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Links 4/10/2011: Next Ubuntu Imminent, OpenEMR 4.1
Posted in News Roundup at 5:59 am by Dr. Roy Schestowitz
How Linux is advancing astronomy
Head into the professional world of astronomy, though, and Linux machines are ubiquitous. Speaking to science colleagues, fellow developers and reading this very magazine, it becomes clear that there are a wealth of options out there for avid stargazers and the same names and distros crop up again and again.
Flexibility of GNU/Linux
I have often used GNU/Linux to examine systems for many reasons: hardware identification, testing, rescuing data from hard drives, and installation, of course. KNOPPIX is often used but SystemRescueCD is designed for the purpose and has a ton of great features such as chNTpass and memtest. Then there is CloneZilla which does efficient disc imaging to/from a device or a server and, with a server, multicasting. The world is "solution-rich" with GNU/Linux.
Open Source: Niche Markets, Linux and Microsoft
If you are a Linux protagonist who has been around as long as, or longer than, I have, you have seen responses like these over and over as to why Linux distributions will never go mainstream on the PC desktop:
* "Linux will always remain a niche platform because it does not have a native release of Adobe (Photoshop / Creative Suite / etcetera)!"
* "Linux does not have Microsoft Office and Microsoft Office power users require Microsoft Office!"
* "The web portal at (insert portal here) needs Internet Explorer. There is no native release of Internet Explorer for Linux, so no one will want to use Linux!"
* "Program X does not have a Linux version or equivalent!"
* Or other claims along the same lines …
To me this suggests that the Microsoft platform is the niche platform:
* Do you "need" Adobe (Photoshop / Creative Suite / etcetera) for your job? Then you are a niche user.
* Do you "need" Microsoft Office because you are a "power user"? Then you are a niche user.
* Do you "need" access to an IE only web portal? Then you are a niche user.
* Do you "need" to run Program X on your PC? Then you are a niche user.
It was true for me up until a certain point. Things changed when Knoppix Live CD was released by Klaus Knopper in 2000.
Gummersbach: 'Open source desktops much easier to manage'
Easier management is one of the main reasons for the German city of Gummersbach to switch its almost 350 PCs to the open source operating system GNU/Linux, a move that began already four years ago. One of the IT administrators, Dirk Hennrichs: "Our Linux desktops need close to zero maintenance, making them light years easier to manage than their proprietary predecessor."
Following the move to GNU/Linux, time spent on desktop maintenance was rationalised by one full time equivalent. Hennrichs: "Had the city stayed with the proprietary alternative, it would force us to increase the number of IT administrators."
Flashdrive Linux Saves the Day
As I have mentioned previously on this blog, I never go anywhere without a bootable Linux flashdrive. The fact that Linux is so portable is one of my favorite things about it. I have at various times kept Fedora, Linux Mint, and Puppy on my flashdrive, but for the last couple months, my mobile distro of choice has been Knoppix.
Mad Dog 21/21: Bier Or Hospice, That Persistent Thirst For Legacy
It's possible–and I think likely–that IBM could not sustain either legacy business, and particularly the mainframe legacy portion, without the highly visible z/Linux offering. Unfortunately for IBM, a key technological capability that distinguished z/Linux from rivals in the form of non-z servers, is losing its advantage.
Linux on Mainframes – an IBM update
IBM presented an update on Linux on its mainframe line of computers. It was refreshing to learn about the success Linux has been having outside of the realm of industry standard X86-based systems. Here's a quick summary of the session.
Kernel Space
Btrfs File-System For Old Computers?
Recently I published benchmarks of Btrfs from a Serial ATA 3.0 SSD (the excellent OCZ Vertex 3 SSD) and those results were interesting, but most people aren't running 6Gb/s solid-state drives, so how does this next-generation file-system perform on the opposite end of the spectrum? In this article are EXT4 and Btrfs benchmarks from an old Core Duo notebook with a 5400RPM mobile hard drive.
Infos: The Humble Frozen Synapse Bundle
Sometimes it's useful to work offline, and once the article it's finished publish it on your Blog.
yes you can do it with an html editor, or also with a simple text editor like Vi or Emacs, but there are specialized programs that can ease your work of publishing and management of your online Blog.
4 Windows Applications That Originated On Linux
We all know that, as the most widely used operating system, Windows has the largest collection of software. Whenever a developer wants to create a new program, they're more than likely going to choose Windows as their first (or only) supported platform. That way the developer can reach the maximum number of people that would use the software.
Native Netflix Client Coming to Linux 'In The Next 12 Months'
As a Brit the whole "Netflix" phenomenon has largely passed me by, but I do know that Linux support for the on-demand video-streaming service is a long-held 'want' for many readers.
Instructionals/Technical
How to Sync Calendar and Contacts with Google in Evolution
Set up Spice-Gtk-0.7.4X (USB redirection support), LibUsbredir 0.3.1, Qemu-kvm-0.15.0 +noroms(spice enabled), Spice Server&Client 0.9.1 on Ubuntu 11.10
Intrusion detection systems : Using tripwire on Linux
Serving CGI Scripts With Nginx On Debian Squeeze/Ubuntu 11.04
High quality MPEG-4 transcoding with Mencoder
Announcing Ensign 1!
Ensign 1 is a new game idea from the people who gave us the awesome 2D/3D game Helena the Third! (go buy that one now, it's good!).
Linux Game Preview: AirMech, New Action/RTS Hybrid Game
From Doom to RAGE: 20 years of id development
Kot-in-Action Interview!
AirMech is an upcoming top down shooter, real time strategy hybrid game by Carbon Games Studio. The first gameplay footage was shown at PAX 2011 and since then it has garnered quite good response from viewers.
The Top 5 Real Time Strategy Games for Linux | Game on!
Gaming in Linux is still in its infancy when compared to Windows although that gap is closing as Linux games start to emerge and the popularity of Linux itself gathers momentum. You can choose the middle path of running your favourite Windows games in Linux by using wine or go native. There are a decent collection of RTS games in Linux. Some of the games have been around for a while others like 0 AD have been relative necomers to the area. Have a look at some of the best (IOO) RTS Games that run natively in Linux
K Desktop Environment/KDE SC)
KDE to Say Buh-Bye to Screensavers
Developers are addressing a security "constraint" in KDE's screen-locking routine, which I guess some folks may welcome. But as a result, screensavers will be rendered inoperative. They hope to include a fallback in 4.8, but will remove that in 4.9. Martin Graesslin says they wish to replace the current engine with a "new solution" built using Qt Quick and they hope users will start to contribute new screensavers.
GNOME Desktop
GNOME 3′s Default Wallpaper – Ubuntu Style
Whether or not you're a fan of GNOME 3′s default 'stripy blue' wallpaper there's no denying that it is striking.
If you plan on using GNOME Shell in Ubuntu 11.10 (it's just a click away) – or if you've made the ultimate sacrifice and have it installed it in 11.04 – the following Ubuntu-flavoured variant of GNOME's default wallpaper can add some Ubuntu-flavoured purple warmth back to your desktop.
GNOME 3.x Revisted
The last time I tried both of GNOME 3′s official ISOs, things didn't go as planned. But the recently released 3.2 version deserved another chance, seeing its apparent slew of new features. I downloaded the 946 MBs of data, burnt it and booted from it. This time around, the live environment loaded up pretty quickly and with, I'm happy to report, 0 errors or hiccups. Yay! The "revolutionized" interface worked as expected and I was able to rapidly get to the "Live Install" button that was sitting boldly on top inside "Activities". Oh, the base for this GNOME 3 showcase is openSUSE. The installation process is quite easy to go through. As I chose to place the distro on my second HDD, I also wanted the bootloader to be installed on the same HDD, so as not to interfere with the primary drive arrangement. Sadly, and I tried several options, the bootloader wouldn't be correctly installed. I finally conceded and overwritten the main one.
