public law essay

Public Law for Everyone

by Professor Mark Elliott

Writing a Law essay? Remember to argue!

Providing advice in the abstract about how to write Law essays is difficult because so much depends on the nature of the question you are answering. It’s also important to take into account whatever are the expectations for your particular course, degree programme or university. Nevertheless, a useful rule of thumb, I think, is that a good Law essay will normally set out and advance a clear thesis or argument . (Note that I’m referring here to essays as distinct from problem questions: the latter call for a different approach.)

The need for an argument

Some answers explicitly call for this. Take, for example, the following essay title:

‘Do you agree that parliamentary sovereignty is the most important principle in the UK constitution?’

Here, the question itself in effect advances an argument — that parliamentary sovereignty is the most important principle in the constitution — and invites you to say whether you agree with it or not. And in saying whether you agree, you need to advance your own argument: ‘I agree with this because…’. Or: ‘I disagree because…’. Or even (because if the question advances a position that you think implies a misconception, oversimplification or false premise, you can say so): ‘I will argue that the question oversimplifies matters by assuming that a particular constitutional principle can be singled out as uniquely important…’

Other questions may indicate in a less direct way the need for you to put forward your own argument. For example:

‘“Parliamentary sovereignty is the most important principle in the UK constitution.” Discuss.’

Here, we don’t have a ‘do you agree?’ prompt; instead, we have the apparently less directive ‘discuss’ prompt. If we read the question literally, it may seem that there is no need for you to put forward your own argument here. After all, it’s possible to ‘discuss’ something without advancing your own argument about it: you could make various points, explain various matters, and leave the reader to make up their own mind. But while this may be formally true, it’s unwise to read the question in this way, because it creates the risk that you will end up writing something very general and descriptive on the topic without going any further.

To summarise, then, there are at least three reasons for making an argument part of your essay. First, the question will often call for this, whether explicitly or implicitly, such that you wouldn’t be answering the question if you didn’t set out and develop an argument. Second, if you don’t impose on yourself the discipline of articulating and defending an argument, you risk underselling yourself by writing something that is descriptive and meandering rather than purposefully constructed . Third, setting out and developing an argument involves taking ownership of the material. By that, I mean using the material in a way that serves the purposes of your argument, showing that you are in command of it and that it is not in command of you. This, in turn, provides an opportunity to demonstrate a level of understanding that it would be hard to show in a descriptive essay that simply wandered from point to point.

Setting our your thesis

If putting forward an argument is (often) important or necessary, how should it be done? There are no great secrets here: the formula is straightforward. You should begin your essay by stating your thesis — that is, by setting out what it is that you are going to argue. This should be done in your introductory paragraph — by the time the reader reaches the end of that paragraph, they should be in no doubt about what you are going to argue. Imagine, for instance, that you are presented with the following essay title:

‘“The courts have expanded their powers of judicial review beyond all acceptable constitutional limits in recent decades; it is time to clip the judges’ wings.” Discuss.’  

In response to such a question, it might be tempting to say in your introduction that (for example) you are going to ‘show’ how the courts’ powers of judicial review have grown, ‘consider’ why this has happened and ‘examine’ the criticisms of judicial over-reach that have resulted. These are all perfectly sensible things to do when writing an essay on this topic, but if that is all you say in your introduction, you will leave the reader wondering what you think — and what you are going to argue . In contrast, an introductory paragraph that lays the foundation for essay that properly advances a thesis will set out what that thesis is. You might, for instance, take each of the propositions set out in the question and stake out your position:

‘In this essay, I will argue that (a) while the courts’ powers of judicial review have grown in recent decades, (b) it is misguided to suggest that this has breached “all acceptable constitutional limits” and (c) that those who now advocate “clip[ping] the judges’ wings” misunderstand the role of the judiciary in a rule of law-based constitution. In other words, the courts’ judicial review powers are entirely appropriate and those who seek to limit them risk undermining the rule of law.’  

An introduction of this nature would achieve two things. First, it would make clear to the reader the position you proposed to take. Second, it would immediately lend the essay a structure.

Developing your thesis

Once you have set out your thesis in the introduction, you need to develop or defend it. This will involve making a series of connected points in successive paragraphs, each of which relates to your overarching thesis. One way of thinking about this is that the individual points you make in the main body of the essay should all relate or point back in some way — and in a clear way — to the position that you staked out in the introduction.

