Legal Analysis - Professors Gregg & Mittendorf

Question 1

Standing Committee

Answer 1

A legislative committee that is permanent

Question 2

Special or Ad Hoc Committee

Answer 2

A legislative committee that is temporary

Question 3

Statutes - The stages of enacting a federal statute

Answer 3

1. a legislator introduces a bill to her chamber of the legislature.
2. the bill is referred to a committee.
   a. a standing committee is permanent
   b. a special or ad hoc committee is temporary
3. the committee reviews the bill.
   a. brings in experts and interested parties.
   b. debates and votes
   win - the bill heads to the full chamber
   loses - dead in committee
4. if the bill wins in the committee, it goes to the full chamber
   a. debates, amends, votes
   pass - the same process in the other chamber
5. if both chambers pass the identical bill, it goes to the President
6. President
   a. signs the bill into law
   b. no sign 10 days, the bill becomes law
   c. President vetoes the bill, back to the legislature
   d. a veto can be overridden with a 2/3 vote in each chamber

Question 4

Case law

Answer 4

Is derived from the opinions of courts.

Question 5

Courts make laws in three ways (Case Law)

Answer 5

1. A court may fashion a general legal doctrine or principle if it is required to resolve a case. This new legal doctrine or principle is enforceable only within that court’s geographic reach.
2. A court makes law by deciding cases that interpret existing legal doctrines. A court makes new law with each case it decides because each case comes before the court with a unique set of facts.
3. A court makes law by interpreting ambiguous or vague language in enacted law, such as statutes, ordinances, or administrative regulations.

Question 6

Concepts that aid a court in their resolution of a case

Answer 6

1. Common law - contrast to legislatiely enacted statutory law. Common law consists of rules and legal principles derived from judicial decisions rendered in the absence of enacted law.
2. Precedent - any judicial decision or opinion that serves as an example of how a subsequent court can resolve a similar question of law under a similar set of facts.
3. Stare decisis - requires courts to follow precedent when deciding similar cases.

Question 7

Common law

Answer 7

Common law - contrast to legislatiely enacted statutory law. Common law consists of rules and legal principles derived from judicial decisions rendered in the absence of enacted law.

Common law is case law rendered in the absence of enacted law

Question 8

Precedent

Answer 8

Precedent - any judicial decision or opinion that serves as an example of how a subsequent court can resolve a similar question of law under a similar set of facts.

Question 9

Stare decisis

Answer 9

Stare decisis - requires courts to follow precedent when deciding similar cases.

Question 10

Who can make law under the federal and state constitutions?

Answer 10

Only the legislature is empowered to make law

Question 11

When can courts make common law?

Answer 11

Only to fill a void left by the legislature

Question 12

Common law consists of _______________.

Answer 12

The body of judicial opinions

Question 13

Precedent is a judicial opinion that __________________.

Answer 13

Illustrates the application of legal rules and doctrines to the facts of a specific case

Question 14

Can a case be both a precedent and part of the common law?

Answer 14

Yes

Question 15

Judicial opinion

Answer 15

A judicial opinion resolves only the facts and issues raised in the action. That same opinion becomes an authoritative source of law for future cases. Courts will look to those opinions for guidance. Each new decision follows logically from the existing body of precedents.

Question 16

Stare Decisis

Answer 16

Stare Decisis is a principle that requires courts to follow precedent when deciding similar cases.

It promotes stability, predictability, and fairness in the application of law.

Stare decisis ensures stability in the law because courts are required to follow prior decisions instead of rendering decisions in a vacuum.

Stare decisis requires courts to look to previous decisions, or precedent, for authoritative guidance in resolving legal disputes.

Question 17

When will courts depart from stare decisis?

Answer 17

Only when absolutely necessary to avoid an injustice, to protect the general welfare, or to change the law to reflect contemporary values.

Question 18

What happens if a court violates stare decisis by failing to apply a controlling precedent?

Answer 18

It may be reversed on appeal

Question 19

Stare decisis and precedent are related, but different, concepts.

