chapter 1 - law and legal reasoning

law

enforceable rules governing relationships among individuals and between individuals and their society

liability

The state of being legally responsible (liable) for something, such as a debt or obligation.

primary sources of law

sources that establish the law

examples of primary sources of law

1. Constitutions

2. Statutory law

3. Case Law

4. Regulations created by administrative agencies

Secondary sources

books and articles that summarize and clarify the primary sources of law (restatements of the law)

example of secondary sources of law

scholarly compilations of various areas of law

Constitutional Law

Law that is based on the U.S. Constitution and the constitutions of the various states

Constitution

the supreme law of the land and is the basis for all law in the US

statutory law

The body of law enacted by legislative bodies (as opposed to constitutional law, administrative law, or case law).

congress

passes federal statutes that apply to all states

state legislature

passes state statutes that only apply within the states borders

U.S consitituion

no federal or state statute may violate this

examples of statutory law

ordinances and uniform law

ordinances

regulations passed by local governing unit, such as a city or a county

uniform law

A model law created by the National Conference of Commissioners on Uniform State Laws and/or the American Law Institute for the states to consider adopting

examples of ordinances

zoning, building and safety codes, and other matters affecting the local community

administrative law

The body of law created by administrative agencies in order to carry out their duties and responsibilities

case law

the rules of law announced in court decisions

case law interprets:

- statutes

- regulations

- constitutional provisions

- other case law

common law

The body of law developed from custom or judicial decisions in English and U.S. courts, not attributable to a legislature

precedent

A court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts

reporter

a publication in which court cases are published (reported)

stare decisis

A common law doctrine under which judges are obligated to follow the precedents established in prior decisions

Two aspects of stare decisis

1. A court should not overturn its own precedents unless there is a compelling reason to do so.

2. Decisions made by a higher court are binding on lower courts.

type of binding authority

controlling precedents

controlling precedents

Precedents that must be followed within a jurisdiction

binding authority

any source of law that a court must follow when deciding a case

persuasive authority

Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision.

sources of persuasive authority

•Precedents from other jurisdictions

•Legal principles and policies underlying previous court decisions or existing statutes

•Issues of fairness, social values and customs, and public policy (governmental policy based on widely held societal values)

•Unpublished opinions (those not intended for publication in a printed legal reporter)

legal reasoning

The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases.

IRAC Method

A method used to examine a law case. IRAC is an acronym that stands for issue, rule, application, and conclusion.

case on point

A previous case involving factual circumstances and issues that are similar to those in the case before the court.

judges function

is not to make the laws, but to interpret and apply them

common law doctrines and principles

govern only areas not covered by statutory or administrative law

restatements of the law

summarize the common law rules followed by most states

- published by the the American Law Institute (ALI)

Jurisprudence

the science or philosophy of law

natural law

The oldest school of legal thought, based on the belief that the legal system should reflect universal ("higher") moral and ethical principles that are inherent in human nature.

Legal Positivism

A school of legal thought centered on the assumption that there is no law higher than the laws created by a national government

historical school

A school of legal thought that looks to the past to determine what the principles of contemporary law should be

legal realism

A school of legal thought that holds that the law is only one factor to be considered when deciding cases and that social and economic circumstances should also be taken into account.

sociological school

A school of legal thought that views the law as a tool for promoting justice in society

substantive law

Law that defines, describes, regulates, and creates legal rights and obligations.

example of substantive law

contract law

procedural law

Law that establishes the methods of enforcing the rights established by substantive law.

- explains how you enforce your rights in the legal system

private law

deals with relationships between private entities

public law

addresses the relationship between persons and their governments

civil law

The branch of law dealing with the definition and enforcement of all private or public rights, as opposed to criminal matters.

criminal law

The branch of law that defines and punishes wrongful actions committed against the public

cyberlaw

An informal term used to refer to all laws governing electronic communications and transactions, particularly those conducted via the Internet.