Sources of Law 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. 5/23/2019

Makes law through statutes Legislature 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. 5/23/2019

Administrative Agencies From power granted by the Executive, administrative agencies make administrative law – the rules and regulations issued by administrative agencies. FDA – Product Labeling 5/23/2019

Judiciary Makes law known as “common law” through judicial decisions or “opinions.” 5/23/2019

Constitution Reigning over all three branches of government is the U.S. Constitution. 5/23/2019

Sources of Law 5/23/2019

Enacted Law One main source of law in the US Adopted by people or legislative bodies Constitutions Statutes Regulations Ordinances 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

Precedent v. Stare Decisis If a court in an earlier case has developed a legal doctrine, principle, or rule that helps resolve a legal question – later courts addressing the same or substantially similar question should be able to look to earlier decisions for guidance https://www.youtube.com/watch?v=Xz q-x-hytJY

Jurisdiction

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.

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

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.

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

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

Enacted Law/Authority 3 steps to determine if enacted law applies to govern legal issue/question Identify all laws that may apply Identify the elements of the law (specific requirements) Apply the facts of the case to the elements If it applies, it is mandatory authority

Common/Case Law/Authority For a court opinion to be mandatory authority TWO conditions must be met: The court opinion must be “on point” The court opinion must be written by a higher court in that jurisdiction

Persuasive Authority Court is not bound to consider, but can when reaching a decision Where there is mandatory authority, persuasive authority is not needed Can be both primary and secondary

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.)