1. Describe these two judicial philosophies. Judicial Activism is when judges/courts do not strictly stick to the interpretation of a law, but create a new one. Easily explained, when an issue is being ruled upon, courts establish a new law to rule broadly on the issue rather than limit their verdict. A lot of magistrates go beyond the constitution and statutes words and use their own political and personal thoughts.
Adjudication Types A. Formal 1. Adjudication is similar to a court trial. It is the way that agencies decide on situations brought forward for review. Review will take place until a fair decision can be made.
However they do have the ability to make suggestions to possibly amend the law through highlighting flaws. The judiciary cannot make judgments past the jurisdiction of the law even in interests of natural justice. A strong example of this was the Belmarsh Case, where judges believed the system of holding foreigners against the will under the anti-terrorism act contradicted with human rights. This law was subsequently changed. This could pose some doubt as to the judges power, as although they can not officially change laws, they clearly have the power to suggest changes with ease, and some could argue that despite Lord Neuberger’s claims, they do indeed undermine parliamentary sovereignty through their suggestion of changes.
Statutes are created when original court cases are heard and ruled upon. Case law is created by rulings that are a result of examining statutes. Case law can either uphold the original statute or strike it down. Case law turns out to be an interpretation, or a “second look” at statutes, determining whether or not they uphold the U.S. Constitution. It seems to me that statutes can be either struck down after interpretation or continue to be enforced.
Policy is an important consideration for the courts to decide the duty owed by defendants. Lord Bridge suggested that it should be fair, just and reasonable when imposing duty on defendant. It is thought that the imposition of a duty solely base on foreseeability of damage is not desirable. As Winfield and Jolowicz suggests that “the court must decide not simply whether there is or is not a duty, but whether there should or should not be one.” For the purpose of this essay, I will discuss how policy can influence the imposition of duty. The most important policy concern has always been the “floodgates argument”.
Will it make a difference if courts begin to analyze a particular legal problem under the rubric of one doctrine rather than another? In theory, new doctrinal lenses should bring different features of the problem into focus, and this should in turn lead judges to form different impressions of how the problem ought to be resolved. The Ontario Court of Appeal’s recent decision in Birch v. Union of Taxation Employees, Local 70030 casts doubt on this hypothesis.1 The majority’s decision in the case suggests that changing the doctrine used to analyze the enforceability of stipulated remedies will not necessarily affect the outcomes of future cases. Changing outcomes may require a more fundamental shift in judges’ understandings of stipulated remedies and their role in contractual relationships. Birch was preceded by a path-breaking line of cases in which Canadian appellate courts signalled their willingness to depart from the strict common law rule against enforcing a stipulated remedy that amounts to a penalty rather than a genuine pre-estimate of damages.2 Those cases marked a positive development in Canadian contract law, as adherence to the traditional rule against penalty clauses is difficult to justify.
To the extent that expert evidence relies upon an earlier report, the report will be hearsay. However, as per section 127, it may be admissible, but Running head: UNIT 4 ASSIGNMENT 7 only if the person who provided the original information can reasonably be supposed to have had personal knowledge of the matters stated. When expert evidence relies on such a statement, notice must be given to the defence, who must be given the name and address of the person whose statement is relied upon. The defence will then have an opportunity to object and where this occurs, the court must decide whether it is in the interests of justice to permit the expert to base his or her conclusion on the hearsay statement, or whether the supplier of the original information should also be called as a
What is a case of first impression?! — Binding authority is any source of law that a court must follow when deciding a case. Persuasive authority is when court review persuasive precedents when no binding authority exist.! —Courts can depart from precedents if the precedent is based on a clearly erroneous application of the law. When there is no precedent to base a decision is called first impression.
An example is when the Miranda Doctrine is not observed upon arresting, the right of self-incrimination may be invoked so as for the evidences against the defense be inadmissible. In order for the Miranda Doctrine to be validly executed, such must be stated in the presence of the counsel for the defense. Such doctrine may be waived, but must be made with utmost knowledge of its consequences (Israel et al, 1993). Although both Fifth and Sixth Amendments embody significant rights for the citizens, it still has differences, one of which is that pertaining to the inquiries pertaining to the case is not allowed in the Fifth Amendment. The Sixth amendment protects the accused upon the case against him.
A defendant must be represented; however, they do not have the right to choose which counsel they will receive. The attorney must be knowledgeable and competent, but there cannot be any preferential treatment of one lawyer over another based on reputation or perceived abilities of counsel. As long as the attorney has proven to be effective in representing the case, the defendant must be represented by them. Defendants may be able to show just cause about preferring to self-represent, but again, they must show a clear understanding in making the decision to refuse counsel for their case (Tomkovicz, 2002). There are many other limitations of right to counsel, they include the period that is referred to as “noncritical stages”.