Sources of Law by Emoni Fitch | Basics of Court Group | April 25, 2016


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Sources of Law by Emoni Fitch

by Basics of Court Group Show/Hide

This section identifies the key concepts of different sources of law. The sources of law are what we use to determine the type of legal analysis we use in a particular situation. Within each source of law it is important to understand what is ‘good law.' Good law pertains to legal decisions that are current and valid (the decision has not been overturned in an appeal or determined to be obsolete due to a new change in law). This information is pertinent because many legal issues surround which interpretation of the law (specific precedents) should be applied in a given case with the particular set of facts. In order to understand the legal reasoning in a case, one must understand the source of law to which it applies which can sometimes conflict. 

Link to Google Document

Constitutional Law

- “the Supreme Court incorporated the doctrine of no prior restraint in First Amendment Jurisprudence, when it ruled that under the Free Press Clause there is a constitutional presumption against prior restraint which may not be overcome unless the government can demonstrate that Censorship is necessary to prevent a clear and present danger of a national security breach. In new york times v. united states, 403 U.S. 713 92 S.Ct 2140, 29 L. Ed.2d 822 (1971) the Court applied this presumption against the United States Justice Department which had sought an Injunction to prevent the publication of classified material revealing the secrecy and deception behind American involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened American troops by disclosing their location or movement, the Court said, publication would not have been permitted.” (4)

Statutes/Statutory Law

  • Laws “passed by the legislature on the state or federal level.”
  • Legal Definition: “An act of a legislature that declares, proscribes, or commands something; a specific law, expressed in writing.” (5)
  • Statutes set up general principles of law to be applied in specific situations or cases.
  • Statutes can prohibit a particular act, order an act, “make a declaration,” or create resources by the government to help society (6)
  • Process: “A statute begins as a bill proposed or sponsored by a legislator. If the bill survives the legislative committee process and is approved by both houses of the legislature, the bill becomes law when it is signed by the executive officer (the president on the federal level or the governor on the state level). When a bill becomes law, the various provisions in the bill are called statutes. The term statute signifies the elevation of a bill from legislative proposal to law. State and federal statutes are compiled in statutory codes that group the statutes by subject. These codes are published in book form and are available at law libraries.” (7)

 Administrative/Regulatory Law

  • This type of law governs the function of government agencies (state and federal)
  • These agencies are under the power of Congress (state agencies under power of state legislature)
  • Government agencies are bound by constitutional boundaries
  • These limits have been put into statutes like the Federal Administrative Procedure Act (FAPA)
  • This particular statute is meant to create “uniformity and openness” in the procedures of federal agencies
  • The statute includes an all-encompassing and general set of regulations, adjudications or judgements, and rulemaking (8)
  • Ex. FCC which regulates international and interstate communications via radio, television…etc. in all 50 states, the district of Columbia, and all U.S. territories. This is an independent government agency that is under the delegation of Congress. It is the main source of “communication law, regulation, and technological innovation.”
  • People tend to run into administrative law and agencies when applying for governmental benefits. An example of this is when Congress passed laws in order for disabled individuals to receive assistance. “The Social Security Administration (SSA) is the administrative agency created to implement Congress's social security and disability laws. The SSA receives applications when people apply for disability benefits, determines who is eligible for the benefits, and passes rules and regulations to ensure that only the people who deserve these benefits receive them.” (9)
  • Also, other examples where administrative law is applied includes when“the Department of Labor and the Occupational Safety and Health Administration (OSHA) create and enforce workplace safety regulations. The Environmental Protection Agency (EPA) passes regulations and rules to enforce Congress's goal of protecting the environment. States also have their own administrative agencies to implement and execute laws passed by their state legislatures.” (10)

 Executive Actions

  • A presidential order that “implements or interprets a federal statute, a constitutional provision, or a treaty
  • Power comes from Congress and does not require approval (11)
  • Executive Actions vs. Executive Orders
  • Historically have been concerning administrative issues and internal operations of federal agencies but more recently have been used for legislative policies

 Common Law

  • Is a “body of customary law” (laws derived from custom or practice) that is based on judicial decisions and precedent and can be found in reports of decided cases
  • Very different from civil law legal system
  • Derived from the “practice of the people” (12)
  • Common law is rooted in “medieval idea that the law as handed down from the king's courts represented the common custom of the people.” (13)
  • “Common-law courts base their decisions on prior judicial pronouncements rather than on legislative enactments. Where a statute governs the dispute, judicial interpretation of that statute determines how the law applies. Common-law judges rely on their predecessors' decisions of actual controversies, rather than on abstract codes or texts, to guide them in applying the law. Common-law judges find the grounds for their decisions in law reports, which contain decisions of past controversies.” (14)
  • Doctrine of Stare Decisis is important in common law because it directs judges to rely on the decisions of previous cases or precedents.

