Precedent(1) Concept, Justification And Basic Rules Flashcards Preview

M9113: Legal Methods > Precedent(1) Concept, Justification And Basic Rules > Flashcards

Flashcards in Precedent(1) Concept, Justification And Basic Rules Deck (13)
Loading flashcards...
1

Was is the meaning of ‘Precedence ?’

Earlier decisions on the same matter which judges will follow. I.e judges look at how previous judges have looked at the same/similar issue that has reached the same result.

2

When was case law becoming popular?

Late 18th century, early 19th century

3

What’s is the aim of precedence?

More than prove consistency but set out rules of law

4

What is the term used for precedence that judges must follow?

Binding

5

What is binding in a case?

How the judge came to that reason for his/her decision

Ratio decidendi

6

Finish the sentence

What is binding is the __________, but what creates law is the ________ for _________.

A decision
B reason
C decision

7

What is the meaning of ‘stare decisis et non quieta movere’?

To stand by decisions and not disturb settled matters

8

What are some benefits of stare decisis I.e.letting the decision stand?

- discourages litigation on settled law ( which reduces costs and enables predictability)

- Promotes consistent development of legal principles ( judges build upon previous decisions, which is how the law moves on. Seldom that a reasoning is overturned)

- Fosters a reliance on judicial decisions (people know what the law is)

- Contributes to integrity of judicial comity and judicial process (ensures judges think the same way)

- There is a natural equity in like cases being treated alike

- Reduces vagaries of differing judicial values and therefore promotes certainty.

9

What is a disadvantage of stare decisis?

It solidifies the law, meaning it freezes the law into thinking in one mindset rather than move with the time and becoming more modern.

17th C copyrights and the law of defamation 19th century- electronics

10

What are the basic rules of precedence in Scottish courts?

- UK Supreme Court is binding upon all lower courts, it used be the House of Lords. * since 1966 the practise direction ensured that decisions made in the House of Lords were binding later on in the House of Lords

- the inner house of court of sessions: binding to all lower courts ( outer house and sheriff court) its NOT binding to itself but judgments are very persuasive * bench of 3 can be bound by bench of 5 or more

- the outer house of court of sessions: single judge therefore not binding upon any courts except the parties in front of them.

- the sheriff appeal court: binding to all sheriffs in Scotland, they are highly persuasive can persuade court of sessions.

- sheriffs bind no one except parties in front of them

11

What are the basic rules of precedence on English courts?

- UK Supreme Court binds all lower courts

- court of appeal (civil division) binds all lower courts including itself

- court of appeal ( criminal division) binds lowers courts except itself because of liberty of individual

- divisional courts: bind lower courts except themselves or each other

- crown court, county court and family court: first instance so bind no one except parties in front of them

12

What are some factors that make a judgement PERSUASIVE?

- The level of court:
* English Supreme Court can be persuasive for Scottish courts and vice versa. Donohugh v Stevenson 1932
* Keiden and Stienfield (English case) Ashers Baker v Lee (Northern Ireland case) determine Scots law
* English court of appeal highly persuasive for Scottish courts. Payne v Payne 2001
* commonwealth supreme courts can be persuasive. Lister v Helsey Hall 2002

- Reputation of judge
- Strength of argument
- whether the result has generally been followed i.e. long line cases following earlier decision. Corbett v Corbett 1971

13

What’s plural for letting the decision stand?

Rationes decideni