Chapter 6 ‘Role of the Courts in law-making’

Chapter 6‘Role of the Courts in law-

making’

Tuesday 15 May 2012

The Curve of Forgetting describes how we retain

or get rid of information that we take in. It's based on a one-hour lecture.

On day 1, at the beginning of the lecture, you go in knowing nothing, or 0%, (where the curve starts at the baseline). At the end of the lecture you know 100% of what you know, however well you know it (where the curve rises to its highest point).

Curve of Forgetting

By day 2, if you have done nothing with the

information you learned in that lecture, didn't think about it again, read it again, etc. you will have lost 50%-80% of what you learned. Our brains are constantly recording information on a temporary basis: scraps of conversation heard on the sidewalk, what the person in front of you is wearing. Because the information isn't necessary, and it doesn't come up again, our brains dump it all off, along with what was learned in the lecture that you actually do want to hold on to!

So what does this

mean for you?

What does the curve of forgetting have to do with precedent

and Chapter 6?

Try to remember this listWord Definition

Binding precedent A precedent which must be followedCommon law Case law developed by the courtsDoctrine of precedent System used by courts to make lawLegal maxim A traditional rule, convention or practiceStare decisis ‘the decision stands’ – the basis of the doctrine of

precedent where inferior courts follow the decisions of higher courts

Statutory interpretation The process of judges giving meaning to words within an Act

Obiter dictum A judge’s statement of opinion or observation made during a judgment but not part of the reason for the decision

Persuasive precedent A precedent which may be influential but does not have to be followed

Precedent Legal principles established by courtsRatio decidendi The legal reasoning, or rule upon which a decision

is based.

Try to remember this listWord Definition

Binding precedent A precedent which must be followedCommon law Case law developed by the courtsDoctrine of precedent System used by courts to make lawLegal maxim A traditional rule, convention or practiceStare decisis ‘the decision stands’ – the basis of the doctrine of

precedent where inferior courts follow the decisions of higher courts

Statutory interpretation The process of judges giving meaning to words within an Act

Obiter dictum A judge’s statement of opinion or observation made during a judgment but not part of the reason for the decision

Persuasive precedent A precedent which may be influential but does not have to be followed

Precedent Legal principles established by courtsRatio decidendi The legal reasoning, or rule upon which a decision

is based.

What strategies did you use to try and

remember the words and their definitions?

“a reported judgment of a court that

establishes a point of law” (p. 157) “Law made by courts. It may refer to a single

judgment (‘a precedent’) or several judgments (‘precedent’) (p. 155)

“The judges would look back on previous cases to decide what the law should be. This process is known as precedent.”

Precedent

“The legal reasoning, or rule, upon which a

decision is based” (p. 155) “The reasons for the decision” (p. 157) “The reason given by a court when deciding a

case, [which ] forms the legal principle” (p. 157)

“means literally ‘the reason for deciding’” (p. 158)

“the rule of law stated by the judge as the reason for deciding” (p. 158)

Ratio decidendi

“A judge’s statement of opinion or observation

made during a judgment but not part of the reason for a decision” (p. 155)

“statements made that do not form a ratio decidendi but may be persuasive in later cases” (p. 158)

“A comment made by a judge on a question of law, but not directly relevant to deciding the case” (p. 158)

“a statement made by the way” (p. 158)

Obiter dictum