...Precedent and the Court Structure The law in the UK is made up of primarily two sources: statute and precedent. Although judges are required to apply statute - interpretation of statute follows common law principles including precedents. Precedents are a concept in common law (England and Wales and other English speaking countries – US, Canada (except Quebec), Gibralter, Hong Kong etc) whereby a previous case if similar (in facts) is used to provide a consistent basis for decisions. Precedents are "binding" on a lower court that is to say they must be followed by a lower court if the decision was made by a higher court. They should also be followed by that court itself. The Latin term Stare Decisis (to maintain what has already been decided) is used to define this. When a judgement is handed down by a judge it is in two parts 1. the ratio decidendi (the reason why) and 2. the orbita dictum (said by the way). The ratio decidendi is binding. The orbita dictum can be cited as persuasive but is not binding. Similarly a lower courts decision can be persuasive to a higher court but is not binding. The general concepts of the above are referred to as "case law" and help to develop and modify the law. Subsequently a great part of the work of a lawyer in a trial is to show how the facts of the particular case differ or resemble other cases to make their points of law in front of the court. In civil law precedent is not followed in the same way and judges theoretically use...
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...1) Teddy’s Supplies’ CEO has asked you to advise him on the facts of the case and your opinion of their potential liability. He wants to settle the case. Write a memo to him which states your view of whether the company is exposed to liability on all issues you feel are in play. Include in your memo any laws which apply and any precedential cases either for or against Teddy’s case which impact liability. Include in the memo your suggested “offer of settlement” to Virginia. Back up your offer using your analysis of the case against Teddy’s. Ms. Pollard was involuntarily transferred to a different environment, working in a warehouse surrounded by all men. Although she was transferred because she needed to be in an environment in which she would not be making so many personal calls, she never asked to be relocated to the warehouse. Being that Ms. Pollard could not report the events to her direct supervisor because he was involved in the incidents, she attempted to file an anonymous complaint online but the website was not working. Teddy’s needs to ensure that their website is working properly at all times in order to avoid this type of situation. The case states that Ms. Pollard’s supervisor (Steve King) rarely enforced any of Teddy’s rules to include smoking, horseplay, foul language and sexual harassment. This does not vie well for Teddy’s because he is already known for being a lenient boss. It does not mention that Steve King’s supervisor ever had a conversation with him regarding...
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...Review the Virginia Pollard case information located at the beginning of this project: You Decide ES. (If you click here, you will return to the face-sheet of the project area. To return to this page, click the Begin button again. You can do this all week.) To do well on this project, study the readings for this week and consider the work we did in Week 5. You may want to do some outside research for this project as well, reviewing recent case law on discrimination and harassment and including that in your answers to the project. Do not discuss this project with your classmates. You should do the work on your own. This project is "pooled," meaning your classmates may have different questions than you do. This project is worth 100 points toward your final grade. You can access this area all week and continue updating your answers until the end of the week – be sure to hit "save answers" before leaving each time! When you are done working on the project, hit "Submit for grade," and then it will be available in the grade book for grading. Your role in answering the questions: You are the independent human resources consultant hired by Teddy's Supplies to help explain to the company what the case against them will entail. You have gleaned the facts from your investigations into the situation to date. You have never talked with Virginia Pollard. The case is currently in the appeals stage and the company executives have some questions for you. Answer them using the most recent legal...
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...Introduction to Law and Legal Reasoning Answers to Questions in the Reviewing Feature AT THE END OF THE CHAPTER 1A. PARTIES The automobile manufacturers are the plaintiffs, and the state of California is the defendant. 2A. Remedy The plaintiffs are seeking an injunction, an equitable remedy, to prevent the state of California from enforcing its statute restricting carbon dioxide emissions. 3A. Source of law This case involves a law passed by the California legislature and a federal statute; thus the primary source of law is statutory law. 4A. Finding the law Federal statutes are found in the United States Code, and California statutes are published in the California Code. You would look in these sources to find the relevant state and federal statutes. Answer to Debate This Question in the Reviewing Feature at the End of the Chapter UNDER THE DOCTRINE OF STARE DECISIS, COURTS ARE OBLIGATED TO FOLLOW THE PRECEDENTS ESTABLISHED IN THEIR JURISDICTIONS UNLESS THERE IS A COMPELLING REASON NOT TO. SHOULD U.S. COURTS CONTINUE TO ADHERE TO THIS COMMON LAW PRINCIPLE, GIVEN THAT OUR GOVERNMENT NOW REGULATES SO MANY AREAS BY STATUTE? BOTH ENGLAND AND THE U.S. LEGAL SYSTEMS WERE CONSTRUCTED ON THE COMMON LAW SYSTEM. THE DOCTRINE OF STARE DECISIS HAS ALWAYS BEEN A MAJOR PART OF THIS SYSTEM—COURTS SHOULD FOLLOW PRECEDENTS WHEN THEY ARE CLEARLY ESTABLISHED, EXCEPTED UNDER COMPELLING REASONS. EVEN THOUGH MORE COMMON LAW IS BEING TURNED INTO STATUTORY LAW, THE DOCTRINE...
