what is law dissertation

Legal Dissertation: Research and Writing Guide

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About This Page

Choosing a topic can be one of the most challenging aspects of writing an extensive paper. This page has resources to help you find topics and inspiration, before you get started on the in-depth research process.

Related Guides

Citation and Writing Resources

Legal Research Tutorials

Secondary Sources for Legal Research

Methods of Finding Cases

Methods of Finding Statutes

Current Awareness and Alerting Resources

Compiling State Legislative Histories

Locating International and Foreign Law Journals

This guide contains resources to help students researching and writing a legal dissertation or other upper-level writing project. Some of the resources in this guide are directed at researching and writing in general, not specifically on legal topics, but the strategies and tips can still be applied.

The Law Library maintains a number of other guides on related skills and topics that may be of interest:

The Wells Library also maintains guides. A few that may be helpful for managing research can be found here:

Choosing a Topic

This video discusses tips and strategies for choosing a dissertation topic.

Note: this video is not specific to legal dissertation topics, but it may still be of interest as an overview generally.

The Bloomberg/BNA publication United States Law Week can be a helpful resource for tracking down the major legal stories of the day.  Log into Bloomberg Law, in the big search box, start typing United States Law Week and the title will appear in the drop down menu beneath the box. This publication provides coverage of top legal news stories, and in-depth "insight" features.

If you have a general idea of the area of law you wish to write about, check out the Practice Centers on Bloomberg. From the homepage, click the Browse link in the top left-hand corner. Then select Practice Centers and look for your area of law. Practice Centers are helpful because they gather cases, statutes, administrative proceedings, news, and more on the selected legal area.

Bloomberg has other news sources available as well. From the homepage, click the Browse link in the top left-hand corner. Then select News and Analysis, then select News or Analysis, and browse the available topics.

If you know what area of law you'd like to write about, you may find the Browse Topics feature in Lexis Advance helpful for narrowing down your topic. 

Log into Lexis Advance, click the Browse Topics tab, and select a topic.  If you don't see your topic listed, try using the provided search bar to see whether your topic is categorized as a sub-topic within this list. 

Once you click on a topic, a box pops up with several options.  If you click on Get Topic Document, you'll see results listed in a number of categories, including Cases, Legislation, and more.  The News and Legal News categories at the right end of the list may help you identify current developments of interest for your note.  Don't forget about the filtering options on the left that will allow you to search within your results, narrow your jurisdiction, and more.

Similar to Lexis Advance, Westlaw Edge has a Topics tab that may be helpful if you know what area of law you'd like to write about.

Log onto Westlaw Edge, and click on the Topics tab.  This time, you won't be able to search within this list, so if you're area is not listed, you should either run a regular search from the main search bar at the top or try out some of the topics listed under this tab - once you click on a topic, you can search within its contents.

What is great about the Topics in Westlaw Edge is the Practitioner Insights page you access by clicking on a topic.  This is an information portal that allows you quick access to cases, legislation, top news, and more on your selected topic.

In United States federal courts, a circuit split occurs whenever two or more circuit courts of appeals issue conflicting rulings on the same legal question. Circuit splits are ripe for legal analysis and commentary because they present a situation in which federal law is being applied in different ways in different parts of the country, even if the underlying litigants themselves are otherwise similarly situated. The Supreme Court also frequently accepts cases on appeal that involve these types of conflicted rulings from various sister circuits.

To find a circuit split on a topic of interest to you, try searching on Lexis and Westlaw using this method:

in the search box, enter the following: (circuit or court w/s split) AND [insert terms or phrases to narrow the search]

You can also browse for circuit splits on Bloomberg. On the Bloomberg homepage, in the "Law School Success" box, Circuit Splits Charts appear listed under Secondary Sources.

Other sources for circuit splits are American Law Reports (ALR) and American Jurisprudence (AmJur). These publications provide summaries of the law, point out circuit splits, and provide references for further research.

"Blawgs" or law-related blogs are often written by scholars or practitioners in the legal field.  Ordinarily covering current events and developments in law, these posts can provide inspiration for note topics.  To help you find blawgs on a specific topic, consider perusing the ABA's Blawg Directory or Justia's Blawg Search .

Research Methodology

Types of research methodologies.

There are different types of research methodologies. Methodology refers to the strategy employed in conducting research. The following methodologies are some of the most commonly used in legal and social science research.

Doctrinal legal research methodology, also called "black letter" methodology, focuses on the letter of the law rather than the law in action. Using this method, a researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, statutes, or regulations). The purpose of this method is to gather, organize, and describe the law; provide commentary on the sources used; then, identify and describe the underlying theme or system and how each source of law is connected.

Doctrinal methodology is good for areas of law that are largely black letter law, such as contract or property law. Under this approach, the researcher conducts a critical, qualitative analysis of legal materials to support a hypothesis. The researcher must identify specific legal rules, then discuss the legal meaning of the rule, its underlying principles, and decision-making under the rule (whether cases interpreting the rule fit together in a coherent system or not). The researcher must also identify ambiguities and criticisms of the law, and offer solutions. Sources of data in doctrinal research include the rule itself, cases generated under the rule, legislative history where applicable, and commentaries and literature on the rule.

This approach is beneficial by providing a solid structure for crafting a thesis, organizing the paper, and enabling a thorough definition and explanation of the rule. The drawbacks of this approach are that it may be too formalistic, and may lead to oversimplifying the legal doctrine.

Comparative

Comparative legal research methodology involves critical analysis of different bodies of law to examine how the outcome of a legal issue could be different under each set of laws. Comparisons could be made between different jurisdictions, such as comparing analysis of a legal issue under American law and the laws of another country, or researchers may conduct historical comparisons.

When using a comparative approach be sure to define the reasons for choosing this approach, and identify the benefits of comparing laws from different jurisdictions or time periods, such as finding common ground or determining best practices and solutions. The comparative method can be used by a researcher to better understand their home jurisdiction by analyzing how other jurisdictions handle the same issue. This method can also be used as a critical analytical tool to distinguish particular features of a law. The drawback of this method is that it can be difficult to find material from other jurisdictions. Also, researchers should be sure that the comparisons are relevant to the thesis and not just used for description.

This type of research uses data analysis to study legal systems. A detailed guide on empirical methods can be found here . The process of empirical research involves four steps: design the project, collect and code the data, analyze the data, determine best method of presenting the results. The first step, designing the project, is when researchers define their hypothesis and concepts in concrete terms that can be observed. Next, researchers must collect and code the data by determining the possible sources of information and available collection methods, and then putting the data into a format that can be analyzed. When researchers analyze the data, they are comparing the data to their hypothesis. If the overlap between the two is significant, then their hypothesis is confirmed, but if there is little to no overlap, then their hypothesis is incorrect. Analysis involves summarizing the data and drawing inferences. There are two types of statistical inference in empirical research, descriptive and causal. Descriptive inference is close to summary, but the researcher uses the known data from the sample to draw conclusions about the whole population. Causal inference is the difference between two descriptive inferences.

Two main types of empirical legal research are qualitative and quantitative.

Quantitative, or numerical, empirical legal research involves taking information about cases and courts, translating that information into numbers, and then analyzing those numbers with statistical tools.

Qualitative, or non-numerical, empirical legal research involves extracting  information from the text of court documents, then interpreting and organizing the text into categories, and using that information to identify patterns.

Drafting The Methodology Section

This is the part of your paper that describes the research methodology, or methodologies if you used more than one. This section will contain a detailed description of how the research was conducted and why it was conducted in that way. First, draft an outline of what you must include in this section and gather the information needed.

Generally, a methodology section will contain the following:

• Statement of research objectives
• Reasons for the research methodology used
• Description and rationale of the data collection tools, sampling techniques, and data sources used, including a description of how the data collection tools were administered
• Discussion of the limitations
• Discussion of the data analysis tools used

Be sure that you have clearly defined the reasoning behind the chosen methodology and sources.

• Legal Reasoning, Research, and Writing for International Graduate Students Nadia E. Nedzel Aspen (2004) A guide to American legal research and the federal system, written for international students. Includes information on the research process, and tips for writing. Located in the Law Library, 3rd Floor: KF 240 .N43 2004.
• Methodologies of Legal Research: Which Kind of Method for What Kind of Discipline? Mark van Hoecke Oxford (2013) This book examines different methods of legal research including doctrinal, comparative, and interdisciplinary. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 235 .M476 2013. IU students may request item via IUCAT.
• An Introduction to Empirical Legal Research Lee Epstein and Andrew D. Martin Oxford University Press (2014) This book includes information on designing research, collecting and coding data, analyzing data, and drafting the final paper. Located at Lilly Law Library, Indianapolis, 2nd Floor: K 85 .E678 2014. IU students may request item via IUCAT.
• Emplirical Legal Studies Blog The ELS blog was created by several law professors, and focuses on using empirical methods in legal research, theory, and scholarship. Search or browse the blog to find entries on methodology, data sources, software, and other tips and techniques.

Literature Review

The literature review provides an examination of existing pieces of research, and serves as a foundation for further research. It allows the researcher to critically evaluate existing scholarship and research practices, and puts the new thesis in context. When conducting a literature review, one should consider the following: who are the leading scholars in the subject area; what has been published on the subject; what factors or subtopics have these scholars identified as important for further examination; what research methods have others used; what were the pros and cons of using those methods; what other theories have been explored.

The literature review should include a description of coverage. The researcher should describe what material was selected and why, and how those selections are relevant to the thesis. Discuss what has been written on the topic and where the thesis fits in the context of existing scholarship. The researcher should evaluate the sources and methodologies used by other researchers, and describe how the thesis different.

The following video gives an overview of conducting a literature review.

Note: this video is not specific to legal literature, however it may be helpful as a general overview.

Not sure where to start? Here are a few suggestions for digging into sources once you have selected a topic.

Research Guides

Research guides are discovery tools, or gateways of information. They pull together lists of sources on a topic. Some guides even offer brief overviews and additional research steps specifically for that topic. Many law libraries offer guides on a variety of subjects. You can locate guides by visiting library websites, such as this Library's site , the Law Library of Congress , or other schools like Georgetown . Some organizations also compile research guides, such as the American Society of International Law . Utilizing a research guide on your topic to generate an introductory source list can save you valuable time.

Secondary Sources

It is often a good idea to begin research with secondary sources. These resources summarize, explain, and analyze the law. They also provide references to primary sources and other secondary sources. This saves you time and effort, and can help you quickly identify major themes under your topic and help you place your thesis in context.

Encyclopedias provide broad coverage of all areas of the law, but do not go in-depth on narrow topics, or discuss differences by jurisdiction, or  include all of the pertinent cases. American Jurisprudence ( AmJur ) and Corpus Juris Secundum ( CJS ) have nationwide coverage, while the Indiana Law Encyclopedia focuses on Indiana state law. A number of other states also have their own state-specific encyclopedias.

American Law Reports ( ALR ) are annotations that synopsize various cases on narrow legal topics. Each annotation covers a different topic, and provides a leading or typical case on the topic, plus cases from different jurisdictions that follow different rules, or cases where different facts applying the same rule led to different outcomes. The annotations also refer to other secondary sources.  

Legal periodicals include several different types of publications such as law reviews from academic institutions or organizations, bar journals, and commercial journals/newspapers/newsletters. Legal periodicals feature articles that describe the current state of the law and often explore underlying policies. They also critique laws, court decisions, and policies, and often advocate for changes. Articles also discuss emerging issues and notify the profession of new developments. Law reviews can be useful for in-depth coverage on narrow topics, and references to primary and other secondary sources. However, content can become outdated and researchers must be mindful of biases in articles. 

Treatises/Hornbooks/Practice Guides are a type of secondary source that provides comprehensive coverage of a legal subject. It could be broad, such as a treatise covering all of contract law, or very narrow such as a treatise focused only on search and seizure cases. These sources are good when you have some general background on the topic, but you need more in-depth coverage of the legal rules and policies. Treatises are generally well organized, and provide you with finding aids (index, table of contents, etc.) and extensive footnotes or endnotes that will lead you to primary sources like cases, statutes, and regulations. They may also include appendices with supporting material like forms. However, treatises may not be updated as frequently as other sources and may not cover your specific issue or jurisdiction.

Citation and Writing Style

• Legal Writing in Plain English Bryan A. Garner University of Chicago Press, 2001. Call # KF 250 .G373 2001 Location: Law Library, 3rd Floor Provides lawyers, judges, paralegals, law students, and legal scholars with sound advice and practical tools for improving their written work. The leading guide to clear writing in the field, this book offers valuable insights into the writing process: how to organize ideas, create and refine prose, and improve editing skills. This guide uses real-life writing samples that Garner has gathered through decades of teaching experience. Includes sets of basic, intermediate, and advanced exercises in each section.
• The Elements of Legal Style Bryan A. Garner Oxford University Press, 2002. Call # KF 250 .G37 2002 Location: Law Library, 1st Floor, Reference This book explains the full range of what legal writers need to know: mechanics, word choice, structure, and rhetoric, as well as all the special conventions that legal writers should follow in using headings, defined terms, quotations, and many other devices. Garner also provides examples from highly regarded legal writers, including Oliver Wendell Holmes, Clarence Darrow, Frank Easterbrook, and Antonin Scalia.
• Grammarly Blog Blog featuring helpful information about quirks of the English language, for example when to use "affect" or "effect" and other tips. Use the search feature to locate an article relevant to your grammar query.
• Plain English for Lawyers Richard C. Wydick Carolina Academic Press, 2005. Call # KF 250 .W9 2005 Location: Law Library, 3rd Floor Award-winning book that contains guidance to improve the writing of lawyers and law students and to promote the modern trend toward a clear, plain style of legal writing. Includes exercises at the end of each chapter.
• The Chicago Manual of Style University of Chicago Press, 2010. Call # Z 253 .U69 2010 Location: Law Library, 2nd Floor While not addressing legal writing specifically, The Chicago Manual of Style is one of the most widely used and respected style guides in the United States. It focuses on American English and deals with aspects of editorial practice, including grammar and usage, as well as document preparation and formatting.
• The Chicago Manual of Style (Online) Bryan A. Garner and William S. Strong The University of Chicago Press, 2017. Online edition: use the link above to view record in IUCAT, then click the Access link (for IU students only).
• The Bluebook Compiled by the editors of the Columbia Law Review, the Harvard Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal. Harvard Law Review Association, 2015. Call # KF245 .B58 2015 Location: Law Library, 1st Floor, Circulation Desk The Bluebook: A Uniform System of Citation is a style guide that prescribes the most widely used legal citation system in the United States. The Bluebook is taught and used at a majority of U.S. law schools, law reviews and journals, and used in a majority of U.S. federal courts.
• User's Guide to the Bluebook Alan L. Dworsky William S. Hein & Co., Inc., 2015. Call # KF 245 .D853 2015 Location: Law Library, Circulation Desk "This User's Guide is written for practitioners (law students, law clerks, lawyers, legal secretaries and paralegals), and is designed to make the task of mastering citation form as easy and painless as possible. To help alleviate the obstacles faced when using proper citation form, this text is set up as a how-to manual with a step-by-step approach to learning the basic skills of citation and includes the numbers of the relevant Bluebook rules under most chapter subheadings for easy reference when more information is needed"--Provided by the publisher.
• Legal Citation in a Nutshell Larry L. Teply West Academic Publishing, 2016. Call # KF 245 .T47 2016 Location: Law Library, 1st Floor, Circulation Desk This book is designed to ease the task of learning legal citation. It initially focuses on conventions that underlie all accepted forms and systems of legal citation. Building on that understanding and an explanation of the “process” of using citations in legal writing, the book then discusses and illustrates the basic rules.
• Introduction to Basic Legal Citation (Online) Peter W. Martin Cornell Legal Information Institute, 2017. Free online resource. Includes a thorough review of the relevant rules of appellate practice of federal and state courts. It takes account of the latest edition of The Bluebook, published in 2015, and provides a correlation table between this free online citation guide and the Bluebook.
• Last Updated: Oct 24, 2019 11:00 AM
• URL: https://law.indiana.libguides.com/dissertationguide

How to Write a First Class Law Dissertation – Complete Guide

• November 18, 2010

“Protection of the Right to a Fair Trial and Civil Jurisdiction: Permitting Delay, Restricting Access and Recognising Incompatible Judgments”.

Below is my honours law dissertation together with tips and a very special video from an ex-Cambridge professor at the end. Enjoy!

And if you have any legal blog posts you’d like to share (whether after you have submitted your dissertation or before), please get in touch – our goal is to help share great legal information online to improve legal understanding and access to justice around the world.

And see also our lists of The Best Law Schools in the World and  Top 10 Law Schools in the UK that aspiring law students may find of interest.

How to write a first class legal dissertation: Content and Structure

Three tips can be suggested to get you started on the right foot:

First, research the subject in which you are most interested in writing about for your dissertation, then choose a sufficiently narrow angle to approach the subject or choose something that hasn’t been discussed much before.

Second, collect, or print out or photocopy all relevant materials which discuss that narrow subject.

Third, plan rough headings for sub-topics within the main subject. While the contents below were finalised towards the end of the writing process, the rough structure was formulated at an early point in the writing process. This is how many academics write their books: they provide themselves with lots of headings and subheadings, then chip away at the work, bit by bit until complete.

Examples contents for “Protection of the Right to a Fair Trial and Civil Jurisdiction: Permitting Delay, Restricting Access and Recognising Incompatible Judgments” are as follows:-

1. INTRODUCTION

2. ARTICLE 6: THE RIGHT TO A FAIR TRIAL

2.1. Substantive Elements 2.2. Procedural Operation: Direct and Indirect Effect 2.3. The Human Rights Act 1998

3. REASONABLE TIME

3.1. Introduction 3.2. Framework under Article 6 3.3. Conflict with Lis Pendens: Erich Gasser 3.3.1. Delay in the Italian Court 3.3.2. A Clash of Treaties 3.3.3. Future Application 3.4. Conflict with Forum non Conveniens 3.4.1. General Operation 3.4.2. First Limb of Spiliada 3.4.3. Second Limb of Spiliada 3.5. Conclusions

4. ACCESS TO A COURT

4.1. Operation in Article 6 4.2. Anti-Suit Injunctions 4.3. Exclusive Jurisdiction Agreements and Waiving Convention Rights 4.4. Limitations on Jurisdiction 4.5. Conflict with Forum non Conveniens 4.6. Owusu v Jackson 4.7. Conclusions

5. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS

5.1. Recognition of Contracting State Judgments 5.2. Recognition of Non-Contracting State Judgments 5.2.1. European Court of Human Rights 5.2.2. House of Lords 5.4. Conclusions

6. CONCLUSIONS

7. BIBILIOGRAPHY

7.1. Table of Cases 7.2. Table of Legislation 7.3. Table of Conventions 7.4. Textbooks 7.5. Articles

Writing your introduction

Together with the conclusion, the introduction is one of the most significant pieces of a dissertation that you have to get right. A well-written introduction can make all the difference between a first class and an upper second.

If you take just one thing away from this series of posts, it is this. You can develop a better stream of communication with your reader, forming a better relationship, if you tell them what you are going to say (introduction), say it (main body), then tell them what you have said (conclusion).

So, to the introduction, set the scene as fast as possible then tell the reader what you are going to say, but don’t be so amateurish as to write “I am going to discuss X, Y and Z”. Be more indirect. Suggest, for instance, that there are problems with the law that need to be resolved.

1. INTRODUCTION Long since inevitable initial encounters, human rights concerns, particularly regarding the right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR), have been accelerating in today’s civil jurisdiction and judgments arena in the United Kingdom, a notable consequence of the passing of the Human Rights Act (HRA) 1998. More than six years from the Act’s coming into force, it is now imperative to reach conclusions which reflect the “importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights,” as Mance LJ (as he then was) has noted. This necessity is reflected in the recent extensive consideration of the right to a fair trial in key works of some of the most authoritative conflict lawyers in the United Kingdom, including Sir Lawrence Collins, Professor Adrian Briggs and, most significantly, Professor James Fawcett. Methods of protecting the right to a fair trial and thus of avoiding a breach of Article 6 are irrelevant to the European Court of Human Rights (ECtHR); the Court is not concerned with reviewing under the Convention in abstracto the law complained of, but rather the application of that law. There is therefore a large amount of discretion afforded to the courts regarding techniques to avoid infringement of the Convention. In the context of civil jurisdiction and judgments, various methods of avoiding infringement, or indeed enabling protection, of the right to a fair trial exist. However, the extent to which these have been used in practice, both by the UK courts and the ECJ, has been limited, a result of various factors, the most striking of which being the wrongful application of the ECHR and even the conscious decision to ignore it. Before analysing specific fair trial concerns in detail, it is necessary to examine the general structure and operation of Article 6 as it applies to civil jurisdiction and judgments.

Chapter 1: Setting the scene

Depending on the nature of your dissertation, you may need to set the scene further. In a legal dissertation, by “scene” is meant the bits of law that are relevant to set up key arguments in the main body of the dissertation. With this example dissertation, the target readership was, for various reasons, international private law experts. Because human rights law was a key part of the debate, the relevant law had to be set out in such detail that the chapters following it could discuss, for instance, the right to a fair trial and the doctrines of direct and indirect effect without any need for constant repetitive explanation.

