Final Review Flashcards
Stare Decisis - What is the Latin meaning?
Shortened latin term meaning “to stand by precedents and not disturb settled points”
Binding Precedent - What are the 3 considerations?
Precedent is mandatory if you determine these considerations:
1-whether the earlier case arose out of the same jurisdiction; and
2-whether the earlier case arose out of a higher court; and/or
3-whether the case is factually similar and whether it applies the same law (Lawyer’s “bread & Butter”).
Persuasive or Non-Binding Precedent - What does it refer to?
Refers to a case the court may follow or consider, but is not required to follow.
Usually considered if the issue of law was not previously litigated in the particular jurisdiction, so the court will look to other cases for guidance.
What does “Vertical System” refer to?
State courts must follow precedents form higher courts in the same jurisdiction.
Federal courts bound by higher courts in the same jurisdiction but they are separate systems.
Common Law - What is the definition / what are the primary sources?
Judicial decisions from judges.
Enacted Law - What is the definition / what are the primary sources?
Statutes, constitutions, administrative regulations.
Relationship of Primary Authority - What are four concepts from highest to lowest?
Constitutions
Statutes
Case Law
Administrative Decisions
Relationship of Primary Authority - What can “Constitutions” put constraints on?
May place constraints on state statutes and case opinions that are contradictory.
Relationship of Primary Authority - What can “Statutes” put constraints on?
May constrain case law and administrative regulations or rulings;
But a court may still interpret meaning of a statute or constitutional provision to determine if it applies.
Relationship of Primary Authority - What can “Case law” put constraints on?
May constrain administrative decisions.
Holding vs. Dicta - What are they and what is the difference?
Holding: Statement in the court’s decision answering the issues before the court. A holding is limited to the court’s statements resolving the necessary question actually at issue.
Dicta: Remarks that are not essential to the holding. They can be statements about principles of law or statements about how the law may apply in hypothetical facts.
Courts bound by precedent are only bound by the holdings of prior cases, they are not bound by dicta.
*A judge may choose to follow dicta, (persuasive not binding) but is never bound to do so.
In some cases dicta may be debatable. Dictum or Holding is completely dependent on the case at hand.
Is this Dictum or Holding? - An item must be physically delivered unless physical delivery would be impracticable.
Holding
Is this Dictum or Holding? - An item locked in a safe deposit box in a bank closed for the weekend need not be physically delivered.
Dictum
Is this Dictum or Holding? - A small, light, freely accessible item must be physically delivered in order to complete a valid gift.
Holding
Is this Dictum or Holding? - To constitute a valid gift of personal property, the donor must manifest his intention to make the gift.
Dictum (This example is a true statement of law, but it’s not the issue/not in dispute.
What is the following list of components a format of?
To
From
Re
Question Presented
Brief Answer
Statement of Facts
Discussion (most important section)
Conclusion
A Memorandum (memo)
What are two ways memos are kept objective?
1 - They should not be argumentative.
2 - The facts should be neutral.
What are the three branches of the American legal system and what do they do?
Executive Branch: creates administrative law
Legislative Branch: creates statutory law
Judicial Branch: interprets law & creates common law
What are examples of Federal Primary Sources of Law:
The Constitution of the United States
Federal Statutes
Federal Administrative Regulations & Decisions
Federal Court Decisions
What are examples of State Primary Sources of Law:
State Constitutions
State Statutes
State Administrative Regulations & Decisions
State Court Decisions
What is an example of
Judge-made Primary Sources of Law:
Case Law
What is an example of
Enacted Primary Sources of Law:
Statutes
Constitutions
Administrative Regulations
Two components of Common Law
In its most basic definition - judge made law.
Follows rules that courts made in the past.
Which has the greatest precedential value?
A state statute or an opinion of that state’s highest court?
state statute
Which has the greatest precedential value?
An agency regulation or a state statute?
state statute
Which has the greatest precedential value?
A state constitutional provision or a state statute?
state constitutional provision
Which has the greatest precedential value?
