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98 Cards in this Set
- Front
- Back
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What are the four (4) main sources of law?
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Constitutions
Statutes (laws) Court Opinions (also called cases) Administrative Regulations |
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What is the pre-eminent source of law in our legal system?
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The U.S. Constitution
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T/F
Each of the states also have their own constitution. |
True
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Is a state constitution subordinate to (inferior to) or superior to the federal constitution?
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Subordinate (inferior to)
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The three (3) branches of government are:
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Legislative - which makes the laws
Judicial - which interprets the laws Executive - which enforces the laws |
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What is a statute?
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A law established by a legislative body (federal, state or local government)
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In addition to enforcing the law, the Executive Branch of government can also do what?
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Make rules
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Administrative Agencies, such as the FDA (Federal Food and Drug Administration) or the DMV (Dept. of Motor Vehicles) are part of which branch of government?
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Part of the Executive Branch. They execute the laws passed by the legislature and create their own regulations to carry out the mandates established by statute.
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What is a court "opinion?"
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A written explanation by a judge or group of judges that accompanies an order or ruling in a case
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Which branch of government is the source of court opinions?
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The Judicial Branch
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The First Amendment guarantees what right?
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The right to free expression.
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If Congress passed legislation requiring t.v. stations to provide educational programming for children, which administrative agency within the executive branch would be responsible to carry out Congress's will?
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The FCC (Federal Communications Commission)
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What is a "common law" rule?
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Law developed "by judges" - through decisions of courts and case law,
rather than through legislative statutes or executive action |
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T/F
A state's legislature could step in and pass a statute that changes a "common law" rule? |
True. The courts in that state would then be obligated to apply the rule from the statute, not the former common-law rule.
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What is "legal authority?"
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The rules and their analysis that govern conduct in society
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Legal authority is categorized as:
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Primary or Secondary
and Mandatory or Persuasive |
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Primary Authority is the term used to describe what?
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Rules of Law (the "law")
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Primary authority includes what types of rules?
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Constitutional provisions
Statutes Court Opinions Administrative Regulations |
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Secondary Authority is the term used to describe what?
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Commentary on the law or Analysis of the law
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An opinion from the U.S. Supreme Court is what type of authority?
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Primary
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An article written by a private party explaining and analyzing the Supreme Court's opinion is what type of authority?
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Secondary
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Is secondary authority ever the law?
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No
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Of what value is "secondary authority?"
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Its analysis can help you understand complex legal issues
It can refer you to primary authority |
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"Mandatory" and "Persuasive" Authority are terms courts use to categorize what?
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The different sources of law they use in making their decisions
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T/F
The court is obligated to follow Mandatory authority. |
True. Mandatory authority is "binding" authority - the courts are "bound" to follow it.
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Mandatory authority contains rules that you must apply in order to do what?
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To determine the correct answer to the issue you are researching
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What is "persuasive authority?"
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Authority the court may follow if it is persuaded to do so
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Is "persuasive authority" binding or non-binding?
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Non-binding. The court is not required to follow it.
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Can "persuasive authority" ever dictate the answer to an issue?
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No, but it may help you discover or figure out the issue
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The degree to which an authority controls the answer to a legal issue is called what?
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The "weight of the authority"
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The "weight" of a legal authority depends on its status as what?
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As either:
Primary Authority or Secondary Authority . . . . and, as Mandatory Authority or Persuasive Authority |
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Is "secondary authority" ever the law?
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No.
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Can "secondary authority" ever be "mandatory?"
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No. It is always categorized as "persuasive."
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Can Secondary authority ever control the outcome of the issue you are researching? Can it ever be binding?
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No. It is always persuasive and nonbinding.
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T/F
"Primary authority" can be either "mandatory" or "persuasive." |
True. It can be either mandatory or persuasive.
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One factor that determines whether a primary authority is mandatory is what?
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Jurisdiction. The rules contained in primary authority apply only to conduct occurring within the jurisdiction in which the authority is in force.
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Is any state's Constitution primary authority in any other state?
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No. Each state's Constitution's rules apply only in that state.
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T/F
All court opinions are primary authority? |
True
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In the Federal Court System, what is the name of the court at the lowest level?
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U.S. District Courts (trial courts)(at least one in each state)
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In the Federal Court System, the intermediate courts are called what?
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U.S. Courts of Appeals (11 numbered circuits, the District of Columbia, and Federal Circuits)
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The "weight" of a legal authority depends on its status as what?
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As either:
Primary Authority or Secondary Authority . . . . and, as Mandatory Authority or Persuasive Authority |
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Is "secondary authority" ever the law?
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No.
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Can "secondary authority" ever be "mandatory?"
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No. It is always categorized as "persuasive."
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Does Secondary Authority ever control the outcome of the issue you are researching? Can it ever be binding?
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No. It is always persuasive and nonbinding.
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T/F
"Primary authority" can be either "mandatory" or "persuasive." |
True. It can be either mandatory or persuasive.
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One factor that determines whether a primary authority is mandatory is what?
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Jurisdiction. The rules contained in primary authority apply only to conduct occurring within the jurisdiction in which the authority is in force.
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Is any state's Constitution primary authority in any other state?
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No. Each state's Constitution's rules apply only in that state.
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T/F
All court opinions are primary authority? |
True
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In the Federal Court System, what is the name of the court at the lowest level?
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U.S. District Courts (trial courts)(at least one in each state)
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In the Federal Court System, the intermediate courts are called what?
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U.S. Courts of Appeals
(11 numbered circuits, the District of Columbia, and Federal Circuits) |
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In the Federal Court System, what is the highest court or court of last resort called?
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The U.S. Supreme Court
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Are trial court opinions, including those from federal district courts, mandatory or persuasive authority?