2. ARTICLE 6: THE RIGHT TO A FAIR TRIAL 2.1. Substantive Elements Article 6(1) ECHR provides inter alia that “[i]n the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….” The ECtHR has reverberated that “the right to a fair administration of justice holds such a prominent place” that Article 6 should not be interpreted restrictively. Instead, the seemingly distinct provisions of Article 6 are not discrete, but are “rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term.” This single right is the title of Article 6: the “right to a fair trial.” This right comprises two particularly significant elements important in the context of civil jurisdiction and judgments. First, the right to a trial within a reasonable time. Expressly stated in Article 6(1), this right may be pertinent where proceedings are stayed in favour of a foreign court. Second, access to a court, an inherent element of Article 6(1). This may have relevance where access is denied to the UK courts through, for example, staying proceedings, or restraining foreign proceedings. 2.2 Procedural Operation: Direct and Indirect Effect Article 6 can operate through a number of mechanisms in the civil jurisdiction and judgments context, which must be distinguished for analytical purposes. First, through direct effect, where there is direct protection of a party’s right to a fair trial in the domestic courts themselves. Such protection is strong and somewhat easier to obtain because there is no test for the seriousness of the breach. Such infringement may occur through a refusal of access to the UK courts, which refusal may emanate from, inter alia, an exclusion of jurisdiction or stay of proceedings. Second, through indirect effect, where a person is transferred to another country where his right to a fair trial may be infringed in that country. In Soering v United Kingdom the ECtHR emphasised that it was for Member States to secure Convention rights of persons within their jurisdiction, but that this obligation did not extend to non-Contracting States, nor should it seek to impose ECHR standards on such States. Thus, for example, in respect of deportation of a person to the United States of America from England, there may be an indirect breach of Article 6, but only where the transfer creates or risks creating a flagrant breach of the claimant’s right to a fair trial in that other country. In presenting an argument for the creation of such risk, it is axiomatic that a strong compilation of evidence is essential, with reference to the circumstances of both the case and proceedings of the court in question. The difficulty with such an argument in the civil jurisdiction sphere is that stays of proceedings concern transfers of actions abroad, not persons. Notwithstanding, arguments for the application of the indirect effect doctrine in this context are still applicable because the situations are “essentially the same.” Indeed, it could be argued that staying proceedings amounts to a transfer of persons through effective compulsion. Nevertheless, no authority exists for this argument and indeed the indirect effect doctrine itself has not been successfully relied upon in an Article 6 context before the (former) Commission or ECtHR. Third, through indirect effect where enforcement in a Contracting State of a judgment from a foreign State, whether Contracting or non-Contracting, would breach Article 6 because that judgment itself breached Article 6 standards. It has been stated that such a breach by the foreign court must also be a flagrant one. However, the reasoning underlying this proposition is unclear and, as with many matters in the civil jurisdiction and judgments sphere, there are concerns as to the extent to which the right to a fair trial can be upheld in this respect. 2.3 The Human Rights Act 1998 The Convention rights, including Article 6, now have the force of law in the United Kingdom under the HRA 1998. The Act places two initial express duties on the UK courts: first, the duty to read and give effect to primary and subordinate legislation in a way compatible with the Convention rights, if possible; second, the duty to take into account inter alia any previous judgment of the ECtHR in determining proceedings which have a Convention right element, insofar as it has relevance to those proceedings. Moreover, under Section 6(1) of the HRA 1998, it is unlawful for a public authority, including a court, to act in a way incompatible with a Convention right. This is a significant duty on the courts, which indeed sparked considerable academic debate as to the Act’s impact on private commercial disputes. Thus, the courts have a duty to interpret and apply the common law or any exercise of discretion compatibly with the right to a fair trial under Article 6. Ultimately, this may amount to a positive duty to develop the common law, extending beyond mere interpretation of the common law to conform to the Convention principles. Notwithstanding this rather stringent theoretical framework for the courts upholding the right to a fair trial, there has been a lack of consistency in its practical impact in the field of civil jurisdiction and judgments. Endnotes *Converting c300 footnotes on a Microsoft Word document to a WordPress post is not feasible for this blawgger. They are, therefore, pasted below as endnotes. The full dissertation is available in the Juridical Review, vol 1 of 2008 pp15-31 Delcourt v Belgium (1979-80) 1 EHRR 355, at [25]; indeed, the principles of due process and the rule of law are fundamental to the protection of human rights (Clayton and Tomlinson: 2000, p550,) just as a fair trial is a fundamental element of the rule of law (Ovey and White: 2002, p139.) Golder v. United Kingdom [1975] ECHR 1, at [28]. Ibid., at [36]. Such cases can be labelled “domestic” ones: Government of the United States of America v Montgomery (No 2) [2004] UKHL 37, at [15], per Lord Bingham. R (Razgar) v Special Adjudicator [2004] AC 368, at [42]. Soering v United Kingdom (1989) 11 EHRR 439. Ibid., at [113]; this test has been followed subsequently: e.g. Einhorn v France (no.71555/01, 16 October 2001) at [32], Tomic v United Kingdom (no.17837/03, 14 October 2003) at [3]. Fawcett; 2007, p4. Ibid. Montgomery (n12); Drozd and Janousek v France and Spain (1992) 14 EHRR 745, p795; cf. Pellegrini v Italy [2001] ECHR 480. HRA 1998, s3(1). Ibid., s2(1)(a); such previous decisions are not binding; notwithstanding, as Lord Slynn observed in R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389 at [26]: “[i]n the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the [ECtHR].” Ibid., s6(3)(a). Wade: 2000; Lester and Pannick: 2000. Such discretion should be “exercised with great caution and with close regard to the overall fairness of the proceedings”: R v Jones [2003] AC 1, at [6], per Lord Bingham. HL Deb vol.583, p783 (24 November 1997); Grosz, Beatson and Duffy: 2000, para.4.56; cf.. Derbyshire CC v Times Newspapers Ltd [1992] QB 770. Grosz, Beatson and Duffy: 2000, para.4.59.

Main Body Part 1

Next follows the first main chunk discussing and debating the title of the dissertation. To maintain structure, even this sub-section of the dissertation has its own introduction, some degree of scene-setting with Art 6 in the particular context of the chapter, argument through various levels and conclusions.

3. REASONABLE TIME 3.1. Introduction It has been stated that “excessive delays in the administration of justice constitute an important danger, in particular for the respect of the rule of law” and for the legal certainty of citizens. This importance is reflected in the express protection of the reasonable time requirement in Article 6. There have been recent challenges in the civil jurisdiction context on this ground, the most significant of which being raised in Erich Gasser GmbH v Misat Srl, concerning conflict with lis pendens. A further instance, the common law doctrine of forum non conveniens has been suggested to be so incompatible, which would therefore have implications for the doctrine in its now very limited common law habitat. 3.2. Framework under Article 6 In civil cases, time starts to run when the proceedings are instituted and stops when legal uncertainty has been removed, which normally requires that the final appeal decision has been made or the time for making an appeal has expired. It is generally accepted that the correct approach is to decide whether the overall delay is prima facie “unreasonable” for the type of proceedings concerned and thereafter consider whether the State is able to justify each period of delay. In assessing such justification, the limited guidelines indicate that all the circumstances will be considered, with particular regard to the complexity of the case and the conduct of the applicant and judicial authorities in addition to the behaviour of other parties to the case and what is at stake in the litigation for the applicant. Generally, where proceedings are stayed, there are three stages which must be distinguished for determining delay. First, the proceedings before the domestic court. Any unjustifiable delay at this point would amount to a direct breach of Article 6. Second, the transfer of proceedings to the foreign court. Delay at this stage would be less justifiable where, for instance, there was known to be a heavy backlog of cases. Notwithstanding, the “normal lapses of time stemming from the transfer of the cases” are not to be regarded as unjustified. Third, the proceedings before the foreign court. At the second and third stages, although any unreasonable delay by the foreign court will amount to a direct breach by that court, there could also be an indirect breach by the domestic court, but only to the extent that the party suffered, or risked suffering, a flagrant breach. Endnotes Committee of Ministers of the Council of Europe, Resolution DH (97) 336, 11 July 1997. Fabri and Langbroek: 2003, p3. C-116/02 [2005] QB 1. Opinion of AG Léger in Owusu v Jackson C-281/02 [2005] QB 801 at [270]. A sist by the Scottish courts through forum non conveniens can be made where jurisdiction is founded on Art.4 of the Judgments Regulation or Convention: Collins et al: 2006, para.12-023. Moreover, a sist can be made on the ground that the courts of England or Northern Ireland are the forum conveniens, because intra-UK jurisdiction can be so settled: Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times, 8 June 1995; Collins: 1995. Scopelliti v Italy (1993) 17 EHRR 493, at [18]. Vocaturo v Italy [1991] ECHR 34. E.g. fewer than six years for a reparation action (Huseyin Erturk v Turkey [2005] ECHR 630.) Clayton and Tomlinson: 2000, p654; Harris, O’Boyle and Warbrick: 1995, p229. Eckle v Germany (1983) 5 EHRR 1, at [80]; an obvious consideration being delay in commencing proceedings. Buchholz v Germany [1981] ECHR 2, at [49]. Foti v Italy (1982) 5 EHRR 313, at [61]. Zimmermann and Steiner v Switzerland [1983] ECHR 9; Guincho v Portugal [1984] ECHR 9; cf. Buchholz (n36), at [61], where the backlog was not reasonably foreseeable; exceptional circumstances were taken into account in Foti (n37) as a result of troubles in Reggio Calabria, which impacted proceedings in the courts in Potenza, to which cases had been transferred. Foti (n37), at [61]. Soering (n14) at [113].

Having set the scene, it is time to delve straight into comment and opinion, drawing on relevant facts and law where required. Where possible, suggest ways in which events or decisions could have been improved and do not be afraid to say that commentators, judges or even powerful institutions, like the ECJ, got it wrong.

3.3. Conflict with Lis Pendens: Erich Gasser Erich Gasser v MISAT concerned the validity of a choice-of-court agreement in favour of the Austrian courts where one party had first seised the Italian courts by way of negative declaration. Second seised, the Austrian Court sought a reference from the ECJ on, inter alia, whether it must stay its proceedings under lis pendens where the proceedings in the court first seised generally take an unreasonably long time, such that there may be a breach of Article 6. Both the claimant and the intervening UK Government invoked the ECHR, arguing that Article 21 of the Brussels Convention should be interpreted in conformity with Article 6 ECHR to avoid excessively protracted proceedings, given that proceedings in Italy were likely to take an unreasonably long time. Through this interpretation, it was argued that Article 21 should not be applied if the court first seised had not determined its jurisdiction within a reasonable time. In a very short response, the ECJ effectively said that the ECHR did not apply because first, it is not expressly mentioned in the Brussels Convention and second, there is no room for it in a collection of mandatory rules underpinned by mutual trust between Contracting States. 3.3.1. Delay in the Italian Court However, it may be seen that the stay de facto risked at least a standard breach in the Italian court. The Italian courts have been held in breach of Article 6 a staggering number of times because of unreasonable slowness. The existence of these breaches amounted to a practice incompatible with the ECHR and produced the notoriety of the Italian legal system as “the land that time forgot.” Indeed, the practice of seising the Italian courts first by way of negative declaration has become known as instituting an “Italian torpedo,” which may succeed in delaying proceedings substantially even where the Italian courts have no jurisdiction. It has already been noted that evidence is crucial in determining a real risk of a breach of Article 6. Instead, in Gasser, human rights arguments were based upon a general breach of the reasonable time requirement in Italian courts. Moreover, no ECtHR case law was relied upon when so arguing, nor was mention made of previous breaches. Therefore, a very weak argument, if any, was laid before the ECJ in respect of a risk of a breach. In effect, the ECJ was being asked something tantamount to whether there should be an exception to Article 21 in respect of certain Member States, a question justifiably answered in the negative. However, if the arguments had been more focussed, concentrating on the present case, with evidence to show the likelihood of breach in the Tribunale civile e penale di Roma, then the ECJ may have been more persuaded by Article 6 considerations, as Fawcett suggests. Notwithstanding previous delays, efforts have been made to reduce the backlog of cases. This is somewhat owing to Article 13 ECHR, which requires Contracting States to provide persons with an effective national remedy for breach of a Convention right. Such domestic remedies assist in reducing further breaches and ultimately reduce the need for the indirect effect doctrine. Thus, the Italian “Pinto Act” was passed, providing a domestic legal remedy for excessive length-of-proceedings cases. The existence of this remedy may have gone towards justifying application of Article 21, which indeed was one of the questions referred to the ECJ by the Austrian Court, although unanswered. 3.3.2. A Clash of Treaties Nevertheless, given that the ECJ so held that Article 6 considerations were irrelevant, there may be further legal implications, particularly for the Austrian Court which was required to stay its proceedings under the Brussels Convention. If this stay created or risked creating a flagrant breach of the reasonable time requirement in the Italian Court, Austria may itself have breached Article 6 indirectly. Such an indirect breach is clearly not justifiable on the ground that Austria is party to the Brussels Convention or Regulation made under the European Treaties. Hence, the judgment may lead to a clash between the ECHR and Brussels Convention or Regulation. This in turn raises the questions of how and to what extent the Brussels Convention or Regulation could have been interpreted to give effect to Article 6. Formerly Article 57 of the Brussels Convention, Article 71 of the Brussels Regulation provides inter alia that “(1) [t]his Regulation shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition of judgments.” Although the ECHR is not prima facie a Convention governing jurisdiction, all Member States are party to it and Article 6 contains the inherent right of access to a court. Thus, as Briggs and Rees argue, this may have application where a court with jurisdiction is prevented from exercising that jurisdiction in a manner compatible with the ECHR. Therefore, in Gasser Article 71 may have been applied to allow Austria to act in accordance with its obligations under the ECHR. This approach is complemented by Article 307 (ex 234) EC such that Article 21 or 27 of the Brussels Convention or Regulation respectively can be overridden by a Convention previously entered into, including the ECHR. Further, this conclusion is even more realistic in light of the jurisprudence of the ECJ, which is peppered with notions of protection for fundamental rights, and the express protection of these rights in Article 6(2) EC. Instead of even contemplating such an outcome, the ECJ showed that it was prepared to ignore a significant international convention. Perhaps, in addition to mutual trust between Contracting States, mutual recognition of international conventions should have been considered, especially due to the express provisions permitting such consideration. Endnotes Those having a duration of over three years: Gasser (n28), at [59]. At [71]-[73]. See Ferrari v Italy [1999] ECHR 64, at [21]. Ferrari (n46), at [21]; Article 6 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet the requirements of the provision (Salesi v Italy [1993] ECHR 14, at [24].) Briggs and Rees: 2005, Preface to the Fourth Edition, p.v. Messier-Dowty v Sabena [2000] 1 WLR 2040. Franzosi: 1997, p384. Transporti Castelletti v Hugo Trumpy, C-159/97, [1999] ECR I-1597. Supra p4. Opinion of A.G. Léger in Gasser, at [88]. When Gasser came before the ECJ, there was already a delay in Italian proceedings of 3½ years in determining jurisdiction. Fawcett: 2007, p15. Kudla v Poland [2000] ECHR 512. Fawcett: 2007, p4. Law no.89 of 24 March 2001. However, even this has breached Article 6(1): Riccardo Pizzati v Italy [2006] ECHR 275, at [66]; Mance suggests that the Act only partially solved if not repatriated the ECtHR’s overwhelming number of claims in this respect (Mance: 2004b, p357.) Notwithstanding, since 1999, there has been a trend of continuous breach, the ECtHR having adopted more than 1,000 judgments against Italy (Riccardo Pizzati, at [66].) As Briggs and Rees note, the ECHR “might as well have been part of the law of Mars for all the impact it had.” (Briggs and Rees:2005, para.2.198.) Soering (n14), at [113]. Matthews v United Kingdom [1999] ECHR 12. Hartley: 2005b, p821 n35; the most important example of a conflict of treaties: Hartley: 2001, p26. Briggs and Rees: 2005, para.2.38. An approach recognised by both Mance (Mance: 2004a, paras.6-7) and Hartley (Hartley: 2005a, p383.) ERT v DEP C-260/89 [1991] ECR I-2925, at [41]; “Bosphorus Airways” v Ireland (2006) 42 EHRR 1,at [73]; particularly for Article 6: Philip Morris International Inc v Commission of the European Communities [2003] ECR II-1, at [121].

Tip: Suggest Improvements for the Future

It may be that, in the course of the research for your dissertation, you discover previous decisions and actions that may happen again in the future. You may want to suggest that there is such a risk in the future and that there are ways in which that risk can be guarded against. You may also want to state challenges with implementing such safeguards. For instance, in the below section, there is comment that the ECJ is, sometimes, so myopic that its stance won’t budge.

3.3.3. Future Application The ECtHR has held that a failure by a national court to make a preliminary reference to the ECJ could be a breach of Article 6 ECHR in certain circumstances. Thus, it is arguable that where similar facts to Gasser arise again, the domestic court may have to make a reference to the ECJ, and in doing so, show cogent evidence of the risk of a flagrant breach, unlike that presented to the ECJ in Gasser. In this context, the ECJ will have another chance to take human rights seriously, with the opportunity to apply Article 307 EC complementing Article 71 of the Brussels Regulation and jurisprudence both of the ECJ and ECtHR. Notwithstanding, given the ECJ’s swift dismissal of human rights concerns in Gasser in favour of the inflexible system of lis pendens, it appears unlikely that it would permit exception in the future. For the ECJ legal certainty under the Brussels regime is clearly more significant than legal certainty either through party autonomy under jurisdiction agreements or through the right to a fair hearing within a reasonable time. As Merrett notes, “[t]he ECJ simply does not see questions of jurisdiction as being concerned with private rights at all,” a stance which will need to change, particularly in light of the pressing atmosphere of today’s human rights culture. Endnotes Soc Divagsa v Spain (1993) 74 DR 274. Legal certainty is perhaps more significant under the Brussels Regulation, particularly illustrated by the addition of Article 30. Cf. A.G. Léger in Gasser, at [70]. Merrett: 2006, p332. Hartley notes that this is perhaps not surprising given that the ECJ is more concerned with public law, and as such, should be expected to give more weight to State interests, rather than the interests of private parties (Hartley: 2005b, pp814-815.)

Take a proposition that has never been discussed and debate it

Another thing that truly separates a first class dissertation from a second class one is discussion of ideas and issues that have never before been discussed. The following is an example of such a proposition and discussion, all of which stemmed from one footnote in an academic article that said a certain proposition “had never been discussed before in the courts of the UK”. Finding this loophole was essential to the dissertation’s success.

