Sources of Law

1. Common law (English)

   1. It's "discovered law" - very pragmatic

   2. Stare decisis (stand by past decisions)

   3. In using precedent, courts can:

      1. accept precedent

      2. modify precedent

      3. revise what the precedent means

      4. overrule

   4. precedent is recorded in court decisions - case law (see citation system in Tedford.  The library gets US Reports)

2. Statutory law - criminal, civil, regulatory

   1. the words

   2.  the intent (construction)

3. Constitutional, including amendments (see 1.b,c,d above)

   1. Incorporation under the 14th amendment (some of the bill of rights are now applied to the states, including 1st, 5th, etc).

4. Administrative law - rules written by admin agencies in line with legislative authority (details)

General overview of courts - there are really 52 or 53 judicial systems, 50 states, Fed., D.C., military (Louisiana is Napoleonic)

1. Trial courts

   1.  hear initial cases in most instances

   2.  determine the factual questions (cannot be reviewed)

   3. apply and interpret the law in the trial (can be appealed for "error" in law only); make a record.

2. Appeals Courts

   1.  only review cases already tried

   2. review issues of law only (facts are what happened. law is what should be done about the facts)

      1. in appeals no new facts are taken, no testimony

   3.  what is "speech" (content) is always a matter of law

3.  State Courts

   1. State Courts interpret state laws and their constitutionality under both state and federal constitutions.

   2. State Supreme Courts are the final authority on State constitution

   3. State Court rulings on free expression under the U.S. constitution. can be appealed to Federal Court.

   4. State constitutions may provide greater protections for expression than the U.S. Constitution (as interpreted by the U.S. Supreme Court) but not less.

4. Federal Courts deal with

   1. U.S. Constitution, US law, and treaties

   2. suits against the US Government

   3. controversies between states

   4. suits between a state and a citizen of another state (states must give permission to be sued)

   5. controversies between citizens of separate states (corporations are citizens of a state under law)
       

5. US Courts - see Tedford chart of system, -p. 452

   1. The Supreme Court of the United States(led by the "Chief Justice of the United States") is the highest appeals court.

      1. direct appeal to SCOTUS (when a state law is ruled unconstitutional by fed court, state can appeal directly to SCOTUS but can be refused)

      2. writ of certiorari  SCOTUS can choose on request to hear a case in important cases before appeal (SCOTUS is required to resolve conflicting rulings from appeals courts)

      step 1 (in the appeals process):  petitioner appeals

      step 2:  must file legal briefs (arguments on law not facts) and provide complete record of the original trial case

      step 3:  oral arguments are presented (limited time - justices question the lawyers presenting arguments)   Amici curiae (friends of the court) may be permitted to file briefs and argue as well.

      step 4:  deliberations occur - Chief Justice or senior majority justice assigns the writing of the opinion.

      step 5:  verdict is given
       

   2. Opinions of the SCOTUS

      1. Court (majority) opinion - reasons for the decision, a statement of the law for the record / precedent

      2. concurring opinion - same decision for different reasons

      3. dissenting opinion (and reasons)

      4. per curiam opinion (unsigned)

      5. memorandum of order - no opinion, usually a reference to previous precedent -- In cases of a tie vote the lower court holding stands (no opinion is written)