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Law - Vocabulary and Concepts Flashcards

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1
Q

Advanced Sheets (court reporter)

A

Advanced Sheets are the cases issued in pamphlet form prior to their publication in the bound volumes.

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2
Q

American Law Reports (2nd’ary) A.L.R.

A

American Law Reports (2nd’ary) (West) = A.L.R. = provides

  • editorial discussion on the topic of law
  • reports leading to cases
  • summaries of important cases
  • cross-reference to West Key No.
  • Index to Annotations: Table of Laws, Rules & Regs, and Annotation History Table
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3
Q

Annotations - by atty. generals

A

Annotations - by atty. generals

  • The Atty. General gave an interpretation of part or all of the law.
  • Annotations by Atty. Generals have some authority, but…
  • Only Persuasive, NOT Precedent Holding.
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4
Q

Annotations - of a case

A

Annotations - of a case

Case annotations are short paragraphs on how courts have interpreted and applied the statute.

They help you understand how the case is relevant to your case.

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5
Q

What can a person APPEAL?

A

An appellant can only appeal on “questions of law”, and not questions of facts.

An appellant can only claim the trial judge made errors in application of law principles but not of facts

Everyone has the right to ONE appeal.

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6
Q

Appellate Court (define, and functions)

A

an Appellate Court hears appeals from the trial courts within its jurisdiction (i.e. within its purview). It can be called Supreme Court, or Court of Appeals, or Supreme Judicial Court. . an Appellate Court usually accepts the facts found (determined) by the trial court. It does not ordinarily consider facts or witnesses or factual events (when, what, where) because all that was done by the trial court. . an Appellate Court is to assess and decide the claim that the trial court committed legal error. Legal errors could be: - Prejudicial rulings: admitting or excluding testimony or evidence - Mistakes in law-application, in selecting and applying rules, insufficient evidence to prove the case - Violation of state or federal constitutional provisions

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7
Q

Appellate Court (names and structure)

A

The highest court in many states is called the Supreme Court, or the Court of Appeals, or the Supreme Judicial Court. In the federal court system, the highest court is the United States Supreme Court. Then there are intermediate appellate court, or the United States Court of Appeals, which is organized on a regional basis into 12 circuits + 1 Federal Circuit.

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8
Q

Binding Precedent

A

a Binding Precedent means - - a decision of a court in a prior case controls the decision in future cases with similar facts and issues - for both the deciding court and for all inferior (lower) courts within the same jurisdiction. (remember: within the same jurisdiction) a Binding Precedent is both a norm (should) and a prediction (expected).

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9
Q

Brief (a court brief)

A

A court brief is a concise outline of an actual court decision

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10
Q

Brief (a lawsuit brief)

A

embodies the points of law which attorney desires to establish, together with arguments and authorities, upon which to rest his contention

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11
Q

Brief (a court document)

A

a Brief (in the meaning of a court document) is - a formal written argument - submitted to a court - at a motion, during trial, or on appeal

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12
Q

Brief (of a case)

A
  • A Brief of a case is a summary of the important elements of a published case. It contains - - facts - procedural history - issue - holding - judgement - reasoning.
  • Briefing a case means dissecting and summarizing the parts of a case to understand the whole.
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13
Q

Briefing a case - basic steps

A

Briefing a case - basic steps

  1. Read the opinion
  2. Heading
  3. **Facts **
  4. **Procedural history **
  5. Issues
  6. Judgment
  7. Holding
  8. Law / legal principle applied
  9. Reasoning
  10. Concurring / Dissenting
  11. Add’l comments or impression? (your own)
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14
Q

Briefing a case - Comments/Impression

A

Briefing a case - Comments/Impression

This is YOUR OWN comments / impressions:

  • Your reactions and critique of the opinion
  • What you like or dislike
  • Is the reasoning sound, contradictory, not logical?
  • What is the political, economic, social impact?
  • Is the decision similar to those in similar cases? (in line with other cases?)
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15
Q

Briefing a case - Concur/Dissent

A

Briefing a case - Concur/Dissent

A judge may write dissenting opinion OR a separate concurring opinion (if agreeing with the decision, but disagreeing with the logic / reasoning)

***The only thing to summarize in a concurrence or dissent is the RATIONALE of the Justice***

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16
Q

Briefing a case - Decision

A

Briefing a case - Decision

The DECISION in a Case Brief summarizes

  • the rules of law
  • how the rules of law applied to the facts
  • what conclusion the (appellate) court reached

Use the IRAC method for the DECISION of a Case Brief

IRAC = (Response to) Issue, Rule of law, Analysis of the rationale and how it applied the law to the fact, Conclusion

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17
Q

Briefing a case - Statement of Facts

A

Briefing a case - Statement of Facts

a. Identify parties, relationship, status
b. Relevant facts to tell what happened that led to the parties suing each other (Why the controversy?)
c. Procedural facts: (1) cause of action (C/A); i.e. what law was broken, (2) relief sought by plaintiff, (3) defense raised by defendant

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18
Q

Briefing a case - Heading

A

Briefing a case - Heading

a. Case name ( to identify parties)
b. Court name
c. Date of decision
d. Page of number on case book

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19
Q

Briefing a case - Holding

A

Briefing a case - Holding

Holding is a statement of law = the court’s answer to the appealed issue.

