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Sources of Sources of American LawAmerican Law
Brandy KreislerBrandy Kreisler
WIUPA 201
Sources of Sources of American LawAmerican Law
Brandy KreislerBrandy Kreisler
WIUPA 201
Last updated 11/22/2010
Four Sources of LawFour Sources of Law
Constitutional law Administrative law Statutory law Common law
Constitutional law Administrative law Statutory law Common law
Source: Government Printing Office, 2008.
Trias Politica (separation of powers)Trias Politica (separation of powers)
Law by BranchLaw by Branch
LegislativeLegislative
Promulgates bills, statutes, and codes.
Promulgates bills, statutes, and codes.
ExecutiveExecutive
Promulgates court decisions (cases), also known as “common law.”
Promulgates court decisions (cases), also known as “common law.”
JudicialJudicial
Promulgates agencies, which produce administrative rules and regulations. Also produces Executive Orders
Promulgates agencies, which produce administrative rules and regulations. Also produces Executive Orders
FederalismFederalism
Is a Constitutionally-regulated system whereby power is divided between a central authority and constituencies (states).
Contrast to unitary systems, where the organs of state are governed as one single unit. Most states in the world are unitary.
Is a Constitutionally-regulated system whereby power is divided between a central authority and constituencies (states).
Contrast to unitary systems, where the organs of state are governed as one single unit. Most states in the world are unitary.
Civil Legal SystemsCivil Legal Systems
Predominant legal system of the world
Also known as “Continental law” or “Romano-Germanic law”
Legislation is the primary source of law
State of Louisiana is based upon the civil law system
Predominant legal system of the world
Also known as “Continental law” or “Romano-Germanic law”
Legislation is the primary source of law
State of Louisiana is based upon the civil law system
Common LawCommon Law
Based in the judiciary Transported from England to the
American colonies Established in the eleventh
century by King William the Conqueror in England
Established to provide uniform law to be enforced by English judges
Based in the judiciary Transported from England to the
American colonies Established in the eleventh
century by King William the Conqueror in England
Established to provide uniform law to be enforced by English judges
Common Law SystemsCommon Law Systems
Prior cases have the same weight as statutes.
“Stare decisis” necessary to maintain continuity
Higher courts have mandatory authority; lower courts have persuasive authority.
Prior cases have the same weight as statutes.
“Stare decisis” necessary to maintain continuity
Higher courts have mandatory authority; lower courts have persuasive authority.
Types of AuthorityTypes of AuthorityMandatory Authority—must be followed by all courts underneath the deciding court.
Example: All cases from the USSC are mandatory in all courts and jurisdictions.
Persuasive Authority—may be followed by the court, but may be ignored at the judge(s) discretion. It is not binding.
Example: A case from the California court of last resort is mandatory authority for all state courts in California, but only persuasive for the other 49 states.
The Federal Court SystemThe Federal Court System
© 2009 Delmar, Cengage Learning. All Rights Reserved. 10
Taken from http://www.cusd.com/calonline/apgov/module4/lesmod4/4_15.ht
m
Taken from http://www.cusd.com/calonline/apgov/module4/lesmod4/4_15.ht
m
The Thirteen Federal Judicial CircuitsThe Thirteen Federal Judicial Circuits
The State Court SystemThe State Court System
M u n ic ip a lC o u rt
C o u n ty C ou rt o fL im ite d Ju risd ic t ion
S u p e rio r C o u rt
In te rm e d ia teA p p e lla te C o u rts
S ta te S u p re m e C o u rt
M u n ic ip a lC o u rt
C o u n ty C ou rt o fL im ite d Ju risd ic t ion
S u p e rio r C o u rt
In te rm e d ia teA p p e lla te C o u rts
S ta te S u p re m e C o u rt
13
Court Structur
e of Texas
Taken from http://www.courts.state.tx.us
/
Court Structur
e of Texas
Taken from http://www.courts.state.tx.us
/
Court Structur
e of Alabama
Taken from http://www.ncsconline.org/D_Research/Ct_Struct/state_inc.
asp?STATE=AL
Court Structur
e of Alabama
Taken from http://www.ncsconline.org/D_Research/Ct_Struct/state_inc.
asp?STATE=AL
Court Structure of New
York
Taken from http://www.ncsconline.org/D_Research/Ct_Struct/state_inc.
asp?STATE=NY
Court Structure of New
York
Taken from http://www.ncsconline.org/D_Research/Ct_Struct/state_inc.
asp?STATE=NY
Why Do We
Cite?
Why Do We
Cite?
Make sure you give credit to the proper author.
In our common law system, referencing prior cases and authorities strengthens argument
Citing gives your readers a way to locate the actual information
Citing gives a great deal of important information as briefly as possible.
Make sure you give credit to the proper author.
In our common law system, referencing prior cases and authorities strengthens argument
Citing gives your readers a way to locate the actual information
Citing gives a great deal of important information as briefly as possible.
How Do We Cite?How Do We Cite?How Do We Cite?How Do We Cite?
The Bluebook: A Uniform The Bluebook: A Uniform System of Citation (19th System of Citation (19th
ed. 2010).ed. 2010).
The Bluebook: A Uniform The Bluebook: A Uniform System of Citation (19th System of Citation (19th
ed. 2010).ed. 2010).
