Seminar given to LLM and JD students at CUHK, September 2016, on legal education and preparing for life after study

1. Setting (your own) standards:
ways of thinking and writing about the law
Paul Maharg
The Australian National University
Slides @ paulmaharg.com/slides

2. preview
1. Occluded genres in academic study & beyond
2. Anxieties of influence
3. The rhetoric of legal research and writing: what works
4. On the day…
• Slides available at: http://paulmaharg.com/slides

3. Narrative ... is a form whose fundamental characteristic
is to produce closure; argument is the form whose
fundamental characteristic is to produce difference and
hence openness.
Kress, G. 1989. ‘Texture and meaning.’ In Narrative and
Argument, ed. R. Andrews, Milton Keynes: Open University
Press, 12.
Q: how does this apply to law and legal study?

4. John Dewey (1859-1952)
‘A democracy is more
than a form of government;
it is primarily a mode of
associated living, of conjoint
communicated activity.’
Democracy and Education
(1916)

5. 1. Occluded genres: invisibility and voice

6. ‘Academic occluded genres are, in part, those which
support the research publication process but are not
themselves part of the research record.’
Swales (1996, 45)
academic occluded genres

7. In reverse order of seniority:
1.Request letters (for data, copies of papers, advice, etc)
2.Application letters (for jobs, scholarships, etc)
3.Submission letters (accompanying articles, books, etc)
4.Research proposals (for outside funding, etc)
5.Recommendation letters (for students, job seekers, etc)
6.Article reviews (as part of the review process)
7.Book or grant proposal reviews (as above)
8.Evaluation letters for tenure or promotion (for academic committees)
9.External evaluations (for academic institutions)
Swales (1996), 47
examples of occluded genres

8. Journal
editor
letters
Journal
editor
letters
Response
to reviewer
letters
Response
to reviewer
letters
EmailEmail
Published
articles
Published
articles
Conference
presentatio
n
Conference
presentatio
n
Grant
proposals
Grant
proposals
Conference
abstracts
Conference
abstracts
Response
to
reviewers
Response
to
reviewers
Reviewer
evaluations
Reviewer
evaluations
Submission
letters
Submission
letters
Journal
article
Journal
article
Manuscript
s
Manuscript
s
Researcharticle
publicationgenrecluster

9. Journal
editor
letters
Journal
editor
letters
Response
to reviewer
letters
Response
to reviewer
letters
EmailEmail
Published
articles
Published
articles
Conference
presentatio
n
Conference
presentatio
n
Grant
proposals
Grant
proposals
Conference
abstracts
Conference
abstracts
Response
to
reviewers
Response
to
reviewers
Reviewer
evaluations
Reviewer
evaluations
Submission
letters
Submission
letters
Journal
article
Journal
article
Manuscript
s
Manuscript
s
Researcharticle
publicationgenrecluster
Feak (2009,18)

10. • Yes! And we never learned them at Edinburgh
• Seek out opportunities to learn them through PhD &
early career and beyond
• We all need to (re-)learn them, eg Maharg & PFHEA
• Useful text: Swales & Feakin (2004).
are occluded genres part of PhD apprenticeship?

11. • Even more so!
• The genres still exist but in
different & mediated forms –
new contexts, processes, etc.
• New genres are emerging
do we need to learn them in our digital age?

12. • The academy can exclude, suborne, oppress private
lives
• We are not just legal academics,
and we can create our best work when
we explore what we’ve done in our lives,
who we are, our intellectual influences
and affective bonds.
our lives contain occluded genres

13. ‘Now is your time to begin Practices and lay the Foundation of habits that may
be of use to you in every Condition and in every Profession at least that is
founded on a literary or a Liberal Education. Sapere and Fari quae sentiat are
the great Objects of Literary Education and of Study. … mere knowledge
however important is far from being the only or most important Attainment of
Study.
The Habits of Justice, Candour, Benevolence, and a Courageous Spirit are the
first Objects of Philosophy the Constituents of happiness and of personal
honour, and the first Qualifications for human Society and for Active life.’
Adam Ferguson, Lectures, 1775-6, fols 540-1, MSS, Edinburgh University Library,
quoted Maharg (2007, 109-11)
the academy occludes genres, too

14. Non tu corpus eras sine pectore; di tibi
formam,
di tibi diuitias dederunt artemque fruendi.
Quid uoueat dulci nutricula maius alumno,
qui sapere et fari possit quae sentiat, et cui
gratia, fama, ualetudo contingat abunde,
et mundus uictus non deficiente crumina?
Inter spem curamque, timores inter et iras
omnem crede diem tibi diluxisse supremum;
grata superueniet quae non sperabitur hora.
Horace, Epistles, I, iv
You are not merely a body without any feelings.
You have been given beauty, wealth and the means to
appreciate things.
What more would a nurse wish for her sweet little one
Than wisdom, the power to express what he feels,
Much kindness, health and fame,
An elegant way of life, and enough money?
Amid the hope and worry, fear and anger,
take every day that dawns as your last –
the unlooked-for hour will be a welcome surprise.

