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PRECEDENT. Stare Decisis Applied in Appellate cases Like cases decided in like manner Judges must follow past decisions Lawyers must cite and account for good and bad past decisions How is this done?. Past cases that support . Emphasize legal ruling by judge in past case

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Presentation Transcript
precedent
PRECEDENT
  • Stare Decisis
  • Applied in Appellate cases
    • Like cases decided in like manner
    • Judges must follow past decisions
    • Lawyers must cite and account for good and bad past decisions
    • How is this done?
past cases that support
Past cases that support
  • Emphasize legal ruling by judge in past case
  • De-emphasize the facts of past case
  • Explain how this case-legally is like past ones
past cases that do not support
Past cases that do not support
  • Emphasize the facts of past case
  • Emphasize the differences between this situation and past ones
  • Explain why law articulated in past cases should not apply here
janus faced doctrine of precedent contradictory doctrine
Janus-faced doctrine of Precedent-(contradictory doctrine)
  • Ties law to past
  • Upholds tradition and makes change difficult
  • Law as mechanism of social change
  • Through slow process of doctrinal evolution
precedent implies that
Precedent implies that…
  • Judges evaluate past cases and make objective decisions
  • Neutrality
  • Scientific/rational approach to decision-making
slide6
But….
  • Law is contextual
  • There is subjectivity in judicial reasoning
  • Quality of lawyers affects outcomes
state v pendergrass
State v. Pendergrass
  • Citation-2 Dev. &B., N.C. 365 (1837)
  • Facts
  • Issue
  • Ruling
  • Reason
joyner v joyner
1862

Judge Pearson

Divorce case

Issue-whether the fact of husband’s “whipping” in and of itself are grounds for divorce

Answer-no

Because-wife must be subject to husband-doctrine of Coverture

Joyner v. Joyner
state v black
1864

Judge Pearson

Criminal case

Law will not invade the domestic curtain unless permanent injury or excess of violence

Why-pro bon publico

What precedent did it uphold? What did it modify? What did it overrule?

State v. Black
state v rhodes
1868

Judge Reade

Assault and Battery-criminal

Only the fact that this is battery between husband and wife makes it non actionable

Careful review of precedent

Issue-is this valid

Ruling-no battery

Reason-hands of policy-autonomy of family government where “trifling” violence

Opened the door to new rulings

State v. Rhodes
state v mabrey
1870

Judge Reade

Detailed presentation of facts-criminal case

Upheld past doctrine

Distinguished case by claiming that the facts are “savage and outrageous”

Not a case of trifling family violence

State v. Mabrey
state v oliver
1874

Judge Settle

Overruled old law that husband has right to whip his wife

Repudiation of doctrine of coverture

Upheld precedent that courts will not invade domestic curtain in trivial case

Case by case approach

State v. Oliver
precedent is both
Barrier to change

Stare decisis

Follows past rulings

Tradition bound/past oriented

Change agent

Distinguishes past case

Modifies and overrules past holdings

Precedent-is both…..
today
Today
  • What remnants of this precedent is left?
  • Reluctance of courts to regulate family violence
  • Legitimacy of notion of parental discipline and right to punish
  • Idea of family privacy vs. State intervention