An opinion of the state’s highest court or ruling by a state agency?
an opinion of the state’s highest court
Which has the greatest precedential value?
State constitutional provision or an opinion of the state’s highest court?
state constitutional provision
True or False: The Legal system requires Predictability
Consistency
Guidance for the past
False: The Legal system requires Predictability
Consistency
Guidance for the future
Binding Precedent: When a higher court makes a ruling, it is considered binding to all lower courts within the same jurisdiction and also the same what?
Same fact pattern
True or False: American citizens have a right to be heard by the U.S. Supreme Court.
False: No one has a right to be heard by the U.S. Supreme Court, their review is discretionary.
What U.S. Circuit Court of Appeals is Texas in?
5th
What U.S. Circuit Court of Appeals is Alaska in?
9th
What U.S. Circuit Court of Appeals is North Dakota in?
8th
What U.S. Circuit Court of Appeals is Utah in?
10th
What U.S. Circuit Court of Appeals is Mississippi in?
5th
What U.S. Circuit Court of Appeals is Georgia in?
11th
What U.S. Circuit Court of Appeals is Alabama in?
11th
What U.S. Circuit Court of Appeals is West Virginia in?
4th
What U.S. Circuit Court of Appeals is New Hampshire in?
1st
What U.S. Circuit Court of Appeals is Massachusetts in?
1st
What U.S. Circuit Court of Appeals is Rhode Island in?
1st
What U.S. Circuit Court of Appeals is Connecticut in?
2nd
What U.S. Circuit Court of Appeals is Vermont in?
2nd
What U.S. Circuit Court of Appeals is New York in?
2nd
What U.S. Circuit Court of Appeals is New Jersey in?
3rd
What U.S. Circuit Court of Appeals is Delaware in?
3rd
What U.S. Circuit Court of Appeals is Pennsylvania in?
3rd
What U.S. Circuit Court of Appeals is Ohio in?
6th
What U.S. Circuit Court of Appeals is Tennessee in?
6th
What U.S. Circuit Court of Appeals is Kentucky in?
6th
What U.S. Circuit Court of Appeals is Michigan in?
6th
What U.S. Circuit Court of Appeals is Wisconsin in?
7th
What U.S. Circuit Court of Appeals is Illinois in?
7th
What U.S. Circuit Court of Appeals is Indiana in?
7th
What are the four categories of U.S. federal courts?
Supreme Court
Appellate Courts
Trial Courts
Outside Judicial Branch Courts & entities
How many U.S. appellate courts are there (U.S. Courts of Appeals)?
12 Regional Circuit Courts and 1 U.S. Court of Appeals for the Federal Circuit.
What U.S. Circuit Court of Appeals is Puerto Rico in?
1st
What U.S. Circuit Court of Appeals are the U.S. Virgin Islands in?
3rd
What U.S. Circuit Court of Appeals is Guam in?
9th
How many federal U.S District Court judicial districts are there?
94 Judicial Districts
What are the 4 types of Federal trial courts?
U.S. District Courts
U.S. Bankruptcy Courts
U.S. Courts of International Trade
U.S. Courts of Federal Claims
What are the “Outside Judicial Branch” Federal Courts and entities?
Military Courts (Trial & Appellate)
Court of Veterans Appeals
U.S. Tax Court
Federal administrative agencies and boards
On average how many cases a year does the Supreme Court hear?
It hear 75-80 cases a year (it receives around 10,000 petitions each year).
What are the only kind of cases the Texas Supreme Court hears?
Only Civil Cases
Country Criminal Courts hear Class “A” and “B” misdemeanors, up to 1 year in jail punishment.
Appellate court system is all on paper, they don’t re-do the trial for an appellate court proceeding. However Motion for new trial can occur if new evidence exists.
What are the only type of cases the Texas Court of Criminal Appeals hear?
Only Criminal Cases
True or False: A base verb that has been turned into a noun and should not be used is called a nominalization.
True
Uniform laws and model acts are _____ ?
Proposed statutes that can be adopted by legislatures.