    Law of Equity

    • “Particular set of remedies and associated procedures.” (15)
    • Different from legal procedures
    • “Equitable relief is generally available only when a legal remedy is insufficient” (16)
    • Arose from English system where there were separate courts for law and equity (17)
    • “The most important remaining distinction between law and equity is the right to a jury trial in a civil case. Where the plaintiff seeks a remedy of money damages, the plaintiff is entitled to a jury trial, provided the amount sought exceeds an amount specified by statute. Where the plaintiff seeks a remedy that is something other than money, the plaintiff is not entitled to a jury trial. Instead, the case is decided by one judge. If a plaintiff asks for both equitable and monetary relief, a jury will be allowed to decide the claims that ask for monetary relief, and a judge will decide the equity claims. Judges are guided by precedent in equity cases, but in the spirit of equity, they have discretion and can rule contrary to apparent precedent.” (18)
    • Equitable Defenses: Clean Hands Doctrine which says that the plaintiff in an equity case “should be innocent of any wrongdoing or risk dismissal of the case.” (19)
    • Ex. an injunction (court order requiring a person do or not do something) is an example of an equity remedy
    • Two types of injunctions: preliminary injunction and temporary restraining order-purpose to ensure that the defendant will not act furthering the “complained-of” or harmful way before the court proceedings (20)
    • Article on the history of equity in the Federal Courts, “Equity Jurisdiction in the Federal Courts




3. 283 U.S. 697, 51 S. Ct 625, 75 L. Ed. 2d 1357 (1931)




















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  1. 1 Show/Hide More Common Law Vs. Equity by Emoni Fitch
    This video gives an explanation of the similarities and differences between common law and the law of equity, two concepts which can often be confused or interchanged with one another.
  2. 2 Show/Hide More Historical Development of the Law of Equity Video
    This video lays out the history of the Law of Equity and also gives an explanation of the principle.
  3. 3 Show/Hide More Common Law Vs. Statutory Law video
    This short video gives an easy to understand explanation of the differences between common law and statutory law.
  4. 4 Show/Hide More President Obama Executive Action Image
    This article provides an image that gives context to the concept of executive action. It depicts President Obama speaking in the Rose Garden of the White House, announcing his executive actions on gun control. 
  5. 5 Show/Hide More What is Statutory Law? video
    This video gives a quick and easy to understand overview of statutory law. 
  6. 6 Show/Hide More Structure of the United States Court System by Emoni Fitch
    Original Creator: Basics of Court Group

    Structure of the United States Court System

    The United States’ Court system can seem a bit confusing due to the “overlapping network of different courts,” however there is a clear pattern to how the courts are structured. The state and federal court system are divided into the different areas depicted below.

    Courts of Special Jurisdiction

    These courts are established to hear certain type of cases. An example of these types of courts within the federal system are bankruptcy and tax courts. State systems also have specific courts that deal with certain legal issue such as family courts and probate courts. These courts generally have more simple rules of evidence procedure in order to expedite the process and the judges and lawyers typically have expertise within that specific area of the law.

    Trial Courts

    There are two different types of trial courts which are civil court and criminal court.  Though the structure between these two courts are similar, the procedures and rules are quite different. Within these courts, “Each side in a case has the opportunity to learn or discover as many facts about the case as possible before trial. At the trial, the parties will present their evidence in order to convince a judge or jury that the facts are favorable to their side. The judge and the jury will reach their decision, or verdict, which is the end for most cases.”

    The link below provides more specific information on how a case moves forward in the criminal trial court as well as the structure of the court and the procedures that are followed.

    Appellate Courts

    In the trial courts, if there is a lapse in procedure or interpretation of the law, then either party can appeal the case to the appellate court. These courts do not re-hear the entire case, but instead they focus on the portion of the case that may have been misinterpreted or where the lower court may have made a mistake. Appellate courts can typically take cases from courts of special jurisdiction as well.

    Supreme Court

    This is the highest ranking court in any jurisdiction. If the appellate court makes a mistake, or if the party thinks that a law is unjust, then they can make an appeal from the appellate court to the Supreme Court. There is also the possibility that if at the trial court level, there is a particularly interesting question of the law, the Supreme Court will skip the appellate court step and take the case on directly. The U.S. Supreme Court’s decision is the end of the process and the rules stands. Though, if a case was appealed to a state supreme court and involves a federal issue, then it can be appealed to the U.S. Supreme Court.

    State and Federal Courts

    State and federal courts decide different types of cases. Federal courts decide cases that involve federal issues of law such as constitutional rights or federal crimes. State courts are allowed to decide some federal issues, though they decide all issues regarding state law.

    This information regarding the structure of the U.S. Court System comes from:

  7. 7 Show/Hide More U.S. Court System Visual
    This picture provides a visual representation of the United States Court System. 
  8. 8 Show/Hide More State and Federal Court Stuctures Link
    State and Federal Court Stuctures
  9. 9 Show/Hide More Net Neutrality Explained
    Net neutrality revolves around a key question: Should internet bandwidth be treated equally for everyone? Here's a look at the debate.

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April 25, 2016

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Basics of the Court

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