Rachel R Paper On Discretion

Llewellyn offers a choice when it comes to the discussion of strict and loose precedent. In class we discussed the definition of precedent and came up with the simple “let the discussion stand.” While Llewellyn simply called it the “doing over under similar circumstances.” After reading and understanding the cases the difference between strict precedent uses only facts given, but loose precedent allows different views to be added to the case and therefore changing the judge’s facts. Strict and loose precedent strongly affects many court cases, because it allows the cases to be re-judged and re-determined.

Llewellyn explains strict precedent is without allowing any outside information. Once you began to think this over it is almost impossible to achieve. The judge may have experience with the topic and has prejudgment about the issue. Then the questions of how is the judge suppose to push his or her feelings to the side and be able to judge just solely on the facts. Having strict precedent may also cause someone who has a past with the other person will not be able to achieve a fair judgment there past issues cannot be discussed.

On the other side of the issue is having a loose precedent. One may feel if you have a loose precedent you already determined the case before you may hear the case. Having a loose precedent does not allow you to fully use just what is begin told to you, you may have pre-determined values and use those and not facts given. So it makes the case unfair.

One of the cases that need some type loose and strict precedent was in the book. State v. Pendergrass, about the teacher who was accused of using too much force when punishing one of her students. If the judge was to use loose precedent he may not see anything wrong with the teacher punishing the students. The judge may punish their children the same way and sees nothing wrong with it. If the judge used strict precedent this would also be unfair. This would be unfair because the judge will not know the number of times this happened because they would only use facts. If this has happened before the judge should know, but if the precedent is strict it will not happen.

After studying the difference between strict and loose the best choice to make is to choose the middle ground. If you have too much of one affects everything and makes it hard to make a clear decision. Having too much of each is bad, but Llewellyn hints around at the subject of picking a happy medium. It is difficult for a person to remove their emotions or feelings. So it is just best to stay in the middle.

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