3.4. Conflict with Forum non Conveniens An export of Scots law, forum non conveniens was accepted into English law in Spiliada Maritime Corporation v Cansulex Ltd, becoming indistinguishable from Scots law. Under the Spiliada test, there are two stages: first, the defendant must show that there is some other available forum which is clearly more appropriate for the trial of the action, upon which a stay will ordinarily be granted; second, upon the first stage being satisfied, it is for the claimant to show, through cogent evidence, that justice requires that a stay should not be granted. Advocate General Léger has suggested explicitly that the forum non conveniens doctrine, as operating under this Spiliada test, may be incompatible with Article 6, given that the steps involved for the claimant in its application “have a cost and are likely considerably to prolong the time spent in the conduct of proceedings before the claimant finally has his case heard.” Although the UK courts have never discussed this proposition, there is a potential that forum non conveniens is indeed incompatible with the reasonable time requirement in Article 6. 3.4.1. General Operation Since the place of trial is decided through the exercise of judicial discretion, it is axiomatic that additional cost and time will be incurred in the domestic court, which may appear somewhat inappropriate in light of the parties having to “litigate in order to determine where they shall litigate.” Notwithstanding, given that the same forum will rarely be in the best interests of all parties, particularly highlighted by different choice of law rules, choice of forum is of crucial importance and rightfully so contested. In this respect alone, the time and cost involved may be justified. Moreover, it should be noted that it is the defendant who asks for a stay, thus incurring additional expenses, which expenses he might be expected to pay. Application for a stay is usually, and perhaps ought to be, made early. Procedural time-limits are set for such an application, despite the court retaining its discretionary power to stay proceedings. Notwithstanding, the longer an application is left, the greater the threat of the proceedings not being aborted as a matter of judicial reluctance. Moreover, if Lord Templeman’s view that submissions should be measured in hours not days with the rarity of appeals holds true, such time and expense should be contained to a minimum. This can be contrasted with the American experience of the doctrine, where forum non conveniens can produce forum battles that can last for years, such that the doctrine may even be labelled a “delaying tactic.” 3.4.2. First Limb of Spiliada As noted, there are various circumstances which can justify delay under Article 6. In assessing the complexity of a case, consideration is given to the number of witnesses , the need for obtaining expert evidence and the later intervention of other parties. It can be seen that these factors mirror the appropriateness factors considered under the first limb of the Spiliada test. Thus, in Lubbe v Cape Industries Plc the emergence of over 3,000 new claimants gave greater significance to the personal injury issues, the investigation of which would involve a cumbersome factual inquiry and potentially a large body of expert evidence, such that South Africa was rightfully identified as the most appropriate forum under the first limb of Spiliada. Moreover, in Spiliada, similar litigation had already taken place over another vessel, the Cambridgeshire, such that the proceedings would be more appropriate in England. Termed the “Cambridgeshire factor,” it is persuasive where advantages of “efficiency, expedition and economy” would flow naturally from the specialist knowledge gained by the lawyers, experts and judges in the related proceedings. However, successful use of this factor has been extremely rare. Although conveniens means “appropriate”, not “convenient”, considerations of convenience and expense are still relevant. Thus, in both The Lakhta and The Polessk , a stay was granted because the dispute could be resolved more appropriately in the Russian Court at far less expense and far greater convenience for those involved, in light of, inter alia, the availability of witnesses and other evidence. Further, speed of a trial itself may be decisive in balancing appropriateness factors. For example, in Irish Shipping Ltd v Commercial Union, although the courts of both England and Belgium were appropriate, the dispute could be resolved more quickly in the English court given the more complex position of the plaintiff’s title to sue under the governing law in Belgium; therefore a stay of the English proceedings was refused. Moreover, the availability of an early trial date is material in determining the most appropriate forum ; indeed, “speedy justice is usually better justice.” It can therefore be seen that the factors considered in the first limb of the Spiliada test reflect the justifications for delay under the reasonable time requirement of Article 6(1) and indeed consideration of these factors may result in an overall speedier trial. Hence, determining whether or not to apply the forum non conveniens doctrine is more than justifiable. Further, it is worth considering whether delay by the foreign court itself can be avoided. Endnotes Sim v Robinow (1892) 19 R 665. [1987] AC 460. Crawford and Carruthers: 2006, pp157-158. Spiliada (n13), pp474-477. Opinion of A.G. Léger in Owusu (n29), at [270]. Hare perceives that paragraph 42 of Owusu is “strangely reminiscent” of A.G. Léger’s suggestions: Hare: 2006, p172 n.96. Fawcett; 2007, p9. Slater: 1988, p554; Robertson: 1987, p414; Zhenjie: 2001, p157. Cf. Spiliada (n72), p464 per Lord Templeman. Crawford and Carruthers: 2006, p157. Bell: 2002, paras.2.40-2.42, 2.58. Svantesson: 2005, pp411-412. Briggs and Rees: 2002, p220. Despite potential for re-application: Owens Bank Ltd v Bracco [1992] 2 AC 433, p474. E.g. in England, CPR Part 11. Ibid., r.3.1(2)(f). Briggs and Rees: 2005, pp324-325. Spiliada (n72), p465. E.g. Lacey v Cessna Aircraft (1991) 932 F.2d 170. Green: 1956, p494. Supra p8. Andreucci v Italy [1992] ECHR 8. Wemhoff v Germany (1968) 1 EHRR 55. Manieri v Italy [1992] ECHR 26. [2000] 1 WLR 1545. [2000] 2 Lloyd’s Rep. 383, p391; however, a stay was not granted because substantial justice could and would not be done in the South African forum under the second limb of Spiliada, see infra p25. Spiliada (n72), p469. Ibid., p486. Collins et al: 2006, para.12-030 n.34. The Atlantic Star [1974] AC 436, p475; Spiliada (n72), pp474-475. Hill: 2005, para.9.2.23; wastage of cost is an important consideration in granting a stay, whether under forum non conveniens or not (Carel Johannes Steven Bentinck v Lisa Bentinck [2007] EWCA Civ 175.) [1992] 2 Lloyd’s Rep 269. [1996] 2 Lloyd’s Rep 40. [1991] 2 QB 206. Ibid., p246. Xn Corporation Ltd v Point of Sale Ltd [2001] I.L.Pr. 35. Ibid., at [14]

Develop that new debate and get creative

As noted in the previous post, one of the most important breakthroughs in writing your dissertation can come from spotting a gap where something has not yet been discussed. Once writing to fill that gap, it may be helpful to ask yourself what other angles there are to the debate. Or think about if the matter went to an official debate or, for law dissertations, to court. Think about creative arguments that an advocate might run and try to develop them yourself. Such development can lead to your getting a first rather than a 2:1.

3.4.3. Second Limb of Spiliada Delay in the foreign forum is a fundamental consideration when determining the interests of justice at the second limb of the Spiliada test and may even be decisive if the anticipated delay is excessive. An example pertinent to justification under Article 6(1) is The Jalakrishna, where a delay of five years was anticipated if the case was tried in India, such that the claimant would be prejudiced given his need for financial assistance in light of his critical injuries in an accident. Thus, a stay was not granted, showing respect for both a potential delay itself and what was at stake for the claimant. Notwithstanding, such cases are rare. For example, in Konamaneni v Rolls-Royce Industrial Power (India) Ltd, Collins J (as he then was) recognised that the Indian legal system had made attempts to reduce its backlog of cases, such that in the absence of sufficient evidence of an anticipated delay, it would indeed be a “substantial breach of comity to stigmatise the Indian legal system in that way,” somewhat reflecting the principle that the claimant must “take [the appropriate] forum as he finds it.” Indeed, one of the major advantages of the forum non conveniens doctrine is that it offsets the judge’s tendency to grab as many cases as he can and it respects the valuable international private law principle of comity. As Lord Diplock stated in The Abidin Daver, “judicial chauvinism has been replaced by judicial comity.” However, the interests of States cannot always be reconciled with private party rights. When considering whether to stay proceedings, in light of Article 6, the interests of States should yield to the interests of private parties. Thus, if evidence is sufficient to show a real risk of a flagrant breach in the foreign forum, as was not presented in Gasser, a stay should not be permitted. Again mirroring reasonable time justifications under Article 6, additional considerations of what is at stake in the litigation may arise and authorities may have to exercise exceptional diligence in the conduct of certain cases. An ECtHR case, X v France shows that where a person sought compensation following infection with the AIDS virus, what was at stake was of crucial importance in determining the reasonableness of the length of proceedings. What is at stake will be relevant and probably decisive following a stay of proceedings under forum non conveniens, as The Jalakrishna shows. Notably, in Owusu v Jackson, where forum non conveniens was not permitted, what was at stake for Owusu was significant as he was rendered tetraplegic through his accident. It can therefore be seen that forum non conveniens takes a pragmatic approach to preventing foreseeable unreasonable delays under the second limb of Spiliada. Not only does this further justify operation of the doctrine under Article 6(1) through direct effect, it also greatly restricts, if not eliminates, the possibility of an indirect breach by the domestic court, given that the risk of a flagrant breach of the right to a fair trial is a fundamental factor of the interests of justice. Notwithstanding, herein there are still concerns in light of Professor Fawcett’s suggestion that a hybrid human rights/international private law approach should be taken such that Article 6 concerns should be identified first, taking into account ECtHR jurisprudence, and thereafter it should be for the flexible second limb of Spiliada to apply to resolve these issues. Fawcett concedes that the same result will be achieved in most cases, yet suggests that there may be borderline cases where this solution would work better and human rights concerns will have been taken more seriously. However, this need for procedural restructuring of judicial reasoning is arguably not wholly convincing, particularly given that the indirect effect doctrine under Soering requires a flagrant breach of Article 6, not merely a standard breach; it is therefore difficult to imagine the existence of any “borderline” cases as such. Moreover, in the cases of potential flagrant breaches, the interests of justice principle has been shown to be flexible enough to prevent stays which may breach Article 6 indirectly, regardless of the classification of the delay as a breach of human rights or otherwise. In this respect, it is arguable that the international private law case law could be adequately relied upon. Nevertheless, initial consideration of ECtHR jurisprudence may have more importance than in providing a mere procedurally attractive measure; it may guide and influence those who fail to see the pressing importance of human rights today and will at least effect compliance with the Section 2 of the HRA 1998 which demands that such jurisprudence be considered wherever Convention rights are in issue. Endnotes The Vishva Ajay [1989] 2 Lloyd’s Rep 558, p560; Chellaram v Chellaram [1985] 1 Ch 409, pp435-436; cf. The Nile Rhapsody [1992] 2 Lloyd’s Rep 399,pp413-414, where Hirst J gave “minimal weight to the delay factor” upon direction by the appellate courts. [1983] 2 Lloyd’s Rep. 628. Hill: 2005, para.9.2.38. [2002] 1 WLR 1269. Ibid., at [177]. Connelly v RTZ Corpn plc [1998] AC 854, p872. [1984] AC 398. Ibid., p411. A and others v Denmark [1996] ECHR 2, at [78]. [1992] ECHR 45. [1983] 2 Lloyd’s Rep.628. (n29). Notwithstanding, the ECJ’s taking 2¾ years to produce its judgment did not go towards acknowledging the express request by the English Court of Appeal to provide reasonably quick compensation. Of course, time taken for a required preliminary reference from the ECJ is entirely justified under Article 6 (Pafitis v Greece (1999) 27 EHRR 566, at [95].) Fawcett: 2007, pp36-37. Such that length-of-proceedings cases (see supra pp.7-8) should be consulted in the context of unreasonable delay. (n14).

Put your foot in the icy water: Don’t be afraid to come to powerful conclusions

A dissertation that is written with balanced conclusions is a boring one. Reasoned opinion is important. Nothing would get done in this world if we said “X is right, but Y is equally right, so let’s just leave things the way they are”. Sitting on the fence may well get you a good upper second class award but there is little chance of it getting you a first. A certain English teacher, Sandra MacCallum, at Kyle Academy once taught that, sometimes, “you’ve got to put your foot into the icy water”. Don’t be afraid to come to powerful conclusions. Hopefully the below example, with a reasonable, opinionated attack on the ECJ’s lack of respect for the common law principles of the Scottish export doctrine forum non conveniens, illustrates the significance of this suggestion.

3.5. Conclusions It is perplexing that in Owusu Advocate General Léger, and perhaps indirectly the ECJ, suggested that applying forum non conveniens may be incompatible with the “reasonable time” requirement of the right to a fair trial under Article 6(1), whereas analysis of its proper operation shows that it is compatible and may even be a useful tool in providing faster and more economic litigation. Although it is at least somewhat refreshing to see ECHR arguments being acknowledged in an international private law context without encouragement, it is nevertheless peculiar that Article 6 concerns have been identified in relation to forum non conveniens, “one of the most civilised of legal principles” as Lord Goff of Chieveley put it, when the ECJ did not properly apply or even consider Article 6 in Gasser, where the need for its recognition was much more significant. The ECHR is not an optional instrument that can be applied to justify a course of reasoning, however misguided, on the one hand and dismissed when apparently greater considerations require it on the other; careful legal analysis is required for its operation, which analysis does not appear to have been applied or even respected by the ECJ.

A fresh perspective

Separating a dissertation into manageable chunks from the initial stages of structural planning gives you freedom to start afresh to write about a different but related topic once concluding another section. Access to a court, for instance, is a separate right from the right for a trial to be heard and decided within a reasonable time. It, thus, merits a separate chapter with its own introduction, subsections and conclusions.

4. ACCESS TO A COURT 4.1. Operation in Article 6 The fair, public and expeditious characteristics of judicial proceedings expressed in Article 6 would be of no value at all if there were no judicial proceedings. Thus, referring to the rule of law and avoidance of arbitrary power, principles which underlie much of the ECHR, the ECtHR has held that the right of access to a court is an element inherent in Article 6(1). Although this right is not absolute, any limitation must not restrict access to such an extent that the very essence of the right is impaired, provided that a legitimate aim is pursued with proportionality between the limitation and that aim. The potential for this right to arise in the civil jurisdiction context is high, given the intrinsic nature of the operation of jurisdiction rules. 4.2. Anti-Suit Injunctions A denial of access to a foreign court and, therefore, a potential Article 6 violation will occur through the grant of an anti-suit injunction, which seeks to restrain foreign proceedings. This issue arose in The Kribi, where the claimants sought an anti-suit injunction to restrain Belgian proceedings brought in contravention of an exclusive jurisdiction agreement. Aikens J held that “Article 6…does not provide that a person is to have an unfettered choice of tribunal in which to pursue or defend his civil rights” . Moreover, “Article 6…does not deal at all with where the right to a [fair trial] is to be exercised by a litigant. The crucial point is that civil rights must be determined somewhere by a hearing and before a tribunal in accordance with the provisions of Article 6.” Therefore, a court granting an anti-suit injunction, in the very limited circumstances in which it can now do so, would not be in breach of Section 6 of the HRA 1988 where another available forum exists. Contrastingly, Article 6 challenges remain for the “single forum” cases, where there is only one forum of competent jurisdiction to determine the merits of the claim, despite the cases already being treated differently. In such a case, the exemplary approach of Aikens J would easily resolve such human rights issues. Ultimately, in a commercially welcome judgment, human rights arguments were made and received properly. Moreover, Aikens J “logically” dealt with the human rights points first. Hence the case is a working model for Fawcett’s hybrid approach where human rights should be considered first before international private law principles. Contrasting with stays producing concerns of unreasonable delays, in this context of access to a court there is more impetus to follow Fawcett’s model, particularly given that such denial of access can constitute a direct breach of Article 6, thus producing a more realistic threat of contravention of Section 6 of the HRA 1998. 4.3. Exclusive Jurisdiction Agreements and Waiving Convention Rights Another instance pertinent to Article 6 is where a person has no access to the courts of the UK because of the enforcement of an exclusive jurisdiction agreement. Convention rights can, in general, be waived, including the right of access to a court under Article 6, which can occur where a jurisdiction agreement or agreement to arbitrate is valid and enforceable, but not where a person entered into the agreement without voluntary consensus. Generally, rights will be waived under a jurisdiction agreement meeting the requirements of Article 23 of the Brussels Regulation. However, as Briggs and Rees note, there may be instances, somewhat unattractive, where a party is bound by such a jurisdiction agreement without voluntary consensus as such, such that his right of access to a court may not have been waived, reflecting the more prudent stance taken towards compulsory alternative dispute resolution. Notwithstanding, Article 6 will be upheld provided there is another available court. 4.4. Limitations on Jurisdiction It is axiomatic that limitations on jurisdiction may restrict access to a court. The ECtHR has held that limitation periods are generally compatible with Article 6, particularly for reasons of legal certainty, provided that they are not applied inflexibly. This compatibility should encompass a stay under forum non conveniens for a forum barred by limitation, which is granted only where the claimant was at fault by acting unreasonably in failing to commence proceedings in the foreign court within the applicable limitation period. Contrastingly, blanket limitations are a more difficult species. An example of a blanket exclusion on jurisdiction is the English common law Moçambique rule, which provides that title to foreign land should be determined only at the situs of the land. This may conflict with Article 6 because of a denial of access to an English court. Although this proposition may be unfounded, particularly where access to a court is available somewhere, the exclusion on jurisdiction may still be challenged on Article 6 grounds if disproportionate its aim. Such proportionality concerns were considered in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia. Following Al-Adsani v United Kingdom , a blanket limitation on jurisdiction was accepted because the grant of sovereign immunity, which restricted access to a court, pursued the legitimate aim of comity through compliance with international law and was proportionate. Notwithstanding, underpinning this reasoning is an inevitable tension between the interests of States and private parties, such that Mance LJ (as he then was) in the Court of Appeal produced his judgment in light of ECHR considerations, taking a more flexible approach supportive of human rights. Mark v Mark also illustrates such inflexibility and proportionality considerations. The limitation in that case prevented access to the English courts, which may have been the only available courts, through a particular rule of public policy. This rule was therefore seen by Thorpe LJ to be incompatible with Article 6 and hence the HRA 1998. Contrastingly, in the House of Lords, Baroness Hale affirmed the decision on different grounds, dismissing ECHR considerations, such that she perhaps did not take human rights concerns entirely seriously. Although access to some court will be available following most limitations, the few cases where access would be denied to the only available court under a limitation warrant special attention in light of protection of the right to a fair trial. Such attention has been properly given on occasion, as demonstrated by both Mance and Thorpe LJJ. However, this approach is not consistently followed, shown by the dangerous approach of Baroness Hale. 4.5. Interaction with Forum non Conveniens In Lubbe v Cape Industries Plc, the defendant asked for a stay of proceedings. After identifying South Africa as the natural forum, the Court was faced with the argument that the stay would breach Article 6 because the complexity of the case and lack of funding were such that the claimant could not sue in that foreign court. After applying the Spiliada principles, which provided that a stay should be refused because the claimant could not obtain justice in the foreign court, Lord Bingham then turned to the Article 6 arguments and noted simply that “I do not think article 6 supports any conclusion which is not already reached on application of Spiliada principles.” Although the right to a fair trial was acknowledged and indeed protected under the refusal to grant a stay, the procedure in reasoning lowered the importance of human rights as the Spiliada principles took precedence to application of Article 6. Thus, if the Lubbe approach was followed in the future and a stay was granted to a foreign court in which there was a risk of a flagrant breach, the court may indirectly breach Article 6 in addition to Sections 2 and 6 of the HRA 1998. Similar techniques to that employed by Lord Bingham have been used in other forum non conveniens cases. For example, in The Polessk, the extent to which evidence showed the right to a fair trial in the St. Petersberg Court was considered under the second limb of the Spiliada test. Moreover, as discussed, reasonable delay has been considered consistently, although somewhat effectively, within this second stage of Spiliada. As noted, these latter instances show a sufficient degree of reconciliation with at least the indirect effect of Article 6, regardless of the characterisation of the breach as one of Article 6 or otherwise, particularly because it is difficult to imagine “borderline” cases amounting to flagrant breaches of Article 6, as Fawcett suggests. This analysis can be applied equally to the facts of Lubbe where access to the foreign court clearly did not exist, such that a stay would unequivocally produce a flagrant breach. It may be suggested that other cases are not so easy to evaluate, such as in determining whether access to a court exists through lack of legal aid, as Santambrogio v Italy illustrates. Nevertheless, surely if the decision is a difficult one to make, then the breach cannot be flagrant and, as such, there cannot be an indirect breach of Article 6. However, as noted, a procedural shift in judicial reasoning will have undoubted procedural benefits, if at the very least it effects compliance with Section 2 of the HRA 1998. Endnotes Golder v. United Kingdom [1975] ECHR 1, at [35]. Ibid., at [34]-[35]. Ibid., at [36]; this includes the right to a determination of proceedings on the merits (Gorbachev v Russia, No. 3354/02, 15 February 2007.) Ibid., at [38]. Winterwerp v The Netherlands [1979] ECHR 4, at [60], [75]. Ashingdane v United Kingdom [1985] ECHR 8, at [57]. OT Africa Line Ltd v Hijazy (The Kribi) [2001] Lloyd’s Rep 76; now overruled on the specific point for decision (Turner v Grovit and Others [2005] AC 101). The Kribi (n131), at [42]. Ibid., at [42]. Following Turner v Grovit (n131), a court cannot grant an anti-suit injunction against a party who has commenced an action in a Brussels Convention State. British Airways v Laker Airways [1983] AC 58,at [80]. The Kribi, (n131),at [41]. Fawcett: 2007, pp36-37. Pfeiffer and Plankl v Austria (1992) 14 EHRR 692; cf. Loucaides: 2003, pp48-50. Deweer v Belgium (1979-80) 2 EHRR 439; indeed, this is a “natural consequence of [the parties’] right to regulate their mutual relations as they see fit.” (Axelsson v. Sweden, no.11960/86, 13 July 1990.) Malmstrom v Sweden (1983) 38 DR 18. Cf. under the common law (The Pioneer Container [1994] 2 AC 324); Briggs and Rees: 2005, p19. E.g. a person not party to a bill of lading bound by a jurisdiction agreement between shipper and carrier. Briggs and Rees: 2005, pp18-19. See generally Schiavetta: 2004, paras.4.2-4.21. Stubbings v United Kingdom [1996] ECHR 44, at [51]. Briggs and Rees: 2005, p20 n.101. Spiliada (n72), pp483-484. British South Africa Co v Companhia de Moçambique [1893] AC 602; for Scotland, Hewit’s Trs v Lawson (1891) 18 R 793. Briggs and Rees: 2005, para.4.06. [2006] UKHL 26. 34 EHRR 273. Cf. Markovic v Italy [2006] ECHR 1141, which held that although there was no blanket limitation on jurisdiction through sovereign immunity and that access to a court had been afforded, access was nevertheless limited in scope, such that the applicants could not receive a decision on the merits. [2005] QB 699. [2004] EWCA Civ 168, at [40]. [2006] AC 98. Fawcett: 2007, p34. [2000] 1 WLR 1545. (n72). Lubbe (n157), p1561. Further, no relevant decisions of the ECtHR were relied upon in the judgment e.g. Airey v Ireland [1979] ECHR 3 where representation costs were “very high” and the procedure was too complex and would evoke emotions too great for the applicant to present her case. Cf. Santambrogio v Italy [2004] ECHR 430 (post-Lubbe), where legal aid was deemed unnecessary in the circumstances. Fawcett: 2007, p.11. (n102), p51. Supra pp.17-19. Supra p.19. (n160).

