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SLS > Week 7 > Flashcards

Week 7 Flashcards

1
Q

What is the case with a gas meter?

A

Duncan v Jackson

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2
Q

Duncan v Jackson?

A

Man had gas-meter in other jurisdiction, wanted to vote in both

Held: list states independent things, gas meter is not.

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3
Q

What is noscitur a sociis?

A

A thing is known by its associates

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4
Q

Bromley LBC v GLC?

A

Provide integrated, efficient, and economic transport

Held: efficient beside economic means economic means doesn’t cost must

B won

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5
Q

What is expressio unius exclusion alterius?

A

If you mention one thing, it excludes another

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6
Q

What is the problem with and and or

A

Courts sometimes have to decide that one means the other

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7
Q

What happens if there is an unclear change in the law?

A

The way the old law was used is taken

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8
Q

What definition should you give a word?

A

It’s modern meaning, unless old Act of Scotland.

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9
Q

What is legislative history?

A

Prior legislation

Pre-parliamentary material

Parliamentary material

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10
Q

What is the case with a taxpayer getting reduced fees for child to a school?

A

Pepper v Hart 1993**

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11
Q

Pepper v Hart**

A

Taxpayer worked in School, school allowed his children in on reduced fee. If you are given a benefit from a boss that isn’t monetary, an amount equal to cost of benefit is taxed.

One judge went and looked at parliamentary material about the finance act 1976 where government minister said it wasn’t intended to be taxed. 7 judges ruled 6/1 to looking at the debates.

Held: no tax.

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12
Q

What is special about Pepper v Hart**

A

Usually outside sources should not be used.

Three rules:

Statute must be ambiguous, obscure or absurd

Statement is from the promoter of bill

Statement from promoter is clear

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13
Q

What are the advantages and disadvantages of Pepper v Hart?

A

A: Helps clarify meaning of legislation

D: Blurs the edges of separation of powers
Gives government a lot of power

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14
Q

What are the five main points about case law?

A
  1. Not all case law is equal
  2. Why does it have authoritative status? Binding or persuasive?
  3. Ratio decidendi: why case was determined
  4. Possibility of Obiter dictum
  5. Do cases keep getting cited in other cases
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15
Q

What is Stare decisis?

A

The legal principle of determining points in litigation according to precedent

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16
Q

What is case law?

A

It is unwritten, customary law based on reasoned tradition.

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17
Q

How does it work with judges?

A

Judges make new rules for the future by reference to decisions made in the past. Case law is a traditional knowledge and is backward looking.

18
Q

Are all cases authoritative?

A

Yes but there is a grading of cases

19
Q

How do you crave cases?

A
  1. Case can only be binding if it has the same material facts as a previous case
  2. The force of a decision depends on the factual similarity of a past case
20
Q

Can facts happen twice?

A

No but facts are the same if there is a legally relevant similarity.

21
Q

How does binding and persuasive work in courts?

A

Relevant decisions bind down appellate hierarchy lines

Relevant decisions may be persuasive vertically up the hierarchy.

22
Q

Are courts bound?

A

They feel bound to follow their own past decisions, with the higher courts binding the lower courts. Even Supreme Court feels bound to follow previous decisions.

23
Q

What is case law and statutes meant to be

A

They are meant to be certain

24
Q

Can courts overrule past decisions?

A

Yes but they must have more judges than previous decision and are reluctant to do so.

25
Q

Are courts of first instance bound by previous decisions?

A

No but likely to follow it

26
Q

What case can become binding precedent?

A

One that is decided on a point of law, not fact

27
Q

Can case law move jurisdictions?

A

Yes, Scots decisions are authoritative in England.

Donoghue v Stevenson started in Scotland, then England, then Australia and then leading authority back in Scotland

28
Q

What is written law?

A

Legislation

29
Q

What is unwritten law

A

Customary tradition which includes case law

30
Q

What is special about d v s

A

Case law is grounded in real facts however never proved what actually happened in d v s

Real facts can be hypothetical

31
Q

What is meant by legislation is all or nothing

A

It is either relevant or not, binding or not. Case law binds in degrees

32
Q

How do you work out the ratio decidendi

A

Take judges rulings.

The purpose and limits of the rules are determined by reasoning and facts of the case

33
Q

How do last decisions become precedents?

A

Past decisions can only become precedents if they are properly reported.

34
Q

Why are so few cases published?

A

Only where there is a significant point of law or particular public interest will the details be published

35
Q

Why are non profit, semi-official bodies responsible for making the most authoritative law reports?

A

Because they are sanctioned by the judiciary.

E.g. The Scottish Council of Law Reporting

36
Q

Why do precedents create rules

A

For efficiency of arguments: we don’t need to reinvent the wheel

37
Q

What other than efficiency is there?

A

Expect equality before the law: justice requires that cases should be decided alike

38
Q

What is the Goodhart definition of the ratio?

A

The principle of the case is found by taking them into account (a) the facts treated by the judge as material, and (b) his decision as based on them.

39
Q

What is a material fact?

A

A fact that is significant and relevant in deciding the ratio of a case

40
Q

What are immaterial facts?

A

All facts of person, time, place, kind and amount are immaterial unless stated otherwise. Irrelevant to deciding the case

41
Q

What are the four main reasons for judicial precedent?

A
  1. Equality
  2. Reliance for contract
  3. Body of Reasoned Tradition
  4. Efficiency and Cost

SLS (9 decks)

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