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- 4. Administrative Rules U.S. Constitution U.S. Code Common Law Administrative Rules Oregon Constitution Oregon Revised Statutes Common Law Policies City Charter City Ordinances Common Law FEDERAL STATE LOCAL
- 5. Administrative Rules Constitution Statutes Common Law • Drafted, then ratified (usually by legislative or popular vote) • Provides structure of government • Outlines powers, duties, limits of government • Establishes fundamental rights of people (either that gov’t must give, or cannot infringe upon) • Difficult, but possible, to amend (sometimes direct by people) • Examples: U.S. Constitution, Oregon Constitution
- 6. Administrative Rules Constitution Statutes Common Law • Drafted, then ratified (usually by legislative or popular vote) • Provides structure of government • Outlines powers, duties, limits of government • Establishes fundamental rights of people that gov’t cannot infringe upon • Difficult, but possible, to amend • Examples: U.S. Constitution, Oregon Constitution • U.S. Const. Art. VI Article VI. …. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. “Supremacy Clause”
- 7. Administrative Rules Constitution Statutes Common Law • Enacted by legislature with executive branch approval (or veto override) • Includes Civil and Criminal Law • Limited by scope of Constitutional powers, restrictions on same • Often preceded / accompanied by legislative committee reports, hearings • Occasionally based on model codes • Can be amended by subsequent legislative enactments • Examples: U.S. Code, Oregon Revised Statutes (codified statutes) • 16 U.S.C. § 347; O.R.S. 173.300
- 8. Administrative Rules Constitution Statutes Common Law • Enacted by legislature with executive branch approval (or veto override) • Includes Civil and Criminal Law • Limited by scope of Constitutional powers, restrictions • Often preceded / accompanied by legislative committee reports, hearings • Occasionally based on model codes • Can be amended by subsequent legislative enactments • Examples: U.S. Code, Oregon Revised Statutes (codified statutes) • 16 U.S.C. § 347; O.R.S. 173.300
- 9. Administrative Rules Constitution Statutes Common Law • (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute) • Most common form of interaction with public in the US • Limited by scope of Constitutional and statutory authority given to agency • Process of promulgation and application of rules is subject of Administrative Law • Can be modified by later rules • Examples: Code of Federal Regulations; Oregon Admin. Rules (codified rules) • 36 C.F.R. § 13.920
- 10. Administrative Rules Constitution Statutes Common Law • (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute) • Most common form of interaction with public in the US • Limited by scope of Constitutional and statutory authority • Process of promulgation and application of rules is subject of Administrative Law • Can be modified by later rules • Examples: Code of Federal Regulations; Oregon Admin. Rules (codified rules) • 36 C.F.R. § 13.920 • Special form of Rules: Rules of Procedure = Civ Pro. (FRCP, ORCP)
- 11. Administrative Rules Constitution Statutes Common Law • Law announced by Courts in certain fundamental areas • Source of much law in nation’s first 100 years (rooted in English law) • Much of First Year of Law School focuses on common law areas: Contract, Criminal, Tort, Property • Almost exclusively state opinions • Common law cases can be overruled by courts, or (most common now) codified - turned into statutes by legislatures, or overruled legislatively • Model codes (seen in most areas) attempt to synthesize & write down common law principles for enactment; Restatements summarize the law. • Limited by rules of jurisdiction & justiciability (can’t reach out)
- 12. Administrative Rules Constitution Statutes Judicial Interpretation Judicial Interpretation Judicial Interpretation Judicial interpretation = “Common Law”? • Text & context • Legislative history • Legislative intent • Interpretive canons • Application to facts
- 13. Trial Courts Court of Last Resort Intermediate Appellate Court
- 14. U.S. District Courts (1-4 per state) U.S. Supreme Court (Washington, DC) U.S. Courts of Appeals (12 Geographic Circuits)
- 15. The Supreme Court of the United States
- 17. James R. Browning Federal Courthouse, San Francisco, CA (also in Pasadena, Portland, Seattle)
- 18. Mark O. Hatfield Federal Courthouse, Portland, OR (also in Eugene, Medford, Pendleton)
- 19. Trial Courts Court of Last Resort Intermediate Appellate Court
- 20. Circuit Courts (generally one per county) Oregon Supreme Court (Salem, OR) Oregon Court of Appeals (One court in Salem, OR)
- 22. Old county courthouse New county courthouse Federal courthouse Hawthorne Br.
