Legal Research - CASE LAW Flashcards
How do judges develop the law? (1)
By applying established legal principles to new situations.
What is common law? (1)
Common law refers to the body of case law decided by judges and is governed by so-called rules of precedent. This means that the decisions of judges higher up in the hierarchy of courts and tribunals are ‘binding’ on those lower down.
What will a judge do to decide a case? (4)
Consider the evidence, consider the applicable law, apply the law to the facts of the case, decide what remedy and make an order giving the successful party their remedy.
What is the ratio? (3)
The part of a judgement which can be applied to other cases. The reason for the decision, it is the legal principle of rule on which the court’s decision is based, applied to the material facts of the case.
What is stare decisis / binding precedent? (2)
Once a principle of law has been laid down, future cases with the same material facts must be decided in the same way - this is a distinctive characteristic of the English Legal System.
What must the court be persuaded of in order for stare decisis to be valid? (2)
The earlier case was decided in a court which binds it, and the relevant part of the earlier case is binding, rather than merely persuasive.
What does the Supreme Court often deal with? (1_
Points of law of ‘general public importance’.
What does a judgment consist of? (3)
A summary of facts, a statement of law including ratio decidendi and obiter dicta and the court’s decision on remedies.
What obstacles may arise in regard to the ratio? (3)
- The ratio is not always obvious when reading a judgment since the judges may have given many reasons for their decision or;
- Each judges has given a different reason though they have agreed on the res judicata.
- Identifying the width that a ratio is meant to have.
What do we mean by width of the ratio? (3)
The ratio could be viewed as a narrow proposition of law (only applies to specific facts) or a wide proposition of law (establishes an entirely new principle). The judges may state what the width of the ratio should be.
What can happen if it is decided the ratio of a previous case is very narrow? (1)
The earlier case can be distinguished, which is known as ‘confining the (earlier) case to its facts.’
What is ‘obiter dictum / obiter dicta’ ? (3)
‘Things said by the way’ in a judgment; they may or may not be significant, depending on the facts of the case and the seniority of the tribunal. They consist of statement of law not necessary to the decision, statement of law as the judge would like it to be but for doctrine of precedent and dissenting judgments i.e. the view of a judge who disagrees with the majority of the court.
What is following the decision? (1)
Where a court considers the facts of a case to be so similar to those facts in an earlier case that the law in the earlier case should be followed.
When is the later decision said to be approving the earlier one? (1)
If the court doing the following is a higher court.
When is a court said to be applying the earlier decision? (1)
Where a court in a later case considers the facts of an earlier case to have similarities to those in the case before it and therefore applies the law in that earlier case.