Get creative!

Creative argument is essential if you’re going to get a first. Perhaps only unless your tutor or professor doesn’t know the topic well can you get away rehashing old argument and ideas that have been discussed thousands of times before. Having worked with academia in trying to commercialise intellectual property rights (IP), through, for instance, spin-off companies, it is clear that innovation is crucial for the business models of universities. It goes something like this: University teaches its students; Students produce research in which they and/or the university have IP, such as copyrights or patents; Student and/or university commercialises that IP by selling or licensing it to journals or other entities, such as companies. Money, then, gets reinvested into the system or society, which gets to work with the new innovation or improvement. The below argument is example of how such creativity can light up your dissertation, add value to your University and get you a better mark overall.

4.6. Owusu v Jackson Further relevance of Article 6 can be seen in the context of the ECJ’s analysis of forum non conveniens in Owusu v Jackson. Fundamentally wrong, the ECJ believed that a defendant “would not be able…reasonably to foresee before which other court he may be sued.” However, it is the defendant who asks for a stay and thus his foreseeability of a stay in this respect is secured. Article 6 is underpinned by the principle of legal certainty. Although legal certainty has specific provision in some articles of the ECHR, it is not confined to those articles; the specific provisions require domestic law “to be compatible with the rule of law, a concept inherent in all the articles of the Convention.” Legal certainty comprises the particularly significant aspect of foreseeability. In this regard, the ECtHR has noted that: “a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able…to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.” It is at least arguable that this would encompass procedural certainty emanating from rules of jurisdiction. If the forum non conveniens doctrine permitted stays without the defendant’s asking, the defendant would have such little legal certainty that there may even be an arguable infringement of his right to a fair trial under Article 6, not only incompatible with the higher test of legal certainty of jurisdictional rules under the Brussels regime. This would result from the defendant’s lack of foreseeability as to where proceedings against him would take place. Contrastingly, cogent arguments can be made against forum non conveniens, inter alia, because of the uncertainty for the claimant. Notwithstanding, it could be said that his rights under Article 6(1) are upheld through his right of access to a court somewhere else. Moreover, he would have much more legal certainty than that of the defendant under the ECJ’s interpretation of forum non conveniens because stays under proper operation of forum non conveniens are granted, to some extent, within the confines of regulated and foreseeable discretion. It can therefore be seen that the ECJ had analysed something which would be incompatible not only with Scottish and English law, but also with the ECHR and HRA 1998. Although a proper analysis of forum non conveniens would probably not have altered the outcome of Owusu, it would have been much more respectable to the common law, already set to be dismantled through an inevitable course of Europeanization, not to knock down, to some extent, a “straw man.” 4.7. Conclusions It is clear that there are disparate approaches to the right of access to a court, perhaps emanating in part from varying attitudes to the importance of human rights. Most civil jurisdiction cases will involve access being denied to one court, while access to another is still available. These will generally not breach Article 6 since there is no right of preference of court under Article 6 as Aikens J held in The Kribi, a judgment fully respectable of human rights. Contrastingly, in the limited number of cases which do yield Article 6 concerns, respect for human rights has been inconsistent, a worrying position particularly in light of the recognition of new, potential Article 6 challenges, such as in the areas of exclusive jurisdiction agreements and limitations on jurisdiction. Notwithstanding, such concerns may be unfounded, given the flexibility of international private law rules, such as the demands of justice under the second limb of Spiliada, which can effectively prevent indirect breaches of Article 6. Endnotes Except in exceptional circumstances: Collins et al: 2006, para.12-006 n.20. E.g. Articles 5 and 7. Reed and Murdoch: 2001, para.3.33. Amuur v France [1996] ECHR 20, at [50]. Reed and Murdoch: 2001, para.3.36. Sunday Times (No1) v United Kingdom [1979] ECHR 1, at [49]. Harris: 2005, p939; despite a lack of express mention by the ECJ in Owusu (n29); cf. Opinion of AG Leger in Owusu, at [160]. Hartley: 2005b, pp824-828; cf. Mance: 2007. (n72).

Add Another New Topic

The following is a different slant on the fundamental theme of the dissertation.

5. RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS 5.1. Recognition of Contracting State Judgments An indirect breach of Article 6 may occur where a court recognises and thus enforces a judgment obtained in foreign proceedings contrary to the requirements of Article 6. Little challenge is presented where that judgment is obtained in a court of a State party to the ECHR; in such a case, recognition can be refused through Article 6 which is a facet of public policy under Article 27(1) of the Brussels Convention. Notably, Article 34(1) of the Brussels Regulation provides that the recognition must be “manifestly” contrary to public policy, implying a higher threshold than in Article 27(1). The difference in wording is uncertain, but it is hoped that it will not be used to “sweep mere procedural defects under the rug.” Indeed, the importance of the right to a fair trial to the rule of law cannot be underestimated and thus it is arguable that any breach of Article 6 will be manifestly contrary to public policy. Notwithstanding, if the phrases “manifestly contrary to public policy” and a “flagrant breach of the ECHR” were to be compared, it may be just as arguable that a manifest breach of Article 6, not a standard one, is required for the operation of Article 34(1) of the Brussels Regulation. However, this may not be unwarranted in the context of judgments of Contracting States, as noted. Through Krombach v Bamberski , the housing of Article 6 under public policy effectively creates a hierarchical system, whereby EC rules have precedence over human rights rules, particularly because of the ignorance of the indirect effect doctrine. However, this may not be wholly unwelcome in light of the potential existence of a common EC public policy, somewhat emanating from the harmonisation through the ECHR in 1950. Moreover, as Meidanis suggests, the ECJ appears to see the protection of human rights as the common core of the European public policy and is prepared to sacrifice the basic principle of the free movement of judgments of the Brussels Convention to ensure protection of human rights. Notwithstanding, as noted, in other contexts, the ECJ does not so respect human rights, particularly highlighted by its emphatic rejection of Article 6 in Gasser. Although the flexibility through the public policy exception does not extend to the rules relating to jurisdiction, there are other mechanisms for protecting human rights within the Brussels Convention and, especially, the Brussels Regulation. 5.2. Recognition of Non-Contracting State Judgments More difficulty arises with recognition of a judgment obtained in a non-Contracting State. 5.2.1. European Court of Human Rights Such recognition was permitted without reference to Article 6 in Drozd and Janousek. However, in Pellegrini v Italy, the ECtHR held that the Italian court could not recognise a judgment obtained in a Vatican City court in contravention of Article 6 standards. This was so despite a Concordat between Italy and the Vatican requiring such recognition. Pellegrini can be considerably demarcated from the Soering/Drozd line of cases, which requires a flagrant breach to have occurred in the non-Contracting State, the underpinning theory being the “reduced effect of public policy.” Instead, Pellegrini requires full compliance with Article 6 standards as if the foreign court were party to the ECHR, such that failure to review a judgment against which standards is a risky practice. Notwithstanding, the actual breach of Article 6 standards in Pellegrini was flagrant, despite the court’s omission of this, and therefore the judgment may not represent such a large departure from Drozd. Moreover, the “reduced effect of public policy” approach of Drozd was followed eight days prior to Pellegrini in Prince Hans-Adam II of Liechtenstein v Germany. However, it is difficult to distinguish Hans-Adam II on its facts particularly given the sweeping reasoning in Pellegrini. Thus, as it stands, Pellegrini is the leading authority, prescribing the need for a review of foreign judgments against full Article 6 standards, ensuring full protection for the right to a fair trial. It is nevertheless hoped by some that the case will be revisited, perhaps with the preference of a variable standard. Further, a dictum in Pellegrini may have the effect of requiring such review only where the judgment emanates from the courts of a State not party to the Convention. Hence, as Kinsch submits, an a contrario reading may be imputed, such that review of Article 6 standards is optional where the judgment emanates from a Contracting State. However, this may not be wholly unwelcome given that the Member States of the EU are party to the ECHR in addition to the Brussels Convention and Regulation, which seek to limit the power of public policy from preventing recognition of judgments. 5.2.2. House of Lords In stark contrast to Pellegrini, the House of Lords in Montgomery required a “flagrant” breach in the United States, a non-Contracting State, for the judgment not to be recognised. Such a flagrant breach was not created in the United States and hence recognition of a judgment breaching regular Article 6 standards was permitted. In its judgment, the House of Lords attempted to distinguish Pellegrini through the existence of the Concordat between Italy and the Vatican City, which required Italy to ensure that the Vatican court’s procedure complied with the fundamental principles of Italian legal system, one being Article 6. However, this is hard, if not impossible, to understand, particularly since it assumes that the Concordat of 1929, as amended, could incorporate ECHR standards, when the Vatican City deliberately refused to subscribe to the ECHR. Further, the ECtHR in Pellegrini did not suggest in its judgment that the relationship between Italy and the Vatican was material to its decision. Therefore, Montgomery is seen to be wrong in so distinguishing Pellegrini. Briggs and Rees further suggest that the House of Lords applied the wrong test in Montgomery because of the analysis of deportation cases, such as Soering. In such a case, a prediction is required, whereas in Montgomery, or indeed in any case concerning recognition, there was no need for such a prediction as the foreign judgment could already be seen to have breached Article 6. However, Soering requires that the person “has suffered or risks suffering a flagrant denial of a fair trial (emphasis added.)” If he has already suffered a breach, there is no need for a prediction to be made; instead, the reason for the standard of flagrancy is based on the “reduced effect of public policy” theory, an approach followed in Drozd, as noted. The reasoning of Briggs and Rees in this respect is akin to that of the Court of Appeal in Montgomery where Lord Woolf CJ stated that “the reference in [Soering at [113]] to a future flagrant breach of Article 6 was no more than a dicta which should not be applied to the enforcement of a court order of a non-Contracting State.” However, Drozd, which was not cited to, or considered by, the Court of Appeal, expressly requires such a flagrant breach of Article 6 if enforcement of a court order of a non-Contracting State is to be denied, which clearly has nothing to do with making predictions. Instead, as Briggs and Rees indeed note, the reason why the House of Lords applied the wrong test in Montgomery is that Pellegrini, the leading ECtHR authority which overrides Drozd, was wrongly distinguished and therefore permitted recognition of a judgment in contravention of ECHR jurisprudence. It may be argued that this was not a case of human rights not being taken seriously, but was merely a case of wrongful interpretation of human rights law, yet this could only be accepted upon an assumption of the incompetence of the House of Lords. 5.3. Conclusions The leading authority of the ECtHR on operation of the indirect effect doctrine with respect to recognising foreign judgments, Pellegrini demands a review of full compliance with Article 6 standards of foreign judgments, perhaps limited to those emanating from non-Contracting State courts. Through this, the right to a fair trial can be fully upheld in national courts and, in the UK, breach of Section 6 of the HRA 1998 can be avoided. Notwithstanding, the House of Lords effectively got human rights wrong, thus paving the way forward for reduced protection of Article 6 in the UK. However, this area is not devoid of hope; to effect compliance with this framework, Montgomery must be overturned, which does not appear too remote a possibility given the extensive criticism of the case.

How to conclude a first class law dissertation

The conclusion to your dissertation is, arguably, the most important part and is, therefore, potentially a major differentiator between a first class dissertation and a second class one.

There are three things which you should bear in mind:-

1. A well-written dissertation, thesis, essay or, indeed, any story should have three main parts to it: an introduction; a main body; and a conclusion. It reflects any good piece of oratory: say what you’re going to say, say it, then say what you’ve said. In your conclusion, you are, thus, trying to tell the audience what you’ve said throughout your dissertation. If the word limit is 10,000 words, 800-1000 words should, ideally, be used on your conclusion;

2. Don’t be afraid to put your foot into the icy water. As stated in an earlier section you should not be afraid to come to powerful conclusions even if they challenge the views of other academics, practitioners or even the general public, provided that your views can be fairly and reasonably supported. Which brings us to the third and most important aspect of any conclusion;

3. A well drafted conclusion should refer back to your analysis throughout your dissertation to support your suggested conclusions; it should not allow you to raise new arguments or thoughts which you haven’t already considered. Think about it like a civil proof in court: you conduct an examination-in-chief in which you ask open questions to get evidence from your witness; your opponent then cross-examines your witness to test their evidence; you then get a chance to re-examine the witness but you do NOT get a chance to raise anything new that was not covered in cross.

The conclusion to my dissertation, different from my Juridical Review version, is as below. Given the recent Supreme Court criminal law decision of Cadder v HMA, for which see the ScotsLawBlog Cadder article , the final words on getting human rights right attract even greater significance.

6. CONCLUSIONS The right to a fair trial has produced much concern in the conflict of laws arena today, a particular result of the evolution of a more stringent human rights culture in the United Kingdom. In the field of civil jurisdiction, the right to a trial within reasonable time and the right of access to a court, two of the most fundamental substantive rights of Article 6 ECHR, have emerged; in the sphere of recognition and enforcement of foreign judgments, the indirect effect doctrine, a key procedural element of the ECHR, which protects the right to a fair trial indirectly but nevertheless just as significantly, has arisen. International private law mechanisms exist for the reconciliation of Article 6 with the sphere of civil jurisdiction and judgments. The extent to which these can be utilised to protect the right to a fair trial is undoubtedly immense. At the most extreme end of protection, Fawcett’s hybrid model could provide great procedural legal certainty, such that human rights concerns will be identified first, using ECtHR jurisprudence, following which international private law mechanisms can resolve these concerns with their inherent flexibility. This strict approach is not unwarranted, particularly where judges fail to see the function or even importance of human rights. Pertinent examples include the misapplication of human rights by the House of Lords in Montgomery , which indeed must be rectified, and other approaches not confined to the courts of the United Kingdom; for instance, the embarrassingly misguided approach of the ECJ in Gasser , where it refused to recognise human rights concerns in its myopic pursuit of the objectives of the Brussels regime, unyielding with respect for concerns of private parties, when there were measures available for reconciliation. This appears even more inadequate in light of Advocate General Léger’s later suggestions that forum non conveniens may actually be incompatible with Article 6, when the doctrine is more than justifiable as it seeks to produce faster and more economic litigation, through both the first and second limbs of Spiliada. Notwithstanding, the need for Fawcett’s model is more questionable in other situations; for instance, in those cases involving potential indirect breaches of Article 6 when transferring actions abroad, flexible international private law mechanisms appear to have been applied in a manner sufficiently compliant with the ECHR, regardless of the characterisation of the breach as one of Article 6 or simply of the demands of justice. For example, the second limb of Spiliada has effectively prevented stays where there is a real risk of a flagrant breach abroad, as is the Soering threshold for such an indirect breach, whether regarding unreasonable delay or lack of access to a court. Fawcett concedes that the overall result of many cases will remain unchanged but suggests that “borderline” cases may exist which pose as pitfalls for the courts. However, the requirement of flagrancy, as he correctly applied at the beginning of his analysis, makes the existence of such cases difficult, if not impossible, to imagine in practice. In this respect, Fawcett appears to be advocating an approach extending beyond avoiding breaching Article 6; instead, he is actively aiming at protection of a fair trial beyond the Article 6 threshold. However, this is not unwelcome; the importance of Article 6 is so great that it is worth adopting the strict approach. The consistent use of ECHR jurisprudence at the outset will, at the very least, prevent a breach of Section 2 of the HRA 1998; further, it may assist those judges who are misguided or fail to see the importance of human rights today. Ultimately, a strict approach may provide for considerable legal certainty in a fast and growing area of law which demands firm, human rights orientated answers.

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How to write a bibliography to conclude your first-class dissertation

There are three stages for completing an abundant and competent bibliography. First, go into the footnotes on your document, select all, copy and paste to the foot of your article, then separate into different categories. Then, second, go back through the materials which you have read and add them. Finally, third, sort alphabetically using Word or Excel.

