doctrine of precendent Flashcards
what is the doctrine of precedent?
it refers to the process of judges following legal reasoning behind decisions made by a higher court.
what are some limitations on law making?
precedents allow common law to remain stable and predictable and:
- like cases are heard in a similar manner
- judges have some guidance and can refer to previous similar cases
- legal representatives are able to give advice on the likely outcome
what is persuasive precedent?
a precedent that courts do not have to follow but can choose to for consistency.
- it is made in lower court
- made in a different state/country’s hierarchy
- any obiter dictum (comments) statements made by judges
what is ratio decidendi?
it is a reason for the decision a judge makes.
important things to note:
- not a sentence or a verdict
- this is the binding part of the judgement in other cases where the material facts are similar
what is obiter dictum?
obiter dictum = “by the way” comments made by the judge to convince otheras to modify the law. it is not binding but it still be influential in future cases and can act as persuasive precedent
what is binding precedent?
a precedent that must be followed by the courts, it is decision made by higher courts that binding on lower courts.
what is stare decisis?
it means to stand by the decision and is the underlying principle of the doctrine of precedent. judges should stand by previous decisions to ensure common law is consistent and predictable.
what are ways to avoid and develop precedents?
AVOID (RODD):
- Reversing: when a court reverses a precedent on appeal
- Overruling: when a judge in a superior court decides not to follow previously established precedents and a new precedent is made (changing precedent in a different and later case)
- Distinguishing: can avoid binding precedent if there is a difference in material facts of the case.
- Disapproving: when lower courts express their dissatisfaction, appealing for a superior court to change the law.