Holding = either positive or negative of the statement of Issues

Holding = not just a Yes or No. May start with a Yes or No, but must explain Reasoning WHY

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20
Q

Briefing a case - Issues

A

Briefing a case - Issues

  • The statement of issue s/b written in ONE SINGLE SENTENCE - usually a YES or NO Question*
  • The question s/b phrased as a LEGAL QUESTION because it describe the legal problem the court solved.*
    a. Substantive Issues
  • Law in dispute
  • Legally relevant facts (what led to the dispute of law)

b. Procedural issues: Why the appellant claimed the lower court was wrong (ruling on evidence, jury instructions, judgment, etc.)

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21
Q

Briefing a case - Judgment

A

Briefing a case - Judgment

What is this court’s final decision?

This court’s response to the appellant? Affirm, reverse, reverse w/ instruction, remanded for clarification, etc.?

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22
Q

Briefing a case - Law / Legal Principle

A

Briefing a case - Law / Legal Principle

Rule of Law / Legal Principle =

  • What the court applies to determine the substantive rights of the parties.
  • Could be a Statute, a Case Rule, a Regulation, or prior cases’ holdings (common law)
  • Can be expressly or implied
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23
Q

Briefing a case - Legal Procedure

Briefing a case - Nature of Case

Briefing a case - Procedural Basis

A

Briefing a case - Procedural Basis / Nature of Case / Legal Procedure

= a very short statement - ONE SENTENCE - to explain how and why the case is presented before the (appellate?) court.

(you must know the legal procedure really well to do this, but this part of the case brief is of very little importance. However, if the case has enough info to do this, you must do it in a case brief).

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24
Q

Briefing a case - Nature of Case

Briefing a case - Legal Procedure

Briefing a case - Procedural Basis

A

Briefing a case - Procedural Basis / Nature of Case / Legal Procedure

= a very short statement - ONE SENTENCE - to explain how and why the case is presented before the (appellate?) court.

(you must know the legal procedure really well to do this, but this part of the case brief is of very little importance. However, if the case has enough info to do this, you must do it in a case brief).

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25
Q

Briefing a case - Procedural Basis

Briefing a case - Nature of Case

Briefing a case - Legal Procedure

A

Briefing a case - Procedural Basis (Nature of Case, Legal Procedure)

= a very short statement - ONE SENTENCE - to explain how and why the case is presented before the (appellate?) court.

(you must know the legal procedure really well to do this, but this part of the case brief is of very little importance. However, if the case has enough info to do this, you must do it in a case brief).

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26
Q

Briefing a case - Procedural History (P/H)

A

Briefing a case - Procedural History (P/H)

a. Lower court(s)’ decisions
b. Damages awarded
c. Who appealed and why

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27
Q

Briefing a case - Reasoning

A

Briefing a case - Reasoning

Reasoning =

  1. the court’s analysis of issues
  2. the court’s application of law / legal principles to facts
  3. syllogistic application of rules
  4. (public) policy arguments to justify the holdings (why the decision was socially desirable)
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28
Q

Briefing a case - stmt of issue

A

Briefing a case - stmt of issue

  • The statement of issue s/b ONE SINGLE short SENTENCE, in form of YES or NO QUESTION.
  • To find the main issue, find the main principle of law applied
  • There is ONLY ONE MAIN ISSUE for a case
  • Sometimes, expressed issue may not be the main / most important
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29
Q

Briefing a case - WRONG stmt of issue

A

INCORRECT stmt of issue happens when the statement is confined to the facts of the case and does not articulate a legal principle.

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30
Q

CASE

A

a CASE is any judicial or administrative PROCEEDING in which FACTs of a controversy are PRESENTED in technical legal form for decision-making. The object of such proceeding is to enforce rights and remedy wrongs. In a civil case, the PLAINTIFF is the party (an individual or a group) who initiates the case, and the DEFENDANT is the party (an individual or a group) who responds. In a criminal case, the government (usually a state) initiates the case. For example: a case of breach of contract, a case of car accident, a government prosecuting a crime.

