Unit 2 - Analyzing Statutory Law and Legislative History

• Federal government has only the powers granted to it in the

Constitution

• The states have all powers not granted to the federal government

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4

Sources of LawSources of Law

ConstitutionConstitution

CasesCases

StatutesStatutes RegulationsRegulations

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LegislativeLegislative JudicialJudicialExecutiveExecutive

CreatesLaw

EnforcesLaw

Branches of GovernmentBranches of Government

InterpretsLaw

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Laws written by federal or state legislatures and signed by President

or GovernorStatutes are general policy

frameworkState laws may go beyond federal

laws as long as they don’t conflict

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Legislatures delegate power to administrative agencies to

develop regulationsRules and regulations add detail

Guidelines are often issued to clarify laws

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Research Identification of facts Identification of issues Finding appropriate law

Analysis Relating the law to the issues and facts

Writing Communicating your findings to the

attorney

Cases and our common law traditionConstitutions and statutesAdministrative regulationsThe executive branch

AUTHORITIES SOURCE

Cases* Judiciary

Constitutions Legislature

Statutes Legislature

Administrative regulations Administrative agencies

Executive orders Executive branch

Treaties Executive branch

Written by judges and called decisions or opinions

Considered primary authority when delivered by an appellant court from your state, U. S. Court of Appeals from your state’s circuit, or U. S. Supreme Court

Will be based on, and/or, will create precedent

“to stand by things decided”Following settled cases that are

factually similar and legally relevant to the case or problem being researched.

Official reportersRegional reportersCD-ROMsOn-line reporters

LEXIS Westlaw

Shepard’s can be used to find how all the ways that other cases have dealt with your case or statute.  Shepardizing your case will show you: Cases that followed the rule of law set out in your case.

Cases that are distinguishable on the facts from your case.

Cases that criticize your case.Cases that reverse your case or

overturn a point of law from your case.

AUTHORITIES Encyclopedias Law review articles Periodical

publications Treatises and texts Dictionaries Attorneys general

opinions

Restatements Annotations Foreign sources Form books Practice guides (such

as jury instructions or opinions on ethics)

*cases from other states or federal circuits.

Legal issues are questions presented to the court for resolution

What is it that we will ask the court to answer.

What are the questions we will need to answer in order to present the case before a court.

Or, is it?

Under Virginia law must a driver stop at a red stoplight?

At 3:30a.m. the morning of December 25, 2010, Mr. Smith was driving his pregnant wife to the hospital. He came to a what he thought was a malfunctioning stoplight. He sat at the intersection for about 4 minutes before be proceeded through the intersection as the light remained red. Mrs. Smith was experiencing contractions during the trip and the baby was born within minutes of arriving at the hospital. Mr. Smith received a citation for failing to obey a highway signal and has asked you to represent him.

1. What Is Legislative History?

2. Why and How To Use Legislative History?

3. Concerns About Using Legislative History

4. Conclusion19

Documents from the legislative process

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http://www.nd.edu/~lawlib/students/guides/fedleghist.pdf

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Different versions of a bill can be helpful in determining intent

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Testimony of experts and interested parties

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Published in the Congressional Record

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Generally considered to be the most authoritative source

To correct a legislative drafting error

Statutes are not always clear

Research may reveal legislative intent

Or provide support for your argument

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Potential for manipulation

Many times floor speakers are addressing only a few other members of Congress

…or an empty room

Comments can be entered into the record in written form

Potential to disrupt the Constitutional balance of power

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What’s the alternative? Plain Meaning Textualism False appearances of objectivity?

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A court cannot interpret a statute …in the absence of context.

The only question is whether it will rely on a context secretly supplied from the judge's own intellect, or will use and acknowledge openly the context supplied by Congressional documents.

• United States Supreme Court

• United States Courts of Appeals

– 13 circuit courts

• Federal District Courts– 98 district courts

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Vertical PowerVertical Power

Court of Last Resort

Appellate or Intermediate Court

Trial Court

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1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th DC FED

ME CT DE MD LA KY IL AR AK CO AL DC FED

MA NY NJ SC MS OH IN IA AZ KS GA

NH VT PA NC TX MI WI MN CA NM FL

RI VA TE MO HI OK

WV NE ID UT

ND MT WY

SD NV

OR

WA

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Unit 2: Submit the issue that you are planning to use in your legal memo/course project.

Unit 2: Teamwork –one page summary

Unit 3: Case BriefUnit 3: Teamwork assignment –case

briefing

Or comments…..