Chapter 1 - Law and Legal Reasoning

Liability

Legally responsible (liable) for something, such as a debt or obligation

What is a Primary Source of Law?

sources that establish the law

What are some examples of Primary Sources of Law?

1. The U.S. and State Constitutions

2. Statutory law

3. Regulations created by administrative agencies

4. Case law and common law doctrines

What is Statutory Law?

Laws passed by Congress, State Legislators, or local governing bodies

What is a Secondary Source of Law?

Books and articles that summarize and clarify the primary sources of law

What are some examples of Secondary Sources of Law?

1. Legal Encyclopedias (AmJur)

2. Treatises

3. Law Review Journals

4. Restatements (compilations of laws)

What happens if a law is in violation of the Constitution if challenged?

It will be declared unconstitutional and will not be enforced.

When is a State Constitution Applicable?

Unless it conflicts with the U.S. Constitution or a federal law, a state constitution is supreme within the state’s borders.

What is a Federal Statute?

A statute that is passed by Congress and applies to all states.

What is a State Statute?

A statute that is passed by a state legislature and applies only within the state’s borders.

What is an Ordinance?

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

What are some examples of Ordinances?

• Land use (zoning)

• Building and safety codes

• Other matters affecting the local community

What is 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.

What can states do with Uniform Law?

• Each state has the option of adopting or rejecting all or part of a uniform law.

• If the state adopts the law, it comes statutory law in that state.

What is the Uniform Commercial Code (UCC)?

Facilitates commerce among states by providing a uniform, yet flexible, set of rules governing commercial transactions.

What is Administrative Law?

Laws created by administrative agencies in order to carry out their duties and responsibilities.

What is an Administrative Agency?

A federal or government agency created by the legislature to perform a specific function.

What do regulations govern?

• A business’s capital structure and financing.

• A business’s hiring and firing procedures.

• A business’s relations with employees and unions.

• The way a business manufactures and markets its products.

What is an Executive Agency?

An administrative agency within the executive branch of the government.

What is an Independent Agency?

An administrative agency that is not considered part of the government’s executive branch and is not subject to the authority of the president.

State and Local Agencies

Commonly, a state agency is created parallel to a federal agency.

What is Case Law?

The rules of law Annoucements in court decisions.

What does Case Law interpret?

• Statutes

• Regulations

• Constitutional Provisions

• Other case law

What does Case Law cover?

All areas not covered by statutory law and is part of our common law tradition.

What is American law based on?

The English Legal System

What type of law do judges still apply when deciding cases?

Common Law

What is Common Law?

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

What is Court of Law?

A court in which the only remedies that can be granted are things of value, such as money damages.

What are Remedies of Law?

A remedy available in a court of law.

What are Damages?

A monetary award sought as a remedy for a breach of contract or a tortious act.

What are Courts of Equity?

No adequate remedy in a court of law, they petitioned the king for relief.

What are some Remedies in Equity?

1. Injunction: order to cease engaging in a specific activity or to undo some wrong or injury.

2. Specific performance: ordering to perform an agreement as promised.

3. Rescission: cancellation of a contractual obligation.

4. Restitution

5. Reformation

What is Equitable maxims?

General proper options or principals of law that have to do with fairness (equity).

What are the conditions under Equitable maxims?

1. Whoever seeks equity must do equity. (Anyone who wishes to be treated fairly must treat others fairly.)

2. Where there is equal equity, the law must prevail. (The Law will determine the outcome of a controversy in which the merits of both sides are equal.)

3. One seeking the aid of an equity must come to court with clean hands. (The plaintiff must have acted fairly and honestly.)

4. Equity will not suffer a wrong to be without a remedy. (Equitable relief will be awarded when there is a right to relief and there is no adequate remedy at law.)

5. Equity regards substance rather than form. (Equity is more concerned with fairness and justice than with legal technicalities.)

6. Equity aids the vigilant, not those who rest on their rights. (Equity will not help those who neglect their rights for an unreasonable period of time.)

What are the two distinct legal systems of Medieval England?

1. Courts of Law

2. Courts of Equity

What courts do the U.S. combine?

They combine courts of law and equity.

What can people do in U.S. courts?

They may request both legal and equitable remedies in the same action.

What do trial judges do in U.S. Courts?

Trial court judges may grant appropriate relief.

What are the procedural real differences with Action at Law?

1. Initiation of lawsuit: Filing a complaint.

2. Decision: By judge or jury

3. Result: Judgement

4. Remedy: Monetary damages or property.

What are the procedural real differences with Action in Equity?

1. Initiation of lawsuit: Filing a petition

2. Decision: By judge (no jury)

3. Result: Decree

4. Remedy: Injunction, specific performance, or rescission

What is Stare Decisis?

Common law doctrine under which judges are obligated to follow the precedents established in prior decision. (Let the decision stand)

When can a court overturn its own precedent under Stare Decisis?

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

Decisions made by a higher court are binding to what type of court?

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

What is a Precedent?

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

What are Controlling Precedents?

Precedents that must be followed within a jurisdiction.

What is Binding Authority?

Any source of law that a court must follow when deciding a case?

What are some examples of Binding Authority?

Constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.

What happens if there is no precedent?

Case of first impression, courts often look at persuasive authorities.

What is a 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.

What are some 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)

What is Motion to Dismiss?

An action to dismiss a case due to a lack of procedure being followed.