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31
Q

CASE (appellate court)

A

a CASE is the OPINION and DECISION of an appellate court deciding appeals of a judicial or administrative proceeding. a CASE has 2 functions: 1) it authoritatively decides the particular controversy’s outcome, and 2) it establishes a precedent (or possible precedent) for future controversies with similar facts and issues.

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32
Q

Case research - no citation

A

Case research - no citation

  1. Know the name? –> look up internet sources, LexisNexis, Westlaw
  2. Khow the jurisdiction? –> look up Table of Case or Digest in that jurisdiction, e.g. U.S.Supreme Court Digest, State Digest, Regional Digest
  3. Know the names of parties? –> look up Defendant-Plaintiff Table
  4. Recent case? --> Look up advance sheets or Case Alert, online sources
  5. Famous case name (but not known jurisdiction)? –> Look up Shepard’s cases, Cases by popular names, etc.
  6. Two or more cases same name? –> different stages of appeals –> need citation for each court’s opinion.
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33
Q

Citation - legal (books to use?)

A

Citation - legal authority

ALWD: Association of Legal Writing Directors

Bluebook: The Bluebook: A Uniform System of Citation

Maroon book: University of Chicago Manual of Legal Citation

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34
Q

Citation - parallel

A

Citation - parallel

Citations to the same case appearing in different reporters are known as “parallel citations”

We should give all the citations to a case.

To find parallel citations, use

  • Shephard’s Citations
  • West’s Nat’l Reporter Bluebook
  • LexisNexis
  • WestLaw
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35
Q

Citation or Cite

of a case

A

Citation or Cite of a case

Citation (cite) is a shorthand guide to location of the legal materials.

Citation includes: volume, page, name of reporter, year case decided,(sometimes also) court name.

Citation perches along (appears next to) the case name.

Eeach reporter has an accepted abbreviation.

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36
Q

Citing a Statute (State)

A

Citing a Statute (State)

Cal.Civ.Code §1942.5 = California Civil Code at Section 1942.5

Cal.Civ.Code §1942.5 (West 1985) = California Civil Code at Section 1942.5, published by West in 1985 (copyright date)

Cal.Civ.Code §1942.5 (West Supp. 2010) = California Civil Code at Section 1942.5, published by West in 2010 in Pocket Parts

1970 Cal. Stat.ch. 1280 §5 p. 2316 = California Session 1970, Statute, Chapter 1280, Section 5, page 2316.

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37
Q

Citing a Statute (U.S.)

A

Citing a Statute (U.S.)

42 U.S.C. §3601 = Title 42, United States Code at Section 3601 (this is the Fair Housing Act of the Civil Rights Act of 1968)

42 U.S.C.A. §3601 = Title 42, United States Code Annotated at Section 3601

42 U.S.C.S. §3601 = Title 42, United States Code Service at Section 3601

42 U.S.C.A. §3601 (West 2006) = Title 42, United States Code Annotated at Section 3601 (Westlaw 2006 edition)

82 Stat. 81 = Volume 82, of Statutes at Large, page 81 (usually for recent cases, not yet published to U.S.Code)

Pub. L. No. 90-284 = 284th Act, of 90th Congress (usually earliest appearance / as a Slip Law)

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38
Q

in Civil Case, you need ___________ to win?

A

in Civil case, we need PREPONDERANCE OF EVIDENCE to win.

(Preponderance = superior in weight or force or numbers, i.e. very strong) [pri-PON-der-uh nt]

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39
Q

CIVIL Law (as opposed to Criminal Law)

A

CIVIL Law covers actions between PRIVATE PARTIES. Sometimes the government can be a party in a civil law suit, but mostly for non-criminal reasons.

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40
Q

the Civil Law system

(define)

A

The civil law system is used in many countries rather than the U.S., England and England’s former colonies.

The main difference between the Civil Law system and the Common Law system is that, in the Civil Law system, the judge’s decisions in cases do not become precedents and cases do not accumulate into case law.

(The Socialist Law system is similar to the Civil Law system but Marxist conceptions).

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41
Q

Difference between Civl and Criminal cases

A

If there is a possibility of JAIL or Imprisonment, the case is likely CRIMINAL. Exception: Civil contempt when a person refused to answer questions directed by a court legislature can also lead to imprisonment.

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42
Q

**COMMON LAW **

(2 different concepts)

A
  1. Common Law = adopted English common law
  2. Common Law = accumulation (collection) of court decisions

(in contrast to statutory law = the acts passed by the legislatures).

