introduction to legal system small group f2013

7/30/2019 Introduction to Legal System Small Group F2013

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Mandatory v. Persuasive Authority

Mandatory / Binding Precedent

The Law (primary authority)

Higher court within the jurisdiction

Same jurisdiction Same topic

Persuasive authority

Law (primary authority) from a lower court outside

of your jurisdictionAll secondary authority is always persuasive.

Some secondary authority is more persuasive thanothers (consider author and her credentials).


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MANDATORY PRECEDENT V. PERSUASIVE AUTHORITY EXAMPLE:

CASE LAW

Federal:

U.S. Supreme Court

Binds all lower federal courts and

state courts on federal issues.

Resolves splits among Circuits.

U.S. Courts of Appeal

Binds District Courts within that

particular Circuit.

Law from other circuits is only

persuasive.

U.S. District Courts Federal Trial Courts

Must follow decisions of the circuit

in which it sits as mandatory

precedent.

Trial courts do not bind other trialcourts.

State: New York

N.Y. Court of Appeals

Binds all lower N.Y. courts.

Resolves splits among Appellate

Departments.

N.Y. Appellate Division Binds lower courts

N.Y. Supreme Court (and

other trial courts)

Must follow another Appellate

Division that has ruled on the

issue i ftheir Appellate Division

has no tdone so.

Trial courts do not bind other trial

courts.


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Stare Decisis (stahr-ee di-sI-sis or stair-ee),

n. [Latin to stand by things decided] (18c)

The doctrine of precedent, under which a

court must follow earlier judicial decisions

when the same points arise again in

litigation.

Precedent means that similar cases should be decidedsimilarly. Lower courts are bound by the earlier decisions

of higher courts- this provides predictability and

consistency in the law.


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intermediate appellate courts

court of last resort

trial courts


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U.S. Supreme Court

Courts of Appeal

District Courts

12 regional courts

1 federal circuit court

94 district courts

bankruptcy courts

court of international trade

court of federal claims


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New York Courts

Court of

Appeals

FirstDepartment

Supremecourts

Other courts:

Family, etc.

SecondDepartment

Supremecourts

Other courts

ThirdDepartment

SupremeCourts

Other courts

FourthDepartment

Supremecourts

Other courts

Court of Appeals

Appellate Division

Supreme Court (trial court)


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Primary v. Secondary Authority

Primary Authority = the Law; created by government entities(judges, legislators, regulators)

Constitutions

Cases / Decisions / Common Law

Statutes / Codes

Administrative Regulations Uniform Laws (UCC) / Model Acts (Model Penal Code) (if

enacted)

Secondary Authority = explanations and commentary about thelaw (everything else)

Legal Encyclopedias (Am Jur, CJS)ALRs (American Law Reports)

Restatements (common law, black letter topics)

Treatises

Law Reviews (articles / student notes)

Practice Materials / loose leafs / Form books

Dictionaries, Blacks


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Publication of the Law

Type of Law Chronological

Arrangement

Topical Arrangement

Case Reporter

Official

Unofficial

Digest

Headnotes

Statute US Statutes at Large Codes

Titles = Subjects

Official (USC)

Unofficial (USCA, USCS)

Annotations

Regulation Register, Federal

Register

Code, Code of Federal

Regulations


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When they resolve issues of law.

Trial cases usually revolve around

facts, and are therefore rarely published.

Intermediate cases are published

selectively, given that many are routine

and only of interest to parties.

Final Appellate Cases are almost

always published, as they deal with

important legal issues.

Unpublished cases are available on

Lexis and Westlaw.

PUBLICATIONOF CASE LAW


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Publication of Federal Case Law

Court Official Unofficial

U.S.

SupremeCourt

United States

Reports =U.S.

1.) Supreme Court Reporter(West)= S.

Ct.2)Lawyers Edition (Lexis) = L. Ed.,

L. Ed. 2d

U.S. Courts

of Appeal

N/A 1)Federal Reporter(West) = F., F. 2d,

F. 3d

U.S.

District

Courts

N/A 1)Federal Supplement(West) = F.

Supp., F. Supp. 2d


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case law


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Appellate and District Court

Opinions

Federal Reporter

_ F. _

_ F.2d __ F.3d _

Federal Supplement

_ F. Supp. _

_ F. Supp. 2d _


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Unpublished Cases

Federal Appendix

_ Fed. Appx. _

Available on Westlaw and Lexis:

2001 WL 1602030

2001 U.S. App. LEXIS 26786

introduction to legal system small group f2013

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