1. LRW Research 2

2. Review  Sources of Authority Enacted law Enacted law ConstitutionsConstitutions StatutesStatutes Court rulesCourt rules Administrative rules and regulationsAdministrative rules and regulations Decided law Decided law CasesCases Administrative agency decisionsAdministrative agency decisions

3. Branches of Government and Legal Rules

4. Branches of Government and Legal Rules (continued)

5. Precedent  Recall we were talking about how to know which cases to use as precedent  First step is to know that written opinions are precedent  Two more steps needed before we can answer question of which cases are precedent Levels of appeal Levels of appeal Material similarity Material similarity

6. Levels of Appeal  Most states and the federal government have two levels of appellate courts Lower level is an intermediate appellate court (usually called court of appeals) Lower level is an intermediate appellate court (usually called court of appeals) Higher level is the highest court (usually called the supreme court, but sometimes called the court of appeals) Higher level is the highest court (usually called the supreme court, but sometimes called the court of appeals)  If there are intermediate appellate courts: Party wishing to appeal gets one appeal by right Party wishing to appeal gets one appeal by right Appeal to highest court is usually by discretion Appeal to highest court is usually by discretion  If there is no intermediate court then there is usually one appeal by right to the highest court

7. Federalism  This multi-tier system exists in every state, the District of Columbia and the federal system— 52 jurisdictions  Usually 3 tiered  Federal system Trial Intermediate Appellate Highest U.S. District Court Trial court United States Court of Appeals Intermediate Appellate Supreme Court Highest Court

8. Federalism and Precedent  We have been talking about precedent  Judicial hierarchy discussion shows which precedent is important (controlling)  Reason is that rules of law announced by higher courts in a judicial hierarchy are binding (controlling) On lower courts in that hierarchy On lower courts in that hierarchy And on the higher court itself And on the higher court itself  In cases involving same material facts

9. Stare Decisis  Principal that courts are bound (obligated) to follow precedent is called stare decisis (“stand by what is decided”)  Example, California Supreme Court binds itself, the California trial and intermediate appellate courts, but not other jurisdictions  The 7 th Circuit binds itself and courts in the Northern District of Illinois (other districts in Illinois, Indiana and Wisconsin, too), but not courts in the 8 th Circuit

10. Stare Decisis  Generally speaking states don’t bind federal courts and federal courts don’t bind states  Nor does one state bind another  Binding is from high to low in each vertical system  But horizontally we have 52 separate vertical systems that don’t bind each other

11. Federalism

12. Federalism

13. The Federal Courts

14. Sample State Court

15. Precedent  So if you want to ask whether a case is binding (or in other words what precedent to follow) you have to ask 2 questions Is the case from a higher court or the same court in the same vertical system Is the case from a higher court or the same court in the same vertical system Are the material facts the same Are the material facts the same  Answering the first will generally have a fairly easy to discern answer  Answering the second always gives you room to maneuver, depending on what you want for your client

16. Why Is This Important  We have 52 different vertical systems  If only one vertical system is controlling for each legal problem what about the rest?  Are they irrelevant No No Courts don’t ignore precedent from other jurisdictions, though they are free to do so Courts don’t ignore precedent from other jurisdictions, though they are free to do so Instead they consider them persuasive Instead they consider them persuasive

17. What is Persuasive?  Flip answer – Everything that is not binding  More concrete When a court considers another (not binding) precedent persuasive that means it uses that precedent (a case) as a source of guidance and justification When a court considers another (not binding) precedent persuasive that means it uses that precedent (a case) as a source of guidance and justification When a lawyer wants to use a case from another jurisdiction, she has to give the court reasons to follow it, because one jurisdiction’s courts are not bound by another jurisdiction’s courts When a lawyer wants to use a case from another jurisdiction, she has to give the court reasons to follow it, because one jurisdiction’s courts are not bound by another jurisdiction’s courts  Giving reasons will be crucial to this course and to every exam you write

18. Types of Authority TYPE OF AUTHORITYMANDATORY (BINDING) PERSUASIVE (NONBINDING) PRIMARY (legal rules) Constitutional provisions, statutes, and regulations in force within a jurisdiction are mandatory for courts within the same jurisdiction. Decisions from courts in one jurisdiction are persuasive authority for courts within another jurisdiction. Decisions from higher courts within a jurisdiction are mandatory authority for lower courts within the same jurisdiction. Decisions from lower courts within a jurisdiction are persuasive authority for higher courts within the same jurisdiction. SECONDARY (anything that is not primary authority, usually commentary on the law) Secondary authority is not mandatory authority. Secondary authority is persuasive authority.

19. Persuasive Authority  The tendency to give persuasive weight to other cases is not surprising Courts face difficult problems and want all the help they can get Courts face difficult problems and want all the help they can get There is no better help than a solution to the same problem by another court There is no better help than a solution to the same problem by another court The catch (and it’s a big one) is whether the other court’s problem was really the same The catch (and it’s a big one) is whether the other court’s problem was really the same That is were the material facts really enough the same to justify the analogy That is were the material facts really enough the same to justify the analogy This would be true for both binding and persuasive because the rule for binding is This would be true for both binding and persuasive because the rule for binding is Same or higher courtSame or higher court Same material factsSame material facts

20. Wrinkle on Stare Decisis  Courts are expected to follow precedent Sometimes an appellate court will break with its own precedent Sometimes an appellate court will break with its own precedent Or a trial court will refuse to follow an appellate court Or a trial court will refuse to follow an appellate court Or a contrived distinction will be made to fashion a new rule Or a contrived distinction will be made to fashion a new rule Makes it difficult for us as lawyers Makes it difficult for us as lawyers But it allowed the law to grow But it allowed the law to grow  Usually precedent is followed if the conditions are met Fair, efficient, draws on cumulative wisdom of successive judges Fair, efficient, draws on cumulative wisdom of successive judges Makes law more consistent and predictable Makes law more consistent and predictable

21. The States Included in Each of the Seven Regional Reporters National Reporter System