Seg. B & D- Authority Flashcards
Ordinances
Local equivalent of statutes. Rules that members of a community are expected to follow.
Charters
Local equivalent of a constitution basic fundamental law of local governments; establish the structure of that local government.
Treaties
Represents an agreement between 2 or more governments but has to be confirmed by Senate before becoming law.
ie. Strategic Arms Limitation Treaty between U.S. & Soviet Union
Court Opinion
Decision of a court applying law to specific factual situations. Often referred to as a case or case law and is common law.
ie. Roe v. Wade is an opinion of the court
Statute
Laws created by the legislative branch also known as enacted law.
ie. Congress creates federal statutes which are contained in the U.S. Code
*State legislatures have their own statutes
[kind of like the federal version of ordinances]
Constitution
Highest form of law or fundamental law that establishes the basic rights and obligations of citizens and creates branches of government
Persuasive authority
Though researchers hope to find mandatory authority, you usually have to settle for persuasive authority, which the court isn’t required to follow.
It is a primary or secondary authority. The legal authority is not binding on a court, but the court may still rely on the authority when making its determination. Jurisdiction and court level determine whether a primary legal authority is persuasive or mandatory/binding. Secondary authority is always only persuasive.
Mandatory (binding) authority
Researchers are always looking for mandatory authority. In theory the court must follow this - binding on a court. Jurisdiction and court level determine whether a primary legal authority is mandatory or persuasive.
ie. case found that came from a higher court in the appropriate jurisdiction
Secondary Legal Authority
Authority that explains the law but does not itself establish the law, such as a treatise, annotation, or law review article, comment from a legal encyclopedia, etc.
Primary Authority
Authority that issues directly from a lawmaking body such as constitutions, legislation, regulations, and the reports of litigated cases (court opinions) among others.
Any form of law basically.
Non-Authority
Anything the court wouldn’t use in reaching its decision, such as a case that’s been overturned.
ie. case that’s been reversed by a higher court. Statute that’s been superseded or place has been taken , research book that’s used as an index or that could never be quoted
Administrative Agency Rules
Rules & regs. created by state and federal administrative agencies
ie rules governing air traffic created by the FAA
Administrative Decisions
These are the rules and regulations of the administrative agencies applied to situations
ie. If someone threatens to set off a bomb in an airport, FAA would issue an report with a decision of a fine
Rules of the Court
Rules that govern the procedures of the state and federal trial process. Court rules are created by the legislature.
Mandatory authority
Any valid law from a higher level within the same jurisdiction as the court in which litigation is taking place. When primary authority is mandatory, the lower court must follow the ruling of the higher court.
Persuasive authority
Any valid authority not from a higher authority, or an authority not within the jurisdiction of the matter being litigated. Secondary authority is always persuasive at best, since it is non-law.
(your attorney is arguing a case in front of the colorado supreme court and you find a case from the colorado court of appeals, that would be considered primary/persuasive; or if you find a case in an out-of-state court that’s higher than the one in which you’re arguing)
Possible Mandatory Courts
Only courts higher than the court in which the matter is being
litigated and within the appropriate jurisdiction could be
considered mandatory authority. U.S. Circuit Courts of Appeals
are mandatory on U.S. District Courts, because they are federal
courts. (Remember, the U.S. Circuit Court of Appeals is one court
that has been divided into different circuits.)
Structure of U.S. Courts
State courts
-State Supreme Court
-State Court of Appeals
-State Trial Court
-Local Trial Court
Fed. Courts
-U.S. Supreme Court
-U.S. Court of Appeals
-U.S. District Court (fed. trial court)