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...Business Law 7/13/2014 Week 1 Professor McGovern Common Law is The ancient law of England based upon societal customs and recognized and enforced by the judgments 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...
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...influence and value of past decisions of case law and prior legal experience. The doctrine of precedent means that judges refer back to previous decisions to help them decide similar cases where the law and facts are alike. A fundamental principle upon which the doctrine of judicial precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning to stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which, it is argued, leads to fairness. The effect of this is that, ordinarily, the legal reasoning on a point of law made in an earlier case must be followed. If all courts, regardless of their status or seniority, were able to set precedent, the doctrine of judicial precedent would be a nonsense as it would be practically impossible to determine which precedent took precedence! The doctrine of judicial precedent has overcome this by the requirement that all courts are strictly bound to follow decisions made by the courts above them in the hierarchy. In addition appellate courts are normally bound by their own past decisions. However, there are advantages and disadvantages. Any discussion of the advantages is likely to include the point that the doctrine provides certainty in the law. This means the legal profession can give more helpful advice regarding the law to their clients, including advice...
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...Common Law, Statutory Law and Administrative Law Common Law Judge-Made Law: Sum total of all cases decided by appellate courts. 200 yrs ago almost all laws were common laws. Today most laws are statutory. Disadvantages: Each state has a body of law different from other states (problems for businesses) Stare Decisis Stare Decisis is the essence of common law. It means “Let the decision stand”. Law by precedent (by state). So there should be a precedent in that. Disadvantages: This is not easy. How to balance between predictability and flexibility? Because common law is trying to accommodate both above goals. The more flexibility, the less predictability. Bystander cases Bystander cases - where common law says no duty to assist someone in peril unless you created the danger. But common law changes slightly over time. For example bystander law changed in cases where bystander is an employer or a doctor or even a public place where one can make phone calls. Statutory Law Most new law is statutory law. It affects each of us in business, professional and personal lives. This is more a people-made law or a law made as a result of people electing local legislators who pass state statutes; people vote for senators and representatives who create federal statutes. Example: Criminal Law. Bills Bill is a proposed statute (proposed either by House of Representatives or the Senate). A bill must be voted on passed by both houses. Once both houses pass the bill they send it to the...
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...OF THE LAW TO THE FACTS • TENTATIVE CONCLUSION WHAT TO DO: 1) Identify KEY FACTS of the problem Unlike judges, when you answer a problem or case study you do not need to summarise the facts of a problem. What you should do is identify the key facts. 2) Identify RELEVANT ISSUE of the problem From the key facts, you should then be able to identify the relevant issues in the problem you are considering. 3) Identify KEY LEGAL PRINCIPLES Once you have worked out the issues, ask: (a) does a statutory provision apply to this situation and, if so, does it provide a specific answer to the problem? AND (b) are there any cases which have dealt with a similar fact situation/legal issue to the one you are considering? You should provide the name/section of any relevant legislation and the names of any relevant cases in your answer. Note similarities to (follow) or differences from (distinguish) prior cases When reading a problem it is a good idea to jot down the names of cases that you have studied, where the facts/legal issues were similar, if not identical to the ones in the problem you are considering. Often the facts of a problem may be similar to but a little different to those in a decided case. Think about whether any factual differences matter. Whether or not any differences matter will depend on the scope of the legal principle that the relevant case stands for. It is important to note any factual differences from previous cases and to state...
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...Business Law- In this unit you, Click Link Below To Buy: http://hwcampus.com/shop/business-law-in-this-unit-you/ In this unit you, you will select a case law pertaining to the topic of business entities. Each case law analysis allows you to express yourself as clearly and fully as possible in dissecting a court decision. The purpose of the assignment is two-fold: 1. To give you the opportunity to read a real court decision. 2. To challenge you to think about how you would have decided the case. In your case law analyses, you must be able to navigate the court's decision and summarize it; you are not expected to act as a judge or an advocate. Using your selected court decision, prepare an analysis that responds to the following: 1. Articulates the importance, context, purpose, and relevance of law in a business environment: • Identify the parties who are before the court. • Provide a brief background to problem. Summarize the facts in no more than 2–3 paragraphs. • Identify what is the specific disagreement between the parties. • Explain the ruling of the court in no more than 1–2 paragraphs. 2. Evaluate legal options to create a business entity. • Was there a dissenting opinion? If so, explain why some of the judges or justices disagreed with the majority in the decision. • Compare to other types of business entities-would the party have been in a better position if they formed as a different type of legal business entity? • Do you agree with the...
