76117 Legal Reasoning
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particular session, location and mode of offering is the authoritative source
of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.
Subject handbook information prior to 2024 is available in the Archives.
Credit points: 6 cp
Result type: Grade and marks
Requisite(s): ( 70311 Torts OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice AND 70106 Principles of Public International Law))
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.
Description
One of the aims of Law schools is to teach students how to ‘think like a lawyer’, that is, to train students in the arts of legal argument, legal decision-making and legal reasoning. But while legal thinking and reasoning are commonly thought to be taught to students indirectly or interstitially in the process of instructing them in substantive subjects such as torts, contracts, criminal law, property, constitutional law and so on, students actually learn less about legal thinking and reasoning by osmosis than is widely assumed. There is a need to provide students with a description and analysis of legal reasoning abstracted from particular substantive subjects, for otherwise much of what legal reasoning consists in will fall through the cracks.
The aim of this subject is to meet this need: to introduce students to the thinking, reasoning and argumentative methods of lawyers and judges. It presents students with a picture of legal thinking and reasoning that accurately reflects the realities of present-day lawyering and judging. One of the important questions this subject addresses is whether there is a form of reasoning that is distinctively legal. Do lawyers think, reason and argue differently from members of other professions?
This subject is devoted to exploring the forms of reasoning traditionally associated with lawyers and judges, including rule-based decision-making, the treatment of certain sources as authoritative, respecting (and following) precedent even when it dictates the wrong outcome, attunement to issues surrounding decision-making jurisdiction and sensitivity to the burdens of proof.
Subject learning objectives (SLOs)
Upon successful completion of this subject students should be able to:
| 1. | Reflect on and anayse the kinds of thinking, reasoning and argumentation employed by lawyers and judges. |
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| 2. | Identify, differentiate between, and evaluate the different kinds of legal reasoning, including rule-based reasoning, analogical reasoning and ideological reasoning. |
| 3. | Identify and evaluate jurisprudential issues and insights relating to legal reasoning. |
| 4. | Construct clear, original and persuasive written and oral arguments that are supported by research and evidence. |
| 5. | Develop and apply skills to hear and engage with other points of view respectfully. |
Course intended learning outcomes (CILOs)
This subject also contributes specifically to the development of the following graduate attributes which reflect the course intended learning outcomes:
- Legal Knowledge
A coherent understanding of fundamental areas of legal knowledge including:
a. The Australian colonial and post-colonial legal system, international and comparative contexts, theoretical and technical knowledge;
b. The broader contexts within which legal issues arise and the law operates including cultural awareness, social justice and policy;
c. The impact of Anglo-Australian laws on Indigenous peoples, including their historical origins in the process of colonisation and ongoing impact; and
d. The principles and values of justice and ethical practices in lawyers' roles. (LAW.1.1) - Critical Analysis and Evaluation
A capacity to think critically, strategically and creatively, including the ability to:
a. Identify and articulate legal issues in context, including the skill of critical reading and writing;
b. Apply reasoning and research to generate appropriate responses;
c. Engage in critical analysis and make a reasoned choice amongst alternatives; and
d. Think creatively in approaching legal issues and generating appropriate responses. (LAW.3.1) - Research skills
Well-developed cognitive and practical skills necessary to identify, research, evaluate and synthesise relevant factual, legal and policy issues. (LAW.4.1)
Teaching and learning strategies
Strategy 1: Preparing for class activity
Students are required to read prescribed materials from UTSOnline before coming to class. Information about each topic will be provided on UTSOnline. Prior to some classes, questions are posted on UTSOnline to focus students’ attention on aspects of legal reasoning and argumentation and prepare them for discussion. Students will be required to think about their answers to these questions prior to coming to class. Additional readings are available on UTSOnline if students wish to pursue particular theories or lines of argument relating to legal thinking, reasoning and argumentation further. Students are to use the UTSOnline discussion board to ask questions or share ideas prior to the class. Students are advised to exercise patience when reading the prescribed texts as these readings may contain unfamiliar ideas and may in addition be presented in a style to which you are unaccustomed. Take your time and allow yourself the opportunity to understand what it is the author is arguing.
Strategy 2: Engaging in Seminars
Classes involve formal and informal discussion of the readings and how they relate to the subject as a whole. Using their prepared answers to questions posted on UTSOnline as a starting point, students will build on the understanding of the topics covered in the subject through active engagement with the instructor and other students. Students discuss the implications of particular accounts and issues in small groups and as a class. Students demonstrate understanding of the prescribed readings through class discussions, and should seek clarification for difficult issues. Students have the opportunity to ask questions of their peers and of the instructor to assist them in consolidating their own learning. Students also gain depth of understanding through application of specific theories to specific issues. By engaging in seminar discussion, students develop a conceptual and analytical understanding of the relevant theory. Students build on their preparation and engagement in seminars by formulating and debating interpretations of the theories.