- 23. Trial Courts Court of Last Resort Intermediate Appellate Court www.courtstatistics.org
- 24. Superior Courts (14 divisions) Supreme Judicial Court (Boston, MA) Appeals Court (Boston, MA)
- 25. Supreme Courts (12 districts) Court of Appeals (Albany, NY) Appellate Divisions of the Supreme Courts (4 departments)
- 26. Court of Common Pleas (County-based) Supreme Court of Ohio (Columbus, OH) Ohio Ct. of Appeals (Columbus, OH)
- 27. Court of Common Pleas (County-based) Supreme Court of Ohio (Columbus, OH) Ohio Ct. of Appeals (Columbus, OH)
- 28. Trial Courts Court of Last Resort Intermediate Appellate Court • State: Courts of “General Jurisdiction” (Federal = Limited J.) • 1 or more judges on “court” • Judges sit individually & manage cases filed by parties • Criminal: State or Prosecutor files vs. Defendant (the accused), who is “guilty” or not guilty (std. of proof: BARD) • Civil: Plaintiff or Petitioner files vs. Defendant or Respondent; D is “liable” or “not liable” Preponderance OTE • Facts found by judge or jury based on affidavit & testimony / cross ex • Many (90+%) filed cases are never tried, but settled or dismissed • Occasional written opinions on motion; rarely reported @ state level, federal D.Ct. more common; 254 F. Supp.2d 1196 (D. Or. 2014).
- 29. Trial Courts Court of Last Resort Intermediate Appellate Court • Appeal “as of right” when losing party requests review • 5-20+ judges on court • Hear cases in groups (panels) of 3+ • Limited by established factual record • Limited by issues presented by parties below or in briefs • Limited by “standard of review.” Don’t necessarily reverse just because disagree • Limited by “harmless error” doctrine • Focus on issues of law – disputes of fact rarely relevant • Written opinions, usually reported. • Examples: Sohappy v. Smith, 529 F.2d 570 (9th Cir. 1976); Atkeson v. T & K Lands, LLC, 258 Or. App. 373, 309 P.3d 188 (2013).
- 30. Trial Courts Court of Last Resort Intermediate Appellate Court • Discretionary review (choose cases) + some appeals as of right (capital cases, e.g.). • 5-9 judges on “court”; sit en banc • Appellate decisions – attention to legal holdings, rather than facts. • Focus on areas of particular importance, conflict or uncertainty • Written, almost always reported opinions, often multiple opinions by different judges / justices • Examples: Citizens United v. FEC, 558 U.S. 310 (2010); State v. Lawson, 352 Or. 724 (2012).
- 42. U.S. District Courts U.S. Supreme Court (federal law only) U.S. Courts of Appeals Circuit Courts Oregon Supreme Court Oregon Court of Appeals Trial court you start in depends on whether there is federal trial court jurisdiction, and (except in rare cases of exclusive federal jurisdiction, whether parties choose to call upon that jurisdiction.
