Precedent and Doctrine in a Complicated World

2017 ◽  
Vol 111 (1) ◽  
pp. 184-203 ◽  
Author(s):  
STEVEN CALLANDER ◽  
TOM S. CLARK

Courts resolve individual disputes and create principles of law to justify their decisions and guide the resolution of future cases. Those tasks present informational challenges that affect the whole judicial process. Judges must simultaneously learn about (1) the particular facts and legal implications of any dispute; (2) discover the doctrine that appropriately resolves the dispute; and (3) attempt to articulate those rules in the context of a single case so that future courts may reason from past cases. We propose a model of judicial learning and decision making in which there is a complicated relationship between facts and legal outcomes. The model has implications for many of the important questions in the judicial process, including the dynamics of common law development, the path-dependent nature of the law, and optimal case selection by supervisory courts.

FIAT JUSTISIA ◽  
2017 ◽  
Vol 10 (1) ◽  
Author(s):  
Desi Indriani

The criminal law policy of the authority restriction in investigation against the notary is at the stage of policy formulation of the law provided authority Honorary Council of Notaries in the proceedings against the notary is to give consent to the investigator, prosecutor or judge to take copies Minuta Deed and / or letters attached to Minuta Deed or the Protocol Notary Notaries in storage. The legal implications for restricting the authority in the investigation of the Notary of the proceedings for the notary is not in accordance with equality of citizens before the law should not discriminate between the treatments of nationals who commit criminal acts. Additionally, Notary Honorary Council approval is also contrary to the principle of independence in the judicial process. Keywords: Policy, Restriction Authority, Notary


2001 ◽  
Vol 7 (5) ◽  
pp. 381-387 ◽  
Author(s):  
Donna Dickenson

What does it mean to respect autonomy and encourage meaningful consent to treatment in the case of patients who have dementia or are otherwise incompetent? This question has been thrown into sharp relief by the Law Lords' decision in R.v Bournewood Community and Mental Health NHS Trust, ex parte L (1998). The effect of the Law Lords' ruling in the Bournewood judgment is to reinforce problematic and serious anomalies in the way we view patients whose competence is in doubt because of their mental disorder. Others, such as relatives and informal carers, are frequently allowed to decide on behalf of adults whose competence is doubtful in a way that English law generally abhors, even for totally incompetent patients in a persistent vegetative state. This raises profound questions about autonomy. And incompetent adults' consent to treatment is not required to be of the same quality as it is for the rest of us: mere absence of resistance will do. This paper will explore the philosophical, jurisprudential and legal implications of this difference. Throughout I will be more concerned with the ramifications of a finding of incapacity than with how such a finding is made (for the latter, see such classic texts as Applebaum & Roth (1982), Grisso & Applebaum (1998) and Bellhouse et al (2001)).


Author(s):  
Michael Gunn ◽  
Kay Wheat

This chapter provides a scheme for assisting in the analysis of two areas of law that provide some of the general principles which operate in relation to offenders with mental disorder. These two areas are (a) the law concerning decision-making and other action taking to which the concept of competence is crucial; and (b) the law of responsibility in relation to liability for criminal offences and the tort of negligence. Whilst the focus of the chapter is on the law of England and Wales, it is clear that there are similarities in other common law jurisdictions, and in other jurisdictions that have borrowed ideas from common law jurisdiction, such as Japan, in relation to the concept of informed consent.


1989 ◽  
Vol 48 (1) ◽  
pp. 115-134 ◽  
Author(s):  
James G. Logie

One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”


2018 ◽  
Vol 5 (1) ◽  
Author(s):  
Sofyan Wimbo Agung Pradnyawan ◽  
Hartiwiningsih , ◽  
Hari Purwadi

<p>Abstract<br />This article intends to analyze the use of the jury system in the criminal justice system of Indonesia, jury is a form of lay participation or the participation of lay that community of professional non-law in the the role of judges is absolute in the criminal justice process, in the legal system of modern states today dichotomy between legal systems tradition of common law or civil law is fading and towards the tendency make changes conceptually to the criminal justice system, so that the judicial process drab dominated the role of judges is great where law and justice seems to be the monopoly of a judge, the role of judges research using law approach, conceptual, and comparative law. The results of this study is that morality is the essence of a sense of justice in society, morality can not be separated from the law, because morality is is what is considered correct by the general public, so the public will view the law as something that has no authority and can not be trusted, when morality is left in any decision of the judge in criminal judicial institutions that exist, because the inclusion of jury in the criminal justice system to prosecute local is the living law in automatically entered in every decision, every decision so it is possible to better meet the sense of justice in society.</p><p>Keyword: jury, society, the criminal justice system</p><p>Abstrak<br />Artikel ini bermaksud menganalisis mengenai penggunaan sistem peradilan jurypada sistem peradilan pidana Indonesia, jury adalah wujud dari lay participation atau partisipasi awam yaitu masyarakat dari professional  non hukum  didalam  peradilan, untuk  memberikan putusan  yang lebih  memenuhi  rasa keadilan didalam masyarakat, untuk menghindari peran hakim yang absolut dalam proses peradilan pidana, dalam sistem hukum negara-negara modern saat ini dikotomi antara sistem hukum tradisi common law atau civil law semakin memudar dan menuju kecenderungan untuk mencampurkan kedua sistem hukum tersebut demi menemukan keadilan substantif dalam proses peradilan. Indonesia tidak pernah melakukan perubahan secara konseptual pada sistem peradilan pidananya, sehingga proses peradilan yang menjemukan yang didominasi peran hakim yang besar dimana hukum dan keadilan seolah-olah aspek hukumnya dalam mengadili, Penelitian hukum ini menggunakan pendekatan perundang-undangan, konseptual, dan perbandingan hukum. Hasil penelitian ini adalah bahwa moralitas adalah esensi dari rasa keadilan didalam masyarakat, moralitas tidak bisa dipisahkan dari hukum, sebab moralitas adalah adalah apa yang dianggap benar oleh masyarakat secara umum, sehingga masyarakat akan memandang hukum sebagai sesuatu yang tidak memiliki wibawa dan tidak dapat dipercaya, saat moralitas ditinggalkan didalam setiap putusan hakim didalam peradilan pidana. Memasukkanjury didalam sistem peradilan mampu meningkatkan tingkat kepercayaan masyarakat terhadap hukum dan institusi peradilan yang ada, sebab dengan dimasukkannya jury didalam sistem peradilan pidana untuk mengadili dalam aspek <br />the living law secara otomatis masuk didalam setiap putusan, sehingga dimungkinkan setiap putusan lebih dapat memenuhi rasa keadilan didalam masyarakat.</p><p>Kata kunci: jury, masyarakat, sistem peradilan pidana</p>


Author(s):  
Anne Barlow

This chapter draws on nationally representative research from the British Social Attitudes Survey 2019, to explore the differences between the legal expectations and lived experiences of cohabitants. It demonstrates that the ‘common law marriage myth’ remains pervasive, questioning assumption of conscious, mutual and autonomous relationship decision making, and compares this with Muslim marriage myths. It then discusses how the law should respond.


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