...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 of new social and economic relations, the foundations of civil society and the rule of law, the implementation of judicial and legal reform...
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...Mahesh Nanwani explains the doctrine of precedent and looks at the methods by which judges can make and amend the law. The doctrine of judicial precedent has been at the heart of the English legal system, being a fashion fiesta for the judges to follow long-standing precedents which, in fact, only slowly evolved and matured from the nineteenth century.[1] Fundamentally, it refers to the hierarchical structure of the English courts within which a decision of a higher court will be binding on a court lower in the hierarchy. The decision contains two types of statements: first, there are ‘ratio decidendi’ statements which are binding and are statements of law applied, and second, there ‘obiter dictum’ statements which are statements made ‘by the way’. Nevertheless, some judges have been criticised for making law via the doctrine of precedent. Subsequently, the question of judges being unconstitutional arises. However, as we shall see, sometimes judges sitting in the House of Lords (the Supreme Court), Privy Council, Court of Appeal and two separate European Courts do indeed make law and state the law. The Supreme Court, formerly the House of Lords, is the highest court in the United Kingdom and is bound by the European Court of Justice for European Union law matters and also by the European Court of Human Rights for issues related to human rights. The House of Lords was also bound by its own decisions as per London Tramways v London County Council [1898] AC 375 [2] until Lord Gardiner...
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...INTRODUCTION Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. A judicial precedent contains in itself a principle of law. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries . the common law of England has been built up the decisions of England judges. There are so many reasons why precedents operates as an authoritative source of law and it also has many kinds according to its probative force. decisions than to the views of text writers. A judicial precedent speaks with authority. It is an evidence of law and source of it. The authority of precedents is great because of power, skill and professional reputation of judges who make them. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis, which is Latin for "let the decision stand" i.e. to stand by the decided. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. Judge made law via the cases upon which they decide is one of the oldest sources of law. This provides in the law consistency and predictability. Judicial precedent means a judgment of a court of law cited as an authority for deciding a similar set of facts; a case which serves as authority for the...
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...Sofia Judicial Precedent Coursework In Elements of English Law Student registration No: 101019 Introduction This is a precedent from an earlier case, which must be followed even if the judge in the later case does not agree with the legal reasoning. A binding precedent is only created when the facts of the second case are sufficiently similar to the original case and the decisions was made by a court which is senior too, or in some cases the same level as, the court hearing the later case. Precedent that must be applied or followed is known as blinding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). There are 3 principles: • Ratio decidendi • System of law reporting • Court hierarchy Ratio decidendi: The Role of Ratio Decidendi in Judicial Precedent Ratio decidendi plays a very important role in judicial precedent as it is...
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...Do Judges Make Law? A law is an obligatory rule of conduct imposed and enforced by the sovereign. Therefore the law is the body of principles recognized and enforced by the state in the application of justice. The law is mainly made by a parliament, a legislative body given power by the constitution to draft law. However in the last few decades there has been a notion that judges make law. A judge is a public official appointed or elected to hear and decide legal matters in court, Judges exercise judicial power. This involves making binding decisions affecting the rights and duties of citizens and institutions. In carrying out this task, a judge can use any of the following three sources of Ugandan law, Acts of Parliament or legislation, the common law, or previous decisions by the courts and a constitution Do judges make law? To ask the question “do judges make law?” Implies that perhaps to some extent they do make law. A great deal of controversy has centered on this question as to how far judges can legitimately make law although a great number such as lord Bentham have referred to it as a “childish fiction” thus judges cannot make law. Many other scholars more so those that are followers of the realist school of thought have placed absolute emphasis on the discretion of judges and relegated the "rules" to an obscure position. It can however not be denied looking closely at the present legal system that judges have played a dominant role in moulding the doctrines of the...
