4 Primary Sources of Law
Constitutional Law, Statutory Law, Administrative Law, and Case Law/Common Law Doctrines.
Secondary Sources of Law
Books and articles that summarize and clarify the primary sources of law. Legal encyclopedias, treatises, articles in law reviews, and compilations of law such as "The Restatements of the Law.
Primary Type I: Constitutional Law
The Supreme Law of the Land" according to Article VI (6) of the US Constitution. The federal and state constitutions set forth the general organization, powers, and limits of their respective governments.
The Tenth Amendment
The amendment to the Constitution which reserves for the states all powers not granted to the federal government.
Primary Type II: Statutory Law
The laws enacted by legislative bodies at ANY level of government. Statutes passed by Congress or by state legislatures. Passed statutes are included in the federal/state code of laws. Statutory law also includes ORDINANCES and optional UNIFORM LAWS.
Ordinances (Statutory Law)
Statutory law passed by municipal or county governing units that is not covered by state or federal law. Commonly have to do with city land use, safety codes, and matters effecting the local community. Must not violate federal or state constitution.
Uniform Laws (Statutory Law)
Model laws that states can consider adopting. If the legislature adopts, it becomes a part of state statutory law. May adopt all OR part of a uniform law.
Uniform Negotiable Instruments Law
The earliest uniform law. Adopted by every state.
The Uniform Commercial Code
Created by NCCUSL and the American Law Institute. All 50 states including the District of Columbia and the Virgin Islands have adopted the UCC. Promotes commerce and ensures businesspersons that their contracts will be enforced.
Primary Type III: Administrative Law
Rules, orders, and decisions of administrative agencies. An administrative agency is a federal, state, or local government agency established to perform a specific function.
Administrative Agencies
Dominant element in the regulatory environment of businesses. Dictates capital structure, hiring and firing, employee and union relations, and environmental regulations.
Federal Administrative Agencies
At the national level, the cabinet departments of the executive branch include numerous executive agencies such as the USDA and the FDA. Executive agencies are subject to the authority of the president who has the power to appoint or remove officers.
Independent Regulatory Agencies
Includes the FTC, SEC, and the FCC. The presidents power is limited because their officers serve fixed terms and cannot be removed without just cause.
State and Local Agencies
Typically created to parallel a federal agency.
Primary Type IIII: Case Law and Common Law Doctrine
Rules of law announced in court decisions. Includes interpretations of constitutional provisions, statutes enacted by legislatures, and of regulations created by administrative agencies. "Judge made law." Governs all areas not covered by statutory law and
English Common Law
Much of American law is based on the English legal system.
William the Conqueror
He began the process of unifying England under his rule. To do this, he established the kings courts.
curiae regis
The Kings Courts
Purpose of the King's courts
To establish a uniform set of customs for the country as a whole (ie common law).
Courts of Law and Remedies at Law
The early English courts could only grant limited kinds of remedies (the legal means to enforce a right or wrong).
Remedies at Law
The King's courts would award as compensation one or more remedies at law: land, items of value, or money. These courts became known as Courts of Law.
Monetary damages
The modern version of a remedy at law.
no remedy, no right.
Only economic compensation could be provided by the Courts of Law. If other compensation was needed, the courts could do nothing.
Courts of Equity and Remedies in Equity
When individuals could not be granted an adequate remedy at law, they petitioned the King for relief. Most decisions were decided by the advisor to the King - the chancellor.
Courts of Equity
Formal chancery courts that were established to grant remedies in equity aka equitable remedies.
Equity
A branch of law. Founded on what might be described as notions of justice and fair dealing. Seeks to find a remedy when no economic remedy is available.
Types of Remedies in Equity
specific performance, injunction, recission
Remedies in Equity: Specific Performance
Ordering a party to perform an agreement as promised.
Remedies in Equity: Injunction
Ordering a party to cease engagement in a particular activity or to undo some wrong or injury.
Remedies in Equity: Recission
Cancellation of a contractual obligation.
General rule about remedies in equity
As a general rule, courts of today will not issue a remedy in equity unless the remedy at law (monetary damages) is not sufficient.
Equitable Maxims
In fashioning appropriate remedies, judges often were guided by equitable maxims - or general statements of equitable rules.
Equitable Maxim 1
Whoever seeks equity must do equity.
Equitable Maxim 2
Where there is equal equity, the law must prevail.
Equitable Maxim 3
One seeking the aid of equity courts must come to the court with clean hands.
Equitable Maxim 4
Equity will not suffer a wrong to be without a remedy.
Equitable Maxim 5
Equity regards substance rather than form.
Equitable Maxim 6
Equitable Doctrine of Laches" - Equity aids the vigilant, not those who rest on their rights.
Equitable Doctrine of Laches
Laches = lax/negligant. Can be used as a defense. Encourages people to bring lawsuits while the evidence is still fresh. Statutes of limitations determines what amount of time is reasonable.
Statute of Limitations
Determines what a reasonable amount of time is to fulfille the equitable doctrine of laches. Once the statute of limitations expires, no lawsuit can be brought regardless of how strong the original case.
defendant/respondent
The person being sued. (Respondent in a court of equity)
plaintiff/petitioner
The person bringing the lawsuit.
Right to demand a jury
A party can only demand a jury in an action at law but not for an action in equity.
Judge made law
A unique feature of common law.
