Precedents Flashcards
judicial precedent
the principle where judges follow the decision made by a higher court wherein the material facts of the two cases being compared are similar
binding precedent
a type of precedent; must be followed; ratio
persuasive precedent
a type of precedent; followed at the discretion of the courts; obiter
What three Latin terms are directly related to Precedents?
stare decisis (precedents are binding), ratio decidendi (legal reason for the decision, binding), obiter dictum (“by the way”; not binding)
What are the advantages of precedents?
They save time. A court doesn’t need to begin their judgment from scratch with no base.
They have certainty. It accomplishes the “predictability” and “stability” the law must have by ensuring the same decision for two cases substantially alike.
They have flexibility. Although precedents can be rigid, their flexibility lies in their principles’ relevance across years; they can be relied on regardless of how much time has elapsed.
They have fairness. Its consistency allows for the same outcome be reached by two cases alike.
What are the disadvantages of precedents?
They have uncertainty.
They have inflexibility. They are rigid and do not leave room for any other result once two cases share the same material facts.
They are unconstitutional. This is because
What is the basic principle?
The legal reasoning used by a court to decide a case must be followed in later cases where the material facts are sufficiently similar.
What are the necessary “ingredients” in a precedent?
The system of ‘law reporting’ so to speak, which refers to the main ingredient: the hierarchy of the courts. Precedents are made by when a higher court makes a decision that the lower courts to be absolutely obliged to follow.
What is the means of avoiding precedent that involves saying the precedent or law is wrong?
Overturning.
What is the means of avoiding precedent that involves comparing the two similar cases?
Distinguishing. This is achieved by drawing a distinction between the two cases (e.g. the principle, the nature of them) to show the judge why they shouldn’t apply the precedent.
What is the means of avoiding precedent that involves saying the judgment or court verdict is wrong?
Reversing.
This is when the judgment or court verdict is made void because of an error or irregularity (usually spoken of the action of an appellate court.)