Gnome 3.2 More Evolution than Revolution
One Year of Rolling with Arch/Bang
It's just a little over a year now that I first installed ArchBang with 2010.09 that had just been released. In comments to my following review a poster expressed the opinion it would be interesting to see how this would develop and if it would still be working in a year from then. So here we are. I've tweaked the install and kept it updated at my leisure, and it is still working fine. Over time the ArchBang base I started out with has turned into Arch Linux, as you would expect it to when pointing at Arch repositories.
A Review and Endorsement of Sabayon LXDE
Before moving to Lubuntu, I briefly gave Sabayon Xfce a spin. It was interesting, but there was a little bit more of a learning curve than I was prepared to commit to at the time.
But once I had my new machine working, I decided to try out Sabayon on the old one, a ThinkPad T43. Since I've fallen in love with LXDE as a desktop environment, I wanted to see Sabayon's take on it. I liked it so much on the T43, I wound up installing it on the T420, my everyday laptop.
Re: Rethinking the Linux distribution
Bundles are a great idea, actually, to solve the problem of 3rd party software developers (mostly proprietary) saying "I won't develop for Linux because packaging for each distro is too much work". But having a read only file system, and killing existing package management is just not the right solution. Making bundles the only way to install software destroys all advantages of a package management system.
I assume (mainly because I saw some gnome designers oppose to package management) that this is going to be the way you install software in GNOME OS. Am I right? Well, I hope at least you'll develop it as a freedesktop spec and not only in GNOME.
Softpedia Linux Weekly, Issue 167
· Announced Distro: Tiny Core Linux 4.0
· Announced Distro: DoudouLinux 1.1
Calculate Linux 11.9 released
Calculate Linux 11.9 has been released. All of our distributions are available for download: Calculate Directory Server (CDS), Calculate Linux Desktop with KDE (CLD), GNOME (CLDG) or XFCE (CLDX), Calculate Media Center (CMC), Calculate Linux Scratch (CLS) and Calculate Scratch Server (CSS).
PCLinuxOS/Mageia/Mandrake/Mandriva Family
They make Mageia: Samuel Verschelde
I discovered linux during my studies, in 2003. It was exciting to discover a whole new world I didn't know, having only used computers with Microsoft systems on them for many years. The first distribution I installed was Debian potatoe, and it probably wasn't the best choice for a beginner not familiar with unix command line
Then I used Red Hat for some time and finally settled to Mandrake in 2004.
Canonical/Ubuntu
Ubuntu Restores Xen, Adds Juju to Version 11.10
New Set of 14 Wallpapers for Ubuntu 11.10 is Perhaps the Best Collection Yet
Every Ubuntu release cycle churns out fresh new collection of wallpapers. These wallpapers are carefully chosen from a huge cache of user contributed images in Ubuntu Artwork Flickr pool. Oneiric release cycle is no different. 14 gorgeous new wallpapers have arrived in Ubuntu 11.10 Oneiric already and they are by far the best I have seen in any new Ubuntu release.
How Ubuntu is built: the inside story
Every six months we release a new version of Ubuntu. Each one brings together hundreds of developers, translators, testers and documentation writers to integrate the latest and greatest upstream applications, as well as new and innovative Ubuntu technologies.
Excited for Ubuntu Linux 11.10? The Official Countdown Has Begun
Among the new additions in that second beta version are a new kernel, now based on version 3.0.4; an updated GNOME desktop (currently version 3.1.92 on the way to GNOME 3.2); and improved support for installing 32-bit library and application packages on 64-bit systems.
The countdown to Oneiric Ocelot begins, Ubuntu 11.10 arrives October 13th
A whole new world? A whole new computer? Those are some pretty epic promises coming from the folks at Canonical, especially since we've seen the most recent beta and Ubuntu 11.10 and, while its packed with welcome improvements over Natty, it's not exactly revolutionary. Still, we're excited that on October 13th the final release of Oneiric Ocelot will be hitting the web with an improved Dash that integrates search Lenses, new default apps, a spiffed-up app switcher and application syncing across multiple devices. There are plenty of other little tweaks and improvements that add polish to the popular Linux distribution — more than we could possibly cover without inspiring a string of TLDR comments. If you're the adventurous type you can download the second beta now, but we suggest you wait till the timer at the source link reaches zero. If you want to spread the Gospel of Ubuntu you'll also find a printable flyer at the source with a QR code and tear-off URL strips that lead to ThisIsTheCountdown.com.
The Best Indicator Applets for Ubuntu
Earlier, many folks were unhappy about the dozens of applications that ate up valuable space on their system tray. Often, people would have overly crowded panels that would look ugly in most cases. To address this problem, Canonical came up with Indicator Applets. It was not only a huge step forward in usability; it was also the foundation of a more clean and uniform user interface.
Unlike Windows, where you're clumsily right-clicking the tray, indicator applets allow you to interact with multiple applications at once without clicking more than twice. Now, if you take a look at the top panel, it looks much more uniform, with properly spaced icons and easy-to-navigate menus. As Canonical has released the API out in public, many developers have come up with some nifty indicator applets.
Interview with John Lenton
In this continuing Ubuntu One interview series, Amber Graner talks to John Lenton, Senior Engineering Manager for Ubuntu One. Lenton give a little about his history with FOSS and how he found his way to Canonical. He addresses reader comments about the Ubuntu One proxy issue and gives users and developers links and information on how to participate in the Ubuntu One project and more.
Is the Ubuntu App Developer Portal a Game Changer?
Canonical has recently announced the creation of the Ubuntu Developer Portal. The portal's goal is fairly straight forward: it's basically been designed to get more mainstream developers creating software for Ubuntu.
In this article, I'll look at the motivation, tools and resources that will be made available to those using the Ubuntu Developer Portal. I'll also look at whether this is an effort that is going to be a "game changer" for Ubuntu or merely a weak publicity stunt that backfires on everyone involved.
Seven Minutes in Ubuntu
For a while now, I've been using my home machine with MAMP to develop a research prototype. But last week, I got my hands on a PC to use as a web server (thanks Andrea!). Before I could get started on it though, I needed an operating system to install — ideally one that would get the job done with minimal setup and training on my part. After a bit of reading online, I chose Ubuntu.
Flavours and Variants
Xubuntu Review: It Packs a Punch! (With Screenshots)
Xubuntu 11.04 is a fast, stable operating system for older systems or systems that could use the performance boost. It is beautifully well put together and easy to use.
DistroWatch Weekly, Issue 425: Questions and Answers: A Look Behind The Curtain
In the end of the day, money is only a metric to measure time and power and it doesn't measure it all. Sometimes we spend money on things we can get for free, because the time we don't spend in getting them is more valuable than the money itself. So how do we do? We can tackle any problem and pay for what we need. We can engage in expensive projects (we recently decided to mirror Debian for instance and we're now confident enough in our new servers to have all LMDE users point to them). We're almost ready to scale up, to hire, to rent offices, the financial aspect of this isn't the main issue anymore. Our biggest problem is to buy time. Because unlike everything else in the project that's been getting better and better since the start, finding the time to achieve what we have in mind has become harder and harder. Do you achieve twice as much when you've got twice as many developers? What are big companies and their large IT staff doing wrong to let small projects like ours challenge them? How do we manage to become more productive and to take on bigger projects? We don't need to worry about the money, the community removes that problem for us and allows us to focus on what really matters, finding the time that we need. This is the real challenge.