- 43. • Federal courts: limited jurisdiction. State courts: general jurisdiction. • Civil case: Plaintiff sues defendant to determine liability by POTE • Criminal case: Prosecutor charges the defendant to determine guilt BARD • Majority (governs precedential effect) / Concurrence / Dissent
Editor's Notes
- Welcome; JCD; Civil Procedure (Admin, Federal Courts / federal jurisdiction, Native American Law, Seminars on U.S. Supreme Court & Appellate Process, ). Goal for next hour: make sure we all share a common baseline knowledge about structure of legal system in the United States, with emphasis on sources of law and structure of the federal courts. Review for some; unfamiliar to others. This is a 30,000 foot overview. There are differences, variations, alternatives, both from state to state and system to system, as well as changes over time – it’s not necessarily always this way -- that I will not discuss here, but you’re welcome to ask about later (may have 5-10 minutes in the end for Q/A), or you can ask your other professors about. 10 minutes – sources of law; 10 minutes – structure of courts; 20 minutes relationship between courts. -- Begin: Where does law come from? Not asking a deep theoretical or jurisprudential question. Intended to be a simple one. If you want to know where you go to identify the baseline rules governing our legal system, where do you go? -- Four basic sources.
- Both source and nature / verb used to describe enactment. Founding fathers / drafters / ratifiers. Not given legal effect until ratified, however. Legislatures enact laws, though usually with executive support (Congress – President; Legislature – Governor). For ease, legislatures “enact” (though governors / president usually have to sign, too, but there is veto override. Administrative Agencies promulgate rules. Courts interpret the above, and they also control areas of common law.
- This basic structure replicates itself through the various levels of national sovereigns – federal, state, and local. There’s surprisingly little direct conflict between these areas. Federal law is governed by allocation of authority under the Federal Constitution – federal government was granted authority by the states, and its powers are limited to those outlined in the constitution. As you’ll learn in constitutional law, the proper scope of this delegation of authority has always been in dispute, but there are limits. Where there is direct conflict, higher level authority wins (as long as it’s within the scope of the authority of the enacting entity). How do you know? Based on first big topic of conversation: Constitution! Some notes: Federal Common Law is an unusual area. Not generally within the scope of federal court authority, as it’s not really within the scope of federal authority under the constitution generally. Most of the 1L materials that you work on are state law principles, not federal. There are some areas in which federal law governs, but many – most -- are state. Also, common law principles applicable to localities (cities and states) are generally not established by local courts (not really that many of those), but state courts. Also, important to know that there is a difference, generally speaking, between the law that is at issue in a case and the court (or courts) that are deciding / interpreting that law.
- Source of all law – or, at least, under current systems, it’s the source of all law. Constitution… Drafted, then ratified (usually by legislative or popular vote) Provides structure of government Outlines powers, duties, limits of government Difficult, but possible, to amend Examples: U.S. Constitution, Oregon Constitution U.S. Const. Art. VI -- Here’s what I promised. -- the “Supremacy Clause” – this is the kind of high-level discussion that you see.
- Source of all law – or, at least, under current systems, it’s the source of all law. Constitution… Drafted, then ratified (usually by legislative or popular vote) Provides structure of government Outlines powers, duties, limits of government Difficult, but possible, to amend Examples: U.S. Constitution, Oregon Constitution U.S. Const. Art. VI -- Here’s what I promised. -- the “Supremacy Clause” – this is the kind of high-level discussion that you see.
- Next one: Statutes Enacted by legislature with executive branch approval (or veto override) Includes Civil and Criminal Law Limited by scope of Constitutional powers, restrictions Often preceded / accompanied by legislative committee reports, hearings Occasionally based on model codes Can be amended by subsequent legislative enactments Examples: U.S. Code, Oregon Revised Statutes (codified statutes) 16 U.S.C. § 347; O.R.S. 173.300
- Next one: Statutes Enacted by legislature with executive branch approval (or veto override) Includes Civil and Criminal Law Limited by scope of Constitutional powers, restrictions Often preceded / accompanied by legislative committee reports, hearings Occasionally based on model codes Can be amended by subsequent legislative enactments Examples: U.S. Code, Oregon Revised Statutes (codified statutes) 16 U.S.C. § 347; O.R.S. 173.300
- Next one: Administrative Rules (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute) Most common form of interaction with public in the US Limited by scope of Constitutional and statutory authority Process of promulgation and application of rules is subject of Administrative Law Can be modified by later rules Examples: Code of Federal Regulations; Oregon Admin. Rules (codified rules) 36 C.F.R. § 13.920 Special form of Rules: Rules of Procedure = Civ Pro. (FRCP, ORCP) All of these forms of enacted / promulgated law are known as “positive law” – they are specifically articulated in writing by authorized bodies.
