an interpretation of the facts of the case is necessary {{ choose the interpretation that is the closest to the general experience of life }}
        • What can we do in case the facts are complicated?:: draw a sketch, which outlines the involved persons, the chronology of the story and certain events
        • Why are the objections and arguments of the involved persons relevant?:: because often they will lead us to the legal questions, which have to be discussed.
      • The working out of the question of the case
        • First requirement your work must meet in order to be considered a good one:: that your solution corresponds exactly to the question of the case.
        • If the case description ends with a general question (e.g. "How is the legal situation?"), you must identify the actual question of the case with special regard to the information given just before the question is formulated
      • Brainstorming and comprehension test
        • Way to do it:: gather spontaneous ideas on a separate sheet of paper attempting to summarise both facts and question, confining yourself to the essential, in few sentences.
    • The Drawing Up of a Draft Outline
      • We must take into account:: the dogmatic structures of the respective field of law
      • Only an accurate structure provides for an easy orientation, allows f o l l o wing the ana lysis step by step and enables the reader to avoid misunderstandings and fallacies
      • Create a draft outline on a separate sheet of paper, noting {{every question}}, which is to be examined
    • The Systematic Solving of the Case of the Basis of the Draft Outline
      • Components
        • Early focusing on the main topics, examination of the case, time management
          • As far as the dogmatic context allows it, you should split up complex problems into separate questions, which may be easier to handle
            • time management tip:: it is useful to plan the amount of pages or time you want to spend on the individual aspects of the examination and to note it down in the draft outline
              • what happens in case we get under time pressure?:: we should correct our plans at an early stage in order to avoid that later important parts of the case solution will be missing
        • Examination schemes
          • key characteristic:: they are only auxiliary means for the case-solving in our mind, that is in preparation of the writing down.
          • Normally the structure of your text will be less complex than indicated in the schemes
        • Auxiliary expertises
          • main use:: they are used in order to discuss the admissibility of a legal remedy
            • examples:: doctrine, jurisprudence
        • Literature research
          • proper moment to do it:: not on the first working day, but when you familiarize yourself with the subject by means of textbooks and commentaries.
    • The Writing Down
      • Recommendations
        • Do not start the writing before you have solved the case completely in your mind, noted down all results at the right places in your draft outline, and decided in detail the number of pages or time you will spend on the individual sections of the case solutions
        • Rigorous focusing on the main problems in the final product
          • specific advice
            • Avoid an imbalanced presentation
            • Avoid any stereotyped trudging through the standard examination schemes
              • e.g., any unjustified lengthy remarks on the admissibility of legal remedies or on formal or procedural aspects. Usually, it is not here that you will find the main problems of the case
            • Not every topic in the draft outline must have its own headline in the final text → bundle several items under one (adequate) common headline.
        • Exact reasoning, comprehensible line of thought, analytical style of writing
          • specific advice
            • Cultivate exact and accurate reasoning which provides for a consistent and comprehensible line of thoughts
            • Use short introductory sentences at the beginning and short concluding sentences at the end of every section in order to illustrate the significance of the relevant part in the general context of the examination
              • for example: "The prohi bition to sell the liquor Cassis de Dijon in A - land violates the fundamental freedom of M r . A guaranteed in art. 28 et seq. FEU Treaty, if it encroaches on interferes with the sphere of protection of this freedom and that encroach - ment is not justified b y the fundamental freedom's limits")]
            • The legal analysis must be neutral
            • Every section of the examination begins with a specific question and ends with the result
            • Reveal which legal methods you are applying (legal interpretation, analogy or development of law, teleological or contextual interpretation)
          • Gutachtenstil (analytical style of writing and reasoning)
            • concept:: it is a style of reasoning deeply reflected not only in the structure of the case solution and in the line of thought but also in the style of writing
        • Case-oriented discussion of scientific disputes
          • requirement they must meet:: scientific disputes have to be assessed to know if they are indeed relevant for the answer to the case question
          • The dealing with a scientific dispute cannot be confined to a mere report of the state of discussion, therefore your individual and independent legal reasoning is of decisive importance
        • Objective style of writing
          • specific advice
            • do not refer to yourself in your writing
            • Do not use emotional expressions, strong language or exaggerating expression
            • Use reported speech instead of textual quotations
            • Specify legal norms as exactly as possible
            • Express your main thoughts preferably in main clauses and not in subordinate clauses
    • The Final Check
      • Check once more if your expertise exactly answers the case question and if this becomes apparent. In particular, the results presented at the end (e.g. in an "overall conclusion") must refer logically and in content to the cas e question
  • The Formal Design of the Case Solution
    • General Aspects
      • Correct spelling, correct use of grammar and correct punctuation are a matter of course for every lawyer.
    • Special Features of Course Papers
      • Structure and table of contents
        • Use a {{pattern of division and subdivision}}
      • Bibliography
        • Recommendations
          • It must be recorded in alphabetical order
          • Legal acts, court decisions and law reports may be listed in separate tables
          • Do not include any literature in the bibliography that is not cited in your case solution
      • Index
        • If you compile an index, you should {{ build it on a homogeneous and common legal terminology }}
      • The art of citing
        • The sentence substantiated by the citation must {{ have the same contents as the cited passage }}
      • The formatting
        • {{Important keywords}} must be emphasised
        • Use bold types for {{the table of contents}}