elementary OS 0.1 'Jupiter' review
elementary OS (another one that forgoes capital letters in it's name) is a relatively new kid on the Linux block. It's based on Ubuntu 10.10, and uses a customised version of the GNOME 2.32 desktop.
On visiting the elementary OS website, one has to be impressed with the polish. I may admit to temporarily wondering if I'd accidently gone to Apple's site instead. This being said, if the developers have taking this much care with their operating system as they have with the website, we could be looking at a good thing.
Testing environment: Acer Aspire 3410 laptop, Intel Celeron ULV 1.2GHz processor, 3GB RAM, integrated Intel graphics.
Ex-NASA Man Squeezes Cloud Onto USB Stick
Set for an unveiling at next week's OpenStack conference in Boston, this "cloud key" also includes Piston's Linux-based PentOS.
100 Greatest Gadgets
That digital cameras, perfectly printed pages and email are now all as platitudinous, quotidian and meretricious as takeaway coffee is easy to take for granted and I certainly don't expect credit for being an early adopter or some kind of wise prophet. I was also an early adopter of many disastrous failures. The Newton, the Microwriter AgendA, early, bulky and dreadful Sony electronic books, iRex iLiads weird tone-dialling devices – any number of freakish gadgets that were either before their time and technology or simply deluded and hopelessly hopeful were all grist to my crazy mill.
Nokia to Impose Price Cuts on Smartphones with Linux-based Mobile OS
Nokia, the largest cellular phone manufacturer in the world, is developing a Linux-based mobile OS that will power its low-cost smartphones as it bids to sell a billion of such under-$100 device.
The Nokia OS project called "Meltemi" and led by executive vice president Mary McDowell, was revealed by the Wall Street Journal on Thursday.
Nokia readies Linux mobile OS for cheap smartphones
Nokia has underlined the importance of low-cost smartphones and now it appears that the company is developing a Linux-based OS for smartphones that will cost less than $100 (£60) without subsidies.
6 Commercial Android Video Players
Sub-notebooks/Tablets
Kindle Fire: Take three tablets and call me in the morning
Right now my boys, ages 5, 7 and 9 all have iPod Touches that have served them well despite having been many times lost, spilled on, and in one case very lightly driven over by a car. But the Touches, which also cost $199 as I recall, are getting old, their batteries recharged so many times to where they now barely last an hour. It's time for something new, which in the eyes of my boys means something better.
Let's start gingerly, with Nokia. You'll recall the indignation when Nokia threw Symbian under the Windows Phone 7 bus and osborned its existing product line. Nokia dead-ended Symbian handsets, causing sales to plunge while everyone waited for the new MicroNokia smartphones.
The company didn't stop there.
It then presented Meego, the offspring of Intel's Moblin (as in Mobile Linux) and Nokia's own Maemo (also Linux-based), as their weapon of the future. This was their killer smartphone OS.
But Nokia gave up on Meego. The result was a risky but greatly simplified product strategy: One OS, WP7, instead of three or four versions of Symbian, S40, S60, Symbian^3, and Meego.
Such simplicity couldn't last.
Amazon Sells Kindle Fire at Low Profit Margin to Promote Online Merchandize Sales
An IHS analysis reveals Amazon's business model for its new Kindle Fire tablet, with the company willing to settle for a razor-thin margin on sales of devices and digital content in order to achieve the larger goal of promoting merchandize sales at its online store.
A preliminary virtual estimate conducted by the IHS iSuppli Teardown Analysis Service places Kindle Fire's bill of materials (BOM) cost at $191.65. With the addition of manufacturing expenses, the total cost to produce the Kindle Fire rises to $209.63.
The Road To Open Source Code Provenance
Data digging company OpenLogic has rolled out a new version of OLEX Enterprise Edition, a code analysis and audit kit designed to "uncover the provenance" of code within open source projects. In light of comments made this week by the German IT security watchdog, open source security issues may be on more corporate radars at the moment if recent warnings by the ombudsman are to be heeded.
Fraunhofer FOKUS axes BerliOS open source portal
On 31 December, the Fraunhofer Institute for Open Communication Systems (FOKUS) is to close BerliOS (Berlin Open Source), its open source software (OSS) repository. According to an announcement made on Friday 30 September, the institute finds itself compelled to take this step as it has been unable to find a successor or to secure further funding.
Mozilla releases demo of Gladius game engine
Mozilla releases Firefox 7.0.1 to fix add-on issue
The update, Firefox 7.0.1, is available for both the desktop and mobile versions of the browser and restores any hidden add-ons.
Firefox 9 Features, Changes
With the release of the stable version of Firefox 7, or more precisely Firefox 7.0.1, came also updates to the beta, aurora and nightly channels of the browser. Each channel has been bumped up a version. Firefox Beta to 8, Firefox Aurora to 9 and Firefox Nightly to 10.
Mozilla Launches 3D Gaming Effort
In the Latest Browser Performance Face-Off, A Surprise Winner Emerges
Despite these tests where Chrome takes top performance honors, though, Firefox 7 actually emerges as as the winner in Tom's tests, thanks to strong performances in Java tests and others. You can find the summation of the Tom's tests here–definitely worth a look, especially if you're not yet using Firefox 7.
Release of the Third Generation of the OpenNebula Cloud Manager
With more than 5,000 downloads per month, OpenNebula is being used by thousands of organizations to build large-scale production clouds.
Oracle/Java/LibreOffice
Oracle has a Sun spot
Oracle's nothing if tenacious, and they've ignored hardware earnings losses to take the recently acquired Sun hardware platform to its next level and renewal with the announcement of the T4 CPU UltraSparc family for its servers. Sun was always a maverick, and its Sparc and UltraSparc processors became the standard bearer for server-based RISC technology. Now it's dragging Oracle down. Larry Ellison seems to have had a fixation over delivering the Full Meal Deal® to its customers — hardware, software, services, applications, and integration support. The idea has worked well for others, yet others haven't publicly bruised so many on the way up.
Giving a Clunky Old CMS the WordPress Treatment
When it became clear eMusic's old, custom-built content management system was becoming a drag on the company, the search was on for a replacement. WordPress offered an open source tool with a passionate developer community. The CMS switch worked out well for eMusic in the end, but it wasn't always easy. Here are some lessons learned in the process.
Project Releases
OpenEMR 4.1 is released
Standards/Consortia
ODF 1.2 includes new spreadsheet standardisation
An official announcement has yet to be made, but on a mailing list of the OASIS group, Chet Ensign, Director of Standards Development, announced that ODF 1.2 has been approved. ODF 1.2, Open Document Format for Office Applications, was last updated four years ago in Feb 2007 with the approval of ODF 1.1.
Apple is now Public Enemy No 1
With all of the patent suits Apple is currently filing against its tab and smartphone competitors, the title is more than justified. But the following is a personal rant that I believe exemplifies what is wrong with Apple. [Rant warning]
This may be a hypocritical title, considering that I am writing it on a MacBookPro, and I own an iPod touch and an iPad. Yet Apple products continue to produce the sort of anger that I used to reserve for Microsoft software. You know the kind, you love and hate your technology, you cannot live without it, but you know it's wrong.
