Exam 3: How Law Is Made: Precedentstatute Law

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There are several ways in which a lawyer might attempt to manipulate the system of precedent in Australian trials to obtain a desired result for their client. One way is through distinguishing the facts of the current case from the facts of the precedent case. By arguing that the current case has unique circumstances that warrant a different outcome, a lawyer may be able to persuade the court to depart from the precedent.

Another tactic is to challenge the validity of the precedent itself. Lawyers may argue that the precedent was decided incorrectly or that it is no longer applicable due to changes in societal norms or legal principles. This can be done by presenting new evidence or legal arguments that undermine the reasoning behind the precedent.

Lawyers may also seek to influence the development of precedent by strategically choosing which cases to bring before the courts. By selecting cases with favorable facts and legal issues, lawyers can attempt to shape the direction of future precedent in a way that benefits their clients.

Additionally, lawyers may engage in forum shopping, which involves strategically choosing the court in which to bring a case based on the likelihood of obtaining a favorable precedent. By selecting a court with a history of issuing decisions that align with their client's interests, lawyers can increase the chances of obtaining a desired result.

It is important to note that while these tactics may be used to influence the application of precedent, they must be done within the bounds of ethical and professional conduct. Ultimately, the manipulation of precedent should be done in service of advocating for the best interests of the client within the confines of the law.

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Listed below are some of the arguments that are advanced for and against the system of judicial precedent.
Advantages
1.Precedent provides a firm basis on which the law can be developed.
2.Precedent encourages the development of the law in a consistent and coherent basis as principles are developed gradually.
3.The doctrine of precedent encourages the development of principles which are appropriate in similar fact situations and social circumstances at the time.
4.Old cases retain authority and can be developed in later cases.
5.Precedent encourages predictability because people know that they can act in the confidence that what was decided yesterday ought to apply today.
6.Following on from predictability,precedent also encourages fairness and equality because again people know that if a person was dealt with in a certain way yesterday,then today they ought to be dealt with in the same way.
7.The obligation to follow precedent encourages impersonality in decision-making by minimising the opportunity for the exercise of personal discretion or bias,as well as protecting the judge from professional criticism,and therefore encourages efficient operation of the legal system.
Disadvantages
1.Precedent is resistant to sudden change.Once a principle has been established,it is very difficult to change it quickly to meet changing community attitudes and social conditions.
2.Where an inappropriate principle of law has been established by the highest court in the hierarchy,only that court or parliament has the power to change that principle.Lower courts will,however,remain bound by the decision of the higher court if they can't distinguish the earlier case and if parliament doesn't change the law.The litigant then has to go to considerable expense through the appeal process to try to have the earlier principle overruled.
3.The courts are often reluctant to overturn a body of 'settled' law,even where the law may now be regarded as being unsatisfactory because of changing social or legal conditions.
4.Precedent encourages a great deal of time-wasting in court in argument as to the True meaning or scope of a particular rule.
5.Precedent does not encourage certainty because sometimes it is difficult to precisely define the ratio of a case or to know exactly how far to extend the application of a decision.
6.The practice of distinguishing prior decisions can discredit a good deal of the certainty claimed for the doctrine of precedent.
7.Certainty in the operation of the law and flexibility are in some ways incompatible.