Sources of law Flashcards
Primary sources of law
Constitutions, statutes, regulations, and case law. It creates rights and obligations. Primary sources may be binding or merely persuasive.
Secondary sources of law
Law review articles and books
When is case law binding?
Whether case law is binding or not depends on the application of the rules of precedent and stare decisis.
Is federal law supreme to state law?
Yes - under the doctrine of Supremacy.
What is legislation?
Legislation or statutory law is law that is enacted by legislatures. Each of the 50 states has its own legislation that covers areas of state regulation
What is case reporters?
Published opinions are reproduced in a series of books known as reporters. Some are official reporters and some are unofficial reporters (lexisnexis)
When decisions are published?
Generally, decisions in which a court publish decisions in which they announce a new legal principle or interpretation.
What elements does a case contain?
- The name of the court
- Case name (name of the plaintiff v. name of the defendant)
- Names and litigation positions of the parties
- Attorneys
- The address of the case
- The opinion of the court
- Dissenting and/or concurring opinion(s)
- Date
What is “holding”?
It is the court’s answer to the legal issue.
What is “dictum”?
It means “something said in passing”. It is statements that go beyond the facts or legal questions. Such statements are rare.
The question of whether certain statements are related to the court’s holding or are dictum is important for purposes of stare decisis
What is particularly distinguished for common law systems?
One case can be used as a platform for future cases which is a principal feature of the U.S. common law method.
Stare decisis
The tendency to follow legal principles announced by earlier courts on similar legal issues when presented with similar material facts.
What factors can support the application of precedent to later-decided cases (stare decisis)?
Fairness, predictability, and the integrity of the judicial system
Which cases will bear the principle of stare decisis?
It depends on a number of considerations. The way in which U.S. courts use precedent is described in Hart v. Massanari.
- The similarity of the legal issue(s) presented
- The relationship between the court that decided the earlier case and the court now confronted with a similar issue
- The scope of the holding(s) in the earlier-decided cases
Decisions of U.S. Supreme Court: Questions on federal law - are decisions binding?
Yes, binding on all states and federal courts.
Decisions of U.S. Supreme Court: Questions on state law - are decisions binding?
Persuasive in the absence of binding authority.
Decisions of U.S. Courts of Appeals: Questions on federal law - are decisions binding?
Binding in the circuit (district courts and court of appeals).
Decisions of U.S. Courts of Appeals: Questions on state law - are decisions binding?
Persuasive in the absence of binding authority.
Decisions of District Courts: Questions on federal law - are decisions binding?
No, not binding.
Decisions of District Courts: Questions on state law - are decisions binding?
Persuasive in the absence of binding authority.
When is the stare decisis effect strongest?
If numerous precedents stand for the same principle of law.
Which court can overrule the Supreme Court precedents?
Only the Supreme Court itself
What is statutory law?
Statutory Law is the term used to define written laws, usually enacted by a legislative body.
What does “synthesizing case law” mean?
To synthesize a body of law is to read and integrate a body of legal principles into one simply-stated, easily applied rule that then can be used to predict the outcome of similar but not identical cases.
