(StNeel) wrote:
:|>From: "Roger"
:|
:|Well Roger - you are wrong in stating that precedents are binding on a court
:|and your source (a legal dictionary it seems) is wrong also (not uncommon
:|today).
That depends on the nature of the authority.
=====================================================
The Nature of legal Authority
Legal authority is any published source of law setting forth legal rules,
legal doctrine, or legal reasoning that can be used as a basis for legal
decisions.
When the term is used to describe types of information, legal authority
can be categorized as PRIMARY or SECONDARY. Primary authorities are
authorized statements of the law by governmental institutions (it is the
law)
Secondary authorities are statements ABOUT the law, and is not the law,
per se.
SOURCE: Fundamentals of Legal Research, 5th Edition, J. Myron Jacobstein,
Roy M. Mersky, University Textbook Series.
(1) Type of Primary Authority
(2) When and Where Mandatory
(3)When and Where Persuasive
___________________________________________________________ _____________
(1) U.S. Constitution
(2) Always mandatory on all federal and state courts (and Local courts)
(3) N/A
____________________________________________________________
(1) U.S. Supreme Court decision interpreting and applying federal law
(2) Always mandatory on all federal and state courts (and local courts)
(3)N/A
___________________________________________________________
(1) Federal statute*
(2) Always mandatory on all federal and state courts (and local courts)
(3)N/A
___________________________________________________________
(1) Federal administrative regulation**
(2) Always mandatory on all federal and state courts (and local courts)
(3) N/A
______________________________________________________________
(1) U.S. Court of Appeals decision Interpreting and applying federal law
(2) Always mandatory on federal courts within the jurisdictional
boundaries of the Court of Appeals issuing the decision
(3) May be regarded as persuasive by federal and state courts that
do not need to treat the decision as mandatory (would apply as well to
local courts)
________________________________________________________________
(1) U.S. District Court decision interpreting and applying federal
law
(2) Always mandatory on specialized lower federal courts, if any,
within the jurisdictional boundaries of the District Court issuing
the decision and over which the District Court has appellate
jurisdiction
(3) May be regarded as persuasive by federal and state courts that
do not need to treat the decision as mandatory (would apply to local
courts as well)
_________________________________________________________________
(1) State constitution***
(2) Always mandatory on all state courts within the given state (and local
courts)
(3) N/A
_________________________________________________________________
(1) Decision of a state's highest court interpreting and applying
that state's law***
(2) Always mandatory on all lower state courts within the given
state (and local courts)
(3) May be regarded as persuasive by federal and state courts
that do not need to treat the decision as mandatory
___________________________________________________________________
(1) Decision of a state's intermediate appellate court interpreting
and applying that state's law
(2)Always mandatory on all lower state courts within the jurisdictional
boundaries of the intermediate appellate court issuing the decision; (and
local courts)
in some states, may also be mandatory on lower state courts outside
those jurisdictional boundaries (and local courts)
(3) May be regarded as persuasive by federal and state courts that
do not need to treat the decision as mandatory
____________________________________________________________________
(1) State statute#
(2) Always mandatory on all state courts within the given state (and local
courts)
(3) N/A
_____________________________________________________________________
(1) State administrative regulation##
(2) Always mandatory on all state courts within the given state (and local
courts)
(3) N/A
_____________________________________________________________________
The additional comments in the following footnotes bear only on the
validity of the authority, not on its mandatory or persuasive character:
* Assuming there is no conflict with the U.S. Constitution
** Assuming there is no conflict with the U.S. Constitution or a federal
statute
***Assuming there is no conflict with the U.S. Constitution, a federal
statute, or federal administrative law
# Assuming there is no conflict with the U.S. Constitution, a federal
statute, federal administrative law, or that state's constitution
## Assuming there is no conflict with the U.S. Constitution, a federal
statute, federal administrative law, that state's constitution, Or
any of that state's statutes
Source:
SOURCE: THE LEGAL RESEARCH MANUAL, A Game Plan For Legal Research and
Analysis, By
Christopher G. Wren & Jill Robinson Wren, Pages 42-43
-----------------------------------------------------------------------------------------------------------------
:|
:|Take your & the dictionary statement
:|
:|>precedent
:|>1) n. a prior reported opinion of an appeals court which establishes the
:|>legal rule (authority) in the future on the same legal question decided in
:|>the prior judgment.
