Law Class

Legal Research

Most legal information is organized by type of authority and jurisdiction. Two research approach options: source-driven and content-driven

Legal Resource Companies

Westlaw, Lexis Advance and Bloomberg Law are the best known online legal research providers. All three are commercial databases that allow you to access all of the types of legal authority. They charge subscribers for use of their services. Other commercial and free research services you may encounter in law school include Fastcase, Casemaker, Findlaw, and Cornell Law School's Legal Information Institute, among others.

Precedent

an earlier case in which a court applied the same or similar rule to decide a similar issue

Legislative Branch

(Congress) Creates statutes, which must be approved by the executive branch to go into effect. It is made up of the Congress and several Government agencies. Congress has two parts: the House of Representatives and the Senate. Members of the House of Representatives and the Senate are voted into office by American citizens in each state.

Judicial Decisions: Case Law

-Creates laws (commonlaw) when no law has been created by the legislative or executive branch -Interprets and applies enacted laws

What are the 4 main sources of law?

1)Constitution 2)Statutes (Legislative) 3)Court Opinions/Cases (Judicial) 4)Administrative Regulations (Executive)

Order of Authority: Federal and State

1.Federal Constitution (Highest) Government & Political framework 2.State Constitution 3.Statutes: passed by the legislature & signed by the executive 4.Administrative Regulations: powers delegated by legislatures 5.Case Law

Stare Decisis

A Latin phrase meaning "let the decision stand." Courts decide cases by applying precedent. Fosters predictability within the legal system. Most cases reaching appellate courts are settled on this principle.

Enacted Laws

Constitution: the fundamental law of a nation or state. Statute: a law enacted by a state legislature or by Congress. Ordinance: a law enacted by a local government; a subcategory of statutory law. Regulation: a law promulgated by an administrative agency.

Judicial Branch

Criminal and Civil courts that help interpret the United States Constitution. Source of court opinions. Courts interpret rules created by the legislative and executive branches of government. If a court determines that a rule does not meet constitutional requirements, it can invalidate the rule. Otherwise, however, the court must apply the rule to the case. Court opinions themselves can also be an independent source of legal rules. Legal rules made by courts are called "commonlaw" rules.

State Constitutions

Each state also has its own constitution. A state's constitution may grant greater rights than those secured by the federal constitution, but because a state constitution is subordinate to the federal constitution, it cannot provide lesser rights than the federal constitution does. All of a state's legal rules must comport with both the state and federal constitutions.

Federal Constitution

Establishes a system of government and defines the boundaries of authority granted to the government. Preeminent source of law in our legal system, and all other rules, whether promulgated by a state or the federal government, must comply with its requirements.

Secondary Authority

Helps to analyze, interpret and apply the law. Refers to discussions/analysis/comments of Primary law therefore not "the law" itself. It's non-binding. Example: Primary: Opinion from the U.S. Supreme Court Secondary: An article written by a private party explaining and analyzing the court opinion Can be written by legal scholars and publishers Secondary authorities are often quite useful in legal research because their analysis can help you understand complex legal issues and refer you to primary authorities. Persuasive/Non-binding: Once you identify an authority as secondary, you can be certain that it will not control the outcome of the question you are researching because all secondary authorities are non-binding. Nevertheless, some are more persuasive than others. Some are so respected that a court, while not technically bound by them, would need a good reason to depart from or reject their statements of legal rules. Others do not have the same degree of respect, leaving a court free to ignore or reject such authorities if it is not persuaded to follow them.

Primary Authority (aka "The Law")

Is the law. Main sources: Constitution, Statutes, Regulations, and Cases. Can be both mandatory or persuasive. Enacted laws (legislative and executive) and judicial decisions. Primary authorities: Constitutional provisions, statutes, cases, and administrative regulations contain legal rules, and as a consequence, are primary authorities. Because "the law" consists of legal rules, primary authority is sometimes described as "the law". Used to describe a source of a rule of law. Sometimes a primary authority is a binding (mandatory) and sometimes it is not. You must be able to evaluate the authority to determine whether it is binding on the question you are researching.

