THE SOURCES OF THE LAW

Professor Allison Connelly

Associate Professor
UK College of Law
THE THREE BRANCHES OF GOVERNMENT & SOURCES OF LAW
THE FEDERAL GOVERNMENT UNITED STATES CONSTITUTION
LEGISLATIVE BRANCH EXECUTIVE BRANCH JUDICIARY BRANCH
CONGRESS PRESIDENT
STATUTES ADMINISTRATIVE AGENCIES CASES, CIVIL & CRIMINAL RULES
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REGULATIONS
THE COMMONWEALTH OF KENTUCKY
KENTUCKY CONSTITUTION
LEGISLATIVE BRANCH EXECUTIVE BRANCH JUDICIARY BRANCH
GENERAL ASSEMBLY GOVERNOR COURTS
STATUTES
ADMINISTRATIVE AGENCIES CASES, CIVIL &
CRIMINAL RULES
REGULATIONS

THE SOURCES OF THE LAW

I. Law: “A body of rules of action or conduct prescribed by controlling authority, and
having binding legal force.”
United States Fidelity and Guaranty Co. v. Guenther, 281 U.S. 34 (1930).
A. The American Legal System consists of a collection of rules that governs behavior in
society.
B. The American Legal System allows both consistency, which is necessary to predict
the probable outcome of
one’s behavior, and flexibility, which accommodates change.
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C. Rule of Law: “A rule is a formula for making a decision.”1
II. Two Primary Sources of American Law: Legislative & Judge or Court Made
A. Legislative law (General to specific)
1. Definition: A prescribed general rule expressed in verbal form enacted by a
lawmaking body, such
as Congress or the Kentucky General Assembly. Laws explain what is required,
permitted or

prohibited behavior in advance of the action.

