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PRECEDENT

PRECEDENT. Stare Decisis Applied in Appellate cases Like cases decided in like manner Judges must follow past decisions Lawyers must cite and account for good and bad past decisions How is this done?. Past cases that support . Emphasize legal ruling by judge in past case

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PRECEDENT

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  1. PRECEDENT • Stare Decisis • Applied in Appellate cases • Like cases decided in like manner • Judges must follow past decisions • Lawyers must cite and account for good and bad past decisions • How is this done?

  2. Past cases that support • Emphasize legal ruling by judge in past case • De-emphasize the facts of past case • Explain how this case-legally is like past ones

  3. Past cases that do not support • Emphasize the facts of past case • Emphasize the differences between this situation and past ones • Explain why law articulated in past cases should not apply here

  4. Janus-faced doctrine of Precedent-(contradictory doctrine) • Ties law to past • Upholds tradition and makes change difficult • Law as mechanism of social change • Through slow process of doctrinal evolution

  5. Precedent implies that… • Judges evaluate past cases and make objective decisions • Neutrality • Scientific/rational approach to decision-making

  6. But…. • Law is contextual • There is subjectivity in judicial reasoning • Quality of lawyers affects outcomes

  7. State v. Pendergrass • Citation-2 Dev. &B., N.C. 365 (1837) • Facts • Issue • Ruling • Reason

  8. 1862 Judge Pearson Divorce case Issue-whether the fact of husband’s “whipping” in and of itself are grounds for divorce Answer-no Because-wife must be subject to husband-doctrine of Coverture Joyner v. Joyner

  9. 1864 Judge Pearson Criminal case Law will not invade the domestic curtain unless permanent injury or excess of violence Why-pro bon publico What precedent did it uphold? What did it modify? What did it overrule? State v. Black

  10. 1868 Judge Reade Assault and Battery-criminal Only the fact that this is battery between husband and wife makes it non actionable Careful review of precedent Issue-is this valid Ruling-no battery Reason-hands of policy-autonomy of family government where “trifling” violence Opened the door to new rulings State v. Rhodes

  11. 1870 Judge Reade Detailed presentation of facts-criminal case Upheld past doctrine Distinguished case by claiming that the facts are “savage and outrageous” Not a case of trifling family violence State v. Mabrey

  12. 1874 Judge Settle Overruled old law that husband has right to whip his wife Repudiation of doctrine of coverture Upheld precedent that courts will not invade domestic curtain in trivial case Case by case approach State v. Oliver

  13. Barrier to change Stare decisis Follows past rulings Tradition bound/past oriented Change agent Distinguishes past case Modifies and overrules past holdings Precedent-is both…..

  14. Today • What remnants of this precedent is left? • Reluctance of courts to regulate family violence • Legitimacy of notion of parental discipline and right to punish • Idea of family privacy vs. State intervention

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