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You cannot avoid judicial precedent that is "binding." This includes precedent that is made by a higher court in your jurisdiction (legal region) or the Supreme Court of the United States. If the precedent is directly adverse (contrary) to your position, you have a couple of options. First, you could find a way to "distinguish" the binding precedent. This means finding a relevant detail about your position that makes it somehow different from the adverse cases in your jurisdiction. Here, you have to look at those cases and examine the fact-patterns, comparing those to the fact-pattern in your case/position. You might also have to come up with some compelling arguments for why the "holding" (the legally binding decision(s)) of the previous cases (precedent) should be narrowed or construed a certain way so that they either support or are no longer adverse to your position. Another way to avoid judicial precedent is to make a compelling legal/policy argument for why it should be overturned. For example, the Court that decided Brown v. Board of education overturned the decision in Plessy v. Ferguson for compelling reasons. However, depending on which court you are in, and because of the doctrine of "stare decisis" (to 'stand by the decision'), this can be very difficult. That's why lawyers get paid the big bucks. You cannot avoid judicial precedent that is "binding." This includes precedent that is made by a higher court in your jurisdiction (legal region) or the Supreme Court of the United States. If the precedent is directly adverse (contrary) to your position, you have a couple of options. First, you could find a way to "distinguish" the binding precedent. This means finding a relevant detail about your position that makes it somehow different from the adverse cases in your jurisdiction. Here, you have to look at those cases and examine the fact-patterns, comparing those to the fact-pattern in your case/position. You might also have to come up with some compelling arguments for why the "holding" (the legally binding decision(s)) of the previous cases (precedent) should be narrowed or construed a certain way so that they either support or are no longer adverse to your position. Another way to avoid judicial precedent is to make a compelling legal/policy argument for why it should be overturned. For example, the Court that decided Brown v. Board of education overturned the decision in Plessy v. Ferguson for compelling reasons. However, depending on which court you are in, and because of the doctrine of "stare decisis" (to 'stand by the decision'), this can be very difficult. That's why lawyers get paid the big bucks.
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What two types of precedent are there in doctrine of precedent?
binding(mandatory) precedent persuasive precedent
Why is the doctrine of precedence important?
The doctrine of precedent is important because that's where the courts use to govern current cases or to apply the laws if and when a precedent case applies to it.
What are the principles under the doctrine of binding precedent?
The principles under the doctrine of binding precedent are that the courts must use past solutions. They apply when the law is not unreasonable or inconvenient.
A outline of the doctrine of judicial precedent as applies to courts in Jamaica?
Sort you head out jamica jamica
How can judges avoid using a precedent in Australia?
Obiter Dicta
According to the doctrine of judicial restraint the judiciary should?
the doctrine of judicial restrain holds that judges should generally defer to precedent and to decisions made by legislature
What are Court rulings that serve as guides for similar future cases?
The proper term for a ruling that becomes a model for future cases to follow is called "precedent." Judges will often look for those cases that have set a precedent when deciding how to rule on a present case.
What are the problematic areas of the doctrine of precedent in South Africa?
well the problem mainly lies in the hierarchy of the courts
How does the doctrine of judicial precedent operate within the English legal system as the means by which a judge may restrict the doctrine's operation?
If a judge has ruled on the same or similar issue in the past, the current and future judges are supposed to abide by that decision unless there is an extreme or compelling reason not to follow the precedent.
What is the application of the doctrine of binding judicial precedent in Malaysia?
Read Malaysian Legal System book, you lazy ass.
Why is the doctrine of the stare decisis important?
The requirement that a lower court must follow a previously set precedent is called stare decisis.
What is judicial activism in regard to doctrine of precedent?
The doctrine of judicial precedent* refers to the process by which judges follow previously decided cases. Courts at the top of the hierarchy are of more significance so their decisions carry greater legal weight than lower or inferior court decisions. In the UK, the House of Lords binds lower courts, but not itself. Even though its ability to depart from previous decisions is wide it uses this power with great discretion, following guidelines laid out in the Practice Statement Judicial Precedent of 1966. *Another name of the doctrine is "stare decisis". ("Stare" is pronounced "starry" or "staray"; decisis rhymes with crisis with the "c" pronounced as an "s".) It is Latin for "the decision stands".
