A Lawyering Approach to Teaching Statutes
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Judicial concern with the adequacy of statutory interpretation education in law school has been persistent. In some discipline areas such as property law, the nature of the problem has been slightly puzzling for some in light of the inevitability of working with statutes in a statute-based subject. This presentation articulates what may be a differential experience with ‘statutory interpretation’ from the standpoints of judging and lawyering. Further, it asks whether the well-described focus in legal education on the appellate adjudicative process has contributed to the apparent lack of graduates’ experience in ‘statutory interpretation’. This presentation suggests that teaching ‘statutory interpretation’ needs to encompass both a judicial and a lawyering approach to statutes, and presents for discussion teaching approaches that emphasise the role and application of statutes in a transactional context.
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A Lawyering Approach to Teaching Statutes
- 1. Judging, Lawyering, Teaching: A lawyering approach to teaching statutes Kathrine.galloway@jcu.edu.au Staff Seminar, Bond University Law Faculty 8 July 2015
- 3. [LACC should] review the present Academic requirements in the light of the prevailing practices in Australian law schools, to ensure that statutory interpretation is given the prominence and priority which its daily importance to modern legal practice warrants. 2007, Victorian Chief Justice, with Chief Justices of Australia, NSW
- 4. Relax! I teach a statute-based subject!
- 5. Since 2007 • ‘Approaches to interpretation’ (LACC, 2009) • ‘Good Practice Guide – Statutory Interpretation’ (Brown et al, 2011) • Report to LPAB re stat interp (2013) • Report to LACC, CALD re stat interp assessment (2014) • ‘Review of Academic Requirements’ (LACC, 2015) • ‘CALD Good Practice Guide – Statutory Interpretation’ (CALD expert committee, forthcoming)
- 6. Reflecting on practice Consider the emphasis in the CALD Good Practice Guide for stat interp Contrast this with the experience of transactional lawyering Filling the gaps in legal education
- 7. JUDGING CALD Good Practice Guide to Teaching Statutory Interpretation (2015)
- 8. Judges’ perception of lawyering The conclusion…seems to…result from a lawyer's inherent tendency to assimilate such a right to some category known to the common law… The question must be judged having regard to rights and interests created by the law of today, without, it seems to me, trying to fit them into the law of feudal tenures and estates. Commissioner of Main Roads v North Shore Gas Co Ltd (1967) 120 CLR 118, 127, 131
- 9. Statutory interpretation is more than simply a skill; it is a discrete body of law. CALD Good Practice Guide, 11
- 10. ‘Multi-factorial approach’ PURPOSE CONTEXT TEXT Judging is a practice of doing, not articulating the underlying theory or structure being applied…The general method is ever- present in the case law. CALD Guidelines, 13
- 11. It is the function of the court alone authoritatively to declare the legal meaning of an enactment…[In the meantime all that exists is] non- authoritative, non-judicial conjectures (usually by practising or academic lawyers) as to what [the enactment] amounts to. Francis Bennion, Understanding Common Law Legislation: Drafting and Interpretation (Oxford University Press, 2001), 17, 19.
- 12. LAWYERING Statutory Interpretation | Working with Statutes
- 13. Transactional lawyers must make meaning of statutes daily Courts deal with statutes up here Transactional lawyers deal with statutes down here
- 14. Lawyering too, is ‘the practice of doing’ Instrument Statute Registry Office Manual Case law
- 15. + lawyering is non-adversarial Many statutes are designed not to be used by the courts eg • Retail Shop Leases • Residential Tenancies • Consumer protection statutes
- 16. TEACHING TO REFLECT PRACTICE Rethinking the common law | statute nexus
- 17. Teaching tends to look like this Common law Statute Sovereignty Doctrine of tenure Doctrine of estates Legislation… eg What is a mortgage (C/L) Equity Property Law Act Land Title Act
- 18. What if we swapped common law|statute lexical priority? Statute Instrument Common law
- 19. Case study Iterative development: working with statutes (2nd year) Foundation statutory interpretation In depth look at principles; general method; interpretive criteria
- 20. Subject(s) content Land law 1 Property Land Doctrines tenure & estates Co-ownership Priorities Land law 2 Torrens Mortgages Leases Easements, covenants
- 21. Step 1: Broad statutory context Statutory land title regulation Freehold Property Law Act National Credit Code Land Title Act Community Titles Non-freehold land Land Act Retirement Villages Act Native Title Act Residential tenancies Trusts Act Mineral Resources Act Water Act Retail shop leases
- 22. Step 2: journey through each statute [purpose] Version, commence- ment Purpose, objects Structure Geographical extent Persons and things covered Adapted from Francis Bennion, Understanding Common Law Legislation (Oxford, 2001), 184-5
- 23. Step 3: Reading particular text S184(3) Land Title Act …[indefeasibility] subsections (1) and (2) do not apply…if there has been fraud by the registered proprietor… Bahr v Nicolay (No 2) (1988) 164 CLR 604, 614 ‘…actual fraud, personal dishonesty or moral turpitude lie at the heart of the fraud exception [to indefeasibility]’
- 24. Step 4: Self-guided location of provisions in unseen statutes (eg BCCM) How does a community titles scheme come into existence? What are their components? What is an ‘entitlement’? What are ‘owners’ entitlements – contribution’? What are ‘owners’ entitlements – interest’?
- 25. ADDING AUTHENTICITY: WORKING WITH INSTRUMENTS Transactional law
- 26. An integrated approach Common law terms Statutory regulation Private covenants Tend to be omitted in teaching Usually a starting point Tend to be considered after common law
- 27. Embodiment of statute in every- day transactions
- 28. Reading the instrument of mortgage/lease (echoes approach to statute) Commence- ment Interest secured Structure of instrument Persons and things covered •Parties •Respective obligations Does the Property Law Act apply? How/why? Who has rights, where are responsibilities: statute common law
- 29. Clarify: instruments operate within nested legal contexts Common law Land Title Act Property Law Act Consumer Credit Code
- 30. Read and make meaning of text: ‘intellectually manipulate the relevant materials’ – eg: Covenant: instrument Property Law Act Residential tenancies legislation Common law Quiet enjoyment Short form covenants, Schedule 3 s183 Telex v Thomas Cook
- 31. A lawyering approach to teaching statutes Judging v lawyering Afford lexical priority to statutes Explicit, holistic statute reading every time Self-guided reading Integrate instruments into student learning