The smartphone market is now mature enough that it allows choice beyond the iPhone, with several Android handsets giving Apple a run for its money in both cost and hardware specifications. I am yet to hear a bad word about the Samsung Galaxy S-II, and I'm still very happy with my HTC Desire Z. Android offers a number of features that are quite simply forbidden in Apple-land: multitasking, connectivity, contextual menus, flexibility and configurability (is that a word?). On the other hand, my iPod gives me an indication of the iPhone world, and I do not like what I see.
No One Uses 32-bit Anymore… Right?
Judging by some of the discussions I've seen on the subject, some users aren't convinced there's a significant advantage. Where ever you land in the discussion, it appears you are not alone. A 44 to 56 split could almost be a statistical tie. Did you know it was still pretty much half and half? I expected lots more 64-bit users.
Windows Cold Call
So nope, there really isn't anything that my cold-caller from so far away can help with. But good luck to Microsoft, and even though I blow off the calls, good luck to the call-center minions too, and I hope their next job is better.
How ICT helps developing countries – some Kenya case-studies
It's the first time ever the IGF has been held in sub-Saharan Africa. And this gave me an opportunity to explore something that's interested me for some time – the role of ICT in the developing world.
Microsoft falsely labels Chrome as malware
Chrome updates to repair Microsoft false alarm damage
A new version of Google Chrome is now available; the latest stable release has the version number 14.0.835.187 and the latest beta version, 15.0.874.58. The update stops Microsoft Security Essentials (MSE) virus scanner from incorrectly classifying the browser as part of the banking trojan PWS:Win32/Zbot (Zeus).
Defence/Police/Aggression
Inside the World's Largest Embassy
In 2009, Peter Van Buren, a two-decade veteran of the Foreign Service, volunteered to go to Iraq. Drawn by "the nexus of honor, duty, terrorism, and my oldest daughter's college tuition," he signed on as the head of an embedded Provincial Reconstruction Team, part of a "civilian surge" to rebuild the country and pave the way for the withdrawal of American combat troops. He'd joined the biggest nation-building exercise in history, a still-unfinished $63-billion effort that Van Buren compares to "past[ing] together feathers year after year, hoping for a duck." Van Buren's acerbic new memoir, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People, recounts his two years as an official feather-paster in a country that's become an afterthought to most Americans.
Simon Johnson Destroys The Myth Of Jamie Dimon's Bernanke Complaint (Crocodile Tears Fooled No One)
The WSJ's Evan Newmark, A Former Goldman Sachs Executive, Thinks Wall Street Protesters Are Buffoons
Listen to this nonsense. Newmark, a former Goldman Sachs executive, thinks Wall Street protesters are buffoons. Surprise, surprise. We think someone needs to slap the smug grin from Newmark's face. In the above video, Marketwatch columnist David Weidner says that bankers, not protesters, are the ones who should have been arrested during Wall Street protests. Newmark chuckles as he disagrees, making no effort to hide his contempt for 'Occupy Wall Street', now in its 14th day.
Roseanne Barr: 'Guilty' Wall Street Bankers Should Be Sent to Reeducation Camps or Beheaded
Controversial comedienne Roseanne Barr has her own solution to the financial crisis: behead any wealthy banker making more than $100 million who won't be reeducated.
In an interview with the RT program "Keiser Report," Barr said if she were the president, she would bring back the guillotine as a form of justice for Wall Street's "worst of the worst of the guilty."
Facebook Privacy: A Bewildering Tangle of Options
Will ACTA Be Killed in the EU?
Several of the "like-minded" States that negotiated the Anti-Counterfeiting Trade Agreement (ACTA) will attend the signing ceremony this Saturday in Tokyo1. The European Parliament, which will have the final word, will now face its key responsibility towards European citizens: will it accept a text that forces new broadly applicable criminal sanctions, deeply impacting fundamental freedoms, innovation and competition? Will it seize the opportunity to reject once and for all a text that was negotiated outside democratic arenas?
Alert To Activists: Customs Enforcement of IPR
A very worrying proposal called "Customs enforcement of intellectual property rights" has arrived from the EU Commission, and will be handled by the European Parliament this autumn. It is an attempt to introduce by the Commission to expand enforcement of intellectual property rights in line with the ACTA agreement, before ACTA has even been signed. Some of the provisions even go beyond ACTA in scope.
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Pages that cross-reference this one
"For software to be free as in freedom, we need more people to care personally about software freedom."
Links for the day
A longterm investigation suggests that there are forces in the debate that aren't objective and are being super evasive and dodgy; this typically happens only when somebody has much to hide
Something ought to change in the way people gather and assess news; at the moment — as proper journalism runs out of steam (and budget) — things only deteriorate and quality suffers; this rapidly exacerbates as people come to rely on — and then relay — hearsay, not fact-checked bodies of work
Appalling quality of reporting and truly awful bias in the media, primarily owing to the fact that it is dominated/manned not by actual reporters but the firms looking to patent life itself; they use their lawyers and operatives who are literally funded by these lawyers (wearing "journalist" badges to mislead)
IRC logs for Monday, January 20, 2020
How anyone out there can do the job the media failed to do (after an apparently unprecedented arrest at the home of Bill Gates)
9 updates from the police department of Seattle but still nothing material/concrete, only promises and major delays
IRC logs for Sunday, January 19, 2020
The police department (PD) of Seattle is unable to open its own files about arrest for pedophilia at Bill Gates' home; it has been unable to open these files for several months, it claims...
"It might be easier if we start from the GitLab software," Stallman said
Fear of China is being leveraged to promote an agenda of patent maximalists; the general idea they promote is that granting millions of low-quality patents is the only way to compete, even if in reality that merely handicaps the whole market
The narrative surrounding last week's decision against CRISPR patents may have been virtually monopolised by the litigation think tanks and law firms; it certainly feels like no journalism is left to rebut them, fact-check, and introspect
EPO judges throw out patents on life (CRISPR at least); there's now growing hope that they'll have the courage to do the same to patents on software
IRC logs for Saturday, January 18, 2020
Pro-StartPage voices appear to be paid (or have been promised pay) by StartPage; the key strategy of StartPage seems to be, attack and betray people's privacy while paying people in particular positions to pretend otherwise
IRC logs for Friday, January 17, 2020
IRC logs for Thursday, January 16, 2020
Microsoft is working hard to describe itself as the exact opposite of what it is and what it has been; 'Internet rot' helps a lot with this agenda, not to mention control of the media (the narrative)
The EPO continues to scatter invalid patents (IPs) that are European Patents (EPs) all over Europe and nobody can stop this, not even the judges of the EPO because they lack independence (by their very own admission)
The tactics of Team UPC aren't changing, only the shamelessness associated with these tactics is changing (because it looks like the end of days to them)
A reader's explanation of what Microsoft is trying to accomplish with its so-called 'embrace' and what steps will come next (how they manifest themselves)
IRC logs for Wednesday, January 15, 2020
The photo (or meeting) may mark the turning point of the Openwashing as-a-Standard Initiative (OSI), which less than a year earlier took a bucket of money from Microsoft
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Search For "Housing" Companies in Takoma Park, Maryland - Click Here Now!
Affordable Pressure Wash in Takoma Park is a company that specializes in Residential Care. Our records show it was established in Maryland.


