...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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...Discuss the usefulness of adhering to the concept stare decisis, or the Doctrine of Precedent? Stare decisis is the Latin term for using precedent setting cases as a reference when deciding future cases; also known as the Doctrine of Precedent. Its concept is that judges have a history of judicial decisions to look to and see how similar cases were judged in the past, and apply similar thinking when judging current and future cases. In a country where the rule of law is what keeps order, and judges' decisions are the final arbiters of what stands as the laws that are upheld as constitutional, stare decisis helps to discern legislative intent. Without the concept of stare decisis, or the Doctrine of Precedent governing our legal decision making, or at least much of it, we would not have any real degree of certainty or predictability in our laws. Stare decisis does not carry the same weight as a statute or the Constitution, but nevertheless serves a role in society as a very important social policy. Citizens must be able to look at the judicial system and see some level of consistency. A precedent can be overridden. However, knowing the courts do give respect, and oftentimes deference, to previous decisions handed down of a similar nature provides a sense of fairness and stability to the judicial process. In conclusion, when an appellate court decides on a case, and has established a precedent, it has laid forth a procedural rule for future similar cases to be decided...
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...Legal Literacy Jancie Coote October 17, 2014 Student id # 3140525 1. Does the rule of stare decisis apply to findings of fact by a court? Explain why or why not. Which section has the answer to this question? Section XVI –Authority of Judicial Decisions: Rule of Stare Decisis 1-General XVI.1 – 1074 Stare decisis does not apply to findings of fact by court. While decisions rendered from higher or equally authority courts are binding to similar cases there are no two cases that are identical in their facts and findings. It is almost impossible to have two identical cases based on the same facts, therefore stare decisis cannot apply here. 2. What section number has an explanation of how decisions of United States courts are considered in Canada under the principles of stare decisis and precedent? Are they ignored? Explain why or why not. Section XVI –Authority of Judicial Decisions: Rule of Stare Decisis 4-Effect of Decisions in the United States XVI.1 – 1095 When Canadian Statues are similar to United States Statues they can provide assistance in interpretation. Canadians do not ignore decisions made in the United States especially when there is nothing comparable in Canadian Legislation. Just because a decision is rendered in another country it cannot be ignored, further, it would be unwise if the were similar in nature. 3. If a court gives two different good reasons for its decision is one of them obiter dicta? Explain...
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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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...Glori D Vittone BUSS 213 DATE \@ "MMMM d, y" February 18, 2015 Case Study #1 1.The federal Elections commission filed a summary judgement motion with the District Court to have the case brought by Citizens United dismissed. What is a summary judgement motion and why is it appropriate in this case? Summary judgement motion is when the court is asked to dismiss a case immediately. Its appropriate in this case because the film, Hillary: The movie, created by Citizens United clearly violates the McCain-Feingold Act. 2. Citizens United filed a request for an injunction in the same case. What is an injection and why is it appropriate in this case? An injunction is a judicial order that restrains a person from beginning or continuing an action threatening or invading the legal right of another, or that compels a person to carry out a certain act. In this case is appropriate because the court is asking to forbid the further distribution of the film Hillary: The Movie. 3. What is at stake in the balancing act generally involved in the law-making process in a case like this? Balance in this case is between the spirit and the letter of the McCain-Feingold Act. 4. What is the negative rights theory of ethics and how does it impact this case? This theory argues that the rights created by documents are not real or just self made privileges that people created to protect themselves in case something goes wrong. In this case they argue that their right of free...
