Sources of American Law Brandy Kreisler Sources of American Law Brandy Kreisler WIU PA 201 Last...

transcript

Sources of Sources of American LawAmerican Law

Brandy KreislerBrandy Kreisler

WIUPA 201

Sources of Sources of American LawAmerican Law

Brandy KreislerBrandy Kreisler

WIUPA 201

Last updated 11/22/2010

Four Sources of LawFour Sources of Law

Constitutional law Administrative law Statutory law Common law

Source: Government Printing Office, 2008.

Trias Politica (separation of powers)Trias Politica (separation of powers)

Law by BranchLaw by Branch

LegislativeLegislative

Promulgates bills, statutes, and codes.

ExecutiveExecutive

Promulgates court decisions (cases), also known as “common law.”

JudicialJudicial

Promulgates agencies, which produce administrative rules and regulations. Also produces Executive Orders

FederalismFederalism

Is a Constitutionally-regulated system whereby power is divided between a central authority and constituencies (states).

Contrast to unitary systems, where the organs of state are governed as one single unit. Most states in the world are unitary.

Is a Constitutionally-regulated system whereby power is divided between a central authority and constituencies (states).

Contrast to unitary systems, where the organs of state are governed as one single unit. Most states in the world are unitary.

Civil Legal SystemsCivil Legal Systems

Predominant legal system of the world

Also known as “Continental law” or “Romano-Germanic law”

Legislation is the primary source of law

State of Louisiana is based upon the civil law system

Predominant legal system of the world

Also known as “Continental law” or “Romano-Germanic law”

Legislation is the primary source of law

State of Louisiana is based upon the civil law system

Common LawCommon Law

Based in the judiciary Transported from England to the

American colonies Established in the eleventh

century by King William the Conqueror in England

Established to provide uniform law to be enforced by English judges

Based in the judiciary Transported from England to the

American colonies Established in the eleventh

century by King William the Conqueror in England

Established to provide uniform law to be enforced by English judges

Common Law SystemsCommon Law Systems

Prior cases have the same weight as statutes.

“Stare decisis” necessary to maintain continuity

Higher courts have mandatory authority; lower courts have persuasive authority.

Prior cases have the same weight as statutes.

“Stare decisis” necessary to maintain continuity

Higher courts have mandatory authority; lower courts have persuasive authority.

Types of AuthorityTypes of AuthorityMandatory Authority—must be followed by all courts underneath the deciding court.

Example: All cases from the USSC are mandatory in all courts and jurisdictions.

Persuasive Authority—may be followed by the court, but may be ignored at the judge(s) discretion. It is not binding.

Example: A case from the California court of last resort is mandatory authority for all state courts in California, but only persuasive for the other 49 states.

The Federal Court SystemThe Federal Court System

Taken from http://www.cusd.com/calonline/apgov/module4/lesmod4/4_15.ht

The Thirteen Federal Judicial CircuitsThe Thirteen Federal Judicial Circuits

The State Court SystemThe State Court System

M u n ic ip a lC o u rt

C o u n ty C ou rt o fL im ite d Ju risd ic t ion

S u p e rio r C o u rt

In te rm e d ia teA p p e lla te C o u rts

S ta te S u p re m e C o u rt

M u n ic ip a lC o u rt

C o u n ty C ou rt o fL im ite d Ju risd ic t ion

S u p e rio r C o u rt

In te rm e d ia teA p p e lla te C o u rts

S ta te S u p re m e C o u rt

Court Structur

e of Texas

Taken from http://www.courts.state.tx.us

Court Structur

e of Texas

Taken from http://www.courts.state.tx.us

Court Structur

e of Alabama

Taken from http://www.ncsconline.org/D_Research/Ct_Struct/state_inc.

asp?STATE=AL

Court Structur

e of Alabama

asp?STATE=AL

Court Structure of New

asp?STATE=NY

Court Structure of New

asp?STATE=NY

Why Do We

Make sure you give credit to the proper author.

In our common law system, referencing prior cases and authorities strengthens argument

Citing gives your readers a way to locate the actual information

Citing gives a great deal of important information as briefly as possible.

Make sure you give credit to the proper author.

In our common law system, referencing prior cases and authorities strengthens argument

Citing gives your readers a way to locate the actual information

Citing gives a great deal of important information as briefly as possible.

How Do We Cite?How Do We Cite?How Do We Cite?How Do We Cite?

The Bluebook: A Uniform The Bluebook: A Uniform System of Citation (19th System of Citation (19th

ed. 2010).ed. 2010).