text:
Antonechloris är ett släkte av fjärilar som beskrevs av Raineri 1994. Antonechloris ingår i familjen mätare.

Släktet innehåller bara arten Antonechloris smaragdaria.

Källor

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Antonechloris

redpajama_set_name: RedPajamaWikipedia


text:
using AutomaticTypeMapper;
using EOLib.Domain.Online;
using EOLib.Domain.Protocol;
using EOLib.IO.Repositories;
using EOLib.Net;

namespace EOLib.PacketHandlers.Init
{
    [AutoMappedType]
    public class OnlinePlayerListHandler : BasePlayersListHandler
    {
        private readonly IECFFileProvider _classFileProvider;

        public override InitReply Reply => InitReply.AllPlayersList;

        public OnlinePlayerListHandler(IOnlinePlayerRepository onlinePlayerRepository,
                                       IECFFileProvider classFileProvider)
            : base(onlinePlayerRepository)
        {
            _classFileProvider = classFileProvider;
        }

        protected override OnlinePlayerInfo GetNextRecord(IPacket packet)
        {
            string name = packet.ReadBreakString();

            var title = packet.ReadBreakString();
            if (packet.ReadChar() != 0)
                throw new MalformedPacketException("Expected 0 char after online entry title", packet);

            var iconType = (OnlineIcon)packet.ReadChar();
            int clsId = packet.ReadChar();
            var guild = packet.ReadBreakString();

            name = char.ToUpper(name[0]) + name.Substring(1);

            if (string.IsNullOrWhiteSpace(title))
                title = "-";
            else
                title = char.ToUpper(title[0]) + title.Substring(1);

            var className = _classFileProvider.ECFFile.Length >= clsId && clsId != 0
                ? _classFileProvider.ECFFile[clsId].Name
                : "-";

            if (string.IsNullOrWhiteSpace(guild))
                guild = "-";

            return new OnlinePlayerInfo(name, title, guild, className, iconType);
        }
    }
}

redpajama_set_name: RedPajamaGithub


Unisex oversized open cardigan with ANZ signature textured knit,featuring two side pockets.
Now available in two sizes.
Introducing One Size 1, which is a smaller option of our classic fit, which is now One Size 2.
© 2019 ANZ Styles Ltd. All rights reserved.


