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- Chapter 4 - Researching Case Law
A. Introduction
Author | Ted Tjaden |
Profession | National Director of Knowledge Management McMillan LLP |
Pages | 94-95 |
Page 94
New law students and first-time legal researchers are sometimes surprised by how much judge-made law exists and how important it can be in determining legal rights. This judge-made law, made up of the decisions of judges and administrative tribunals, forms what is referred to as the "common law," a body of law that becomes the judicial precedents by which current judges are bound. Unfortunately, this body of law is not always well-organized or coherent, creating the challenge of researching case law to ensure that all relevant cases have been found and have not been overruled or questioned by subsequent court decisions. One of the goals of a lawyer or self-represented party in litigation in a common law system, therefore, is to find previous court decisions similar on the facts and favourable on the results so that the judge presently presiding over the current litigation will be obliged to follow the previous cases and rule in favour of the lawyer or self-represented litigant.
This chapter will discuss case law by first providing a brief overview of the judicial system, followed by an explanation of the role of "judicial precedent" (also known as stare decisis) and how case law is published. Techniques to find relevant cases will then be discussed, along with "noting up" case law, a technique to update or verify your
Page 95
research to ensure the cases you have found have not been overruled...
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