15. • Poets are anxious about powerful figures in the past, eg early Yeats is too
strongly influenced by Shelley.
• They need to misread the texts of their strong precursors, revisioning the
relationship, and at least in six ways or ‘tropes’, including tessera and
clinamen.
• Misreading or misprision, like intertextuality, opens up latent,
marginalised or hidden textual meaning, and it is possible to use it to
explain and engage with the ideological complexities of powerful texts
and ways of reading within hegemonic traditions. (Bloom 1980)
• All interpretation is misreading (Bloom 1974)
anxiety of influence (Harold Bloom)

16. • Santos takes Bloom seriously by misreading him: poems
distort reality just as law does, and for similar reasons (Santos
1987, 281)
• Santos’ use of clinamen is typically Bloomian in his emphasis
on the creativity of the move: ‘the clinamen does not refuse
the past; on the contrary, it assumes and redeems the past by
the way it swerves from it’ (Santos 2007, 86).
Bloom & de Sousa Santos, part 1

17. • Constitutional arrangements, which are particularly porous,
are always open to misprision: examples are the
endlessly creative debates around the First Amendment
in the USA – in Scotland, post-Referendum,
the discourse of ‘reserved matters’ is another.
• As legal texts, constitutional documents tend to be more
open to arguments of public policy and
rights-based arguments.
• As such, they become shaping texts that,
quite apart from the legislative authority they bear,
are heavily symbolic of the self-identity
of a community.
misprision and constitutions

18. • But just as in Bloom’s critique authors cover influences, or
perform creative swerves around dominant predecessors in a
culture of belatedness, so too does a constitution.
• Every constitution has a relationship to predecessors; and in
addition to granting rights, it creates a normative mode of
discourse that closes down future debate, prevents the
development of new discourse, establishes its own autonomy.
Maharg (2012)
Bloom and constitutionality

19. (Some of) our anxious questions:
•How original is my work?
•How will my evidence & argument be interpreted?
•Am I fitting into a canon? Challenging that canon? Creating an
‘ecology of knowledges’? How will I do that?
•Is conformism what I want here?
•How do I move out of apprenticeship, find my voice, join the full
community?
the constitution of doctoral studies

20. 2. The rhetoric of legal research, reading
& writing: what works
What is everywhere passes unnoticed. Nothing is more commonplace
than the experience of reading, and nothing is less well known. Reading
is taken for granted to such an extent that at first glance it seems nothing
need be said about it.
(Todorov, 1978, p. 39).

21. strategies for reading
What I said to my adult learners:
•Read forward – no recursive reading
•Listen to your expectations for word clusters
•Be aware of context’s effect on meaning
•Cope with loss of power & agency while you’re reading
•Form good habits and discipline

22. Panmure Lute MSS (c.1632), 5, no.3.
Music for Lute Consort, c.1500

23. strategies for reading music
What my lute tutor said to me:
•Read forward – no recursive reading
•Listen to your harmonic expectations
•Be aware of context
•Cope with playing and expression while
sight-reading music
•Form good habits and discipline

24. strategies for reading law
(what I told myself)Read forward – no recursive reading
Listen to your expectations
Be aware of context’s effect on meaning
Cope with loss of power & agency while reading
Form good habits and discipline
- Surface code of words
- Textbase of text – internal meaning of the text
- Situation model – interpreting the text’s situation
-Text genre
-Intertexts
-Epistemic belief
-- Simplicity vs complexity of knowledge
-- Certainty vs uncertainty of knowledge
-- Source(s) of knowledge in and around the texts
-- Justification for knowing what we know

25. what works: making notes from reading
Wylie Lochhead v Mitchell
1870 8 M 552
A. Contracted to build for B. a hearse for a sum, on
condition that B. should contribute certain
portions of materials and workmanship. B. did so
– and materials from were fixed to the hearse so
that they could not be detached without injury to
it. A. became bankrupt before finishing the hearse
which was in his posssession.
Question in law: in a dispute between B. and the
trustee in A.’s sequestration, who owned the
hearse?
Held: that the parties were joint proprietors of the
subject in proportion to the value of their respective
contributions.
This illustrates the principle of equity. Where
material, skill or labour of 2 or more are involved to
produce a corporeal indivisible object, they each have
a claim regarding their individual contribution.
Use mobile digital flashcards,
too…