In the example introduction above, the overarching thesis is set out in the second sentence; the individual and connecting parts of the argument are set out in propositions (a), (b) and (c) in the first sentence. One approach, therefore, would be to divide the answer, once the introduction has been written, into three parts, dealing in turn with points (a), (b) and (c). Naturally, as you work through the various parts of your argument, you will need to cite relevant evidence (cases, legislation, literature and so on) in support of your argument. You will also need to deal with matters that appear, at least at first glance, to sit in opposition to your argument (on which see further below) or which, once properly considered, require your argument to be refined.  

A key point, however you proceed, is that the reader should also be clear about how each successive point relates not only to the previous point but also to the overarching argument. The reader should never be left wondering ‘Where does this fit in?’ or ‘Why am I being told this?’ A simple way of avoiding these problems is to signpost , by saying at the beginning of each section how it relates to the overall argument. The flipside of this coin is that you should avoid saying things like ‘Another point is that…’ since this gives the impression, rightly or wrongly, that the various points in your essay have been thrown together in a random order, with little thought as to how they fit together or relate to your overall argument. Even if that’s not the case, you don’t want to risk giving the reader that impression.

A one-sided approach?

The advice set about above might seem to imply that I’m suggesting you write one-sided essays — in which you set out points that support your argument while ignoring those that don’t. However, that’s not at all what I’m suggesting. In order to set out your argument in a persuasive manner, you need to deal both with relevant points that support your argument and with relevant points that appear to challenge your argument — and, in dealing with the latter points, you need to show why they do not in fact fatally undermine your argument. In other words, the approach I’m suggesting here doesn’t mean that you should adopt a blinkered approach, paying no attention to counterarguments: rather, you need to deal with them in a way that shows that, having thought about and weighed them in the balance, you are in a position to show why your argument stands in spite of them (or why your argument can be adapted in a way that accommodates such points).  

All of this points towards a further matter: namely, that advancing an argument in your essay does not mean that you need to (or should) be argumentative in the sense of adopting a strident tone that brooks no debate or compromise. Rather, advancing an argument in the way I’ve suggested here means being thoughtful and persuasive : taking the reader with you on a journey that demonstrates that you have looked at the relevant material, carefully thought through the issues raised by the question, and arrived at a view that you are able to justify and defend through well-reasoned and suitably evidenced argument.

So what about your conclusion? If you’ve followed my advice above, it should more or less write itself. People often agonise over conclusions, perhaps thinking that there has to be some ‘big reveal’ at the end of their essay. But there doesn’t need to be — and indeed there shouldn’t be — any big reveal. There should be no surprises at the end precisely because you’ve set out your argument at the beginning and spent the rest of the essay carefully constructing the different strands of your argument. The conclusion is an opportunity to draw those stands together, but no-one should have to wait with bated breath for the conclusion before finally realising: ‘Ah, so that’s what they think!’ If that’s the impact of the conclusion on your reader, it means there’s something wrong with the introduction!

This post was first published on The Law Prof blog . It is re-published here with permission and thanks.

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121 Yale L.J. 534 (2011).

State implementation of federal law is commonplace, but has been largely ignored by the interpretive doctrines of legislation and administrative law.  We have no Chevron , federalism canon, or anything else for state implementation, nor any doctrines that ask how Congress’s…

The Principle of Misalignment: Duty, Damages, and the Nature of Tort Liability

121 Yale L.J. 142 (2011). When a tort rule is fully aligned, harms are valued equally across the elements. Because the valuation of harm within duty equals the valuation within the damages remedy, a fully aligned rule gives dutyholders the option to fully comply with the duty with respect to any harm by…

Justifications, Power, and Authority

117 Yale L.J. 1070 (2008).

Criminal law theory made a significant advance roughly thirty years ago when George Fletcher popularized the important conceptual distinction between justifications and excuses. In the intervening years, however, very little progress has been made in exploring the structu…

Irreparable Benefits

116 Yale L.J. 1284 (2007)

The conventional approach to preliminary relief focuses on irreparable harm but entirely neglects irreparable benefits. That is hard to understand. Errant irreversible harms are important because they distort incentives and have lasting distributional consequences. But the…