- Next one: Administrative Rules (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute) Most common form of interaction with public in the US Limited by scope of Constitutional and statutory authority Process of promulgation and application of rules is subject of Administrative Law Can be modified by later rules Examples: Code of Federal Regulations; Oregon Admin. Rules (codified rules) 36 C.F.R. § 13.920 Special form of Rules: Rules of Procedure = Civ Pro. (FRCP, ORCP) All of these forms of enacted / promulgated law are known as “positive law” – they are specifically articulated in writing by authorized bodies.
- Of course, all of these sources of law are subject to judicial interpretation in civil and criminal cases. How is that done? Process of determining what the law means … much ink and thought spilled on this. Generally phrased as “intent of the drafters” – though even there, the idea can fall short (what did framers of Constitution think about GPS trackers or internet?) Best evidence is: Text – and surrounding words. (“Surrounding” becomes ever broader) Legislative history Belief re intent “Interpretive canons” – linguistic (Examples: “every word has meaning” & policy – based “read statutes narrowly to avoid constitutional questions.”) Court-announced. Sometimes even looks very different than plain language of statutes. In our common law system, these statements effectively turns into “law” – common law. It does that through force of precedent – the topic for the last 10-15 minutes of class. Leave it for a moment, and talk about structure of these entities – these courts. Once again, remember that this structure is replicated within each of the sovereign systems; Oregon has Constitution, Statutes, Administrative Rules, Common Law principles. In fact, common law principles are more important at state level than at federal level (arguably, no “general federal common law.” – Erie, which you learn about in civil procedure and federal courts.)
- Will discuss role of these courts in more detail in a moment, but suffice it to say that the basic structure looks something like this: Trial courts try cases, appeals are taken by losing parties to intermediate appellate courts, and some of the intermediate appellate court cases are reviewed by the highest court – the court of last resort. Describe State - Federal
- Most familiar with federal courts U.S. District Courts – usually one per state, but some have up to 4 – CA, NY, TX, FL U.S. Courts of Appeal – there are 12 geographic circuits – first through 11th, and then DC Circuit. U.S. Supreme Court. Nominated by president, confirmed by senate, serve “during good behavior” = life term, per Article III of constitution.
- Describe State – Federal. 50 different additional jurisdictions in the US; states, each with their own structures, methods of selection (many state court judges are elected to terms of office; some partisan elections, some non-partisan elections; some retention elections, some pure terms. Some appointed like federal system.) Also DC, PR, VI, Guam, other territorial courts that we won’t get into here. Same structure still holds true, though. Again, the basics run something like this…
- Describe Oregon Courts. 7 justices, 13 appellate judges, then circuit judges throughout state. Are also other “limited jurisdiction” courts – will discuss shortly.
- Note that the US District Court building is just across the park from the Multnomah County Circuit Court building in Downtown Portland. (Show clicks.) Cases in these courts can look very similar, but there are very particular rules about what kinds of cases can be brought in federal court. See Civil Procedure, Federal Courts.
- FYI, Selection of state judges is very different than selection of federal judges – hardly any “life term” judges in state courts. More commonly based on elections, whether partisan (like in Alabama) or nonpartisan (as in Oregon), or selection / appointment by a commission, with gubernatorial involvement and subsequent “retention” elections. Even when “elected,” often initially come to bench by appointment on an interim basis. In many states, like Oregon, very rare for incumbent judges to have opposition. Leave to you and subsequent classes to discuss the way in which different methods of selection – appointment vs. election, life terms vs. limited terms – may be beneficial or not to the rule of law in different jurisdictions. Another important distinction: Article III of the US Constitution (and, to some degree, federal statutes) define the scope of authority – the “jurisdiction” – of the federal courts. Generally speaking, not every case can appear in federal court. 2 big categories in which federal trial court jurisdiction is possible, but not necessarily required: 1) “Federal Question” cases in which the issue in the cases arises under Constitution, Laws, or Treaties of the United States,” or 2) “Diversity cases” in which plaintiff and defendant are from different states. Think about why that is… Founders were skeptical of federal government, set up system of limited powers, and limited authority of courts to specific categories in which you really needed federal courts because they were better at interpreting federal law, or because you were uncertain whether a particular court of a given state would be fair in a case where there were parties from other states in the mix.
