Sources and Systems of the Law

1. Sources and Systems of the Law MODIFIED FROM MATERIALS PROVIDED AS A COMPANION TO THE TEXT A Lawyer Writes

2. Sources and Systems of the Law • Sources of the Law • The Legislature • The Executive Branch • The Judiciary • English common law, Roman law, Mosaic law • Systems of Law • Jurisdiction • Hierarchical Court Systems • Stare Decisis and Precedent

3. Sources of the Law • A law is any binding custom or practice of a community. • Primary authority • Law from any branch of government. • Secondary authority • Commentary about the law. • What are examples of secondary authority? • Is secondary authority binding on anyone? • When is secondary authority helpful?

4. The Legislature • Legislatures create two types of authority frequently relevant to analyzing a client’s legal question. • Statutes • Legislative History

5. Statutes • Simply laws enacted by a legislature • Typically grouped into a statutory scheme

6. Legislative History • This is the record that develops as an idea makes its way through the legislative process and becomes a statute. • If the language of the statute is unclear, a court may look to the debate that surrounded the statute’s enactment and the history of amendments to the statute to interpret the statute’s meaning.

7. The Executive Branch • The executive branch also creates law. • Agencies within the executive branch can create regulations. • The President can issue executive orders.

8. Regulations • Although Congress has the sole authority to enact statutes, it often delegates the responsibility for creating regulations to implement the statute to the executive branch. • If your legal question involves a statute, you will need to determine if that statute also has accompanying regulations.

9. Executive Orders • Executive orders are policy directives that implement or interpret a statute, a constitutional provision, or a treaty. • Although executive orders can govern a legal question, they often play a less active role in governing peoples’ day-to-day lives and are less likely to be relevant to your legal analyses.

10. The Judiciary • Courts also create law. When a judge issues an opinion, that opinion becomes a part of the law. • Case law • Includes any judicial decision • Common law • A subset of case law; refers to only those areas of case law that developed in the absence of a statute

11. Judicial Opinions and the Body of Law • Judicial opinions can add to the body of law in several ways. • A judicial opinion can announce a new principle of law. • A judicial opinion can create law by interpreting a constitution, statute, or regulation. • A judicial opinion can create law by applying the law to a new set of facts.

12. Types of Authority • Mandatory Authority • Law from within the governing jurisdiction • Always primary authority • Binding on the parties and their dispute • Given the most weight in legal analysis • Persuasive Authority • Law from other jurisdictions • Can be primary or secondary authority • May be considered by a court deciding a legal issue and can be followed if the deciding court finds the reasoning expressed persuasive and consistent with the law from the court’s jurisdiction

13. Authorities and Their Weight

14. Traditional Court Hierarchy • Litigation begins in the trial court.

15. Traditional Court Hierarchy • After the final decision is reached in the trial court, any party not satisfied with the decision may appeal to the intermediate appellate court to ask for review of the trial court’s decision. • Usually, a person may appeal to an intermediate appellate court “as of right.”

16. Traditional Court Hierarchy • If a party is not satisfied with the result in the intermediate appellate court, the party may appeal to the highest appellate court. • Typically, the party must petition the highest court and ask that it hear the appeal. • If the highest court believes that reviewing the intermediate court’s decision will resolve a novel or important legal issue, it may grant the petition.

17. Hierarchical Court Systems • Decisions of higher courts are mandatory authority for lower courts within that jurisdiction. • Decisions of a lower court are merely persuasive authority to the courts above it in the same jurisdiction.

18. Federal District Courts • United States District Courts are the trial courts of the federal system. • Each state has one or more federal districts. • Each federal district has its own trial court. 6th Circuit States

19. Federal Circuit Courts • The circuit courts of appeals are the intermediate appellate courts of the federal system. • There are thirteen circuits • Eleven numbered circuits comprising federal districts of a number of states • The D.C. Circuit • Hears appeals from the D.C. District Court as well as some administrative agencies and the U.S. Tax Court • The Federal Circuit • Hears appeals from the Court of International Trade, U.S. Court of Federal Claims, U.S. Court of Appeals for Veterans’ Claims • Hears any appeal involving patent law

20. Federal Circuit Courts

21. United States Supreme Court • The United States Supreme Court is the highest court in the federal court system. • It reviews decisions from all thirteen circuits and is the “court of last resort.”

22. State Court Hierarchies • Typically, state courts have the same three-part structure, though some variety exists. Florida Supreme Court

23. Side-by-Side Court Systems • The federal and state court systems operate side by side. • The two systems coexist in the same regions unless there is a question constitutional interpretation for the United States Supreme Court. • Legal Research requires an understanding of the side-by-side hierarchies (and a constant recollection of where courts publish their cases).

24. United States Constitution State Constitution Highest State Appellate Court United States Supreme Court Intermediate State Appellate Court United States Courts of Appeals State Trial Court United States District Courts Hierarchy of the Federal and State Court Systems

25. Stare Decisis and Precedent • Requires a lower court to follow the decision of a higher court when the higher court has addressed the same issue and is in the same jurisdiction. • Transforms individual cases into law. • Creates consistency and fairness in our legal system. • Creates predictability.

26. Stare Decisis and Precedent • Stare decisis is triggered by precedent. • What is precedent? • A binding prior court decision • When is a prior decision binding on a court? • Only if it raises the same legal issue as the case currently before the court • The two cases must be governed by the same law and have similar facts • The precedental value of a prior case depends upon whether you can demonstrate that the facts of your case are sufficiently similar to the facts that determined the outcome in the prior case.