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.

1. Paralegal Power Break
Sources of the Law: Cases

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. 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. 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. 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. 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. Judges Make Law
• When faced with novel or difficult cases,
judges occasionally formulate statements of
law that form important new principles

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. 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. 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. Distinguishing Cases
• Arguing against application of precedent in
given case entails distinguishing facts of instant
case from those of precedents

12. Adjudication versus Legislation
• Although judges may be said to “make law,”
they do so differently from legislators

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. 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. Adjudication: Narrow Focus on
Past Events
• Function of judge:
– Settle dispute
• Rather than determine how law applies to other cases in
the future

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. Legislation: Universal Application
and Future Effect
• When legislative process complete, law is
matter of public record
– Everyone must comply or risk legal consequences

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. 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. 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. 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. 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. 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