What is Legal Reasoning?

The process of reasoning by which. A judge harmonizes their opinion with the judicial decisions in previous cases.

What does IRAC stand for?

Issue, Rule, Application and Conclusion.

What are the phases of the IRAC method?

1. Issue—What are the key facts and issues?

2. Rule—What rule of law applies to this case?

3. Application (Analysis)—How does the rule of law apply to the particular facts and circumstances of this case?

4. Conclusion—What conclusion should be drawn?

What did the American Law Institute (ALI) do?

They published compilations of the common called Restatements of the Law. 

What are Restatements of Law?

Important sources of legal analysis and opinion which summarize the common law rules followed by most states. Judges often rely on them in making decisions.

What is Jurisprudence?

The science or philosophy of law.

What are the four schools of jurisprudential thought?

1. Natural law school

2. Positivist school

3. Historical school

4. Legal realism

What is Natural Law?

The belief that the legal system should reflect universal (“higher”) moral and ethical principles that are inherent in human nature.

What are the principles of Natural Law Theory?

• A higher law applies to all human beings.

• If each written law does not reflect the principles inherent in natural law, then it loses its legitimacy and need not be obeyed.

The notion that people have “natural rights” stems from the natural law tradition.

What is Positive law, or national law?

The written law of a given soceity at a particular time.

When does Positive/Natural Law apply?

It applies to the citizens of that nation or society?

What is 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.

• Laws must be obeyed, even if they are unjust to prevent anarchy.

• Judges will defer to existing law.

What is the Historical School of Thought?

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

• Emphasizes the evolutionary process of law by concentrating on the origin and history of the legal system.

• Judges will strictly follow decisions from past cases.

What is Legal Realism?

A school of legal thought centered on 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.

• The law can never be applied with total uniformity.

• Judges are more likely to depart from past decisions.

What is Substantive Law?

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

What is Procedural Law?

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

What is Private Law?

Law that deals with relationships between private entities.

What is Public Law?

Law that addresses the relationship between persons and their governments.

What is Civil Law?

The enforcement of all private or public rights, as opposed to criminal matters.

What is Criminal Law?

Defines and punishes wrongful actions committed against the public; as defined and prohibited by local, state, or federal government statues.

Who prosecutes criminal defendants?

They are prosecuted by public officials, such as the district attorney (D.A.), on behalf of the state, not by their victims or private parties.

What is a Citation?

A reference to a publication in which a legal authority—such as a statute or court decision—or other source can be found.

Where can you find Primary Sources of Law?

In addition to being published in sets of books, most federal and state laws and case decisions are available online.

What is the United States Code (U.S.C)?

All federal laws passed by Congress are arranged by broad subject.

What is an example of a U.S.C.?

17 U.S.C. § 107 (2012) Limitations on exclusive rights: Fair use

What are State Codes?

Passed by state legislatures and are collected in state publications.

What is an example of a State Code?

N.R.S. 18.010 Award of Attorney Fees

What are Administrative Rules?

Rules and regulations adopted by federal administrative agencies.

Where are Administrative Rules published?

Initially published in the Federal Register, a daily publication of the U.S. government, and later incorporated into the Code of Federal Regulations (C.F.R.).

What is an example of Administrative Rules?

20 CFR §402.45 Availability of records (FOIA - employee benefits)

That are the two types of courts in the United States?

1. Federal courts

2. State courts

What is a Trial Court?

A court in which evidence is presented and testimony is given (Bottom Tier).

What is an Appellate Court?

Decisions from a trial court are reviewed at this level

What is the State or United States Supreme Court?

These courts review decisions from intermediate courts of appeals.

Where are decisions from State Trial Courts filed?

Decisions are typically filed in the office of the clerk of the court, where the decisions are available for public inspection.

Where are the written decisions of the appellate courts published?

They are distributed and published in print and online.

What are Reports or Reporters?

Decisions published in volumes, which are numbered consecutively and published by each state.

What citation is associated with the U.S. District Courts (Trial)?

Federal Supplement (“F. Supp. or F. Supp. 2d”)

What citation is associated with the U.S. Courts of Appeal (Circuit Courts)?

Federal Reporter (F., F.2d, or F.3d).

What citation is associated with the U.S. Supreme Court?

• United States Reporter (U.S.)

• Supreme Court Reporter (“S. Ct.”)

• United States Reports: Lawyers Edition (“L. Ed.” & “L. Ed. 2d”).

How do you read the following case citiation:

Rosa and Raymond Parks Institute for Self Development v. Target Corporation, 812 F.3d 824 (2016).

• Title: First Party is the Plaintiff, second party is the Defendant. The parties are either italicized or underlined.

• This is a federal courts case in 2016. It is published in volume 812 of the Federal Reporter Third Series beginning on page 824.

What is a Plaintiff/Petitionier? 

The party who initiates a lawsuit.

What is the Defendant/Respondent?

The party against whom the lawsuit is brought.

What is an Appellant/Petitioner

The party who takes an appeal from one court to another.

What is an Appellee/Respondent?

The party against whom an appeal is taken.

What is an Opinion?

The court’s reasons for its decision, the rules of law that apply, and the judgment.

What is a Unanimous Opinion?

An opinion that represents the view of all judges who heard a case.

What is a Majority Opinion?

A court opinion that represents the views of the majority (more than half) of the judges or justices deciding the case.