tolerating complexity I – on tackling Part A of the Tort Law examination…

https://www.rogerebert.com/reviews/bad-samaritan-2018

This academic year will see UoL LLB Tort students across the globe tackle Professor Mulheron’s Modern Law Review article entitled: “Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015” and having had an host of students ask me how to tackle the Part A it seemed a good as time as any to put pen to paper and try to ease this rite of passage.

I propose to do it in two bites; firstly I’ll provide some advice about reading articles in general, generic advice if you will, and secondly try and tackle Professor Mulheron’s piece in more detail.

The first thing I’m inclined to say; is just enjoy the ride. If you have even more than a passing interest in matters legal, then you should enjoy this section of the exam. It clearly doesn’t represent marks on a plate, but at least it represents potentially captive marks. At the very least you know, indeed specifically know, the subject matter on which you’re going to be examined, which differs from the rest of the essentially ‘unseen’ examination

What are the examiners setting out to achieve? Well to date Tort Law is a Level 5 subject. So that suggests they are wanting to raise the ‘ante’. The specific ability  I think they are hoping to awaken (and ultimately examine) in you, is the ability to read articles. You’ll have hopefully already been initiated in the joys of case law, and statute during your Legal Study & Methods module. Now is the turn of the humble article. Often the product of many hours, if not months and years of hard academic labour, it is your job to learn, not just how to access the targeted article, but how to to read (and for this we can substitute ‘critically read’) and to answer some set questions on this juristic product.

So it’s not rocket science.

 You need to read the article, think about the article, and ultimately ready yourself to answer some questions on said article. But while you’re at it, you may as well enjoy the process, and hopefully learn some good article reading ‘habit’s that will last you long beyond May 2019. 

The first habit is to enjoy the journey itself; so learn to tidy your desk, crack open a new jar of coffee and actually focus. No Facebook forays, Instagram intrusions and/or Wechat waffles.

But articles can be challenging; and unlike the more familiar subject guide and/or textbook, they are designed to be so. They provide spaces in which the expectation is that as many questions will be raised as answers provided. This is the paradigm shift you are being asked to negotiate. Make it and you will be making the next gearshift to becoming a real lawyer; side-step it and don’t be surprised if those 60+ (let alone 70+) marks somehow magically elude you.

Let me make this point abundantly clear. Good students read lots of articles and cases. Outstanding students read hundreds of articles and cases. It is (i’m almost afraid to say) as simple as that. 

At this stage of the year you also have one additional luxury; time. 

So read widely. Read the article, but also be sure to read as many of the articles, and indeed cases (this remains a tort Law exam, not just an exercise in critical reading) that the core article references. Why would you not. And this gives you a chance to context the author’s argument/s. Ask yourself, do you agree with what they are arguing… what other arguments could have been made… have they effectively made their case. Just because it’s a published article does not mean that you have to agree with it and/or that it’s well argued. In the year that i sat Tort, the article was so badly written (with my apologies to the usually excellent Nicholas McBride) that when Simon Askey came to summarise it (because so many students had no idea what the article meant) he actually (with my apologies to Simon Askey) came to misunderstand McBride’s fundamental position. This was ultimately only clarified by writing (in fact e-mailing) Professor McBride directly. But I hope it serves to illustrate the point.

A third thing you may think to do, is read around the subject. 

This year you are asked to consider one professor’s view view of 20 lines of legislation. But make no mistake this is just the meniscus on a very complex debate that has raged for many years if not centuries. Try (at least to a degree) to engage with it. Likely you won’t be questioned directly, on the broader implications of her analysis, nor on the underlying debate, but it will absolutely help you to anchor your critical analysis in a way that the ‘study by rote’ student will not have access to. Imagine being asked to critique Chapter 17 of Bleak House if you had no idea of who Charles Dickens was, and/or the legal/social shortfalls he was trying to address. At the bare minimum this article addresses the law of negligence, the Compensation Act 2006 and touches upon the very complex Bad/Good Samaritan debate, which has dogged the common law for centuries. Indeed the latter formed the subject of the essay i wrote some years ago now, when I first dared to enter the Bar Council’s Law Reform Essay Competition; much of the historical backdrop is covered there and it is referenced below.

complications with complexity (see below)

The image above represents nothing more, no less intricate, than the movements of one football team during a 90 minute football game. It serves to illustrate; life is complex and law particularly so. As you start to tackle Tort Law the Part A is a gentle introduction to that complexity, and a challenge to your ability to manage, tolerate and ultimately make sense of it.

Enjoy the journey and you won’t go far wrong.

References:

i. https://www.worldmarket.com
ii. https://www.academia.edu/19716278/Setting_My_Sights
iii. https://landscapearchipelago.wordpress.com/2010/11/07/complications-with-complexity/