The Efficient Performance Hypothesis

116 Yale L.J. 568 (2006) Notable American jurists and scholars have advanced an approach to contract enforcement that would render breach legally and morally uncontestable, assuming compensation follows. Much of the justification for this endeavor has rested upon claims of judicial and economic effic…

Executive Branch Usurpation of Power: Corporations and Capital Markets

115 Yale L.J. 2416 (2006) Agencies in the executive branch are better situated than other political institutions to take advantage of opportunities to expand their power base by responding quickly and decisively to real or imagined crises. The executive has structural advantages over the other branch…

Beyond Marbury: The Executive's Power To Say What the Law Is

115 Yale L.J. 2580 (2006) Under Marbury v. Madison , it is "emphatically the province and duty of the judicial department to say what the law is." But in the last quarter-century, the Supreme Court has legitimated the executive's power of interpretation, above all in Chevron, U.S.A., Inc. v. Natural R…

Can Strong Mayors Empower Weak Cities? On the Power of Local Executives in a Federal System

This Essay considers the historic weakness of the American mayoralty and recent reform efforts designed to strengthen it. I argue that the strong mayoralty is a potential instrument for democratic self-government to the extent that it is able to amass power on behalf of the city.

Rational War and Constitutional Design

115 Yale L.J. 2512 (2006) Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a comparative …

Break Up the Presidency? Governors, State Attorneys General, and Lessons from the Divided Executive

115 Yale L.J. 2446 (2006) Proponents of the unitary executive have contended that its adoption by the framers "swept plural executive forms into the ash bin of history." Virtually every state government, however, has a divided executive in which executive power is apportioned among different executiv…

Gubernatorial Foreign Policy

115 Yale L.J. 2380 (2006) In a variety of circumstances, state governors exercise independent decision-making power over matters affecting the foreign policy of the United States. This Essay describes and defends this emerging system of gubernatorial foreign policy on both legal and functional ground…

Setting the World Right

115 Yale L.J. 2350 (2006) Five years after September 11, 2001, America's response to that traumatic day has effectively turned the world of American public law upside down. Claiming that a global war on terror calls for an entirely new legal paradigm, the Bush Administration and its supporters have p…

The President's Completion Power

115 Yale L.J. 2280 (2006) This Essay identifies and analyzes the President's completion power: the President's authority to prescribe incidental details needed to carry into execution a legislative scheme, even in the absence of congressional authorization to complete that scheme. The Essay shows tha…

Quasipublic Executives

115 Yale L.J. 2254 (2006) In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is,…

Why (and When) Cities Have a Stake in Enforcing the Constitution

115 Yale L.J. 2218 (2006) This Essay examines independent constitutional interpretation from the bottom up. It focuses on San Francisco's recent challenge to the California ban against same-sex marriage and the judicial response it provoked in Lockyer v. City & County of San Francisco . The Essay argu…

Inherent Executive Power: A Comparative Perspective

115 Yale L.J. 2480 (2006) In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and …

Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within

115 Yale L.J. 2314 (2006) The standard conception of separation of powers presumes three branches with equivalent ambitions of maximizing their powers. Today, however, legislative abdication is the reigning modus operandi. Instead of bemoaning this state of affairs, this Essay asks how separation of …

Absolute Priority, Valuation Uncertainty, and the Reorganization Bargain

115 Yale L.J. 1930 (2006) In a Chapter 11 reorganization, senior creditors can insist on being paid in full before anyone junior to them receives anything. In practice, however, departures from "absolute priority" treatment are commonplace. Explaining these deviations has been a central preoccupation…

Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access

115 Yale L.J. 996 (2006) According to conventional law-and-economics theory, private property rights tend to evolve as resource values rise. This optimistic assessment fails to explain the development of open access in many Third World property systems. Indeed, while the evolution of property has bee…

Of Property and Federalism

115 Yale L.J. 72 (2005) This Essay proposes a mechanism for expanding competition in state property law, while sketching out the limitations necessary to protect third parties. The fact that property law is produced by the states creates a unique opportunity for experimentation with such property and…

Democratic Disobedience

114 Yale L.J. 1897 (2005) Traditional justifications for civil disobedience emphasize the limits of legitimate political authority and defend civil disobedience as a just response when governments overstep these limits. Such liberal justifications are well suited to certain classes of civil disobedie…

