2. Legal Dynamics – Learning by Teaching
“… the objective of the course is not to make lawyers out of engineering students. Rather, the intention is to demonstrate that principles of law—while they can be learned like the data in so many other courses these students have taken in their university careers—have to be applied by human beings to real-life situations. The point is that Law, as a field of study, and as a profession, deals far less with abstract rule-making or rule-finding, than with practical problem solving and decision-making in cases where statutes and rules provide only general guidelines. Although the rules of law themselves may seem to be clear, they can only be applied once we know which rules apply to which facts. Therefore, we first have to establish:

- What the FACTS of the case are. That is: ‘Who are the parties?’; ‘What have they done?’ and ‘How has what each has done affected the other?’ The sum of the FACTS should tell us:

- ‘What LEGAL PROBLEM arises here?’ i.e.: ‘Who is suing whom for what?’

- To solve that PROBLEM, we look to underlying LEGAL ISSUES—that is, we must determine: ‘Which legal rules apply to the particular disputes we have isolated?’ and

- That enables us to analyse: ‘What has been the judicial RESOLUTION of any particular case?’ and/or: ‘Was an ALTERNATIVE RESOLUTION desirable or possible?’ ”29

O. Lee, “Does Talent for Legal Reasoning differ from Talent for ‘Scientific Method’?”

A. How Are Legal Decisions Made ?
“I know what you want,” a second year wag came to my office to tell me one day. “You want the ratio decidendi [the reasoning underlying legal decision-making].” While a little taken aback by this sharp Hong Kong student’s freshly acquired Latin, that was exactly what I had been asking students to look for.

Still new to computers when I came to Hong Kong, I had very soon grasped that what the 300 students in the huge lecture theater looked forward to in lectures was an accompanying set of PowerPoint notes to enable them to follow along this strange English legal vocabulary—and to outline the substance of the presentation as it went along as well. Hasty handwriting on the whiteboards, and even my choice of bold font in handouts was roundly criticized. With PowerPoint every student could opt out of the limelight, sit back in the darkened lecture hall, and watch the lecture like a movie.30 At this university, at any rate, all students took a first year course in use of computers. So before long one or two came forward to guide the new foreign instructor in the desired IT presentation skills.

What brought this brash business student to my office that day were remarks I had made a step further along in my introduction to information technology. In tutorials, I had observed that students who came in totally mystified by the case report they had just read, were, nevertheless, able to unravel it all very nicely—with a few probing questions. “What were the facts of the case?” “What was the legal problem those facts presented?” “What were the underlying legal issues given a problem of that nature?” “How could such a problem be resolved—and had the court done it justice?” When the same students were then asked to present their analysis of the case to the class at large, they dutifully amplified this with a running PowerPoint demonstration. #p#分页标题#e#

Still new to IT, it had struck me that what these students were doing with the PowerPoint was, however, not simply reporting the results of their recent tutorial dialogue over the Facts, the Problem, and the Legal Issues underlying the case. They were instead bullet-pointing the case word for word from the case report.


The difficulty I saw in that—at least this one young man had grasped right away—was that to bullet-point every statement of the decided case report as Fact or Rule, my student reporters were bound to tot up exactly the same result every time without question. In this way, they were repeating the decisions exactly as laid down by the court reporter without further analysis or question. Thus the IT system, presumably intended to free their minds from having to unpuzzle my scrawled handwriting or archaic choice of font, had instead made them prisoners of a technological system of data presentation that turned sometimes sound, but at times also less thoughtful steps of reported judicial logic into a collection of undisputable Facts and Rules. They became, as a result, no more than a mirror for the case reporter. True, they might learn the “law of the case” in this fashion. But they would be left helpless to confront a reasoning process that did not assess similar events in exactly the same way.

This was not legal analysis, I objected. This was an IT led illumination of the obvious. What Americans like to call “thinking like a lawyer”, is not that simple. But the bullet-point formula is the way legal decision-making is all too often depicted by government or administrative agency officials—in Hong Kong and elsewhere—and accordingly that is how it is perceived by the public. Absolute rules, fixed penalties, no discretion, ever. Reasoning has nothing to do with it. Thus when the recent Severe Acute Respiratory Syndrome (SARS) outbreak in Hong Kong was attributed, among other things, to the dumping of trash and garbage in alleyways, the Government, only partially successful with major offenders, sent out a corps of street monitors to get the little guy spitting or littering on the street with “zero tolerance” fines and penalties.