7. BIBLIOGRAPHY 7.1. TABLE OF CASES A and others v Denmark [1996] ECHR 2 AG of Zambia v Meer Care and Desai [2005] EWHC 2102 (Ch), appeals dismissed [2006] EWCA Civ 390 Airbus Industrie GIE v Patel [1999] 1 AC 119 Airey v Ireland [1979] ECHR 3 Al-Bassam v Al-Bassam [2004] EWCA Civ 857 Amuur v France (1996) 22 E.H.R.R. 533 Andreucci v Italy [1992] ECHR 8 Ashingdane v United Kingdom [1985] ECHR 8 Att. Gen. v Arthur Anderson & Co [1989] ECC 224 Axelsson v. Sweden, no.11960/86, 13 July 1990 Bensaid v United Kingdom (2001) 33 EHRR 10 Berghofer v. ASA SA Case 221/84 [1985] ECR 2699 Berisford Plc v New Hampshire Insurance [1990] 2 QB 631 Bock v. Germany [1989] ECHR 3 Boddaert v Belgium (1993) 16 EHRR 242 Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi(“Bosphorus Airways“) v Ireland (2006) 42 EHRR 1 Bottazzi v. Italy [1999] ECHR 62 Brazilian Loans (PCIJ Publications, Series A, Nos. 20-21, p.122) Bristow Heliocopters v Sikorsky Aircraft Corporation [2004] 2 Ll Rep 150 British Airways v Laker Airways [1983] AC 58 British South Africa Co v Companhia de Moçambique [1893] AC 602 Buchholz v Germany [1981] ECHR 2 Carel Johannes Steven Bentinck v Lisa Bentinck [2007] EWCA Civ 175 Ceskoslovenska Obchodni Banka AS v Nomura International Plc [2003] IL Pr 20 Chellaram v Chellaram [1985] 1 Ch 409 Connelly v RTZ Corpn plc [1998] AC 854 Credit Agricole Indosuez v Unicof Ltd [2004] 1 Lloyd.s Rep 196 Cumming v Scottish Daily Record and Sunday Mail Ltd, The Times June 8, 1995 Darnell v United Kingdom (1993) 18 EHRR 205 Delcourt v Belgium (1979-80) 1 EHRR 355 Derbyshire CC v Times Newspapers Ltd [1992] QB 770 Deweer v Belgium (1979-80) 2 EHRR 439 Di Mauro v. Italy ECHR 1999-V Drozd and Janousek v France and Spain (1992) 14 EHRR 745 Eckle v Germany (1983) 5 EHRR 1 Elderslie Steamship Company v Burrell (1895) 22 R 389 Elefanten Schuh GmbH v Jacqmain (Case 150/80) [1981] ECR 1671 Erich Gasser GmbH v Misat Srl, C-116/02 [2005] QB 1 ERT v DEP C-260/89 [1991] ECR I-2925 F v Switzerland [1987] ECHR 32 Ferrari v Italy [1999] ECHR 64 Foti v Italy (1982) EHRR 313 Fritz and Nana v France, 75 DR 39 Golder v. United Kingdom [1975] ECHR 1 Gorbachev v Russia, No. 3354/02, Judgment of 15 February 2007. Government of the United States of America v Montgomery (No 2) [2004] UKHL 37 Guincho v Portugal (1984) 7 EHRR 223 H v France (1990) 12 EHRR 74 Hesperides Hotels Ltd v Aegan Turkish Holidays Ltd [1979] AC 508 Hewit’s Trs v Lawson (1891) 18 R 793. Huseyin Erturk v Turkey [2005] ECHR 630. Irish Shipping Ltd v Commercial Union [1991] 2 QB 206. Iveco Fiat v Van Hool Case 313/85 [1986] ECR 3337 Jones v Saudi Arabia [2004] EWCA Civ 1394 JP Morgan Europe Ltd v Primacom [2005] EWHC 508 Katte Klitsche de la Grange v Italy (1994) 19 EHRR 368 Klockner Holdings GmbH v Klockner Beteiligungs GmbH [2005] EWHC 1453 Konamaneni v Rolls-Royce Industrial Power (India) Ltd [2002] 1 WLR 1269 Konig v Federal Republic of Germany (1978) 2 EHRR 170 Krombach v Bamberski Case C-7/98 [2001] QB 709 Kudla v Poland [2000] ECHR 512 Lacey v Cessna Aircraft (1991) 932 F.2d 170 Ledra Fisheries Ltd v Turner [2003] EWHC 1049 Lubbe v Cape Industries Plc [2000] 2 Lloyd’s Rep. 383 Malone v United Kingdom (1985) 7 EHRR 1 Malstrom v Sweden (1983) 38 Decisions and Reports 18 Manieri v Italy [1992] ECHR 26 Margareta and Roger Andersson v Sweden (1992) 14 EHRR 615. Markovic v Italy [2006] ECHR 1141 Maronier v Larmer [2003] QB 620 Matthews v United Kingdom [1999] ECHR 12. Messier-Dowty v Sabena [2000] 1 WLR 2040 Netherlands 6202/73 1975 1 DR 66 OT Africa Line Ltd v Hijazy (The Kribi) [2001] Lloyd’s Rep 76 Owens Bank Ltd v Bracco [1992] 2 AC 433 Owners of the Atlantic Star v Owners of the Bona Spes (The Atlantic Star and The Bona Spes) [1974] AC 436 Owusu v Jackson and Others C-281/02 [2005] QB 801 Pafitis v Greece (1999) 27 EHRR 566 Pfeiffer and Plankl v Austria (1992) 14 EHRR 692 Philip Morris International Inc v Commission of the European Communities [2003] ECR II-1 Prince Hans-Adam II of Liechtenstein v Germany ECHR 2001-VIII. R (Razgar) v Special Adjudicator [2004] 1 AC 368 R v Jones [2003] 1 AC 1 R. (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389 R. (on the application of Ullah) v Special Adjudicator [2004] UKHL 26 Riccardo Pizzati v Italy [2006] ECHR 275 Robins v United Kingdom (1998) 26 EHRR 527 Salesi v Italy [1993] ECHR 14 Salotti v RUWA Case 23/76 [1976] ECR 1831 Santambrogio v Italy [2004] ECHR 430 Scopelliti v Italy (1993) 17 EHRR 493 Sim v Robinow (1892) 19 R 665 Soc Divagsa v Spain (1993) 74 DR 274. Soering v United Kingdom (1989) 11 EHRR 439 Spiliada Maritime Corporation v Cansulex Lid [1987] 1 AC 460 Standard Steamship Owners Protection and Indemnity Association v Gann [1992] 2 Lloyd’s Rep 528 Stogmuller v Austria (1979) 2 EHRR 155 Stubbings v United Kingdom [1996] ECHR 44 Sunday Times v United Kingdom (1979-80) 2 EHRR 245 The Al Battani [1993] 2 Lloyd’s Rep 219 The Benarty [1984] 2 Lloyd’s Rep 244 The Fehmarn [1958] 1 WLR 159 The Jalakrishna [1983] 2 Lloyd’s Rep. 628 The Lakhta [1992] 2 Lloyd’s Rep 269 The Nile Rhapsody [1992] 2 Lloyd’s Rep 399 The Pioneer Container [1994] 2 AC 324 The Polessk [1996] 2 Lloyd’s Rep 40 The Vishva Ajay [1989] 2 Lloyd’s Rep 558 Toepfer International G.M.B.H. v. Molino Boschi Srl [1996] 1 Lloyd’s Rep. 510 Trendex v Credit Suisse [1982] AC 679 Turner v Grovit and Others [2005] 1 AC 101 Union Alimentaria SA v Spain (1990) 12 EHRR 24 Vocaturo v Italy [1991] ECHR 34. Wemhoff v Germany (1968) 1 EHRR 55 Winterwerp v The Netherlands [1979] ECHR 4 X v France [1992] ECHR 45 Xn Corporation Ltd v Point of Sale Ltd [2001] I.L.Pr. 35 Z and Others v. United Kingdom (2002) 34 EHRR 3 Zimmermann and Steiner v Switzerland [1983] ECHR 9 7.2. TABLE OF LEGISLATION European Union EC Treaty Art 6(2) Art 307 Council Regulation 44/2001 (Brussels Regulation) Art 2 Art 4 Art 27 Art 28 Art 30 Art 34(1) Art 34(2) Art 35(3) Art 71 Italy Law no.89 of 24 March 2001 (the “Pinto Act”). United Kingdom Civil Jurisdiction and Judgments Act 1982 Civil Procedure Rules 1998 Part 11 r 3.1(2)(f) Human Rights Act 1998 (HRA 1998) s1(1)(a) s2(1)(a) s3(1) s6(3)(a) 7.3. TABLE OF CONVENTIONS Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters (Brussels Convention) Art 21 Art 22 Art 57 European Convention on Human Rights (ECHR) Art 5 Art 6 Art 7 Art 13 7.4. TEXTBOOKS Anton, A.E., and Beaumont, P., 1995. Anton & Beaumont’s Civil Jurisdiction in Scotland: Brussels and Lugano Conventions. 2nd ed ., Edinburgh: Greens Bell, A., 2003. Forum Shopping and Venue in Transnational Litigation. Oxford: OUP Briggs, A., 2002. The Conflict of Laws, Oxford: OUP. Briggs, A., and Rees, P., 2002. Civil Jurisdiction and Judgments. 3rd ed., London: LLP Briggs, A., and Rees, P., 2005. Civil Jurisdiction and Judgments. 4rd ed., London: LLP Clarkson, C.M.V., and Hill, J., 2002. Jaffey on the Conflict of Laws. 2nd ed., Oxford: OUP Clarkson, C.M.V., and Hill, J., 2006. The Conflict of Laws. New York: OUP Clayton, R. and Tomlinson, H., 2000. The Law of Human Rights. Oxford: OUP Collier, J.C., 2001. Conflict of Laws. 3rd ed., Cambridge: Cambridge University Press. Collins, L., et al (eds), 2006. Dicey Morris and Collins on the Conflict of Laws. 14th ed. London: Sweet and Maxwell Crawford, E.B., and Carruthers, J.M., 2006. International Private Law in Scotland. 2nd ed, Edinburgh: Greens Einhorn, T. and Siehr, K., 2004. Intercontinental Cooperation Through Private International Law – Essays in Memory of Peter E. Nygh. The Hague, The Netherlands: T.M.C. Asser Press. Fawcett, J.J., 1995. Declining jurisdiction in private international law: reports to the XIVth congress of the International Academy of Comparative Law, Athens, August 1994. Oxford: Clarendon Press Fawcett, J.J., Harris, J. and Bridge, M., 2005. International Sale of Goods in the Conflict of Laws. Oxford: OUP Grosz, S., Beatson, J. and Duffy, P., 2000. Human Rights: The 1998 Act and the European Convention,.London: Sweet and Maxwell Harris, D.J., O’Boyle, M., Warbrick, C., 1995. Law of the European Convention on Human Rights. London: Butterworth Hill, J., 2005. International Commercial Disputes in English Courts. 3rd ed Portland: Hart Publishing McClean, D. and Beevers, K., 2005. Morris on the Conflict of Laws. 6th ed., London: Sweet and Maxwell North, P.M. and Fawcett, J.J., 2004. Cheshire and North’s Private International Law. 13th ed. Oxford: OUP Ovey, C. and White, R., 2002. The European Convention on Human Rights. New York: OUP Raitio, J., 2003. The Principle of Legal Certainty in EC Law. The Netherlands: Kluwer Academic Publishers Reed, R. and Murdoch, J., 2001. A Guide to Human Rights Law in Scotland. Edinburgh: Butterworths Scotland Starmer, K., 1999. European Human Rights Law. London: Legal Action Group 7.5. ARTICLES Baldwin, J., and Cunnington, R., 2004. “The Crisis in Enforcement of Civil Judgments in England and Wales.” 2004 PL (SUM) 305-328 Briggs, A., 2005a. “Foreign Judgments and Human Rights.” 121(APR) L.Q.R. 185-189 Briggs, A., 2005b. “The Death of Harrods: Forum non Conveniens and the European Court.” 121(OCT) L.Q.R. 535-540 Clarke, A., 2007. “The Differing Approach to Commercial Litigation in the European Court of Justice and the Courts of England and Wales” 18 E.B.L.Rev. 101-129 Collins, L., 1995. “The Brussels Convention Within the United Kingdom”, 111 LQR 541 Costa, J-P., 2002, Rivista internazionale dei diritti dell’uomo, 435, cited in Kinsch, P., 2004. “The Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments – A Survey of the Cases Decided by the European Human Rights Institutions,” in Einhorn, T. and Siehr, K., 2004. Intercontinental Cooperation Through Private International Law – Essays in Memory of Peter E. Nygh, The Hague, The Netherlands: T.M.C. Asser Press, pp197-228, p228 n100 Crawford, E.B., 2005. “The Uses of Putativity and Negativity in the Conflict of Laws.” 54 ICLQ 829-854 Crifo, C., 2005. “First Steps Towards the Harmonisation of Civil procedure: The Regulation Creating a European Enforcement Order for Uncontested Claims.” C.J.Q. 2005, 24(APR), 200-223 Eardley, A., 2006. “Libel Tourism in England: Now the Welcome is Even Warmer.” 17(1) Ent. L.R. 35-38 Fabri, M., and Langbroek, P.M., 2003. “Preliminary draft report: Delay in Judicial Proceedings: A preliminary Inquiry into the Relation Between the Demands of the Reasonable Time Requirements of Article 6(1) ECHR and Their Consequences for Judges and Judicial Administration in the Civil, Criminal and Administrative Justice Chains”, CEPEJ (2003) 20 Rev Farran, S., 2007. “Conflicts of Laws in Human Rights: Consequences for Colonies”, (2007) 1 EdinLR 121 Fawcett, J.J., 2007. “The Impact of Article 6(1) of the ECHR on Private International Law.” 56 ICLQ 1-48 Fentiman, R., 2005. “English Domicile and the Staying of Actions” [2005] 64 CLJ 303 Flannery, L., 2004. “The End of Anti-Suit Injunctions?” New Law Journal, 28 May 2004, 798 Franzosi, M., 2002. “Torpedoes are here to stay” [2002] 2 International Review of Industrial Property and Copyright Law 154 Franzosi, M., 1997. “Worldwide Patent Litigation and the Italian Torpedo” 19 (7) EIPR 382 Green, L., 1956. “Jury Trial and Mr. Justice Black,” 65 Yale LJ 482 Halkerston, G., 2005. “A Funny Thing Happened on the Way to the Forum.” 155 NLJ 436 Hare, C., “Forum non Conveniens in Europe: Game Over or Time for ‘Reflexion’” JBL 2006, Mar, 157-179 Harris, J., 2001. “The Brussels Regulation.” 20 Civil Justice Quarterly 218 Harris, J., 2005. “Stays of Proceedings and the Brussels Convention.,” 54 ICLQ 933 Hartley, T.C., 1994. “Brussels Jurisdiction and Judgments Convention: Agreement and Lis Alibi Pendens.” 19(5) E.L.Rev 549-552 Hartley, T.C., 2001. “International Law and the Law of the European Union – A Reassessment”, 72 BYBIL 1 Hartley, T.C., 2005a. “Choice-of-court agreements, lis pendens, human rights and the realities of international business: reflection on the Gasser case” in Le droit international privé: mélanges en l’honneur de Paul Lagarde, (Dalloz, Paris, 2005), pp383-391 Hartley, T.C., 2005b. “The European Union and the Systematic Dismantling of the Common Law Conflict of Laws”, 54 ICLQ 813 Higgins, R., 2006. “A Babel of Judicial Voices? Ruminations From the Bench.” 55 ICLQ 791-804. Hogan, G., 1995. “The Brussels Convention, Forum non Conveniens and the Connecting Factors Problem.” 20(5) E.L. Rev. 471-493 Hood, K.J., 2006. “Drawing Inspiration? Reconsidering the Procedural Treatment of Foreign Law.” 2(1) JPrIL 181-193. Hunt, M., 1998. “The “Horizontal Effect” of the Human Rights Act”. 1998 Public Law 423-443 Hunter-Henin, M., 2006. “Droit des personnes et droits de l’homme: combinaison ou confrontation? (Family Law and Human Rights: Can They Go Along or Do They Exclude Each Other?),” 95(4) Revue critique de droit international privé pp743-775. Kennett, W., 1998. “Service of Documents in Europe.” 17(JUL) C.J.Q. 284-307 Kennett, W., 2001. “The Brussels I Regulation.” 50 ICLQ 725 -737 Kennett, W., 2001. “The Enforcement Review: A Progress Report.” 20(Jan) CJQ 36-57 Kennett, W., and McEleavy, P., 2002. “(Current Development): Civil and Commercial Litigation” 51 ICLQ 463 Kinsch, P., 2004. “The Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments – A Survey of the Cases Decided by the European Human Rights Institutions,” in Einhorn, T. and Siehr, K., 2004. Intercontinental Cooperation Through Private International Law – Essays in Memory of Peter E. Nygh, The Hague, The Netherlands: T.M.C. Asser Press, pp197-228. Lester, A., and Pannick, D., 2000. “The Impact of the Human Rights Act on Private Law: The Knight’s Move.” 116 LQR 380-385 Loucaides, L.G., 2003. “Questions of a Fair Trial Under the European Convention on Human Rights.” (2003) HRLR 3(1), pp27-51. Lowenfield, A.F., 2004. “Jurisdiction, Enforcement, Public Policy and Res Judicata: The Krombach Case,” in in Einhorn, T. and Siehr, K., 2004. Intercontinental Cooperation Through Private International Law – Essays in Memory of Peter E. Nygh, The Hague, The Netherlands: T.M.C. Asser Press, pp229-248 Mance, J., 2004a. “Civil Jurisdiction in Europe – Choice of Court Clauses, Competing Litigation and Anti-Suit Injunctions – Erich Gasser v. Misat and Turner v. Grovit: Address to Second Conference of European Commercial Judges, (“Problems of enforcement of european law”)” Paris – 14th October 2004; http://www.courdecassation.fr/formation_br_4/2004_2034/jonathan_mance_8239.html, (Accessed 10 March 2007) Mance, J., 2004b. “Exclusive Jurisdiction Agreements and European Ideals.” 120 LQR 357 Mance, J., 2005. “The Future of Private International Law.” 1(2) JPrIL 185-195 Mance, J., 2007. “Is Europe Aiming to Civilise the Common Law?” 18 EBLRev 77-99 McLachlan, C., 2004. “International Litigation and the Reworking of the Conflict of Laws” 120(OCT) LQR 580-616 Meidanis, H.P., 2005. “Public Policy and Ordre Public in the Private International Law of the EU: Traditional Positions and Moderns Trends.” 30(1), ELRev, 95-110 Merrett, L., 2006. “The Enforcement of Jurisdiction Agreements within the Brussels Regime,” 55 ICLQ 315 Muir Watt, H., 2001. “Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness Under the Brussels and Lugano Conventions.” 36 Tex. ILJ, p. 539. North, P., 2001. “Private International Law: Change or Decay?” 50 ICLQ 477-508 Orakhelashvili, A., 2006. “The Idea of European International Law.” 17 Eur. J. Int’l L. 315 Peel, E., 2001. “Forum non Conveniens Revisited.” 117(APR) L.Q.R. 187-194 Robertson, D.W., 1987. “Forum Non Conveniens in America and England: ‘A rather fantastic fiction’.” 103 LQR 398 Robert-Tissot, S., and Smith, D., 2005. “The Battle for Forum”, New Law Journal, 7 October 2005, p1496 Robert-Tissot, S., 2005. “The Battle for Forum.” 155 NLJ 1496 Rodger, B.J., 2006. “Forum non Conveniens: Post Owusu.” 2(1) JPrIL 71 Schiavetta, S., 2004. “The Relationship Between e-ADR and Article 6 of the European Convention of Human Rights pursuant to the Case Law of the European Court of Human Rights.” 2004 (1) The Journal of Information, Law and Technology (JILT). http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_1/schiavetta/ (Accessed 28 February 2007) Sinopoli, L., 2000. Le droit au procès équitable dans les rapports privés internationaux (doctoral dissertation, University of Paris-I, 2000) Slater, A.G., 1988. “Forum Non Conveniens: A View From the Shop Floor.” 104 LQR 554 Svantesson, D.J.B., 2005. “In Defence of the Doctrine of Forum Non Conveniens.” (2005) HKLJ 395 Van Hoek: 2001. “Case note on Krombach v Bamberski” (2001) 38 CMLR 1011. Wade, H.W.R., 2000. “Horizons of Horizontality.” 116 LQR 217-224 Williams, J.M., 2001. “Forum non Conveniens, Lubbe v Cape and Group Josi v Universal General Insurance.” J.P.I. Law 2001, 1, 72-77 Zhenjie, H., 2001. “Forum Non Conveniens: An Unjustified Doctrine.” 48 NILR 143

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Writing a First-Class Dissertation: An Introduction to the Series 

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As part of the Law degree at university, some schools may require law students to complete a supervised or completely independent research project in your final year, often termed a dissertation. This is to test your research, problem solving ,  critical thinking and analysis skills. This also further tests your soft skills such as your ability to prioritise, plan effectively and manage time whilst working on a time-taking project.  I have created this five-part series as a guide  to writing and presenting a very high-quality dissertation.  Throughout this series, I intend to discuss various tips and strategies that worked for me whilst writing both my undergraduate and  masters  dissertation and getting a first. To this aim, I have classified all my strategies under four major headings: the planning stage, the research stage, the writing stage and the final stage. In this article, I discuss what a dissertation is, how it is structured and the process of choosing a topic.   

  As stated  before, a dissertation is usually a research project, a topic either chosen by you or chosen from a range of topics,  which usually lasts between 4 to 6 months, depending on the program (LLB or LLM). Depending on the institution, the length of a general dissertation or research project may vary between 5 000  words to 15 000 words. An undergraduate law dissertation usually varies between 10 000 to 12 000 words, while the masters dissertation ranges between 10 000 to 15 000 words.   This  expected  length is enough evidence of  the type of coverage you should be aiming for on your dissertation, as well as the nature of  your  dissertation’s content .  If done properly, apart from attaining a  first-class  mark, the dissertation is an entire experience which allows you really delve into a law topic or area in more depth and analysis.   

  C hoosing a Topic   

In my experience, this was perhaps the hardest and most exhausting part of my dissertation , especially from my undergraduate dissertation.  There’s a wealth of areas of law that you would have studied right from your first year to the final year. For me, it was quite challenging  trying to sift through all these areas, particularly the area I’d enjoyed and  choosing a topic or even an idea that I’d wanted to build up from and actually write a dissertation on.   

    Choose an area of law  that interests you.  This is most likely something you’d hear quite a lot during the early stages of your dissertation or even before you dive into your first ‘dissertation’ lecture. It is very important to choose an area that you’re interested in or that you find very fascinating as this would determine the pace  and effort you put into researching and writing. You do not want to find yourself stuck with a topic you have zero interest in as there may be no motivation to  properly delve into the topic with as much depth as it requires.  Doing this requires a lot of reading and researching. This could range from researching current legal news or developments, a new area of law or an a rea that is newly developing, or any changes or development to case law.  I’d recommend creating a list of the  areas of law you’d enjoyed throughout from your first to second year. Additionally, you could also just create a general list of areas of law you’re interested in, regardless of whether you’d studied it at university or not.  From here, you can now write out topics you’ve covered that you find interesting  or topics under these areas that you may consider writing your dissertation.  This would give you an idea on  the particular issue or problem you’d want to uncover within the topic you’ve chosen.   

  Research . One key tip whilst researching is opening up your mind and thinking outside the box. While thinking about my dissertation topic, I’d done a module in my second year called ‘Law and Society’, this introduced me to the idea of the liberal legal subject in Law. This was my starting point for my dissertation as I’d connected this with ‘reasonableness’ in law  and drawn this to certain  principles in jurisprudence. I’d also carried out research on this possible line of thought and realised it was possible to  discuss the ‘loss of control defence’  from criminal law  and ‘gender’ all under the heading of reasonableness ( t he short story of how I’d chosen my topic). My realisation here was that I was able to  merge different areas of law whilst researching for my dissertation topic.   

  Ask Questions.  Don’t be afraid to  meet your tutor or lecturers and ask questions about the idea you have for your dissertation.  Be intentional in who you approach and the manner you ask questions relating to your potential topics.  Ask open questions that allow the person you’re asking form an opinion or to allow you see the approach with which they analyse and think about the question.  No question is too ‘silly’ or ‘irrelevant’ as you never know, some of your dying questions may end up forming a part of your research objectives.  And  who knows , the p rofessor  you’ve met may end up becoming your supervisor!   

  Understand  what is expected and required from you  when writing  a dissertation.  This is  also highly  important when choosing a topic .  This would allow you determine the approach you want to take with the various possible topic options. You can decide to discuss broadly on the area with a  real-life  situation as your case study.  Alternatively,  you could decide to use a piece of legislation  or case law to draw out reasons and arguments why your chosen topic is relevant enough to be researched on. The approach you take is highly dependent on your level of understanding of the dissertation expectations  and what you personally want to achieve. Think about who your audience is. Who are your target readers? What do you want them to take out of reading your dissertation?   

  In the next part of this series, I  will  discuss the ‘planning stage’, what to expect and know from this stage and my approach to this stage of my dissertation.   

Article by Oluwabunmi Adaramola. 

Oluwabunmi Adaramola

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The law dissertation

The law dissertation is the final module in our Master of Laws (LLM). The content of the module has been designed to support you in developing and completing your own research project. This must be based on a legal topic related to one of the individual LLM law modules and linked to one of the themes (international, comparative, regulation, human rights). Alongside the time spent in conducting your own legal research, you'll learn about the role and purpose of a literature review, how to identify a suitable research method for a legal research project, how to develop research questions and how to evaluate the ethical implications of your research. Throughout the module, the complexities and challenges of the research process are explored. The writing-up process forms an important aspect of research, and guidance is provided on this process. You'll also consider sources of information, including legal databases, and explore how information is critically analysed and evaluated to draw valid and evidenced conclusions.

