Lecture 12 - Legal methodology

Question 1

Sources of Law

Answer 1

• Constitutions—Federal and State
• Treaties (Federal only)
• Statutes—Federal and State
• Court Rules—Federal and State
• Administrative Regulations—Federal and State
• Common Law—Federal (limited) and State (aboriginal)

Question 2

Common Law

Answer 2

Law that judges make as they decide cases

Question 3

Legitimacy of judge-made law

Answer 3

• Legal realism. Creative component of the common law comes from judges that make common law applying their conception of what is appropriate public policy.
• Goal of stare decisis- persons are treated similarly under the law.
• Embedded-ness of common law within social values
• Transparency in the decision-making process required for writing opinions which must explain and justify judge decisions.

Question 4

Hoffman v Jones case

Answer 4

Florida Supreme Court change the law of torts from contributory negligence (acted as complet bar to recovery of damages) to comparative negligence (serves to reduce the amount of damages) the majority opinion freely considered weighed considerations of history, economics and philosophy.

Question 5

Problem of retroactivity. Application to persons others than the parties

Answer 5

• Courts often resort to the technique of given decisions prospective effect only or only partial retroactivity.
• Most common form prospective effect is to apply the rule to the parties in that case, to other cases pending on the date of decision and to all cases arising in the future.

Question 6

Retroactive problem easing the concern

Answer 6

o The fact that the common law usually develops incrementally, so the new rule presents little opportunity for surprise
o The offsetting benefit of flexibility and ability to respond to new developments in society
o The ability of courts to give the new rule prospective applicability only

Question 7

Hierarchy of common law

Answer 7

1- law made by judges as they engage the common la- is the lower level in the hierarchy.
2- law made by judges in interpreting the statutes is in the same level of hierarchy of laws as the law it interprets

Question 8

Stare decisis

Answer 8

stand by the precedent of decided cases

Question 9

Holding and dictum

Answer 9

Holding- statement that answer the specific legal question.
(ratio decidendi) is binding
Dictum- Any additional discussion. (obiter dicta) Not binding but could be persuasive.

Question 10

Statutory interpreting methods

Answer 10

1- Plain meaning rule- ordinary meaning of the law, unless the result would be absurd or unjust
2-

Question 11

Correct answer to any legal question in US

Answer 11

It depends. More balancing of interesting that we do it’s the way to demonstrate the understanding.

Question 12

It’s more powerful the federal governments or the states

Answer 12

It depends on the enumerated powers of the supremacy clause ( in Art. VI Constitution). It depends on jurisdiction

Question 13

It’s the jury system an effective method to solve resolutions

Answer 13

It depends on whether h

Question 14

Common law of legitimate method of law making

Answer 14

It depends on