To Insure Prejudice: Racial Disparities in Taxicab Tipping

114 Yale L.J. 1613 (2005) Many studies have documented seller discrimination against consumers, but this Essay tests and finds that consumers discriminate based on the seller's race. The authors collected data on more than 1000 taxicab rides in New Haven, Connecticut in 2001. After controlling for a …

Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It

114 Yale L.J. 535 (2004) Recent cases and scholarship have debated whether copyright law is consistent with the First Amendment. Much of the discussion has centered on copyright law's ability to suppress transformative, creative reuses of copyrighted works and on copyright's fair use doctrine as a m…

Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production

114 Yale L.J. 273 (2004) This Essay offers a framework to explain large-scale effective practices of sharing private, excludable goods. It starts with case studies of carpooling and distributed computing as motivating problems. It then suggests a definition for shareable goods as goods that are "lump…

Integrating Remorse and Apology into Criminal Procedure

114 Yale L.J. 85 (2004) Criminal procedure largely ignores remorse and apology or, at most, uses them as proxies for an individual defendant's badness. The field is preoccupied with procedural values such as efficiency, accuracy, and procedural fairness, to the exclusion of the criminal law's substan…

The Priority of Morality: The Emergency Constitution's Blind Spot

113 Yale L.J. 1753 (2004) INTRODUCTION In the wake of the terrorist attacks of September 11, Attorney General John Ashcroft announced a campaign of aggressive preventive detention. Invoking Robert Kennedy, the Attorney General announced that just as Kennedy would arrest a mobster for "spitting on the…

Editor's Note: The Constitution in Times of Emergency

113 Yale L.J. 1751 (2004) Earlier in this Volume of The Yale Law Journal, Professor Bruce Ackerman published his essay The Emergency Constitution, in which he advocated a new constitutional regime to confront the potential for recurring terrorist attacks among modern nations--and the United States in…

The Anti-Emergency Constitution

113 Yale L.J. 1801 (2004) INTRODUCTION The season for talk of leaving the Constitution behind, while we grit our teeth and do what must be done in times of grave peril--the season for talk of saving the Constitution from the distortions wrought by sheer necessity, while we save ourselves from the d…

Adverse Selection in Insurance Markets: An Exaggerated Threat

113 Yale L.J. 1223 (2004) The phrase "adverse selection" was originally coined by insurers to describe the process by which insureds utilize private knowledge of their own riskiness when deciding to buy or forgo insurance. If A knows he will die tomorrow (but his insurer does not), life insurance th…

The Emergency Constitution

113 Yale L.J. 1029 (2004) Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it--not on a plane next time, but with poison gas in the subway or a biotoxin in the wat…

Juries and Race in the Nineteenth Century

113 Yale L.J. 895 (2004) The Supreme Court's jurisprudence on criminal juries has overlooked an important piece of history. This is most notable in the context of its jury discrimination jurisprudence over the past twenty years. In Batson v. Kentucky, the Court held that the Equal Protection Clause p…

Bargaining in the Shadow of Takeover Defenses

113 Yale L.J. 621 (2003) For decades, practitioners and academic commentators who believe that target boards should have broad discretion to resist hostile takeover attempts have put forward the "bargaining power hypothesis" to support their view. This hypothesis states that a target with strong tak…

Insider Abstention

113 Yale L.J. 455 (2003) Scholars writing on insider trading have long believed that insiders can beat the market simply by using nonpublic information to decide when not to trade. Using a simple model, this Essay has shown that the conventional wisdom is wrong. Insiders prevented from trading while …

Minorities, Shareholder and Otherwise

113 Yale L.J. 119 (2003) "[M]en are described as I think they are," Adolf Berle writes of his work, "rather than as they think they are." He continues: "Some will be shocked. The businessman will find that he is a politician and a commissar--perhaps even a revolutionary one. The liberal finds himsel…

Digital Architecture as Crime Control

112 Yale L.J. 2261 (2003) The first generation of cyberlaw was about what regulates cyberspace. Led by Larry Lessig's path-breaking scholarship isolating architecture as a constraint on behavior online, a wide body of work has flourished. In a recent article, I took those insights and reverse-engine…

How Much Redistribution Should There Be?

