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Paralegal Power Break: Sources of Law (Cases)

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Where does a judge find the rules? The judicial imagination is not sufficient authority, even though some judicial decisions seem to suggest otherwise. There are several sources of the law, the primary ones being the Constitution, legislation, and prior judicial decisions. This last is the subject matter of this session.

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Paralegal Power Break: Sources of Law (Cases)

  1. 1. Paralegal Power Break Sources of the Law: Cases
  2. 2. Judicial Restraint • Constitution attempted to create “government of laws and not of men” – Allocated authority to three branches of government in such a way that each could serve as a check on the other • Executive • Legislative • Judicial
  3. 3. Judicial Restraint • Chief Justice John Marshall and U.S. Supreme Court established two fundamental principles that defined role of federal judiciary: – Judicial review • Supremacy clause • Power of court to examine legislative and executive acts – Judicial restraint
  4. 4. Judicial Restraint • Because ultimate authority resides in Court made up of judges appointed for life (subject only to removal by impeachment), necessary that judges restrain themselves from actively entering political arena
  5. 5. Common Law • American legal system said to follow common law tradition inherited from England • Has come to mean something more than simply English law • In American jurisprudence, common law refers to judge-made law
  6. 6. Judges Make Law • Part of American democratic folklore that judges interpret law – Do not “make” law • Fallacy – Power to interpret law inevitably leads to making law
  7. 7. Judges Make Law • When faced with novel or difficult cases, judges occasionally formulate statements of law that form important new principles
  8. 8. Stare Decisis • Today, importance of common law tradition lies largely in principle of precedent, or stare decisis – Judicial lawmaking rendered orderly, predictable, and legitimate • Dictates that judges should follow prior precedents when making decisions
  9. 9. Stare Decisis • When court faced with novel fact situation and formulates rule to decide case, court “sets a precedent” • Force of precedent depends on court that hands it down • Precedent considered binding on court that sets it and all lower courts within its jurisdiction
  10. 10. Distinguishing Cases • Stare decisis requires that same rule be applied in future cases with identical fact situations • Virtually every case differs in some respect from preceding cases – Legal arguments commonly revolve around comparison of facts of instant case with precedents
  11. 11. Distinguishing Cases • Arguing against application of precedent in given case entails distinguishing facts of instant case from those of precedents
  12. 12. Adjudication versus Legislation • Although judges may be said to “make law,” they do so differently from legislators
  13. 13. Adjudication versus Legislation • Adjudication – Particularized – Cases focus on particular events and particular parties • Legislation – Generalized – Designed to make rules that apply to everyone
  14. 14. Adjudication: Narrow Focus on Past Events • Adjudication – Process of judges making decisions to resolve disputes between parties • Judge looks through magnifying glass at one case and declares what law is applicable – If law made in the process, byproduct of the case
  15. 15. Adjudication: Narrow Focus on Past Events • Function of judge: – Settle dispute • Rather than determine how law applies to other cases in the future
  16. 16. Legislation: Universal Application and Future Effect • Characteristics of legislation: – Universal application – Future effect • Legislators do not resolve individual cases • Legislative process typically operates by first recognizing problem and then attempting to solve problem by enacting law
  17. 17. Legislation: Universal Application and Future Effect • When legislative process complete, law is matter of public record – Everyone must comply or risk legal consequences
  18. 18. Obiter Dictum • Dictum – Remarks, opinions, and comments in a decision that exceed scope of issues and rules that decide them – Not binding on future cases
  19. 19. Obiter Dictum • Distinguish dictum from rule of law by determining legal and factual issues presented by dispute and analyze reasoning that leads to resolution – Anything outside this reasoning and rule behind it is dictum
  20. 20. Nonbinding Authority • Law consists of state and federal constitutions, statutes, and judicial opinions • Reasoning from authority – To arrive at reasonable solution, court will use best authority it can find
  21. 21. Nonbinding Authority • Law from sister states – When binding authority absent, court often looks to nonbinding authority from other states • Decisions of other state courts commonly referred to as persuasive authority
  22. 22. Nonbinding Authority • Secondary sources – Secondary authority • Vast array of materials used in arguments by lawyers and opinions by judges that are not officially law • e.g., law review articles, treatises, the Restatements
  23. 23. Precedent and Unpublished Cases • Due to increase in appellate cases, judges decided some decisions not worthy of inclusion in reporters – These cases deemed “unpublished” • Do not appear in official printed reports • Unpublished decisions deemed by many jurisdictions not to have precedential force

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