:|
:|This is wrong. Precedents do not 'establish' the legal authority -
:|
:|Precedents are only guidelines for any courts consideration and can be used or
:|rejected by a court in its opinion/ruling. Precedents are not binding on any
:|court.
See above
:|Been that way for a long long time (back to early common law- 1400s or
:|so).
:|
:|This can be demonstrated easily enough. As a example the 'separate but equal'
:|schools were held valid for many years (1870s to 1950s or so). In the 1950s the
:|US Supreme Ct ignored the clear precedents of many years and many prior rulings
:|and decided against all precedents.
:|
:|By you logic (and your sources error) - they could not do that legally. But
:|they did and legal at that. Why - simply because precedents are not binding.
:|Not then and not now.
:|
:|But I am not trying to change your mind - hold to your views if you wish.
:|However what my concern is the terrible ignorance of the law and how it works
:|held by common folks and the potential lose of our great legal system through
:|that ignorance.
:|
:|The basics of law is not taught in high schools anymore and many 'popular'
:|sources available to folks have many errors in them. Legal authority comes from
:|statute law passed by elected officials or juries. Your view lets judges usurp
:|the 'gov't of the people'. Do we as a nation want that? Suggest you research
:|this a bit deeper. Judges cannot make law - they can only make judgements
:|according to the law.
:|
:|But enjoyed the discussion
English Common Law revolved heavily around the concept of "Judge made law."
Judge-made law. A Phrase used to indicate judicial decisions which construe
away the meaning of statutes, or find meanings in them the legislature
never intended. Its perhaps more commonly used as meaning, simply, the law
established by judicial precedent and decisions. Laws having their source
in judicial decisions as opposed to laws having their source in statutes or
administrative regulations.
SOURCE: Black's Law Dictionary, Abridged Sixth Edition, Centennial Edition,
(1891-1991) West Publishing Company, (1991) p. 585-86
********************************************
SOURCES OF LAW
http://groups.google.com/groups?selm=pkd0gvcec6sdo90stbp7u1o25ie07hpvka%404ax.com&oe=
UTF-8&output=gplain
THE UNITED STATES has many sources of law because of our federal
system. The United States Constitution is the nation's charter and the
source of authority for federal laws and the federal courts. The
Constitution delineates the limits of federal power and reserves
considerable authority to the states. Each state has authority over persons
and activities within its boundaries. State governments, in turn, delegate
some authority to local governments. Each of these governmental units may,
within certain constraints, make law.
Understanding how laws arise and how they affect our activities
requires an understanding of two key concepts: (1) the relationships among
laws within a single jurisdiction and (2) the relationships among federal,
state, and local governments in the system. This chapter describes these
two concepts and briefly describes source material for researching the
law.
The Hierarchy of Laws
Four basic kinds of laws exist: constitutions, statutes or
ordinances, administrative regulations, and judge-made law. [NOTE, JUDGE
MADE LAW] These sources form a hierarchy with constitutions at the top and
judge-made laws at the bottom. Constitutions include the United States
Constitution as well as state constitutions. Within a jurisdiction, the
constitution is the highest authority; statutes, regulations, and common
law must not conflict with the constitution.
Statutes create categorical rules to address particular problems.
The Food, Drug, and Cosmetic Act, for example, was adopted by Congress to
ensure the safety and healthfulness of the nation's food supply. A statute
is controlling as to the subject it encompasses, unless the statute is
unconstitutional.
