precedent
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- Created by: _marxlee
- Created on: 12-01-18 10:14
what is precedent?
the process of deciding what cases to follow
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stare decisis meaning
let the decision stand- like cases should be treated alike- new ruling=previous decision must be followed
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what is vertical precedent ?
the authority of precedents depends on the court from which it proceeds and in which it is cited- courts are bound by decision on higher courts within the same judicial hierarchy
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horizontal precedent
court is bound by its own previous decision- the superior court is unable to correct its own errors- decisions bound by own court
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what was the act of settlement
- judges were made independent- no longer able to be sacked by the king- if king was able to sack judge then there wouldn’t be a rule of law- couldn’t be held accountable in any way
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what did william blackstone say?
judges declared the law- they weren’t making the law- declaring it as its always been-declarity in theory- discover and declare the law-using legal reasoning
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what was held in Kleinworth Benson v Lincoln City council
judges make law not just declare- judge made law
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what is obiter dicta
- things said in passing- those issues that are peripheral- can be binding-up for court to decide how previous cases can be used in present ones.
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what is ratio decedendi?
any rule, expressly or impliedly treated by the judge as a necessary step in reaching his conclusion- statement that is the ratio of an earlier case does not mean its automatically binding on later cases- each case unique- not the outcome of the case
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what does binding mean?
must be followed under certain criteria- material facts must be the same or similar- court must have a superiority to be followed- legal reasoning should be similar of the same in the previous case to be followed and be bound by the next case
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what is persuasive precedent?
judges able to have more discretion on how they applied the law to the facts
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what are the factors to be taken into account when determining persuasive precedent?
Facts similar but not directly analogous, Facts analogous and ratio of court lower in hierarchy, Facts analogous and obiter of court higher on hierarchy, Facts analogous and dissenting judgement of court higher in hierarchy, Facts analogous and leg
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is the court of justice of the european union binding on EU law?
yes
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is the court of appeal binding within itself?
yes
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are divisional courts bound by high courts?
no as they are slightly up the hierachy
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are high court judges' decisions binding on lower courts?
yes but no high court judges
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what courts is there no precedent?
county, family, magistrates, crown
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what is the exception?
crown- strong persuasion- try and follow if possible
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what did s2 (a) HRA 1998 state?
european convention of human rights dont have to follow rulings, only to be taken into account by higher courts
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what are the ways to avoid stare decisis?
overruling, reversing, disapproving, distinguishing
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what is overruling?
overturns decisions of lower courts on different case
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what is reversing?
overturns decision of lower court on same case
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what is disapproving?
criticism
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what is distinguishing?
materially different facts- Merritt v Merritt, Balfour v Balfour
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what does per incuriam mean?
something made out of error
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what are the advantages of precedent?
consistency, certainty, efficiency, flexibility
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what are the disadvantages of precedent?
uncertainty, fixity, unconstitutional, slowness, lack of clarity
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Other cards in this set
Card 2
Front
stare decisis meaning
Back
let the decision stand- like cases should be treated alike- new ruling=previous decision must be followed
Card 3
Front
what is vertical precedent ?
Back
Card 4
Front
horizontal precedent
Back
Card 5
Front
what was the act of settlement
Back
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