The seminar leader models critical thinking, including the development of argument and close textual analysis. Seminars cover theories and consider how they articulate and/or apply to the law. Students are encouraged to offer their opinions and ask questions during seminars, and are asked to answer questions about the theories in order to develop their understanding of the relationship between these theories and legal issues. The structure of the seminars models the analytic, critical and methodological skills that students develop throughout the subject by outlining the theory and identifying issues. Students may undertake research of a particular issue in order to add depth to class discussion and analysis by sharing available computer resources and texts. Students are encouraged to ask questions and make comments during the seminars, and are also asked to demonstrate their understanding and mastery of key concepts. The class discussions allow students to gauge how successful they have been in their critical reading, by testing their knowledge and learning from others.
Strategy 3: Writing Theoretical Essays
As part of the assessment students undertake a short essay and a long essay. The short essay is due relatively early in the session, but not before a seminar (or part thereof) devoted to the art of writing a research essay, including research approaches and analysis of the construction of argument. This introduction to theoretical essay writing and the ensuing short essay will provide students with an opportunity to understand and work through a theory-based analysis of an issue. This will engage and develop skills such as:
Identification of theoretical accounts and legal issues and demonstration of insight into the issues raised
Critical analysis and evaluation of theoretical propositions and argument
Comprehensive and appropriate consideration of relevant authorities and literature
Articulation of clear and coherent arguments that are logically structured and supported by evidence
Clear written expression with correct use of grammar, punctuation and spelling
Accurate, consistent and complete referencing according to AGLC that demonstrates judgement and responsibility in terms of academic integrity, in particular honest and complete acknowledgment of sources.
The long essay, due later in the session, requires in-depth analysis of a particular account of legal reasoning. It demands inquiry into, research of and critical understanding of a particular account or issue.
Strategy 4: Applying Research Skills
Students undertake independent research relevant to class discussion and assessment tasks. Class discussion is based on a list of readings, some of which students may be required to locate using the UTS Library and databases. The research essay requires students to identify and research a relevant issue, appropriate theory and secondary material on their own. Being able to use the library and legal databases to find relevant material is an important skill for a lawyer. Critical reading and analysis of judicial and scholarly material are also crucial skills in law. Students are expected to develop and refine skills in identifying and synthesising relevant material and employ them to make reasoned, logical, justifiable and persuasive written and oral arguments. They apply these skills in the written assessment tasks and receive further feedback (see below).
Strategy 5: Feedback
Detailed guidance as to the assessment criteria and the provision of timely feedback are an important part of the learning process. Students receive ongoing feedback in seminars from the seminar leader as well as their peers. Students should be using class participation as a means to test their understanding of theories and their critical application of these theories to various legal examples. This feedback is available to students from week 1 and provides opportunities to develop their capacity to present oral arguments. Students receive written feedback on the short essay due early in the semester via UTSOnline. Feedback provides students with the opportunity to reflect upon and develop their ability to construct an effective argument, write clearly and persuasively, and communicate complex concepts. Students further develop these skills in the process of writing of the long essay. Students also receive written feedback on their long essays via UTSOnline to improve their research essay writing for the future.
Subject Delivery
Seminars
Content (topics)
- Introduction: The Content of Legal Reasoning
- Rule-based Decision-making
- Precedent and Its Dictates
- Does Authority Bind?
- Analogical Reasoning
- The Common Law
- Legal Realism
- The Interpretation of Statutes
- Judgments
- Law-making with Rules and Standards
- Law and Fact
- The Burden of Proof
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Thinking like a feminist lawyer
Assessment
Assessment task 1: Class Participation
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3, 4 and 5 This task contributes specifically to the development of the following graduate attributes: LAW.1.1 and LAW.3.1 |
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| Weight: | 20% |
| Length: | All classes |
| Criteria: |
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Assessment task 2: Short Essay
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.4.1 |
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| Weight: | 30% |
| Length: | 1,300 words (not including footnotes or bibliography) |
| Criteria: |
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Assessment task 3: Long Essay
| Objective(s): | This task addresses the following subject learning objectives: 1, 2, 3 and 4 This task contributes specifically to the development of the following graduate attributes: LAW.1.1, LAW.3.1 and LAW.4.1 |
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| Weight: | 50% |
| Length: | 3,000 words (not including footnotes or bibliography) |
| Criteria: |
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Required texts
While there is no prescribed textbook for this course, Frederick Schauer's Thinking Like a Lawyer (Harvard University Press, 2009) is the primary text on which the course is based. It is indispensible, and is accessible in electronic format through the UTS library under the Reading List tab.
Recommended texts
Students should refer to the detailed reading guide for additional readings. Among the recommended texts are chapters from these books:
Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-based Decision-making in Law and Life (Oxford University Press, 1991).
Richard Posner, How Judges Think (Harvard University Press, 2008).
Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007).