Precedent(1) Concept, Justification And Basic Rules

Question 1

Was is the meaning of ‘Precedence ?’

Answer 1

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.

Question 2

When was case law becoming popular?

Answer 2

Late 18th century, early 19th century

Question 3

What’s is the aim of precedence?

Answer 3

More than prove consistency but set out rules of law

Question 4

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

Answer 4

Binding

Question 5

What is binding in a case?

Answer 5

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

Ratio decidendi

Question 6

Finish the sentence

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

Answer 6

A decision
B reason
C decision

Question 7

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

Answer 7

To stand by decisions and not disturb settled matters

Question 8

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

Answer 8

• 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.

Question 9

What is a disadvantage of stare decisis?

Answer 9

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

Question 10

What are the basic rules of precedence in Scottish courts?

Answer 10

• 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

Question 11

What are the basic rules of precedence on English courts?

Answer 11

• 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

Question 12

What are some factors that make a judgement PERSUASIVE?

Answer 12

• 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

Question 13

What’s plural for letting the decision stand?

Answer 13

Rationes decideni