4.1.9 - Factors that affect the ability of courts in law making

Question 1

What are five factors that affect the ability of courts in law making?

Answer 1

• doctrine of precedent
• judicial conservatism
• judicial activism
• cost and time in bringing a case to court
• the requirement for standing

Question 2

What is the doctrine of precedent?

Answer 2

decisions made by a high court in the same hierarchy are binding on lower courts when the case material facts are similar

Question 3

How does the doctrine of precedent help?

Answer 3

• creates predicability and consistency, means parties and legal reps can anticipate how the law might apple to their situation
• through the process of reversing, overruling, distinguishing and disapproving, precedents change and develop, allowing the expansion of common law

Question 3

How does the doctrine of precedent limit?

Answer 3

• it can be difficult and costly to find relevant precedents
• it can be difficult to identify the legal reasoning behind a decision
• for older precedents, it can be difficult to predict future situations
• restricts the ability of lower courts to change the law when they are outdated

Question 4

What is judicial conservatism?

Answer 4

when a judge adopts a narrow interpretation of the law when interpreting acts of parliament and deciding cases
- judges are not influenced by personal or community political beliefs/views
- judges in superior courts are likely to apply old, outdated, precedents even when it’s a persuasive precedent

Question 5

How does judicial conservatism limit?

Answer 5

• It restricts the ability of courts to make major and controversial changes in the law
• can discourage judges from considering a range of social and political factors when making law
• law remains unchanged irrespective of changing community values

Question 6

How does judicial conservatism help?

Answer 6

• can lead to constancy and stability as there is less change
• reduces the possibility of appeals on the question of the law
• allows parliament to make the more significant changes in law

Question 7

How does judicial activism help?

Answer 7

• judges take a holistic approach to their decisions, believing their role extends beyond merely applying law to cases
• judges can develop law that reflects community values
• can develop the law by putting pressure on parliament to make legislative changes
• high court isn’t bound by precedent and are able to engage in activism, making radical changes

Question 7

What is judicial activism?

Answer 7

• the willingness of judges to consider a range of social and political factors, including community views and values and the rights of the people when interpreting the law and making decisions
• progressive in their approach and take factors into account to interpret the law broadly

Question 8

What is cost and time in bringing a case to court?

Answer 8

• cost time, inconvenience, lack of certainty of success
• cost comes from regal rep, court fees, party fees, limited legal aid
• time comes from the backlog of cases which is significant, pretrial procedures, some parties may use delaying tactics

Question 8

How does judicial activism limit?

Answer 8

• progressive judges may seek constant change leading to confusion and inconsistency
• must still wait for relevant case to come before changing the law
• activism isn’t common

Question 9

How does cost and time in bringing a case to court help?

Answer 9

• discourages unrealistic cases being brought to courts
• changes in appeal processes have helped reduce delays

Question 10

How does cost and time in bringing a case to court limit?

Answer 10

• can deter litigants who cannot afford costs and who do not qualify for legal aid from pursuing their case and rights in court
• can deter parties from pursing appeals
• some courts have suffered delays in having case heard and determined
• parties can be delayed in getting a case ready for trial

Question 11

What is the requirement for standing?

Answer 11

A party initiating a case must show the courts that they have been directly affected by a legal issue
- alternatively a party may have standing if they can demonstrate ‘special interest’ in a legal matter (eg. a union)

Question 12

How does the requirement for standing help?

Answer 12

• ensures cases are only brought to court by people who are genuinely affected by an issue or matter rather than wasting valuable court time and recourses on listening to people who are unaffected
• encourages people not directly affected by an issue or matter to seek other ways to influence law-makers instead of going to court

Question 13

How does the requirement for standing limit?

Answer 13

• people with a general interest in a case have no right to pursue a legal challenge on behalf of public interest or the common good
• potential improvements to the law that could have been made by listening to those with only intellectual interest in the case are lost