112 Yale L.J. 2291 (2003) Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes c…

Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property

112 Yale L.J. 2331 (2003) As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic conse…

Common Law, Common Ground, and Jefferson's Principle

112 Yale L.J. 1717 (2003) Why do we care about the Framers of the Constitution? After all, they lived long ago, in a world that was different in countless ways from ours. Why does it matter what their views were, for any reasons other than purely historical ones? And if we don't care about the Framer…

The Secret History of Race in the United States

112 Yale L.J. 1473 (2003) In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, …

Economic Analysis of Contract Law After Three Decades: Success or Failure?

112 Yale L.J. 829 (2003) Modern economic analysis of contract law began about thirty years ago and, many scholars would agree, has become the dominant academic style of contract theory. Traditional doctrinal analysis exerts less influence than it did prior to 1970 and enjoys little prestige. Philosop…

Vigorous Race or Leisurely Walk: Reconsidering the Competition over Corporate Charters

112 Yale L.J. 553 (2002) Does American corporate law work effectively to enhance shareholder value? The recent corporate governance crisis makes this time as good as any for reexamining the basic structure of this body of law. This Essay provides such a reconsideration of a defining feature of U.S. c…

100 Million Unnecessary Returns: A Fresh Start for the U.S. Tax System

112 Yale L.J. 261 (2002) We are now in a quiet interlude awaiting the next serious political debate over the nation's tax system. No fundamental tax policy concerns were at stake in the 2002 disputes over economic stimulus or the political huffing and puffing about postponing or accelerating the inco…

Probability Neglect: Emotions, Worst Cases, and Law

112 Yale L.J. 61 (2002) In this Essay, my central claim has been that the probability of harm is often neglected when people's emotions are activated, especially if people are thinking about the worst-case scenario. If that scenario is vivid and easy to visualize, large-scale changes in thought and b…

Local Policing After the Terror

111 Yale L.J. 2137 (2002) Crime waves always carry with them calls for more law enforcement authority. What happened on September 11, 2001 was, among other things, a crime wave--because of that one day, the number of homicides in America in 2001 will be twenty percent higher than the year before. It…

Legislative Entrenchment: A Reappraisal

111 Yale L.J. 1665 (2002) There is a principle of constitutional law holding that "one legislature may not bind the legislative authority of its successors." The Supreme Court recently discussed that principle at length in United States v. Winstar, and although the case was decided on other grounds,…

Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique

111 Yale L.J. 1707 (2002) Following the lead of Alexander Bickel's The Least Dangerous Branch: The Supreme Court at the Bar of Politics, legal scholars have been obsessed with the countermajoritarian aspects of judicial review. Much of the literature is normative--how can the dilemma of judicial re…

Stopping Above-Cost Predatory Pricing

111 Yale L.J. 941 (2002) This Essay has refocused the predatory pricing debate on ex ante incentives--i.e., the incentives for entry and limit pricing before the predatory period--instead of the traditional focus of high prices after the predatory period. Ideally, a monopoly incumbent should price re…

Categorical Federalism: Jurisdiction, Gender, and the Globe

111 Yale L.J. 619 (2001) An absence of bounded categories may be unsettling but, in lieu of (false) comfort, multi-faceted federalism offers something else, hopefully more useful if less supportive. Under the rubric of multi-faceted federalism, the deployment of categories is accompanied by a sense t…

Veil of Ignorance Rules in Constitutional Law

111 Yale L.J. 399 (2001) A veil of ignorance rule (more briefly a "veil rule") is a rule that suppresses self-interested behavior on the part of decisionmakers; it does so by subjecting the decisionmakers to uncertainty about the distribution of benefits and burdens that will result from a decision. …

What Happened to Property in Law and Economics?

