Online Companion: Legal Research, Analysis, and Writing
The process of legal
analysis and legal writing requires a determination of what law applies
to a legal question and how it applies. In order to engage in the process,
it is necessary to have an understanding of the law and the basic doctrines
and principles that govern and guide the analysis of the law.
There are primarily
two sources of law in the United States:
1. Enacted law
2. Common/case law
Enacted law, as used
in this text, consists of constitutions, laws passed by legislative bodies,
and regulations adopted by administrative bodies to aid in the enforcement
and application of legislative mandates. Common/case law is composed of
the law created by the courts in two situations:
1. When there is
no law governing a topic, or
2. Through interpretation of enacted law where the meaning or application
of the enacted law is unclear.
There are basically
two court systems in the United States: the federal court system and the
state court system. Although there are differences in each system, they
have similarities. Both systems have trial courts where matters are initially
heard, trials held, and judgments rendered, and both have courts of appeal
where the judgments of trial courts are reviewed and possible errors corrected.
In order to provide consistency and stability to the common/case law,
two doctrines have evolved:
2. Stare decisis
Precedent is an earlier
court decision on an issue that applies to govern or guide a subsequent
court in its determination of identical or similar issues based upon identical
or similar facts. The doctrine of stare decisis provides that a court
must follow a previous decision of a higher court in the jurisdiction
when the decision involves issues and facts similar to those involved
in the previous decision.
The two sources of law, enacted and common/case law, are called primary
authority. Primary authority is the law itself. Any other authoritative
source a court may rely on in reaching a decision is called secondary
authority. Secondary authority is not the law but consists of authoritative
sources that interpret, analyze, or compile the law such as legal encyclopedia,
treatises, annotations, etc. Courts will always rely on and look to primary
authority first when resolving legal issues.
If primary authority governs the resolution of a legal question, it must
be followed by the court. This type of primary authority is called mandatory
authority. Secondary authority can never be mandatory authority. Anything
that the court is not bound to follow, but which it may follow or consider
when reaching a decision, is called persuasive authority. Both primary
authority and secondary authority can be persuasive authority.
The application of the basic concepts and principles presented in this
chapter are addressed in detail throughout the remaining chapters of this
text. Each concept and principle plays a critical role in legal analysis
What is the Web site for your state supreme court? What is the Web site
(if any) for your local court of general jurisdiction?
When is a state supreme court decision mandatory precedent? When is it
Facts: Five months ago your client moved to a city in
State A from a different state. She wishes to run for city council.
Authority: Your research reveals that the city does not
have an ordinance defining residency or the requirements necessary to
establish residency. Nor does State A have a statute addressing the residence
requirements for municipal elections. You have, however, located the following
1. A 1998 State
A statute which provides that a candidate for state supreme court judge
must have resided in the state three years prior to the election.
2. A 2000 State B statute which states that individuals running for
any county or municipal office must have resided in the county or municipality
for six months.
3. Garcia v. Municipality of Weston. A 2001 State A court of appeals
decision providing that a person running for state senate must reside
within the senate district for a minimum of one year prior to the election.
4. Reisin v. City. A State B supreme court decision holding that a person
running for any municipal position must reside in the municipality for
5. American Jurisprudence Second section which provides that most states
have a three-month residency requirement for the purposes of eligibility
to run for municipal positions.
A. Which authority
is primary authority and which is secondary authority?
B. Which, if any, of the authority is mandatory authority and why?
C. Which authority can be persuasive authority and why?
Refer to Colorado Statute 4-2-314 at http://www.findlaw.com//11stategov/co/laws
or look up the statute at a local law library. Refer to the annotations
following the statute, and list three examples of primary authority and
three examples of secondary authority.
Refer to Article 2 section six of the Colorado State constitution at http://www.findlaw.com//11stategov/co/laws
or look up the constitution at a local law library. Refer to the annotations
following this section of the constitution, and list the name of two cases
and one Am Jur 2d (American Jurisprudence Second) and one C.J.S. (Corpus
Juris Secundum) reference.
CHAPTER 1 LINKS TO INTERNET
Considered one of the best sites for finding legal resources in general.
This site offers information about federal court justices, statutes, state
laws, and links to other sites.
Indiana University Law School library
Cornell University Law School Library
This site is a state court locator.
This site allows full-text search of many law journals.
The official site for the Government Printing Office
West Group products and services
Provides an index to legal sites on the Web including links
POWER POINT PRESENTATIONS
and Court Systems