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43
Q

Two basic Common Law Doctrines (concise)

A

Res Judicata & Stare Decisis

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44
Q

Two basic Common Law Doctrines (detail)

A

Res Judicata: . a thing which has been adjudicated, a particular claim is finalized by a court (including appeals) with jurisdiction over the claim and the parties. . the court’s judgement is final; the parties cannot re-litigate. This doctrine of res judicata bars endless re-litigation; and is strictly applied by the court.

Stare Decisis: . stand by the decision, uphold the previous rulings or precedent for future cases with similar facts and issues in the same or inferior courts within a particular jurisdiction. . provide justice by CONSISTENT, COHERENT, AND PREDICTABLE treatment of like cases

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45
Q

The Common Law System

A

the Common Law System: - originated in English hundreds of years ago - earlier cases became precedents for later cases with similar facts and issues - these cases accumulated into a vast body of case law the Common Law System is used in England, in the U.S., and former English colonies In the old time, the Common Law system was primarily judge-made case law. Today, the Common Law system incorporates both cases and statutes.

46
Q

CONSTITUTION

A
  • a Constitution is the fundamental POLITICAL and LEGAL CHARTER of people of a particular state or nation. - a Constitution is the FUNDAMENTAL LAW of the land.

It defines the character of government by SPECIFYING the NATURE and EXTENT of the sovereign power, by DISTRIBUTING the power (i.e. separation of power), and by PRESCRIBING the basic principles of the exercise of this power by governmental branches.

  • a Constitution also enumerates the basic rights of the people (a Bill of Rights). - In the US, there are 3 branches: the executive, the legislative, and the judicial.
47
Q

Court Reporters - federal

A

Court Reporters - federal cases

Federal Supreme Court decisions: official reporter = United States Reports; unofficial reports = various West’s Natl Reports. e.g. Supreme Court Reporter, US Supreme Court Reporter, Lawyer’s edition, US Law Week, Westlaw, LexisNexis

Feederal Apellate Court decisions: NO official reporter. Unofficial reporters: Federal Reporter, Federal Appendix, Westlaw, LexisNexis

Federal District Court decisions: NO official reporter. Various Unofficial reporters: Federal Reporter, Federal Supplement, Westlaw, LexisNexis, US Law Week.

Federal Specialty Courts (Tax Court, Int’l Trade, Federal Claims) publish their own cases. And West, and BNA, CCH, etc. publish cases as well.

Bankruptcy Court: West publishes the Bankruptcy Law Reporter

Federal Rules: West publishes the Federal Rules Decisions, Federal Rules Services

48
Q

Court Reports - Official / Unofficial

A

If the govt publishes the court opinion or authorizes its publication, it is called OFFICIAL REPORT

If a private company, without official authorization, publishes a court report, it is called UNOFFICIAL REPORT.

In actuality, no real difference. Same opinion, just different text.

49
Q

the Court System

A

TRIAL COURT – APPELLATE COURT – HIGH COURT or SUPREME COURT

50
Q

Court System - Federal

A

Federal Court system:

**Federal DISTRICT COURT = **Lowest court = trial court . At least one in every state; some states may have several. More than one judges can sit on a federal district court. 94 total in the countries (4 in California)

13 Federal Courts of Appeals, called Circuits. These courts cross statelines. There are many judges in a federal court of appeal.

Usually 1 to 3 judges can hear an appeal. If entire court’s judges or many judges hear an appeal, an appeal is called heard “an banc”.

A decision by the court of appeal is a binding precedent for all district courts within that circuit, but only persuasive for courts outside that circuit.

Supreme Court of the U.S. - the highest court of the country. It has 9 justices. When it agrees to hear a case, it grants “certiorari” (or “certi”).

51
Q

in Criminal case, you need ________ to win?

A

In Criminal case, we need to present evidence BEYOND A REASONABLE DOUBT to win.

52
Q

2 encyclopedias of American Law:

  • Corpus Juris Secundum
  • American Jurisprudence
A

2 encyclopedias of American Law:

  • Corpus Juris Secundum (by West) C.J.S. : has indexes & key numbers
  • American Jurisprudence 2d (by West): Similar to C.J.S. but with keys to American Law Report (A.L.R. )
53
Q

equity court

A

In the U.S., equity courts are intergrated with regular law courts.

54
Q

Federal Codes - Annotated U.S.C.A

Federal Codes - Services

U.S.C.S.

