Introduction to the legal system Fifth Hour Legal Research Program Fall 2013

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Sources of US Law
US Constitution Branches of Government: Legislative = Statutes Executive = Executive Orders Judicial = Court Decisions *Administrative (4th branch) = Regulations

Mandatory v. Persuasive Authority

Mandatory / Binding Precedent
The Law (primary authority)  Higher court within the jurisdiction  Same jurisdiction  Same topic

Persuasive authority
Law (primary authority) from a lower court outside of your jurisdiction  All secondary authority is always persuasive.  Some secondary authority is more persuasive than others (consider author and her credentials).

MANDATORY PRECEDENT V. PERSUASIVE AUTHORITY EXAMPLE: CASE LAW State: New York Federal:

U.S. Supreme Court

N.Y. Court of Appeals

Binds all lower federal courts and state courts on federal issues. Resolves splits among Circuits.

Binds all lower N.Y. courts.
Resolves splits among Appellate Departments.

U.S. Courts of Appeal

N.Y. Appellate Division

Binds District Courts within that particular Circuit.
Law from other circuits is only persuasive.

Binds lower courts

N.Y. Supreme Court (and other trial courts)

U.S. District Courts

Federal Trial Courts
Must follow decisions of the circuit in which it sits as mandatory precedent. Trial courts do not bind other trial courts.

Must follow another Appellate Division that has ruled on the issue if their Appellate Division has not done so. Trial courts do not bind other trial courts.

Stare Decisis (stahr-ee di-sI-sis or stair-ee), n. [Latin “to stand by things decided”] (18c)
The doctrine of precedent, under which a court must follow earlier judicial decisions when the same points arise again in litigation.

Precedent means that similar cases should be decided similarly. Lower courts are bound by the earlier decisions of higher courts- this provides predictability and consistency in the law.

court of last resort

intermediate appellate courts

trial courts

U.S. Supreme Court

Courts of Appeal

12 regional courts 1 federal circuit court

District Courts

94 district courts bankruptcy courts court of international trade court of federal claims

United States Circuit Courts of Appeal

New York Courts
Court of Appeals

Court of Appeals

Appellate Division
First Department Second Department Third Department Fourth Department

Supreme courts

Other courts: Family, etc.

Supreme courts

Other courts

Supreme Courts

Other courts

Supreme courts

Other courts

Supreme Court (trial court)

Primary v. Secondary Authority

Primary Authority = the Law; created by government entities (judges, legislators, regulators)  Constitutions  Cases / Decisions / Common Law  Statutes / Codes  Administrative Regulations  Uniform Laws (UCC) / Model Acts (Model Penal Code) (if enacted) Secondary Authority = explanations and commentary about the law (everything else)  Legal Encyclopedias (Am Jur, CJS)  ALRs (American Law Reports)  Restatements (common law, black letter topics)  Treatises  Law Reviews (articles / student notes)  Practice Materials / loose leafs / Form books  Dictionaries, Blacks

Publication of the Law
Type of Law Case Chronological Arrangement Reporter Official Unofficial US Statutes at Large Topical Arrangement Digest Headnotes Codes Titles = Subjects Official (USC) Unofficial (USCA, USCS) Annotations Code, Code of Federal Regulations

Statute

Regulation

Register, Federal Register

PUBLICATION OF CASE LAW
• When they resolve issues of law. • Trial cases usually revolve around facts, and are therefore rarely published. • Intermediate cases are published selectively, given that many are routine and only of interest to parties. • Final Appellate Cases are almost always published, as they deal with important legal issues. • Unpublished cases are available on Lexis and Westlaw.

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Publication of Federal Case Law

Court
U.S. Supreme Court

Official
United States Reports = U.S.

Unofficial
1.) Supreme Court Reporter (West)= S. Ct. 2) Lawyers’ Edition (Lexis) = L. Ed., L. Ed. 2d 1) Federal Reporter (West) = F., F. 2d, F. 3d 1) Federal Supplement (West) = F. Supp., F. Supp. 2d

U.S. Courts of Appeal U.S. District Courts

N/A N/A

case law

Appellate and District Court Opinions

Federal Reporter
_

F. _  _ F.2d _  _ F.3d _

Federal Supplement
_

F. Supp. _  _ F. Supp. 2d _

Unpublished Cases

Federal Appendix
_

Fed. Appx. _

Available on Westlaw and Lexis:
 2001

WL 1602030  2001 U.S. App. LEXIS 26786

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