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Flashcards in Judical Precedent Deck (17)
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1

What is the doctrine of precedent?


Judged following decisions of previous cases

2

What is Ratio decidendi?

Reason for the decision, the part of the decision which forms the precedent

3

What is obiter dicta?

Remainder of the judgement, things said by the way. Judges do not have to follow it.

4

What is original precedent?

If the point of law in the case has never been decided before, this forms an original precedent on the case.

5

What is binding precedent?

Precedent from an earlier case which must be followed

6

What is persuasive precedent?

Not binding, judge may consider it.

7

Give an example of persuasive precedent

Obiter statements
Judicial committee and privy council
Courts lower in hierarchy

8

Which court is the court of appeal bound by?

Supreme Court

9

Is the court of appeal bound by its previous decisions?

Yes

10

Give an advantage of judicial precedent

Certainty
Consistency& fairness
Flexibility (Supreme court can use practice statement to overrule)

11

Give a disadvantage of judicial precedent

Rigidity (lower courts have to follow higher courts)
Complexity (not easy to find relevant cases)
Illogical decisions

12

What is stare decisis?

“Stand by what is decided and do not unsettle the established”

13

What is disenting judgement?

A judgement given many a judge who disagrees with the reasoning of the majority of judges in the case

14

How can judges avoid precedent?

Distinguishing
Disapproving
Reversing

15

What is distinguishing?

A method of avoiding a previous decision because facts in the present case are different

16

What is overruling?

A decision which states that the legal rule in an earlier case is wrong

17

What is reversing?

Where a higher court in the same case overturns the decision of the lower court