Persuasive precedent is a decision of a lower court which may influence the higher court, where the legal facts are similar or slightly different. It may also be made by the Judicial Committee of the Privy Council, another jurisdiction or things said obiter. The Supreme Court binds all lower courts and generally binds itself due to London Tramways Co v London County Council 1898. The Practice Statement 1966 says that following precedent is a good thing as it enables us to know exactly what the law is and we can behave accordingly. Despite this, it is stated that following precedent too rigidly may cause an injustice.
MEMORANDUM TO: FROM: DATE: RE: QUESTION PRESENTED Whether a cause of action for inadmissibility to the United States under section 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act (the Act), which prohibits admission for aliens deemed to have a unlawful presence in the United States for more than one year and seeking readmission within ten years of departure, will be sustained if there exist, at a minimum, a extreme hardship to the applicant and family if deportation is allowed. BRIEF ANSWER The action for inadmissibility will likely be overturned if the applicant can prove an extreme hardship will result to s/he or the family if deportation is allowed to occur because… DISCUSSION In Gastelum-Quinones v. Kennedy the Supreme Court described deportation as “a drastic sanction, one which can destroy lives and disrupts families” 374 U.S. 469, 479 (1963). In 1936 the Commissioner of Immigration cited nearly 3,000 cases under consideration, which involved ‘such incredibly cruel family separations…so repugnant to every American principle of justice and humanity that deportation was stayed until Congress might take some action.’ Joint Hearings on S. 716, H.R. 2379 & H.R. 2816 Before the Subcomm.
“Stare decisis” literally means “to stand by decided matters”. This phrase “stare decisis” is an abbreviation of the Latin words “stare decisis et non quieta movere” which implies “to stand by decisions and not to disturb settled matters”. According to this doctrine, the decisions passed at a higher court within the same jurisdiction provincials, act as binding authority on a lower court within that same jurisdiction. The decisions of a court of another jurisdiction only act as persuasive authority. The court, therefore, will dismiss the case when the doctrine is applied since the defendant will argue their case based on the persuasiveness of the lower court or private court’s rulings.
Additional requirement for admissibility of multiple hearsay A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless: either of the statements is admissible or all the parties to the proceedings agree; or the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose. ‘Hearsay statement’ means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it. Memory refreshing A witness giving oral evidence in court may use a document to refresh his or her memory, provided that the document was made (or verified) by him at an earlier time, and provided: he states that the document records his recollections of the matter at that earlier time and his recollection of the matter is likely to have been significantly better at the time the document was made, than at the time of his oral evidence. Running head: UNIT 5 ASSIGNMENT 10
April 2010, Arizona enacted two laws addressing immigration, SB 1070 and HB 2162. These laws added new state requirements, crimes and penalties related to enforcement of immigration laws and were to become effective on July 29, 2010. Before the laws could go into effect, the U.S. Department of Justice filed a lawsuit asking for an injunction against these laws arguing that they are unconstitutional. On July 28, Judge Bolton granted the request for injunction in part and enjoined those provisions related to state law officers determining immigration status during any lawful stop; the requirement to carry alien registration documents; the prohibition on applying for work if unauthorized; and permission for warrantless arrests if there is probable cause the offense would make the person is removable from the United States. Arizona Governor Jan Brewer appealed the injunction and arguments were heard by the 9th U.S.
So then in November 2009 M International filed a Notice of Appeal with the Court of Appeals. The Court of Appeals issued a ruling in favor of M International in December 2010 which reversed the lower court’s ruling on the previous claim that was filed by and ruled in favor of W Inc. So this meant that the Court of Appeals overturned the jury verdict and the judgment of the $18.5 million that required M International to pay to W Inc. Being against this overturned verdict, W Inc. filed a petition for a re-hearing on January 6, 2011 to speak before the same panel of appellate judges in the Court of Appeals to insist a reversal of the ruling. On February 10, 2011 the appellate judges denied the petition for W Inc. to have a re-hearing.
This clearly shows an effective protection of liberty by judges. Furthermore, a vital protection of liberties can be exercised via judicial review. Judicial review is a process that is conducted in the Supreme Court that hears an appeal over lawfulness of a case. It is not focused on the rights and wrongs of a case, this would be a case for appeal courts following the above methods, judicial review is simply an examination of the lawfulness of a case. For example, in the case of Home Secretary v. AP 2010 an appeal allowing the government to detain AP on a control order
The protective principle: 4. Disciplinary Principle: - Evidence law is principally about the search for the truth but sometimes needs to be changed to protect people and to look at the purpose of the people. - In relation to this particular act – the government have said that the main objectives of this act are to set in place rules that allow any information that is reliable/likely to lead to the right outcome and relevant (so we don’t let in anything) unless the information will unfairly prejudice a person involved in the court proceeding → seems to embody most objectives except the disciplinary principle. - NB: when unclear about the way evidence law ought to apply in particular scenario, refer to the 3 objectives to determine what outcome would advance the goals in this scenario. Longman warnings: Source: http://www.alrc.gov.au/publications/28.%20Other%20Trial%20Processes/longman-warning 8.36 In Longman,[54] a complaint was made more than 20 years after the alleged offence.
In addition, relative to confessions, they are not legitimate if the person’s fourth amendment rights violated because of coercion. The fifth Amendment self-incrimination right includes that no person may be obligated to be a witness against him or her. The sixth Amendment represents a person’s right to counsel and is the right to counsel if one cannot afford counsel the court will provide one for them. The free and voluntary rule is comprised of the 14th Amendment due process clause and 5th Amendment clause, the dominant test for the law of confessions. The free and voluntary rule comprised of the 14th Amendment due process clause the Fifth Amendment clause, the prevailing test representing the law of confessions.
This bill allows the President of the United States the right to establish and conduct the military to try people that were being held by the U.S In fact , the Act takes away the right of "unlawful enemy combatants" to have writs of habeas corpus. The Act only actually suspends the accused, right to present writs of habeas corpus until after their trial. President Abraham Lincoln ordered the suspension of the constitutionally protected right to writs of habeas corpus in 1861, shortly after the start of the American Civil War. According to the Democratic Underground.com, Abraham Lincoln said, “"Second. That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission."