Sources of law Mrs. Hill

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. Sources of Law 5/22/2019

Makes law through statutes Legislature 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. 5/22/2019

Administrative Agencies From power granted by the Executive, administrative agencies make administrative law – the rules and regulations issued by administrative agencies. Administrative Agencies FDA – Product Labeling 5/22/2019

Makes law known as “common law” through judicial decisions or “opinions.” Judiciary 5/22/2019

Reigning over all three branches of government is the U. S Reigning over all three branches of government is the U.S. Constitution. Constitution 5/22/2019

Sources of Law 5/22/2019

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 Common Law/Case Law

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

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

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 Concurrent Jurisdiction

Federal Trials The primary federal trial courts are the United States District Courts. To appeal a litigant can go to one of the 13 “circuits” of the United States Court of Appeals. After that, if further review is needed than a litigant can go to the U.S. Supreme Court.

Court Structure & Stare Decisis Stare Decisis is more flexible at the higher court level Stare Decisis is less flexible on the lower courts Precedent at the lower court level is binding when the same issue is being addressed and the court that created the precedent acts a court of review https://www.youtube.com/watch?v=Xzq-x-hytJY Court Structure & Stare Decisis

The lower court must either distinguish (tell the difference between) the reviewing court’s precedent or apply it as controlling authority.

What Stare Decisis does NOT do Does not require a court to follow a precedent of a coequal, autonomous courts, of lower courts within the same court system, or any courts outside of the system. What Stare Decisis does NOT do

The Florida Supreme Court is not bound by the decisions of other Florida courts or by those of the California Supreme Court. The United States Court of Appeals of the First Circuit is not bound by the decisions of either the United States Court of Appeals for the Second Circuit or any United States District Court. For Example:

Limitations to Stare Decisis A court may distinguish a prior decision if it concludes that the prior decision addressed a significantly different dispute from the one now before the court. A court’s own precedent may be indistinguishable from the dispute before the court. The two limits help avoid rigidity in the law while maintaining consistency. Limitations to Stare Decisis

Real case examples Carroll v. United States (4th Amendment) Agnello v. United States California v. Carney Real case examples

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 Hierarchy of the Law

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