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...Critically analyse the strengths and weaknesses of precedent and statutory interpretation in the UK’s legal systems The doctrine of precedent arises (stare decisis) from the common law implementation in UK courts. This goes back to King’s Henri II (the King’s Bench) whereby past decisions were dispensed throughout the kingdom. The reasons and main advantages of the same are to ensure consistency/uniformity and predictability, thus creating confidence in the legal system. The stare decisis (stand by what is decided) enacts the requirement on the courts to follow/abide by the previous rationes decidendi of previous cases. Mainly, the lower courts will abide by precedent decisions due to the hierarchy invested therein (Binding precedent). In 1966, the House of Lords (now known as UK Supreme Court) referred to the doctrine of precedent as “…an indispensable foundation upon which to decide the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the orderly development of legal rules”. However, the House of Lords advised that: “…that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears...
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...that maintains that previous decisions are to be followed by the courts. It is helps ensure stability and predictability in law. Stare decisis is a doctrine 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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...Analysis of a Flag Burning Case In 1984, Gregory Lee Johnson burned an American flag at a Regan campaign protest. He was subsequently arrested, convicted, and sentenced to prison in the Dallas County Criminal Court. Johnson appealed, lost in the Texas Court of Appeals, Fifth District, but eventually his conviction was overturned by the highest court in the state, the Texas Court of Criminal Appeals; upon a final appeal, made by the state, the case made its way to the United States Supreme Court. Though the burning of an American flag is frowned upon for obvious reasons, it is difficult to fathom a person being arrested and imprisoned for an expressive act typically protected by the First Amendment which is why this case made it to the U.S. Supreme Court. The statute in question in this case is 42.09(a)(3) of the Texas Penal Code (1989) which states that “A person commits an offense [of desecration of a venerated object] if he intentionally or knowingly desecrates a state or national flag.” This statute makes it a criminal offense to intentionally disrespect an American flag or any other state or national flags. This statute, like all statutory law, was created by the legislative branch of government. Mr. Johnson eventually won on appeal in the highest court in the state, the Texas Court of Criminal Appeals. Prior to his win, Johnson’s initial appeal was denied by a lower court, the Texas Court of Appeals, Fifth District. The Fifth District court agreed with the lowest court...
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...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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...Case of HOODA v MINISTER FOR IMMIGRATION [2012] FMCA 1018 A review of Mr. Hooda’s case was sought pursuant to Judiciary Act, concluded with a declaration that the application was not rendered invalid, a writ of certiorari to quash the decision that the application was invalid, and a writ of mandamus issue to the respondent to determine the application according to law. We are today to discuss the justification of Smith FM and the implication of the case in terms of valid visa application, which will mainly focus on ‘statutory interpretation of law’ and ‘the rule of precedence’. The critical point in the case was, to be considered as a valid application, whether the law requires Form 1277 be submitted at the time of application was lodged. No indication in the legislation that the physical delivery of the approved form of undertakings of the sponsorship to the Minister was expected to occur no later than the lodgement of visa application, but only requires that it be given to the Minister before approval. Smith FM concluded that terms such as ‘sponsorship’ and ‘sponsorship entered into on Form 1277’, their meanings are no more and no less than what they are, not in the sense of ‘legally effective’. This reflects the implementation of the Literal Rule, which requires the interpretation of the law give the words meaning in plain ordinary literal meaning, rather than inferred interpretation. This is also reflected in Smith FM’s comments that there is no requirement of ‘contemporaneous...
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... 13 2013 (Week 3 Assignment Introduction to Law) MOD6_ 1. What are the two basic functions of trial courts. The trial court's basic function is to resolve disputes by determining the facts and applying legal principles to decide who is right. The appellate court's task is to determine whether the law was applied correctly in the trial court. 2. What is the difference between a dissenting and a concurring opinion? So Majority opinion is called the "Opinion of the Court," this is the official verdict in the case that represents the vote of the majority of justices Dissenting opinion is an opinion that is written by a justice who disagrees with the majority Concurring opinion is an opinion that agrees with the decision but may disagree with the some of the reasoning behind the Court opinion, or may elaborate on a point made or introduce further relevant information 3. List the major differences between trial and appellate courts. Trial courts are the courts where cases start. In the trial court, both sides present evidence to show their version of what happened but in the appellate courts, there are no witnesses, and no evidence is presented. Also the second difference between the two courts is the judges. In trial courts, there is one judge in the courtroom. That judge decides what evidence can and cannot be used and often decides the outcome of the case. In Indiana, appeals are decided by more then one judge...
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