...NATIONAL UNIVERSITY «ODESSA LAW ACADEMY» Department of International Law and International Relations TERM PAPER In Legal Philosophy on topic: «Judicial Precedent» By the 1st year student of the 1st group Of the Faculty of International Legal Relations Supervisor: Prof. National scale ___________ Number of points ______ Assessment ECTS _______ Commission members: ___________ _______________________ ___________ _______________________ ___________ _______________________ ODESSA 2014 THEME: Judicial Precedent PLAN INTRODUCTION …………………………………..…………………………… 3CHAPTER 1. Judicial Precedent: generals 1.1. Definition of judicial precedent ………………………………….…... 51.2. The doctrine of stare decisis ……..………………………….……..… 61.3. Ratio decidendi and Obiter dictum …..………………………….....… 7CHAPTER 2. Types of precedent2.1. Verticality ……………………………………………………………. 102.2. Horizontality ………………………………………………………… 112.3. Binding precedent …………………………………………….……... 122.4. Persuasive precedent ………………………………………………… 15 CHAPTER 3. Avoiding precedent 3.1. Distinguishing …………………..……………………………………. 19 3.2. Overruling ……………………………………………………………. 19 3.3. Reversing ……………………………………………………………... 20 3.4. Per incuriam…………………………………………………………… 20 CONCLUSION …………………………………………………………………... 22LITERATURE …………………………………………………………………... 25 | INTRODUCTION At the present stage of development of Ukraine in the framework of the democratic process, there are the emergence...
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...appeals process and an example case of an appeal. And why the example case appeal did or did not succeed. Introduction A defendant can challenge is conviction by filling an appeal to have the conviction overturned. The first appeal filed in most cases in the Federal System and most State Court systems is an appeal of the Statutory Right. If they lose the appeals under the statutory right they may then appeal to the State Supreme Court or the U.S. Supreme Court. But in most cases a defendant does not have the right to file such an appeal. The Supreme Court must agree to hear the defendant’s case. But defendant needs to remember that an Appeals Court is not automatically required to review a case. What is an appeal? An appeal is a petition to a higher court for review of a case that has already been decided by a lower court of law. The petition is made for the purpose of having the lower court’s decision overturned. How do appeals factor into the overall criminal procedures and processes? Merely filing an appeal does not automatically mean that a defendant will find it easy to have the court decision reversed. It is imperative that the defendant shows the court in the appeals process that the initial decision was incorrect or flawed in some way. This can be done by proving that the previous decision was made in error, or by bringing to light new evidence that was not offered in the initial trial. Defendants need to know that appellate courts each have rules that control...
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...Introduction: In this case study we will be taking a close look at the United States legal system and how it became what it is today. Research issue or case/code chosen: Where did our legal system originate from? Discuss the development of the court system; Special Federal Courts, Federal District Courts, Federal Courts of Appeal, United States Supreme Courts, State Courts, Inferior Courts, Courts of Original General Jurisdiction, and Appellate Courts. Explain when each court system was developed, why it was developed, and what each specified section of the court system does. Analysis: Our legal system was installed by the European colonists when they settled in this country. Our legal system based off that of England, France and Spain and ended up closely mimicking that of the England because, the first 13 colonies were primarily English. In the United states we have two main kinds of courts with sub courts within them. We have the Federal Court System and we have the State Court System. The Federal Court System is made up of four different courts; the Special Federal Courts, Federal District Courts, Federal Courts of Appeals and the United States Supreme Court. The Special Federal Courts are limited in its jurisdiction or specialty. Examples of this type of court would be Bankruptcy Court and US Tax Court. Bankruptcy Courts are only concerned with the administration of bankruptcy hearings and US Tax Courts are only concerned hearings involving deficiencies...
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...expansion of criminological research efforts. Since 1980, there has been a substantial increase in the financial resources afforded to criminological research, which has led to a large number of activities within criminology and criminal justice system. Looking at the social factors of criminals, it is possible to see these factors could influence criminal decision and the way they handle situations. Mary Bell was an eleven- year-old girl, who lived in England in a poverty stricken area, known as Scotswood. The criminal grew up the product of a prostitute mother and a thieving father figure. She was often abused, although does not admit to this until later in her life. She was only 11 years old when she became a criminal. According to courts, she was found guilty of manslaughter, because of diminished responsibility in the murders of two three-year-old boys, named Brian and Martin....
