Title

The re-killing (perhaps) of the Donoghue gastropod -- and some suggestions to tinker with the first-year legal education curriculum

Document Type

Journal Article

Publisher

Australasian Law Teachers Association

School

School of Business and Law

RAS ID

26034

Comments

Originally published as:

Yin, K. (2017). The re-killing (perhaps) of the Donoghue gastropod -- and some suggestions to tinker with the first-year legal education curriculum. Journal of the Australasian Law Teachers Association, 10, 189-202.

Original article available here.

Abstract

The doctrine of stare decisis is a feature of our common law system. If students cannot identify the ratio decidendi (‘ratio’) which is a definitive ingredient of stare decisis, they may have problems in understanding how precedent is created and applied in legal problem solving. Even if they do understand how a precedent is created by the courts, this knowledge will not necessarily assist them in applying it in legal problem solving. This paper proposes that these difficulties can be mitigated in three ways. The first, by students’ being taught the fundamental ingredients only of stare decisis at the start of the teaching semester. The second way, by explaining that where the identification of the ratio of a case is in dispute, that the appropriate template to use is the major premise of the syllogism template or in the ‘Rule, namely the ‘R’, in the I-R-A-C acronym. The third way is that a more advanced lesson on the nuances of ratio extraction, be deferred until the middle of the teaching semester.

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