Judicial precedent

Read the text and compare the content with your answers in Exercise 1.

I. I LEAD IN

Agree or disagree with the following sayings.

V. SPEAKING

Fill in articles where necessary.

In … United States, acts of … Congress, such as federal statutes, are published chronologically in the order in which they become law — often by being signed by … President, and are grouped together in official bound book form, also chronologically, as "session laws." The "session law" publication for Federal statutes is called … United States Statutes at Large. Any given act may be only one page long, or hundreds of pages, in length. An act may be classified as either a "Public Law" or a "Private Law”.

Because each … Congressional act may contain laws on a variety of topics, many acts, or portions thereof are also rearranged and published in a topical, subject matter codification. … official codification of Federal statutes is called … United States Code.

1. The United States is the greatest law factory the world has ever known. ~ Charles Evans Hughes

2. The greater the number of laws and enactments, the more thieves and robbers there will be. ~Lao-tzu

3. Everybody wants to eat at the government's table, but nobody wants to do the dishes. ~Werner Finck

4. The first myth of management is that it exists. ~ 10. Murphy's Law

Unit 3 Sources of Modern Law Section 2 Case Law

1. Before reading the text, check your knowledge and predict the right answers on the topic:

1. What is a precedent?

a) a previous decision made in court which informs future cases

b) a senior judge

c) a set of written rules

d) a jury’s decision

2. What does stare decisis mean?

a) decision is made based on legislation

b) words said in passing

c) stand by things decided

d) once made the decision must not be changed.

3. What is the Latin for a logical basis for a decision made by a court which may bind all future cases?

a) ratio ultima

b) modus vivendi

c) ratio – decidendi

d) jus strictum

2. Match the following English words and phrases with their Ukrainian equivalents:

	binding precedent	a	адвокат
	counsel	b	посилатися на справу
	to cite a case	c	розрізняти
	to distinguish	d	правове обґрунтування
	legal reasoning	e	суд нижчої інстанції
	to argue	f	доводити
	lower court	g	прецедент, що має обов’язкову силу
	to overturn the decision	h	скасувати рішення

3. Mind the pronunciation of the following:

hierarchy

binding

applicable

hypothetical

Judicial precedent is one of the sources of law, particularly English Common Law which, itself, is the basis of legal systems in many parts of the world (e.g. the USA and Commonwealth countries).

Essential to the common law is the hierarchy of the courts and the principle of binding precedent. In practice, this means that the decision of a higher court is binding on a lower court, and in the course of a trial the judges must refer to existing precedents. This is known as stare decisis ‘ stand by what has been decided’. The judges will also consider decisions made by a lower court, although they are not bound to follow them. However, a rule set by a court of greater or equal status must be applied if it is relevant.

During a trial, a counsel will cite cases and either attempt to distinguish the case at trial from those referred to, or alternatively, argue that the rule established in a previous case is applicable and should be followed. At the end of each legal case the Judge gives a summary of the facts of the case; then a review of the arguments (defence and prosecution) and an explanation of the principles of law he/she is using to come to a decision. Only the legal principles used to come to a decision are referred to as the ratio – decidendi’ which means ‘the reason for deciding’. Sometimes the Judge will consider what his/her decision would have been if the facts of the case had been different; this hypothetical situation is referred to as the ’obiter dicta’ (i.e. other things said) and the legal reasoning put forward may be used in future cases.

The great body of legal precedent contained in law books is the result of appeals to higher courts against the decisions of lower courts. The appeals have resulted in the clarification of specific principles, either by improving them or by overturning the original court's decision through the introduction of a new precedent.

So, put in broad terms, judicial precedent is the body of legal principles established by past court decisions which have survived the process of appeal to higher courts and have consequently become binding on all courts.

II. DEVELOPMENT

3. Answer the following questions using the information from the text:

1) What are the distinctive features of common law?

2) What does the principle of binding precedent mean?

3) Should rules set by courts of equal status be applied if they are relevant?

4) What is the role of the judge at the end of the case?

5) How would you define the ’obiter dicta’?

6) What are the results of appeals to higher courts against the decisions of lower courts?

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