Yet, day-to-day legal problems are not always as simple as catching a litter-bug red-handed.31 More often the question is: “What are the facts of the case?” “What is the offense alleged?” And, “How do the legal issues under the cited section of the statute apply?”


In the early days, when I arrived, every public motorbus in Hong Kong had a huge sign in English and Chinese at the top of the steps: “Whoever talks to the bus captain or steps over the yellow line [behind the driver] while the bus is in motion commits an offense!” You did not have to ride often to discover that it was sometimes inevitable to avoid committing one or the other of those offenses. The driver often lunged the bus forward before passengers were seated—or while they stood jammed in the aisles attempting to sort out change for the fare box. There were pushbutton signals to alert the driver to the passengers’ desired stops. But, the driver frequently swerved through bus stops where no one was waiting to get on. And, in the noisy double-decker, typically, passengers felt they had to call out where they wanted to get off before they missed their stops. I faced exactly that situation one day, when the driver suddenly accelerated halfway through the university roundabout when no one was waiting to get on. The bus swerved. Already standing by the exit to get off, I was thrown over the yellow line. “Fodai, mgoi!” I called out—“university station, please!” The driver skidded to a halt. But, inadvertently, I had already committed both elements of the posted offense. #p#分页标题#e#

Yet, was there any street monitor there waiting there to cite me? Would any jury of motor bus passengers have convicted me? Wasn’t the unstated purpose of the ordinance clear—it is sometimes dangerous to distract the driver while the bus is in motion? But, wasn’t it common knowledge that drivers raced their buses, …that riders swayed in the aisles, …and that passengers frequently had to call out their stops to avoid being whisked past their destinations before they could get off? Without going into the technicalities of the legal doctrine of “necessity”, wasn’t it plain to anybody who rode the buses that a person unsteady in a careening motor bus would have to put his feet down somewhere in order not fall on his face?


In capsule form, that is the kind of assessment of the facts and legal issues a court must also deal with. Granted the black-letter law is clear. The factual elements of the offense are present. But was it the blind intent and purpose of the legislature to fine or jail every passenger attempting to alight from a motorbus under those conditions? That question is also one that legal decision-makers must deal with on a daily basis.

Yet, what a marvelous new technology, this PowerPoint was, I mused—not simply for enumerating the bullet-pointed elements of tort and contract—but also for explicating literary analysis of judge-made law. Here the possibility was given to pull out crucial extracts of judicial reasoning from page-long rhetorical discourse. To take an unbroken single sentence paragraph from the case report, and put it into simple comprehensible form for classroom discussion. For example:


“…a restrictive covenant given by a vendor of a business was very likely to be upheld by the courts;
a similar covenant given by a workman would be more zealously scrutinised.”32



“How could we miss this court’s eloquent Chinese poetic parallelism?” (here, with the bullet-points thrown in to boot), I wondered out loud. What the court did with this stylistic meter was to distinguish an enforceable covenant not to compete, given by a retired equity partner of a law firm, from an unenforceable covenant, given by a former contract partner.

Yet, Chinese aesthetics aside, there had to be something more at stake here in this court's decision. The contract language was practically identical in both cases. What enabled the court to distinguish who would be bound from who would not be bound? If I was not mistaken, the information technology could be of use to enumerate not only primary factual data, but also to illustrate an unspoken intrusion of equity into the judicial thought process.

What intrigued me, here, was the use of information technology to enable an instructor with a 40-minute time limit to examine an unpunctuated multi-line piece of judicial law-making handily for the 300-some students following in their second language. #p#分页标题#e#

What intrigued me as a novice to PowerPoint was the fabulous opportunity to take a practically un-digestible paragraph-long sentence of judicial law-making and to make it readable:

…whether persons with a practical knowledge and experience of the kind of work in which the invention was intended to be used would understand that strict compliance with a particular descriptive word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way the invention worked.33

As an instructor's selection, this was a crucial excerpt defining infringement. Yet, in unmodified textual format, it was only questionably more digestable than the whole case report. “But let us put the IT to work—add the bullet-points and some italics—and see whether it makes a difference”, I thought: