Appellate courts consider the application of legal principles to a case that has already been heard at first instance. Some appellate courts also have jurisdiction to reconsider disputed issues of fact.
BATNA (best alternative to a negotiated agreement) is an acronym used to describe the best possible outcome that will result for your client if you do not negotiate or if the negotiation fails. This will be explored in more detail in relation to negotiation strategy but needs to be taken into account at this stage because you need to know whether your case would win or lose at court and what the outcome would be if you won in order to work out your BATNA.
A bibliography is a list of all materials that have been consulted during the preparation of your work. By contrast, a list of references is provided with work that has used Harvard referencing to provide the full details of any materials that have been referenced in the text but does not include materials that have not been cited. As such, a bibliography is a fuller record and will include all materials that would appear in a list of references plus anything else that has been read.
A binding precedent is a decided case that must be applied in a later case—even if it is considered to have been wrongly decided. It exists when the material facts of a case are similar with those of an earlier decision in a higher or equivalent court in which the applicable statement of law was part of the ratio of the earlier decision.
Civil courts primarily deal with the resolution of disputes between individuals and award appropriate remedies to successful claimants.These remedies are normally in the form of monetary damages.
A codifying statute is one which restates legal subject matter previously contained in earlier statutes, the common law, and custom.
A consolidating statute is one which re-enacts particular legal subject matter which was previously contained in several different statutes.
The Council of the European Union (or Council of Ministers) is the main law-making body of the EU.
The Court of First Instance deals with a limited range of cases.
The Court of Justice of the European Union (commonly European Court of Justice or ECJ) originated as a discussion chamber, but is now part of the judicial process.
Criminal courts determine the guilt or innocence of defendants according to the parameters of the criminal law and dispense punishment to convicted offenders.
Delegated legislation is law made by persons or bodies with the delegated authority of Parliament. It is sometimes referred to as ‘subordinate legislation’.
A provision of European law is directly applicable if it automatically becomes part of the law of a member state without the need for the member state to enact any further legislation.
A provision of European law is directly effective if (and only if) it creates rights upon which individuals may rely in their national courts and which are enforceable by those courts.
Ejusdem generis means ‘of the same type’.
Equitable maxims are sometimes referred to as ‘equitable doctrines’.
Expressio unius est exclusio alterius means that to ‘express one thing is to exclude others’.
Extrinsic aids to interpretation are found outside the statute.
The European Commission is the main policy-making and law enforcement institution of the EU.
The European Council is composed of the Heads of State or Government of the EU member states.
The European Parliament originated as a discussion chamber, but is now part of the legislative process.
First person The grammatical person is a way of referring to the participant role of the speaker or the writer. Accordingly, when a person writes as ‘I’, they are writing in the first person. This is entirely appropriate in informal communications and in other situations in which it is necessary to express a personal viewpoint but it is not appropriate in objective academic writing. This does not mean that it is appropriate to revert to the second person (you) or the third person (one) as an alternative.
The golden rule provides that words must be given their plain, ordinary, and literal meaning as far as possible but only to the extent that they do not produce absurdity (the ‘narrow golden rule’ approach) or an affront to public policy (the ‘wide golden rule’ approach).
Higher-order skills are those identified by Bloom as demonstrating a stronger grasp of a subject as evidenced by the ability to use knowledge rather than merely to acquire and repeat it. To take a very basic example, you would be able to demonstrate knowledge by finding a map of the area, understanding by explaining the route to another person, but application by actually reaching your destination. Once there, you might want to analyse how useful the route was and, ultimately, decide whether to use it again or to find an alternative. In legal studies, you may hear the distinction between higher and lower-order skills summarized as description (knowledge, comprehension) and analysis (application, analysis, synthesis, evaluation).
A provision of European law has horizontal direct effect if it can be enforced against another individual in the courts of a Member State.
Inferior courts have limited geographic and financial jurisdiction. They hear the majority of straightforward cases.
An injunction is a court order which compels a person or body to perform some action or to cease some action.
Intrinsic aids to interpretation are found within the statute itself.
Journals are also referred to as periodicals.
Learning objectives are a statement of the subject-specific knowledge and skills that students are supposed to have acquired by the end of the course. They may provide a good insight into the skills which are important to the subject that you are studying so you can ensure these are demonstrated in your essay.
Legislation is a broad term which covers statutes (Acts of Parliament) and other types of legislation, such as delegated (or subordinate) legislation and European Community legislation.
Lexical ambiguity occurs where the meaning of a single word is ambiguous.
The literal rule provides that words must be given their plain, ordinary, and literal meaning.
The mischief rule (or the rule in Heydon’s Case)13 involves an examination of the former law in an attempt to deduce Parliament’s intention (‘mischief’ here means ‘wrong’ or ‘harm’).
Noscitur a sociis means that a word is ‘known by the company it keeps’.
Obiter dictum is a Latin phrase meaning ‘thing said in passing’ (plural obiter dicta).
A persuasive precedent is one which may be followed by a court (provided no binding precedent exists) but there is no compulsion on the courts to do so.
Per incuriam is a Latin phrase meaning ‘through carelessness’.
Plagiarism The Oxford English Dictionary defines plagiarism as ‘the action or practice of taking someone else’s work, idea, etc., and passing it off as one’s own; literary theft’.
A legal presumption is an inference established by the law as universally applicable to certain circumstances.
The words in an essay question that describe the skills required are sometimes called process words.
The purposive approach involves seeking an interpretation of the law which gives effect to its general purpose. It is based upon the mischief rule.
Ratio decidendi is a Latin phrase which means ‘the reason for the decision’ (plural rationes decidendi, although often simply stated as ratios). This is the (potentially) binding part of a judicial decision.
An order of rescission sets aside a contract.
Signposting refers to the phrases that you use in an essay to guide the reader through your arguments. Sentences such as ‘having discussed x, this essay will now consider y’ and ‘although it may seem that this case resolves the problem, it is also important to take into account z’ are examples of signposting.
Soft law is sometimes referred to as quasi-legislation—or ‘law-which-is-not-law’.
An order of specific performance compels a person or body to perform their obligations under a contract or trust.
Stare decisis is a Latin phrase which means ‘let the decision stand’.
Structural ambiguity refers to a sentence or clause with multiple possible meanings.
Superior courts have unlimited geographic and financial jurisdiction. They generally hear the more important and/or difficult cases.
The teleological approach requires that the spirit of the legislation, rather than merely its purpose, is considered. It is therefore much broader than the purposive approach.
Trial courts hear cases ‘at first instance’. This refers to the first time that a case is heard in court, before any appeals. They consider the matters of fact and law in the case and make an appropriate ruling.
Ultra vires is a Latin term meaning ‘outside (their) powers’.
A provision of European law has vertical direct effect if it can be enforced against a Member State in its own courts.
Zero-sum game describes a situation in which one party’s gain is equivalent to the other party’s loss. As shown in Chapter 20, Figure 20.2, if you calculate one party’s gain and deduct the other party’s loss, the total would be zero. It is useful to think of this in terms of sharing out a pie: the larger the slice taken by A, the smaller the piece remaining for B.