Sources of Law Legislature – makes law Executive – enforces law 2/22/2019 Legislature – makes law Executive – enforces law Judiciary – interprets law In truth, all three branches make the law in different ways. Thus, all are sources of law.

Makes law through statutes Legislature 2/22/2019 Makes law through statutes Virginia Code: Search Warrant § 19.2-52. When search warrant may issue. Except as provided in § 19.2-56.1, search warrants, based upon complaint on oath supported by an affidavit as required in § 19.2-54, may be issued by any judge, magistrate or other person having authority to issue criminal warrants, if he be satisfied from such complaint and affidavit that there is reasonable and probable cause for the issuance of such search warrant.

Administrative Agencies 2/22/2019 From power granted by the Executive, administrative agencies make administrative law – the rules and regulations issued by administrative agencies. FDA – Product Labeling

Judiciary 2/22/2019 Makes law known as “common law” through judicial decisions or “opinions.”

Constitution 2/22/2019 Reigning over all three branches of government is the U.S. Constitution.

Sources of Law 2/22/2019

Next Steps 2/22/2019 Regardless of the source of law, you must determine what court will hear your claim if your case gets that far. Thus, the next question will be: Who has jurisdiction, or What court will we be in?

What jurisdiction’s law applies? 2/22/2019 Federal Vs. State

Venue Determination of which state or federal court should hear the case. Venue – Latin for “neighborhood” 2/22/2019 State Case – County court where the defendant resides. Federal Case: Federal statute governs which district court is proper.

Federal Courts The trial court (US District Court) has jurisdiction over    - Federal Constitutional matters    - Violation of federal statutes (Federal Questions)    - Cases involving the US    -  Civil matters in excess of $75,000 AND Diversity of Citizenship (all parties are from different states)

State Courts Broad Jurisdiction Cases deal with citizens within the state borders Examples: Robberies, Traffic Violations, Broken Contract, Family Dispute Not allowed to hear cases: -- against the US -- specific federal law -- antitrust/bankruptcy

Sources of Law, Jurisdiction, & Authority

Enacted Law One main source of law in the US Adopted by people or legislative bodies Constitutions Statutes Regulations Also referred to as “statutory law”

Common Law/Case Law Common Law – created in absence of enacted law Case Law – included common law, but includes law created when courts apply or interpret enacted law Created by judges writing opinions based on their decisions of cases

Federal Court System U.S District Court – trial court (one or more in each state) Circuit Court of Appeals – the appellate court (13 federal circuit courts) U.S. Supreme Court – the highest court

Virginia Court Structure Virginia Supreme Court Court of Appeals Circuit Courts District Courts Traffic Courts Domestic Courts Juvenile Courts Small Claims Courts

Jurisdiction The extent of a court’s authority to hear and resolve specific disputes

State & Federal Jurisdiction In some cases both federal and state courts have jurisdiction. This allows the parties to choose whether to go to state or federal court.

Examples Most criminal cases involve violations of state law and are tried in state court Robbery is a crime (found in state law) However, it would be a federal crime to rob a bank whose deposits are insured by a federal agency

Example Federal Court can hear cases involving state law: EX: State law forbids slaughtering animals outside certain areas A neighborhood association brings a case in state court against a defendant who sacrifices a goat in his back yard When the court issues an injunction forbidding further sacrifices, the defendant challenges the state law in federal court as an unconstitutional infringement on his religious freedom

Personal jurisdiction Refers to a court's power over a particular defendant (in personam jurisdiction) or an item of property (in rem jurisdiction). If a court does not have personal jurisdiction over a defendant or property, then the court cannot bind the defendant to an obligation or adjudicate any rights over the property.

Subject-matter jurisdiction Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court has the authority to only hear bankruptcy cases. Subject-matter jurisdiction must be distinguished from personal jurisdiction, which is the power of a court to render a judgment against a particular defendant. Unlike personal or territorial jurisdiction, lack of subject-matter jurisdiction cannot be waived.

Personal Jurisdiction Authority over the parties State courts are limited to the geographic boundaries of the state OR Matters must have some connection with the state

Example: New York State courts do not have authority to decide matters that take place in Ohio. HOWEVER – New York does have jurisdiction over an Ohio resident if the resident is involved in an automobile accident in the state of New York.

Subject Matter Jurisdiction Authority over the types and kinds of cases Two (2) types of courts in both federal & state system: 1. General Jurisdiction 2. Limited Jurisdiction

Limited Jurisdiction General Jurisdiction Authority to hear any matter brought before the court (limited to state matters) (General District Court) Limited Jurisdiction Limited to the types and kinds of cases they can hear. (Tax Court)

Concurrent Jurisdiction Exists when more than one court has the authority to deal with the same subject matter Plaintiff may choose the court in which to file Diversity of Citizenship – either Federal or State

Hierarchy of the Law

Hierarchy of the Law Define “hierarchy” There is a hierarchy of authority between “enacted law” and “common law” Generally Constitution is highest authority Followed by other enacted law Then common/case law Federal law is supreme

Chain of Command… The US Constitution is the highest authority Followed by Common/Case Law (Fed then State) Followed by other Enacted Law (statutes/regulations) (Fed then State) The US Constitution is the highest authority

Example: A state passes a law declaring it illegal to burn the American Flag. The state supreme court upholds the statute. Both the statute and the state supreme court are invalid because they conflict with the Constitution of the United States (1st Amendment)

Authority Anything a court may rely on when deciding a case. There are two (2) types of authority and two (2) roles it can play

Two Types of Authority Primary– The Law itself Enacted Law Common Law Secondary – Non-law sources (good to locate law) Legal Encyclopedias American Law Reports (ALR) Restatements Treatises Law review articles

Primary Authority – the law itself Relationship of Law Primary Authority – the law itself Secondary Authority – non-law sources a court may rely on (Legal Encyclopedias, Treatises, ALR, Law Review Articles, etc.)

Two Roles of Authority Mandatory – A court must rely when deciding a case Persuasive – A court may rely on (but is not bound to)

Mandatory Authority Secondary authority is NEVER mandatory Not all primary authority is mandatory Primary authority becomes mandatory when is governs the legal issue/question before the court