This source has articles or annotations on discrete and hot topics and is regularly updated:
ALR: American Law Reports
True or False: Greenbook provides information about meaning of abbreviations and notations used by the Texas Supreme Court.
True
What are five secondary sources that can lead to primary sources during legal research?
1-Law Reviews
2-Treatises
3-Restatements
4-ALR (American Law Reports)
5-Legal Encyclopedias
What are six reasons to use the Bluebook?
1-Case Citations
2-Statutes Citations
3-Secondary Source Citations
4-Tables
5-Quotations
6-Abbreviations
True or False: A Case Digest is a secondary source.
False: A Case Digest is NOT a secondary source.
What are the four characteristics of Case Digests?
1-Subject index for cases.
2-Contains abstracts of cases.
3-Divided by jurisdiction and subject matter.
4-Begin with the Descriptive Word Index.
Headnotes appear before the text of every case in the National Reporter System. What are headnotes?
Headnotes are editorial enhancements and are not from the court for a given case.
Headnotes
A headnote is a paragraph summary of a single point of law discussed in the case.
Headnotes appear in the order the points of law are discussed in the case.
What are three main purposes of Shepardizing?
1-Verify current status of case OR a statute OR a regulation (Is it still good law?)
2-Tace a cases judicial history.
3-Research tool to obtain references to other citing cases and secondary sources.
Sam Jones case citation:
Jones v. McAbee, 352 F. Supp. 2d 820, 835 (S.D. Tex. 1983).
How many letters does a word need for the Bluebook to allow its abbreviation if substantial space may be saved and the result is unambiguous in context?
Eight letters
What are the two main goals of legal research?
1-Find Primary Law
2-Find Binding Precedent
Primary Law - What are three Categories of Primary Law Sources?
1-Statements of law by the courts or legislatures.
2-Case law, statutes, constitutions, administrative decisions, rules of court, and regulations.
3-May be binding (mandatory) or persuasive authority.
Secondary Law - What are four Categories of Secondary Law Sources?
1-Statements about the law by legal experts.
2-Explain, interpret, develop, locate, or update primary law.
3-Are never binding (mandatory) authority.
4-May be persuasive authority.
What are the following items examples of?
-Law review articles & legal periodicals
-Restatements of the law
-Uniform laws & model acts
-Legal encyclopedias & dictionaries
-Legal newspapers
-Treatises, hornbooks
-American Law Reports (ALR)
-Practice Materials - model jury instructions, form books
Secondary Sources, not to be cited to EXCEPT:
Law review articles, Restatements of the Law, and Treatises, hornbooks. These secondary sources are legal items so highly respected you can cite to them.
American Law Reports (ALR)
-Articles (annotations) on discrete issues - hot topics.
-Comprises five series and a federal series
-Contains Table of Jurisdictions (covers all jurisdictions)
-Update can be checked by looking in the book’s back pocket part and history table for superseded annotations.
What are examples of Uniform Laws & Model Acts?
-Model Penal Code
-Uniform Commercial Code
What are Uniform Laws & Model Acts?
Proposed statutes that are not law-unless adopted by a jurisdiction.
Uniform Laws & Model Acts include commentary, case summaries, and research notes.
They’re helpful if a jurisdiction wants to adopt them.
What are the following items examples of?
American Jurisprudence & Corpus Juris Secundum
National Encyclopedias
National Encyclopedias
-American Jurisprudence & Corpus Juris Secundum (similar to one another).
-Cover common law issues.
-Contain overview & background information.
-They should NOT be cited.
Should you cite to a National Encyclopedia?
No
What are the 5 main steps of the Legislative Process?
1-Introduce bill.
2-Passed by both houses of Congress.
3-Signed by the President (or President’s veto is overridden).
4-“Session Law” or “Public Law”.
5-Codification.
After a Bill becomes a Law, what happens?
-It is assigned a public law number (ex: slip laws).
-It becomes a session law.
Session Law added notes:
-arranged chronologically;
-Federal statutes can be located in Statutes at Large.