Vocational relevance

There is growing professional and commercial demand for highly qualified graduates who have a range of transferable skills. In particular, skills gained from postgraduate legal study are highly valued for their relevance and application. This module is particularly useful preparation for environments in which research and the ability to develop persuasive arguments form a significant part of the work It will also be helpful for any profession that requires skilled graduates who have a demonstrable ability in developing and managing an independent research project.

Universities are keen to admit doctoral research students who have completed most of their research training, finding them better prepared to begin and better able to complete their theses in the required time. This module provides some of that training in research methods and skills.

Qualifications

In certain circumstances, this module can count towards F64, which is no longer available to new students.

• Credits measure the student workload required for the successful completion of a module or qualification.
• One credit represents about 10 hours of study over the duration of the course.
• You are awarded credits after you have successfully completed a module.
• For example, if you study a 60-credit module and successfully pass it, you will be awarded 60 credits.

Find out more about entry requirements .

What you will study

The module builds on the work undertaken in your previous LLM modules and equips you to undertake a significant piece of independent legal research. You'll learn how to:

• conduct a literature review
• select an appropriate research method
• define a clear purpose for your research project
• plan, organise, manage and carry out an extended independent research project
• develop written communication skills suitable for masters level
• write clearly and imaginatively, and with a sense of authority
• create a persuasive argument drawing on evidence and an analysis of a range of primary and secondary legal sources
• consider the ethical implications of your planned research and how to manage these
• use an appropriate referencing system with consistency and accuracy.

The module materials are specifically designed to support you in six key areas: developing your research proposal, undertaking your literature review, choosing an appropriate research method(s), undertaking and analysing your research to form your own conclusions and the process of writing up your research.

Your choice of legal research topic will depend on your interests. The only stipulation regarding the research topic you choose for your law dissertation is that it must be related to one of the LLM law modules you have studied at the OU and be linked to one (or more) of the themes of the LLM (international, comparative, regulation, human rights). Your tutor will help you to decide what is feasible for a legal research project and will provide feedback on your draft research proposal.

Your studies and research will require the use of online sources, including the OU library legal databases. Your work on this module requires an exploration of relevant existing literature and law in your chosen topic area. You're expected to be as up to date as far as possible with recent literature, law, commentary and developments in your chosen research topic. You are expected to make effective use of OU library legal databases and other appropriate resources as you plan and conduct your research. Your law dissertation must include primary and secondary sources of law.

A tutor will support you throughout your studies. They will provide advice on the appropriateness of your research plans, choice of method, literature review and support you through the writing-up process. Your tutor's comments on your written work form a key part of the teaching on the module and provide a way of monitoring your progress.

During the module, you are required to produce four pieces of assessed written work before submitting the law dissertation itself. Each of these is designed to support you as you work towards writing up your law dissertation. The first piece of assessed written work is a draft of your initial research proposal, on which you will receive feedback from your tutor. The second enables you to explore different research methods and identify one which meets the needs of your own research project. Again, you receive feedback from your tutor. The third is your final research proposal which must be approved by the W800 Board. The fourth piece of work is a draft chapter of your dissertation. The fifth and final piece of work is your law dissertation itself. This is marked by two tutors, and their recommendations will help to determine the result awarded by the Examination and Assessment Board.

The work you produce for your law dissertation is not expected to be entirely original (originality is a requirement for a PhD). The work you submit for your law dissertation should include an analysis of the existing literature and law in the topic area covered by your dissertation.

Teaching and assessment

Support from your tutor.

You will have a tutor, who you can contact by email or telephone, who will help you with the study material and mark and comment on three of the five pieces of assessed work, and whom you can ask for advice and guidance. Your tutor will also run online tutorials that you are encouraged, but not obliged, to take part in.

Contact us  if you want to know more about study with The Open University before you register.

The assessment details for this module can be found in the facts box.

Course work includes

Future availability.

The law dissertation  starts once a year – in November. This page describes the module that will start in November 2024. We expect it to start for the last time in November 2026.

Regulations

Entry requirements.

As the final module in the LLM, you must have completed 120 credits towards this qualification to register on W800 (or have completed 90 credits and be awaiting the results from the fourth and final 30-credit module).

The module is taught in English, and your spoken and written English must be of an adequate standard for postgraduate study. If English is not your first language, we recommend that you seek assessment under the International English Language Testing System (IELTS). Please see their website for details.

If you have any doubt about the suitability of the module, please speak to an  adviser .

Additional costs

Study costs.

There may be extra costs on top of the tuition fee, such as set books, a computer and internet access.

Ways to pay for this module

We know there’s a lot to think about when choosing to study, not least how much it’s going to cost and how you can pay.

That’s why we keep our fees as low as possible and offer a range of flexible payment and funding options, including a postgraduate loan, if you study this module as part of an eligible qualification. To find out more, see Fees and funding .

Study materials

What's included.

You will have access to a dedicated module website which includes:

• online university library access (including access to legal databases)
• specially written study materials designed exclusively for this module
• an assessment section
• audio material
• Law Postgraduate Home (which contains a range of study resources and advice)
• online tutorials and forums

Computing requirements

You’ll need broadband internet access and a desktop or laptop computer with an up-to-date version of Windows (10 or 11) or macOS Ventura or higher.

Any additional software will be provided or is generally freely available.

To join in spoken conversations in tutorials, we recommend a wired headset (headphones/earphones with a built-in microphone).

Our module websites comply with web standards, and any modern browser is suitable for most activities.

Our OU Study mobile app will operate on all current, supported versions of Android and iOS. It’s not available on Kindle.

It’s also possible to access some module materials on a mobile phone, tablet device or Chromebook. However, as you may be asked to install additional software or use certain applications, you’ll also require a desktop or laptop, as described above.

If you have a disability

Written transcripts of any audio components and Adobe Portable Document Format (PDF) versions of printed material are available. Some Adobe PDF components may not be available or fully accessible using a screen reader. Other alternative formats of the module materials may be available in the future.

To find out more about what kind of support and adjustments might be available, contact us or visit our disability support pages .

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Sep 20, 2019

Written By Billy Sexton

LLB Law Dissertation

So, you've picked your final modules, consolidated your favourite library seat, and are finally feeling like a big fish in the university pond. But you've got one more challenge on the horizon—the dissertation... 

The final year of your LLB is here, which means it’s time to put together a lovely 10,000 or so word law dissertation.

Gone are the days of first year where a casual 2,000-word essay would be enough to secure 50% of your module marks. Even the tougher second-year essays, where word counts were raised up to 3,500 words, now seem like a walk in the park when faced with the mammoth dissertation.

Many law students before you have faced this, so don’t worry. If they do it, you can too!

A dissertation is a marathon, not a sprint (so no last minute late nights) and working on your dissertation should be treated like eating salami (bear with us on this). You wouldn’t eat a whole salami at once as it’s much tastier in thinner slices.

Therefore, you shouldn’t do your whole dissertation at once. Put it together bit-by-bit, and it will be a much stronger piece of work!

Law dissertation ideas

What you base your law dissertation on is entirely your choice… to a certain extent. You will need to find a supervisor for your dissertation so you won’t be able to do a dissertation on a specific issue if there’s no lecturer at your university who specialises in that topic!

However, presuming there is a lecturer to guide you along the long and bumpy dissertation path, you have free choice over what you’d like to study. Usually, first class dissertations carry originality and research depth.

If you’re stuck for ideas or broad topic areas, let us help you out. We can’t cover every individual area of law  but here are ideas for some of the core areas:

Contract Law – The influence of the EU on contract law, including anti-discrimination directives, a comparison of contract law in different jurisdictions or penalty clauses in contracts.

Criminal Law – Philosophical issues surrounding criminal law, human rights in criminal procedure or social dimensions of crime.

EU Law – Immigration and the law, the law of the European Convention for Human Rights and how this affects human rights within national borders or the impact of the EU on environmental legislation.

Public Law – Public understanding or law and education, state responsibility or historical developments in public law.

These are just a handful of suggestion and may or may not tickle your fancy. It’s best to talk to a range of potential supervisors to get a feel for how they could help you. Start looking early though, as supervisors get snapped up pretty quickly!

Law dissertation structure

Your university should tell you how to structure your dissertation, but usually an introduction highlighting the objectives of the dissertation should also put forward any issues or knowledge the reader will need to be aware of in order when they progress.

Next up is your methodology and literature review. This basically means pointing out what you’re going to research and how and summarising the key arguments already out there.

Then comes the juicy bit—the evidence. This should be what you discovered from your research and a detailed analysis of this.

Finally, the conclusion should outline what you discovered and your conclusion of this.

Writing a law dissertation can be stressful and it’s highly likely you might lose a bit of sleep over it. But at the same time it’s a great opportunity to stick your teeth into a subject you’re really passionate about and gain some good marks that will contribute significantly toward your overall degree mark. 

Next article:  Post LLB: applying for the LPC vs a training contract

If you're currently on the hunt for a  Training Contract  or  Vacation Scheme , head over to our  Law Jobs section.

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HLS Dissertations, Theses, and JD Papers

S.j.d. dissertations, ll.m. papers, ll.m. theses, j.d. papers, submitting your paper to an online collection, other sources for student papers beyond harvard, getting help, introduction.

This is a guide to finding Harvard Law School (“HLS”) student-authored works held by the Library and in online collections. This guide covers HLS S.J.D Dissertations, LL.M. papers, J.D. third-year papers, seminar papers, and prize papers.

There have been changes in the HLS degree requirements for written work. The library’s collection practices and catalog descriptions for these works has varied. Please note that there are gaps in the library’s collection and for J.D. papers, few of these works are being collected any longer.

If we have an S.J.D. dissertation or LL.M. thesis, we have two copies. One is kept in the general collection and one in the Red Set, an archival collection of works authored by HLS affiliates. If we have a J.D. paper, we have only one copy, kept in the Red Set. Red Set copies are last resort copies available only by advance appointment in Historical and Special Collections .

Some papers have not been processed by library staff. If HOLLIS indicates a paper is “ordered-received” please use this form to have library processing completed.

The HLS Doctor of Juridical Science (“S.J.D.”) program began in 1910.  The library collection of these works is not comprehensive. Exceptions are usually due to scholars’ requests to withhold Library deposit. 

• HLS S.J.D. Dissertations in HOLLIS To refine these search results by topic or faculty advisor, or limit by date, click Add a New Line.
• Hein’s Legal Theses and Dissertations Microfiche Mic K556.H45x Drawers 947-949 This microfiche set includes legal theses and dissertations from HLS and other premier law schools. It currently includes about 300 HLS dissertations and theses.
• Hein's Legal Theses and Dissertations Contents List This content list is in order by school only, not by date, subject or author. It references microfiche numbers within the set housed in the Microforms room on the entry level of the library, drawers 947-949. The fiche are a different color for each institution.
• ProQuest Dissertations and Theses @ Harvard University (Harvard login) Copy this search syntax: dg(S.J.D.) You will find about 130 SJD Dissertations dated from 1972 to 2004. They are not available in full text.
• DASH Digital Access to Scholarship at Harvard Sponsored by Harvard University’s Office for Scholarly Communication, DASH is an open repository for research papers by members of the Harvard community. There are currently about 600 HLS student papers included. Unfortunately it is not possible to search by type of paper or degree awarded.

The Master of Laws (“LL.M.”) degree has been awarded since 1923. Originally, the degree required completion of a major research paper, akin to a thesis. Since 1993, most students have the option of writing the LL.M. "short paper."  This is a 25-page (or longer) paper advised by a faculty supervisor or completed in conjunction with a seminar.  Fewer LL.M. candidates continue to write the more extensive "long-paper." LL.M. candidates holding J.D.s from the U.S. must write the long paper.

• HLS Written Work Requirements for LL.M. Degree The current explanation of the LL.M. written work requirement for the master of laws.

The library generally holds HLS LL.M. long papers and short papers. In recent years, we require author release in order to do so. In HOLLIS, no distinction is made between types of written work created in satisfaction of the LL.M. degree; all are described as LL.M. thesis. Though we describe them as thesis, the law school refers to them solely as papers or in earlier years, essays. HOLLIS records indicate the number of pages, so at the record level, it is possible to distinguish long papers.

• HLS LL.M. Papers in HOLLIS To refine these search results by topic, faculty advisor, seminar or date, click Add a New Line.

HLS LL.M. Papers are sometimes available in DASH and Hein's Legal Dissertations and Theses. See descriptions above .

The HLS J.D. written work requirement has changed over time. The degree formerly required a substantial research paper comparable in scope to a law review article written under faculty supervision, the "third year paper." Since 2008, J.D. students have the option of using two shorter works instead.

Of all those written, the library holds relatively few third-year papers. They were not actively collected but accepted by submission from faculty advisors who deemed a paper worthy of institutional retention. The papers are described in HOLLIS as third year papers, seminar papers, and student papers. Sometimes this distinction was valid, but not always. The faculty deposit tradition more or less ended in 2006, though the possibility of deposit still exists. 

• J.D. Written Work Requirement
• Faculty Deposit of Student Papers with the Library

HLS Third Year Papers in HOLLIS

To refine these search results by topic, faculty advisor, seminar or date, click Add a New Line.

• HLS Student Papers Some third-year papers and LL.M. papers were described in HOLLIS simply as student papers. To refine these search results, click "Add a New Line" and add topic, faculty advisor, or course title.
• HLS Seminar Papers Note that these include legal research pathfinders produced for the Advanced Legal Research course when taught by Virginia Wise.

Prize Papers

HLS has many endowed prizes for student papers and essays. There are currently 16 different writing prizes. See this complete descriptive list with links to lists of winners from 2009 to present. Note that there is not always a winner each year for each award. Prize winners are announced each year in the commencement pamphlet.

The Library has not specifically collected prize papers over the years but has added copies when possible. The HOLLIS record for the paper will usually indicate its status as a prize paper. The most recent prize paper was added to the collection in 2006.

Addison Brown Prize Animal Law & Policy Program Writing Prize Victor Brudney Prize Davis Polk Legal Profession Paper Prize Roger Fisher and Frank E.A. Sander Prize Yong K. Kim ’95 Memorial Prize Islamic Legal Studies Program Prize on Islamic Law Laylin Prize LGBTQ Writing Prize Mancini Prize Irving Oberman Memorial Awards John M. Olin Prize in Law and Economics Project on the Foundations of Private Law Prize Sidney I. Roberts Prize Fund Klemens von Klemperer Prize Stephen L. Werner Prize

• Harvard Law School Prize Essays (1850-1868) A historical collection of handwritten prize essays covering the range of topics covered at that time. See this finding aid for a collection description.

The following information about online repositories is not a recommendation or endorsement to participate.

• ProQuest Dissertations and Theses HLS is not an institutional participant to this collection. If you are interested in submitting your work, refer to these instructions and note that there is a fee required, which varies depending on the format of submission.
• EBSCO Open Dissertations Relatively new, this is an open repository of metadata for dissertations. It is an outgrowth of the index American Doctoral Dissertations. The aim is to cover 1933 to present and, for modern works, to link to full text available in institutional repositories. Harvard is not one of the institutional participants.
• DASH Digital Access to Scholarship at Harvard

Sponsored by Harvard University’s Office for Scholarly Communication, this is an open repository for research papers by members of the Harvard community. See more information about the project. 

Some HLS students have submitted their degree paper to DASH.  If you would like to submit your paper, you may use this authorization form  or contact June Casey , Librarian for Open Access Initiatives and Scholarly Communication at Harvard Law School.

• ProQuest Dissertations and Theses (Harvard Login) Covers dissertations and masters' theses from North American graduate schools and many worldwide. Provides full text for many since the 1990s and has descriptive data for older works.
• NDLTD Networked Digital Library of Theses and Dissertations Union Catalog Worldwide in scope, NDLTD contains millions of records of electronic theses and dissertations from the early 1900s to the present.
• Law Commons of the Digital Commons Network The Law Commons has dissertations and theses, as well as many other types of scholarly research such as book chapters and conference proceedings. They aim to collect free, full-text scholarly work from hundreds of academic institutions worldwide.
• EBSCO Open Dissertations Doctoral dissertations from many institutions. Free, open repository.
• Dissertations from Center for Research Libraries Dissertations found in this resource are available to the Harvard University Community through Interlibrary Loan.
• British Library EThOS Dissertation source from the British Library listing doctoral theses awarded in the UK. Some available for immediate download and some others may be requested for scanning.
• BASE from Bielefeld University Library Index of the open repositoris of most academic institutions. Includes many types of documents including doctoral and masters theses.

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• Knowledge Base
• Dissertation

What Is a Dissertation? | Guide, Examples, & Template

A dissertation is a long-form piece of academic writing based on original research conducted by you. It is usually submitted as the final step in order to finish a PhD program.

Your dissertation is probably the longest piece of writing you’ve ever completed. It requires solid research, writing, and analysis skills, and it can be intimidating to know where to begin.

Your department likely has guidelines related to how your dissertation should be structured. When in doubt, consult with your supervisor.

You can also download our full dissertation template in the format of your choice below. The template includes a ready-made table of contents with notes on what to include in each chapter, easily adaptable to your department’s requirements.

Download Word template Download Google Docs template

• In the US, a dissertation generally refers to the collection of research you conducted to obtain a PhD.
• In other countries (such as the UK), a dissertation often refers to the research you conduct to obtain your bachelor’s or master’s degree.

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Table of contents

Dissertation committee and prospectus process, how to write and structure a dissertation, acknowledgements or preface, list of figures and tables, list of abbreviations, introduction, literature review, methodology, reference list, proofreading and editing, defending your dissertation, free checklist and lecture slides.

When you’ve finished your coursework, as well as any comprehensive exams or other requirements, you advance to “ABD” (All But Dissertation) status. This means you’ve completed everything except your dissertation.

Prior to starting to write, you must form your committee and write your prospectus or proposal . Your committee comprises your adviser and a few other faculty members. They can be from your own department, or, if your work is more interdisciplinary, from other departments. Your committee will guide you through the dissertation process, and ultimately decide whether you pass your dissertation defense and receive your PhD.

Your prospectus is a formal document presented to your committee, usually orally in a defense, outlining your research aims and objectives and showing why your topic is relevant . After passing your prospectus defense, you’re ready to start your research and writing.

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The structure of your dissertation depends on a variety of factors, such as your discipline, topic, and approach. Dissertations in the humanities are often structured more like a long essay , building an overall argument to support a central thesis , with chapters organized around different themes or case studies.

However, hard science and social science dissertations typically include a review of existing works, a methodology section, an analysis of your original research, and a presentation of your results , presented in different chapters.

Dissertation examples

We’ve compiled a list of dissertation examples to help you get started.

• Example dissertation #1: Heat, Wildfire and Energy Demand: An Examination of Residential Buildings and Community Equity (a dissertation by C. A. Antonopoulos about the impact of extreme heat and wildfire on residential buildings and occupant exposure risks).
• Example dissertation #2: Exploring Income Volatility and Financial Health Among Middle-Income Households (a dissertation by M. Addo about income volatility and declining economic security among middle-income households).
• Example dissertation #3: The Use of Mindfulness Meditation to Increase the Efficacy of Mirror Visual Feedback for Reducing Phantom Limb Pain in Amputees (a dissertation by N. S. Mills about the effect of mindfulness-based interventions on the relationship between mirror visual feedback and the pain level in amputees with phantom limb pain).

The very first page of your document contains your dissertation title, your name, department, institution, degree program, and submission date. Sometimes it also includes your student number, your supervisor’s name, and the university’s logo.

Read more about title pages

The acknowledgements section is usually optional and gives space for you to thank everyone who helped you in writing your dissertation. This might include your supervisors, participants in your research, and friends or family who supported you. In some cases, your acknowledgements are part of a preface.

Read more about acknowledgements Read more about prefaces

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The abstract is a short summary of your dissertation, usually about 150 to 300 words long. Though this may seem very short, it’s one of the most important parts of your dissertation, because it introduces your work to your audience.

Your abstract should:

• State your main topic and the aims of your research
• Describe your methods
• Summarize your main results
• State your conclusions

Read more about abstracts

The table of contents lists all of your chapters, along with corresponding subheadings and page numbers. This gives your reader an overview of your structure and helps them easily navigate your document.

Remember to include all main parts of your dissertation in your table of contents, even the appendices. It’s easy to generate a table automatically in Word if you used heading styles. Generally speaking, you only include level 2 and level 3 headings, not every subheading you included in your finished work.

Read more about tables of contents

While not usually mandatory, it’s nice to include a list of figures and tables to help guide your reader if you have used a lot of these in your dissertation. It’s easy to generate one of these in Word using the Insert Caption feature.

Read more about lists of figures and tables

Similarly, if you have used a lot of abbreviations (especially industry-specific ones) in your dissertation, you can include them in an alphabetized list of abbreviations so that the reader can easily look up their meanings.

Read more about lists of abbreviations

In addition to the list of abbreviations, if you find yourself using a lot of highly specialized terms that you worry will not be familiar to your reader, consider including a glossary. Here, alphabetize the terms and include a brief description or definition.

