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LS101 - Sept.24.doc

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University of Waterloo
Legal Studies
LS 101
Frances Chapman

LS 101 - Sept.24 24/09/2007 19:54:00 ← HISTORY OF LAW ← ← *dates and names will not be relevant for the exam, although the general flow will be required ← ← Stare decisis (LATIN TERMS, STATUTES IN ITALICS) • To stand by decided cases, must follow that precedent • Lends to consistency and predictability • Judges were not making law but discovering legal principles that were already there and coming to a just decision • Therefore, all judges after were bound by that decision ← ← Ratio Decidendi • E.g. ‘There is no property in a witness’ (both sides can question the same witness) • The ‘ratio’ or principle of the case • Final judgment in a case is often the ratio (*read a case online*) • E.g. Donoghue vs. Stevenson o First real product liability case where a woman found a decomposing snail at the bottom of a ginger ale bottle o Ratio: a person owes a duty of a care to those who can be reasonably foreseen to have….(finish) • Ratio is the only body of the case that is binding – which is why it is often such a heated point of discussion ← ← *R v. Chapman would be said “The Crown and Chapman” (v. = and, NOT versus) ← ← Obiter Dicta • Words in passing that the judge says • Everything around the ratio is called obiter (for short) • None of it is binding, although it can be persuasive • Foreign law can be persuasive to our law in Canada although it is not binding • If nothing in Canada explains a case here, the first country that will be looked at is the UK and British cases can have an influence on decisions • American cases are difficult to apply because each state has its own criminal law ← ← Ultra Vires • Going outside of your jurisdiction – will be said to be ultra vires • Administrative tribunals ← ← Distinguishing the cases • If there are many cases that oppose your position, and you need to get around precedent, it is necessary to prove that your case is different • Not overruling the other cases but showing that your case is differe ← ← Supreme Court of Canada is binding on all the provinces. ← Court of Appeal is specific to provinces and its decisions will be binding in its own province (only persuasive in other provinces) ← ← Precedents • Advantages o Predictable o Practical o Can make small, incremental changes (can change the decision slightly over different cases – small changes can
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