LPS Midterm

What are the three ways that courts can make laws?

1. Fashion legal doctrine or principle if it is required to resolve a case but no binding law exists to determine that matter

2. Deciding cases that interpret existing legal doctrines

3. Interpreting ambiguous or vague language in enacted law

What is common law?

rules and legal principles derived from judicial decisions rendered in the absence of enacted law

What does precedent mean?

judicial decision or opinion that serves as an example of how a subsequent court can resolve a similar question of law under similar sets of facts

What does stare decisis mean?

requires courts to follow precedent when deciding similar cases

Who is a SCOTUS opinion binding on?

Every court in the US (federal and state) (but can’t decide state law issues)

Is a state court bound by federal court of appeals?

no

Is primary authority binding?

yes

What is persuasive law?

Law that is not binding on a court (i.e. a case from another state)

What do enacted laws require?

Bicameralism and presentment

What is bicameralism?

Both chambers of the leg are required to pass the same bill

What is presentment?

Presenting the bill to the president for approval or veto

True or false: the language of a statute is immutable

true (it can only be changed through another act of legislature

Are implied/unexpressed rules enacted?

no

Are implied/unexpressed rules mutable?

yes

What is rule synthesis?

Process that describes expressed and unexpressed rules from into components parts

What are legal tests used for?

determines whether a party has satisfied the burden of proof to support or defend against a cause-of-action or criminal charge

Define “elements” in terms of a rule

separate requirements of a test that a party must satisfy to meet burden of proof

Define “factors” in terms of a rule

considerations that guide the court

What is an element test?

Inquiry that requires the court to consider several parts of subparts of a rule to satisfy the whole. Party must satisfy each element to meet burden of proof.

What is a factor test?

Test that consists of several factors that a court can review to reach its conclusion. Flexible, each factor does not need to be satisfied.

What is a balancing test?

Weighing two competing considerations

What is the totality of the circumstances test?

Requires court to consider all of the relevant circumstances of a particular case and not any one circumstance or list of elements. Considers all facts, factors, circumstances togethe. Loosely frames the analysis by indicating the scope of the court’s considerations.

At state and federal level, what are the four types of law?

Constitutions, statutes, administrative regs, caselaw

What created the leg branch?

Article I, Section 1 of the Const.

What creates the exec branch?

Article II, Sec. 1 of the Constitution

Who creates regulations?

executive branch (but congress has to enact a statute that authorizes agency to adopt regulations and that delegates rule-making authority to the agency

What branch executes and enforces statutes?

executive branch

What creates the judicial branch?

Article III, Sec. 2

How many federal district courts are there in the US

94

How many geographic regions for court of appeals

12 (13 circuit courts though)

Are treatises primary or secondary authority?

secondary

True or false: primary authority can either be binding or nonbinding

true

true or false: secondary authority is never binding on deciding a case

true

What is dictum?

part of a judicial opinion that is not essential to a decision

What is deductive reasoning?

requires lawyer to apply a set of facts to  a stated premise like a statute or a common-law rule (rather than comparing facts of another case and drawing a conclusion)

What is rule-based reasoning?

requires lawyer to apply a set of facts to  a stated premise like a statute or a common-law rule (rather than comparing facts of another case and drawing a conclusion)

What is another name for rule-based reasoning?

deductive reasoning

Can case rules be mutable?

yes because court can change common law

Are statutes “very truthful”?

yes

Are case rules “very truthful”?

no

What is syllogism?

Type of reasoning where a conclusion is drawn from two premises

What is a major premise?

A broad statement that describes a quality, character, property, or attribute that is true to all members of a class

What is a minor premise?

a characteristic of a member w/in the major premise

it’s expressed as a narrow statement that is purportedly included w/in the major premise

In syllogism, what is the nexus?

the common term

What is the five-step analysis in rule-based reasoning?

1. State the point of analysis or conclusion (issue and most likely outcome)

2. State the rule

3. Explain the rule (if necessary)

4. Apply law to facts

5. Conclude (reiterate)

What are the three types of legal reasoning? Explain what each means

1. Rule-based reasoning: apply rule to the facts of the case

2. Analogical reasoning: comparative with other cases

3. Policy-based reasoning: promotes societal good

What is an ambiguous term?

terms that could have more than one meaning (i.e. bank) but they are defined

What is a vague term?

term that has no defined limits

what is the plain meaning rule?

determine if statute is ambiguous, vague or both & give plain, ordinary meaning

what are the two exceptions to the plain meaning rule?

1. If term has ordinary and technical meanings, court may favor technical if statute concerns technical matters

2. If court would lead to illogical result or frustrate the leg's intent when it was enacted, the court may disregard

westlaw or lexis: fields

westlaw

westlaw or lexis: segments

lexis

On Westlaw and Lexis, what is the caption of a case?