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...In the English legal system the doctrine of Precedent is based on the Latin maxim Stare decisis. Stare decisis is translated as “to stand by what has been decided and do not unsettle the established”.It is used to support fairness and to provide certainty in the law(Martin, J. 2013).Precedent can only function when the legal reasons of previous cases are known. When a judgment is being announced at the end of a case, a speech is given. This speech includes the reasons behind the decision, a summary of the facts in the case and an explanation of the principles of law the Judge has used to come to the decision he/she has made. The principles are an essential part of the judgment and they are called Ratio decidendi(Martin, J. 2013). The remainder of the judgment being given is called Obiter dicta which translates as “other things said”. A judge will sometimes speculate and use a hypothetical situation had the facts of the current case been different. He uses this to provide legal reasoning which maybe considered in future cases(Martin, J. 2013). An example of Ratio decidendi and Obiter dicta can be found in the in the trial of R v Howe(1987) where the defendant was pleading the pledge of duress. The Ratio decidendi in this case was that the defendant was charged and his plea of duress was dismissed as duress could not be a defence to a charge of murder. The Obiter dicta was even though the victim had not been murdered the plea would have been dismissed as the plea would not...
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...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, and discoveries make it necessary for judges sometimes to look outside reported decisions for guidance in a case of first impression (previously undetermined legal issue). The common-law system allows judges to look to...
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...Week 1 Trevor Castleman Bethel University MOD450 Prof. Huss 1/22/15 Enron 1) It is in no way possible to reconcile Kenneth Lay’s statements in regards to Enron’s values and visions with the actual practices of Enron. Executive from the company used the company profits as personal funds. (p.11) It is impossible for Lay to truly believe that the company was in ethical operation as he was aware that Enron was using monumental amounts of credit to keep the company looking profitable.(P.11) Lay should have withheld legal operation and not allowed the company to be used as a person asset by corporate executives. 2) The way bonus’ are structured speak in great volume about a company when set up unethically. The way Enron’s bonus’ were structured so that employees were more concerned with the stock price than the state of the business. To the point that a dropping stock price was so unacceptable that employees were willing to lie, cheat, and steal to keep it on the rise. This meant defrauding investors and eventually collapsing a once profitable and respectable company. This system of a bonus is very corrupting. 3) Technical compliance with the law and ethical obligation are two completely different topics. When looking at the law it never seems to fail that there is some sort of loop hole. It is possible to completely comply with the law yet mislead and lose complete trust of stockholders due to failing to act ethically.(P.11-12) It is not only unacceptable...
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...“Explain the main sources of Scots business law” 1. Identify and describe the sources of legislation that are binding in Scots law and quote at least one example. In the modern system of Scots law there are three sources of legislation which are binding the Scots law. Those sources can be divided under the validity or power of law. The first source of legislation of Scots law is Scottish legislation. When Scotland became the part of the United Kingdom it lost the power to make the law without approval of Westminster parliament under special conditions. As a part of the United kingdom Scotland has a right to make the law under only certain legislations. Scottish parliament has power over matters such as: agriculture, forestry and fisheries, education and training, environment, health and social services, housing, law and order (most commonly within Scotland only), local government, sports and arts, tourism and economic development, transport. The other matters are reserved for the Westminster parliament. The law in Scotland is coming from three sources the first source is UE law which have the highest priority, the second source is the UK law (passed by the UK Parliament – Westminster) which has a lower priority than UE law but higher priority than the last third source which is Scottish Legislation passed by Scottish Parliament ( Holyrood). Example of Scottish legislation: The Public Records (Scotland) Act 2011 (Commencement No.2) Order 2012 Smoking, Health and Social...
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...Case note by Silent Assassins State of Gujarat V Mirzapur Moti Kureshi Kassab Jannat and others Court: Hon’ble Supreme Court of India Date: 26 October 2005 Bench: R.C. Lahoti, C.J.I., B.N. Agarwal, Arun Kumar, G.P. Mathur, C.K. Thakker, P.K. Balasubramanyam, JJ and A.K. Mathur. Introduction This is a case challenging certain amendments introduced in section 5 of Bombay animal preservation act, 1954(as applicable to the state of Gujarat). It’s a public interest case based on constitutional law. The Gujarat high court struck down the said provision as ultra-vires to the constitution as opposed to the fundamental rights (article-19) and directive principle. This amendment was introduced to prevent slaughtering of animals without obtaining in writing from the competent authority appointed for the area that the animal is fit for slaughter. Facts The constitutional validity of the above said legislation, that is, the Bombay Animal Preservation (Gujarat Amendment) Act, 1994 was put in issue by four writ petitions filed in the High Court which were heard and disposed of by a common judgment dated April 16, 1998. Two of the writ petitions were filed by individuals who were butchers by profession, and are known as Kureshis. Two writ petitions were filed by the representative bodies of Kureshis. The High Court allowed the writ petitions and struck down the impugned legislation as ultra vires the Constitution. The High Court held that the Amendment...
