Online Companion: Legal Research, Analysis, and Writing


Chapter 1

CHAPTER 1 SUMMARY

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:

1. Precedent
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 and writing.

CHAPTER 1 ASSIGNMENTS

ASSIGNMENT 1

What is the Web site for your state supreme court? What is the Web site (if any) for your local court of general jurisdiction?

ASSIGNMENT 2

When is a state supreme court decision mandatory precedent? When is it persuasive precedent?

ASSIGNMENT 3

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 authority:

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 three months.

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.

Questions:
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?

ASSIGNMENT 4
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.

ASSIGNMENT 5
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 RESOURCES

http://www.findlaw.com
Considered one of the best sites for finding legal resources in general.

http://www.legal.gas.gov
This site offers information about federal court justices, statutes, state laws, and links to other sites.

http://www.law.indiana.edu
Indiana University Law School library

http://www.law.cornell.edu/library/default.html
Cornell University Law School Library

http://vls.law.vill.edu/Locator/statecourt
This site is a state court locator.

http://www.findlaw.com/o3journals/fullist.html
This site allows full-text search of many law journals.

http://www.access.gpo.gov
The official site for the Government Printing Office

http://www.westpub.com
West Group products and services

http://gsulaw.gsu.edu/metaindex
Provides an index to legal sites on the Web including links


POWER POINT PRESENTATIONS

Authority

Sources of Law

Courts and Court Systems