A

Federal Codes - Annotated / Service

U.S.C.A. = WestLaw

U.S.C.S. = Mathew Bender / LexisNexis

Both -

  • Organize by titles
  • Cross-reference to related statutes & constitutional provisions
  • Reference to History of Statute
  • Reference to Code of Federal Regulations (C.F.R.)
  • Topic numbers to do research
55
Q

Federal Codes - Annotated/ Unannotated

A

Federal Codes - Annotated/ Unannotated

  1. Federal Codes = govt published - in United States Code (U.S.C.)
  2. U.S. Code Annotated = by West (U.S.C.A.)
  3. U.S. Code Service = by LexisNexis (U.S.C.S.)
  4. Annotations help:
  • to know Citations of Statute
  • how the Statute has been interpreted / applied to cases
  • whether Statute is applicable to your case
  1. Annotations = (short pararaphs) written by editors of publishers
  2. Annotations = lead to cases, but you must read the case to determine how the statute applied to the facts of the case.
56
Q

Federal Rules & Court Guidelines

A

Federal Rules & Court Guidelines

In both U.S.C.A. and U.S.C.S., you can find rules to bring or defend a federal action. For example, civil procedulre, appellate procedure, criminal procedure, et cetera.

Federal Local Court Rules (West) = current local court rules of District Courts & Courts of Appeals

Federal Court Guidelines (Aspen Publishers/ Wolters Kluwer & ABA) - rules of practice procedures, policies of district court judges, bio & contact info for judges

LexisNexis and other internet sources

57
Q

what are two FUNCTIONS of a case (an appellate court case) ?

A

Two FUNCTIONS of a CASE from an appellate court are: 1. It authoritatively decides the outcome of a particular controversy. (The plaintiff and defendant are interested in this function as it determines their rights and duties). 2. It establishes a precedent (or a possible precedent) for future controversies with similar facts and issues. (Law students should focus on this 2nd function - which is the PRECEDENT-SETTING function).

58
Q

Functions of the Law

A
  1. Dispute-settling
  2. Maintaining-order and protecting
  3. Setting predictability and regularity for legal framework
  4. Regulating government
  5. Protecting citizens against unfair or excessive government
  6. Protecting people against unfair or excessive private power
  7. Assuring people an opportunity to enjoy the minimum decencies of life
  8. Ethical or moral functions
  9. Reasonable view (fairness and social reasonableness)
59
Q

habeas corpus

A

A writ of habeas corpus

Latin for “that you have the body.” A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful.

A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, amount of bail, and the jurisdiction of the court.

60
Q

Headnotes - be careful !

A

Must read the case’s decision, DO NOT only read the Headnotes.

The editors of the Headnotes do not discriminate between Precedent (holdings) and Merely Advisory / Helpful (dicta) principles of law.

61
Q

Headnotes - of a case report

A

Headnotes - of a case report

Headnotes explain the principles of law in the case. The Headnotes are written by editors of the reporter company, e.g. West.

62
Q

**Jurisdiction? **

A

Jurisdiction is the authority a court has over a case and the people and property involved.

63
Q

**“Appellate” Jurisdiction? **

A

**Appellate Jurisdiction: **Courts of appeals and supreme courts have Appellate Jurisdiction

64
Q

**Original Jurisdiction? **

A

Original Jurisdiction is the court that first hears the case. (usually is the Trial Court)

Supreme Court of the U.S. may have “orginal jurisdiction” if a case is between two states.

65
Q

What does a JURY do?

A

A Jury -

  • decides on the facts of a case
  • reaches a decision (a verdict)
66
Q

What are Jury Instructions?

A

Jury Instructions are the Trial Judge’s directions on the law principles applicable to the case, after evidence was presented.

67
Q

Key number - of a case report

A

Key number - of a case report

West divides topics into key numbers, representing specific legal concepts.

In each case, principle of law will be incorporated into a Key Number. This help researchers to find similar cases with similar principles of law under the same key numbers.

68
Q

Law - who makes it?

A
  1. Legislative branch: main role is to make the law.
  2. Courts (Judicial branch): can also make the law by -
  • Interpreting a provision (or a statute), explaining what it means, and applying it to a case
  • Declaring a statute unconstitutional
  • Basing decision on principles not in any statutes.
  1. Executive branch: makes law by -
  • Rules and regulation to implement legislation
  • Adjudicating and resolving disputesfor parties under its regulation
  • President and state government to issue executive orders and proclamations
  • Executive decisions may be reviewed and/or challenged by courts.
69
Q

Law Reviews & Periodicals (2nd’ary)

A

Law Reviews & Periodicals (2nd’ary):

  • Legal Periodicals = offers faster current information
  • Legal Periodicals, Law Reviews & Journals = abreast of current development of the law.

LegalTrac, Legal Resource Index, Current Law Index, etc.

70
Q

What is LAW?

A

Law is a process of legal reasoning for decision-making about particular controversies.

