Explain the concepts of legal precedent and stare decisis

The plaintiffs demanded that the school district reverse its policy of racial segregation. That doctrine and its significance in practical terms are the subject matters of this paper.

Stare decisis and techniques of legal reasoning and legal argument

In these circumstances, there could be no reliance and the doctrine or authority of Hedley Byrne by its own criteria was not available. This kind of legal argument is often used with respect to determining the measure of damages. A principle is the summary of the description of how something works.

Kansas is not obligated to follow precedent from the appellate courts of other states, say California. Heller 40 required the plaintiff in a negligent misrepresentation claim to show that he relied on the skill and judgment of the party from whom he had received incorrect information.

Take for instance, when you see a hobo, you will stare. That said, more difficult problems of legal reasoning and legal argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents itself which appears to be unfavourable.

To get around an apparently unfavourable case, there are a number of tools and techniques available to the lawyer.

United States, stare decisis was used by the Supreme Court to make a ruling on this case. Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact.

Subject to an exception for considered pronouncements of the law by appellate courts, comments by the judge which are not part of the ratio decidendi are obiter dicta and are theoretically not binding in a subsequent case.

How does the lawyer deal with these problems? This decision surprised most people, not simply because it struck down educational discrimination, but because the Court ruled unanimously on the seriously divisive topic.

Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.

The Department of Highways, 7 Middleton J. Not surprisingly, there are laws about determining the law. Temperance Federation [] A. There is considerable literature about whether the doctrine of stare decisis is a good or bad one 4 but, the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness.

I think Hogg J. This paper is also about how a lawyer in everyday practice answers a legal question and how that lawyer evaluates and formulates legal arguments. Gouin6 O. Hamilton 47 Middleton J. This is unethical 28 and with respect it may be submitted that it is also unethical and intellectually dishonest for a judge in deciding a case to simply ignore a precedent case which stands in the way of the decision that the judge wants to make.

See Denning, supra, note 4 at See Bale, supra, note 4 at It would be a gross injustice to decide alternate cases on opposite principles.

Full Answer Stare decisis, which comes from the Latin phrase meaning "to stand by things decided," first arose in importance in the s when court cases became more easily accessible to lower courts, lawyers and judges, making it easier for courts to reference previous cases to help inform current ones.

Interestingly and as will be seen in a somewhat ironical way, the availability of this rule in Ontario is itself an example of the rule. In light of these changes, the current position for Ontario jurisprudence appears to be as follows: Binding precedent or mandatory authority ; and 2.

Different states are free to disagree among themselves as to what laws govern in their states, but since most court made law comes from common law England, many legal principles have the same roots.

An example of non-restrictive distinguishing may be noted in the Supreme Court of Canada decision in Town of the Pas v. The lawyer will be appearing before a particular court and the first thing that the lawyer must do is to note the rank of that court in the hierarchy of courts.Explain The Concepts Of Legal Precedent And Stare Decisis DOCTRINE OF PRECEDENT AND STARE DECISIS What do you understand by precedent in the English legal system?

It is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts. What is the doctrine of precedent or of stare decisis?

Professor Gall described it in the following terms: Stare decisis and techniques of legal reasoning and legal argument; Legal citation; Citation linking software; Step-by-Step Legal Research Process.

Get help at each stage of the legal research process. Start process». The US common law system has a unified system of deciding legal matters from the principle of stare decisis and precedent. A past ruling or judgment on any case is known as a precedent.

Stare decisis dictates that courts look to precedent when overseeing an on-going case with similar circumstances.

The doctrine of stare decisis, or precedent law, has its beginning in 12th century England, when King Henry II established a unified system of deciding legal maters. In this system, referred to as “ common law,” the decisions of the King’s judges in various regions were respected by the other judges in deciding similar cases.

Stare decisis is important because it is essential to the doctrine of precedent, according to Cornell University Law School. Stare decisis means a court will stand by a ruling previously issued in earlier cases.

Stare Decisis

This method is used to determine rulings in lower courts as well. Once a court has. Precedent & Stare Decisis 1. Common Law Legal System Stare Decisis 2. The Meaning of Precedent Generally“precedent” literally means something that hashappened beforeIn ordinary English, “precedent” has come to meanan event which defines a standard“Unprecedented” is something that is uncommon orwell beyond standard.

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Explain the concepts of legal precedent and stare decisis
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