Legal Methods Final Exam Flashcards
T/F A fundamental tenet of state constitutions and the federal constitution is the separation of powers between the legislative, executive, and judicial branches of government
True
Lawmaking functions rest primarily with which branches of government?
Legislative
T/F The US Congress can amend the US Constitution in the same manner that can enact legislation?
False
T/F Legislative enactments supersede inconsistent common law
True
T/F The Florida state legislature may not enact a statute that modifies Florida CL
False
T/F If a statue codifies existing CL case that developed the CL Rule will provide guidance in interpreting the statute
True
Within a jurisdiction, which of the following must not conflict with the jurisdictions constitution?
All of the above (jurisdiction’s statutes, jur regulations, jur CL)
A statute is controlling as to the subject it encompasses, unless the statute is unconstitutional
True
Which is true about appellate courts?
They hear cases in which at least one party believes the trial judge erred on a point of law
T/F A rule is a story of an incident in which a court acted or may act to settle a dispute?
False. A fact is a story…
T/F Properly adopted admin regs have the same legal effect as statutes, so long as they are consistent with the Constitution and relevant statutes
True
Fed legal rules come about when:
All of the above, The US Congress enacts a statute
T/F Each fed court of appeals has jurisdiction to hear appeals from districts within its circuit and may affirm or reverse decisions of the district courts within its circuit
True
T/F A state court may hear questions of fed law as well as state law
True
T/F Judicial decisions outside the jurisdiction may be persuasive but are never binding
True
When interpreting statutes, courts…
Will refuse to enforce unconstitutional legislation
In the fed court system, when a party appeals a decision by a federal district court, the appeal is normally next heard by
3 judges of the US Court of appeals for the governing circuit
T/F Restatements, which are formulations of CL rules drafted by scholars for the American Law Institute, and trial court opinions, which are sometimes published in some jurisdictions, are primary authority
False
Which is/are secondary authority?
All of the above- Law review articles, legal encyclopedias, loose-leaf reports, restatements, treaties
T/F An Ohio trail court is bound by decisions from the Ohio Supreme Court and the Ohio Court of Appeals, But the Ohio Trail court is not bound by decisions from other Ohio trial courts
True
T/F The US Supreme Court is the only federal court that can control the state’s highest court on matters of that state’s law
False
A judicial opinion contains the decision when the rule of law is applied to the particular facts of the case, this decision is known as the
Holding
T/F Unlike dicta, which may indicate how a court may rule in the future, a concurring or dissenting opinion indicates only that a judge disagreed strongly enough to write a separate opinion
True
T/F Stare Decisis applies only when the pending case is similar enough to the prior case to justify the application
True
A person who drives faster than the posted speed limit is guilty of speeding. This is an example of…
Declarative Rule. Not Discretionary, Prohibitive, nor mandatory
In Exceptional circumstances, a court may depart from a strict application of stare decisis and refuse to follow its own, other wise called…
Overrules
T/F State Admin regs from a different state are primary authority
True
T/F Court rules are secondary authority
False
Which of the following is not true about published federal sources of law…
Fed common law is published in the Restatement 3rd of the Fed Law in common
T/F Penal statutes are to be narrowly construed. Remedial statutes should be liberally construed (read broadly) to accomplish their remedial purpose
True
A __________ is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action
Inference. Not policy, custom, principle, nor induction
T/F Admin law is secondary authority and consists of the rules and regs of admin agencies and the court opinions interpreting them
False
T/F Stare Decises is an earlier court decision on an issue that governs or guides a subsequent court
False (could be true)
T/F Case law is made only when there is an absence of enacted law
False
Which branch of gov creates admin law
Executive
The US Court of Appeals for the 9th circuit has crafted a four-factor test for one element of a fed statute. California is located within the 9th fed appellate circuit. The US District Court for the Southern District of California, in interpreting the same Fed statute, should…
Use the test because the decision is binding precedent
T/F When interpreting a statute, courts must first consider the legislative history, such a s committee reports, speeches, witness testimony, or studies introduced into the record, as it is the best evidence of the legislative intent
False
T/F States create their own constitutions which can grant more protections for individuals, but cannot lessen the rights granted by the US constitution
True
In a breach of K case where the parties dispute the quantity of diesel fuel promised and delivered, the total number of gallons of diesel, fuel actually delivered is
Determinative fact. Not hybrid, logical syllogism, explanatory
T/F If no statute currently applies to a dispute, a court must extend CL principles to the dispute even if it concludes that the matter is better left to legislative action
False
T/F A constitution defines the reach of statutory authority, but statutes cannot limit the application of CL
False
If you initiated the lawsuit in a proper Florida state trial court, a derision of the supreme court of the US interpreting the 4th amendment to the US constitution is ______________ on the fed issue (Primary, Secondary, Binding, Persuasive)
Primary/Binding
If you initiated the lawsuit in a proper fed trial court, a decision of the US Court of Appeals for the 11th Circuit interpreting the Florida CL is ____________ on the state issue (Primary, Secondary, Binding, Persuasive)
Primary/persuasive
If you lose in fed trial court and argue your client’s appeal to the US court of appeals for the 11th circuit, a law journal article (Primary, Secondary, Binding, Persuasive)
Secondary/Persuasive
If you initiated the lawsuit in a proper fed trial court, a decision of the Supreme Court of Florida interpreting the Florida CL is ___________ on the state issue (Primary, Secondary, Binding, Persuasive)
Primary/ Binding
What is the (Steps of the Trial???)