text:
Title: Case law
Subject: Civil law (legal system), Judiciary, Legal history, Priestly Code, European Court of Human Rights
Collection: Case Law
In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."[1] Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies).
Stare decisis (Anglo-Latin pronunciation: ) is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."[2] In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters.[2]
Case law or common law is the set of decisions of adjudicatory tribunals that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.[3]
Case law in common law systems 1.1
Type of precedent 2
Verticality 2.1
Horizontality 2.2
Binding precedent 2.3
Binding precedent in English law 2.3.1
Super stare decisis 2.3.2
Persuasive precedent 2.4
Lower courts 2.4.1
Higher courts in other circuits 2.4.2
Horizontal courts 2.4.3
Statements made in obiter dicta 2.4.4
Dissenting opinions 2.4.5
2.4.6 Treatises, restatements, law review articles
Courts in other jurisdictions 2.4.7
Contrasting role of case law in common law, civil law, and mixed systems 3
Critical analysis of precedent 4
Court formulations 4.1
Academic study 4.2
United States legal system 5.2
Publication, non-publication and depublication 5.2.1
English legal system 5.3
Last resort and strict stare decisis in Scotland 5.4
Interpretation 6
Practical application 7
Judicial resistance 7.1
Structural considerations 7.2
Originalism 7.3
Advantages and disadvantages 7.4
Criticism of precedent 7.5
Agreement with precedent 7.6
Civil law systems 8
The principle of stare decisis can be divided into two components.
The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.[4]
Case law in common law systems
In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedent which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts.[5] For example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but the Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely does so.
Generally speaking, higher courts do not have direct oversight over lower courts, in that they cannot reach out on their own initiative (sua sponte) at any time to reverse or overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand.
A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is unjust; the lower court may only express the hope that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, the court may either hold that the precedent is inconsistent with subsequent authority, or that the precedent should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning, first of the High Court of Justice, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.
Judges may refer to various types of persuasive authority to reach a decision in a case. Widely cited non-binding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England, or the published work of the Law Commission or the American Law Institute. Some bodies are given statutory powers to issue Guidance with persuasive authority or similar statutory effect, such as the Highway Code.
In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district, province, division or appellate department. Usually only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted.
Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish the decisions based on significant differences in the facts applicable to each case. Or, a court may view the matter before it as one of "first impression," not governed by any controlling precedent.[6]
Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the court and the judges.
Type of precedent
Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedent established by the appellate court for their jurisdiction, and all supreme court precedent.
The Supreme Court of California's explanation of this principle is that
[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.[7]
An Intermediate state appellate court is generally bound to follow the decisions of the highest court of that state.
The application of the doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical stare decisis.
However, in federal systems the division between federal and local law may result in complex interactions. For example, state courts in the United States are not considered inferior to federal courts but rather constitute a parallel court system. While state courts must follow decisions of the United States Supreme Court on issues of federal law, federal courts must follow decisions of the courts of each state on issues of that state's law. If there is no decision on point from the highest court of a state, the federal courts must either attempt to predict how the state courts would resolve the issue, by looking at decisions from state appellate courts at all levels, or, if allowed by the constitutions of the relevant states, consult the state supreme courts. Decisions of the lower federal courts (i.e. the federal circuit courts and district courts) are not binding on any state courts, meaning that interpretations of certain federal statutes can and occasionally have diverged depending upon whether the forum is state or federal. In practice, however, judges in one system will almost always choose to follow relevant case law in the other system to prevent divergent results and to minimize forum shopping.
Horizontality
The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis.
In the United States federal court system, the intermediate appellate courts are divided into "circuits". Each panel of judges on the court of appeals for a circuit is bound to obey the prior appellate decisions of the same circuit. Precedent of a United States court of appeals may be overruled only by the court en banc, that is, a session of all the active appellate judges of the circuit, or by the United States Supreme Court.
When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis. The state of New York has a similar appellate structure as it is divided into four appellate departments supervised by the final New York Court of Appeals. Decisions of one appellate department are not binding upon another, and in some cases the departments differ considerably on interpretations of law.
Binding precedent
Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings (see Law of the case re: a court's previous holding being binding precedent for that court).
In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and pluralist systems precedent is not binding but case law is taken into account by the courts.
Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedent from past cases are applied in principle to new situations by analogy.
One law professor has described mandatory precedent as follows:
Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.[8]
In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.
Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the Supreme Court, and underneath are lower federal courts. The state court systems have hierarchy structures similar to that of the federal system.
The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S. Constitution. For example, when the Supreme Court says that the First Amendment applies in a specific way to suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher court changes the ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of the law.
Although state courts are not part of the federal system, they are also bound by U.S. Supreme Court rulings on federal law. State courts are not generally bound by Federal District courts or Circuit courts, however.[9][10] A federal court interpreting state law is bound by prior decisions of the state supreme court.[11]
Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal district court that falls within the geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit, since the Circuit Courts of Appeals have jurisdiction defined by geography. The Circuit Courts of Appeals can interpret the law how they want, so long as there is no binding Supreme Court precedent. One of the common reasons the Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the meaning of a federal law.
There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. 'A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'.
Binding precedent in English law
Judges are bound by the law of binding precedent in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges' decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:
The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
Whether the facts of the current case come within the scope of the principle of law in previous decisions.
Super stare decisis
Super-stare decisis is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power,[12] or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned.
In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations.[13] Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision.[14] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed "by a kind of super-stare decisis."[15] The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term "super stare decisis" now usually refers.
The concept of super-stare decisis (or "super-precedent") was mentioned during the interrogations of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the chair of that committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept.[16]
Persuasive precedent
Persuasive precedent (also persuasive authority) is precedent or other legal writing that is not binding precedent but that is useful or relevant and that may guide the judge in making the decision in a current case. Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts versus federal courts in the United States), statements made in dicta, treatises or academic law reviews, and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.
In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court.
In civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.
Lower courts
A lower court's opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.
Higher courts in other circuits
A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority.
Horizontal courts
Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.
Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts. The phrase obiter dicta is usually translated as "other things said", but due to the high number of judges and individual concurring opinions, it is often hard to distinguish from the ratio decidendi (reason for the decision). For these reasons, the obiter dicta may often be taken into consideration by a court. A litigant may also consider obiter dicta if a court has previously signaled[17] that a particular legal argument is weak and may even warrant sanctions if repeated.
Dissenting opinions
A case decided by a multi-judge panel could result in a split decision. While only the majority opinion is considered precedential, an outvoted judge can still publish a dissenting opinion. Common patterns for dissenting opinions include:
an explanation of how the outcome of the case might be different on slightly different facts, in an attempt to limit the holding of the majority
planting seeds for a future overruling of the majority opinion
A judge in a subsequent case, particularly in a different jurisdiction, could find the dissenting judge's reasoning persuasive. In the jurisdiction of the original decision, however, a judge should only overturn the holding of a court lower or equivalent in the hierarchy. A district court, for example, could not rely on a Supreme Court dissent as a basis to depart from the reasoning of the majority opinion. However, lower courts occasionally cite dissents, either for either a limiting principle on the majority, or for propositions that are not stated in the majority opinion and not inconsistent with that majority, or to explain a disagreement with the majority and to urge reform (while following the majority in the outcome).
Treatises, restatements, law review articles
Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings persuasive will vary widely with elements such as the reputation of the author and the relevance of the argument.
Courts in other jurisdictions
An English court might cite judgments from countries that share the English common law tradition. These include other Commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States (most often where the American courts have been particularly innovative, e.g. in product liability and certain areas of contract law).