Features of the Bluebook
Features of the Bluebook
Quick Reference (inside back cover)Extensive index at back Introduction - explains the structure of The Bluebook Blue-colored Practitioners' Notes (for court documents and legal memoranda) Blue-colored Tables pages
RulesRulesRules 1-9 cover general informationRule 10 covers cases Rule 11 covers constitutions Rules 12 and 13 cover statutes and legislative materials Rule 14 covers administrative materials Rules 15-17 cover secondary sources such as books, periodicals, treatises, etc. Rule 18 covers electronic sources
ReportersReporters Official
Example:
United States Reports (U.S.)Plessy v. Ferguson, 163 U.S. 537 (1896)
UnofficialExample:
The Supreme Court Reporter (S.Ct.)United States Supreme Court Reports
Lawyers’ Edition (L.Ed., L.Ed.2d) District of Columbia v. Heller, 554 U.S. ___,
128 S. Ct. 2783 (2008)
OfficialExample:
United States Reports (U.S.)Plessy v. Ferguson, 163 U.S. 537 (1896)
UnofficialExample:
The Supreme Court Reporter (S.Ct.)United States Supreme Court Reports
Lawyers’ Edition (L.Ed., L.Ed.2d) District of Columbia v. Heller, 554 U.S. ___,
128 S. Ct. 2783 (2008)
Regional ReporterRegional Reporter
Cases from all 50 states are published in one of seven regional reporters:
Atlantic ReporterSouthern ReporterSouth Eastern ReporterSouth Western ReporterNorth Eastern ReporterNorth Western ReporterPacific Reporter
Regional Reporters (State Cases)Regional Reporters (State Cases)
U.S. Supreme Court Citation
[court of last resort (state and federal)]
U.S. Supreme Court Citation
[court of last resort (state and federal)]
Elements: Parties volume-reporter-page (year of decision [NEVER the
court!])
Elements: Parties volume-reporter-page (year of decision [NEVER the
court!])
Baker v. Carr, 369 U.S. 186 (1962)
Federal Circuit Court Citation
[federal courts of intermediate appellate jurisdiction]
Federal Circuit Court Citation
[federal courts of intermediate appellate jurisdiction]
Elements: Parties volume-reporter-page (court [if needed to specify jurisdiction]
and year of decision)
Elements: Parties volume-reporter-page (court [if needed to specify jurisdiction]
and year of decision)
Sierra Club v. Larson, 2 F.3d 462 (1st Cir. 1993)
Federal District Court Citation
[trial-level courts]
Federal District Court Citation
[trial-level courts]
Elements: Parties volume-reporter-page (court [if needed to specify jurisdiction]
and year of decision)
Elements: Parties volume-reporter-page (court [if needed to specify jurisdiction]
and year of decision)
United States v. Bin Laden, 146 F.Supp.2d 373 (S.D.N.Y 2001)
NY Court of Appeals Citation[state court of last resort]
NY Court of Appeals Citation[state court of last resort]
Elements: Parties volume-reporter-page of official
reporter parallel reference(s) to regional
reporter(s) (year of decision [NEVER the court!])
Elements: Parties volume-reporter-page of official
reporter parallel reference(s) to regional
reporter(s) (year of decision [NEVER the court!])
Witter v. Taggart, 78 N.Y.2d 234, 577 N.E.2d 338, 573 N.Y.S.2d 146 (1991).
NY Appellate Division Citation
[state courts of intermediate appellate jurisdiction]
NY Appellate Division Citation
[state courts of intermediate appellate jurisdiction]
Adamy v. Ziriakus, 231 A.D.2d 80, 659 N.Y.S.2d 623 (4th Dep’t 1997).
Elements: Parties volume-reporter-page of official
reporter parallel reference(s) to regional
reporter (court [if needed to specify jurisdiction] and
year of decision)
Elements: Parties volume-reporter-page of official
reporter parallel reference(s) to regional
reporter (court [if needed to specify jurisdiction] and
year of decision)
NY Supreme Court Citation[trial-level courts]
NY Supreme Court Citation[trial-level courts]
Dorfman v. Berman, 186 Misc. 2d 415, 718 N.Y.S.2d 142 (Sup. Ct. Albany County 2000).
Elements: Parties volume-reporter-page of official
reporter parallel reference(s) to regional
reporter (court [if needed to specify jurisdiction] and
year of decision)
Elements: Parties volume-reporter-page of official
reporter parallel reference(s) to regional
reporter (court [if needed to specify jurisdiction] and
year of decision)
The Thirteen Federal Judicial CircuitsThe Thirteen Federal Judicial Circuits
So, how do you find “Common Law”?
So, how do you find “Common Law”?
As you have probably figured out, “common law” means “case law.”
You may find cases through digital databases, in books (called “reporters”) and online.
Online ResearchOnline ResearchCredible sources for free caselaw research include:
LexisOne: LexisOne: http://www.lexisone.com/caselaw/freecaselaw Cornell’s LII: http://www.law.cornell.edu/
ReferencesReferencesGovernment Printing Office (Superintendent of Documents). (2008). Ben’s guide to U.S.
government for kids: Branches of government. [Diagram.], Retrieved August 4, 2009, from: http://bensguide.gpo.gov/3-5/government/branches.html
Government Printing Office (Superintendent of Documents). (2008). Ben’s guide to U.S. government for kids: Branches of government. [Diagram.], Retrieved August 4, 2009, from: http://bensguide.gpo.gov/3-5/government/branches.html