71
Q

Legal Encyclopedia (secondary source)

A

Legal Encyclopedia = general outlines of law

v. Treatises: = one area of law in detail

Legal Encyclopedia = provide general info = to follow up to primary sources (cases, statutes, regs)

Legal Encyclopedia = should not be used as final artiber of the law (i.e. should not be cited)

2 encyclopedia of American law + 15 state encyclopedias

  • Corpus Juris Secundum
  • American Jurisprudence
72
Q

Legal Research - 3 points to remember about what law applies

A

To do legal research, remember 3 things:

  1. the division between the Federal and State Govt.

Is it a state or a federal law problem? (or even a municipal or county problem?)

  1. The separation of 3 branches of govt

Which branch of govt is involved with the problem?

More than one branch involved?

  1. Must check both Federal and State statutes. Must check more than just the U.S. Constitution, but also Legislations.
73
Q

Legal Research - Recently passed statute - How to find?

A

Legal Research - Recently passed statute - How to find?

  1. Most laws don’t take effect until the year following passage. Check Statutes at Large.
  2. Most yearly supplements (U.S.C.A. - Pocket Parts, or U.S.C.S. - Suppl. Pamphlets, or U.S.C. Supp. Books) are enough, or…
  3. Slip laws (of U.S. Statutes at Large) = a law is passed, published in entirety, distributed to Libraries. Slip laws are bound into U.S. Statutes at Large at the end of congressional session.
  4. U.S.C. Congressional / Admin News (West): Instant monthly - bound at end of year
  5. U.S.C.- Cumulative Later Case & Statutory Svc (LexisNexis) similar to West - Instant monthly, bound at year-end.
  6. Congressional Index = CCH - Commerce Clearing House
  7. LexisNexis - Legislative Histories database;
  8. Westlaw - Bill Tracking database
  9. Various internet sources. e.g. http://thomas.loc.gov
  10. www.house.gov, or www.senate.gov
74
Q

Legal Research - Steps

A

Legal Research - Steps

  1. Check the STATUTES.
  2. Check CASE ANNOTATIONS (How the courts have interpreted & applied the statute) —> to determine if the statute applies to your case.
  3. Check both Federal and State Statutes
  4. Check cross-reference to Related Statutes, Citations
75
Q

Legislative Intent

A

Legislative Intent is the collection of the thoughts of the law makers who passed the law.

Legislative Intent and Legislative History –> judge may use to decide how to interprete a statute

76
Q

Martindale-Hubbell Law Digest (2nd’ary)

A

Martindale-Hubbell Law Digest (2nd’ary) = by LexisNexis

This Digest provides a summary of law in each state

77
Q

Ordinances (define)

A

Ordinances = laws passed by Municipals and Cities

Ordinances = codified but not annotated

Check Municipal Code

If interpreted, –> Check State Digest, or Shepard’s State Citations, or West’s Ordinance Law Annotations

78
Q

a Persuasive Precedent = ?

A

a Persuasive Precedent means - - a decision of a court in a prior case MAY BE accepted OR rejected even though the facts and issues in the new case are similar. - usually this happens because the court of the prior case is in a different jurisdiction than the court of the new case. (For example, a California precedent is merely persuasive, and not binding, in a New York court).

79
Q

Precedent

(in terms of Predictability, Facts)

A

Precedent:

from the doctrine Stare Decisis; courts should uphold to precedents set by earlier decisions

allows for PREDICTABLILITY in legal actions

The law attempts to forge legal priciples and apply to certain factual situations so that people can ‘predict” how the courts will act.

_FACTS are important in applying precedent. _A few changes in facts can make difference whether the same principle of law will apply.

80
Q

Precedent - binding?

A

A lower court must follow its own earlier decisions, and also the rulings of higher courts *within its jurisdiction. *

Courts of the same level are not bound by each other’s decisions.

All federal courts must follow the rulings of the U.S. Supreme Court.

All state supreme courts must follow the rulings of the U.S. Supreme Court if the decision involved the interpretation of the U.S. Constitution.

81
Q

**Pro Se **

A

“pro se” means someone who represents himself in a legal procedure without the aid of an attorney.

82
Q

Procedural Law

A

Procedural Laws are Rules about court procedure. It guarantees both plaintiff and defendant rights to a fair and proper hearing under the Constitution.

83
Q

REGULATION

A

a Regulation is LEGAL RULE - authorized by a statute and - issued by an executive agency - for the governance of matters within the authority of the agency

Regulations are used to enforce the statute and are more specific than the statute.

84
Q

Res Judicata

[REEZ joo-di-KEY-tuh]

A

Res Judicata: . a thing which has been adjudicated, a particular claim is finalized by a court (including appeals) with jurisdiction over the claim and the parties. . the court’s judgement, and the factual and legal issues underlying it, are considered conclusively decided and MAY NOT BE RE-LITIGATED BY THE PARTIES.