What is it called when recently-passed laws are reorganized by subject and placed within code?
Codification
What is the goal of codification?
To bring all laws on the same topic together.
Laws usually cover numerous topics, so they are codified by subject, not date.
What are three ways to find a statute during legal research?
1-Look up the citation.
2-Look up the name of the law.
3-Use the general index
(Usually published as a separate volume, indexes contain an alphabetical list of subject headings paired with citations to related sections in the corresponding code).
Two ways to always make sure and update your research:
1-Look at the pocket parts/supplements.
2-Don’t forget to Shepardize
(Is it still good law? / Did you identify any new developments?)
Unpublished Cases - Different courts have different rules.
You must check the local rules of the court you’re practicing in.
Unpublished Cases:
-Some jurisdictions: not precedent.
-Some jurisdictions: prohibit citing.
-Some courts: allow citation as persuasive only, but never binding.
Texas - Important Case Publication Rules:
-After January 2003, all civil cases must be published and all have precedential value. “Mem. Op.” must be included for memorandum opinions.
-All criminal cases must be published, can include a notation of “publish” or “do not publish.”
Federal - Important Case Publication Rules:
Unpublished decisions after 2007 can be cited.
Regarding Texas cases, there is are Courts of _____ Resort?
Courts of Last Resort
How are the Courts of Last Resort bifurcated in Texas?
Texas has bifurcated Courts of Last Resort split between Civil and Criminal cases.
Civil Cases = Supreme Court of Texas
*Also handles “death penalty” related cases for juveniles.
Criminal Cases = Texas Court of Criminal Appeals
This is the automatic jurisdiction for death penalty cases.
What is the relevant Texas Writ & Petition history regarding the year 1997?
Before 1997, to appeal a case to the Texas Supreme Court, you would file “application for writ of error.”
After 1997, for appealing a case to the Texas Supreme Court you file a “petition for review.”
For Appealing to the Texas Court of Criminal Appeals, what do you file?
You file a “petition for discretionary review” (PDR).
Regarding an application or petition to the Texas Supreme Court or the Texas Court of Criminal Appeals that is not granted, how do they indicate the court’s treatment?
If application or petition is not granted, the court would use different terms to indicate treatment.
Ex: “Petition Refused” from TX. Ct. of Crim. Appeals = is similar to cert. “Denied.”
vs.
“Refused” from TX Sup. Ct. = Gives same value to the court of appeal’s opinion as if it were the TX Sup. Ct.’s opinion.
For Texas, a writ or petition notation is considered what?
-A statement on the merits of the appeal that leads precedential weight to the value of the appellate decision.
*For criminal cases, this doesn’t really apply.
For Texas, what are the 4 categories of History Notation?
1-Granted
2-Denied
3-Dismissed
4-Refused
*Denied and Refused mean different things.
What Bluebook Table covers abbreviations for months of the year?
T12
What Bluebook Table covers abbreviations for Institutional Names in Periodical Titles?
T13
What Bluebook Table covers abbreviations for Geographical Terms like States, Cities, Territories, and Countries?
T10
What Bluebook Table covers abbreviations for Court Names?
T7
What Bluebook Table covers common abbreviations?
T6
Texas - Writ & Petition
-ALWAYS include petition and writ notations in ALL citations to court of appeals decisions. R6.1.1
-The Greenbook contains list of various terms & abbreviations.
-Writ or petition notations for civil cases can have precedential value; criminal petitions do not.
-Party seeks U.S. Supreme Court review, denial of cert. says nothing about intermediate appellate court, but in Texas… see Refused Notation Slide.
What Bluebook Table covers abbreviations for arbitral reporters?
T5
What does Bluebook Table T1 cover?
United States Jurisdictions
(T1.3 covers U.S. States)
Refused Notation - Texas Writ & Petition
A “petition refused” from Texas Court of Criminal Appeals is similar to cert. denied. It has no precedential value.
