LEGAL LITERACY OPEL (OPEN PATHS TO ENRICHED LEARNING) Series Editor: Connor Houlihan Open Paths to Enriched Learning (OPEL) reflects the continued commitment of Athabasca University to removing barriers—including the cost of course materials—that restrict access to university-level study The OPEL series offers introductory texts on a broad array of topics, written especially with undergraduate students in mind Although the books in the series are designed for course use, they also afford lifelong learners an opportunity to enrich their own knowledge Like all AU Press publications, OPEL course texts are available for free download at www.aupress.ca, as well as for purchase in both print and digital formats SERIES TITLES Open Data Structures: An Introduction Pat Morin Mind, Body, World: Foundations of Cognitive Science Michael R.W Dawson Legal Literacy: An Introduction to Legal Studies Archie Zariski LEGAL LITERACY An Introduction to Legal Studies ARCHIE ZARISKI Copyright © 2014 Archie Zariski Published by AU Press, Athabasca University 1200, 10011 – 109 Street, Edmonton, AB T 5J 3S8 978-1-927356-44-9 (print) 978-1-927356-45-6 (PDF) 978-1-927356-46-3 (epub) doi: 10.15215/aupress/9781927356449.01 ISBN Cover illustration: ©2014 Phil Bliss c/o theispot.com Interior design by Sergiy Kozakov Printed and bound in Canada by Marquis Book Printers Library and Archives Canada Cataloguing in Publication Zariski, Archie M., 1949-, author Legal literacy : an introduction to legal studies / Archie Zariski (Open paths to enriched learning (OPEL) series, 2291-2606 ; 3) Includes bibliographical references Issued in print and electronic formats Law Canada Textbooks Sociological jurisprudence Canada Textbooks I Title KE444.Z37 2014 KF385.ZA2Z37 2014 349.71 C2014-901205-5 C2014-901206-3 We acknowledge the financial support of the Government of Canada through the Canada Book Fund (CFB) for our publishing activities Assistance provided by the Government of Alberta, Alberta Multimedia Development Fund Please contact AU Press, Athabasca University at aupress@athabascau.ca for permissions and copyright information This book is dedicated to Kim, with love CONTENTS Preface Chapter Introduction Procedural Justice The Adversarial System and Adversarialism in Law Uncertainty and Indeterminacy in Law The Tools of Legal Literacy Critical Legal Literacy Chapter Review Chapter Legal Literacy and Other Literacies: Examining the Concept and Objectives of Legal Literacy Literacy and Law Evolution of the Concept of Legal Literacy Other Literacies Related Socio-legal Concepts Goals and Objectives of Legal Literacy Education Chapter Review Chapter Legal Structures: Structures of Law and Legal Institutions Conceptual Structure of Law Framing Using Legal Concepts Institutional Structures of Law Jurisdiction in Law Critical Perspectives on Structure Chapter Review Chapter Legal Systems: Legal Systems—Linking Legal Institutions Functions of Legal Systems Court Systems Administrative Systems Alternative Systems Critical Systems Analysis Chapter Review Chapter Legal Processes and Procedures: Planning and Procedures for Processes used by Legal Institutions Civil Litigation Process Civil Procedure Criminal Litigation Process Criminal Procedure Administrative Processes and Procedures Critical Analysis of Process and Procedure Chapter Review Chapter Legal Language: Examining Language in Legal Institutions Legal Discourse Legal Vocabulary Plain Legal Language Language Rights Critical Perspectives on Legal Language Chapter Review Chapter Legal Research: Skills and Techniques for Researching Law Types of Legal Research Law Libraries Legal Citation Legal Research Strategy Legal Research Online Critical Perspective on Legal Research Chapter Review Chapter Legal Interpretation: Skills and Techniques for Making Sense of Law Reading Legislation Reading Cases Reading Contracts Critical Perspectives on Legal Interpretation Chapter Review Chapter Legal Communication: Oral and Written Communication to Achieve Legal Objectives Proof of Facts in Law Legal Argument Legal Writing Legal Speech Critical Perspective on Legal Communication Chapter Review Notes Glossary of Terms Bibliography PREFACE The inspiration for this text is partly autobiographical in nature—it reflects issues I have confronted in my life My first career was as a lawyer practising in the field of litigation, where I became fluent in the discourse of legal argument at trials and appeals The evidentiary techniques, legal jargon, and adversarial strategizing I learned at law school were put to good use in the service of clients large and small After fifteen years of this work, the thrill of battle wore off and I became interested in more cooperative ways to solve legal problems I had also always wanted to teach Consequently, I resolved to become a law teacher, with the aim of training lawyers to be problem-solvers instead of gladiators My next career was launched when I obtained a graduate degree by researching the then-new field of alternative dispute resolution As a novice teacher, I came to see that traditional law school pedagogical techniques often reinforced a confrontational mindset among fledgling lawyers, encouraging them to view themselves as privileged insiders in the legal system without much concern for the real needs of their clients beyond winning the court battle Lawyers were being trained from day one to see society exclusively through “legal eyes” that keenly recognized legal concepts and issues arising in everyday events, but were blind to clients’ underlying desires and the emotions that motivated them Many call this “learning to think like a lawyer.” It could also, I think, be considered a dehumanizing educational process that should be changed Early in my teaching career, I came into contact with students in legal studies who were eager to learn about the law, but not necessarily for the purpose of becoming a lawyer They needed some of the same knowledge and technical capabilities employed by law students, but were less tolerant of jargon and traditional law school pedagogy I decided to start teaching some law subjects, such as research and writing, to both legal studies and law students in a more accessible and less elitist way As a teacher of alternative dispute resolution (ADR), I became aware of the wider field of socio-legal studies, where it was born and nurtured Scholars of anthropology, sociology, psychology, and other disciplines have looked at law and legal processes as a subset of other individual and social phenomena Their studies have illuminated the connection (and disjuncture) between law and society ADR scholars have focused on the particular ways in which legal systems respond, or fail to respond to social conflict, and critics, such as those in the access to justice movement, and have asked questions about whom the law really serves Increasingly, these and other perspectives on law and how it is practised have made their way into law schools As a student of the economic analysis of law, I learned that the material conditions of law practice and legal processes can have real effects on outcomes for clients and society as a whole Some of the traditional elements of our legal system, such as legal publishing ... Structures: An Introduction Pat Morin Mind, Body, World: Foundations of Cognitive Science Michael R.W Dawson Legal Literacy: An Introduction to Legal Studies Archie Zariski LEGAL LITERACY An Introduction. .. in Law The Tools of Legal Literacy Critical Legal Literacy Chapter Review Chapter Legal Literacy and Other Literacies: Examining the Concept and Objectives of Legal Literacy Literacy and Law Evolution... understanding of law and to work toward justice within the legal system The key tools for effective action in an adversarial legal system are: Legal analysis: using legal concepts and ideas to identify