American Legal Systems: A Resource and Reference Guide

American Legal Systems: A Resource and Reference Guide, 1997
Toni M. Fine, Director of Graduate & International Programs, Yeshiva University, Benjamin N. Cardozo School of Law
Publisher :LexisNexis

This book provides an overview of American legal institutions and sources of law, and presents a guide to the interrelationships between and among those institutions and legal authorities. It discusses the defining role of the doctrine of stare decisis in the American Common law system and the critical judicial review function. In addition, American Legal Systems shows the reader how to determine and apply the relative priorities of sources of law, all in the context of the legislative process, agency action, and principles of constitutional and legislative supremacy. American Legal Systems ties many of these concepts to the realities of law practice. Portions of the book demonstrate how to locate specific resources, use legal terms, and prepare commonplace legal documents. Among the main virtues of the book is its “reader-friendliness.”It introduces readers to some extremely complicated issues of American jurisprudence in a clear and straightforward way.

PREFACE

ACKNOWLEDGMENTS

A NOTE TO USERS OF AMERICAN LEGAL SYSTEMS

I. BASIC Concepts of American Jurisprudence

A. Summary of Basic American Legal Principles

1. Impact of Precedent – The Principle of Stare Decisis

2. Court Hierarchy

3. Jurisdiction

4. Mandatory/Binding versus Persuasive Authority

5. Primary versus Secondary Authority

6. Dual Court Systems

7. Interrelationship Among Various Sources of Law

B. What Is Common law ?

1. Common Law as Differentiated from Civil Law

2. Case Law

C. The American Judicial System: A System Based on Advocacy and the Presence of Actual Controversy

1. Threshold Issues Designed to Preclude Advisory Opinions

2. Courts Generally Confine Themselves to the Dispute Presented for Resolution

3. Tendency to Avoid Constitutional Issues When Possible

D. Institutional Roles in the American Legal System

1. Attorney

2. Judge

3. Jury

E. Sources Of Law

1. Overview of Primary and Secondary Authority

2. Secondary Sources of Law

F. The Use of Precedent – The Principle of Stare Decisis

1. Stare Decisis Means “Let It [The Prior Decision] Stand”

2. Rationale

3. Applies Only if Precedent is “Binding”or “Mandatory”

4. Application of Stare Decisis Depends upon Two Main Factors

5. Additional Factors to be Considered in Applying Stare Decisis

6. Importance to the Principle of Stare Decisis of Analogizing and Distinguishing Precedent

7. Deviations from the Principle of Stare Decisis

G. Binding/Mandatory versus Persuasive Authority

H. Federal and State Systems

1. Dual Federal and State Systems

2. Illustration of the Dual American Court System

3. The Federal Courts: An Overview

a. United States Supreme Court

b. United States Court of Appeals

c. United States District Courts

4. The State Courts: An Overview

a. State Court Structure

b. State Reporter Systems

c. State Court Digests

d. State Court Rules of Practice and Procedure

I. Interrelationship Among Sources of Law

1. Interrelationship Among Federal Government Institutions

2. The Judicial Review Function: The Interrelationship Between Congress and the Federal Courts

3. Relative Priority of Sources of Law: Hierarchy of Authority

II. CASE LAW

A. Anatomy of a Case-Case Reporters

1. Case Format [West Reporters]

2. Dissecting a West Headnote

B. Working With Case Law

1. Use of West Digest System to Find a Case

2. Shepard’s Citators

3. General Research Strategy

4. Using Known Information to Find Additional Cases

5. Updating Case Law

6. Summary of Case Law Research: Tools and Sources of Verification and Update

C. Identifying and Working With Dictum

D. Analogizing and Distinguishing Cases

E. Dealing With Contrary Authority

1. Ethical Obligation to Reveal Contrary Authority

2. How to Negate or Minimize the Importance of “Contrary Authority”

3. When and How to Acknowledge Contrary Authority

F. Terminology Relating to Court and Party Usage

G. Precedential Effect of Case Law and the Application of Stare Decisis

1. Introduction

2. General Rules Regarding Precedential Effect and the Application of Stare Decisis

a. General Rules Re: Federal Law

b. General Rules Re: State law

3. Precedential Effect of Court Rulings on Federal Law: General Rules

a. Precedential Effect of Rulings of the United States Supreme Court

b. Precedential Effect of Rulings of the United States Court of Appeals

c. Precedential Effect of Rulings of the United States District Courts

d. Precedential Effect of Rulings of State Courts

