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Primary Sources of Law
- These are sources that establish the law, such as:
- a. US Constitution
- b. Statutory law
- c. regulations created by admin agencies, such as Food & Drug Admin
- d. Case law and common law doctrines
Secondonary Sources of Law
books and articles that summarize and clarify the primary sources of law.
- law expressed in the constitutions of the federal government and the states.
- is the basis for all law in the US
laws enacted by legislative bodies at any level of the government, such as the statutes passed by Congress or by state legislatures, make up this body of law.
- statutes passed by municipal or county governing unites to govern matters not covered by federal or state law.
- have to do with city or county land use, building & safety codes and other matters affecting the local community.
- model laws
- states have the option of adopting these laws, or any portion of them
- *Most ambitious: Uniform Commercial Code (1952)
consists of the rules, orders and decisions of administrative agencies
a federal, state or local government agency established to perform a specific function
- cabinet departments of the executive branch,
- are subject to the authority of the president, who has the power to remove & appoint their officers.
Independent Regulatory Agencies
- such as: Federal Trade Commission, Securities & Exchange Commission, etc.
- president's power is less pronounced,
- officers serve for fixed terms and can't be removed without just cause
- the doctrines and principles announced in cases
- governs all areas not covered by statutory law or administrative law and is part of our common law traidition.
a body of general rules that applied throughout the entire English realm
the legal means to enforce a right or redress a wrong
Courts of Law
the courts that awarded this compensation
Remedies at Law
- the three remedies:
- 1. land
- 2. items of value
- 3. money
- today, the remedy at law normally takes the form of monetary 'damages',
- an anount given to a party whose legal interests have been injured
adviser to the king who had the power to grant new and unique remedies
Courts of Equity
formal chancery courts
Remedies in Equity
- remedies granted by the equity courts, which included:
- specific performance - ordering a party to perform an agreement as promised
- injunction - ordering a party to cease engaging in a specific activity or to undo some wrong or injury
- rescission - the cancellation of a contractual obligation
- propositions or general statements of equitable rules that judges were guided by
- there are 6
Doctrine of Laches
- "Equity aids the vigilant, not those who rest on their rights"
- derived from Latin laxus, meaning "lax" or "negligent"
- can be used as a defense
argument raised by the defendant
party being sued
the suing party
In Equity proceedings, people are called different names...
- Petitioner: party bringing lawsuit
- Respondent: party being sued
Statutes of Limitations
- time periods for different types of cases
- after the alotted time has expired, no action (lawsuit) can be brought
Legal & Equitable Remedies Today
during the 19th century, most states adopted rules of procedure that resulted in the combining of courts of law and equity
a decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts.
the place where cases are published, or "reported" in book style
- Latin, meaning "to stand on decided cases"
- under this doctrine, judges are obligated to follow the precedents established within their jurisdiction
- any source of law that a court must follow when deciding a case
- these include constitutions, statutes, and regulations that govern the issue being decided
Departure from Precedent
- if a court decides that a ruling precedent is simply incorrect or that technological or social changes have rendered the precedent inapplicable, the court might rule contrary to the precedent
- Ex: segregation in schools
governmental policy based on widely held societal values
the reasoning process used by judges in deciding what law applies to a given dispute and then applying that law to the specific facts or circumstances of the case
Basic Steps in Legal Reasoning
- IRACIssue - what are key facts & issues?
- Rule - what rules of law apply to the case?
- Application - how do the rules of law apply?
- Conclusion - what conclusion should be drawn?
Cases on Point
previously decided cases that are as similar as possible to the one under consideration
- also called syllogistic reasoning
- syllogism: a logical relationship involving a major premise, a minor premise and a conclusion
reasoning that proceeds from one point to another, with the final point being the conclusion
Reasoning by Analogy
one compares the facts in the case at hand to the facts in previous cases and, to the extent that the patterns are similar, to apply the same rule of law to the present case
Restatements of the Law
- drafted by the American Law Institute (ALI)
- generally summarize the common law rules followed by most states
- these do not have the force of law, but are important source of legal analysis & opinion
different schools of philosophical thought
Natural Law School
- theory that believes that a higher or universal law exists that applies all human beings and that written laws should imitate these inherent principles
- oldest & most significant school of jurispru...
- dates back to Aristotle
- "positive" or national law (the written law of a given society at a particular point in time)
- believe that there can be no higher law than a nation's positive law
- no such thing as "natural rights"
emphasizes the evolutionary process of law by concentrating on the origin and history of the legal system
- based on the idea that law is just one of many institutions in society and that it is shaped by social forces and needs
- emerged in the 1920s & 1930s
- also believe that the law can never be applied with total uniformity
- views law as a tool for promoting justice in society
- strongly influenced by legal realism
consists of all laws that define, describe, regulate and create legal rights and obligations
consists of all laws that delineate the methods of enforcing the rights established by substantive law
Civil vs. Criminal Law
- Civil: spells out the rights and duties that exist between persons and between persons and their govts, as well as relief available when a person's rights are violated
- Criminal: concerned with wrongs committed against the public as a whole
body of law that governs transactions conducted via the Internet
identifies the publication in which a legal authority can be found
the party appealing the case
party against whom the appeal is taken
contains the court's reasons for its decision, the rules of law that apply, and the judgement