Vol II Ch 1 Notes Flashcards
PRIMAL AUTHORITY
ANY FORM OF LAW
EXAMPLES OF PRIMAL AUTHORITY
A STATUTE, CASE (COURT OPINION), THE CONSTITUTION, EXECUTIVE ORDERS, ADMINISTRATIVE RULES/DECISIONS, TREATIES, ORDINANCES, CHARTERS AND RULES OF COURT.
EXAMPLES OF SECONDARY AUTHORITY
DEFINITIONS FROM DICTIONARIES, LEGAL ENCYCLOPEDIAS, TREATISES, ARTICLES FROM MAGAZINES, LAW JOURNALS, TRADE JOURNALS OR MAGAZINES OR ANY OTHER NON- LAW THAT IS QUOTED IN SUPPORT OF A LEGAL ISSUE.
TREATISES
A BOOK BY A PRIVATE PUBLISHER ON A SPECIFIC AREA OF LAW.
“MANDATORY”
IF THE MATERIAL IS FROM A HIGHER AUTHORITY THAN THE COURT IN WHICH YOU CLIENT’S CASE IS BEING HEARD, AND WITHIN THE COURT’S JURISDICTION.
SECONDARY AUTHORITY
NON-LAW.
EXAMPLES OF “MANDATORY”
A CASE YOU FOUND IN THE LAW LIBRARY THAT CAME FROM A HIGHER COURT IN THE APPROPRIATE JURISDICTION.
“PERSUASIVE”
MATERIAL FROM A COURT OF THE SAME OR LOWER LEVEL.
COURT CAN CHOOSE WHETHER NOT TO FOLLOW OR NOT.
*COURT NOT REQUIRED TO FOLLOW
EXAMPLE OF “PERSUASIVE”
A CASE FROM THE SAME LEVEL OF COURT OR A CASE FROM A DIFFERENT JURISDICTION.
“STARE DECISIS”
DOCTRINE THAT HOLD’S A COURT’S PREVIOUS DECISION SHOULD BE FOLLOWED UNLESS THERE IS A COMPELLING REASON NOT TO.
NON-AUTHORITY
IS ANYTHING A COURT WOULD NEVER USE IN REACHING IT’S DECISION.
EXAMPLES OF “NON-AUTHORITY”
- A CASE THAT HAS BEEN REVERSED BY A HIGHER COURT.
- A STATUTE THAT HAS BEEN SUPERSEDED.
- A RESEARCH BOOK THAT IS USED AS AN INDEX OR THAT COULD NEVER BE QUOTED.
CONSTITUTION
HIGHEST FORM OF LAW–> IS THE FUNDAMENTAL LAW THAT ESTABLISHES THE BASIC RIGHTS AND OBLIGATIONS OF CITIZENS & CREATES THE BRANCHES OF THE GOVERNMENT.
EX: US CONSTITUTION –> IS THE HIGHEST FORM OF LAW IN THE U.S (INDIVIDUAL STATES HAVE THIER OWN CONSTITUTION)
STATUTES
LAWS CREATED BY THE LEGISLATIVE BRANCH OF THE GOVERNMENT
U.S CONGRESS CREATES FEDERAL STATUTES WHICH ARE CONTAINED IN THE U.S.C (U.S CODE)
STATE LEGISLATURES CREATE STATUTES FOR THEIR OWN STATES
STATUTES ARE “ENACTED LAW” (SUPERSEDES COMMON LAW)
OPINIONS
DECISION(S) OF A COURT APPLYING LAW TO SPECIFIC, FACTUAL SITUATIONS.
OFTEN REFERRED TO A “CASE” OR “CASE LAW”
EX: ROE V. WADE –> IS AN OPINION OF THE COURT THAT APPLIED WHAT THE COURT DEEMED WAS A CONSTITUTIONAL RIGHT FOR A WOMAN TO HAVE AN ABORTION.
OPINIONS ARE “COMMON LAW”
TREATIES
REPRESENTS AN AGREEMENT BETWEEN TWO OR MORE GOVERNMENTS.
EX: A PRESIDENT SIGNS TREATIES, WITH CONSENT OF THE SENATE.
EXAMPLE OF A TREATY
STRATEGIC ARMS LIMITATION TREATY (S.A.L.T)
WAS NEGOTIATED BY THE U.S AND THE SOVIET UNION BUT HAD TO BE CONFIRMED BY THE U.S SENATE BEFORE IT BECAME LAW.
EXAMPLE OF A TREATY
STRATEGIC ARMS LIMITATION TREATY (S.A.L.T)
WAS NEGOTIATED BY THE U.S AND THE SOVIET UNION BUT HAD TO BE CONFIRMED BY THE U.S SENATE BEFORE IT BECAME LAW.
EXECUTIVE ORDER
A LAW CREATED BY THE HIGHEST ENTITY OF THE EXECUTIVE BRANCH, SUCH AS THE PRESIDENT OR GOVERNOR.
EX: A PARDON OF SOMEONE CONVICTED OF A CRIME.
ADMINISTRATIVE RULES
RULES AND REGULATIONS CREATED BY STATE AND FEDERAL ADMINISTRATIVE AGENCIES.
EX: THE FEDERAL AVIATION ADMINISTRATION (F.A.A.) CREATES RULES GOVERNING AIR TRAFFIC THROUGHOUT THE COUNTRY.
ADMINISTRATIVE DECISIONS
ARE CREATED BY THE ADMINISTRATIVE AGENCIES APPLYING ADMINISTRATIVE RULES TO FACTUAL SITUATIONS.
EX: THE F.A.A. CAN FINE A PERSON FOR MAKING A JOKE ABOUT A BOMB IN AN AIRPORT. AFTER A HEARING, THE AGENCY WOULD ISSUE A REPORT DETAILING IT’S DECISION.
RULES OF COURT
THESE ARE THE RULES THAT GOVERN THE PROCEDURES OF THE STATE AND FEDERAL TRIAL PROCESS.
COURT RULES ARE CREATED BY THE LEGISLATURE, THE HIGHEST COURT IN THE STATE OR BOTH.
EX: “FEDERAL RULES OF CIVIL PROCEDURES” ARE THE COURT RULES FOR CIVIL FEDERAL TRIALS.
CHARTERS
THE LOCAL EQUIVALENT OF A CONSTITUTION
THE BASIC AND FUNDAMENTAL LAW OF LOCAL GOVERNMENTS
THEY ESTABLISH STRUCTURE OF THE LOCAL GOVERNMENT IN THAT JURISDICTION
CHARTERS= CONSTITUTION
ORDINANCES
ARE THE LOCAL EQUIVALENT OF STATUTES
THEY ARE RULES THAT MEMBERS OF THE COMMUNITY ARE EXPECTED TO FOLLOW
EX: IF A PERSON FAILS TO CUT HIS/HER LAWN, HE OR SHE IS MOST LLIKELY VIOLATING AN ORDINANCE.
ORDINANCES= STATUTES