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...2012 Assessment Report 2012 Legal Studies GA 3: Written examination GENERAL COMMENTS The 2012 Legal Studies examination was challenging for many students. Many common misunderstandings about various aspects of the legal system were evident in responses to the examination. Few students were able to demonstrate knowledge of a directions hearing. Incorrect cases were used as examples of the High Court protecting rights. In Question 3a. few students correctly identified that the Court of Appeal was higher than the Supreme Court (Trial Division) in the court hierarchy. Many students had a limited understanding of the operation of section 109 of the Constitution and struggled to provide a thorough response to Question 3b. Students should become familiar with the study design throughout the year. Students are expected to demonstrate the ability to discuss, explain and evaluate. Students’ ability to evaluate requires more attention. Students should not rely on rote-learned or pre-prepared answers as they will rarely address the question. Time management was an issue in this examination, with many students writing lengthy responses to questions that only required a shorter response, therefore not allowing enough time for longer questions. A shorter question that asks for an outline (for example, Question 1a.) requires no more than one or two sentences in response. Good examination technique is essential and students should practise their technique throughout the year. If students continue...
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...Chapter Title: 3 The Theory of Stare Decisis Book Title: The Sources of Hong Kong Law Book Author(s): Peter Wesley-Smith Published by: Hong Kong University Press, (October 1994) Stable URL: http://www.jstor.org/stable/j.ctt2jc134 . Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. . Hong Kong University Press is collaborating with JSTOR to digitize, preserve and extend access to The Sources of Hong Kong Law. http://www.jstor.org This content downloaded from 143.89.105.150 on Sat, 6 Dec 2014 22:30:49 PM All use subject to JSTOR Terms and Conditions The Theory of Stare Decisis GENERAL THEORY Introduction The essential idea behind stare decisis is that a judge is required - thus has no discretion to refuse - to follow certain previous decisions. This obligation arises when a prior case A yields a proposition of law in circumstances which are indistinguishable from those confronting the judge in case B, and by a formal rule the judge in case B stands in an inferior relationship to the court which decided case A....
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...of the countries that apply English common law system in legal system even after independence. Common law system originated in England use the doctrine of stare decisis in the jurisdictions. Doctrine of stare decisis is a Latin legal term, used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. Doctrine of stare decisis uses evolving bodies of case precedents and judicial decisions in jurisdictions. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet. Stand by the decisions means to stand by what have been decided and the lower court are bound to followed the example of previous cases and judicial decisions of higher court where the material facts of the cases are the same and lower court are not allowed to overruled the decisions or make its own decision. Do not move means the doctrine of stare decisis is rigid and strict application. Lower court must follow the prior decisions of a higher court and lower courts are bound to do so, whether or not the judge in the subsequent case agrees with the precedents in questions. Application of doctrine stare decisis in Malaysia In Malaysia legal system, hierarchy of the court are divided into two; superior court and subordinate court. Federal court, court of appeal and high courts are the superior court and session’s courts, magistrate court, and penghulu’s court are the subordinate court...
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...or policy of following rules or principles laid down in previous judicial decisions. By giving significant weight to previous decisions, a consistent set of case law is developed from which the public can draw conclusions about how a court will decide a current or future case. - Would not a better way simply be for the judge to apply whatever law is applicable based on the facts of the current case? If the judge based on the facts of the current case, it has a lot of uncertainty for different personality. The court need continuously reevaluate the legal underpinnings and accepted doctrines. This would be a huge workload, also difficult to maintain legal fair judgment. It will lost the predictability afforded by the doctrine helps clarify constitutional...
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...and decrees of the courts. The general body of statutes and case law that governed England and the American colonies prior to the American Revolution. The principles and rules of action, embodied in case law rather than legislative enactments, applicable to the government and protection of persons and property that derive their authority from the community customs and traditions that evolved over the centuries as interpreted by judicial tribunals. Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies. Under the doctrine of Stare Decisis, common-law judges are obliged to adhere to previously decided cases, or precedents, where the facts are substantially the same. A court's decision is binding authority for similar cases decided by the same court or by lower courts within the same jurisdiction. The decision is not binding on courts of higher rank within that jurisdiction or in other jurisdictions, but it may be considered as persuasive authority. Because common-law decisions deal with everyday situations as they occur, social changes, inventions...
