primary sources of american law
1. The US Constitution and the constitutions of various states
2. Statutes or laws passed by state legislatures and Congress
3. Regulations created by admin. agencies (ie FDA)
4. Case law (court decisions, makes precedent)
secondary sources of law
Books and articles that summarize and clarify the primary sources of law
-supreme law of the land
-any law that conflicts with it is invalid (unconstitutional)
-set forth the general organization, power and limits of federal and state governments
- laws enacted by legislative bodies
- ordinances are laws, rules or order at the local level. these are laws not included in the federal or state law.
- statutes & ordinances = Congress and state legislative bodies
- uniform laws (model laws for the state to consider adopting) created by a panels of experts and scholars
- each state has the option of adopting or rejecting a uniform law. only if a state ledislature adopts a uniform law does that law become part of the satutory law of that state. (note that state legislator may adopt all or part of the uniform law or the legislature may rewrite it. therefore the state laws may not be uniform afterall.)
-Uniform commercial code, was created through the joint efforts of the NCCUSL and the American Law institute. it facilitates commerce among the states by providing a uniform, yet flexible, set of rules governing comerical transaction.
- rules, orders and decision of administrative agencies
- administrative agency = federal, state or local government agencies performing specific functions
- governs all areas not covered by statutes
- includes courts interpretations of constitutional and administrative law
- guide to the intent and purpose of a statute
- the application of principles applied in earlier cases with similar facts
- opposite of civil law system where there is no precedent or juries and is based on statutes
- The rule of precedent, whereby a rule or law contained in a judicial decision is commonly viewed as binding on judges whenever the same question is presented.
1. decisions made by higher courts are binding on lower courts
2. a court should not overturn its own precedents unless there is a strong reason to do so
- makes system more efficient, uniform, stable etc.
- brown vs board of education Topeka (separate education facilities for whites and blacks)
when there is no precedent
- these are called cases of first impression
- look at precedents from other jurisdictions referred to as persuasive authorities b/c they are not binding on the court
-A court may also consider various other factors, including legal prin- ciples and policies underlying previous court decisions or existing statutes, fair- ness, social values and customs, public policy (governmental policy based on widely held societal values)
- a court will award money or other relief to a party injured by a breach of contract
classifications of law
- federal vs state
- substantive (all laws that describe, define and create legal rights) vs procedural (laws that establish methods of enforcing rights)
- private (bwtn persons) vs public (bwtn persons and governments)
- cyber law: governs transactions on internet
regulates relationships between individuals and between individuals and governments
-relationships between individuals and society
- prescribes punishment for violations
the commerce clause
- gives congress the power to regulate interstate commerce
- can extend to intrastate commerce if it has substantial affects on business in other states
Powers not specifically given to congress (or forbidden from states) belong to states.
bill of rights
- a statement of fundamental rights and privileges
- protect individuals and businesses from some interference from the government
- first ten amendments to the Constitution
- Freedom of Speech, Press, Religion and Petition
- includes symbolic speech
- does not protect speech that harms reputation, words that incite violence
- establishment clause: government cannot establish a religion
- free exercise clause: you can practice any religion
- corporate political & commercial speech limited
- does not protect against obscene speech (miller v. california)
- protects you from unreasonable search and seizure of your home and property
- specific warrant required to search or seize private property
1) probable cause: evidence to convince a
reasonable person that a search is justified
2) general & neutral enforcement plan for
3) detached decision maker
right to bear arms
- double jeopardy
- self- incrimination
- right to indictment by jury
- 5th and 14th amendments
- no person shall be deprived of of life, liberty or property without due process of law
- the government must follow the same fair rules in all cases brought to trial
PROCEDURAL: any govnt decision to take life, liberty must be done fairly (procedural safeguards)
SUBSTANTIVE: content of legistlation
- right to a speedy and public trial by an impartial jury and with counsel
- right to cross examine witnesses
- right to trial by jury in a civil case involving at least $20
protection against excessive bail and cruel and unusual punishment
states that people's rights are not limited to just those listed in the Constitution.
1. when items sought are likely to be removed before warrant it obtained
2. for seizure of spoiled or contaminated food
3. for businesses in highly regulated industries
Early English Court
-common law—a body of gen- eral rules that applied throughout the entire English realm.
-Each interpretation became part of the law on the subject and served as a legal precedent—that is, a decision that furnished an example or authority for deciding subsequent cases involving similar legal principles or facts.
-practice of deciding new cases with reference to former decisions, or prece- dents, eventually became a cornerstone of the English and U.S. judicial systems. The practice forms a doctrine called stare decisis2 ("to stand on decided cases").
-Under the doctrine of stare decisis, once a court has set forth a principle of law as being applicable to a certain set of facts, that court and courts of lower rank within the jurisdiction must adhere to that principle and apply it in future cases involving similar fact patterns.
-BINDING AUTHORITYAny source of law that a court must follow when deciding a case. Binding authorities include constitutions, statutes, and regulations that govern the issue being decided, as well as court decisions that are controlling precedents within the jurisdiction.
Departure from precedent
-Sometimes a court will depart from the rule of precedent if it decides that a given precedent should no longer be followed. If a court decides that a precedent is simply incorrect or that technological or social changes have rendered the precedent inapplicable, the court might rule contrary to the precedent.
Stare decisis and legal reasoning