Since the late 20th century, the concept of a U.S. court considering foreign law or precedent has been considered controversial by some parties. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited as part of their reasoning the fact that the European Union forbids the death penalty. But, Chief Justice Rehnquist opposed the "Court's decision to place weight on foreign laws." The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and "reaffirming American independence." This critique is recent, as in the early history of the United States, citation of English authority was ubiquitous. One of the first acts of many of the new state legislatures was to adopt the body of English common law into the law of the state. See here. Citation to English cases was common through the 19th and well into the 20th centuries. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for American state courts to rely on English decisions for matters of pure common (i.e. judge-made) law.
Within the federal legal systems of several common-law countries, and most especially the United States, it is relatively common for the distinct lower-level judicial systems (e.g. state courts in the United States and Australia, provincial courts in Canada) to regard the decisions of other jurisdictions within the same country as persuasive precedent. Particularly in the United States, the adoption of a legal doctrine by a large number of other state judiciaries is regarded as highly persuasive evidence that such doctrine is preferred. A good example is the adoption in Tennessee of comparative negligence (replacing contributory negligence as a complete bar to recovery) by the 1992 Tennessee Supreme Court decision McIntyre v. Balentine (by this point all US jurisdictions save Tennessee, five other states, and the District of Columbia had adopted comparative negligence schemes). Moreover, in American law, the Erie doctrine requires federal courts sitting in diversity actions to apply state substantive law, but in a manner consistent with how the court believes the state's highest court would rule in that case. Since such decisions are not binding on state courts, but are often very well-reasoned and useful, state courts cite federal interpretations of state law fairly often as persuasive precedent, although it is also fairly common for a state high court to reject a federal court's interpretation of its jurisprudence.
Contrasting role of case law in common law, civil law, and mixed systems
The different roles of case law in civil law and common law traditions create differences in the way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles. The necessary analysis (called ratio decidendi), then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes. The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult to apply previous decisions to the facts presented in future cases.
Some pluralist systems, such as Scots law in Scotland and so-called civil law jurisdictions in Quebec and Louisiana, do not precisely fit into the dual "common-civil" law system classifications. Such systems may have been heavily influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as "mixed" systems of law.
Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions. Because court decisions in civil law traditions are brief and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France. Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of prominent judges such as Coke and Blackstone). Today academic writers are often cited in legal argument and decisions as persuasive authority; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling than can be found in precedent. Thus common law systems are adopting one of the approaches long common in civil law jurisdictions.
Critical analysis of precedent
Court formulations
The United States Court of Appeals for the Third Circuit has stated:
A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.[18]
The United States Court of Appeals for the Ninth Circuit has stated:
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[19]
Justice McHugh of the High Court of Australia in relation to precedence remarked in Perre v Apand:
[T]hat is the way of the common law, the judges preferring to go 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science.'
Precedent viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law. For instance, if immigration has become more and more restricted under the law, then the next legal decision on that subject may serve to restrict it further still. The existence of submerged precedent (reasoned opinions not made available through conventional legal research sources) has been identified as a potentially distorting force in the evolution of law.[20]
Scholars have recently attempted to apply network theory to precedent in order to establish which precedent is most important or authoritative, and how the court's interpretations and priorities have changed over time.[21]
Early English common law did not have or require the stare decisis doctrine for a range of legal and technological reasons:
During the formative period of the common law, the royal courts constituted only one among many fora in which in the English could settle their disputes. The royal courts operated alongside and in competition with ecclesiastic, manorial, urban, mercantile, and local courts.
Royal courts were not organised into a hierarchy, instead different royal courts (exchequer, common pleas, king's bench, and chancery) were in competition with each other.
Substantial law on almost all matters was neither legislated nor codified, eliminating the need for courts to interpret legislation.
Common law's main distinctive features and focus were not substantial law, which was customary law, but procedural.
The practice of citing previous cases was not to find binding legal rules but as evidence of custom.
Customary law was not a rational and consistent body of rules and does not require a system of binding precedent.
Before the printing press, the state of the written records of cases rendered the stare decisis doctrine utterly impracticable.
These features changed over time, opening the door to the doctrine of stare decisis:
By the end of the eighteenth century, the common law courts had absorbed most of the business of their nonroyal competitors, although there was still internal competition among the different common law courts themselves. During the nineteenth century, legal reform movements in both England and the United States brought this to an end as well by merging the various common law courts into a unified system of courts with a formal hierarchical structure. This and the advent of reliable private case reporters made adherence to the doctrine of stare decisis practical and the practice soon evolved of holding judges to be bound by the decisions of courts of superior or equal status in their jurisdiction.[22]
United States legal system
Stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way"). As the United States Supreme Court has put it: "dicta may be followed if sufficiently persuasive but are not binding."[23]
In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. ... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. ... This is strikingly true of cases under the due process clause.
—Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (Brandeis, J., dissenting).[24]
For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases.[25] The U.S. Supreme Court has further explained as follows:
[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.
—Smith v. Allwright, 321 U.S. 649, 665 (1944).[26]
The United States Supreme Court has stated that where a court gives multiple reasons for a given result, each alternative reason that is "explicitly" labeled by the court as an "independent" ground for the decision is not treated as "simply a dictum."[27]
Publication, non-publication and depublication
Non-publication of opinions, or unpublished opinions, are those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the case as having less precedential value. Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter. "Unpublished" federal appellate decisions are published in the Federal Appendix. Depublication is the power of a court to make a previously published order or opinion unpublished.
The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Israel,[28] Cyprus, Hong Kong, New Zealand, Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of the law by a Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a decision by a superior court will be binding on inferior courts. This means that when judges try cases they must check to see if similar cases have been tried by a court previously. If there was a precedent set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it. The Supreme Court (previously the House of Lords) however does not have to obey its own precedent.
Only the statements of law are binding. This is known as the reason for the decision or ratio decidendi. All other reasons are "by the way" or obiter dictum. See Rondel v. Worsley [1969] 1 AC 191. A precedent does not bind a court if it finds there was a lack of care in the original "Per Incuriam". For example, if a statutory provision or precedent had not been brought to the previous court's attention before its decision, the precedent would not be binding. Also, if a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedent includes decisions of courts lower in the hierarchy. They may be persuasive, but are not binding. Most importantly, precedent can be overruled by a subsequent decision by a superior court or by an Act of Parliament.
Last resort and strict stare decisis in Scotland
The British House of Lords, as the court of last appeal outside Scotland before the creation of the UK Supreme Court, was not strictly bound to always follow its own decisions until the case London Street Tramways v London County Council [1898] AC 375. After this case, once the Lords had given a ruling on a point of law, the matter was closed unless and until Parliament made a change by statute. This is the most strict form of the doctrine of stare decisis (one not applied, previously, in common law jurisdictions, where there was somewhat greater flexibility for a court of last resort to review its own precedent).
This situation changed, however, after the issuance of the Practice Statement of 1966. It enabled the House of Lords to adapt English law to meet changing social conditions. In R v G & R 2003, the House of Lords overruled its decision in Caldwell 1981, which had allowed the Lords to establish mens rea ("guilty mind") by measuring a defendant's conduct against that of a "reasonable person," regardless of the defendant's actual state of mind.
However, the Practice Statement has been seldom applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. They are reluctant to use it because they fear to introduce uncertainty into the law. In particular, the Practice Statement stated that the Lords would be especially reluctant to overrule themselves in criminal cases because of the importance of certainty of that law. The first case involving criminal law to be overruled with the Practice Statement was Anderton v Ryan (1985), which was overruled by R v Shivpuri (1986), two decades after the Practice Statement. Remarkably, the precedent overruled had been made only a year before, but it had been criticised by several academic lawyers. As a result, Lord Bridge stated he was "undeterred by the consideration that the decision in Anderton v Ryan was so recent. The Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."[29] Still, the House of Lords has remained reluctant to overrule itself in some cases; in R v Kansal (2002), the majority of House members adopted the opinion that R v Lambert had been wrongly decided and agreed to depart from their earlier decision.
Judges in the U.K use three primary rules for interpreting the law. The normal aids that a judge has include access to all previous cases in which a precedent has been set, and a good English dictionary.
Under the literal rule, the judge should do what the actual legislation states rather than trying to do what the judge thinks that it means. The judge should use the plain everyday ordinary meaning of the words, even if this produces an unjust or undesirable outcome. A good example of problems with this method is R v Maginnis (1987) in which several judges found several different dictionary meanings of the word "supply". Another example might be Fisher v Bell, where it was held that a shopkeeper who placed an illegal item in a shop window with a price tag did not make an offer to sell it, because of the specific meaning of "offer for sale" in contract law. As a result of this case, Parliament amended the statute concerned to end this discrepancy.
