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the process of finding the law that applies to a client's problem
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is the process of determining how the law applies to the problem
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is defined as the enforceable rules that govern individual and group conduct in society
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Enacted Law
Common or Case Law
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Constitutions - adopted by the people
Statutes, ordinances - laws passed by legislative bodies
Administrative- actions of administrative bodies that have the force of law |
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| a governing document adopted by the people. It establishes the framework for the operation of govenment, defines the powers of government, and guarantees the fundamental rights of the people. |
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| United States Constitution |
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Establishes and defines the poweres of the three branches of federal government
Establishes the broad powers of the federal and state governments and defines the relation between the federal and state governments
Defines in broad terms the rights of the members of society
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Each state has adopted a ______ that establishes the structure of the state government. Each state, also, defines the powers and limits of the authority of the state government and the fundamental rights of the citizens of the state.
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| Laws passed by legislative bodies are called ____. _____ declare rights and duties or command or prohibit certain conduct. _____ consist of any law passed by any legislative body: federal, state or local, referred to by such terms as acts, codes, statutes or ordinances. |
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| the body of law created by administrative agencies. It is composed of the rules, regulations, orders, and decisions promulgated by the administrative agencies when carrying out their duties. |
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| Common Law/Case Law/Judge Made Law |
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law created by courts in the absence of enacted law.
Case law encompasses a broader range of law than common law. Case law includes not only the law created by courts in the absence of enacted law, but also the law created when courts interpret or apply enacted law.
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Disputes in our society arise from specific fact situations. The courts are designed to resolve these disputes.
The creation of new law and the interpretation and application of existing law by the courts become law itself.
The result reached by a court is usually called a decision. The court's written decision, which includes the reasons for the decision, is called an opinion. The case law is composed of the general legal rules, doctrines and principles contained in court opinions. |
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| The result reached by a court is usually called a ____. The court's written _____, which includes the reasons for the ____, is called an opinion. The case law is composed of the general legal rules, doctrines and principles contained in court opinions. |
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| is the authority of the court over the parties to resolve a legal dispute involving the parties |
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| Subject matter jurisdiction |
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| is the court's authority over the types and kinds of cases it may hear and decide. |
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Trial court
Court of appeals
United States Supreme Court |
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| the court where the matter is heard and decided. If the trial is conducted by a judge and a jury, the judge decides questions of law such as what the law is or how it applies. The jury decides questions of fact such as whether a person performed a certain act. |
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The primary function is to review the decision of a trial court to determine and correct any error that may have been made.
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| The United States Supreme Court |
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| The final court of appeals in the federal system. It is the highest court in the land. A party who disagrees with the decision of a court of appeals must ask (petition) the court to review it. The request is called a petition for writ of certiorari. |
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Trial court
court of appeals
state supreme court |
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| an earlier court decision on an issue that applies to govern or guide a subsequent court in its determination of an identical or similar issue based upon identical or similar facts. A case that is ______ is often called on point. |
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| basic principle of the case law system that requires a court to follow a previous decision of that court or a higher court, when the current decision involves issues and facts similar to those involved in the previous decision. The doctrine does not apply if there is a good reason not to follow it. |
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| Reasons not to follow Stare Decisis |
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The earlier decision has become outdated because of changed conditions or policies.
The legislature has enacted legislation that has, in effect overruled the decision of an earlier court.
The earlier decision was poorly reasoned or has produced undesirable results. |
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Constitution (top)
Enacted - legislative and admnistrative
Case |
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| The United States Constitution separates the powers to govern between the federal and state governments. |
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| The constitution (Article VI) provides that between federal and state law, federal law is supreme. |
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the law itself
It is composed of the two main categories of law, enacted law and case law
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any source other than law
consists of legal resources that summarize, compile, explain, comment on, interpret or in some other way address the law |
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Secondary authority can be use to:
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- Obtain a background or overall understanding of a specific area of the law. Legal encylopedias are useful for this purpose.
- Locate pimary authority (the law) on a question being researched. American Law Reports (ALR), treatises, digest, and Shepard's can be used for this purpose.
- Be relied on by the court when reaching a decision, which usually occurs only when there is not primary authority governing a legal question or it is unclear how the primary authority applies to the question. Treatises, law reviews, and Restatements of the Law are relied on for this purpose.
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| Examples of Secondary Authorities |
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Annotations
Law Dictionaries
Law Reviews
Legal Encyclopedias
Restatements of the Law
Treatises |
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| notes and comments on the law. One of the most well know is American Law Reports (ALR) |
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include definitions of legal terms (and usually a citation to the authority for the defintion) and guides to pronunciation
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scholarly publications usually published by law schools
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| A multivolume set of books that provides a summary of the law |
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| Published by the American Law Institute, presents a variety of topics and discusses what the law is on each topic, or what it should be. |
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Mandatory - enacted law- case law
Persuasive |
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| any source that a court must rely on or follow when reaching a decision (e.g. a decision of a higher court in the jurisdiction on the same or a similar issue) |
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| Process for determining whether an enacted law applies to govern a legal question |
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- Identify all the laws that may govern the question.
- Identify the elements of the law or statute.
- Apply the facts of the case to the elements.
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for a court opinion to be mandatory authority, binding another courst to follow the rule or principle of law established in the opinion, two conditions must be met:
- the court opinion must be on point
- the court opinion must be written by a higher court in that jurisdiction
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| any authority a court is not bound to consider or follow but may consider or follow when reaching a decision. |
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| Primary Authority as Persuasive Authority |
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| On occasion, courts look to enacted law as persuassive authority. |
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| Secondary Authority as Persuasive Authority |
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Secondary authority should not be relied upon when there is mandatory authority. If there is no mandatory authority and there is persuasive authority, then the secondary authority may be used in support of the primary authority.
Secondary authority is most valuable in situations where there is not primary authority, either mandatory or persuasive. |
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