111 Yale L.J. 357 (2001) Property has fallen out of fashion. Although people are as concerned as ever with acquiring and defending their material possessions, in the academic world there is little interest in understanding property. To some extent, this indifference reflects a more general skepticism…

Drug Designs are Different

111 Yale L.J. 151 (2001) In an essay published in this Journal entitled Is There a Design Defect in the Restatement (Third) of Torts: Products Liability?, George Conk criticizes the American Law Institute and the Reporters of the new Restatement for immunizing prescription drug manufacturers from lia…

Bush v. Gore and the Boundary Between Law and Politics

110 Yale L.J. 1407 (2001) Shortly after the Supreme Court's 5-4 decision in Bush v. Gore, one member of the majority, Associate Justice Clarence Thomas, addressed a group of students in the Washington, D.C., area. He told them that he believed that the work of the Court was not in any way influenced…

Pennhurst, Chevron, and the Spending Power

110 Yale L.J. 1187 (2001) Narrowly construed, Pennhurst is a sensible (even if not necessary) process-based limitation on Congress's power to bind states to costly burdens. If read to mean that a state can never be bound by a grant condition when the statute itself does not unmistakably speak to a pa…

The Internet and the Dormant Commerce Clause

110 Yale L.J. 785 (2001)

Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel

110 Yale L.J. 441 (2000) Last Term, the Supreme Court sent ominous signals about the future of federal antidiscrimination law. The Court twice ruled that Congress lacked power under Section 5 of the Fourteenth Amendment to enact laws prohibiting discrimination. In Kimel v. Florida Board of Regents, …

Disaggregating Constitutional Torts

110 Yale L.J. 259 (2000) This Essay has attempted to clarify and reconceptualize constitutional tort law. Current doctrine severs remedies from rights and authorizes money damages on terms that apply indifferently to all constitutional violations. This remedial uniformity is faithful to the Monroe mo…

Deliberative Trouble? Why Groups Go to Extremes

110 Yale L.J. 71 (2000) In this Essay, I have discussed the phenomenon of group polarization and explored some of its implications for deliberation generally and deliberative democracy in particular. The central empirical finding is that group discussion is likely to shift judgments toward a more ext…

Announcing the Editors of Volume 134

Announcing the first-year editors of volume 133, announcing the seventh annual student essay competition, featured content, lock them™ up: holding transnational corporate human-rights abusers accountable, administrative law at a turning point, law and movements: clinical perspectives.

Which program are you applying to?

• The Twilight Zone

Get Accepted! Speak with an admissions expert today!

• Sample Essays

This applicant shows that her passion for public interest law flows naturally from her volunteer activities and life experiences. When you finish this essay, do you have a sense of unity and completion? She tied her conclusion both to the highlights of the body and her opening paragraph.

The last thing I remember is falling asleep during a late night rerun of the Twilight Zone. So when it happened, it was especially eerie, like I had stepped into a lost episode, but Rod Serling was nowhere in sight; for moment, neither was anybody else. At 4:31 AM a merciless shove pushed me off my bed. I crawled on the floor, trying to escape the cruel, uncontrollable shaking, but it followed me. It followed me down the stairs and underneath the dining room table where my family joined me. Little did I realize that before the morning sun rose again, I would see everything differently.

My world changed. The 6.7 earthquake which crippled the Northridge area on January 17, 1994 rattled and ripped apart the fibers of security in our neighborhood. Our home was ruined; smashed glass, crumbled walls, and the lack of electricity, gas, and water made it uninhabitable. Without basic utilities, we slept and "lived" in our car for nine days while guarding our home from looters.

The damage was everywhere. A personal landmark, the Granada Hills Kaiser Permanente Medical Center, collapsed. The site where I had volunteered as a teen advisor — lobbying for and improving the quality of the teen health clinic while working one-on-one with underprivileged, problem teenagers — no longer existed. Only an empty lot and the memory of a valuable and productive medical and psychological outreach program for troubled youth remained.

As much as Northridge and its surrounding regions changed externally, so did the lives of the victims internally. Following this traumatic experience, I developed a keen awareness of the fragility of life and a newly restored appreciating for the simplest of my old comforts. As vulnerable and edgy as I was with every aftershock that rolled through the area, I consoled myself with reminders of how we were spared.

With a profound sense of gratitude for our relative good fortune, within weeks of the initial quake I volunteered at the American Red Cross Earthquake Relief Center. As my family and I rebuilt our home and our lives, I translated for Iranian earthquake victims and performed various clerical tasks. Yet, my most valuable contribution to the earthquake relief team stemmed from the moral support I was "qualified" to provide. With my earthquake experience, I was able to comfort the teary-eyed victims who approached us for help. I gave them the hope and understanding they sought from a primarily out-of-state staff. I benefited too: My work for the Red Cross aroused my curiosity in public interest law.