Read more about glossaries

The introduction serves to set up your dissertation’s topic, purpose, and relevance. It tells the reader what to expect in the rest of your dissertation. The introduction should:

• Establish your research topic , giving the background information needed to contextualize your work
• Narrow down the focus and define the scope of your research
• Discuss the state of existing research on the topic, showing your work’s relevance to a broader problem or debate
• Clearly state your research questions and objectives
• Outline the flow of the rest of your work

Everything in the introduction should be clear, engaging, and relevant. By the end, the reader should understand the what, why, and how of your research.

Read more about introductions

A formative part of your research is your literature review . This helps you gain a thorough understanding of the academic work that already exists on your topic.

Literature reviews encompass:

• Finding relevant sources (e.g., books and journal articles)
• Assessing the credibility of your sources
• Critically analyzing and evaluating each source
• Drawing connections between them (e.g., themes, patterns, conflicts, or gaps) to strengthen your overall point

A literature review is not merely a summary of existing sources. Your literature review should have a coherent structure and argument that leads to a clear justification for your own research. It may aim to:

• Address a gap in the literature or build on existing knowledge
• Take a new theoretical or methodological approach to your topic
• Propose a solution to an unresolved problem or advance one side of a theoretical debate

Read more about literature reviews

Theoretical framework

Your literature review can often form the basis for your theoretical framework. Here, you define and analyze the key theories, concepts, and models that frame your research.

Read more about theoretical frameworks

Your methodology chapter describes how you conducted your research, allowing your reader to critically assess its credibility. Your methodology section should accurately report what you did, as well as convince your reader that this was the best way to answer your research question.

A methodology section should generally include:

• The overall research approach ( quantitative vs. qualitative ) and research methods (e.g., a longitudinal study )
• Your data collection methods (e.g., interviews or a controlled experiment )
• Details of where, when, and with whom the research took place
• Any tools and materials you used (e.g., computer programs, lab equipment)
• Your data analysis methods (e.g., statistical analysis , discourse analysis )
• An evaluation or justification of your methods

Read more about methodology sections

Your results section should highlight what your methodology discovered. You can structure this section around sub-questions, hypotheses , or themes, but avoid including any subjective or speculative interpretation here.

Your results section should:

• Concisely state each relevant result together with relevant descriptive statistics (e.g., mean , standard deviation ) and inferential statistics (e.g., test statistics , p values )
• Briefly state how the result relates to the question or whether the hypothesis was supported
• Report all results that are relevant to your research questions , including any that did not meet your expectations.

Additional data (including raw numbers, full questionnaires, or interview transcripts) can be included as an appendix. You can include tables and figures, but only if they help the reader better understand your results. Read more about results sections

Your discussion section is your opportunity to explore the meaning and implications of your results in relation to your research question. Here, interpret your results in detail, discussing whether they met your expectations and how well they fit with the framework that you built in earlier chapters. Refer back to relevant source material to show how your results fit within existing research in your field.

Some guiding questions include:

• What do your results mean?
• Why do your results matter?
• What limitations do the results have?

If any of the results were unexpected, offer explanations for why this might be. It’s a good idea to consider alternative interpretations of your data.

Read more about discussion sections

Your dissertation’s conclusion should concisely answer your main research question, leaving your reader with a clear understanding of your central argument and emphasizing what your research has contributed to the field.

In some disciplines, the conclusion is just a short section preceding the discussion section, but in other contexts, it is the final chapter of your work. Here, you wrap up your dissertation with a final reflection on what you found, with recommendations for future research and concluding remarks.

It’s important to leave the reader with a clear impression of why your research matters. What have you added to what was already known? Why is your research necessary for the future of your field?

Read more about conclusions

It is crucial to include a reference list or list of works cited with the full details of all the sources that you used, in order to avoid plagiarism. Be sure to choose one citation style and follow it consistently throughout your dissertation. Each style has strict and specific formatting requirements.

Common styles include MLA , Chicago , and APA , but which style you use is often set by your department or your field.

Create APA citations Create MLA citations

Your dissertation should contain only essential information that directly contributes to answering your research question. Documents such as interview transcripts or survey questions can be added as appendices, rather than adding them to the main body.

Read more about appendices

Making sure that all of your sections are in the right place is only the first step to a well-written dissertation. Don’t forget to leave plenty of time for editing and proofreading, as grammar mistakes and sloppy spelling errors can really negatively impact your work.

Dissertations can take up to five years to write, so you will definitely want to make sure that everything is perfect before submitting. You may want to consider using a professional dissertation editing service , AI proofreader or grammar checker to make sure your final project is perfect prior to submitting.

After your written dissertation is approved, your committee will schedule a defense. Similarly to defending your prospectus, dissertation defenses are oral presentations of your work. You’ll present your dissertation, and your committee will ask you questions. Many departments allow family members, friends, and other people who are interested to join as well.

After your defense, your committee will meet, and then inform you whether you have passed. Keep in mind that defenses are usually just a formality; most committees will have resolved any serious issues with your work with you far prior to your defense, giving you ample time to fix any problems.

As you write your dissertation, you can use this simple checklist to make sure you’ve included all the essentials.

Checklist: Dissertation

My title page includes all information required by my university.

I have included acknowledgements thanking those who helped me.

My abstract provides a concise summary of the dissertation, giving the reader a clear idea of my key results or arguments.

I have created a table of contents to help the reader navigate my dissertation. It includes all chapter titles, but excludes the title page, acknowledgements, and abstract.

My introduction leads into my topic in an engaging way and shows the relevance of my research.

My introduction clearly defines the focus of my research, stating my research questions and research objectives .

My introduction includes an overview of the dissertation’s structure (reading guide).

I have conducted a literature review in which I (1) critically engage with sources, evaluating the strengths and weaknesses of existing research, (2) discuss patterns, themes, and debates in the literature, and (3) address a gap or show how my research contributes to existing research.

I have clearly outlined the theoretical framework of my research, explaining the theories and models that support my approach.

I have thoroughly described my methodology , explaining how I collected data and analyzed data.

I have concisely and objectively reported all relevant results .

I have (1) evaluated and interpreted the meaning of the results and (2) acknowledged any important limitations of the results in my discussion .

I have clearly stated the answer to my main research question in the conclusion .

I have clearly explained the implications of my conclusion, emphasizing what new insight my research has contributed.

I have provided relevant recommendations for further research or practice.

If relevant, I have included appendices with supplemental information.

I have included an in-text citation every time I use words, ideas, or information from a source.

I have listed every source in a reference list at the end of my dissertation.

I have consistently followed the rules of my chosen citation style .

I have followed all formatting guidelines provided by my university.

Congratulations!

The end is in sight—your dissertation is nearly ready to submit! Make sure it's perfectly polished with the help of a Scribbr editor.

If you’re an educator, feel free to download and adapt these slides to teach your students about structuring a dissertation.

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Law: Proposal and Dissertation Writing

Structure of the proposal.

• Conventions of Scholarship
• Dissertation Writing
• Getting started
• Generate Research Ideas
• Brainstorming
• Scanning Material
• Suitability Analysis
• Difference between a topic and a research question
• Literature Review
• Referencing

Faculty Librarian: Law

A proposal should proceed along the following steps:

(1) a clear problem statement is formulated;

(2) the significance of the problem is explained;

(3) a clear research question is formulated;

(4) an answer or solution to the problem is suggested;

(5) the originality of the answer or solution is indicated through a literature survey;

(6) the way in the which the argument will be substantiated in the bulk of the dissertation is outlined;

(7) the method used (and its suitability) to answer or solve the problem is explained;

(8) any definitional issues are clarified; and

(9) a bibliography of materials used is supplied.

• Step 1: Problem Statement
• Step 2: Significance of the Problem/Issue
• Step 3: Research Question
• Step 4: Argument/Answer
• Step 5: Originality of Argument(Literature Survey)
• Step 6: Substantiating the Argument (Chapter Outline)
• Step 7: Methodology
• Step 8: Defining Concepts (Optional)
• Step 9: Bibliography

A proposal commences with a clear problem statement.

• What is the problem that intrigues you?
• What is the issue that you want to deal with?
• What is the question that you want to answer?
• It is often useful to state in your first paragraph as clearly and succinctly as possible what is the problem that you are addressing. Once that is done, the problem is unpacked.
• What is the background to the problem?
• What are the logical building blocks in law and practice that lead to the problem?

These building blocks are very important because they are again reflected in the chapters, where argument is substantiated. Vital to a successful dissertation is a narrowly defined problem. As a research paper is confined to 18 000 words, the issue must be much more limited than that for a mini-dissertation (30 000), full thesis (50 000) or a doctoral dissertation (100 000).

As you will be spending a considerable amount of time on the dissertation, you have to justify this endeavour to yourself, your supervisor and your examiners. Moreover, if the problem is significant, the solution or answer to the problem will be equally important. The significance of the problem may lie in a number of areas. In the case of divergent judgments on an issue, the conflict creates confusion and conflict in practice. The importance could lie in poor service delivery because of badly designed governance structures. Overall, the aim is to state the importance of the research that you will be doing.

Given the problem outlined and having shown its significance, a research question must be formulated that it captures the problem statement. What is the issue or problem that you want to answer? This is a short, concise statement that hones the problem statement into one or more questions.

Very important is that this research question must have a legal focus. It is the legal question you want to answer. Although sub-questions may include issues of development, etc., the main focus must be on some form of law/regulation,etc.

This should also be a measurable question. Indicating your research question as "Examining the effectiveness of insider trading legislation" is not feasible. How will you measure the effectiveness of this legislation?

Having done the reading of the relevant materials you have by now developed a tentative argument or an answer to the problem. You need to state upfront how you will be addressing the problem, what will be the answer or solution. This argument is what binds the dissertation together – providing the central measuring rod in deciding whether any material is relevant or not.

When you start off the proposal writing, you will have some idea of what the answer / argument will be. However, as you develop and substantiate the argument in the various chapters through your thorough engagement with the materials, you may find that the argument is refined, adapted, or changed. This is totally acceptable and even expected. Therefore, while the proposal signals the commencement of the dissertation (and is chapter 1 of the dissertation), it may also be last piece that you write in order to reflect the refinement and reshaping of the argument that occurred along the way.

The criterion by which you will be measured is whether your dissertation has added or contributed to knowledge on the topic. What is the point of the dissertation if the problem has already been solved or the issue addressed?

You must demonstrate the originality of the argument by showing how it compares with the existing literature on the issue. This is done by reading extensively around the issue to determine what other authors have written. In some cases, when you have described the literature on the topic (who wrote and what did they say – not a listing of article or book titles!), you may conclude that no one has yet addressed the particular issue, and therefore, you will provide a unique contribution. Even if you find that the issue has been addressed, you may conclude that it was wrongly or inadequately done. You may argue, for example, that the academic interpretation of a line of court judgments was wrong. The academic enterprise is about challenging accepted views and doctrines.

The focus in the literature survey is on “literature”, namely what other scholars have written. This is not the place to describe the Constitution, legislation or court cases.

The main purpose of the literature survey is to:

(A) Indicate what has been written on the subject and

(B) What will your contribution be? ie, What has not been covered by the literature? How will you contribute?

The bulk of the dissertation is devoted to substantiating the argument. This is done through breaking down your argument into its basic components and devoting a chapter to each component. In the proposal the chapters are outlined, showing how each form part of the argument and contributes to the answer or solution. This is not done by just providing chapter headings. You have to indicate whatthe purpose is of each chapter and what will be argued in that chapter. The emphasis falls on the logical flow of the argument and how each chapter contributes to that flow.

This should be done by way of a brief paragraph description of what will be covered in each proposed chapter.

Having outlined how the argument will be substantiated in the various chapters, you have to show how you will go about this task. What are the materials that you will rely on? What is the methodology that you will follow? If you are analysing court judgments, your primary source of information are case reports. A further primary source of information is legislation, official documents, policies, notices, etc. A secondary source is what other authors have written about the same cases or legislation in the relevant field. As all these materials are found in a library or the internet you may refer to it as a desktop study.

You may want to use empirical data in substantiating your argument. There are a variety ways of collecting such data. Official sources may be used. Newspapers may also be referred to. You may even venture out and collect your own data by, for example, conducting interviews, or inspecting court records. In the case of interviews you need ethical clearance from the University’s Senate Research Committee.

If you are going to do a comparative research, you must explain why, indicate your comparators (comparative countries, etc.) and you must explain why you are using these specific comparators.

In the context of your proposal (and later in chapter 1 of the dissertation), it may be necessary to define some key concepts that will be used in the chapters. This is done to provide the necessary clarity when confusion and ambiguity may be present.

All the materials referred to in the proposal must be listed alphabetically in the bibliography. Use the following main headings:

• Laws, regulation and other legal instruments
• Other government publications: policies, reports, etc.
• Books, chapters in books, articles, reports, internet sources
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Why law students should consider writing a dissertation

It’s a daunting project to take on, but writing a dissertation can give you skills that will be useful in your career

Generally, writing a dissertation is not compulsory. But for law students in particular, it may be worth considering.

It was last year’s conflict in Gaza that encouraged me to write a dissertation. I wanted to find out what the law had to say about such a contentious topic. Luckily, at most law schools you can be flexible with the focus of your dissertation.

A fellow student at City Law School wrote his on the exception of parodies to copyright law. While others in my cohort wrote about humanitarian intervention against Isis, and the practice of child marriage in Bangladesh. Having the chance to explore an area of law outside the seven core modules, and become reasonably knowledgeable in it, can give you an edge in job interviews . Graduates who have completed dissertations have what many others don’t – a specialism, and potentially useful knowledge that can set them apart.

Writing a 10,000- to 15,000-word thesis also enables you to develop transferable skills that will be useful during any law career.

First, there are the obvious research skills. A lawyer’s strength is not so much his or her knowledge of the law, but their knowledge of where to find the law. Thomas Jones, an LLB and LPC graduate from City Law School, wrote his dissertation on the exception of parodies to copyright law, and has since worked as a research assistant for Professor Daniel Wilsher of City Law School.

Jones says the practical research skills he gained was one of the biggest benefits of writing a dissertation. These include the ability to locate sources efficiently, sift through case law and assess expert opinion.

In addition to research skills you learn to write well. Dissertations require succinct arguments and you learn to reduce complex pieces of information into concise sentences. This is useful when advising clients or writing skeleton arguments.

Structure and organisation are also crucial. You will have to use chapters, subsections, headings, and include a contents page. This is essential in the legal profession when compiling bundles and other files.

Rachel Tandy, a barrister at Henderson Chambers, compares the dissertation-writing process to that of preparing a case. “First, you have to gather all the facts. Next, you have to establish what everyone else is saying about them, and what it is that you want to say. Finally, you have to dismantle those facts yourself and re-assemble them in a way that supports your position.

“That process requires a creative mind, forensic attention to detail, and self-motivation – many of the qualities one might look for in a good barrister,” she says.

Although writing a dissertation is predominantly independent work, each student is assigned a supervisor – another potential benefit. The relationship you build with your supervisor, who will be an established professional and expert in your chosen area of study, can lead to further opportunities.

Junaed Khan, a City University graduate, says his supervisor for his international politics dissertation provided him with advice, contacts and invitations to topical networking events and conferences. “She still invites me to events,” he says.

Yasmin Dehghani, who is graduating from St Mary’s University with a law degree this year, also had a close relationship with her supervisor. “My supervisor really helped me to improve my CV, which helped me to get job offers and interviews,” she says.

Writing a dissertation isn’t always plain sailing though. Aram Alaaldin, who wrote his dissertation on the use of force against Isis, says he would only dedicate time to it each week once his notes for other modules were done. “I had to neglect my other modules due to the sheer workload when the deadline was nearing,” he says.

Writing what is essentially a compilation of essays requires a vast commitment of time, reading and effort. Naturally, this can result in stress, anxiety, and a rollercoaster of other emotions.

While not always pleasant, having to deal with such a large workload independently can be a rich experience in itself. It can give you a higher stress threshold, or at least allow you to practice managing it.

When entering the legal profession, a trainee or pupil will likely not have to draft a 15,000-word document from day one by researching a five-page list of books and journals in a completely new area of law.

But having coped with a dissertation, future tasks such as researching a particular case, drafting a short skeleton argument, or reading over some papers, will be comparatively minuscule.

Keep up with the latest on Guardian Students: follow us on Twitter at @GdnStudents – and become a member to receive exclusive benefits and our weekly newsletter.

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How to Write a Law Dissertation?: Step-by-Step Guide

To get the best Law Dissertation Writing Help Contact us at +91 9795971160 .

Read the whole article to understand how to write a good law dissertation .

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Introduction

A law dissertation is an official piece of writing generally done by a student pursuing a doctorate at any university. It’s a document that has details about the topic selected for research by the student and is approved by the professor or guide. It is an official document and has specific requirements to fit into the dissertation. It should be drafted properly and should be in the proper format according to the universities pattern. The dissertation should have relevant information related to research done by one. This article gives a general overview of basic law dissertation writing help to a law student.

What is a Law Dissertation?

A dissertation is a formal term for a thesis. It is an official, lengthy piece of writing. It is generally written by a PhD student at uni. A dissertation is a piece of writing that enhances a different point of view as an outcome of the study. This is typically processed as part of a necessity for a better academic degree. The writer’s study and findings are proffered in the thesis.

A dissertation must conduct fundamental legal research. To review articles and essential laws. If needed the individual should take surveys to get precise results. Legal research helps to get to a broader aspect of the topic as sometimes it is not possible to get from theoretical experience. Good legal research leads to a systematic finding and ascertainment of the law and advances it.

To provide the law dissertation writing help , we have briefly explained, the structure of a law dissertation.

How to Write a Law Dissertation?

Structure of a law dissertation:.

• ABSTRACT: An abstract, the type of overview, gives readers an introduction to one’s thesis. It is a concise summary of one’s thesis in which one defines one’s study’s goals and objectives, methods, outcomes, summary, and strategic development.
• TABLE OF CONTENT: The contents table includes the primary and subheadings of one’s document, as well as the ‘references’ and ‘annexures’ segments. This ought to be linked directly to the entire program and generated by the system by the Microsoft wizard.
• INTRODUCTION: The whole first section ought to contain a description of the problem’s background in addition to an issue statement. The objective of the research should be clear, then the query question. One’s entire analysis initiative and subsequent sections must be responses to the query question you posed. One must provide precise definitions for the terms used in the task. One would also reveal one’s presumptions and overall results objectives.
• LITERATURE REVIEW : This is probably the most significant and critical aspect of one’s analysis. Inside this section of your thesis, one will go over the qualitative research in a similar way that you did earlier. This section reflects one’s efforts and work.
• METHODOLOGY: This section of the thesis focuses on how one found the assets and how one implemented the findings. One will reveal the study questions, establishing, attendees, information gathering, and information analysis procedures when composing a quantifiable thesis. Whether one is writing a quantifiable thesis, this section would then concentrate on the study concerns and postulate, both sample and population data, equipment, information gathering, and market research.
• SAMPLE SIZE: The sample size must be appropriate, not too compact or too massive.
• DATA COLLECTION TECHNIQUES: (Enrollment, Surveys, Interviews, Findings Directed) Data Analysis: Data must be analyzed as per the article’s requirements. The information must be compiled once it has been collected. The overall number of parameters utilized will be considered in the research, as well as the relationship between them will be examined.
• FINDINGS: It is yet another critical point within a research project because it takes into account one’s cognitive innate talent or mental prowess. In the findings section, one repeats the study questions as well as talks about the findings.
• CONCLUSIONS: One would then summarize the research and concisely describe the findings and results in the dissertations’ concluding section. Highlight the importance of explaining why one’s research results play a part in the academic world and how they can be implemented.
• RECOMMENDATIONS/ SUGGESTIONS: It is the final section of one’s analysis, and it contains a section titled “Recommendations for future research,” wherein one suggests an additional study to make clear the difficulties.   Describe the reason why one thinks this study is necessary and also what form that should take.
• APPENDICES: This is a chapter in which one will incorporate data from one’s article that one has supplemented. It is a type of additional material that doesn’t inevitably add anything to the primary content of the paper. It would include the questionnaire, charts, tabular, graphs, and any additional data sources that require further explanation.
• BIBLIOGRAPHY: Use the citation style suggested for one’s field of research, and list all references utilized during the writing and research steps.

Differences between bibliography, footnotes, and reference

Bibliographies, footnotes, endnotes, and references are contributors and related substances for components used during studies that must be acknowledged. If indeed the supplies are not addressed, the work is considered copyrighted.

• BIBLIOGRAPHY: The list of all sources and references is always found at the end of the research.
• FOOTNOTES: This is always noted in the footer at the bottom of the document. It displays citations for every document individually.
• REFERENCES/ SUGGESTIONS: These have always been usually found after publications or sections.