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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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...STARE DECISIS. Formerly, the courts applies earning capacity in fashioning child support awards in limited situations where the record demonstrated that the parent was shirking parental responsibilities by refusing to accept or seek gainful employment. Philbin v. Philbin 19 Cal.App. 3d 115, 96 Cal.Rptr. 408 (1971) With enactment of the Agnos Child Support Standards Act of 1984, the Legislature observed , in former Civil Code section 4720 (a), California has no single standard to promote equitable, adequate child support awards. The current method of setting child support awards has led a substantial variation in these awards among families with similar circumstances and resources. Also, part of the 1984 Agnos Child Support Standards Act was the addition of the language “ the court shall also consider, to the extent consistent with the best interest of the child or children, the earning capacity of either or both parents. To break the complexity of the word earning capacity, in In re Marriage of Regnery, 214 Cal.App. 3d 1367, Cal.Rptr. (1989), the Regnery court announced a three-prong test before the capacity to earn standard may be applied. Capacity to earn composed of (1) ability to work, (2) willingness to work and (3) opportunity to work. However, Appellate courts have encountered that danger and complexity of earning capacity after the case of Regnery. After such complexity, the court recognized that the second element, willingness to work, should be taken for granted...
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...I think that if a state (i.e. country) signs a treaty, then they should enforce that treaty as unified state law. I don’t see a Tenth Amendment issue. I think the Tenth Amendment has no bearing on Congress’s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution. Congress has the authority to enact treaty-implementing legislation under the Necessary and Proper Clause, and the fact that they have chosen to codify the Chemical Weapons Convention does not pose a threat to national sovereignty or the principles of federalism. In my opinion, I believe the Supreme Court should honor the notion of stare decisis and uphold Missouri v. Holland. At first, I laughed when I read that Bond argues she used the chemicals for a “peaceful purpose.” But looking at the lower court’s opinion, her argument does not seem to be substantive, but rather procedural. From a substantive stand point, there is no logical way that Bond can argue she attempted to use the weapons “peacefully.” In terms of jurisdiction however, her argument makes slightly more sense. As the lower court noted: “Bond argues that, by looking to the ‘peaceful purpose’ exception, we can employ a ‘common sense interpretation of § 229’ that avoids ‘mak[ing] every malicious use of a household chemical’ — including her own — a federal offense. All we need do is ‘interpret the statute . . . to reach [only the kind of acts] that would violate the Convention if undertaken by a signatory state.’ In...
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...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 legal principle embodied in its decision. A judicial precedent is a decision of the court used as a source for future decision making. The phrase doctrine of precedent has two meanings; the phrase means merely that precedents are...
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...a citizen for a crime they allegedly committed. Private laws are laws that do not involve the government, and are laws that allow one private entity to sue another private entity in a civil lawsuit. 3. Criminal vs. Civil Law- Criminal law was created to protect the public from the government or from themselves. Criminal laws were created so that the government could not prosecute individuals without due process and so that the public could protect themselves from each other. Civil law are cases where one or both parties are looking for compensation instead of jail time. Civil law covers anything that criminal law does not cover in the court system. 4. Common vs. Civil law countries- Common law countries prosecute with the concept of "Stare Decisis" meaning, let the decision stand. This means that these countries such as the United States of America make decisions based on precedent. These countries are case law countries and look at how past cases were decided and...
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