I had the opportunity to explore this new interest in the summer when I interned in Washington D.C. for Congressman Howard P. ("Buck") Smith of California. That summer I was responsible for attending meetings and informing the Congressman's staff of the issues discussed. One of the issues I followed dealt with a proposed guideline to prohibit religious expression in the workplace due to its allegedly offensive nature. Defining such acts as wearing a Star of David or praying silently before a meal as "religious harassment," the bill attempted to equate these acts with verbal or sexual harassment.

Still the most fulfilling experience of my internship was serving the Mr. Smith's constituents when they wrote, called, or visited our Washington office. Their concerns covered many issues, including city maintenance and the enforcement of FCC regulations on local radio stations; yet, most cries for help grew out of the January 17 disaster.

My experience in the earthquake proved to be useful in my internship. After all, I was working with Mr. Earthquake himself. As the only intern from Northridge, I was assigned to the Earthquake Project. I acted as a liaison between constituents and the Small Business Administration, Federal Emergency Management Agency, and other governmental agencies that handled quake reconstruction monies. Because of my experience, I was again able to empathize with victims in a way that neither the staff nor the other interns could. As a result of my work, I gained a more profound grasp of the legal process and how it was able to help Northridge residents with their post earthquake problems.

The January 17 earthquake dramatically changed my world — both inside and out. In the Red Cross shelter and in Congressman Smith's office, my career ambitions took shape: Public interest law grabbed me. Now I want to help those who cannot purchase legal services, not only by providing the empathy gained during my own trying experiences, but also by using the skills and knowledge I will acquire at the ABC Law School. With this preparation, I look forward to helping others escape their legal or bureaucratic "twilight zones."

Other Sample Essays

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• News & Insights
• essay-competition-aug-2021-winner-announced

The Andrew Lockley Public Law Essay Competition Winner Announced

In 2021, our Public Law and Human Rights team held the first ever Andrew Lockley Public Law Essay Competition.

We launched the contest to give aspiring public law and human rights solicitors a platform to kick-start their careers in law.

After some brilliant entries to the contest, which is named after our first head of public law, we’re proud to present the winner.

Edward Platts was victorious for his well-structured and punchy entry, answering the competition question:

‘Will the government’s proposed changes to judicial review remedies improve citizens’ rights?’

Edward showed critical analysis of the provisions in the Judicial Review, Courts Bill and relevant case law. Throughout the entry, he set out his position on the suggested reforms.

Our judges really enjoyed the flow of the piece, and the broad research included in his essay.

Earlier this year, Edward completed a Post-Graduate Diploma in law, and will start a Legal Practice Course (LPC) in February 2022. Edward will start as a trainee solicitor at Herbert Smith Freehills in August 2022.

Our public law partner Angela Jackman said: “It was a pleasure to read all of the entries. It was great to see how the next generation of lawyers engage with public law issues, which affect society’s fundamental civil liberties.”

Read Edward’s entry in full below.

Introduction

Following its manifesto pledge, the government commissioned a review of administrative law and a subsequent consultation, which has culminated in the ‘Judicial Review and Courts Bill’.  There had been widespread opposition from legal practitioners and academics, who feared swingeing attacks on the fundamental nature of judicial review. However, the reforms are less drastic than originally thought. The government’s proposed changes to judicial review include some minor procedural alterations and the abolition of the Cart jurisdiction, but most significantly, they propose to reform remedies. At present, courts have a suite of discretionary remedies at their disposal, as stipulated by the Senior Courts Act, s.29 and s.31, and the government wishes to expand on those capabilities.  This essay examines the two most salient changes to judicial review remedies: the introduction of suspended quashing orders and prospective-only quashing orders. It is argued that the proposed changes will not improve citizens’ rights, but rather, actively undermine them.  

Suspended Quashing Orders

A suspended quashing order (s.29A(1)(a)) would allow a period of time for the public body to rectify a defect before the order takes effect, and the defect would be treated as if legally valid for that period (s.29A(3)).

The chief advantage of suspended quashing orders is flexibility. From planning, where suspension would allow correction without project delays,  to public procurement, where statute only applies to ordinary quashing orders,  these changes offer ‘greater latitude’ to courts.  This is arguably beneficial to citizens; facilitating worthwhile infrastructure projects, and a further remedy against the government. It also has some practitioner support, and such orders could cultivate more efficient adherence to procedural requirements.