TX Supreme Court’s “refused” notation gives the court of appeal’s opinion the same precedential value as a state Supreme Court case.
Texas - Locating Writ & Petition Notations in 6 sources:
1-Texas Subsequent History Table (is a West publication)
For a very recent case check:
2-Westlaw (Keycite is its citation research service)
3-Lexis (uses Shepard’s)
4-Shepard’s Texas Citations
5-Advance Sheets of Southwestern Reporter (Texas Cases)
6-Texas Supreme Court Journal
Texas Subsequent History Table (is a West publication)
-Proper notation, citation from later decisions.
-If no part has filed an application, there will be NO entry provided (if recent case, and no info., use no writ history “n.w.h.”)
-Does not replace Shepardizing - won’t tell if case overruled by later decision. Does not replace Shepardizing - won’t tell if case overruled by later decision. For a very recent case check the 5 other sources.
During legal research, if you find nothing regarding petitions resulting from court decisions:
-If there are no abbreviations listed then no petition has been filed yet: “No writ. h” or “no pet. h”
-BUT if it is over 2 years it means no petition will be filed: “No writ” or “no pet”
pet = petition
During legal research, what if another citation is listed?
This means the court has taken on the case and wrote an opinion.
-Look up the case to see what the court did.
-Include the information as subsequent history (the opinion could address the merits, or involve the disposal of the petition).
Remember notations from the court of criminal appeals have no meaning (precedential value), but must be included in citations.
Texas Court of Last Resort - Citation Form
There is not writ or petition information for a Texas Court of Last Resort.
Texas Intermediate Appellate Courts - Citation Form
Opinions from intermediate appellate courts MUST have writ or petition history notation placed:
-In a parenthetical;
-History notation cannot be italicized or underlined. Use ordinary roman type.
Citation Form - Include the writ or petition abbreviation following the year of the decision and a comma. Do not italicize material within the parenthetical:
Mathis v. State, 437 S.W.3d 269 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).
Stanley v. Excel, 146 S.W.2d 203 (Tex. App.-Amarillo 1995, writ denied).
Citation Form - Texas Jurisdiction Change
-Texas intermediate appellate courts did not have jurisdiction before Sept. 1, 1981. They were known as courts of civil appeals.
-Citation format from intermediate appellate courts = Tex. App.
Citation Form - Intermediate Appellate Cases
Apple v. Banana, 691 S.W.2d 807, 811 (Tex. App.-Austin 1985, writ ref’d n.r.e.).
[*Writ of error refused no reversible error]
Cat v. Dog, 230 S.W. 200, 203 (Tex. App.-El Paso 1971, no writ).
What does the following stand for?
writ ref’d n.r.e.
Writ of error refused
no reversible error
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
Ellison v. Brady
Parties
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
924
Reporter volume number
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
F.2d
Reporter name abbreviation
F.2d = Federal Reporter for the Court of Appeals from 1891-date. Second Series.
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
872
First page of case located in the reporter
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
875-76
Jump cite
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
9th Cir.
Deciding court
9th Cir. = Ninth Circuit Court of Appeals (federal)
*Circuit Court of Appeals (state) is abbreviated:
Cir. Ct. App.
Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir. 1991).
What is this part in the case citation?
1991
Year/Date of decision
Citation Form - Typical Case Citations
Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1991).
Meritor Sa. Bank v. Vinson, 477 U.S. 57, 60 (1986).
*U.S. = United States Supreme Court 1875-date.
Citation Form - Common Mistakes
-Check your spacing(spacing not on final)
-Federal Circuit Cases, close up the space:
F.3d or F.2d
NOT: F.3rd or F.2nd
-For federal district cases, leave a space:
F. Supp
NOT: F.Supp
Citation Form - Short Form - Cases
-Once a case has been cited in full, subsequent references should be shortened by using either:
Id.
or
The case name short form.
Citation Form - Short Form - Id.
Id.
Use Id. only if there are no intervening cites:
-If you are referring to a different page: Id. at 267.
-Id. has a period after it, it should be italicized or underlined.
