Welcome

Judges squaring off to one another

This section deals with essay questions. A common example of this type of assessment is where you'll be given a statement which you might have to "critically discuss". This differs from the problem question, where you need to usually look at a set of facts and advise one of the characters with reference to the relevant law.  

Many law students rely solely on Q&As and those books that contain short case summaries when they prepare for exams. Unless you want to leave law school with a head full of mush, you should always refer to the actual cases and different commentaries in addition to your textbooks! It is also very common to find inconsistencies within Q&A books or even a wrong interpretation of the actual law.

Intro to answering legal essay questions

Essay questions are designed to make you think about what the law should be, rather than merely what it is. This is because the law is imperfect and is constantly changing. You put on your ‘academic hat’ when you answer essay questions.

Identifying the core issues

The first step in answering an essay question is knowing and understanding the ‘core issue(s)’ – which may not always be explicit from the question itself.

Sometimes the question explicitly tells you the issue you have to deal with.

‘Critically analyse the decision of Tinsley v Milligan [1993] UKHL 3 [1994] 1 AC 340 in relation to the presumption of advancement under the area of presumed intention resulting trust.’

Some questions are pretty complicated and cover several issues. Make sure you cover all the issues in your answer.

‘Correct classification of claimants under a proposed scheme of arrangement is crucial for obtaining a court sanction of the scheme.

In UDL Argos Engineering & Heavy Industries Co Ltd v Li Oi Ling [2001] 3 HKLRD 634, Lord Millett NPJ rationalized Templeman J’s decision in In re Hellenic & General Trust [1976] 1 WLR 123 by saying that ‘[t]he key to the decision is that M (a wholly owned subsidiary of H) was effectively identified with H’ (the proposer of the scheme). Does that mean that where one of the claimants is a wholly owned subsidiary of the scheme company, for the purposes of a claimant classification decision, the corporate veil between the scheme company and that subsidiary claimant must be pierced?

If so, how do you reconcile the difference between Templeman J’s decision in Hellenic, where His Lordship rejected the scheme on the basis of a classification mistake, and Street J’s decision in Re Landmark Corp Ltd [1968] 1 NSWR 759 (to which Lord Millett referred in UDL Argos), where His Honour rejected the scheme by holding that the classification was correct but the requisite level of majority had not been achieved after the votes of 7 wholly owned subsidiaries had been discarded?

Which approach do you think is superior?

[LW4657 Company Law II 2015-16, Semester B Presentation]

Have a second look at the question

Apple core

It is very important to pay attention to the wordings used in the question.

Take “discuss the ruling in XXX” as an example. When answering such questions, one should discuss BOTH the arguments for and against the ruling.

If the essay question is phrased as “critically analyse XXX’s ruling in XXX”, a student is expected to criticise (not necessarily disapprove but to give one’s opinion) the stance instead of giving a two-sided analysis of the legal principle. Thus, one should focus on his/her own stance when answering such questions.

Look at this useful document for other keywords that frequently come up in an essay question and how you should interpret them:

https://www.wpi.edu/Images/CMS/ARC/Answering_Essay_Questions_Made_Easier.pdf

How to approach an essay question

It is possible to approach an essay question by considering a combination of some of the following aspects:

  • Normative (what do moral/philosophical principles say?)
  • Doctrinal (what legal rules can be used to argue a point)
  • Practical (is the law or a certain viewpoint practical or not?)
  • Empirical (how does this actually play out in real life?)

Source of research

Relying solely on textbooks is not sufficient. You must go through the leading cases in full. Find out how each judge analyses the law and reach their final view. Also go through commentaries and journal articles in order to understand different scholar’s views.

Try to generate your own stance after doing all the research.

Essay structure & writing

After conducting the necessary research, plan the structure of the essay. If you get the structure right, the essay normally works.

A recommended structure is (a) introduction, (b) exposition of the issues and definitions, followed by (c) arguments [counter-arguments if appropriate] before wrapping up with (d) the conclusion.

Then comes the writing. A good and clear introduction is necessary. You should have a central thesis (what is the main side/point that you will advance) and a road-map (how are you going to do that step-by-step).

Short and sharp sentences work better than verbose language. The start of each paragraph should be a thesis sentence to give away the heart of the paragraph. Cold-blooded language works better than trying to keep the reader in suspense until the end.

If you arrive at the conclusion that the law is imperfect and should be changed, it is not sufficient to say “these are the flaws and amendments should be made”. You need to propose a solution as to how the problems in the law can be rectified. Do we need legal reform? And if so, how?

Example

‘Critically analyse the decision of Tinsley v Milligan [1993] UKHL 3 [1994] 1 AC 340 in relation to the presumption of advancement under the area of presumed intention resulting trust.’

Starting point

As the question asks us to “critically analyse xxx”, we should explain our stance and opinion throughout the essay.

Possible flow

Para 1: Always begin with an introduction.

Para 2: This question involves the concept of presumption of advancement (“PIRT”) and presumption of advancement (“POA”). It would therefore be useful to give a brief explanation of the relevant concepts.

Para 3: [You will learn in your senior years that “illegality” may rebut POA. Thus, a brief explanation of the concept of illegality should be brought up here.] Since this question explicitly makes reference to the case of Tinsley v Milligan, it is important to go through the judgement briefly. The facts of the case and judges’ stance on POA during the trial and the first appeal should be pointed out.

Para 4: This is where the juicy bit starts. Explain the majority and minority stance of the House of Lords. If possible, describe the various reasoning provided by each Law Lord in the judgement. In House of Lord cases, there are usually five Law Lords (judges). In Tinsley v Milligan, the Law Lords were split in their decision. Three Law Lords shared the same stance (the ‘majority’) whereas the remaining two shared another stance (minority).

Paras 5-8: Here, you have to pick your stance. If choose to disagree with the majority’s view, you should first lay out all the arguments against it. Each argument has to be supplemented by detailed reasoning in the subsequent paragraphs. Remember to incorporate comments from judges, scholars and also include your own view. Law Commission reports are particularly useful as they usually include the full arguments of different views.

Para 9: After criticising the problems brought along by the majority judgement, you should try to suggest solutions to cure the faulty law.

Para 10: End your essay with a conclusion.