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Always "persuasive"
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T/F
Trial court opinions, including those from federal district courts bind the parties to the cases but do not bind other courts considering similar cases. |
True
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In the State Court System, what is the name of the lowest level court?
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Trial Court
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In the State Court System, what is the name given to the middle level courts?
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Intermediate Appellate Courts (Not all states have an intermediate level of review)
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The highest level of Court in the State Court System is called what?
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The Supreme Court (the State Supreme Court) (often called the Court of Last Resort)
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T/F
The Supreme Court is bound by its own prior opinions? |
False
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T/F
The Supreme Court is required to follow the opinions of the courts below it? |
False
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Are Intermediate appellate opinions mandatory authority for the trial courts below them?
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Yes
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When a court (either state or federal) decides a case governed by the law of another jurisdiction, the court deciding the case will treat the law of the controlling jurisdiction as what type of authority?
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"Mandatory Authority"
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In the Federal Court System, what is the highest court or court of last resort called?
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The U.S. Supreme Court
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Are trial court "opinions," including those from federal district courts, mandatory or persuasive authority?
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Always "persuasive"
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T/F
Trial court opinions, including those from federal district courts bind the parties to the cases but do not bind other courts considering similar cases. |
True
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In the State Court System, what is the name of the lowest level court?
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Trial Court
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In the State Court System, what is the name given to the middle level courts?
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Intermediate Appellate Courts
(Note: Not all states have an intermediate level of review) |
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The highest level of Court in the State Court System is called what?
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The Supreme Court (the State Supreme Court) (often called the Court of Last Resort)
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T/F
The Supreme Court is bound by its own prior opinions? |
False
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T/F
The Supreme Court is required to follow the opinions of the courts below it? |
False
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Are Intermediate appellate opinions mandatory authority for the trial courts below them?
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Yes
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When a court (either state or federal) decides a case governed by the law of another jurisdiction, the court deciding the case will treat the law of the controlling jurisdiction as what type of authority?
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"Mandatory Authority"
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Immigration law is an example of law established by which legislative branch?
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The Federal Government
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Is legal research a linear or non-linear process?
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Non-linear
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Two preliminary steps to take before beginning to search for authority are:
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1) defining the scope of your project; and
2) generating "a query" (question) - using search terms |
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Your goal in most research projects is to locate which type of authority?
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Primary authority
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If primary authority is not available or does not directly answer your research question, which type of authority would you then pursue?
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Persuasive authority (either primary or secondary) to assist in analyzing the issue.
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The research tools you use depend on which possible factors?
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1) The resources in your available library
2) The amount of time you have for the project 3) The depth of research you need to do 4) The amount of money your client can spend |
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Three common search methods for locating documents are:
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1) Locating documents "by citations"
2) Searching for material within a source "by subject" 3) By "word searching" in online sources |
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What is this an example of?
Griswold v. Connecticut, 381 U.S. 479, 480 (1965). |
A citation.
A citation is identifying information you can use to retrieve a document from a book in the library - or online |
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Primary sources are the law. They include what?
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Cases and codes
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After the U.S. Congress passes a bill and the president signs it into law, it is typically "codified." What does "codified" mean?
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Placed into the United States Code (USC), the official version of federal statutory law.
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What does the USC (United States Code) contain?
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50 subject titles, which are subdivided into chapters and sections.
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In addition to the "codified" legislation (statutes), what other types of materials are included in the USC (United States Code)?
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Authority references, historical notes, enactment dates, cross-references, tables, and an index.
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In addition to the USC (United States Code), West also publishes the USCA (United States Code Annotated). What does the USCA contain?
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Annotations - which are summaries of published court decisions that have interpreted the section. In the USCA, annotations follow the text of the section.
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USCA is updated more often than the USC. What are its updates called and how often are they issued?
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Pocket Parts and Interim Pamphlets.
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Secondary sources often contain case citations that can ultimately lead you to a case "on point." What does "on point" mean?
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A decision that addresses facts and issues identical to those of the dispute at hand - that you are working on.
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What is a Petition for Writ of Certiorari. (informally called "Cert Petition.")
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A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.
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What is a Writ of Certiorari?
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A decision by the Supreme Court to hear an appeal from a lower court.
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Court opinions or cases are published in books called what?
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Reporters
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The purpose of an Appellate Brief that you write is to have the Judge do what?
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Be persuaded to rule in your favor.
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What is a parallel cite?
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A parallel citation is a citation “added on” to a basic citation that lists one or more additional sources that have also published the same authority.
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When CALR (computer assisted legal research) was first developed in the 1970s, it borrowed "Boolean search" techniques from the field of computer programming. A Boolean search looks for a particular term or group of terms in a specific relationship to one another.
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A "Boolean search" looks for a particular term or group of terms in a specific relationship to one another. "Boolean searches" can include limits with respect to time: for ex., court opinions are always dated, so an attorney can use a Boolean search to look for cases released in a given year or in a range of years.
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What is a Hornbook?
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A Law student study text.
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What purpose would a legal encyclopedia serve?
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They cover topics in regard to a wide range of law. Each entry has smaller topics within it. They provide a very solid treatment of a particular topic.
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When would legal periodicals be of help to you in legal research?
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When you are interested in new legislation, current and innovative legal theories and the meaning of important cases.
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What are the names of two (2) legal encyclopedias?
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American Jurisprudence and Corpus Juris
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Are legal encyclopedias primary or secondary authority?
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Secondary!
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What is "the legal issue?"
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The principle of law the court is considering. It is strictly determined by the facts of the case. If the facts were different, the issue would likely be different. The issue is presented as a question of law.
(Ex. Can the tenant withhold his rent until his landlord repairs the toilet?) |
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What is the Bluebook?
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The definitive style guide for legal citation in the United States.
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