Chapter II: Determination of Governing Law

Question 1

to determine what law controls your case…

Answer 1

1. determine jurisdiction
2. identify the current law that applies to your case
   - examine the hierarchy of authorities
   - consider relevant precedent and dicta

Question 2

Jurisdiction

Answer 2

• The right of a state or of the federal gov to apply its laws to a dispute and to exercise control over a conflict
• also defined as a geographic area

Question 3

factors that determine jurisdiction of a case

Answer 3

• where the dispute arose
• the parties involved in the case
• the nature of the dispute

Question 4

the holding

Answer 4

The holding is the basic law decided by the court. If there is more than one issue then there is more than one holding.
- the holding is also called the precedent

Question 5

stare decisis

Answer 5

Lower courts must follow the decisions or precedents of the higher courts in their jurisdiction.
- need to research what courts have done in the past

Question 6

Persuasive authority

Answer 6

When decisions of appellate courts outside the circuit of your case are used to persuade an appellate court to make a certain decision.

Question 7

mandatory authority

Answer 7

Must be determined for each case to determine what authority has jurisdiction.

Question 8

mandatory binding authority

Answer 8

A courts decision that has authority over another.

- Federal courts may decide issues of both state and federal court

Question 9

conflicting authorities

Answer 9

When a state and federal law govern the same area. The authority that has more power is determined by reviewing the constitution.

Question 10

dicta

Answer 10

A court’s decision on an issue that they have not been directly presented with.

• dicta is the statement the court makes
• helpful in seeing the type of decisions the court will make

Question 11

sources of primary authority

Answer 11

• a law generated by governmental body
• cases decided by any court
• legislative enactments
• administrative rules and decisions

Question 12

sources of secondary authority

Answer 12

• not generated by governmental bodies
• commentary written by attorneys or other experts
• often direct you to primary sources
• treatises
• restatements of the law
• dictionaries
• legal periodicals
• american law reports
• books
• uniform codes

Question 13

digests

Answer 13

Books of case abstracts arranged by publisher. Includes assigned topics instead of chronological order.

Question 14

annotated statutes

Answer 14

Case abstracts written by the publisher.

Question 15

citators

Answer 15

Listings of cases and secondary authorities.

Question 16

finding tools

Answer 16

Digests and citators that help in finding primary sources.

Question 17

factual authority

Answer 17

• nonlegal sources

- can be cited if used to provide insight on the court decision

Question 18

uniform codes

Answer 18

Suggested laws often devised by experts.

Question 19

essential sources to cite

Answer 19

Sources you want to have and be able to cite:

• primary, binding authority in the jurisdiction of your case
• primary, binding authority not in the jurisdiction if not able to find within the jurisdiction
• if writing legal memorandum for an attorney primary sources for and against your case must be cited
• restatements of law or treaties can be cited when lacking primary sources

Question 20

sources never to cite

Answer 20

• digests
• annotations in secondary authorities
• case abstracts listed in annotated statutes
• nonlegal sources should not be cited unless they support factual statements