Legal Authority

Legal Authority is any published source of law that presents the legal rules, legal doctrine, or legal reasoning that may be used as the basis for legal decisions. The rules that govern conduct in society both legal rules that must be followed and other types of information that are not legal rules. For an issue governed by state law, the opinions of the courts within the relevant state are mandatory authority. For an issue governed by federal law, the opinions of the relevant federal courts are binding authority, Legal authorities have citations assigned to them. The citation is the identifying information you can use to retrieve a document from a book or database.

Commonlaw Rules

Legal rules made by courts. Court opinions can be an independent sources of legal rules. Although courts are empowered to make these rules, legislatures can adopt legislation that changes or abolishes a common-law rule, as long as the legislation is constitutional.

Statutes

Positive statement of legal rules, enacted by a legislator. Created by the legislative branch of government at both the federal and state levels. Statutes codify, clarify or supplement preexisting 'common laws', over turn it and create new ares of law, not covered by the common law. Statutes are compiled into codes which gather together the laws on a particular topic or subject. Written laws enacted by legislatures How it works: Congress passes a law- Then Congress delegates its authority to a federal agency that has expertise Ex: Clean Air Amendments app sets limits of air population, so Congress delegated authenticity to the Agency Ex: country's traffic regulations, tax laws, criminal codes, company formation regulations

Binding Authority (Mandatory Authority)

Primary authority only: cases, statutes, or regulations that the court must/obligated to follow because it is binding on the court. Term courts use to categorize the different sources of law they use in making their decisions. Contains one or more rules that you must apply to determine the correct answer to your research question. Must look at: -Jurisdiction: Must be within your jurisdiction -Level of the court: Includes prior decisions of higher courts to which you may appeal Ex: California trial court must follow state statures and decisions from a higher California court because they are binding authorities For example, all laws in the United States must comport with the federal Constitution because it is a primary authority that is binding, or mandatory, in all United States jurisdictions. As with other forms of primary authority, rules stated in court opinions are binding authority only within the court's jurisdiction. Ex: On questions of federal law, opinions of the U.S. Supreme Court are binding authority for all other courts because it has nationwide jurisdiction. An opinion from a circuit court of appeals is binding only within the circuit that issued the opinion and is non-binding everywhere else. Federal courts sometimes decide cases governed by state law. When that happens, the court deciding the case will treat the law of the controlling jurisdiction as binding authority.

Reporters (Law reports)

Series of books that contain judicial opinions from a selection of case law decided by courts of one type of authority from one jurisdiction. Others provide access to multiple types of authority from many different jurisdictions. Although these services aggregate a wide range of legal authority, they generally subdivide their contents much like print sources into individual databases organized by jurisdiction and type of authority.

Nonbinding Authority (Persuasive Authority)

Term courts use to categorize the different sources of law they use in making their decisions. Gives guidance but does not have to be followed. Conditions: -Non-binding primary and all secondary authority. -Outside of your jurisdiction or from a lower court. Refers to an authority that the court may follow if it is persuaded to do so, but is not required to follow. A non-binding authority, therefore, will not dictate the answer to your research question, although it may help you figure out the answer. Non-binding answer to the problem. Ex: A California court deciding a question of California law would consider the Texas opinion non-binding authority.

Weight of Authority

The degree to which an authority controls the answer to a legal question. Not all authorities have the same weight. The weight of an authority depends on its status as primary or secondary, as well as its status as binding or nonbinding. An authority's status as a primary or secondary authority is fixed. An authority is either part of "the law," or it is not. Anything that does not fit into one of the categories of primary authority is secondary authority. Distinguishing primary authority from secondary authority is the first step in determining how much weight a particular authority has in the resolution of your research question. Then you can determine whether the authority is binding or nonbinding.

Executive Branch

The president (for federal statutes)/ the governor (for state statutes). The executive branch also makes rules. Administrative agencies, such as the FDA or a state's DMV, are part of the executive branch. They execute the laws passed by the legislature and create their own regulations to carry out the mandates established by statute.

What are the 3 branches of government?

U.S. Constitution created three branches of government: Legislative branch: makes the laws Judicial branch: interprets the laws Executive branch: enforces the laws State governments are also divided into these three branches.