2. Legislation includes the U.S. Constitution, each state’s constitution, including the
Kentucky
Constitution, and federal and state civil and criminal statutes.
3. Although federal and state administrative regulations are established by the
Executive Branch, they
are based on an “enabling statute” passed by the legislature. The “enabling statute”
grants the
executive branch the authority to make certain rules to fill in or implement a statute.
4. Constitution: “The written instrument agreed upon by the people of the Union or of a
particular state, as the absolute rule of action and decision for all departments (i.e
branches) and officers of the government in respect to all the points covered by it, which
must control until it shall be changed by the authority which established it (i.e., by
amendment), and in opposition to which any act or ordinance of any such department or
officer is null and void.” Black’s Law Dictionary 310 (7th ed.
1999).
a. The source of our system of federal and state government that prescribes the rights
of individuals in relation to the state, and in the U.S. Constitution, the relationship
between the federal government and the states.
1Richard K. Neuman, J., Legal Reasoning and Legal Writing, Section 2.1 at 15 (3rd ed., 1998).
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b. Constitutions set the parameters of a government so constitutions are written in very
general language and have the least specificity
c. Constitutions have the longest life and are the hardest to amend. To amend the U.S.
Constitution, 3/4ths of state legislatures must approve the amendment.
5. Statutes: “A formal written enactment of a legislative body, whether federal, state,
city or county.”
Black’s Law Dictionary 1410 (7th ed. 1999).
a. Statutes are more specific than Constitutions and are written and enacted by
Congress or a
state’s legislative body as a solution to a major problem.
b. Statutes can be civil or criminal in nature.
c. Statutes are easier to amend than a Constitution. The same procedure used to enact
the
statute is used to repeal it.
6. Regulations: “A regulation implements the policy adopted in a statute.”“A rule or
order having force
of law issued by executive authority of government.” Black’s Law Dictionary 1286 (7 th
ed. 1999).2
a. Most regulations are issued by agencies located in the executive branch. “Agencies
issue
regulations to guide the activity of those regulated by the agency and of their own
employees
and to ensure uniform application of the law.” Black’s Law Dictionary 1286 (7 th ed.
1999).
2 Courts also have the power to make “rules” governing procedure and practice in its courts. For
example, the Kentucky
Supreme Court has developed the Kentucky Rules of Civil Procedure, the Kentucky Rules of
Criminal Procedure, and rules governing
attorney and judicial discipline.
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b. The legislative body must give the executive agency the authority to make and
implement
regulations in an enabling statute.
c. Regulations are promulgated by administrative agencies that are responsible for
administering
the statute.
d. Usually the agency has an expertise in the particular field.
B. Judge or Court Made Law: Common Law or Case Law (Specific to general)
1. The Common Law is composed of decisions by courts in individual cases.
2. Common law has its beginnings in specific facts. The court only resolves the specific
dispute between
the parties with its individual facts.
3. Judges make law by applying and interpreting the law on a case by case basis
4. To decide an individual case, the court uses earlier cases involving the same or
similar legal
questions and the same or similar facts as precedent. In this way, the court is able to
infer a rule
from decision in past cases.
a. The use of precedent is the hallmark of the common law system. This is known as
the
principle of stare decisis (to stand by things decided.)
b. Stare decisis means that past judicial decisions are generally binding for disposition
of
factually similar present controversies with the same material facts.
c. Stare decisis requires a court to follow the precedent established by the same or
higher level
court in the same jurisdiction with the same material facts. Such precedent is called
binding
authority.
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d. Like cases are treated alike which creates consistency and stability in the law.
e. As such, an appellate court decision has two purposes: 1) to authoritatively settle the
controversy before it (res judicata); and 2) as precedent.
f. If the case presents different facts that could require a different outcome, the court
can
distinguish the case before it from a prior case. These distinctions can create new
rules.
g. Generally speaking, the United States Supreme Court, the U.S. Courts of Appeals
sitting en
banc, and the Kentucky Supreme Court can overrule a case or a line of cases.
h. When the highest court overrules a prior decision, the conclusiveness of the earlier
decision as
settlement of the particular controversy isn’t affected, but the overruled decision is no
longer
authoritative precedent.
i. Appellate courts can also reverse a lower courts judgment in a particular case on
appeal
because the lower court reached an erroneous result.
j. Decisions from other jurisdictions are not binding authority on the court, but can be
persuasive authority where there is no precedent.

C. The Hierarchy of Legal Authority

1. As with our court systems, laws have a hierarchal arrangement. Some laws carry
more weight than other laws.

2. Article VI(2) of the United States Constitution states: “The Constitution, and the Laws
of the United
States which shall be made in Pursuance thereof. . .shall be the supreme Law of the
Land; and the Judges
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in every State shall be bound thereby, any Thing in the Constitution or Laws of any
State to the Contrary
notwithstanding.”
3. Called the “supremacy clause,” this clause means that federal law prevails over state
law if there is a
conflict between the two.
4. There is also a hierarchy of authority within the federal system and each state system
5. The hierarchy in the Federal System is:
a. United States Constitution
b. Federal Statutes
c. Federal Regulations issued by federal administrative agencies
d. Federal Case Law
6. The hierarchy in a State System is:
a. The United States Constitution whenever a federal question is involved
b. The State Constitution
c. State Statutes
d. State Regulations issued by state administrative agencies
e. State Case Law
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2. Types of Authority
a. There are two types of legal authority: primary authority and secondary authority.
b. “Primary sources are authoritative statements of legal rules by governmental bodies.
They
include opinions of courts, constitutions, legislation, administrative regulations and
opinions,
and rules of court.”3
c. “Secondary Sources are materials about the law that are used to explain, interpret,
develop,
locate or update primary sources. The major types of secondary sources are treatises,
Restatements, Looseleaf services. . . law reviews and other legal periodicals, legal
encyclopedias, American Law Reports (A.L.R.) Annotations, and legal dictionaries.”4
3 Roy M. Mersky & Donald J. Dunn, Legal Research Illustrated, Sec. B (8th ed. 2002).
4 Id.