Legal Research & Writing

Welcome to Legal Research & Writing. Follow Programme Reader 02 — Core Concepts & Vocabulary, then practise in the learning system. Sign in and use the study header to open your authorised course. Select this published lesson. Start Course Tutor with Auto audio on: it teaches continuously, answers a typed question, then resumes. Ratio decidendi is the principle of law necessary to the decision on its facts, and it is what binds. Obiter dicta are observations not necessary to the decision, which are persuasive only. You are researching whether a particular kind of clause is enforceable, and you find four things. Work out what each is worth. The first is a passage in a leading commentary stating the proposition you want, with a footnote to a Supreme Court decision. This is a secondary source. Its value is that it has found an authority for you. Its danger is that the footnote may support a narrower proposition than the text. Read the decision. The second is that Supreme Court decision. Read it in full. Identify the issue the court had to decide and the facts. Suppose the case concerned a clause in an employment contract and the court's conclusion on enforceability turned on the employment relationship. If your clause is in a commercial distribution agreement, the ratio may not reach your facts, and a sentence in the judgment that seems to state a general rule may be obiter. Note this honestly, because the other side will. The third is a High Court decision from another State directly on facts like yours. This is persuasive, not binding, on the court you are addressing, unless that court is subordinate to that High Court. It is nonetheless valuable, because a decision on closely similar facts is what a judge finds useful. Note it up: has it been appealed, followed, distinguished or doubted? The fourth is a database summary of a recent decision that appears to state the opposite. Do not rely on it either way until you read the judgment. Summaries routinely overstate, and a decision that appears to conflict often turns on a statutory provision or a factual feature that distinguishes it. The research note then says: the binding authority is the Supreme Court decision, whose ratio on these facts extends only so far; the High Court decision from another State is persuasive and closely on point; the recent decision has been read and is distinguishable for a stated reason; and the commentary passage overstates the position. That note is usable in court. A note that simply cites all four as supporting the client is not. Ask Course Tutor to explain this step: If your clause is in a commercial distribution agreement, the ratio may not reach your facts, and a sentence in the judgment that seems to state a general rule may be obiter. Say what you tried. Pause and try this source task. How do you decide whether a sentence in a judgment is ratio or obiter? The source answer is: By identifying the issues the court actually had to decide and the facts before it, and asking whether the proposition was necessary to the result. A statement of general principle made while deciding a narrower point is persuasive but does not bind. Compare your method and result, correct an error, then continue. Use Stop to end Course Tutor.