AUTHORITY Flashcards
PRIMAL AUTHORITY
- Any form of law
- Example: a statute, case (court opinion), the constitution, executive orders, administrative rules/decisions, treaties, ordinances, charters & rules of court.
SECONDARY AUTHORITY
- Non-law
- Example: definitions from dictionaries, legal encyclopedias, treatises, articles from magazines, law journals, trade journals or magazines or any other non-law that is quoted in support of a legal issue.
Treatises
a book by a private publisher on a specific area of law
MANDATORY
If the material is from a higher authority than the court in which your client’s case is being heard, and within the court’s jurisdiction.
Example: a case you found in the law library that came from a higher court in the appropriate jurisdiction.
PERSUASIVE
material from a court of the same or lower level. (Court can choose whether to follow or not) court NOT required to follow
Example: a case from the same level of court or a case from a different jurisdiction.
STARE DECISIS
doctrine that hold’s a court’s previous decision should be followed UNLESS there is a compelling reason not to
NON-AUTHORITY
is anything a court would NEVER USE in reaching its decision.
Examples:
- A case that has been reversed by a higher court.
- A statute that has been superseded.
- A research book that is used as an index or that could
never be quoted.
CONSTITUTION
HIGHEST form of law is the fundamental law that establishes the basic rights and obligations of citizens & creates the branches of the government.
Example: US Constitution highest law in the U.S (individual states have their own constitutions)
STATUTES
Laws created by the legislative branch of the government
- U.S Congress creates federal statutes which are
contained in the U.S.C (U.S Code)
- State legislatures create statutes for their own states.
** Statutes are ENACTED LAW (which supersedes common law) **
OPINIONS
decision(s) of a court applying law to specific, factual situations.
- OFTEN referred to as case or case law.
- Example: the case Roe v. Wade is an opinion of the
court that applied WHAT the court deemed was a
constitutional right for a woman to have an abortion.
** Opinions are COMMON LAW **
TREATIES
represents an agreement between two or more governments.
- Example: President signs treaties, with the consent
of the senate.
- Strategic Arms Limitation Treaty (S.A.L.T) was
negotiated by the U.S and the Soviet Union but had
to be confirmed by the U.S BEFORE it became law.
EXECUTIVE ORDER
- a law created by the highest entity of the executive
branch such as the President or governor. - Example: the pardon of someone convicted of a crime.
ADMIINISTRATIVE RULES
rules and regulations created by state and federal
administrative agencies.
Example: the Federal Aviation Administration (FAA) creates rules governing air traffic throughout the country.
ADMINISTRATIVE DECISIONS
are created by administrative agencies applying administrative rules to factual situations
Example: the FAA can fine a person for making a joke about a bomb in an airport. After a hearing, the agency would issue a report detailing its decision
RULES OF COURT
these are the rules that govern the procedures of the state and Federal trial process
Court rules are created by the legislature, the highest court in the state, or both.
Example: the Federal Rules of Civil Procedure are the court rules for civil Federal trials.
