Hierarchy and Sources of Law Flashcards
Federal SMJ (Limited)
Federal Question: US Constitution, federal laws, treaties
Federal Diversity of Citizenship: Cases where parties are citizens of different states and the amount in controversy exceeds $75,000
Complete Diversity
all plaintiffs must be citizens of different states than all defendants – there can be no overlap in state citizenship between any plaintiff and any defendant
Domicile
an individual’s citizenship is determined by their domicile (permanent home).
A person can only have one domicile at a time, even if they own multiple residences
Factors of Domicile
Physical Presence: The person must physically reside in the state
Intent to Remain: The person must intend to make that state their permanent home.
State Court SMJ
State courts can hear almost any kind of case including civil, criminal, family, probate, and contract disputes, unless a case falls under the exclusive jurisdiction of federal courts (like bankruptcy or federal criminal cases)
Concurrent Jurisdiction
State courts can hear cases involving federal law unless federal law grants exclusive jurisdiction to federal courts
Judicial Efficiency and Accessibility:
Allowing state courts to hear federal cases helps balance the workload between courts and increases access to justice for the public
No Exclusive Federal Jurisdiction
Only cases explicitly reserved for federal courts (bankruptcy, patents) are outside state courts’ jurisdiction
Filibuster
Action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question
Filibuster Process
New bill introduced by Senator > Bill goes to committee > Bill moves to Senate for debate > Goes to senate floor
Filibuster - # of votes to pass
51 (simple majority)
Filibuster - # of votes to end debate and proceed to voting
60 votes (supermajority)
Silent Filibuster
When a group of 41 or more senators threatens a filibuster, the Senate majority leader can refuse to call a vote
Nuclear Option
Used to lower the vote threshold required to end debate on certain matters, such as judicial nominations or executive appointments, from the standard 60 votes to a simple majority of 51 votes
Primary Sources of Law
Mandatory/Binding Authority
Examples of Primary Sources of Law
Constitution
Treaties
Executive Orders
Rules of Procedure
Rules of Evidence
Statutes
Regulations (created by state and federal agencies)
Ordinances
Case opinions (aka Case law/Common law)
Secondary Sources of Law
Persuasive/not binding
Explain, rephrase and summarize the law
Providence discussion, analysis, description and critique
Examples of Secondary Sources of Law
Dictionaries
Practice series/materials
Treatises
Restatement
Legal Encyclopedia
Practice Guides
Law Review
Treatises
Written explanation and discussions about a particular subject of law
Restatement
Type of treatise on specific legal subjects
Gathers common law on a particular subject from around the country that has developed over the years
Legal Encyclopedia
Provide information about legal subjects and give commentary
Provides citations to real law (primary law)
Practice Guide
Organized by Subject
Designed to help lawyers practicing in that area of law
Provide step-by-step procedures for a certain task that is commonly required for that area of law
Includes some interpretations and analysis of the law
Includes citations to primary sources
Law Reviews (aka Journals)
Scholarly journals that include articles written by lawyers and law professors (sometimes law students)
Analyze and critique the law/developments in the law
Sometimes comment on what the law should be
of votes needed in House of Reps to impeach a president
simple majority (51)