85
Q

Small Claims Court

A

Small Claim Court -

  • “people’s court”, or “pro se courts”
  • limit to small $ amount ($5000 or less usually), (sometimes can be up to $10K, for example, CA Small Claims Court)
  • only civil cases, no criminal cases
  • no jury trial
  • Simple procedure, low filing fees, no formal paper, usually no lawyers (or no lawyers allowed).
85
Q

Researching the Federal Codes - How to?

A

Researching the Federal Codes - How to?

use: Descriptive words, text entry, table of content, key terms

Online method: Westlaw, LexisNexis, Internet Sources. Better to use Key Terms; may need to refer to Hard-Copy Index First

Index method: U.S.C.A. and U.S.C.S.

Topic method: Go direct to the specific code / chapter - Faster, but may be too narrowed. Index method offers more results.

Popular Name method: if you know the name of the legislation –> look it up in Table of Index in general volume, or Shepard’s Acts and Cases by Popular Names, or Federal and State Table of Acts by Popular Names

Cross-Reference: Reciation of statute, related statutes, constitutional provisions

85
Q

Researching the State Codes - How to?

A

Researching the State Codes - How to?

**Cautious, check alll possibilities of statutes**

Each state has own code; formats differ. States publish, and so do WestLaw and LexisNexis

State Sets of statutes are Chronologically arranged.

Yearly supplement are published in Advanced Sheets or Slip Laws

LARMAC (Matt Bender/LexisNexis) - California State Code Annotated

http://thomas.loc.gov

86
Q

Social environment of law

A
  • Economic / material interests - Social institutions (religious, educational, corporations, associations, lobbies) - Climate of opinion (habits, ideas, social tradition) - Human factors (inertia, resistance to change, greed, prejudice, ignorance, altruism)
86
Q

Socratic method = case method

A

discussion of a case, must know facts, rulings, and rationale of court’s decision.

87
Q

main SOURCES and TYPEs of law?

A

Statutes

Cases

State and federal institutions

Regulations

88
Q

Sources of recent scholarship (2nd’ary)

A

Sources of recent scholarship (2nd’ary)

  • SSRN = Social Science Research Network: legal research, working papers, review articles
  • ** Legal Blogs **(blawgs): by professors or practitioners
  • Online publication: http://www.bepress.com (Berkeley Electronic Press)
  • Daily law journals: court dockets, state & fed trial calendars

- Digests = simply collection of principles derived from cases; no discussion of the law in detail.

90
Q

Stare Decisis

[STAIR-ee- di-SAIY-sis]

A

Stare Decisis is a Law doctrine that rules a court to uphold previous rulings, decision, or precedent. It serves -

  1. Meaning of JUSTICE: like treatment for like cases
  2. Consistent, continuous,coherent BODY OF CASE LAW
  3. reasonable PREDICTABILITY for lawyers and clients
  4. Judges can build upon past experiences, eliminating the need to reconsider old rules in each new case
  5. Fetter the choices and discretion of judges and juries within a framework of law rather than the rule of whim, bias, arbitrariness, or paternalism.
92
Q

STATUTE (define)

A

a STATUTE is a particular law, or a body of laws, enacted by a state or federal legislature, in conformity with the procedures required by its constitution.

Procedures usually include majority vote by a legislative body and approval by the governor or President. Examples: federal or state penal (criminal) codes, state commercial codes, the internal revenue code, state vehicle codes, or regulation of securities transactions.

94
Q

STATUTE - How a law is made?

A

STATUTE - How a law is made?

  1. a Bill is introduced, and numbered in a session of legislature.
  2. If not passed, must be re-introduced and re-numbered in the next session.
  3. S = Senate Bill; H = House (of Reps) Bill
  4. a Bill becomes law if passed by legislature and signed by a governor (state) or President (federal).
  5. If executive leader vetoes, can STILL become law if 2/3 of legislature passage.
  6. If executive leader neither signs nor vetoes, automatically becomes law after 10 days arriving at the exectutive desk.
  7. Many laws do not take effect until the year following passage.
  8. Most laws are public. Very few are private. Private law = only applicable to specific individuals or groups.
94
Q

STATUTEs and CODEs

A

STATUTEs

  1. an Act is passed => becomes a Statute => published chronologically
  2. Federal Statutes: published in U.S. Statutes at Large
  3. State Statutes: in State’s session laws

CODEs

  1. Codes group / codify the laws under specific titles. ==> to facilitate researches.
95
Q

Substantive Law

A

Substantive Law is the law that defines the rights and duties of people. (It is “the law” we usually think of. When we say someone “broke the law”, likely we refer to substantive law.)

95
Q

U.S. Statutes at Large

(characters)

A

- U.S. Statutes at Large publishes ALL LAWs (public and private), in Chronological Order.