e. Precedential Effect of Federal Court Decisions on Matters of Federal Law

III. STATUTES AND LEGISLATIVE HISTORY

A. Preliminary Points Relating to Federal Statutes and Legislative History

1. Congress: A Bicameral Institution

2. The House of Representatives

3. The Senate

4. How Laws Are Passed

5. Legislative Supremacy

6. Interpretation of a Statute: The Plain Meaning Rule

7. Use of Legislative History

B. Sources of Federal Statutory Law

C. Terminology Relating to Congressional Action

D. How a Bill Becomes a Law

E. Legislative History: Finding Legislative History of a Federal Statute

IV. ADMINISTRATIVE AND OTHER EXECUTIVE LAW

A. Preliminary Points Relating to Federal Administrative law

1. Federal Administrative Agencies Are Authorized by Congress

2. Federal Administrative Agencies Regulate Diverse and Important Areas

3. Federal Administrative Agency Action May Be “Legislative”or “Adjudicative”

4. Court Challenges to Agency Action

B. Agency Actions and Issuances

C. The Code of Federal Regulations

D. The Federal Register

E. Presidential Documents

V. CIVIL LITIGATION

A. Preliminary Points Relating to the Federal Civil Litigation Process

1. Civil Litigation Defined

2. The Importance of Issues Relating to Jurisdiction and Venue

3. Issues of Timing

4. Researching Federal Rules of Civil Procedure

B. Civil Litigation Process

C. Summary of Discovery Process

VI. APPELLATE COURT REVIEW

A. Preliminary Points Relating to Federal Appellate Court Review

1. Decisions Reviewed

2. Appeals versus Petitions for Review

3. Function of Appellate Court Review

4. Remedial Options for Reviewing Court

5. Issues of Timing

6. Researching Federal Rules of Appellate Procedure

B. Federal Appellate Litigation Process

C. Special Issues Involving Appellate Court Review of Agency Action

1. Threshold Issues

2. Issues of Jurisdiction and Venue

3. Specific Federal Rules of Appellate Procedure Applicable to Agency Review Proceedings

4. Importance of Administrative Procedure Act and Other Statutes

5. Court Deference to Agency Actions

VII. OVERVIEW OF PARTY DESIGNATIONS AND THEIR ROLES IN THE CIVIL LITIGATION PROCESS

VIII. OVERVIEW OF COURT RULINGS AND DISPOSITIONS

A. Sources of Court Issuances

B. Court Dispositions

1. General Court Dispositions

2. Dispositions Peculiar to Trial Court Practice1

3. Dispositions Peculiar to Appellate Court Practice

4. Dispositions Peculiar to Supreme Court Practice

IX. BASIC Legal Citation FORM – AN OVERVIEW

A. The Bluebook Generally

B. General Rules of Style

C. How to Cite to Authority

D. How to Quote from Authority

X. PREPARATION OF AN INTEROFFICE MEMORANDUM

A. Interoffice Memorandum Generally

1. Definition of an Interoffice Memorandum

2. Purposes of the Interoffice Memorandum

3. Objectivity of the Interoffice Memorandum

4. Format of the Interoffice Memorandum

B. Guidelines for the Preparation of an Interoffice Memorandum

[Memorandum Heading]

Question(s) Presented

Brief Answer(s)

Statement of Facts

Legal Discussion

Conclusion

XI. PREPARATION OF A MOTION AND MEMORANDUM OF LAW IN SUPPORT OF OROPPOSITION THERETO

A. Motions Generally

1. Definition of a Motion

2. Parties to Motion Practice

3. Definition of a Memorandum in Support of or Opposition to a Motion

4. Purposes of a Memorandum in Support of or Opposition to a Motion

5. General Format for Motions

6. Time for Filing Motions

B. Draft Motion

C. Draft Order

D. Guidelines for the Preparation of a Memorandum of Law in Support of or Opposition to a Motion

[Preliminary Statement]

Statement of Facts

Argument

Conclusion

XII. PREPARATION OF AN APPELLATE BRIEF

A. Appellate Briefs Generally

1. Appellate Courts Review Lower Courts for Errors of Law

2. The Appellate Practitioner Should Limit the Brief to Alleged Errors of Law

3. The Process of Filing Appellate Briefs

4. Importance of Following All Applicable Rules and Practices

B. Guidelines for the Preparation of an Appellate Brief

Table of Contents

Table of Cases and Authorities

Statement of Subject Matter and Appellate Jurisdiction

Issues Presented for Review

Statement of the Case

Summary of Argument

Conclusion

Author: international

Mentioned in these Entries

Administrative law, Advocacy, American Jurisprudence, 2d, Attorney, Common law, Concepts of American Jurisprudence, Court Hierarchy in the legal system, Digests and American Law Reports, Dual Court Systems, Impact of Precedent-The Principle of Stare Decisis, Interrelationship Among Various Sources of Law, Jurisdiction in American law, Legal Citation, Mandatory or Binding vs. Persuasive Authority, Modern Legal Systems Cyclopedia, Primary vs. Secondary Authority, State law, United States Supreme Court.