Traditons- Common Law

Primary Sources

supranational law, constitutional law, statutory law, case law

Secondary Source

Case law, custom, doctrine

Stare Decisis

to stand by precedents and not to disturb settled points

A single case is binding on future litigants in subsequent cases

Purposes of Stare Decisis 

Certainty and calculability of managing affairs

Basis for legal reasoning and advising

Curb on the arbitrariness of judges

Efficiency in administration of justice

Human sense of fairness and justice

Pitfalls of Stare Decisis

Stagnation of the law

Perpetuation of unjust orincorrect rules

Inability to evolve withsocial norms and mores

Vertical Stare Decisis

Decisions of higher courts are binding on lowercourts within the same court hierarchy

Horizontal Stare Decisis

Decisions of a court are binding on the samecourt (although not necessarily on others in thesame level of the hierarchy)

Avoiding Stare Decisis 

The Technique of Distinction (Distinguishing a case to conclude that the case is not controlling)

Overruling Prior Precedent (Discarding prior precedent as outdated,outmoded, or incorrectly decided)

Ratio Decidendi

the law of a judicial decisions

the portion of the opinion that is binding, legal rules that are necessary for the outcome of the decision

Statutory law is

enacted in light of the case law

The Technique of Distinction

The ratio decidendi is binding on all future cases that cannot be meaningfully distinguished.

Comparison of facts of the precedent case and instant case is required

Inductive Reasoning

Multiple controlling cases must be synthesized to formulate a cogent rule.

a body of individualobservations issynthesized to arriveat a general principal

Deductive Reasoning

A general principal(derived from a precedent or a body of precedent) is applied to a specific set of facts

Analogical Reasoning

Not every case is identical; thus, legal principles extend to alike and sufficiently similar cases

Distinction

Counterpoint to extension of legal principles by analogy

When the instant case is distinguishable from the precedent, the precedent does not apply

Dialectical Reasoning

evaluation of more than one plausible outcome; a weighing of multiple solutions

Utilized when the court decides:

Whether to extend a rule by analogy or to distinguish

Cases of first impression

Between multiple but competing rules

To overrule prior precedent

What are the approaches to statutory interpretation

literal rule, golden rule, purposive approach

The Literal Rule

When the language is clear, the law must be applied as written, even when it leads to absurd or unjust results.

As in the civil law tradition, common law courts must establish that they are within the “domain” of interpretation before engaging in it.

The Golden Rule

When the plain meaning of the statute leads to absurdity or inconsistency so great that it must be presumed the legislature could not have intended the result

then the court ought to disregard the statute’s plain meaning in favor of another interpretation that can be derived from the text

The Purposive Approach

The court should give effect to the true purpose of the legislation, and in so doing look at extraneous material that bears upon the background against which the legislation was enacted.

Intrinsic Aids

Canons of statutory construction- In pari materia (noscitur as sociis)– Ejusdem generus– Expressio unis est exclusio alterio– Common and technical usage

Opposition: statutes are remedial in nature

Analogical Reasoning

Modern view: courts construe statutes asbroadly as their intended purpose, butrefuse to apply them analogically.

Extrinsic Aid 

legislative history and intent 

Critiques of legislative history

There is no “unified” legislative intent– Even if there was, it is not discoverable– The legislature votes on the words, not the history– The president signs only the words into law– Legislative history Is political (legislators strike deals,legislative history is manipulated)– Legislative history is not accessible to the common man

Defenses of legislative history

Legislative history is high in quality, readily accessible,and reveals evidence of the purpose of the law– Legislator’s votes represent a concurrence in theexpressed views of another– Comparison of new law in light of existing law andamendments (voted up or down) reveals the legislator’schoices– Strong judges prefer to override legislative intent to“make law” according to their own views throughstatutory “interpretation”

Textualism 

Focus on the words of a statute, emphasizing text over any unstated purpose

Judges best respect legislative supremacy when they follow rules that prioritize the statutory text

Purposivism

Legislation is a purposive act, and judges should construe statutes to execute that purpose

Judges best respect legislative supremacy by paying attention to the legislative process