However, this ostensible flexibility comes at great cost - most notably a less rigorous remedial process, and a subversion of the efficiency of public law itself. Public bodies will be less concerned with overstepping their institutional competence if they face a mere suspended quashing order. The change would diminish the results of improper decision-making and ‘weaken remedies that already exist,’ resulting in poorer public practice, and an erosion of the potency of citizens’ rights. Ultimately, ‘justice could be circumvented,’ as rectification would deny a claimant’s putative recovery.  This enables the government to sidestep any real consequences or scrutiny.

Moreover, the Supreme Court has already established that courts are able to issue suspended quashing orders,  but generally should not, as they ‘obfuscate’ and ‘give the opposite impression’ of judgments.  Indeed, Graham observes that suspension is avoided due to outcomes of ‘significant unfairness to the parties.’  That these powers already exist and, if used, drastically undermine citizens’ rights, demonstrates the injustice of their legislative implementation. The government claim that in rejecting Ahmed, they are offering greater discretion to the courts.  But Ahmed ‘prioritised the rule of law over executive convenience,’ and these changes represent further overreach from an already powerful executive.  In the context of ubiquitous Henry VIII clauses and attacks on the HRA,  these “subtle” changes are particularly insidious, representing a wider trend of minimising government accountability.  

Prospective-Only Quashing Orders

The Bill proposes to allow courts to remove or limit any retrospective effects of quashing orders (s.29A(1)(b)), meaning all defective actions taken before the order would remain lawful (s.29A(4)).

The benefit of prospective-only quashing orders is that they are cheaper for the public purse. The order would result in a new, lawful scheme, but would prevent any back-dated claims, thus reducing public funds required to pay-out to potential claimants. It also brings a flexibility for claimants in surmounting the ‘House of Cards’ doctrine, allowing a greater chance of recovery without upsetting other judgments.

However, these benefits seem paltry when compared with the egregious impact the orders would have on citizens’ rights, and the rule of law itself. A prospective-only quashing order constitutes a flagrant denial of justice to citizens who have already suffered; both denying relief, and radically undermining the cardinal principle of universal access to justice. For example, if a prospective remedy had been given in RR v Secretary of State for Work and Pensions, the victims of unlawful discrimination would have received no damages, and ultimately no justice.  Limiting retrospectivity denies claimants redress against the might of the state (the very purpose of judicial review), and would have ‘a chilling effect on justice.’  It is ‘wrong in principle for such rights to be capable of being overridden by judicial discretion,’ but especially so with no representation in court.  It is yet more evidence of the government limiting accountability and reducing exposure to compensation.

Additionally, the changes problematise the separation of powers doctrine. Limiting retrospectivity would draw the courts into the ‘highly-contested policy space’ of considering the public coffers,   which constitutes ‘a real risk to the vindication of legal rights’ of citizens.  Thus, despite government aims of preventing courts from “playing politics”, the reforms have ironically lent a quasi-legislative power to the judiciary, which both undermines Parliament, and impacts the third-party rights of citizens.  However, this is seemingly irrelevant to the government, who wish to limit public accountability whatever the cost.  

In conclusion, the government’s changes to judicial review remedies will not improve citizens’ rights, but rather, drastically undermine them. Though the reforms ostensibly seem subtle, citizens’ private rights would be sabotaged, and their justice denied. The changes reduce government accountability, subvert the rule of law, and weaken the public law process. Moreover, the caselaw shows that courts already have these powers, but never use them due to the vast injustice they unleash on citizens.

Further reading

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10 Powers and Public Law: Law and Politics

• Published: January 2007
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This chapter discusses powers in public law, and the distinctive character of public as against private power, leading into a discussion of the interface between public law and politics. It argues that law and politics are certainly not and cannot possibly be opaque to each other. Mutual respect for the difference of roles in a constitutional regime of separated but mutually interactive powers is not only (in a trivial sense) essential to the security of such a regime; it is essential to a well-secured rule of law. The conceptual difference must be fully acknowledged between law as a normative order of right and wrong versus politics as a domain of statecraft guided by considerations of prudence.

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