- Discovery stage> Client Intake > Research > Office Memoranda
- Initial Negotiation > Demand Letter
- Filing a Lawsuit > Complaint > Answer
- Factual Discovery > Ints. > Docs > Depos
- Motions > Dismiss > Summary Judgment
- Trial > Statements > Examinations > Evidence
- Appeal > Notice > Appeal Briefs
Difference between holding and dicta?
Holding- The “holding” of a case states the “rule of the case”, meaning it has been decided (“held”) to favor one side or the other because of the rule
Dicta- refers to just about anything else mentioned in the opinion of the court that made the ruling, but does not establish the rule itself.
Fact based analysis ranks (in order)
- Sort the Facts, deciding which facts support each side (in some cases both sides)
- Review the Fact-based inferences you’ve generated and choose the strongest one or two
- Write sentences that tie together the fact and the law
- Check to make sure you’ve told the reader explicitly how the facts and law are connected
Fact? (Case Brief Definition) (2 types of facts)
- Legally relevant facts – facts that affect the holding or which way the issue is decided
The opinion often includes irrelevant facts and background information; why? - Procedurally relevant facts – facts that describe at what stage in the case an error may have occurred
These are more relevant in the context of litigation
And will make more sense after you have taken Civil Procedure
Rule? (Case Brief Definition)
Legal Principle relevant to the particular factual situation presented
Critical legal theory?
Politically biased and maintains that everyone else is politically biased too. Analyzes race theory and feminist theory too.
Conjunctive Rule?
list of mandatory rules
Disjunctive Rule?
either/or tests.
Synthesizing a rule???
???
Know how to pick out how many elements are in a rule
???
What are the 3 most important steps of analyzing a statute?
- Reading the Statute
- Identifying the Issues
- Interpreting the statute’s language
What’s the difference between a conjunctive rule and a disjunctive rule?
The two rule structures lie in the introductory language specifying whether all sub-parts are required or whether any single sub-part is sufficient
Name 3 tools for statutory construction
- Read Narrowly (strictly construed)
- Read Broadly (liberally construed)
- Make sure a certain conduct is addresses
Name 3 canons of construction
- Penal Statutes are to be narrowly construed
- A statute is to be construed in light of the harm the legislature meant to remedy
- Statutes in derogation of the CL are to be narrowly construed
How do you present a statutory analysis in writing?
Process of determining how statutes apply to a given situation and what effect they have. Use the tools given earlier. Courts prefer to use plain meaning
What is Enacted Law?
Body of a law adopted by the people or legislative bodies. It includes: Constitutions as adopted by the people. Statutes (ordinances/laws) passed by legislative bodies, and; Regulations passed by administrative bodies that have the force of law.
What is the Hierarchy of Law (high to low)?
Constitution > Statute > Regulations > Cases
What is Primary Binding (mandatory) Authority?
Authorized statements of law issued by governmental bodies. This category includes court opinions, constitutions, legislation, regulations and rulings of administrative agencies and other similar documents that carry the force of law
What is Primary Persuasive Authority?
Can include court decisions of other jurisdictions, which do not have to be followed but which may be used as examples of good reasoning.
What is Secondary Binding (mandatory) Authority?
No such thing. Secondary sources can be used only as persuasive authority
What is Secondary Persuasive Authority?
