how do judges decide on cases in new areas of the law with no legal precedent? course hero

How do judges interpret the law in higher courts?

Higher courts are often called upon to make very difficult decisions about how the law should be interpreted in the future. How judges interpret the law in these situations often depends not only on their political philosophy but their legal philosophy as well.

Can a court make a ruling without precedent?

Your question is a bit poorly phrased, because you're misusing 'common law'. The Common Law (in the systems that use that term) doesn't refer to courts making rulings without precedent, but rather the courts employing law as written by the courts as opposed to by statute.

What is the difference between case law and precedent?

These past decisions are called "case law", or precedent. A precedent is an act or instance that may serve as an example or justification for subsequent situations. It is a legal decision serving as an authoritative rule or pattern in similar cases that follow. Preced

What is the value of trial court decisions as precedent?

So, the way this works is that the decisions of the trial courts have zero value as precedent.

What does a court do when there is no precedent?

There are times, however, when a court has no precedents to rely on. In these "cases of first impression," a court may have to draw analogies to other areas of the law to justify its decision. Once decided, this decision becomes precedential. Appellate courts typically create precedent.

Can a judge not follow precedent?

No federal judge has ever been disciplined in either manner for failure to apply precedent. Judges have been impeached for failure to preside due to insanity (Charles Pickering in 1804), treason (West Hughes Humphreys in 1862), and sexual misconduct (Samuel Kent, who resigned from office on June 24).

Do judges have to use precedent?

First, judges must follow the precedent cases. If they do not, then it is impossible to predict what the law is. The second is that with hundreds of cases being decided every day, it is hard to keep up with the relevant decision.

Which factor influences a judges decision the most?

The decision of the judge, if it is not obvious, is influenced by many factors: weather, mood, traffic jams and red light at the last traffic light on the way to work. The appearance is a very significant factor.

How can judges avoid binding precedent?

In order to avoid following precedent, higher courts must meet certain criteria, so that judicial precedent as a system remains intact. One way of departing from a previous decision is to have the past decision declared as 'mistaken'.

When courts overturn precedent and create new precedent?

When courts overturn precedent and create new precedent, they are obeying the principle of stare decisis.

How do judges use precedent when deciding a case?

Precedent is incorporated into the doctrine of stare decisis and requires courts to apply the law in the same manner to cases with the same facts. Some judges have stated that precedent ensures that individuals in similar situations are treated alike instead of based on a particular judge's personal views.

Do judges make the law precedent?

The term “case law” applies not only to single decisions by courts, but also to the extent to which subsequent decisions by those courts and others affirm and/or reverse prior decisions. Thus, judges are in the position of being able to base their decisions on precedents.

How do courts set precedent?

In common law, a precedent is a legal rule established through prior court cases that subsequent courts may follow when making decisions on cases with similar issues or facts. The term may also be used to refer to the body of case law that as a whole provides guidelines for judges to interpret the law.

On what basis does a judge decide a case?

The judge decides whether the accused person is guilty or innocent on the basis of the evidence presented and in accordance with the law. If the accused is convicted, then the judge pronounces the sentence.

What influences a judge's decision in a case?

5 To Haines, the factors most likely to influence judicial decisions are: (1) "direct influences" which include: (a) legal and political experiences; (b) political affiliations and opinions; and (c) intellectual and temperamental traits; and (2) "indirect and remote influences" which include: (a) legal and general ...

What do judges base their decisions on?

Reading cases, analyzing the facts and the law, and assessing how a prior case may help decide the controversy is an integral part of how a judge makes a decision. But sometimes there is no decision on point, or the cases simply do not contemplate the fact situation before the court for resolution.

Who said judges are neutral enforcers of law?

They are making economic policy. Thus, as Professor Matthew Stephenson ’03 asserts, it is in the interest of those who study economics to consider how those decisions are made. “It would be a mistake, if you were an economist trying to understand how economic policy worked, to assume that judges are merely neutral enforcers of law,” says Stephenson.

What is legal realism?

Legal Realism looks for patterns in judicial decisions beyond formal rules or ideology. In the paper, he describes the Realist idea of legal constraint, the belief that while judges could use law to justify nearly any result, they also are constrained by legal sources and principles.