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...education, experience, and volunteer work have provided you with the skills that relate to the duties of the position. You can convey this commitment by carefully tailoring your materials to the job description. If there is no job posting, use the website to learn all that you can about the organization’s work and the clients they serve. Talk to other students who have worked or volunteered with the organization. (You can find this information by looking at the lists of where students worked in previous summers). Use this information to highlight your relevant experience and illustrate that you can “hit the ground running.” In your resume, you may want to highlight relevant coursework from law school or undergraduate studies especially clinics or externships; volunteer work that relates to the client population or demonstrates your commitment to public interest/ government work; your language skills; and for government positions your leadership skills. In your cover letter, use strong topic sentences to summarize the skills you bring to the position. The rest of the paragraph should...
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...Management In an event of the breach of any contract, legal remedy should be provided to the parties that are involved in the agreement. However, instead of going directly to the court of law, there are specific remedies that serve as an alternative dispute resolution and one such alternative is arbitration. In arbitration, an arbitrator (a neutral third party or experts) renders a decision based on the disputes they are presented with. Here, the third party’s decision is legally binding, as it is an alternative dispute resolution (ADR) to the judicial system of the nation. Except for a few special cases, the court of law will reject any disputes between contracting parties and refer to the parties to arbitration. This is why almost all contracts and agreements have arbitration clauses mentioned in so it has to be a collateral to the main contract so as not to end with the contract itself. “The other term of the contract fall but the arbitration clause survives” (Pathak, 2010). The procedures to arbitration are stringent laws that pertain to how justice should be served in case of a contractual breach. Since courts alone couldn’t resolve the question of arbitration, there had to be a law that referred to the powers invested to the parties as private legislation and the ousting of the jurisdiction of the court. Hence, the Arbitration Act, 2055 (1999) was enacted to provide such guidelines for remedy for breaches in contracts. In this Act, there is mention of the procedures to appoint...
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...Video Case Study: Court Systems and Jurisdiction—Supreme Court Sides with Walmart 1. This story is about the Supreme Court’s decision. What process did this case have to go through to get to the Supreme Court? The U.S. Constitution establishes the Supreme Court, which is authorized by it to hear original and appellate cases. Original cases are heard only by and are sent directly to the Supreme Court. Appellate cases are those cases which were heard by a lower court, decided on by the lower court, but an appeal was requested so the Supreme Court could hear it. That request is a writ of certiorari. The Supreme Court orders the lower court to send the case files for review. The Supreme Court usually does not hear appellate cases unless it might impact the nation, a major class of Citizen or State law (US Courts, n.d.). This Wal-Mart case falls within the Appellate jurisdiction. 2. In the story, two justices wrote differing opinions about the issue. Discuss the differences between a majority opinion, a concurring opinion, and a dissenting opinion. What effect does each type of opinion have on the state of the law in America? The majority opinion is the official ruling of the case where more than half of the Justices agree on the decision and explain the legal basis used to come to that decision. A concurring opinion is when one or more of the majority Justices agree with the ruling but used a different legal rationale to come to their ruling decision. A dissenting...
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...Week 1 Assignment State Court System Trial Courts Trial Courts are also called "Superior Courts." There are 58 Trial Courts--one in each county. In the Trial Courts, a judge, and sometimes a jury, hears testimony and evidence and decides a case by applying the law to the facts of the case. Superior Courts handle: * All criminal cases (felonies, misdemeanors, and traffic tickets) * All civil cases (family law, probate, juvenile, and other civil cases) * Appeals of small claims cases and other civil cases worth $25,000 or less * Appeals of misdemeanor cases Appellate Courts There are two types of Appellate Courts: * Courts of Appeal * California Supreme Court There are 6 Courts of Appeal and one California Supreme Court. Courts of Appeal The Courts of Appeal are California's intermediate courts of review. District headquarters for the Courts of Appeal are located in: * First District: San Francisco * Second District: Los Angeles * Third District:Sacramento * Fourth District: San Diego (Division One) * Fifth District: Fresno * Sixth District:San Jose People who are not satisfied with a Trial Court decision can appeal their case in an Appellate Court. When they "appeal", they ask a higher-level court to change what the Trial Court decided. The role of the Courts of Appeal is not to give new trials, but to review the Superior Court record (court files and transcripts) to decide if legal errors were made. To...