Descriptions of, or commentary on, the law. This category includes law review articles, treatises, Restatements of the Law, legal encyclopedias and other similar items.
What is Inductive Reasoning?
Two variations: The outcome of another specific case, or the likelihood of the truth of a general proposition. Also known as Analogical Reasoning.
What is Stare Decisis?
Precedent. Where judges are obliged to use precedent in determining court cases.
What is Precedent?
An example used before
What are the 3 levels of Court Systems (Top-Down)?
Courts of Last Resort (Supreme Courts) > Middle Level (Appeals Courts) > Trials Courts (District Courts)
Where’s Florida in the Geographical Federal Circuit?
US Court of Appeals for the 11th Circuit
What is Dicta/Dictum?
Statement in the opinion that helps explain the court’s reasoning by addressing questions not squarely presented in the dispute before the court.
What is Holding?
Court resolution (Yes/No) of an issue before it
What is the difference between Dicta and Holding?
The “holding” of a case states the “rule of the case”, meaning it has been decided (“held”) to favor one side or the other because of the rule. A “dictum” refers to just about anything else mentioned in the opinion of the court that made the ruling, but does not establish the rule itself.
What’s a Primary Source (with examples)?
Made by a legislature, agency, or court with the power to make or determine law (statutes, regulations, and cases)
Where would you find Administrative Regulations?
Federal and State agencies
What’s a Secondary Source (with examples)?
Not law, instead it describes or discusses law (restatements, textbooks, treatises, comments, encyclopedias)
What’s a Restatement?
Most authoritative secondary source. From the American Law Institute. Restatements seek to “restate” the legal rules that constitute the common law in a particular area (Torts, Contracts, Property)
What is En Banc Opinion?
French for from the bench. a session where a case is heard before all the judges of a court – in other words, before the entire bench – rather than by a panel selected from them
What is a Discretionary Rule?
Term denoting a legal rule which may be departed from by agreement between the parties concerned (as opposed to a mandatory rule, which is in all cases binding and not transactional).
What is Formalism?
separation of legal reasoning (or “application” of norms to facts) from normative or policy considerations
What is Deductive Reasoning?
AKA Rule-based Reasoning. More formal than IR.
Examples of Mandatory Primary Authority
constitution, statutes, case law, court rules and regulations
Examples of Persuasive Primary Authority
Same as mandatory
What are Annotations?
a history to previous annotations and subject matter you are researching
Prohibitory Rule?
forbids someone to act and is expressed by “shall not” “may not” “Must not”
Discretionary Rule?
Gives someone the power or authority to do something. That person has the discretion to act but isn’t required to do so
Declaratory rule?
Simply declares that something is true. “A person who drives faster than the speed limit is guilty of speeding”. A police officer can give you a ticket.
Mandatory Rule?
requires someone to act. “Shall” or “Must”
What are the 7 Legal Theories?
- Natural Law Theory
- Formalism
- Legal Realism
- Legal Process
- Fundamental Rights
- Law & Economics
- Critical Law Theory
Natural Law Theory
Principle Based Reasoning. Where law began.
Formalism
Law is a science. Christopher Columbus Langdell was the father of this. Justice Scalia is famous for this too. Rule Based Reasoning
Legal Realism
Judges make law, they don’t find it. Oliver Wendell Homes is famous for this. Policy Based Reasoning
Legal Process
Ruth Bader Ginsburg. Law is a result of a fair and just process. Rule Based Reasoning
Fundamental Rights
Earl Warren is famous for this. promote justice and that human welfare outweighs the need for predictability and stability. Principle Based Reasoning
Law and Economics
conservative response to the Warren court. policy based.
Critical Legal Theory
Narrative Reasoning. Considers law to be purely political and subjective
Conjunctive Rule
elements of a rule are often linked with the word “and”
Disjunctive
the word “or” is used, so only one element is linked
Exceptions to Rules
words like “unless” however, and provided that are used
Conjunctive Test
sets out a test with a list of mandatory elements
Disjunctive Test
Either/or test
Factors/Aggregate Test
flexible standard guided by certain criteria/factors
Balancing Test
balances countervailing considerations against each other
Defeasible Rule
rule with one or more exceptions
Simple Declarative Rule
contains no elements, factors, or other subparts
Rules combining several structures
DUH
Where does legislative history come from?
committee reports, speeches, witness testimony, studies
Statutes may bind courts, but…
a court has the authority to interpret the statute’s language. Court also determines the constitutionality of a statute, thus they have the last word
