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Elements of Law

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Joe Brayle Joey
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59 views2 pages

Elements of Law

Uploaded by

Joe Brayle Joey
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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ELEMENTS OF LAW How do cases get to court: Civil

•Plaintiff files a law suit: complaint


What do we mean when we say law? • Must state a claim
• Court must have jurisdiction: right court
• Black’s Law Dictionary definition •Geographic
1. The regime that orders human activities and • Subject Matter
relations through systematic application of the •Defendant files an answer or motion to dismiss
force of politically organized society, or through •Case may be disposed of at this stage
social pressure, back by force, in such a society.
Discovery
2. The aggregate of legislation, judicial • If case is not dismissed, parties generally
precedents, and accepted legal principles; the conduct “discovery”
body of authoritative grounds of judicial and • Exchange of relevant information to narrow
administrative action; esp. the body of rules, the issues
standards, and principles that the courts of a • Depositions (interview under oath) of parties
particular jurisdiction apply in deciding and witnesses
controversies brought before them. • If no disputed facts after discovery, parties
may file a motion for summary judgment
We will be focusing on definition 2! • If there are disputed facts after discovery, case
• The three branches of government will go to trial
• The structure of the Federal and state legal
systems Settlement
•How a bill becomes a law •Vast majority of cases are settled
• Sources of law •Cases can settle at any time
•How lawyers and courts use the law •Settlement encouraged: Why?

Trial
•May be before a jury or judge only (generally
decision of plaintiff)
•Jury (or judge) decides facts
•Judge instructs the jury about the law
•No right to counsel in civil cases, generally

Appeal
•Losing party generally may appeal to
intermediate appellate court as of right
Sources of Law •Appeals heard by more than one judge – Why?
• Enacted law •Appeals are heard on the trial record – no new
• Constitutions information presented
•Further appeals may be limited by statute.
• Statutes
• Regulations How to cases get to court: Criminal
• A person is charged with a crime (state or
• Case law
Federal)
• Judicial decisions Interpreting enacted law
• The Government (US Attorney or District
• Common law: law developed by courts when Attorney) represents “the People” when
prosecuting the case
there is no statute
• The Defendant has a right be represented in
How “law” develops cases where the sentence could be more than
•Adjudication of Disputes one year (“right to counsel”)
• Interpretation of statutes
• Common law: judge-made law when no Settlement - Criminal
statute applies •Many cases get resolved without trial: plea
• Much common law has been enacted into Bargain
statute, especially criminal law
Appeal – Criminal Legislatures may overrule or respond to a
•Defendant has the right to appeal a criminal court decision by statute
conviction
•The government may have the right to appeal •Americans with Disabilities Act
a decision to dismiss the case before a trial, but •Family Health Care Decisions Act
generally is not able to appeal a not guilty
verdict – Why not? Hierarchy of enacted law: Federal
• US Constitution
How judges decide cases • Federal statutes and treaties
•Must decide the issue presented by the case • Federal executive orders and administrative
•Holding: Judgment + relevant facts regulations
•Dicta: Discussion of the court which is not • State constitutions
necessary to the resolution of the case • State statutes
• State administrative regulations
Precedent – Stare Decisis • Municipal enactments
•Consideration of similar cases in the past
•Binding precedent: very similar case in same Citation
court or higher court in same jurisdiction • Formula for referring to authority (primary
•Persuasive authority: cases in different court sources)
or court in a different jurisdiction • Blue Book contains the rules that are generally
used in legal scholarship and in law school
Hierarchy of persuasiveness of precedent writing
• Binding • Courts have their own rules for citation –
• Higher court in same jurisdiction; very similar don’t forget this!
facts
• Court in same jurisdiction; very similar facts; Citations – Why?
no higher court decision on point •Demonstrate assertions are supported by
• Persuasive authority
• Court in same state, different jurisdiction, very •In legal writing, most factual and all legal
similar facts assertions require citations
• Highest court in another jurisdiction, very • Supply bibliographic information so that
similar facts reader can find the source
• Intermediate court in another jurisdiction, • Attribute borrowed words and ideas: avoid
very similar facts plagiarism
• Same level court in another jurisdiction, very
similar facts

When will a court overrule a prior decision?


• May only overrule the decision of a lower
court in the same jurisdiction
• May overrule its own prior decision only if
there is no controlling decision from a higher
court or legislation
•Happens very rarely
• More likely that Court will distinguish facts in
case before it from facts in controlling case

Appellate court decisions

•Majority opinion

•Concurring opinion

•Dissenting opinion

•Per curiam opinion

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