The citation and info to determine whether case is binding (litigant names, citation to the printer reporter(s) or unique database identifier, name of deciding court, and date of the decision)

What are the editorial summaries (synopsis and case summaries) on WestLaw and Lexis?

Include background facts, procedural history, legal questions and issues, and holdings or outcomes of the cases

On Westlaw and Lexis, what are the headnotes?

Contain concise rules of law from the case and appear in order that they appear in the case

Does Westlaw paraphrase or use actual quotes in the headnotes?

paraphrased

Does Lexis paraphrase or use actual quotes in the headnotes?

actual quotes

What is policy-based reasoning?

 reflects how the law impacts society and affects the well-being of the community

What are the categories of public policy arguments?

1. Judicial Administrative Policy Arguments

2. Normative Arguments

3. Institutional Competence Arguments

4. Economic Arguments

5. Fairness and Justice Arguments

What are Judicial Administrative Policy Arguments?

Stress importance of efficient and fair judicial system

What are normative arguments?

Social welfare (i.e. balancing privacy with public safety)

What are Institutional Competence Arguments?

Focus on whether courts or leg are better suited to resolve a legal issue

What are economic arguments?

Financial considerations (i.e. suing parents for claim against child)

What are Fairness and Justice Arguments?

Fairness and justice and equity (Cannot be whole argument, should bolster argument)

When should you use policy arguments?

To support a legal argument

What is judicial conservatism?

Follow precedent - lawyers want to convey that client's issue fits squarely into existing law or only requires slight modification, bc courts are deterred from overruling former opinions

What is an interoffice memorandum?

internal doc that objectively summarizes attorney's research and analysis regarding a client's legal issue and predicts an outcome

Memorandum of law or brief?

persuasive doc that an attorney submits to a court or other tribunal in support of a client's legal position

What are the steps of CREAC?

Conclusion

Rule

Explanation

Analysis

Conclusion

Where can you find cases?

reporters and online

What are reporters?

print books containing cases that are published in chronological order

What are unreported cases?

cases that are only published online, not in print reporters

True or false: Federally, virtually all SCOTUS decisions are published in reporters

true

True or false: many federal district and appellate cases are published in reporters

false, but many can be found online

true or false: at a state level, almost all cases at court-of-last resort level are published in a reporter

true

true or false: trial decisions are mostly not published in reporter, and many are hard to find online

true

What is the difference between official and unofficial reporters?

Official reporters are published by gov entities or under their direction

Unofficial reporters are published by private companies (like Thomas Reuters)

What are parallel citations?

When a case is published in state and regional reporters

True or false: unpublished cases are mostly not binding

true

What are the 5 parts of a full citation?

1.  name of the case

2. Published or unpublished source in which the case can be found

3. Parenthetical indicating the court and year of decision

4. Other parenthetical information, if any

5. Subsequent history of the case

In a reporter, how are these arranged: volume, set, series?

set-series-volume

What do pinpoint cites do?

Direct reader to a specific page in a reporter

What is inductive analysis?

Introduce conclusion by establishing a legal analogy between key facts in the controlling cases and facts in client case

What is another name for inductive analysis?

analogical reasoning

What is another name for analogical reasoning?

inductive analysis

What is another named for deductive analysis?

rule-based reasoning

What are the two types of inductive/analogical reasoning? Explain what they are.

1.) Narrow analogy: focus on direct fact comparisons between controlling authority and client case

2.) Broad analogy: focus on common significance of material facts in a variety of cases and how they compare to client case

What is a legal analogy?

Logical inference that if two or more cases in the same j/d are similar with respect to fact and legal issues, they will be similar with respect to their holdings

What are 3 triggers for stare decisis?

1.) Jurisdiction

2.) Legal issue

3.) Facts

What is case synthesis?

Blends several cases to identify common factual denominator among the controlling authority that case serve as the basis of an analogy

What are the four steps of broad and narrow analogy?

1. State the point of analysis

2. State the narrow/broad fact comparison

3. Apply the court's reasoning to your case

4. Conclude

If there is a conflict between a statute and a judicial opinion, what will prevail?

Statute

Shephard - West or Lexis?

Lexis

KeyCite - West or Lexis?

West

true or false: Congress and state legislatures enact laws called statutes.

true

true or false: Administrative agencies create laws called regulations.

true

true or false: Administrative agencies create laws called statutes.

false

true or false: Courts create laws called caselaw.

true

What is another name for a United States Court of Appeals?

United States Circuit Courts

What type of court is this: United States District Court

federal trial court