Friday, January 22, 2010

What are the good and bad aspects of relying on precedent to decide current cases?

do u have an example of precedent that either was not followed in the past, or should not be followed in the future. How much leeway do judges have in deciding whether to follow precedent? How much leeway should they have? what do u think.What are the good and bad aspects of relying on precedent to decide current cases?
Advantages:


-It allows for greater predictability.


-Uniformity


-Practical - Based on facts and real situations





Disadvantages:


-Ratio sometimes unclear.


-Complexity and volume.


-Rigidity.


Unsystematic - depends on facts, nor a comprehensive code.





How much leeway do judges have?


This is a heavily debated topic; particularly the point - dop judges make law? I think it would be blind to say they don't have some creativity. For example R v R (1991) made marital rape unlawful, although previously it was not.





How do they avoid following a particular precedent?


-Distinguishing - Different 'material facts', different legal question to be answered etc.


-Over-ruling - Judges of a superior court may over rule decisions on appeal.


-Disapproval - Doubt expressed but not expressly over ruled.What are the good and bad aspects of relying on precedent to decide current cases?
good: it streamlines the process and makes it easier for the jury to understand the case.





bad: It does not account for the exception.

No comments:

Post a Comment