Learning the Lang of the Law

Primary Source of Law

Law created and published by any brand of government (e.x US constitution, statutes, regulations, cases)

Secondary Sources of Law

Publications that discuss, interpret, categorize, or provide notations to those primary sources of law. (Ex: casebooks, treatises, legal scholarship, hornbooks, and study supplements)

Mandatory Authority

Laws that MUST be followed by courts and others within a particular jurisdiction. For example, trial courts must follow the appellates court decision within their own system.

Persuasive Authority

Law from outside of the relevant jurisdiction or commentary from a secondary source is persuasive. Courts need not follow the decisions of other courts that are not appellate courts in their own system.

Rules

Any standard guide, or regulation established by a rule-making authority (court, legislature, or executive agency); a discrete item of “the law.” Rules have a variety of terms and words of art that go with them. Your rule may be made up of elements or it may be a balancing test.

Factors Test

A test where the court considers many different elements that are relevant to reach a decision. (To determine whether X results, consider A, B, C and D).

Elements

Items that are defined by the law as necessary to reach a decision.

Conjunctive Elements Test

Several elements must all be established for a rule to apply (ex: X results if A, B, and C are met)

Disjunctive Elements Test

A rule will apply when either one or the other elements is established. (Ex: X results if either A or B are met).

Balancing Test

A test where the court weighs two or more factors to reach a decision (Ex: X results where A outweighs B).

Preponderance of Evidence

The party with the burden of proof must be more convincing than the other party- conceptually, at least by 51%

Clear and Convincing

A higher standard than preponderance of evidence, but lower than beyond a reasonable doubt

Beyond Reasonable Doubt

The highest standard, applied in criminal cases.

Precedent and Inherited Authority

The principle that a case needs to be decided in line with the previous cases on a similar points and with similar facts

Procedural Facts

The logistical steps that happened within the lifespan of the case itself, from the point of filing to the point of a courts decision.

Legally Relevant Facts

Facts that are important to the judge in making his or her decision. Legally relevant (or legally significant) facts, if changed, would alter the courts reasoning or change the courts holding

Reasoning of the Court

The thought process of the court. The “how” and “why” the court reached its decision is referred to as the courts decision.

Holding/ Rule/ Outcome

These terms are often used interchangeably to refer generally to the answer to the central question of the case (the issue).

Disposition

The specific outcome of the case for current litigants (ex: reversed and remanded for new trial on merits)

Dicta

Any part of a court opinion that is unnecessary to the resolution of the dispute before the court is called dicta and it is not binding on later courts.

Concurrence

A separate opinion issued by a justice who ultimately voted with the majority but disagreed with some or all of the reasoning supporting the majority’s legal conclusion.