Citation Form - Short Form - Case Name
Use an abbreviated short form if there is an intervening cite:
Smith v. Jones, 555 S.W.2d 222, 224 (Tex. 1999) would later be cited as:
Smith, 555 S.W.2d at 224.
United State v. Jones, 200 F.3d 683 (4th Cir. 2001) would later be cited as:
Jones, F.3d at 687.
NEVER as Smith, at 224
NEVER as Smith, 555 S.W.2d 222 at 224.
*F.3d = Federal Reporter Third Series
Citation Form - Subsequent History
Parentheticals come before subsequent history.
Generally, list subsequent history of a case except for:
-Denials of certiorari; or
-Denials of discretionary appeals (more than 2 years old unless relevant)
-Irrelevant history on remand (rehearing, remanded) Rule10.7
Ex: State v. Thompson, 34 P.3d 382, 387-87 (Ariz. Ct. App. 2001), aff’d, 65 P.3d 420 (Ariz. 2003).
Don’t add cert. denied history.
*P.3d = Arizona Supreme Court Pacific Reporter, Third Series
Citation Form - Statute
Statute:
-Title Number
-Abbreviation for name of code
-Section Number
-Year the code was published
Citation Form - Statute
11 U.S.C. § 523 (1994).
Statute:
11: Title Number
U.S.C.: United States Code, Abbreviation for name of code
§ 523: Section Number
1994: Year the code was published
Writing/Editing/Grammar - Dealing with Numbers
Up to what number should be spelled out in legal writing?
Number under 100 must be spelled out.
Exceptions:
-Dates, time of day
-Addresses
-Fractions, decimals, percentages, scores, statistics
-Exact amounts of money, identification numbers (serial numbers)
Rule 6.2
Writing/Editing/Grammar - Prefer the Active Voice
Use the actor as the subject, not the object
-Subject - noun; object - noun that receives the action of the verb.
-Subject + verb = sentence. Some verbs need an object.
-Lawyers [subject] make [verb] arguments [object] or Lawyers argue.
Writing/Editing/Grammar - Prefer the Active Voice
Find the subject
-Is the subject the actor? vs Is the subject doing something. - active voice
-Is the subject being acted upon? Does a verb phrase include a form of “be” –is; was; were; are; been
-A verdict [object/subject] was reached [verb] by the jury vs. The jury reached a verdict.
What does “In re.” mean?
“In re.” means:
“in the matter of”
or
“petition of”
What does “ex rel.” mean?
“ex rel.” means:
“on behalf of”
*When adversary parties are named, omit all procedure phrases except “ex rel.”
What does “et al.” mean?
“et al.” means:
It indicates multiple parties.
What does “E.g.,” mean?
“E.g.,” means:
The authority is one of multiple authorities directly stating the same proposition.
What does “Accord” mean?
“Accord” means:
The authority is one of multiple authorities directly stating or supporting the proposition, and one of the other authorities was mentioned in the proposition.
What does “See” mean?
“See” means:
The authority supports, but does not directly state the proposition.
What does “See also” mean?
“See also” means:
The authority provides additional material supporting the proposition.
What does “Cf.” mean?
“Cf.” means:
The authority is different from the main proposition but sufficiently analogous to lend support.
When is “Compare” … “with” … used in citation writing?
When the authorities are similar or different in important respects.
What does “Contra” mean?
“Contra” means:
The authority directly states a proposition contrary to the main proposition.
When is “But see” used in citation writing?
When the authority clearly supports a proposition contrary to the main proposition.
What does “But cf.” mean?
The authority supports a proposition analogous to the contrary of the main proposition.
What does “See generally” mean?
background material related to the proposition.
What does “supra” mean?
Supra means:
Refers to material that has already appeared within the writing.
What does “infra” mean?
Infra means:
Refers to material that appears later in the writing.
When is “Id.” used in citation writing?
When citing the immediately preceding authority within the same footnote or within the immediately preceding footnote without intervening citing.
*The period at the end of “Id.” is always italicized.