- Law & Order. – Supreme Court in NY is trial court. Note generally – states are different from federal system. Law school focuses on federal and general common law principles, because we want to train you to practice anywhere, but that means it’s your responsibility to pay attention when you move from sovereign to sovereign. Just as practicing law in France or Saudi Arabia or Germany will be different from practicing in the US, practicing in Oregon federal court different than practicing in Oregon state court. Maybe not as much of a difference, but there is. And the laws differ, too.
- At state level, there are usually trial courts “of general jurisdiction.” True for (for instance) State Circuit Courts in Oregon. What does that mean? Well, this term – jurisdiction – is one you hear a lot in the first year civil procedure class. It can mean different things. Generally, refers to the scope of a court’s authority over cases or parties, or the principles associated with the scope of that authority. In this context, it means that in all states, there are some courts – generally these lower level trial courts – that have authority to hear cases of essentially every kind. Often, this authority will end up being delegated over time by the legislature to specialty courts that have exclusive or concurrent jurisdiction over certain subclasses of cases – Probate Courts, City Courts, Traffic Courts, etc. Note, however, that federal courts are not courts of general jurisdiction – they have jurisdiction limited by both constitution and statute. Learn more about this in Civil Procedure and Federal Courts. At end of trial court case, have a “judgment” that deems guilty / not guilty; liable / not liable. If the loser doesn’t like it, they can appeal. In all but a couple of states, goes to next level – intermediate appellate courts.
- Describe State – Federal. Note different citation formats, idea of “parallel citations.”
- Details of each court. Some mandatory review; generally very discretionary. USSC ~15K petitions, takes about 100. Oregon a little different – Note that all these courts have geographical limits, but theoretically, within those limits, same power. If Washington State Dept. of Ecology acts contrary to federal constitution, a federal district court in ED Washington can deem the action unconstitutional and unlawful, just as much as the Ninth Circuit or USSC can. Some limits-can get different opinions, for instance, from one geographic location to another (statute might be read to mean one thing in one circuit court, another thing in another circuit court) – that’s when the Courts of Last resort have to step in.
- Nicastro – Decision you’ll read in civil procedure. Issue is whether J. McIntyre, UK corporation, can be sued in NJ state court. Personal Jurisdiction question. Did they have sufficient contact with NJ to justify bringing them to court there?
- Precedent… --Important – and arguably fundamental - part of the common law system of courts in the United States. And here I mean common law in a broad, historical sense – in the sense that courts have a substantial role in defining and articulating the legal principles that guide relationships under the law. Basic idea is that once you answer a legal question, subsequent similar legal questions should be answered in basically the same way. So look at how prior cases have decided particular legal questions. -- Asterisks ** -- there are, of course, qualifications. *Applies only to “legal” decisions – not factual ones. A factual finding does not bind later parties under principles of precedent (though there are equivalent doctrines that will often lock a party in once certain facts have been found in a case – issue preclusion – civ pro.) *Strictness of “guidance” can vary – will talk about that more in a moment. Sometimes, there’s no choice by second court – must follow – other times, there is a choice. * Relevance – Much of what you discuss & learn in 1L classes is intended to help you suss out what parts of Case 1 are relevant to Case 2, and what parts aren’t relevant, and how to make arguments about why certain legal holdings in case 1 should (or should not) apply in the second case. * “Holdings” – Not the specific outcome (aka the judgment). What we’re talking about here is the reasoning. Sometimes, courts talk about things that they don’t have to talk about. Only holdings matter. Say that they decide that the evidence does not support a trial court’s conclusion that malpractice was committed. They then go on to talk about why the relevant statute governing damages would not support the damages that were awarded anyway. Damages discussion is arguably “dicta” and wouldn’t bind a later decision.