The Bluebook: A Uniform The Bluebook: A Uniform System of Citation (19th System of Citation (19th

ed. 2010).ed. 2010).

Features of the Bluebook

Quick Reference (inside back cover)Extensive index at back Introduction - explains the structure of The Bluebook Blue-colored Practitioners' Notes (for court documents and legal memoranda) Blue-colored Tables pages

RulesRulesRules 1-9 cover general informationRule 10 covers cases Rule 11 covers constitutions Rules 12 and 13 cover statutes and legislative materials Rule 14 covers administrative materials Rules 15-17 cover secondary sources such as books, periodicals, treatises, etc. Rule 18 covers electronic sources

ReportersReporters Official

Example:

United States Reports (U.S.)Plessy v. Ferguson, 163 U.S. 537 (1896)

UnofficialExample:

The Supreme Court Reporter (S.Ct.)United States Supreme Court Reports

Lawyers’ Edition (L.Ed., L.Ed.2d) District of Columbia v. Heller, 554 U.S. ___,

128 S. Ct. 2783 (2008)

OfficialExample:

United States Reports (U.S.)Plessy v. Ferguson, 163 U.S. 537 (1896)

UnofficialExample:

The Supreme Court Reporter (S.Ct.)United States Supreme Court Reports

Lawyers’ Edition (L.Ed., L.Ed.2d) District of Columbia v. Heller, 554 U.S. ___,

128 S. Ct. 2783 (2008)

Regional ReporterRegional Reporter

Cases from all 50 states are published in one of seven regional reporters:

Atlantic ReporterSouthern ReporterSouth Eastern ReporterSouth Western ReporterNorth Eastern ReporterNorth Western ReporterPacific Reporter

Regional Reporters (State Cases)Regional Reporters (State Cases)

U.S. Supreme Court Citation

[court of last resort (state and federal)]

U.S. Supreme Court Citation

[court of last resort (state and federal)]

Elements: Parties volume-reporter-page (year of decision [NEVER the

court!])

Elements: Parties volume-reporter-page (year of decision [NEVER the

court!])

Baker v. Carr, 369 U.S. 186 (1962)

Federal Circuit Court Citation

[federal courts of intermediate appellate jurisdiction]

Federal Circuit Court Citation

[federal courts of intermediate appellate jurisdiction]

Elements: Parties volume-reporter-page (court [if needed to specify jurisdiction]

and year of decision)

Sierra Club v. Larson, 2 F.3d 462 (1st Cir. 1993)

Federal District Court Citation

[trial-level courts]

Federal District Court Citation

[trial-level courts]

United States v. Bin Laden, 146 F.Supp.2d 373 (S.D.N.Y 2001)

NY Court of Appeals Citation[state court of last resort]

Elements: Parties volume-reporter-page of official

reporter parallel reference(s) to regional

reporter(s) (year of decision [NEVER the court!])

Witter v. Taggart, 78 N.Y.2d 234, 577 N.E.2d 338, 573 N.Y.S.2d 146 (1991).

NY Appellate Division Citation

[state courts of intermediate appellate jurisdiction]

NY Appellate Division Citation

[state courts of intermediate appellate jurisdiction]

Adamy v. Ziriakus, 231 A.D.2d 80, 659 N.Y.S.2d 623 (4th Dep’t 1997).

reporter (court [if needed to specify jurisdiction] and

year of decision)

NY Supreme Court Citation[trial-level courts]

Dorfman v. Berman, 186 Misc. 2d 415, 718 N.Y.S.2d 142 (Sup. Ct. Albany County 2000).

year of decision)

The Thirteen Federal Judicial CircuitsThe Thirteen Federal Judicial Circuits

So, how do you find “Common Law”?

As you have probably figured out, “common law” means “case law.”

You may find cases through digital databases, in books (called “reporters”) and online.

Online ResearchOnline ResearchCredible sources for free caselaw research include:

LexisOne: LexisOne: http://www.lexisone.com/caselaw/freecaselaw Cornell’s LII: http://www.law.cornell.edu/

ReferencesReferencesGovernment Printing Office (Superintendent of Documents). (2008). Ben’s guide to U.S.

government for kids: Branches of government. [Diagram.], Retrieved August 4, 2009, from: http://bensguide.gpo.gov/3-5/government/branches.html

Government Printing Office (Superintendent of Documents). (2008). Ben’s guide to U.S. government for kids: Branches of government. [Diagram.], Retrieved August 4, 2009, from: http://bensguide.gpo.gov/3-5/government/branches.html