The federal government and most states have many agencies with
diverse responsibilities (e.g., labor, veterans' affairs, transportation,
commerce, environmental protection). Administrative regulations are rules
promulgated by such agencies to help implement specific statutes. For
example, the "laws" relating to declarations of nutritional information
required on the packages of certain foods are largely administrative
regulations promulgated by the Food and Drug Administration under the Food,
Drug, and Cosmetic Act, Properly adopted administrative regulations have
the same legal effect as statutes, so long as they are consistent with the
Constitution and relevant statutes.
Judicial decisions often interpret or apply constitutions,
statutes, or regulations. At other times, when such law is not applicable,
they interpret or apply a body of judge-made law known as the common law.
In either situation, law is made whenever a court decides a case. Once a
constitutional provision, statute, or regulation has been construed by a
court, that construction of the statute becomes law.
SOURCE: A Practical Guide to legal Writing & Legal Method, Second edition.
John C. Dernbach, Richard V. Singleton II, Cathleen S. Wharton, Joan M.
Ruhtenberg, Fred B. Rothman & Co. (1994) pp 9-10
[NOTE: IN EITHER SITUATION, LAW IS MADE WHENEVER A COURT DECIDES A CASE..]
**************************************************************
There is the legislature. They "make" law.
The president can "make" law by executive orders.
Various agencies can "make" law and is usually called administrative law
Then each time a court makes a ruling it has "made" law.
====================================================================
LAW:. That which is laid down, ordained, or established. A rule or method
according to which phenomena or actions co-exist or follow each other. Law,
in its generic sense, is a body of rules of action or conduct prescribed by
controlling authority, and having binding legal force. That which must be
obeyed and followed by citizens subject to sanctions or legal consequences
is a law. Law is a solemn expression of the will of the supreme power of
the State. Calif.Civil Code, p 22.
The "law" of a state is to be found in its statutory and constitutional
enactments, as interpreted by its courts, and, in absence of statute law,
in rulings of its courts (i.e. case law). [NOTE, AS INTERPRETED BY ITS
COURTS, AND IN THE ABSENCE OF STATUE LAW, IN RULINGS OF ITS COURTS.- This
is where the original poster is getting into problems with his
understanding of law.]
The word may mean or embrace: body of principles, standards and rules
promulgated by government constitution or constitutional provision; statute
or enactment of legislative body; administrative agency rules and
regulations; judicial decisions, judgments or decrees; municipal
ordinances; or, long established local custom which has the force of law.
[NOTE, JUDICIAL DECISIONS- again the same problem area for the original
poster]
With reference to its origin, "law" is derived either from judicial
precedents, from legislation, or from custom. [NOTE, JUDICIAL PRECEDENTS-
same problem area for the original poster]
As to the different kinds of law, or law regarded in its different
aspects, see Absolute law; Adjective law; Administrative law; Bankruptcy
Code; Canon (Canon law); Case law; Civil law; Commercial law; Common law;
Conclusion of law; Conflict of laws; Constitutional law; Criminal law;
Custom and usage; Ecclesiastical law; Edict; Enabling statute; Equity;
Evidence, law of; Flag, law of; Foreign laws; General law; International
law; Local law; Maritime; Maritime law; Marque, law of; Martial law;
Mercantile law; Military law; Moral law; Municipal law; Natural law;
Ordinance; Organic law, Parliamentary law; Penal laws; Positive law;
Private law; Probate; Procedural law; Prospective law; Public law; Remedial
laws and statutes; Retrospective law; Revenue law or measure; Road (Law of
the road); Roman law; Special law; Statute; Substantive law; Unwritten law;
War; Written law.
SOURCE OF INFORMATION: Black's Law Dictionary, abridged Sixth Edition,
Centennial Edition (1891-1991) West Publishing, St paul Minn, (1991) pp
612)
-----------------------------------------------------------------------------------------------------------------
The Legislature makes Statutory Law
Various Agencies make Administrative Law
The Judiciary makes Common Law (judge made law)
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