Also their decisions are not binding - the court doesn't have to follow similar previous verdicts, it only has to follow the letter of the laws. Which are usually pretty precise.
Legal precedent usually isn't "binding", really; it just carries weight in countries where it matters.
Um, no to pretty much most if not all of this. At least not in the U.S....
Failure to follow applicable, binding precedent, is often grounds for appeal. Why do you think higher courts bother making precedent if not?
Binding Precedent: A former case with similar facts applying similar law resolving the inevitable holes in the law in a given way. This case will come from a higher court with authority over the court using it as "binding." This is largely a jurisdictional and applicability issue. An appellate court or state/The Supreme Court will always bind on a lower court with jurisdiction over said lower court.
Failure to follow binding precedent is immediate grounds for appeal on a de novo standard. Ordinarily, appeals about issues of fact are "abuse of discretion" whereby you must prove the trial judge acted with an arbitrary, capricious, or legally unreasonable manner. 80% of all US cases are NOT overturned on appeal under this standard, which must take the judge and jury's findings of fact as they stand. De novo applies to issues of law and allows the appellate court to essentially retry the case, giving no weight whatsoever to the trial judge's rulings on issues of law.
Persuasive Precedent: Persuasive president is optionally considered by the court if it so chooses. It is from outside jurisdictions or in the case of federal court, other federal circuits. The 8th district federal court may consider cases from the 1st circuit federal court but is by no means bound to them.
Laws are most definitely not pretty precise most of the time, at least not American Law.
Part of this is unavoidable. You just can't make a standard that thinks of all circumstances beforehand. Life surprises you. Moreover what the hell is a "reasonable" use of force? The law can't dictate that, because it is very fact specific. What is "reasonable" use of care?"
Courts actually do make law, your American civics teacher was wrong. Our law has always followed English Common Law as opposed to French European Continental Law. Historically in jolly ole' England, there was no legislature, there was a king, and there were his courts (and also the courts of equity which were through the church but meh, let's not go there).
All of the stuff the legislature, once the constitution created it, adopted came from the English Common law, which was thought up by... Judges.... Battery is a judge made English Common Law term. So was assault, burglary, all of it. Many terms in modern legal civil procedure depend on what the crime or cause of action would've been in England and in a chocolate covered bit of bullshit I hated, if there was no similar crime or cause in old England, you actually had to freaking guess.... *shivers at bad memories from law school*
I've spent days and hours looking through cases to argue through stuff for court cases at work. It's what I do. You'll have one side saying the law should be interpreted one way and another side saying it should go another.... "Simple" and "Precise" doesn't entire into it. This is a fallacy and just doesn't pan out in court.
Definitions, legal definitions, can make or break a case and people totally don't get this. I once had to duke it out with a prosecutor over the meaning of "Operate" as in "operate" a motor vehicle. If the firm's client legally "operated" the motor vehicle, then the kid was going to a trial he couldn't win. If he didn't legally "operate" said motor vehicle, there was a diversion program I could get him into where his record was retroactively wiped clean, he would never have a trial, record etc. He would have to go to 30 AA classes. This is the best conceivable result possible
if you can get it. Took me 3 hours to look through 173 cases to see the damn legal definition which, because God hates me at work, is anything but the simple "operating a car means driving it." It worked and kid got off with AA meetings he needed.
Naturally, his parents, who could totally afford it, didn't want to pay for my 3 hours of research on the legal definition. To review, case won with the best result possible, kid off Scott free with no trial or punishment for a crime he had 0 defense to (he did it).
Why wouldn't they pay willingly, "Well, 3 hours sounds like a lot for looking up a definition!"
You mean you wouldn't wanna pay me if I lost and you won't pay me after winning so you never wanted to pay me at all. O guess who's getting sued for fees and their wages garnished.....
*many, many headdesks*
Author
Topic: Chill and Relaxed Progressive Irritation and Annoyance Thread (Read 880518 times)