Sources of law

Question 1

Primary sources of law

Answer 1

Constitutions, statutes, regulations, and case law. It creates rights and obligations. Primary sources may be binding or merely persuasive.

Question 2

Secondary sources of law

Answer 2

Law review articles and books

Question 3

When is case law binding?

Answer 3

Whether case law is binding or not depends on the application of the rules of precedent and stare decisis.

Question 4

Is federal law supreme to state law?

Answer 4

Yes - under the doctrine of Supremacy.

Question 5

What is legislation?

Answer 5

Legislation or statutory law is law that is enacted by legislatures. Each of the 50 states has its own legislation that covers areas of state regulation

Question 6

What is case reporters?

Answer 6

Published opinions are reproduced in a series of books known as reporters. Some are official reporters and some are unofficial reporters (lexisnexis)

Question 7

When decisions are published?

Answer 7

Generally, decisions in which a court publish decisions in which they announce a new legal principle or interpretation.

Question 8

What elements does a case contain?

Answer 8

• The name of the court
• Case name (name of the plaintiff v. name of the defendant)
• Names and litigation positions of the parties
• Attorneys
• The address of the case
• The opinion of the court
• Dissenting and/or concurring opinion(s)
• Date

Question 9

What is “holding”?

Answer 9

It is the court’s answer to the legal issue.

Question 10

What is “dictum”?

Answer 10

It means “something said in passing”. It is statements that go beyond the facts or legal questions. Such statements are rare.

The question of whether certain statements are related to the court’s holding or are dictum is important for purposes of stare decisis

Question 11

What is particularly distinguished for common law systems?

Answer 11

One case can be used as a platform for future cases which is a principal feature of the U.S. common law method.

Question 12

Stare decisis

Answer 12

The tendency to follow legal principles announced by earlier courts on similar legal issues when presented with similar material facts.

Question 13

What factors can support the application of precedent to later-decided cases (stare decisis)?

Answer 13

Fairness, predictability, and the integrity of the judicial system

Question 14

Which cases will bear the principle of stare decisis?

Answer 14

It depends on a number of considerations. The way in which U.S. courts use precedent is described in Hart v. Massanari.

1. The similarity of the legal issue(s) presented
2. The relationship between the court that decided the earlier case and the court now confronted with a similar issue
3. The scope of the holding(s) in the earlier-decided cases

Question 15

Decisions of U.S. Supreme Court: Questions on federal law - are decisions binding?

Answer 15

Yes, binding on all states and federal courts.

Question 16

Decisions of U.S. Supreme Court: Questions on state law - are decisions binding?

Answer 16

Persuasive in the absence of binding authority.

Question 17

Decisions of U.S. Courts of Appeals: Questions on federal law - are decisions binding?

Answer 17

Binding in the circuit (district courts and court of appeals).

Question 18

Decisions of U.S. Courts of Appeals: Questions on state law - are decisions binding?

Answer 18

Persuasive in the absence of binding authority.

Question 19

Decisions of District Courts: Questions on federal law - are decisions binding?

Answer 19

No, not binding.

Question 20

Decisions of District Courts: Questions on state law - are decisions binding?

Answer 20

Persuasive in the absence of binding authority.

Question 21

When is the stare decisis effect strongest?

Answer 21

If numerous precedents stand for the same principle of law.

Question 22

Which court can overrule the Supreme Court precedents?

Answer 22

Only the Supreme Court itself

Question 23

What is statutory law?

Answer 23

Statutory Law is the term used to define written laws, usually enacted by a legislative body.

Question 24

What does “synthesizing case law” mean?

Answer 24

To synthesize a body of law is to read and integrate a body of legal principles into one simply-stated, easily applied rule that then can be used to predict the outcome of similar but not identical cases.

Question 25

“At-will” rule

Answer 25

Under the general “at-will” rule of employment, employers are typically free to fire employees – and employees are free to quit their jobs – without cause.

Most states have modified the common law at-will employment rule by providing for a few exceptions to the general doctrine. One of the common exceptions to the at-will rule is that if there is a contract, a person can be discharged only in a manner consistent with the terms of that contract.