Unit 2 - Analyzing Statutory Law and Legislative History

Federal government has only the powers granted to it in the Constitution The states have all powers not granted to the federal government 3 Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

4 Sources of Law Constitution Cases Statutes Regulations Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

5 Legislative Judicial Executive Creates Law Enforces Law Branches of Government Interprets Law Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

 Laws written by federal or state legislatures and signed by President or Governor  Statutes are general policy framework  State laws may go beyond federal laws as long as they don’t conflict 6 Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

 Legislatures delegate power to administrative agencies to develop regulations  Rules and regulations add detail  Guidelines are often issued to clarify laws 7 Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

 Research  Identification of facts  Identification of issues  Finding appropriate law  Analysis  Relating the law to the issues and facts  Writing  Communicating your findings to the attorney

 Cases and our common law tradition  Constitutions and statutes  Administrative regulations  The executive branch

AUTHORITIESSOURCE Cases*Judiciary ConstitutionsLegislature StatutesLegislature Administrative regulationsAdministrative agencies Executive ordersExecutive branch TreatiesExecutive branch

 Written by judges and called decisions or opinions  Considered primary authority when delivered by an appellant court from your state, U. S. Court of Appeals from your state’s circuit, or U. S. Supreme Court  Will be based on, and/or, will create precedent

 “to stand by things decided”  Following settled cases that are factually similar and legally relevant to the case or problem being researched.

 Official reporters  Regional reporters  CD-ROMs  On-line reporters  LEXIS  Westlaw

 Shepard’s can be used to find how all the ways that other cases have dealt with your case or statute. Shepardizing your case will show you: Cases that followed the rule of law set out in your case.  Cases that are distinguishable on the facts from your case.  Cases that criticize your case.  Cases that reverse your case or overturn a point of law from your case.

 AUTHORITIES  Encyclopedias  Law review articles  Periodical publications  Treatises and texts  Dictionaries  Attorneys general opinions  Restatements  Annotations  Foreign sources  Form books  Practice guides (such as jury instructions or opinions on ethics)  *cases from other states or federal circuits.

 Legal issues are questions presented to the court for resolution  What is it that we will ask the court to answer.  What are the questions we will need to answer in order to present the case before a court.

 Or, is it?  Under Virginia law must a driver stop at a red stoplight?

 At 3:30a.m. the morning of December 25, 2010, Mr. Smith was driving his pregnant wife to the hospital. He came to a what he thought was a malfunctioning stoplight. He sat at the intersection for about 4 minutes before be proceeded through the intersection as the light remained red. Mrs. Smith was experiencing contractions during the trip and the baby was born within minutes of arriving at the hospital. Mr. Smith received a citation for failing to obey a highway signal and has asked you to represent him.

1. What Is Legislative History? 2. Why and How To Use Legislative History? 3. Concerns About Using Legislative History 4. Conclusion 19

 Documents from the legislative process 20

21 Different versions of a bill can be helpful in determining intent

22 Testimony of experts and interested parties

23 Published in the Congressional Record

24 Generally considered to be the most authoritative source

 To correct a legislative drafting error  Statutes are not always clear  Research may reveal legislative intent  Or provide support for your argument 25

 Potential for manipulation  Many times floor speakers are addressing only a few other members of Congress  …or an empty room  Comments can be entered into the record in written form  Potential to disrupt the Constitutional balance of power 26

 What’s the alternative?  Plain Meaning  Textualism  False appearances of objectivity? 27 A court cannot interpret a statute …in the absence of context. The only question is whether it will rely on a context secretly supplied from the judge's own intellect, or will use and acknowledge openly the context supplied by Congressional documents.

United States Supreme Court United States Courts of Appeals – 13 circuit courts Federal District Courts – 98 district courts 28 Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

29 Vertical Power Court of Last Resort Appellate or Intermediate Court Trial Court Yell / The Law and Special Education, Second Edition Copyright © 2006 by Pearson Education, Inc. All rights reserved

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 Unit 2: Submit the issue that you are planning to use in your legal memo/course project.  Unit 2: Teamwork –one page summary  Unit 3: Case Brief  Unit 3: Teamwork assignment –case briefing

 Or comments…..