Case precedents and case reporters
Judges try to be consistent, base decisions on earlier cases. New decisions will create new laws (legal precedent) that can be used for deciding subsequent cases.
year books
Where the majority of court decisions could be found in the 14th century. In te 16th century, yearbooks were replaced by other forms of publications.
Reporters
Today, cases and case decisions are published in volumes called reporters.
Stare Decisis
To stand on decided cases" - Practice of deciding cases with reference to former decisions.
Stare Decisis Doctrine
Obligates judges to follow the precedents established within their jurisdictions. Their court and lower ranked courts must adhere to that same principle.
Two Aspects of Stare Decisis
1. Decisions made by a higher court bind lower courts. 2. A court should not overturn its own precedents unless there is a compelling reason to do so.
Binding Authority
Any source of law a court must follow (controlling precedents).
Binding Authority of the US Supreme Court
US Supreme Court decisions remain binding until they are overruled by the Supreme Court, a constitutional amendment, or congressional legislation.
Departures from precedent
Might depart from precedent if technological or social changes render it inapplicable. Often receives a great deal of publicity - ie desegregation of schools. A lower court can avoid applying precedent if it can distinguish the two cases based on facts.
Cases of first impression
Cases where no precedent exists. Courts often look to "persuasive authorities" which are precedents from other jurisdictions and "public policy" which is govt policy based on widely held social values.
Legal Reasoning
Reasoning process used by judges in deciding what law applies to a given dispute. Using legal reasoning, judges harmonize decisions with those made before.
IRAC - Basic Steps in Legal Reasoning
I = Issue / R = Rule / A = Application / C = Conclusion.
IRAC
What is the Issue? What rules of law apply to the case - could be stated by courts previously. / How do the rules of law apply to the particular facts and circumstances of the case? Uses cases in point. / What Conclusion should be drawn?
Forms of Legal Reasoning
To help decide how the rules apply to the facts. Deductive Reasoning, Linear Reasoning, Reasoning by Analogy
Deductive Reasoning
Syllogistic Reasoning". Involves a major premise, a minor premise, and a conclusion.
Linear Reason
Proceeds from one point to another - ie "knotted rope.
Reasoning by Analogy
To compare the facts in the case to the facts of previous cases so that the same rule of law can be applied.
Common Law by Judges
ONLY applies to areas not covered by statutory or administrative law. Still, judges need to interpret these statutes, so common law practices still apply.
Restatements of the Law
Clarifies and illustrates common law - drafted and published by the ALI (American Law Institute). Exists in the areas of torts (actions), contracts, agency, trusts, etc. DO NOT HAVE THE FORCE OF LAW. Secondary Source.
Jurisprudence
How judges apply the law to specific cases including disputes related to the business world.
Jurisprudential Schools of Thought
Natural Law, Positivist, Historical, and Legal Realism
Jurisprudential Schools of Thought: Natural Law
States that a higher universal law exists that applies to all human beings. If a written law is unjust, it should be ignored. Dates back to Aristotle who distinguished between natural law and national laws.
Jurisprudential Schools of Thought: Positivist School
Positive/National law applies only to the citizens of that nation or society. Legal Positivism states that no higher law exists outside of a nations positive law. No such thing as natural rights. Whether a law is good or bad is irrelevant. Positivist lean
Jurisprudential Schools of Thought: Historical
Emphasis on the evolutionary process of law by concentrating on the origin and history of the legal system. Looks to the past to see what legal action was taken before and stood the test of time. More likely to follow decisions made in past cases.
Jurisprudential Schools of Thought: Legal Realism
Rebelled against the historical approach to law. Based on the idea that law is just one of the many institutions governing society. Belief that laws can never be applied with total uniformity. Influenced by "sociological school". LAW IS A TOOL FOR PROMOTI
Classifications of Law
Substantive Law and Procedural Law/ Civil Law and Criminal Law, etc.
Substantive Law vs Procedural Law
Substantive law defines describes and regulates legal rights and obligations. Procedural law explains the procedure in which these substantive laws may be enforced.
Criminal Law vs Civil Law
Civil law spells out the rights and duties that exist between persons and their governments and the relief available when a person's rights are violated. Private Party vs a Private party is typical, can also be the govt vs a private party. Criminal Law is
Citations
Identify the publication in which a legal authority - such as a statute or a court decision - can be found.
US Statutes at Large
When Congress passes a law, it can be found here.
Codified Form
Laws are referred to in this way. This is how they appear in federal and state codes. They are compiled by subject.
US Code (U.S.C)
Arranges all existing federal laws by broad subject and each of the 50 subjects is given both a title and a title number. This is further subdivided into section numbers. 15 U.S.C. Sec 1 = Title 15, Section 1 of the US Code.
West Group
Commercially publishes U.S.C.A which is the U.S.C. with annotations included. Similar citation is used.
State Codes
May be categorized by name or by number.
Federal Register
This is where Administrative rules are published. A daily publication of the US government. These rules are later incorporated into the Code of Federal Regulations.
Court Heirarchy
Trial Courts ---> court of appeals/appellate courts--->State Supreme Courts or US Supreme Court.
Reporters
Where appellate courts decisions are published. They may also be published in regional reporters which are a part of the national reporter system. Lists citations in this order: Vol No., Name, Page No.
WL
WestLaw - and online legal database that publishes unpublished opinions.
Appellant
Party appealing the case
Appellee
Party against whom the appeal is taken
Opinions
Written opinions explain most decisions reached and reasons for decision. May be unanimous, majority, concurring, or dissenting opinions.