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...Business law Glossary Chapter 1 stare decisis “let the decision stand”; the principle that the decision of a court should serve as a guide or precedent and control the decision of a similar case in the future. administrative regulations rules made by state and federal administrative agencies. case law law that includes principles that are expressed for the first time in court decisions. common law the body of unwritten principles originally based upon the usages and customs of the community that were recognized and enforced by the courts. constitution a body of principles that establishes the structure of a government and the relationship of the government to the people who are governed. duty an obligation of law imposed on a person to perform or refrain from performing a certain act. equity the body of principles that originally developed because of the inadequacy of the rules then applied by the common law courts of England. law the order or pattern of rules that society establishes to govern the conduct of individuals and the relationships among them. precedent a decision of a court that stands as the law for a particular problem in the future. private law the rules and regulations parties agree to as part of their contractual relationships. procedural law the law that must be followed in enforcing rights and liabilities. right legal capacity to require another person to perform or refrain from an action. right of privacy...
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...UNIVERSITY OF PETROLEUM AND ENERGY STUDIES DEHRADUN CODE OF CIVIL PROCEDURE Case Study Submitted To- Submitted By- MR. RADHESHAYM PRASAD NILESH KUMAR ASSOCIATE PROFESSOR BBA.LLB. COLS SAP_ID- 500016256 UPES R.NO-R760211026 IN THE SUPREME COURT OF INDIA PARIMAL ............................................APPELLANT Vs Veena @ Bharti........................................Respondent CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO...1467... OF 2011 Bench: P. Sathasivam, B.S. Chauhan CAUSE OF ACTION (A) Appellant got married to the respondent on 9.12.1986 and out of the said wedlock, a girl was born. The relationship between the parties did not remain cordial. Thus, the appellant filed a case for divorce on 27.4.1989, under section 13of the Hindu Marriage Act, 1955, against the respondent. (B) Respondent refused to receive the notice of the petition sent to her by the Court on 4.5.1989 via registered AD cover for the date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was present at...
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...GLOSSARY OF LEGAL TERMS TEST Refer to and study the Glossary of Legal Terms in your Mock Trial materials. (Developed and shared by Karen Purdy, Mock Trial Teacher Coach, Idabel High School) TEST 1 acquit action adjudicate adversary system affidavit allegation answer appeal appellant appellate court appellee TEST 2 arraignment attorney at law attorney of record autopsy bail bailiff burden of proof case chambers civil law closing argument TEST 3 complaint conviction coroner counsel court crime criminal action criminal law cross examination damages default TEST 4 defendant demurrer direct examination due process of law evidence exhibit Federal Rules of Evidence felony indictment information injunction TEST 5 invoke the rule judgment N.O.V. judge judgment jurisdiction jury (grand) jury (petit) jury trial law litigant litigation TEST 6 misdemeanor motion in limine oath objection opening statement opinion\opinion parties plaintiff plea pleadings prosecution TEST 7 public trial recross examination redirect examination remand reverse sentence session speedy trial statute subpoena summons TEST 8 sustain term testimony transcript trial verdict voir dire witness witness examination wrongful death MOCK TRIAL VOCABULARY TEST 1 Name______________________________ Date_________________ Period________ Directions: In the space provided, write the letter which represents the definition that best matches each numbered term. _____ 1. acquit _____ 2. action _____ 3. adjudicate _____...