Answer 19

Stare decisis requires courts to follow prior decisions when determining the outcome of like cases.

Precedent is the prior decision itself.

Question 20

Hierarchy of Courts

Answer 20

A court is bound by a decision of a higher court within its line of appeal.

Question 21

Can courts amend a statute?

Answer 21

No

Question 22

Jurisdiction

Answer 22

Jurisdiction is a limit on the precedential impact of a particular decision.

Jurisdiction limits the power of a court to exercise its authority.

Jurisdiction restricts power of a court to resolve legal issues in two ways.

1. Jurisdiction limits courts geographically.
2. Jurisdiction limits courts by the subject matter they are allowed to consider.

Question 23

Jurisdiction restricts power of a court to resolve legal issues in two ways.

Answer 23

Jurisdiction restricts power of a court to resolve legal issues in two ways.

1. Jurisdiction limits courts geographically.
2. Jurisdiction limits courts by the subject matter they are allowed to consider.

Question 24

Opine

Answer 24

Opined means to state an opinion or express an opinion or to judge.

Question 25

Is a state court bound by a federal court of appeals?

Answer 25

No

Question 26

Can a state court hear questions of both state law and federal law?

Answer 26

Yes, state courts may hear questions ob both state law and federal law. A state court may consider federal law when the litigants raise a federal issue in addition to a state issue.

Question 27

When can a federal court hear state issues?

Answer 27

Yes, a federal district court, the trial court of the federal judiciary, has jurisdiction to hear state issues when the dispute is between citizens of different states and the amount of the claim exceeds $75,000.

Question 28

Certification

Answer 28

Certification is a procedure allowed only by authority of state law, allows a federal court to refer a state issue originally brought in federal court to that state’s court of last resort. The state court may then conclusively decide the matter. The federal court is bound by the state court’s determination of the state issue.

Question 29

What is an authority?

Answer 29

An authority refers to any cited source that courts and attorneys use to oppose or support a legal proposition. Examples of authority are: cases, statutes, regulations, law review articles, legal encyclopedias, and legal newspapers. An authority can refer to either a source that is binding on a court or a source that merely persuades the court to rule in a particular way.

Authorities are divides into two groups: primary authority and secondary authority.

Question 30

Authorities are divides into two groups: primary authority and secondary authority.

Answer 30

Primary authority is any source of law, i.e. case law, statutes, or constitutions. Primary authority can be either binding or persuasive authority. Primary binding authority is any source of law that a court must follow. Primary persuasive authority is law not binding on a court.

Secondary authority is any source that comments on or editorializes about the law, i.e. law reviews, legal treatises, newspapers, and legal encyclopedias. Secondary authority is never binding on a court, it is only persuasive. It is NOT law.

Question 31

Primary authority

Answer 31

Primary authority is any source of law, i.e. case law, statutes, or constitutions. Primary authority can be either binding or persuasive authority. Primary binding authority is any source of law that a court must follow. Primary persuasive authority is law not binding on a court.

Question 32

Secondary authority

Answer 32

Secondary authority is any source that comments on or editorializes about the law, i.e. law reviews, legal treatises, newspapers, and legal encyclopedias. Secondary authority is never binding on a court, it is only persuasive. It is NOT law.

Question 33

Primary persuasive authority

Answer 33

Primary persuasive authority is law not binding on a court.

Question 34

Types of Authority

Answer 34

Primary (Binding or Persuasive)
Any source of law. Examples include cases, statutes, constitutions, regulations, and ordinances.

Secondary (Persuasive)
Any source that is not law. Examples include law review articles, encyclopedia entries, and treaties.

Question 35

En banc

Answer 35

French for “on the bench.” The term is used when all judges of a particular court hear a case.

Question 36

Dicta

Answer 36

A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation. Also referred to as dictum, dicta, and judicial dicta.

Question 37

Concurrence

Answer 37

The justice agrees with the outcome of a case, but not with the majority’s reasoning for it.