Case Law

Case Jaw, or common law, is based on the concept of precedent and the doctrine of stare decisis, which means "to stand by decisions and not to disturb what is settled".This means that the case has established a precedent. The doctrine of stare decisis must be contrasted with the concept of res adjudicata, which means that the "thing has been decided". Res adjudicata applies when, between the parties themselves, the matter is closed at the conclusion of the lawsuit. The losing party cannot again ask a court to decide the dispute. Stare decisis means that a court of competent jurisdiction has decided a controversy and has, in a written opinion, set forth the rule or principle that formed the basis for its decision, so that rule or principle will be followed by the court In deciding subsequent cases. Likewise, subordinate courts in the same jurisdiction will be bound by the rule of law set forth in the decision.

Stare decisis, then, affects persons who are not parties to the lawsuit, but res adjudicata applies only to the parties involved. Stare decisis provides both certainty and predictability to the law. It is also expedient. Through reliance upon precedent established in prior cases the common law has resolved many legal issues and brought stability into many areas of the law, such as the law of contracts. The doctrine of stare decisis provides a system wherein a businessman may act in a certain way with confidence that his action will have a certain legal effect. People can rely on prior decisions and, knowing the legal significance of their action, act accordingly. There is reasonable certainty as to the results of conduct. Courts usually hesitate to renounce precedent and generally assume that if a principle or rule of law announced in a former judicial decision is unfair or contrary to public policy, it will be changed by legislation. It is important to note that an unpopular court ruling can usually be changed or overruled by statute. Precedent has more force on trial courts than on courts of review; the latter have the power to make precedent in the first instance.

The common-law system as used in the United States has several inherent difficulties. First of all, the unbelievably large volume of judicial decisions, each possibly creating precedent, places "the law" beyond the actual knowledge of lawyers, let alone laymen. Large Law firms employ lawyers whose sole task is to search the case reports for "the law" to be used in lawsuits and in advising their clients. Legal research involves the examination of cases in hundreds of volumes. Because the total body of ruling case law is beyond the grasp of lawyers, it is obvious that laymen who are supposed to know the law and govern their conduct accordingly do not know the law and cannot always follow it, even with the advice of legal counsel.

2851 symbols

Не знайшли потрібну інформацію? Скористайтесь пошуком google:

Генерація сторінки за: 0.004 сек.