26. Abstract
With an increasing amount of time spent reading electronic documents, a screen-
based reading behavior is emerging. The screen-based reading behavior is
characterized by more time spent on browsing and scanning, keyword spotting, one-
time reading, non-linear reading, and reading more selectively, while less time is spent
on in-depth reading, and concentrated reading. Decreasing sustained attention is also
noted. Annotating and highlighting while reading is a common activity in the printed
environment. However, this “traditional” pattern has not yet migrated to the digital
environment when people read electronic documents. (Liu 2005)
•Digital streaming is also changing the way we listen to music…
what works:
digital reading

27. what works: legal writing
WRITING
Structured argument Types of writing
Boundaries Writing processes
- Time - Planning
- Word limit - Strategies
- Subject - Monitoring
- Purpose
1. Discursive essay
2. Problem-solving essay

28. • Throw a constraint away
• Partition the problem
• Set priorities and ‘satisfice’
• Draw on a routine or learned procedure
• Plan...
strategies for reducing constraints

29. ‘The UK’s sovereignty is reduced, not enhanced, by Brexit’. Discuss
•Do I agree with the question?
– Disagree with it?
– Agree with bits of it?
•Are there any terms in it I want to define?
•What structure does the question give to my notes?
•What headings can I break this structuredown to?
questions to ask about discursive writing

30. introductions to essays
You can:
• Refer to the demands of the question
– to show you’re being relevant
• Discuss the terms of the question
– that you maybe want to define for yourself
• Question the question
– if you don’t agree with any assumptions it makes
• Summarise what you say in the essay
• Outline what you are going to analyse in the essay

31. • Define area of law
– … and identify if you need to define terms in it relevant to the
problem
• Establish the rights of the parties
– … both parties!
• Identify the option(s)
• Decide on the solution(s).
In an exam, you need to have memorised information to do this – try using
graphics & diagrams...
problem-solving writing

32. Invalidity of
Contracts,
Sheet 1
Scots law of
Contract,
c.1991.
Prepared by
me for the
LLB exam.

33. 3. On the day…

35. First two
pages of
my exam
script…

36. Second two
pages of my
exam script…

37. Questions raised by this shaky
moment…
1.Why did this happen to me?
2.What did it say about my fear of
failure?
3.What else did it say about my
emotional relation to Law?
4.How was I going to stop it happening
in the future?
5.What did it say about the Law
programme, that there was no space in it
to discuss these issues?

38. Bloom, H. (1974). The Anxiety of Influence. Oxford University Press, Oxford.
Bloom, H. (1980). A Map of Misreading. Oxford University Press, Oxford.
Feak, C. (2009). Negotiating publication: Author responses to peer review of medical research articles in thoracic surgery. Revista Canaria de
Estudios Ingleses, 59: 17–34. Available at: http://publica.webs.ull.es/upload/REV%20RECEI/59%20-%202009/02%20Feak.pdf.
Liu, Z. (2005). Reading behaviour in the digital environment. Changes in reading behaviour over the past 10 years. Journal of
Documentation. 61, 6, 700-12.
Maharg, P. (2007). Transforming Legal Education: Learning and Teaching the Law in the Early Twenty-first Century. Ashgate Publishing,
Farnham.
Maharg, P. (2012). The identity of Scots law: redeeming the past. In Scottish Life and Society. A Compendium of Scottish Ethnology. Law, ed.
Mark Mulhern. Birlinn Press & The European Ethnological Research Centre, Edinburgh.
Santos, B. de Sousa (1987). Law: a map of misreading. Toward a postmodern conception of law, Journal of Law and Society, 14, 3, 279-302.
Santos, B. de Sousa (2007). Beyond abyssal thinking: from global lines to ecologies of knowledges, Review (Fernand Braudel Centre), 30
(2007) 45-90.
Swales, J. (1996). Occluded genres in the academy: the case of submission letters. In Academic Writing: Intercultural and Textual Issues, Eija
Ventola, Anna Mauranen, eds, John Benjamins Publishing, New York, 46-58.
Swales, J., Feak C. (2004). Academic Writing for Graduate Students. Essential Tasks and Skills. Second edition, University of Michigan Press.
Todorov, T. (1978) Genres in Discourse, trans. C. Porter. Cambridge, Cambridge University Press.
references

39. Email:paul.maharg@anu.edu.au
Web: paulmaharg.com
Slides: paulmaharg.com/slides