转发： RE: 回复： New

[Joe Pratt]

Professor Whitehead asked me to forward the following message to the group (he's not part of the Google group).

----- 转发邮件 -----
发件人: Chuck Whitehead <ckw...@hotmail.com>
收件人: Joe Pratt <jpr...@pku.edu.cn>, mootcl...@googlegroups.com
已发送邮件: Mon, 13 May 2013 16:34:24 +0800 (CST)
主题: RE: 回复： New

I have not had a chance to read the materials, but Professor Joe's summary of issues to consider is a good one.

Let me add one more that may be useful here. Often, when there is no treaty or case law on point (i.e., it is not a slam dunk case), it becomes necessary to think about the issues that are addressed in other cases that may not be 100% relevant to what you are arguing but still provide useful guidance on one or more points. In other words, it is useful to go beyond asking "what" the law is to asking "why" the cases were decided the way they were. Was there a particular approach the court took to analyzing the facts/law? Or particular points/issues that the court found to be more/less relevant? Those opinions, even though not directly tied to your case, may still be useful in framing your argument and providing persuasive support for your analysis and how you have approached the problem.

Regards,

Prof. Whitehead

> Date: Mon, 13 May 2013 15:34:30 +0800
> From: jpr...@pku.edu.cn
> To: mootcl...@googlegroups.com
> CC: ckw...@hotmail.com
> Subject: 回复： New
>
> Dear class,
>
> Further to our meeting last Friday, a few email exchanges with Pang Xu, and reading Diana and Vivian's initial drafts, I wanted to briefly explain a common law approach to these moot court problems and legal questions in general.
>
> First, the facts give rise to the issues. How so? By revealing what the parties dispute. Prospero is responsible for Iris, for example, but Caliban is responsible for jamming Miranda I's signals. So who is responsible for the crashes of Miranda I and Caliban Airlines Flight 281?
>
> Second, there are no clear or easy answers to these questions. If you find yourself with what in America we would call "a slam dunk case," you probably are not seeing the issues clearly. In the end, the judges must make a tough decision about whose side is right or--you might say--most reasonable.
>
> Third, you must have case law, UN resolutions, scholarly opinions, and other materials to support your legal position. In the case of a binding treaty position, you must argue for your interpretation of it (that it either does or does not cover the conduct in question). With respect to customary international law, you must argue either for or against the custom with such materials.
>
> Fourth, the two sides will have different interpretations of the facts. Facts are objective, and they are subjective. How do you interpret any given event? This is where a theory of the case comes into play. In the end, you're giving the court a story, complete with interpretations of the law and the facts. A good lawyer often starts her argument with "This case is about..."
>
> Fifth, the issues must be decided separately. In other words, you cannot conflate an earlier issue with a later one--if they are that closely related, they should be one issue. Your outline below puts the jamming of Miranda I after the the losses of Miranda I and Caliban Airlines Flight 281. Could such jamming be consistent with international law, but Caliban still be liable in part or in whole for the losses of Miranda I and Flight 281?
>
> From working with PKU moot court teams over the past two years, I've seen how students, following the civil law tradition, often view the law as a black and white logical quest. Facts are considered similarly objective. The common law is much more fluid, artistic you might say. You need to be somewhat creative in your approach.
>
> Most U.S. law students learn this method in the first year of law school. It's an eye-opening and often brutal experience. Pang Xu has been acquiring it during his past three competitions, and Diana no doubt came across it in her last semester at Columbia. Our best moot court students generally become very good at it.
>
> Your outline below and the initial issue drafts indicate you're taking a traditional civil law approach to this case (long chains of logical reasoning, including conflating distinct legal issues). Because these competitions follow a common law approach and are often written and judged by common law attorneys, you may want to move in that direction.
>
> I hope the above explanation is helpful. Professor Whitehead may have additional comments. If you have any questions, we of course can dicuss them in class tomorrow.
>
> Regards, Professor Joe
>
>
>
>
> ----- 原始邮件 -----
> 发件人: 庞序 <sd7958...@vip.sina.com>
> 收件人: mootcl...@googlegroups.com
> 已发送邮件: Tue, 07 May 2013 13:19:32 +0800 (CST)
> 主题: New
>
> C1
> Radar image collection was illegal.
> Seizure and dismantling of M2 was legal
>
> C2
> P was liable for the loss of 281
> C's jamming was legal
> P's jamming of SpaceTV was illegal
>
> P1
> The seizure and dismantling of M2 was illegal
> The jamming of M1 was unlawful
>
> P2
> Caliban was liable for the damage M1
> P's jamming of SpaceTV was legal
> P was not liable for the loss of 281