Analysing Cases
Analysing a case involves extracting the ratio and identifying the arguments put
for and against each meaning of the ambiguous provision. Ideally, analyse a
case on two levels – see fully what could have happened and see what actually
happened. First, identify the full possibilities before the court. This puts you,
the reader, in full command for future use of the case. Second, identify what
the court actually said.
Cases perform two separate functions with law – they make common law and
they interpret law which is either common law or statute law. In the less
common case of a court making common law we use the model for making
common law. In the more common case of interpreting law it is necessary to
use the model for interpreting law.
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Analysing Cases: Making Common Law
In a case that makes a common law rule, the ratio decidendi is of course the
common law rule. As was explained in discussion of making common law,
there are two steps involved in making the rule. First, the court has to decide
which facts of the case are material facts in that they require regulation by a
common law rule. Second, once the material facts are identified the court
generalises each fact to some degree, determine by the court itself, to
formulate the element of the new rule.
This provides an easy guide to how to identify the ratio of a case. Identify the
material facts then determine how each was generalised by the court to make a
rule. Ideally this is found in a comprehensive formulation of the rule by the
court.
Analysing Cases: Interpreting Law
Where a case interprets law the tool for analysing it to determine the ratio
involves the three steps in the model for interpreting law, with the addition of a
preliminary step concerned
with identifying the issues. Thus there are four
steps:
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Step 1: Issue. Identify the issue that came before the court.
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Step 2: Ambiguity. Identify the ambiguous word or phrase. Then
see how the court analysed the ambiguity. What meanings did it identify?
Consider if there were any meanings omitted or some another way of analysing
the ambiguity. Identify also the effect that each meaning might cause.
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Step 3: Reasons. See what reason the court considered. Think
about other reasons which the court did
not consider but might have
considered.
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Chapter 5 Model for Forming Law
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