Paralegal Power Break

Sources of the Law: Cases

Judicial Restraint• Constitution attempted to create “government

of laws and not of men”– Allocated authority to three branches of

government in such a way that each could serve as a check on the other• Executive• Legislative• Judicial

Judicial Restraint• Chief Justice John Marshall and U.S. Supreme

Court established two fundamental principles that defined role of federal judiciary:– Judicial review

• Supremacy clause• Power of court to examine legislative and executive acts

– Judicial restraint

Judicial Restraint• Because ultimate authority resides in Court

made up of judges appointed for life (subject only to removal by impeachment), necessary that judges restrain themselves from actively entering political arena

Common Law• American legal system said to follow common

law tradition inherited from England• Has come to mean something more than

simply English law• In American jurisprudence, common law refers

to judge-made law

Judges Make Law• Part of American democratic folklore that

judges interpret law– Do not “make” law

• Fallacy– Power to interpret law inevitably leads to making

law

Judges Make Law• When faced with novel or difficult cases, judges

occasionally formulate statements of law that form important new principles

Stare Decisis• Today, importance of common law tradition lies

largely in principle of precedent, or stare decisis– Judicial lawmaking rendered orderly, predictable,

and legitimate• Dictates that judges should follow prior

precedents when making decisions

Stare Decisis• When court faced with novel fact situation and

formulates rule to decide case, court “sets a precedent”

• Force of precedent depends on court that hands it down

• Precedent considered binding on court that sets it and all lower courts within its jurisdiction

Distinguishing Cases• Stare decisis requires that same rule be applied

in future cases with identical fact situations• Virtually every case differs in some respect

from preceding cases– Legal arguments commonly revolve around

comparison of facts of instant case with precedents

Distinguishing Cases• Arguing against application of precedent in

given case entails distinguishing facts of instant case from those of precedents

Adjudication versus Legislation• Although judges may be said to “make law,”

they do so differently from legislators

Adjudication versus Legislation• Adjudication

– Particularized– Cases focus on particular events and particular

parties• Legislation

– Generalized– Designed to make rules that apply to everyone

Adjudication: Narrow Focus on Past Events

• Adjudication– Process of judges making decisions to resolve

disputes between parties• Judge looks through magnifying glass at one

case and declares what law is applicable– If law made in the process, byproduct of the case

Adjudication: Narrow Focus on Past Events

• Function of judge:– Settle dispute

• Rather than determine how law applies to other cases in the future

Legislation: Universal Application and Future Effect

• Characteristics of legislation:– Universal application– Future effect

• Legislators do not resolve individual cases• Legislative process typically operates by first

recognizing problem and then attempting to solve problem by enacting law

Legislation: Universal Application and Future Effect

• When legislative process complete, law is matter of public record– Everyone must comply or risk legal consequences

Obiter Dictum• Dictum

– Remarks, opinions, and comments in a decision that exceed scope of issues and rules that decide them

– Not binding on future cases

Obiter Dictum• Distinguish dictum from rule of law by

determining legal and factual issues presented by dispute and analyze reasoning that leads to resolution– Anything outside this reasoning and rule behind it

is dictum

Nonbinding Authority• Law consists of state and federal constitutions,

statutes, and judicial opinions• Reasoning from authority

– To arrive at reasonable solution, court will use best authority it can find

Nonbinding Authority• Law from sister states

– When binding authority absent, court often looks to nonbinding authority from other states

• Decisions of other state courts commonly referred to as persuasive authority

Nonbinding Authority• Secondary sources

– Secondary authority• Vast array of materials used in arguments by lawyers and

opinions by judges that are not officially law • e.g., law review articles, treatises, the Restatements

Precedent and Unpublished Cases• Due to increase in appellate cases, judges

decided some decisions not worthy of inclusion in reporters– These cases deemed “unpublished”

• Do not appear in official printed reports• Unpublished decisions deemed by many

jurisdictions not to have precedential force