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Arguments FOR
-Certainty and Legal Consistency - makes sure like cases are treated similarly. As a result increases the confidence in legal system if there are logical explanations of approaches.
-Increased efficiency - don't have to waste court time rearguing similar points of law.
-Allows some flexibility - judges can change the law without having to wait for Parliament to pass legislation although there are moral questions if this is right?
Arguments AGAINST
-Rigidity- Slow moving precedent only decided when next case comes up.
-Can mean a consistently wrong precedent is reinforced
-Complexity + Uncertainty- if it is undermined by exceptions
-Unconstitutional - for judges to take this role?
-Principles do not develop unless cases are brought
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Is a treaty binding to the US as soon as the president signs it?
No, It has to be approved by Congress.
What device was the Constitution made binding upon the officials of the various states?
The device that made it binding to the official was that of ratification. When the ninth state ratified the US Constitution, it became law for all 13 of the colonies.
Established a legislative body that had to make decisions unanimously for them to be binding?
Articles of Confederation
What did colonial printers get paid?
Stuff.... jkjk usually things that the Printer uses to print. An Ink Pad, or maybe a leather binding.
Why is the declaratory act important?
The Declaratory Act repealed the Stamp Act since the colonial boycotts of taxed goods were hurting the British economy. The Act also stated that British authority was equally powerful in America as it was in Britain and that Parliament had the authority to pass binding laws on the American colonies.
What two types of precedent are there in doctrine of precedent?
binding(mandatory) precedent persuasive precedent
What are the principles under the doctrine of binding precedent?
The principles under the doctrine of binding precedent are that the courts must use past solutions. They apply when the law is not unreasonable or inconvenient.
What is the doctrine of precedent that states the decisions of other courts which are not binding on a judge?
There is no doctrine of non-binding precedents. Non-binding opinions that may be used as guidelines for deciding future cases are called persuasive precedents. Binding precedents are upheld under the doctrine of stare decisis (Latin: Let the decision stand).
What is the application of the doctrine of binding judicial precedent in Malaysia?
Read Malaysian Legal System book, you lazy ass.
What is the doctrine of binding precedent Australia law?
Essentially binding precedent means that if a higher court has ruled on what is substantially the same legal issue, then that ruling is binding on the lower courts. This is designed to build up a consistent body of law, so for example, we dont have 30 different interpretations of 1 section of statute.
To what extent are precedent are binding or not binding?
it depends on how old the precedent is, how closely related is it to the case you are looking at and the difference between your precedent and crown/defense lawyer's precedent
'doctrine of precedent suitable for nation of sheep'do you agree discuss setting out argument for or against doctrine of binding precedent?
Answer The term, "nation of sheep" implies a total lack of autonomous decision-making, based upon the metaphorical creatures known to continue blindly once pointed on the way. This demonstrates a fundamental flaw in the implied premise of the question, because it only takes one new case to overturn a bad precedent. The U.S. Supreme Court has overturned its own precedents over a hundred times. However, the value of binding precedent is that the outcome of cases become that much more predictable, and thus avoidable, at least in theory. For each case that law books capture in appellate reporters, there may be hundreds that were never filed or never made it to appeals because the lawyers involved understood the risks of challenging precedents.
Is court precedent mandatory or persuasive?
That depends on which court you're referring to. In the federal court system, the US Supreme Court sets binding (or mandatory) precedent for all lower courts; the US Court of Appeals Circuit Courts set binding precedent for all US District Courts within their jurisdiction, but only persuasive precedent elsewhere; the US District Courts do not set binding precedent at all, they only set persuasive precedent.
How do you avoid the doctrine of precedent?
You cannot avoid judicial precedent that is "binding." This includes precedent that is made by a higher court in your jurisdiction (legal region) or the Supreme Court of the United States. If the precedent is directly adverse (contrary) to your position, you have a couple of options. First, you could find a way to "distinguish" the binding precedent. This means finding a relevant detail about your position that makes it somehow different from the adverse cases in your jurisdiction. Here, you have to look at those cases and examine the fact-patterns, comparing those to the fact-pattern in your case/position. You might also have to come up with some compelling arguments for why the "holding" (the legally binding decision(s)) of the previous cases (precedent) should be narrowed or construed a certain way so that they either support or are no longer adverse to your position. Another way to avoid judicial precedent is to make a compelling legal/policy argument for why it should be overturned. For example, the Court that decided Brown v. Board of education overturned the decision in Plessy v. Ferguson for compelling reasons. However, depending on which court you are in, and because of the doctrine of "stare decisis" (to 'stand by the decision'), this can be very difficult. That's why lawyers get paid the big bucks. You cannot avoid judicial precedent that is "binding." This includes precedent that is made by a higher court in your jurisdiction (legal region) or the Supreme Court of the United States. If the precedent is directly adverse (contrary) to your position, you have a couple of options. First, you could find a way to "distinguish" the binding precedent. This means finding a relevant detail about your position that makes it somehow different from the adverse cases in your jurisdiction. Here, you have to look at those cases and examine the fact-patterns, comparing those to the fact-pattern in your case/position. You might also have to come up with some compelling arguments for why the "holding" (the legally binding decision(s)) of the previous cases (precedent) should be narrowed or construed a certain way so that they either support or are no longer adverse to your position. Another way to avoid judicial precedent is to make a compelling legal/policy argument for why it should be overturned. For example, the Court that decided Brown v. Board of education overturned the decision in Plessy v. Ferguson for compelling reasons. However, depending on which court you are in, and because of the doctrine of "stare decisis" (to 'stand by the decision'), this can be very difficult. That's why lawyers get paid the big bucks.
What impact has the human rights act 1998 had on the doctrine of precedent under the common law?
not much. as the common was already protecting the rights of the people. the Act just made it binding on both judiciary and the parliament and also the government .
What is a legal precedent?
a legal precedent is principles of law set down by a higher court that are binding on lower courts in the same hierachy
Should an 1875 case precedent still be binding?
If no other case has changed it.