- Precedent… -- Legal decisions (not facts – other principles govern identical facts) --”Guided*”? What does that mean? … different strengths of precedent exist. Look at spectrum. Sometimes very strict, sometimes not. -- Relevant – there are ways to distinguish what look like identical words and/or situations. A lot of what you learn in law school is how to distinguish relevant prior cases. -- Holdings – it’s only precedent if prior court thought about it carefully, relied on it, and intended subsequent courts to rely on it.
- Four things we might call precedent.
- When the definition says “guided*,” what does that mean? Strictest type: Applies to decisions of USSC vs decisions of any other court on areas of expertise. Applies to decisions of Ct. App. Panels to other ct. app panels. A little different. Rules in states vary re management of decisions of intermediate courts of appeal. Intracircuit binding precedent is Unusual example. Why? Because not in appellate relationship. If Judges Kozinski, Kleinfeld, and Graber decide a case one way, no guarantee that they – or any given CA9 panel – will hear the case. Appeals go to USSC, not to another CA9 panel. So later court panel – not in appellate relationship with first. It’s luck of the draw. Not generally the case. One D.Ct. judge doesn’t bind another D. Ct. judge in this way. BUT -- Argue that it was wrong and try and persuade court to reverse. Happened in Roper v. Simmons, MO S. Ct. concluded that USSC decision from 9 years prior was incorrect, and refused to follow it. Worked!
- When the definition says “guided*,” what does that mean? Important part of the common law system of courts in the United States. And here I mean common law in a broad, historical sense – in the sense that courts have a substantial role in defining and articulating the legal principles that guide the operative Unusual example. Why? Because not in appellate relationship. If Judges Kozinski, Kleinfeld, and Graber decide a case one way, no guarantee that they – or any given CA9 panel – will hear the case. Appeals go to USSC, not to another CA9 panel. So later court panel – not in appellate relationship with first. It’s luck of the draw. Not generally the case. One D.Ct. judge doesn’t bind another D. Ct. judge in this way. En Banc Example: https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010168 18:30 Argue that it was wrong and try and persuade court to reverse. Happened in Roper v. Simmons, MO S. Ct. concluded that USSC decision from 9 years prior was incorrect, and refused to follow it. Worked!
- When the definition says “guided*,” what does that mean? Next level of strictness: Stare Decisis. “The decision has been made”. Significant part of common law system of courts in the United States. Essentially, point is that once a court decides an issue of law, that decision won’t be reversed unless there’s a good reason to do so. Still has to bind prior decision; still has to
- When the definition says “guided*,” what does that mean? Important part of the common law system of courts in the United States. And here I mean common law in a broad, historical sense – in the sense that courts have a substantial role in defining and articulating the legal principles that guide the operative Unusual example. Why? Because not in appellate relationship. If Judges Kozinski, Kleinfeld, and Graber decide a case one way, no guarantee that they – or any given CA9 panel – will hear the case. Appeals go to USSC, not to another CA9 panel. So later court panel – not in appellate relationship with first. It’s luck of the draw. Not generally the case. One D.Ct. judge doesn’t bind another D. Ct. judge in this way. Argue that it was wrong and try and persuade court to reverse. Happened in Roper v. Simmons, MO S. Ct. concluded that USSC decision from 9 years prior was incorrect, and refused to follow it. Worked!
- Most familiar with federal courts U.S. District Courts – usually one per state, but some have up to 4 – CA, NY, TX, FL U.S. Courts of Appeal – there are 12 geographic circuits – first through 11th, and then DC Circuit. U.S. Supreme Court. Nominated by president, confirmed by senate, serve “during good behavior” = life term, per Article III of constitution.
- BTW, high / low – I should be more careful.