Tinders
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When reading a law report, what is the best way to spot if something is obita or if it is ratio.
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legalhelp
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Sometimes judgments will flag obiter (note the spelling by the way) comments with some helpful language like “we were not required finally to determine this question, but...”. But most of the time there are no real shortcuts on this one I’m afraid, you just have to read the judgment in full and properly understand what it is the court was being asked to decide. Once you’ve worked that out, then you will be able to see where the court is considering a matter that falls outside the parameters of the issue(s) in hand (usually, where the case being decided is on X facts, and the judgment considers how the law might be applied on Y facts).

In terms of a staged approach, I would take it like this. Firstly, what are the facts of the case? Second, what question(s) is the court being asked which arises out of those facts? Thirdly, what parts of the judgment deal with answering that question as it applies to those facts? All that is part of the ratio. Then fourthly, what am I left with? Generally that stuff will be obiter.

A word of caution on this. Sometimes, particularly in the higher courts, decisions will be made on broader matters of principle which are more loosely connected to facts of the specific case in hand. Equally, and again in the higher courts, cases will often be joined, so the question the court will need to answer will be more general. In those circumstances, the facts of each underlying case may be less relevant. But you still need to go through the process of working out what question the court needs to answer, and the parts of the judgment that go to answering that question.
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Tinders
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Ah okay. Thank you so much for your help. I really appreciate it. All the best!
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Lawschoolhack
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(Original post by Tinders)
Ah okay. Thank you so much for your help. I really appreciate it. All the best!
Learning Legal Rules by Holland and Webb is good on this point with examples. Your law library may have a copy.
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Tinders
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(Original post by Lawschoolhack)
Learning Legal Rules by Holland and Webb is good on this point with examples. Your law library may have a copy.
Thank you!!
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wiktoria_imrak
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Reading journal articles or commentary on the relevant case may also be helpful. If you have access to Westlaw or LexisNexis, these will be suggested to you on the right hand side of the page (I think)
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