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...Spend Analysis Daniel Wheeler BUS 307 Operations Management & Quantitative Techniques Prof. Aaron Hensley January 26, 2014 Spend Analysis Because of today’s enormously competitive industry surroundings, spend analysis has turned out to be an essential strategic device. There are now a lot of foundations which use the spend analysis procedure; it becomes very important for the remaining associations to embrace this procedure in order to continue being competitive and contend in today’s worldwide markets. It is financially vital for associations to settle on educated spending decisions. Spend analysis furnishes this avenue by distinguishing opportunities to combine spending in order to arrange greater contracts, confirm and lessen maverick spending, and lastly enhance acquisition operations and dealer performance. Most of these conglomerations join programming applications into this procedure; however programming alone will not complete the task. In this paper, I will show the analytical information skills which are essential to accurate and proficient spend analysis, explain how consolidating an organized methods, for example Six Sigma technique can result to team effectiveness, and demonstrate how incorporating other key capacities can make a synergistic, effective spend analysis group. Data analysis needs excellent analytical abilities and detailed guidance in order to create precise decisions with regards to spend analysis. There are a lot of conglomerations...
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...CONTENT (50 points) | |Excellent: 9-10 |Satisfactory: 7-8 |Weak: 0-6 |Grade | |Thesis |Clearly stated and |Clearly stated but lacking |Thesis unclear or missing | | | |appropriately focused |sharp focus | | | | | | | | | |Analysis |Clearly relates evidence to |Evidence related to main points|Evidence not explained or | | | |points; addresses audience |with some clarity; addresses |connected to larger argument; | | | |concerns; effectively reaches |most audience concerns; reaches|fails to consider audience; | | | |purpose |purpose |purpose unclear | | |Attribution |Attribution with author’s last |Attribution with author’s last |Difficult to distinguish | | | |name for all borrowed ideas |name distinguishes student’s |student’s ideas from source’s | | | |adds clarity...
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...Parents tell it to their kids and teachers tell it to their students: “Be yourself.” It’s easier to say it than to do it. Being an individual is more than just looking different; it’s in the way we talk, think, react, and the way we listen. It doesn’t mean following a crowd of rebels because they’re not mainstream. That would just lead to another crowd that has the same scheme. Individuality is the most powerful form of expression. It all starts with your name, better known as “the real first impression.” For a long time, I really hated my own name, first and last. I didn’t know if I was named after someone, or if these names actually had a past. If it was actually a name, I wanted to know what it meant. One question I had was, “is my name English, or should I say it with an accent?” I especially hated my last name, because of the jokes from my classmates. “Why are you dressed so fancy?” as if my name was a bad trait. Now that I’m older, I appreciate my name. I haven’t read another story where our titles are the same. A name is just a name, so I knew I could get through it. What I do will set me apart, as well as how I do it. Trends flooded my high school of OHS. We all wanted to fit in, but no one wanted to confess. Snapbacks and jeans so tight that it was hard to breathe. I always thought glasses were made for people who couldn’t really see. To keep with the passing trends, a mind needed incredible speed. A shoe that was a small want a week ago becomes an outfit of great...
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...Question 4 At this point, it is easy to see that the board was not sufficiently representative of the stakeholders to meaningfully present and understand the important issues facing the company. Moreover, there was no one with sufficient technical expertise to appreciate the significance of the health issues or the biological impact on the environment. The lawyer may have felt a conflict of interest, in that he was both a director and a paid counsel. In any event, his view was limited to current and past legal precedent, not to the future, or to non-legal perspectives. This is functional fixation which can mislead a corporation into short-range thinking. The result of this analysis should be the realization that to properly govern a company, the board should have effective representation from all important stakeholder groups, and/or effective access to and information from representative groups or ethics experts. This analysis will highlight the value in appointing "outside" directors (who don't rely on the organization for their livelihood) and also women directors to insure that all aspects of an issue will be understood and argued effectively. Question 5 Jack might blow the whistle if he thinks that the wrong decision is made or if the process is suppressed or if too much delay is involved. This would (did) involve regulatory sanction including fines, shut down, loss of market, loss of profit, and ultimately loss of control to creditors. If Jack doesn't blow the...
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...OSCOLA Oxford Standard for the Citation of Legal Authorities Fourth Edition Faculty of Law, University of Oxford www.law.ox.ac.uk/oscola Contents Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 1 General notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 1 .1 Citations and footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 1 .1 .1 1 .1 .2 1 .1 .3 1 .1 .4 Citing cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 Citing legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Citing secondary sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Order of sources in footnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 1 .2 Subsequent citations, cross-references and Latin ‘gadgets’ . . . . . . . . . . . . .5 1 .2 .1 Subsequent citations . . . . . . . . . . . . . . . . . . . . . . ....
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