unit 1 1. my family 2 not me 3 your instructor 4

Unit 1

1

My family

2

Not me

3

Your instructor

4

Course project We will be writing a internal legal memo this

semester. The first step is to work on the issue that you

will find the answer.You are to determine the facts of your

situation.The issue must be able to be answered with

an “Yes” or “No” answer.It must begin with the “Whether”.

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These are not legal issuesThe specific questions I would like answered

would be the process of getting custody of a child, and the legal way to relocate with that child to pursue an education, all while facilitating a healthy relationship that fosters adequate visitation by both parents.

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ExamplesWhether under Florida law may a custodial

parent relocate the child for the parents educational pursuits?

Whether under Wyoming law may the primary custodial parent prevent the parents of the non custodial parent from having contact with their grandchildren?

Whether under federal law may a group of people assemble within 250 feet of a private funeral to protest governmental actions.

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Unit 1 writing assignmentProvide a summary of a primary and

secondary authority. What is a primary and/or secondary

authority?

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Primary Authorities(binding*)AUTHORITIES SOURCE

Cases* (some exceptions) Judiciary

Constitutions Legislature

Statutes Legislature

Administrative regulations Administrative agencies

Executive orders Executive branch

Treaties Executive branch

Secondary Authorities(persuasive*)AUTHORITIES

EncyclopediasLaw review articlesPeriodical

publicationsTreatises and textsDictionariesAttorneys general

opinions

RestatementsAnnotationsForeign sourcesForm booksPractice guides (such

as jury instructions or opinions on ethics)

Primary Authority Wyo. Stat. § 2-6-118 (Mitchie 1980). Revocation by divorce or annulment; effect; revival; other changes excluded.This section of the Wyoming Statutes states that if a person is divorced and failed to change his will before the time of his death, the former spouse cannot inherit from the decedent unless the will expressly provides otherwise. A divorce or annulment revokes any powers or right to inherit by the former spouse and the property will be given out as if the former spouse died before the decedent.

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Secondary Authority

Gordon Brown, J.D., Administration of Wills, Trusts, and Estates 124 (3rd ed. 2003). Revoking a Will.

There are four ways to revoke a will: (1) by completely destroying the will, could be by burning or just ripping it apart; (2) by executing a new will; (3) by the later marriage of a person who has already made a will unless that will is made in contemplation of the marriage (only works in Oregon, Nevada, South Dakota, Kansas, Wisconsin, Kentucky, West Virginia, Georgia, Massachusetts, Rhode Island, and Connecticut); and, (4) by divorce or dissolution of marriage.

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Some cases are not binding authority. Determining when a court's decision is mandatory or persuasive can be tricky, given the multiple jurisdictions throughout the country and the layers of courts within each jurisdiction. Our court systems are founded on the belief that there should be fairness, consistency, and predictability in judicial decision making. The doctrine that expresses this concept is labeled stare decisis. In essence, stare decisis considers mandatory, or binding, an existing decision from any court that exercises appellate jurisdiction over another court, unless the lower court can show that the decision is clearly wrong or is distinguishable from the case at hand.

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Federal Courts United States Supreme Court--The decisions of the

United States Supreme Court are mandatory authority in all courts, federal and state, when the decisions cover points of federal law.

United States courts of appeals--Decisions of the U.S. courts of appeals are mandatory on district courts and other lower courts within the circuit. Court of appeals decisions are persuasive authority in the other circuits, both for other courts of appeals and for lower courts. Federal courts of appeals decisions are not binding on state courts.

United States district courts--The decisions of U.S. district courts are mandatory on specialized lower courts if within the appellate jurisdiction of the district court (i.e., bankruptcy, territorial courts, etc.). District court decisions are not binding on state courts.

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State Courts State supreme courts, on decisions of state law--The decisions of a

state supreme court on that state's laws are mandatory authority for all lower courts in that state. State supreme court decisions will also be binding on federal courts that are interpreting the state's law under diversity jurisdiction.

State appellate courts, on decisions of state law--Decisions of state appellate courts, when adjudicating that state's laws, are mandatory on all lower courts in the state. (Note: In some states, the appellate courts are divided into circuits or panels. If this is the case, decisions of an individual circuit or panel most likely will be binding within the jurisdiction of that circuit or panel, and will be persuasive authority for other courts in the state. Check the court rules or case law in the state involved to understand how the system works.

State trial-level courts--State trial-level decisions will be mandatory authority only if the trial-level court exercises review over a lower court's decisions. For example, in many states, parties can have a review or rehearing of cases originally heard in the county courts, traffic courts, or municipal courts.

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When and why persuasive Factual similarity is key to choosing among

persuasive decisions; if the legal issues are the same, the decision based on the most closely matching factual situations will usually be the stronger persuasive authority. Other factors affecting the degree of persuasiveness of a decision include whether the opinion was particularly well reasoned, the stature of the jurist who authored the opinion, and the level of the court from which the decision came.

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• Federalism• The U.S. Constitution

– The basic source of all law– Federal and state constitutions

17Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

Constitutional Principles-10th Amendment-

• Federal government has only the powers granted to it in the

Constitution

• The states have all powers not granted to the federal government


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Sources of LawSources of Law

ConstitutionConstitution

CasesCases

StatutesStatutes RegulationsRegulations

Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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LegislativeLegislative JudicialJudicialExecutiveExecutive

CreatesLaw

EnforcesLaw

Branches of GovernmentBranches of Government

InterpretsLaw


StatutesLaws written by federal or state legislatures

and signed by President or Governor

Statutes are general policy framework

State laws may go beyond federal laws as long as they don’t conflict


RegulationsLegislatures delegate power to

administrative agencies to develop regulations

Rules and regulations add detail Guidelines are often issued to

clarify laws


Case LawThe published opinions of judges that arise from court cases where they interpret statutes, regulations, and constitutional provisions

Legal system depends on these decisions and the precedents they establish

Stare Decisis (Precedence)Controlling and persuasive authority


The Federal Court System• United States Supreme Court

• United States Courts of

Appeals– 13 circuit courts

• Federal District Courts– 98 district courts


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Federal Court SystemFederal Court System

United States Supreme Court

United States Courts of Appeals

United States District Courts


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Vertical PowerVertical Power

Court of Last Resort

Appellate or Intermediate Court

Trial Court


The U.S. Courts of Appeal1st 2nd 3rd 4th 5th 6th 7th 8th 9th 10th 11th DC FED

ME CT DE MD LA KY IL AR AK CO AL DC FED

MA NY NJ SC MS OH IN IA AZ KS GA

NH VT PA NC TX MI WI MN CA NM FL

RI VA TE MO HI OK

WV NE ID UT

ND MT WY

SD NV

OR

WA


Unit 2Submit the issue that you will be working on

for the legal memo. Make changes based on my feedback. Pick one of the three submitted in unit 1.

Summarize the statute in the assignment. One page. No gramatical mistakes.

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Have a great week!

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unit 1 1. my family 2 not me 3 your instructor 4

Documents

primary custodial parent

wyoming law

special education

pearson education

ethics primary authority

primary authoritiesbinding

florida law

federal law