Stare Decisis

What part of precedent is binding?

- the "ratio decidendi" - the rationale - but the ratio can be found through many different ways. Where do you get the ratio from? 1. natural similarity 2. facts and outcomes 3. material facts and outcome a rule promulgated in the precedent case Precedent must be "on all fours"

What types of force does precedent give judicial decisions?

1. ENACTMENT FORCE - effects future cases which are similar in facts. [Target and AIB] 2. GRAVITATIONAL FORCE - influences cases beyond just those which are similar in facts [Quistclose]. Gravitational is only explained through the concept of principle - as they stretch the whole body of law.

What are the two types of precedent?

1. VERTICAL - lower courts follow higher 2. HORIZONTAL - courts follow own decisions - [why did AIB follow Target? if anything many lawyers and judges wanted them to depart from Target and overrule it. How are they able to overrule it and why do they follow it?]

Facts and outcomes

Combination. This is not enough - there may different possibilities in reasoning. Target - got charge, AIB - did not. This is inconclusive

Hart

Dworkin misinterprets Hart's talk of discretion. Hart conveys correctly HOW judges can depart from precedent - They are making new laws, or new exceptions, are discarding an old law. Precedent can help by distinguishing different cases - or widening a rule; so to discard of a restriction to the rule. it is part of the 'judicial discretion' which judges can use This begs the question with Hart's theory however - the task Hart is describing is evaluative. The judges are using their judgement. Hart acknowledges that judges are bound by precedent and perhaps 'principle.' His theory cannot accommodate for explaining this task.

What is stare decisis to Dworkin?

Integrity Degree of consistency with principles in both the legislature - the laws and a consistency with principles in application by the judiciary. This means that both need to adhere to justice, fairness, and procedural due process. People should always be judged by the same values - rule of law. It is possible to overrule precedent because law is a dynamic and interpretive process. It is theoretical debate - it changes and moulds. SD is not just about following the law - it is about ENGAGING with the law. If you follow it - you need to say why - if you overrule it - you need to say why. Overruling and distinguishing are both part of precedent.

What is the problem with the precedent idea we have so far?

It allows for fairness between litigants and it allows for legal certainty. But are we allowed to depart from Precedent? and if so how?

Hershovitz

It is not that every past decision is correct and fits perfectly - it is rather that a person has their case judged by the best attempt at conveying the law coherently. Rather than "a set of discrete decisions which are amended individually" Otherwise would be an injustice. Integrity hence REQUIRES CHANGE.

Raz

Normal justification thesis. Courts are bound by precedent but have discretion to depart from it. Norms however are separate from the reasons to depart from them. He thinks there is a permissible list of reasons for overruling decisions 1. new rule is an improvement 2. The old rule does not give a satisfactory account 3. old rule is misleading to what stare decisis is about This is incorrect - the reason you can depart because of these three reasons is because it is doing an injustice to the party in question. Has not portrayed the law as a whole coherent body HORIZONTALLY - not vertically. That is why you depart for these three reasons^.

Natural similarity

Similar in situation/facts. However, things with similar facts can be totally different - and things with different facts can be similar. AIB and Target were about solicitors - that is important - but both happening in the same city; would not be.

Why is precedent valuable?

The issue is that even if we KNOW the rule promulgated - as said in AIB and Target; why should we follow it? what if we disagree? This is discussing HSD 1. expertise - only explains vertical. Surely current judges have more expertise? 2. co-ordination - follow same rules. Is it better to just blindly follow rules? 3. Efficiency in adjudication - minimise time spent on cases. [this does not happen in practice] 4. Efficiency in general utility - legal certainty: certainty and reliance. This is important - however cannot have it alone; as what happens if the laws themselves are not right? Protective expectations [positivism] are only helpful to the extent their content is also. Otherwise turns into bad-man's view of the law, [Austin and Holmes]. Need to be able to defend the value. for AIB to follow target it had to also justify that solicitors SHOULD be treated differently - and why beneficiaries will then get less protection by the remedy available. 5. Fairness between litigants - treat alike cases alike [formal equality] and different cases differently [substantive equality]. This is needed as well as 4. Apply same rules to all people. Fairness does not work so well horizontally - why should people today be treated the same as 100 years ago? There is something more than this.

What is stare decisis to Hart?

To Hart, judges "apply the rules" - Dworkin describes it as a matter of consistency - and protected expectations. The law is clear- in the core of certainty. And where they create new law - they set new precedents to follow.

What does stare decisis mean?

To stand by things decided - the past cases. Precedent means to follow the past.

Material facts and outcome

Was it the fact they are both solicitors and therefore the commercial distinction made by B-W? is this conclusive? Why was this distinction made?

Strong Burkean concept

can overcome binding force of precedent if strong reason to depart from previous decision. Precedent are second-order reasons directed at first-order principles [Dworkin]

Weak Burkean concept

following precedent regardless if disgagree

Bentham

hated precedent. Opposite to reason. It may however bring stability and make decisions more effective. But he hated common law - was a sham and arbitrary power.

What is precedent to you?

it is important to recognise that there IS weak burkean precedent in our law - in terms of VDE. Lower courts are bound by judgements in higher courts - even if they are wrong. This is due to expertise. It does lead to some problems - especially when courts get the law wrong, [Target Holdings and AIB] it can lead to radical change in the law --> and not always for the good. But if we are explaining HDE - it is a group of reasons. Legal certainty is extremely important - need to be able to advise people coherently. Fairness between litigants is especially important also - especially when the law as it stands is viewed as 'justified'. But having precedent also turn on principle - and value - is important to; because if it fails to respect fairness, justice and procedural due process; the rule of law -- then it can depart from the "strict rule" - and approach a different area of law; or the overreaching principle.

A rule enforced in the precedent case

this is like the ratio - the general statement. The force within a decisions. Commercial trusts should not yield the same sort of strict liability as traditional trusts - where the duty/roles are much less. [this does not tell us if the rule itself is of merit].