Unit 2 Legal Research

•What is the law?

There are four main sources of law

• Constitutions• Statutes• Court opinions (also called cases)• Administrative regulations

The preeminent source of the law

•Constitutions?

How do they work together?

• A state’s Constitution may grant greater rights than those secured by the federal constitution, but because a state constitution is subordinate to the federal constitution, it cannot provide lesser rights than the federal constitution does.

• All of a state’s legal rules must comport with both the state and federal constitutions.

What are the three sources of government?

• The Legislative Branch• The judicial Branch• The Executive Branch

Legislative Branch

• Creates Statutes which must be approved by the executive branch in order to go into effect…this is an example of the “checks and balances” so often referred to in your high school history class. Who must sign the bill in the Federal Government and State government?

The executive Branch

• Federal – Headed by the President• Administrative Regulations – created by the

administrative agencies pursuant to statutory authority.

The Judicial Branch

• Court opinions – also called Cases• Courts interpret rules created by the

legislative and executive branches of government.

• What happens if a court decides a rule does not meet constitutional requirements?

• What if the legislature doesn’t like a rule created by the court?

Primary or Secondary?

• Some types of legal authority are more authoritative than others to be able to understand how legal authority is categorized, you must be able to differentiate “primary” authority from “Secondary”…and “mandatory” from “persuasive”.

Primary

• Primary authority = rules of law = Constitutions, cases, statutes and administrative regulations.

Secondary Authority

• Secondary authority = commentary on the law but not the law itself.

• Example = An opinion from the U.S. Supreme court is ____________ authority…while an article written about that opinion is ________ authority.

Mandatory or Persuasive?

• These are the terms used by courts to categorize the different sources of law they use in making their decisions.

• Mandatory Authority contains the rules you must apply to determine the correct answer to the issue.

• Persuasive Authority is nonbinding on the court but the court MAY choose to follow it. Persuasive authority does not dictate an answer to an issue, but it might help you figure an answer out.

Mandatory or Persuasive

• The degree to which an authority controls the answer to a legal question is called the weight of the authority.

• What determines the weight of an authority?• Primary or secondary• Mandatory or persuasive

Secondary Authority

• Secondary authority is ALWAYS persuasive and therefore NONBINDING

Primary Authority

• Primary Authority can be mandatory authority but it can also be persuasive.

• Factors affecting authority of primary sources Statutes= Jurisdiction

• Cases = Jurisdiction and level of the court

Determining Authority of Court Decisions

• Trial Courts are at the bottom of the judicial hierarchy. (In Federal Courts trial courts are District Courts…In state Courts trial courts are Circuit Courts.)

• Intermediate level courts are appellate courts. (Federal = Circuit Court State = District)

• Court of Last Resort – Supreme Court

Trial Court Opinions

• Trial Court opinions, including Federal Trial Court opinions are NEVER mandatory authority.

• The parties in the actual lawsuit are bound by the result but other courts are not bound to follow the argument or decision in NEW cases.

• Trial Court opinions are __________ authority

Appellate Court Opinions

• Appellate Court opinions bind the courts below them. Appellate decisions are mandatory for the trial courts subordinate to them in the court structure.

• Appellate Court decisions are not mandatory authority to other appellate court cases because Appellate courts can choose to overrule themselves.

• Appellate Court opinions are persuasive authority on Supreme Court cases.

Supreme Court Opinions

• The Supreme Court may follow opinions of lower courts, but is never obligated to do so. However, opinions of the Supreme Court are MANDATORY authority for both intermediate appellate courts and trial courts subordinate to it in structure. The Supreme court is not bound by its prior decisions but is deferential to them.

Jurisdiction and it’s effect on Authority

• Rules stated within a court opinion are only mandatory authority within the court’s jurisdiction.

• A Texas Supreme Court decision is not mandatory in Illinois but is Mandatory in a Texas trial or appellate court.

Unit 2 Written Assignment

• In the web exploration of drunk driving statutes, you identified two states' statutes using the web. Now, using Findlaw, identify two additional states' statutes drunk driving statutes and briefly paraphrase what each says. In addition, note any key differences (i.e. blood alcohol level limits, penalties for violations of the law) between the statutes you located through Findlaw. Be sure to include the proper Legal Bluebook citation for the state statutes.