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...Case Study 1 – Millan V. Dean Witter Reynolds, Inc. Plaintiff: Maria Millan Defendant: Dean Witter Reynolds, Inc. Appellant: Maria Millan Appellee: Dean Witter Reynolds, Inc. History of the case Trial Court: Dean Witter won. The broker was found 85% liable and the firm was found to be 15%. Lower appellate court: Dean Witter won. Overall winner: Decision upheld, the broker was found 85% liable and the firm was found to be 15% Facts: Maria Millian sued both her son and Dean Witter Reynolds, Inc. for negligence, gross negligence, conversion, and breach of fiduciary duty. Maria Millian opened two brokerage accounts with Dean Witter Reynolds, Inc. with her son. Her son Miguel forged her signature on an account application form and opened the account in her name. Miguel began to steal money from his mother’s account which totaled about $287,000. Trial court directed a verdict for Dean Witter on issues of vicarious liability. They found Dean Witter is 15% liable and Millan is 85% responsible due to not discovering the fraud sooner. Plaintiff’s theory: Miguel and Dean Witter Reynolds, Inc. stole money from Maria Millian by deceiving her. Because Miguel opened fraudulent accounts in the name of Maria Millian and wrote checks payable to cash, and because the company did not verify the signatures, Millian sued for negligence, gross negligence, conversion, and breach of fiduciary duty. Defendant’s theory: Dean Witter Reynolds, Inc. was not fully responsible for...
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...jurisdictional authority of the United States, intend to be conferred on the Supreme Court and also on lower Courts as the Congress may well regularly decree and start. The initial activities of the freshly formed Congress stood to permit the Judiciary Act of 1789 that completed requirements for the Supreme Court. It specified that it will contain of five Associate Justices who would come across in the country's capital and a Chief Justice. In the beginning, Chief Justice chosen was John Jay by George Washington who functioned from 1789 to 1795. The Judiciary Act (1789) moreover specified that the authority of the Supreme Court will comprise appellate authority in superior public cases and in which government judges administrated on centralized decrees. Additionally, the Supreme Court justices were obligatory to function on the U.S. circuit judges. The cause for this was to ensure that adjudicators from the uppermost court will be associated with the prime trial law court study about the processes of the state court of law. Additionally, in the primary years of the Supreme Court, the judges had diminutive regulation over which cases they got. Until 1891 they were unable to examine progressions by certiorari and discarded the right of involuntary petition. Although the Supreme Court is the uppermost court of law in the country, it has incomplete administrative right over the federal courts but it wasn't given the accountability for conscripting rules of federal procedure until...
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...Congress was given the legislative power. It "makes the laws" for the nation. a. What procedure does the Constitution require for Congress to make law? Article I of the Constitution "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives." The House and Senate are equal partners in the legislative process––legislation cannot be enacted without the consent of both chambers. First, any bill for raising money (such as by taxes or fees) must start out in the House. All bills must pass both houses of Congress in the exact same form. Bills that pass both houses are sent to the President. He can either sign the bill, in which case it becomes law, or he can veto it. In the case of a veto, the bill is sent back to Congress, and if both houses pass it by a two-thirds majority, the bill becomes law over the President's veto. b. Describe the legislative process utilized today, above and beyond the Constitutional requirements. The general process for making a bill into law is described in the Constitution. First, a bill needs to be drafted. You do not need to be a member of congress to draft a bill. For example lobbyists and other congressional staff can draft a bill, but only a member of congress can introduce legislation. Bills then get referred to standing committees. Once referred, the bill gets on the committee’s calendar for review by a subcommittee or by the full committee After staff...
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...Unit 1 Assignment PA205-03 UNIT 1 ASSIGNMENT CASE STUDY QUESTIONS 1. The case study references one state statute. Identify it and explain what it prohibits. My understanding of the case study is that the identifiable state statute is section 42.09(a)(3) of the Texas Penal code, which prohibited the “desecration of a venerable object.” 2. Which branch of government (executive, judicial, or legislative) created the state statute? The legislative branch of government created the state statute. 3. The passage above also discusses one court case. Who were the parties involved in the case? The parties involved in the court case in the above passage are Gregory Lee Johnson and the State of Texas. 4. The case was heard by three lower courts before it reached the United States Supreme Court. List those three courts in order, beginning with the court that has the most authority and ending with the court that has the least amount of authority. Most authority = Texas Court of Criminal Appeals Middle authority = Texas Court of Appeals, Fifth District Least authority = Dallas County Criminal Court 5. Provide the citation for the United States Supreme Court’s decision in this case. After hearing the oral arguments and reading the parties’ appellate briefs, the Supreme Court, in a 5-4 vote, affirmed the decision of the Texas Court of Criminal Appeals. Texas v. Johnson, 491 U.S. 397 (1989). 6. What effect did the United States Supreme Court’s decision have on the Texas...
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