In this article, the author tries to provide law dissertation writing help to law students. Therefore, we can say that to do the desired dissertation legal research is necessary. The drafting of the document is essential in the dissertation. One should always mention all the cases and citations properly or else the document will be considered plagiarized and will not be valid. This article gives a general overview of a dissertation. Every university may have a different format of its own for dissertations for the students pursuing a PhD. It should clarify the idea of research and the basic purpose for doing such research.

• Article by Law Notes – Published on 5 th October 2020 “How to write Dissertation and synopsis” ( https://lawcolloquy.com/publications/blog/how-to-write-dissertation-and-synopsis/25 )
• Article by Law Dissertation Structure “LAW DISSERTATION STRUCTURE” ( https://www.lawdissertation.co.uk/law-dissertation-structure )

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Law is a Moral Practice

Scott Hershovitz, Law is a Moral Practice , Harvard University Press, 2023, 236pp., $39.95 (hbk), ISBN 9780674258556.

Reviewed by Brian Leiter, University of Chicago

In the first chapter of his often entertaining but rather exasperating book, Scott Hershovitz gives two different formulations of its central thesis that “law is a moral practice.” In one formulation, “legal practices—like legislation and adjudication—are the sorts of activities that might , in the right circumstances, rearrange people’s moral relationships. That is what I mean when I say that law is a moral practice” (28, emphasis added; cf. 132). This view, however, is trivially true: all kinds of practices (not just legal ones) “might, in the right circumstances” change our moral relationships with each other. (If my neighbor regularly leaves garbage on my lawn, this will change our moral relationship, e.g., I will be morally justified in bringing a civil action against him, and I will no longer have an obligation to be neighborly towards him.)

In other places, he states the thesis differently: “law is a moral practice, in that it aims to adjust our moral relationships” (36, emphasis added; cf. 103) or, similarly, “When I say that law is a moral practice, I mean that we employ legal practices in an effort to adjust who owes what to whom” (24, emphasis added; cf. 96) (morality, for Hershovitz, concerns “what we owe each other” (21), by which he means the moral realist thesis “what we genuinely owe each other, not what we believe we owe each other” (22)); or, “legal practices are tools for adjusting our moral relationships, and they  are typically employed for the purpose of doing so” (18, emphasis added). This latter view does not seem trivial, nor is it (contrary to Hershovitz (27)) one everyone in jurisprudence accepts (Hershovitz cites only Joseph Raz in the text—who may accept it on one understanding—but he makes no mention in this regard of any of the major figures of 20th century jurisprudence like H.L.A Hart, Hans Kelsen, Norberto Bobbio, and Alf Ross who do not accept it). In what sense, though, does the law “aim” or have as its “purpose” the altering of moral relationships?

On a natural reading, Hershovitz seems to mean that legal actors typically intend to alter moral relationships through the law, but this seems implausible. An alteration in moral relationships might be an effect of legal actions, but where is the evidence that it is the typical intention? On the standard public choice account of legislation, for example, law makers intend only to satisfy the interests of their largest donors who make their campaigns for reelection possible. On one kind of Marxist account, law makers intend to promote the interests of the ruling class. Although there is plentiful evidence for both the latter accounts (Hershovitz seems to think, without explanation or evidence, that such possibilities are “deviant” (28)), one need not accept them to still be skeptical of the claim that legal actors typically intend to alter moral relationships.

Perhaps, for example, people employ law primarily for self-interested reasons (to get what they want, without any regard for moral relationships)? Again, adjusting the moral rights and obligations may be a consequence, but not the reason (or motive), for employing law. The Tax Cuts and Jobs Act of 2017 was intended to cut taxes (for self-interested or other reasons), but its proponents would be astonished to learn that their actual intention was to change moral relationships, even if the effect of the Act can be redescribed in those terms. They have no de dicto intention to change moral relationships, even if, by Hershovitz’s lights, we can ascribe to them a de re intention to do so. But as with the first formulation in terms of possible effects in the right circumstances on moral relationships, this interpretation now seems to make the claim, once again, trivial: once you define morality the way Hershovitz does, it follows that any law (or any other activity) which changes people’s rights or obligations has a “moral” effect (or can be described as “moral”), even when no one de dicto intends that (Hershowitz finally admits as much at 192). This makes law a “moral practice” in the same sense that Mafia protection rackets are “moral practices”: they certainly change people’s rights and obligations. [1]

The tautological character of the book’s central thesis plays a large role. For example, it is true on this reading that “the questions posed in court are moral questions as well as legal questions” (38). The problem is they are answered legally, not morally, at least when the law is determinate. When it is not, of course moral considerations may affect a court’s decision in a particular case, but no one has ever denied that latter point. Dworkin advanced the view that one must always rely on moral considerations to say what the law is, and it seems Hershovtiz does too: “judges must rely on their moral views to resolve the cases that come before them” (56, emphasis added; cf. 175: “moral assessment is internal to legal judgment”), i.e., not just in cases where the law runs out.

His main argument for this latter claim appears in Chapter 2 and is based on a reading of a U.S. Supreme Court case, King v. Burwell (2016), involving interpretation of the Affordable Care Act. Hershovitz observes that the late Justice Antonin Scalia offered normative arguments for textualism as a theory of statutory interpretation in his extra-judicial writings, primarily based on the rule of law value of “publicity” (and fair notice) and the constitutional requirement of separation of powers between the judiciary and the legislature. Hershovitz seizes (63–64) on some language at the end of Chief Justice Roberts’ majority opinion, and Justice Scalia’s dissent, in Burwell to suggest that their disagreement was really a moral one, “over competing visions of democracy and the proper role of judges within one” (65). In fact, most of both opinions concerned the meaning of the statute, with Scalia laser-focused on one word in one sentence, while Roberts argued that Scalia’s reading would render the statute self-defeating given the other parts of the text. Even if we take the concluding remarks in the opinion as evidence of the more ambitious moral debate, as Hershovitz does, this does not show “judges must rely on their moral views to resolve the cases that come before them” (56). It may only show that Burwell , like many cases that end up in the Supreme Court (cf. Leiter 2015), had no right legal answer, so unsurprisingly the judges had to exercise moral and political judgment to resolve it.

Chapter 3 is Hershovitz’s most explicit attack on legal positivism, “the thesis that the content of the law is determined by social facts” (84). [2]   Hershovitz claims that “positivism. . .is false when it comes to the set of norms that is contested in court” because “courts attempt to ascertain and apply the norms that are authoritative. . .[i.e.,] in virtue of moral principles that establish their authority” (85). The latter is obviously false (courts purport to rely on the norms that are legally valid), although I suppose Hershovitz thinks Chapter 2 established it. It may be true that in some decisions by the appellate courts, where law is often indeterminate, judges avert to non-legal considerations, moral or otherwise. This shows nothing about what most courts do most of the time, and nothing about the nature of law. (Recall that one of Hart’s central claims was that law exists primarily outside the courts, as a way of guiding conduct; his was not a theory about appellate adjudication, but like Ronald Dworkin, Hershovitz does not notice.)

Hershovitz wants to deny that law is “a set of norms” in Chapter 3, but his reasons are obscure. He notices that the word “law” is polysemous (see esp. 93), and thus can pick out different sets of norms (one might add: it can also pick out things other than norms, e.g., laws of nature). He offers a list of possibilities, suggesting that Hart offers an account of law as “norms that are accepted by legal officials,” but not of “norms that are authoritative” (82), where “authoritative” means those we “have reason to comply with” (74, cf. 86). Hart’s actual theory—namely that where law exists there is a rule of recognition that specifies the criteria other norms must satisfy to count as norms of the legal system, and the criteria making up the rule of recognition are those that officials converge upon and treat as ones they ought to apply (i.e., that they treat as authoritative, rightly or wrongly)—is not fairly represented on Hershovitz’s list of possibilities. To use Hershovitz’s terminology, Hart’s view is that in modern municipal legal systems, our shared concept treats law as the “norms that are accepted as authoritative by officials,” although even that is not quite right for reasons we can consign to a note. [3]

Hershovitz, I think, would reject even the latter. He makes the astonishing claim that “the original sin among philosophers of law is the rigid insistence that this and not that set of norms counts as the law of the community” (83). One can, of course, reject a central question of general jurisprudence for at least two centuries—namely, what is the difference between those norms that are legal and those norms that are not—but there should be a good reason for doing so. [4]   After all, when I want to make a valid will in Illinois, I go see my lawyer and not a moral philosopher: I want to know what legal norms govern the making of wills in my jurisdiction, not what norms morally ought to govern them, even in light of past institutional actions in Illinois. Hershovitz says that “What’s at issue” in court “is the norms that are [morally] authoritative” (83), but this is not true: all that matters is the norms that are legally valid, regardless of whether we have all-things-considered reasons to comply with them. That’s why morally indifferent lawyers can do good legal work.

In Chapter 4, Hershovitz considers laws and legal systems that are immoral and argues that “some aspects of immoral practices may [nonetheless] generate genuine [moral] obligations” (111). He does not offer a general theory of when bad laws generate moral obligations (which is what his theory would seem to require), but does discuss some suggestive examples. Citing Nazi Germany and some others, he observes that a legal system can be so immoral “that it is worth casting the system aside and seeking something better, even if that risks the abyss” (104). No one, including legal positivists, disagrees with that. Do those places have “legal systems”? Hershovitz doesn’t say, not wanting to commit the original sin I suppose.

Chapter 5 offers a nuanced exploration of the “moral consequences our legal practices might have” (132), although for reasons I do not understand, Hershovitz frames this as a dispute with the more familiar question about whether there is an obligation to obey the law just because it is the law. He says the latter is a question of “marginal importance” (112), even though an affirmative answer would be rather significant, which no doubt explains why so many luminaries, past and present, have addressed it. Despite the peculiar dismissal of the traditional question, Hershovitz offers, among other things, an interesting account of how legal prohibitions on otherwise immoral conduct nonetheless are morally important because they give the state standing to prosecute crimes (122–127).

I did, however, find Hershovitz’s use of (morally) “wrong” in this chapter somewhat confusing. He says, for example, that if “I owe you $500. . .I would wrong you if I don’t [pay you]” even if “I need the money to pay for my child’s medical care” (121), although he says wronging you would be the right thing to do. But you would not be justified in blaming me, given that my child’s health is more important than the debt, and, indeed, you could blame me for not attending to my child’s health if I paid off the debt instead. Not all harms are wrongs. The difficulty here, I suspect, is that “wrong” does not have a lot of cognitive content, and that many of Hershovitz’s judgments on particular cases are more ethnographic data about the etiquette norms of his class and milieu than philosophical insights. But Hershovitz is a moral realist, [5]   and so takes his moral feelings quite seriously.

Chapter 6 argues “that the rule of law requires a shared moral outlook. Officials and (to a lesser extent) laypeople must see legal practices as sources of morality” (147–8). The “rule of law” is glossed in terms of Lon Fuller’s principles of legality (143) and the idea that political power is constrained by public norms and procedures (142). The shared “moral outlook” recognizes that efficacious legal institutions (which the rule of law makes possible) can generate moral obligations by facilitating coordination, resolving disputes peacefully, giving voice to everyone, and so on (144, a theme taken up in earlier chapters as well, but without a clear theory of when this is true).

Hershovitz purports to illustrate the latter with a story of how Alabama legal officials removed former Alabama Supreme Court Justice Roy Moore from office for failing to abide by the decisions of the federal courts on matters of federal constitutional law. Hershovitz makes the fanciful claim that they did this because Alabama legal officials shared the preceding “moral outlook” (143). What actually happened—namely, Alabama legal officials sanctioned a judge for breaching his clear legal duty by defying the order of a federal court over which it had jurisdiction—is dismissed by Hershovitz as merely the “official reason” (138) for his removal. Hershovitz, hell bent on moralizing every legal decision, notes that the “official reason” also mentioned that Moore “sought legal redress by appealing to the limit of judicial review; he was bound by, and had the duty to follow, the rulings of the federal courts” (138). Hershovitz adds that this “is a moral claim every bit as much as it is a legal one” (138). It could be construed as a moral claim, of course, but there is no evidence that is how Alabama officials thought about it. One could ask: is there a good moral reason for Alabama to insist that judges honor their legal obligations? But Hershovitz, in keeping with the trivial reading discussed at the start, simply insists the legal questions are moral ones. [6]

Chapter 7 defends the view that lawyers are “moral experts.” Given the preceding, this seems mostly unsurprising: if “law is a moral practice,” after all, and lawyers are legal experts, then they are moral experts. Once again, the trivial reading of “law is a moral practice” is doing all the work. Hershovitz starts by explaining how moral philosophers can be moral experts despite their disagreements. He cautions that “we should be careful not to exaggerate the extent of the disagreement” (152), which he then proceeds to wildly understate (cf. Leiter 2021 for the contrasting view). We can put that aside. More oddly, given Hershovitz’s moral realism, he invokes a 1972 defense of moral expertise by Peter Singer (then a moral anti-realist), according to which moral experts are good at collecting all the facts and then drawing valid inferences from them given “whatever moral view” one holds (154). One might have hoped moral experts also know which moral view is true! This discussion was quite superficial.

Hershovitz then turns to the question of whether lawyers are “assholes,” although the real issue is whether the existence of morally bad or indifferent lawyers is compatible with the thesis that “law is a moral practice.” Of course it is compatible, since his actual thesis is that any deontic talk in law can be recast in moral terms. He concludes by suggesting that “We ought to invite lawyers to see law as a moral practice—to see themselves as part of a moral endeavor” (167). As Herlinde Pauer-Studer (2020: 205) reminds us, the notorious Nazi judge Roland Freisler would have agreed: “There can be no divide between a requirement of law and a requirement of morality. For requirements of law are requirements of decency.” This does not show Hershovitz is wrong, but it does suggest that speculating about how a thesis about the nature of law will affect practice is a fool’s errand. (Hart did not, contrary to Hershovitz's presentation, rest his defense of legal positivism on any such speculation; he touched on the topic only in response to Fuller’s opposite speculation.)

Hershovitz’s authorial voice is conversational and inviting, and his writing is often clever and funny. I suspect this will make the book effective with readers who know little about general jurisprudence or its history. [7]   Hershovitz professes to wanting to avoid “clutter,” but serious scholarship (including in jurisprudence: e.g., Kelsen, Hart, Raz) often involves “clutter,” i.e., acknowledging the history of a problem, the positions and distinctions others have thought important, the reasons for them, and the arguments against them. This book does almost none of that, so it cannot be recommended to anyone new to the subject, who will simply be left in the dark about the actual questions and problems in general jurisprudence. Despite Hershovitz’s professed interest in discouraging readers from “dig[ging] in and cheer[ing] for a team” (15), Hershovitz is very clearly on a team: anti-positivist, Dworkinian, and moral realist. The book is an amusing, meandering sketch of what seem to me implausible views, with too little serious argument, and too little effort to consider objections, even obvious ones, from the other “teams.”

ACKNOWLEDGMENTS

I am grateful to Elena Di Rosa, Alma Diamond, Josh Kaufman, Richard Stillman, and Helen Zhao for illuminating and incisive discussion of the Hershovitz book in a reading group at the University of Chicago Law School during the 2024 Winter and Spring quarters; many of their excellent insights influenced this review, although none should be supposed to agree with it! I also thank Emad Atiq and Nina Varsava for comments on the penultimate draft.

Greenberg, Mark. 2004. “How Facts Make Law,” Legal Theory 10: 157–198.

Leiter, Brian. 2011. “The Demarcation Problem in Jurisprudence: A New Case for Skepticism,” Oxford Journal of Legal Studies 31: 663–677.

-----. 2015. “Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature,” Hastings Law Journal 66: 1601–1615.

----. 2021. “Disagreement, Anti-Realism about Reasons, and Inference to the Best Explanation,” Ethical Theory & Moral Practice : https://link.springer.com/article/10.1007/s10677-021-10219-y

-----. Forthcoming. “The Metaphysical Turn in Recent American Jurisprudence,” in Leiter, From a Realist Point of View (Oxford: Oxford University Press).

Pauer-Studer, Herlinde. 2020. Justifying Injustice: Legal Theory in Nazi Germany (Cambridge: Cambridge University Press).

[1] Another possibility (suggested by Hershovitz’s discussion of promising at 28) is that he thinks that legal practices, by their nature (as it were), aim to change people’s moral relationships, regardless of the actual practice and intentions. Some recent legal philosophers, like Mark Greenberg and Mark Murphy, do hold something like this view, although only Murphy has an argument for it. Hershovitz offers no argument for it, so I suspect it is not what he means. Even later (186), he suggests his view is “that we see our legal practices as (in part) efforts to adjust what we [morally] owe each other.” Anyone could take that approach, so it would tell us nothing about the nature of law or legal reasoning. This seems less “Law is a moral practice” than “let’s view law as if it were a moral practice.”

[2] This idiosyncratic formulation comes from Mark Greenberg (2004), but Greenberg speaks of the “ existence and content” of law. Hershovitz’s truncation is striking. In the 20th century, the positivist thesis concerned the existence question (when does a norm exist as a norm of the legal system, i.e., when is it valid); Raz added the question of how content is determined, and Greenberg runs with that. On the general problems with this framing, see Leiter (forthcoming).

[3] What officials accept as authoritative are criteria of legal validity that tell us which norms are part of the law, but particular judges can be mistaken about the application of these criteria and thus deem norms legally valid that are not so. Hershovitz’s evidence against Hart’s view is supposed to be how courts talk in hard cases (a Dworkinian move, that is hardly decisive for a theory of law) and a faculty lounge conversation among his law colleagues about whether Trump could pardon himself (89–93).

[4] My own view (Leiter 2011) is that the best answer to the question “What is law?”—Hart’s answer—invariably yields fuzzy borderline cases, especially in the highest appellate courts, and it is a mistake to think that eliminating the “fuzz” in those cases is relevant to the question we are really concerned about: namely, what ought the court do? My sense is Hershovitz thinks we should only be asking, all the time, “What ought the court do?” with the past decisions of legal institutions being relevant only to the extent they affect our moral reasoning, as past events sometimes do. This would be the end of the legal system as we know it, of course.

[5] Hershovitz’s occasional comments on moral anti-realism are silly and superficial (e.g., 24, 194–195): “I have met people who acted as if they did not owe anything to others. But I have never met anyone who acted as if she wasn’t owed anything by others” (194). Nothing in moral anti-realism requires one not to have attitudes about obligations (to others or oneself); it just denies their objectivity. He also claims, bizarrely, that if you are “skeptical about moral claims, you should be skeptical about legal claims” ( id. ) even though the latter are, on a positivist view, just certain kinds of institutional or social facts: skepticism about moral reality does not entail skepticism about social reality.

[6] At the end of the book (192–194), Hershovitz allows that one could deny that “legal” rights/duties are just “moral” rights/duties and admits that he has “not argued against” this possibility, “at least not directly” (193). Since this is probably the central question raised by his book, this is a remarkable admission. Hershovitz claims that treating moral and legal duties as distinct is “needlessly complicated” (193), although I would have thought his book was evidence of needless complication both metaphysically (he needs moral realism), and conceptually (e.g., he goes to great length, in two different chapters, to explain how it is that bad laws can nonetheless produce moral obligations, although he never offers a general theory of when this is so).

[7] Most of the dust jacket blurbs fall into that category; the exceptions are a diehard Dworkinian, as well as a former colleague, friend, and mentor.

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Faculty of Business, Law and Arts

Pre-requisites

LAWS4005 - Law Honours Research and Methodology

Unit description

Students must be able to find the law in an efficient and expeditious manner before they are able to apply it to the solution of a real or hypothetical legal problem. This is the first of two Thesis units that further develop legal research skills that have been introduced at an earlier stage in the degree. These skills must be complemented by the ability to critically analyse, to identify a legal problem or philosophical issue worthy of investigation, to establish hypotheses concerning the problem, where this is appropriate, and to test the hypotheses and present the outcomes of the investigation.

Unit content

Module 1: Research proposal to Honours dissertation

Module 2: Dissertation writing: structure, style and philosophical narrative issues

Module 3: Embedding ethical and methodological structures in your work

Module 4: Research control: modifying Research Question in light of literature review

Module 5: Research control: is your Abstract answering your Research Question?

Module 6: Developing outlets: policy-making, article or LLM/PhD?

Module 7: Thesis writing: tips, tricks and traps

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Learning outcomes.

Unit Learning Outcomes express learning achievement in terms of what a student should know, understand and be able to do on completion of a unit. These outcomes are aligned with the graduate attributes . The unit learning outcomes and graduate attributes are also the basis of evaluating prior learning.

On completion of this unit, students should be able to:

research and identify relevant information and apply advanced cognitive skills to review, analyse, consolidate and synthesise material relevant to complex factual, legal and policy issues

demonstrate an understanding of approaches to ethical decision-making and an ability to recognise, reflect upon, and respond to ethical issues in an advanced research context

demonstrate advance analytical and research skills, advanced dissertation writing and structural design skills.

Teaching and assessment

Online (dual term), prescribed learning resources, dual term 3.

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Prescribed Learning Resources may change in future Teaching Periods.

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Courses that offer this unit

Bachelor of laws with honours (2024), bachelor of laws with honours (2025), any questions we'd love to help.