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Latin legal terms
Legal citation
Legal reasoning
^ Black's Law Dictionary, p. 1059 (5th ed. 1979).
^ a b Adeleye, Gabriel et al. World Dictionary of Foreign Expressions: a Resource for Readers and Writers, page 371 (1999).
^ Case law, Law.com
^ Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004):
Some instances of disregarding precedent are almost universally considered inappropriate. For example, in a rare showing of unity in a Supreme Court opinion discussing judicial activism, Justice Stevens wrote that a circuit court "engaged in an indefensible brand of judicial activism" when it "refused to follow" a "controlling precedent" of the Supreme Court. The rule that lower courts should abide by controlling precedent, sometimes called "vertical precedent," can safely be called settled law. It appears to be equally well accepted that the act of disregarding vertical precedent qualifies as one kind of judicial activism. "Horizontal precedent," the doctrine requiring a court "to follow its own prior decisions in similar cases," is a more complicated and debatable matter....[A]cademics argue that it is sometimes proper to disregard horizontal precedent. Professor Gary Lawson, for example, has argued that stare decisis itself may be unconstitutional if it requires the Court to adhere to an erroneous reading of the Constitution. "If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution." In the same vein, Professors Ahkil Amar and Vikram Amar have stated, "Our general view is that the Rehnquist Court's articulated theory of stare decisis tends to improperly elevate judicial doctrine over the Constitution itself." It does so, they argue, "by requiring excessive deference to past decisions that themselves may have been misinterpretations of the law of the land. For Lawson, Akhil Amar, and Vikram Amar, dismissing erroneous horizontal precedent would not be judicial activism; instead, it would be appropriate constitutional decisionmaking.
—Walton Myers
^ http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf
^ Coale & Dyrek, "First Impressions", Appellate Advocate (Winter 2012).
^ Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962).
^ Marjorie D. Rombauer, Legal Problem Solving: Analysis, Research and Writing, pp. 22-23 (West Publishing Co., 3d ed. 1978). (Rombauer was a professor of law at the University of Washington.)
^ "51 Texas Law Review 1972-1973 Binding Effect of Federal Declaratory Judgments on State Courts Comment". Heinonline.org. Retrieved 2012-11-02.
^ United States.
^ "Mandatory v. Persuasive". Faculty.law.lsu.edu. Retrieved 2012-11-02.
^ Sinclair, Michael. "Precedent, Super-Precedent", George Mason Law Review (14 Geo. Mason L. Rev. 363) (2007)
^ Landes, William & Posner, Richard. "Legal Precedent: A Theoretical and Empirical Analysis", 19 Journal of Law and Economics 249, 251 (1976).
^ Hayward, Allison. The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent?, Cato Supreme Court Review 195, 202, (2005-2006).
^ Maltz, Earl. "Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey", 68 Notre Dame L. Rev. 11 (1992), quoted by Rosen, Jeffrey. So, Do You Believe in 'Superprecedent'?, New York Times (2005-10-30).
^ Benac, Nancy url=http://www.commondreams.org/headlines05/0913-09.htm (2005-09-13). "Roberts Repeatedly Dodges Roe v. Wade". Associated Press.
^ Coale & Couture, Loud Rules, 34 Pepperdine L. Rev. 3 (2007).
^ Allegheny General Hospital v. NLRB, 608 F.2d 965, 969-970 (3rd Cir. 1979) (footnote omitted), as quoted in United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
^ United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
^ Elizabeth Y. McCuskey, Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders, 91 NEB. L. REV. 387, 427-430 (2012).
^ James H. Fowler and Sangick Jeon, "The Authority of Supreme Court Precedent," Social Networks (2007), doi:10.1016/j.socnet.2007.05.001
^ HAYEK, THE COMMON LAW, AND FLUID DRIVE, John Hasnas, NYU Journal of Law & Liberty, Vol 1, p 92-93, from http://faculty.msb.edu/hasnasj/GTWebSite/NYUFinal.pdf .
^ Green Co. v. United StatesCentral , 531 U.S. 425 (2001), quoting Humphrey's Executor v. United States, 295 U. S. 602, 627 (1935).
^ "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved 2012-11-02.
^ Congressional Research Service,Supreme Court Decisions Overruled by Subsequent Decision (1992).
^ See O'Gilvie v. United States, 519 U.S. 79, 84 (1996).
^ "Israeli Supreme Court decisions and Precedents".
^ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 25. London: Hodder Arnold. ISBN 0-340-89991-3.
^ "Part E - The rules of statutory interpretation - The golden rule". Labspace. Retrieved 11 December 2012.
^ See, e.g., the concurring opinion of Chief Judge Walker in National Abortion Federation v. Gonzalez, United States Court of Appeals for the Second Circuit (January 31, 2006).
^ See, e.g., Hilton vs. Carolina Pub. Rys. Comm'n., 502 U.S. 197, 202, 112 S. Ct. 560, 565 (1991)("we will not depart from the doctrine of stare decisis without some compelling justification").
^ Thomas, Clarence (1991). [U.S.] Senate Confirmation Hearings. qtd. by Jan Crawford Greenburg on PBS (June 2003) Accessed 8 January 2007 UTC.
^ Michael H. Trotter, Profit and the Practice of Law: What's Happened to the Legal Profession (Athens, GA: University of Georgia Press, 1997), 161-163.
^ Berland, David (2011). Note, "Stopping the Pendulum: Why Stare Decisis Should Constrain the Court from Further Modification of the Search Incident to Arrest Exception". University of Illinois Law Review (2011 U. Ill. L. Rev. 695).
Law of Citations (Roman concept)
Case citation
Case of first impression
Qiyas
Ratio decidendi
Commanding precedent
The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental civil law systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Högsta förvaltningsdomstolen), have the right to set precedent which is in practice (however not formally) binding on all future application of the law. Courts of appeal, both general courts (hovrätter) and administrative courts (kammarrätter) may also issue decisions that act as guides for the application of the law, but these decisions may be overturned by higher courts.
In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.
By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.
The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions give a sufficient statement of rationale as to guide future courts. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent for future cases.
Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedent established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedent by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.
Civil law systems
There is much discussion about the virtue of using stare decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution.
A counter-argument (in favor of the advantages of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so.[37] Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge supported anyway, but ignoring it in order to change precedent with which the judge disagreed.
Agreement with precedent
Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedent until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedent. See also the living tree doctrine.
An argument often used against the system is that it is undemocratic as it allows judges, which may or may not be elected, to make law.
The disadvantages of stare decisis include its rigidity, the complexity of learning law, the differences between some cases may be very small and appear illogical, and the slow growth or incremental changes to the law that are in need of major overhaul.
(1) cases where the foreign jurisdiction's law is the subject of the case, or
(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.[36]
In a 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:
Criticism of precedent
There are disadvantages and advantages of binding precedent, as noted by scholars and jurists.
American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision. ...[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedent that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law. ... Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations." ... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedent that misinterpreted it. ... Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions. ... Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedent. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.
Professor Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence:
Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let's get it right."[34]
I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.
Some originalists may be even more extreme. In his confirmation hearings, Justice Clarence Thomas answered a question from Senator Strom Thurmond, qualifying his willingness to change precedent in this way:
Originalism — the doctrine that holds that the meaning of a written text must be applied — is in tension with stare decisis, but is not necessarily opposed irrevocably. As noted above, "Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law"; Justice Antonin Scalia argues in A Matter of Interpretation that America is a civil law nation, not a common law nation. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the Constitution. However, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says.
Originalism
Courts may choose to obey precedent of international jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of the soundness of its reasoning will be called persuasive authority — indicating that its effect is limited to the persuasiveness of the reasons it provides.
In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last resort, and are required normally to defer to the precedent of intermediate state courts as well.
Structural considerations
Occasionally, the application of prior case law results in court decisions in which the judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent. That is, the issue being judged was already decided by a higher court.[31] Note that inferior courts cannot evade binding precedent of superior courts, but a court can depart from its own prior decisions.[32]
Judicial resistance
Although inferior courts are bound in theory by superior court precedent, in practice judges may sometimes attempt to evade precedent by distinguishing it on spurious grounds. The appeal of a decision that does not obey precedent might not occur, however, as the expense of an appeal may prevent the losing party from doing so. Thus the inferior court decision may remain in effect even though it does not obey the superior court decision, as the only way a decision can enter the appeal process is by application of one of the parties bound by it.
Practical application
"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. ... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' "
"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).
"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787–88 (Alaska 1996);
In the United States, the courts have stated consistently that the text of the statute is read as it is written, using the ordinary meaning of the words of the statute.
The mischief rule is the most flexible of the interpretation methods. Stemming from Heydon's Case (1584), it allows the court to enforce what the statute is intended to remedy rather than what the words actually say. For example, in Corkery v Carpenter (1950), a man was found guilty of being drunk in charge of a carriage, although in fact he only had a bicycle.
(1935) where a man who murdered his mother was forbidden from inheriting her estate, despite a statute to the contrary. Re Sigsworth The court chose not to accept the wording literally. Under the broad method, the court may reinterpret the law at will when it is clear that there is only one way to read the statute. This occurred in [30]
Justice, Canon law, Sociology, Common law, History
Civil law (legal system)
Italy, Common law, Law, Case law, Louisiana
Law, Common law, Canada, Human rights, Jurisprudence
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United Kingdom, Scotland, High Court of Justiciary, Northern Ireland, Wales
Law, Case law, Politics, Jurisprudence, Separation of powers
Law, Fiqh, Jurisprudence, Case law, Common law
Priestly Code
Case law, Passover, Book of Exodus, Shabbat, Yom Kippur
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