  • Statutes at Large = usually Recent Statutes, not yet codified.
  • Statutes at Large = in Chronological order
  • Private laws are usually not codified.
  • Parallel citations btwn Codes and Statutes at Large -> published in the Annotated Codes.
96
Q

Supreme Court

(or High Court)

A

Supreme Court or High Court is a higher appellate court. It can -

  • review the decisions of intermediary appellate courts
  • decide which cases it wants to hear
  • limit itself to very important cases that
  • develops new principles of law
  • resolves disputes between intermediary appellate courts
  • interprets the state or federal Constitution
96
Q

Supreme Court - US

A

Supreme Court - US - is the highest court of the country. It can choose the cases. If it hear a case, it grants “certiorari” or “certi”. 4 justices must agree to grant a “certi”.

All 9 justices hear a case.

A decision by the U.S. Supreme Court is binding for all federal courts.

A decision by the U.S. Supreme Court on the U.S. Constitution is binding for all states.

97
Q

Treatises (Secondary Source)

A

Treatises:

  • offers in-depth analysis of one area of law
  • important cases, authorities, expert commentary
  • one or multivolumed; one aspect of law (tenant-landlord) or one broad tract of law like torts; one state or entire country

Check for treatises in -

a. Updating treaties: new cases, statutes, regs, etc.
b. Hornbooks: treatises condensed to one volume for law students
c. Gilbert Law Summaries: study aid, concise area of laws for students

99
Q

Trial Court (definition, and functions)

A
  • a Trial Court (federal or state) consists of a judge WITH or WITHOUT a jury. - a Trial Court performs 4 basic functions: 1. FACT-FINDING: it determines the facts that are in conflict in particular controversies; the facts are brought before the court in technical legal form. It determines which witnesses are credible and which not. It determines the factual event: who, what happened, when. 2. LAW-FINDING: it determines which law or laws are applicable to the facts presented 3. LAW-APPLICATION: it applies the rules to the facts to decide specific dispute. The result is a judgement of the court (a decision of the controversy) 4. It APPLIES PRESCRIBED PROCEDURES in pre-trial, trial, and post-trial.
101
Q

Trial Court (types and names)

A

Trial Court: either Court of General Jurisdiction OR Court of Limited Jurisdiction - Court of General Jurisdiction: can decide any civil or criminal cases - Court of Limited Jurisdiction: decide only specific types of cases. For example, Traffic Court, Family Court, Bankruptcy Court, Probate Court (will, estates), or Criminal Court. - Court of General Jurisdiction can be called : the Superior Court, or Supreme Court (of a state). Or it is also called a Circuit Court or a District Court - Trial Courts are part of a court system in each state, or part of a national federal court system, i.e. The U.S. District Court

103
Q

Types of Law

A

Civil Law - Criminal Law

Substantive Law - Procedural Law

104
Q

U.S.C.A. / U.S.C.S. - Yearly supplement

A

U.S.C.A. / U.S.C.S. - Yearly supplement

U.S.C.A. = U.S.Codes Annotated (WestLaw) –> yearly Pocket Parts about revised statutes

U.S.C.S. = U.S. Codes Service (Matthew Bender/LexisNexis) –> Yearly Pamphlets about revised statutes

Revised Statutes = revision, deletion, repeal

105
Q

West’s Natl Reporter System

A

West’s Natl Reporter System started in late 1800’s; has 7 regional reporter districts.

7 reporter regiional districts are NOT the same as the 13 circuit of federal courts.

106
Q

Jury’s nullification

A

Jury’s nullification means the juries have the power to acquit when they have strong reasons (or conscience) to depart from the law laid down.

Curent legal opinion does not favor the instruction for the jury to use nullification power.

However, early in our history, the jury was legally the final arbiter of both the law and the facts.

107
Q

Life Tenure - judges - who?

A

Life Tenure - judge - who?

Most states’ judges have termed tenure.

Article III - Federal judges: have life tenure

Non-Article III Federal judges: have termed tenure

108
Q

U.S. Supreme Court - appointment

A

U.S. Supreme Court - appointment:

The President works with Senate (not House of Representatives).

The President nominates a person. The Senate approves that person to become a Justice in the U.S. Supreme Court.

109
Q

Citation verification

A

Citation verification:

Use Shephard’s citation to verify updates of cases.

*(or Lexcite of LexisNexis)

110
Q

Federal Register

A

Federal Register is to Regulations what Statutes at Large to Statutes.

Federal Register contains all Regulations in chronological order (before being codified).

Federal Register is updated daily.

After codified, the Regulations are published in C.F.R. (Code of Federal Regulations)

Law Study (4 decks)

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