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Precedent Legal Change And Judicial Decision Making Notes

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PRECEDENT,

LEGAL

CHANGE


AND

JUDICIAL

DECISION

MAKING


Role

of

the

Court:

* Regulator

of

Government

power

* To

uphold

the

Rule

of

Law


Legislative

a?

Legislate

a?

Execute

a?

Executive

a?

Judicial

a? Review


Judge

Made

Law

* Encompasses

common

law

cases


o Much

contract

and

tort

law

is

still

found

in

the

common

law


o Cases

about

the

meaning

of

statutes


o Cases

about

the

meaning

of

the

Constitution


SS? ACTV

v

Commonwealth


How

do

judges

decide

cases?

* Traditional

Approach


o Declaratory

theory


SS? Judge

declares

pre

existing

law


o Formalism

* Modern

approach


o Perceived

as

much

more

complex


o "solid

core

of

straightforward

implementation

of

well

established


rules

and

a

'penumbra'

of

high

uncertainty

in

'hard

cases'"

(Hughes,


et

al

p197)


o What

are

the

limits

and

methods

of

decision--making?


Declaratory

Theory

* Strict

legalism


o Applying

the

black

letter

of

the

law


o No

role

for

a

judge's

own

interpretation

of

the

law

or

for

the


infusion

of

policy

or

value

choices

into

the

process

of

judicial


decision

making


There

was

a

time

when

it

was

thought

almost

indecent

to

suggest

that

judges

make


law

--

they

only

declare

it.

Those

with

a

taste

for

fairy

tales

seem

to

have

thought


that

in

some

Aladdin's

cave

there

is

hidden

the

common

law

in

all

its

splendour

and


that

on

a

judge's

appointment

there

descends

on

him

knowledge

of

the

magic


words

'open

sesame'.

Bad

decisions

are

given

when

the

judges

muddle

their


password

and

the

wrong

doors

open.

But

we

do

not

believe

in

fairytales

any

more.'


(Lord

Reid)

PAGE

43

Doctrine

of

Precedent:

* Stare

decisis:


o Let

the

decision

stand


SS? The

courts

are

bound

to

follow

previous

decisions

of

higher


courts

within

the

same

hierarchy

of

courts


SS? Rationale/benefits

* Certainty

* Equality

* Efficiency

* Appearance

of

Justice


SS? Court

hierarchies

* State/Territory

has

its

own

hierarchy

* Federal

court

hierarchy

* Ratio

Decidendi


o The

reason

for

decising


o The

argument

or

reasoning

on

which

a

judge's

ultimate

decision

is


based

* Obiter

Dicta


o Everything

else

in

a

judgement

that

is

not

part

of

the

ratio

is

obiter.


o Things

said

by

judges

on

points

of

law

which

are

not

crucial

to

the


final

decision

* Res

Judicata


o A

thing

adjudicated


o Purpose

of

using

precedent

is

to

finally

resolve

a

dispute

between


particular

parties


Application:

* How

do

we

find

a

case's

ratio

decidendi?


o The

easiest

way

is

by

asking

oneself

-

what

are

the

key

legal

issue

in


this

case?

The

way

the

court

answers

this

legal

question,

and

the


reasoning

it

uses,

will

be

the

ratio."

(Sanson

et

al,

2009)


How

are

Precedents

used?

* Precedents

can

be


o Binding


o Persuasive


o Applied

or

followed


o Over--ruled

(rarely

happens)


o Distinguished


o Upheld/Reversed

* The

doctrine

of

precedent

is

the

prevailing

'constraint'

on

the

role

of


judges

in

determining

and

developing

the

common

law

as

it

tries

to


accommodate

the

inevitable

process

of

changing

values

and

policies


PAGE

44

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