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Week2 libr430


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  • 1. Reading Law as Text Week 2
  • 2. Written Forms of Law
    • Constitution
    • Cases
    • Statutes
    • Regulations
    • Treaties and International Agreements
  • 3. Each one is read and used differently
    • The goal is the same: What is the rule of law? And what policy is driving it?
    • For enacted law (cases, regulations, constitutions) somewhat easy: Once an applicable law is established it is the rule; Policy is still tricky!
    • Cases: Much more complicated for rule and policy.
  • 4. Statutory Interpretation
    • Must understand the policy that supports the law
    • How? Language alone? History? Current needs?
    • No agreement on how this should be done
    • Many statutes are written with sections detailing legislative findings
    • Sometimes history is the best indicator
    • Other times current policy offers the clearest direction
  • 5. Legislative History
    • Can be useful in terms of determining clear meaning at the time of a statute’s drafting
    • Can be incomplete or misleading
    • Courts, however, are frequent to question on issues of legislative history as well as base parts of opinion on it
  • 6. Current Public Policy
    • Current public policy arguments is controversial
    • Practical, however, in terms of preventing absurd results
    • Oftentimes summarized like this: The intent of the drafters should prevail and the drafters would never have supported such an absurd result
  • 7. Reading Statutes
    • Look at the ‘big picture’
    • Know the overall sections and how they fit together
    • Pay attention to definitional sections in the beginning
    • Is there a section reporting legislative findings?
    • Make sure you understand the role of contingent language (certain sections may only apply in certain circumstances!)
    • Check cases that interpret, apply, construe your statute.
  • 8. Cases
    • Analyzing cases is more complex
    • Must extract rule of law and policy
    • Most cited cases are appellate
    • They must be read with an eye towards the past (procedurally and substantively; the decision and its role in precedent) and the future (stare decisis)
  • 9. Parts of a Case
    • Facts
    • Procedural History
    • Questions Presented (Issues)
    • Rules of Law
    • Application of Law to Fact
    • Holding
    • Disposition
    • Dissent and Concurrences
  • 10. Facts
    • Just because they are short and easiest to understand doesn’t mean you merely scan them!
    • Arguably most important part of a case. Why?
    • Facts are dependent upon rules and policy for relevance.
  • 11. Procedural History
    • How the case got to the court that is hearing it.
    • Fundamentally important: Why is this court hearing this case? Provides basis for standard of review
    • Standard of review determines what issue the court must decide and the scope of that decision for subsequent cases.
  • 12. Questions Presented
    • The issues the court will hear
    • In appeals courts the questions presented ask whether the lower court was wrong or not
  • 13. Rules of Law
    • Rights and duties enumerated via announcing rules of law
    • Determine the result of the decision as well as similar future decisions
    • Can be difficult! Not always in one place neatly listed; May need to be “constructed”
    • Not mechanical and regularly open to interpretation
    • Work of lawyer: Interpreting rule to client’s best advantage
  • 14. Application of Laws to Fact
    • Court decides each element of each rule and their applicability to the facts involved
    • Policy decisions regarding applicability of facts becomes considerably important
    • Policy discussions can become unstructured and difficult to follow!
    • Courts will generally look at competing policy considerations and apply facts in order to justify their decision
  • 15. Holding
    • The decision of the court with respect to the issue presented
    • Most important part of the case
    • Many times explicit but not always
    • Sometimes it must be identified
    • Can be indeterminate
    • Dictum gets in the way!
  • 16. Dictum
    • Latin phrase obiter dictum meaning “a word said in passing”
    • Not binding upon subsequent courts
    • Persuasive
    • Promotes flexibility in the law since it indicates how future cases may or may not be decided
    • Does not need basis in original case's facts; Conjectural?
  • 17. Disposition, Dissents, Concurrences
    • Affirmed, Reversed or Remanded
    • Per curiam decisions (by the court) have no opinion by or dissents/concurrences (increasingly rare)
    • Concurrences and dissents are not binding
    • Concurrences may seek to limit an application of a holding or limit future decisions or the opposite (strengthen)
  • 18. Stare Decisis in context
    • Holdings of the court are precedent that future courts should uphold
    • A ‘heavy presumption that cases will be followed’ yet they can be overturned
    • Courts don’t seek best result but rather consistency among previous cases
    • Substantial justification is required to to depart from precedent
  • 19. Rights and Duties
    • Rules of law must always be identified in the context of rights or duties created
    • The law can define legal relationships (liability, privilege, immunity)
    • Duty generally refers to a legal relationship and the requirement to take an action (reasonable care)
    • Right allows someone to take an action based upon a legal relationship