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Flashcards in Common Law Deck (20):
1

What is precedent?

Where courts use past decisions to decide outcome of new case

2

How can precedent be used?

by any court even if higher, if it is seen as a good principle. Is called persuasive precedent.

3

Who must use precedent?

It is binding on all lower courts

4

What makes a judges decision?

Ratio Decidendi,
Obiter Dicta

5

Ratio decidendi

reason for judges decision, binding part of precedent

6

Obiter dicta

non binding remarks on case

7

What is persuasive precedent?

Where judges in higher courts use precedents from lower court to come to decision.

8

How can a judge avoid applying precedent?

Distinguishing case being heard from prior cases
Reversing decision
Overulling decision

9

What is a problem of common law?

Its only remedy is for damages, compensation

10

What are equity courts based on?

Fairness

11

Why were equity courts made?

to create more remedies to lesson harshness of some C. Law decisions

12

What are some of the remedies in an equity court?

Injuction
Specific performance
Rescission

13

What is an injunction

court order for person to do /not do /refrain from doing particular action.

14

What is it called when losing party is made to do an action, eg complete a contract?

Specific performance

15

What is rescission?

The unmaking of a contract/ decision between parties.

16

What is the adversarial system based on and where is it from?

Common law.
England, and operates for all nations made under that system

17

What is the judge in adversarial courts?

Impartial. ONly there to ensure fairness. Only has access to the issues, not witnesses

18

What can parties in adversarial courts do?

Legal reps test eachother's evidence to come to decision

Cross examine their witnesses

Determine course of trial.

19

What is the inquisitorial system and where is it used?

Civil law

Used in most of Europe

20

What are the features of the Inquisitorial system?

Judge has more control

2 adverse parties present case to judge

Judge can seek any info,

Judge can examine witnesses