Week 9 – November 9 2011
Stare Decisis – exam question
Anatomy of a judicial decision
• We need to recognize that every case is different – no crime is exactly the same, so precedent can’t really
apply if were talking about facts
• 2 basic parts of a case; Ratio decidendi; supposed to find out the main reason, Obiter dictum; outside the
decision. It’s very hard to find these parts; obiter can be quite persuasive, having a distinction between
obiter and ratio. Precedent has to do with the level of court, it doesn’t work bottom to top, it’s more top to
Atiyah – Doctrine of Precedent
• 2 limitations; in practice it’s messy “blurry”; in court cases, the ratio of decision, the reason for deciding
may not be clear, not easy to find, may not necessarily be complimentary – slightly contradictory.Another
limitation; higher courts in our system, we don’t rely on single judges, we rely on a panel of judges, at the
appeal level and above, there’s always more than one judge, there may be actual multiple reasons as to why
the case was decided, the decisions can be really complicated. Multiple judges – multiple ratio. Clear in
theory, difficult in practice.
Llewelyn and the Realist take…
• We need to understand what precedent is; “strict view”; orthodox view, narrow view of a decision – you’d
use this approach for an “un-welcome” precedent. “Loose view”; broad
• “Janus-faced”; multiple faces; at least 2 faces; looking ahead and looking behind; there’s 2 things going on.
Adjudication – week 9
Dispute Resolution (v. management)
• When we talk about adjudication we’re just talking about the formal process of the court.
• The processes are different in criminal and civil court; but they both focus on the rights and duties of the
people involved; not necessarily interested in social outcomes
• Vago and Nelson think courts are only one type of resolution
• Informal things can range from negotiation to something as violent as dueling.
• The court is a win or lose game; in many cases there is losers and losers, the only person that every win in a
case is the lawyer.
• The formal process may make things worse.
• Mnookin – “private ordering”
• Some aspects of resolution are community – based; informal mechanism to get you back into the
community, our system is much more formal.
• It’s important to see both formal and informal process.
Lempert on Role
• Establish Norms
• Increase Costs
• Educative function; you have to articulate what really is the problem, educate you to recognize a set of
• Court staff mediate encourage settlement
• Narrow decisions; get to the heart of the matter, narrow down your interests which may actually promote
agreement. • End cases – (not) resolution; courts don’t necessarily solve disputes, but they always end them.
Reality of the Court’s Role
• The actual court process isn’t necessarily the main role; they push as a threat to get a settlement.
• What contracts provide is a common group where business can deal with each other
• Shadow of law
• The operate through a variety of styles; TREATMENT; becomes one of the primary functions of the