Chapter 5: Legal Research Flashcards
Objective of Legal Research
to find specific authorities (legal rules) that govern a certain issue
Two types of legal authorities
- primary (mandatory)
2. secondary (persuasive)
Primary Laws
a primary law is mandatory; mandatory refers to the amount of weight that it must be given in the decision making process
Separation of Powers
Legislative, Judicial, and Executive branches of government
Categorization of Primary Laws
primary laws are categorized by type and which government branch they are issued by
Official Publication
Publications of primary laws by legislature, court, or agency (or legal publisher)
Substantive Law
substantive law establishes and defines the basic rights and duties that govern society (constitutions, legislative enactments, common law [judicial decisions], executive actions)
Constitutional Law
for federal & state systems. Constitutional rules carry the most weight and prevail when conflicting against other rules within the same system
Charter
“constitutional law” at the local government level
Statutory Law
Based on legislative enactments called “statutes”
Weight of Law
Constitutional > Statutory > Administrative Rule or Judicial Opinion
Common Law
Carries less weight than statutory law as a general principle; common law can however carry more weight on constitutional grounds
Stare Decisis
Process used to synthesize legal principles from all prior cases with similar facts and similar issues of law (precedents) in order to arrive at a decision for a specific case
Precedent
A previous case is precedent if:
- facts and legal issues are similar to current case
- it was decided by majority decision of higher court
- the case was reported (published)
T/F: A case published by a federal court of appeals is precedent for all federal trial courts of that circuit
True; however, not precedent for OTHER federal court of appeals. Has to come from higher court authority
T/F: Stare decisis and precedent are two different terms, but essentially mean the same thing
False; many times they are used synonymously, but they refer to different things.
Precedent of Administrative Agencies
Administrative agencies may use quasi-judicial powers to determine whether its rules or regulations have been violated. These decisions are precedent, but have no precedent value outside of the agency (e.g. USCIS)
Executive Action
Action taken by the President or Governor of a state that have the force of law
Treaty
An agreement made between the United States and a different country
Interstate Compact
Agreement between two or more states (for example, removal of radioactive waste)
Procedural Law
rules by which substantive law is enforced (also known as adjective law)
What does procedural law do?
assure parties of a fair adversary process, fair hearing. can vary widely from jurisdiction to jurisdiction
Federal Procedural Law
Distinct sets of law:
- Federal Rules of Criminal Procedure
- Federal Rules of Civil Procedure
- Federal Rules of Appellate Procedure
- Federal Rules of Evidence
- Local Court Rules
Federal Rules of Criminal Procedure
the way a defendant is charged, tried, and sentenced for a crime
Federal Rules of Civil Procedure
how civil actions are handled (complaint, summons, answer, discovery process, trial, and post-trial procedures)
Federal Rules of Appellate Procedure
procedure for appeals (U.S. District Court of Appeals within fed. system)
Federal Rules of Evidence
types of admissible evidence in criminal and civil trials, also how evidence can be presented at trial
Local Court Rules
each court adopts their own procedures outside of other procedural rules
T/F: a local court rules that first pleadings are called a petition. Federal rules of civil procedure state that a first pleading is referred to as a complain. Is this allowed?
False; local court cannot change rules established by federal rules
State Procedural Rules
- typically rules similar to those at federal procedure
- typically used to fill the gaps of state statute or other procedural rule
How is Primary Law is recorded?
recorded predominantly in constitutions, statutes, administrative rules, and court cases
Constitutions
U.S. Constitution is always at the front of the U.S. code; state constitution is generally included at the front of the state’s statutory code + index
Statutes
When a statute is adopted by legislature, it is recorded in different forms at different stages of the legislative process
Bill
A proposed legislative measure; not law until adopted by the legislature
Slip Law
A bill that has been adopted; printed singly rather than as part of a group of laws
Session Law
Once a legislative session has ended, the slip laws are published in chronological order (by enactment date) and published as session laws
T/F: Statutes are codified by topic
True
Where are federal session laws published?
The Statues at Large (Stat.)
Where are federal session laws codified and published?
United States Statutory Code (U.S.C.)
What is the only complete collection of federal statutes?
the Statutes at Large
Official Publication
when an official body (like Congress) authorizes and directs the collection and publication of a law
Unofficial publication
a publication that has not been specifically authorized or sanctioned by an official body, but is compiled by an independent publisher
T/F: An official publication is more authoritative and accurate than an unofficial publication
false
United States Code Annotated (U.S.C.A)
published by West Publishing Company; uses key number system
United States Code Service (U.S.C.S)
published by lawyers co-operative publishing company; uses annotations
Key Number System
every topic and subtopic is assigned its own key number. same key numbers are referenced throughout all west publications
Annotation
explanatory notes; contains references to other cases, usually more limited than west publications
Session Laws of State Legislatures
typically publish session laws at the close of each legislative session
Local Legislatures
typically publish more sporadically, have their own codified methods
Federal Register (Fed. Reg.)
rules and regulations of federal agencies are published
Code of Federal Regulations (C.F.R.)
rules and regulations of federal agencies codified
Case Law
sometimes referred to as law reports, common law, court opinions, or court decisions
T/F: Court decisions and court opinions are synonymous terms
False; court decisions is the court’s ruling; court opinions are the explanatory comments regarding the ruling
Court Decision
the court’s ruling or disposition of the case (whether affirmed, reversed, remanded, or dismissed)
Court Opinion
the court’s explanatory comments, including rationale behind the ruling and dicta
Majority Opinion
opinion issued by the majority of judges of the appellate court; holding of this opinion may be cited as precedent if all other criteria are met (discussed supra)
Supra
Latin for “above,” in legal briefs and decisions it refers to the citation of a court decision which has been previously mentioned. Thus a case when first cited will be referred to as Guinn v. United States, (1915) 238 U.S. 347, meaning it can be found in volume 238 of the U.S. Reports (of the Supreme Court) at page 347 and was decided in 1915. The next time the case is cited as Guinn v. United States, supra.
Concurring Opinion
opinion issued by one or more judges of the appellate court which agrees with the result, but disagrees with the reason of the majority decision. *There can be more than one concurring opinion