unit 1 professor mary v. white 1. your instructor after excess grading activity 2

Unit 1 Professor Mary V. White

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Your instructor after excess grading activity

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IntroductionsI’ve told you a bit about myself in the introductory

email and discussion board. Questions?

Please continue to share about yourself as you see fit in the discussion board – where do you live, what do you do for fun, what are your goals in work and life? Why are you in this class…? What is your experience with the law?

Class will be WAY more fun if we know one another a bit, and can be supportive of one another.

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Housekeeping…Call or email me if you need help: [email protected] or (206) 235-6463

Respect my time zone – it’s 3 hours earlier on the West Coast than East

Check the announcements page and your email!

Deadline Tuesdays 11:59 PM –discussion about changing this?

Always spell check, have someone read your work. I expect you to write like a graduate student. 4

More housekeeping…More housekeeping…Academic calendar is in docsharing; keep

track of deadlines.Examples of final projects earning an “A” are

in docsharingGrading rubrics are in docsharingPlagiarism guidelines are in docsharing –

BEWARE!Research guides are in docsharingWritten assignment guidelines are in

docsharingCourse materials = E-text and Bluebook! 5

Policy on late workLaw firms and courts don’t accept late work.

Missed legal deadlines result in disaster. I don’t want to either; it’s not good practice for you and makes my life hellish...

The late policy has been revised and is in

docsharing. It applies to all School of Legal Studies students! 5% off, and extenuating circumstances, and there are limits on HOW late… NOT ACCEPTED BEYOND 3 UNITS..

Kaplan does not allow me to let you re-do submitted work – once you put it in the dropbox, it’s done.

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More on submitting workI try to return your work by Sunday night, with

edits, comments and suggestions. Review my input, particularly with ongoing projects and to understand expectations

READ MY COMMENTS ON YOUR WORK!!!!! I spend time trying to help you become a better writer, and to improve your analytic, problem solving skills. Take advantage of the attention!! Don’t let all the colored “ink” freak you out.

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Earning pointsWeekly discussion board = 20 pts/week. Contribute 4- 5 times or more over 3+ days in a thoughtful manner. Answer the primary question and then enjoy discussions and responses with your peers and me. (See the grading rubric.)

Seminars 5 points/week; can be made up if missed with a specific assignment. But NOT on a regular basis. Drop the class if you have to work during seminar every week.Course project submissions are worth around 30 pts/week

Other writing assignments can be worth up to 75 pointsSome teamwork assignmentsAlways check the weekly “to do list” on class page

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Earning points, continued…Other assignments over the course include a Bluebook

quiz, Bluebook exercise, case brief, the culminating legal memo, and a few research exercises.

Do not overlook assignments. Sometimes they are listed in odd places, for example under “reading.” I will try to give you “heads up.”

The Bluebook can be intimidating; start looking at it now. Or yesterday.

Write as professionally as you can. Find a second pair of eyes, and READ YOUR WORK ALOUD.

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Look in docsharing at the KU Written assignment guidelinesYou need a cover page for written work that

includes name, date, class, assignment. There are examples in docsharing!

Anything you submit should stand on its own and have an introduction, body, and conclusion of some sort. It should make sense to a person just picking it up who is not already familiar with the class or assignment.

Always always always use the basics – spell check, grammar, mechanics…read it aloud.

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Is this a hard class?Most students say this class is challenging, and one

of their more demanding classes, but they also say that it is rewarding, and they learn a lot, particularly about using legal format and citation.

Most students have told me they see me as a tough but fair instructor when it comes to grading written work.

My goal is to help you succeed and find respect and fulfillment in your professional lives. This means you must become a competent, polished writer, and learn to avoid any glaring or embarrassing mistakes such as bad grammar, spelling errors, etc., etc..

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Rise above the riffraff and become a good writer…

12 Image: digitalart/ freedigitalphotos.net

Course project:Legal Memo

We will be writing a internal legal memo this semester. Almost every unit you submit a piece of it…

The first step is to work on the issue that you will find the answer(s) to

You are to determine the facts of your situation. (Not all projects are fact-heavy…)

The issue should be answerable with an “Yes” or “No,” although there may be sub-parts to the answer... (yes, when… or no, except when…)

It should begin with the “whether”.

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COURSE PROJECTYou are not picking a new project, topic or

memo every week…!!! MANY STUDENTS GET CONFUSED.

Most units in this class ask you submit a part of the final project. The first two units you are picking and refining the topic. Then you are planning your research. Then you are outlining portions of the memo… in the end you have a final product, on the same topic you began with.

Any assignment labeled “project” refers to this ongoing, single research project!!!

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These are not properly worded legal issues:

“The 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.”

“After a sex offender has served their term, they can be held on a civil commitment – is that legal…?”

“Can I sue Toshiba for a lousy netbook I got at Costco?”

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Good examples of properly worded legal issues for a legal memo:

Whether under Florida law a custodial parent may relocate the child for the parent’s educational pursuits, when noncustodial parent has significant residential time with the child?

Whether it is an unconstitutional 4th Amendment violation for law enforcement to install GPS tracking devices on suspect’s cars for extended periods of time, and to use the information obtained as a part of criminal investigations?

Whether under federal law a group of people may assemble within 250 feet of a private funeral to protest governmental actions? 16

Unit 1 writing assignmentProvide specific examples and a a summary of at

least one primary and one secondary secondary authority.

What is a primary and/or secondary authority?

Please note it is not the SAME as persuasive vs. binding authority, although you should get that concept and the relationship between these.

Class: Is a city law on shoplifting primary or secondary?

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Primary Authorities(binding within their jurisdictions*)AUTHORITIES SOURCE

Cases* (some exceptions) Judiciary

Constitutions Legislature

Statutes Legislature

Administrative regulations Administrative agencies

Executive orders Executive branch

Treaties Executive branch

Secondary Authorities(persuasive, generally)AUTHORITIES

EncyclopediasLaw review articlesPeriodical

publicationsTreatises and textsDictionariesAttorneys general

opinions

RestatementsAnnotationsForeign sourcesForm booksPractice guides (such

as jury instructions or opinions on ethics)

Example of primary authority properly cited:

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 in another case 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 directly 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. 23

State CourtsThe 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.

The U.S. Supreme Court can only intervene or overrule a U.S. State Supreme Court decision on a constitutional issue or a “federal question” involving interpretation of a federal law

If the the State decision is based solely on the state constitution or a state statute, the U.S. Supreme Court has no jurisdiction and cannot hear the case.

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State appellate courts 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.

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State trial-level and local / limited jurisdiction courts

State trial-level courts—their decisions are 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. Those courts do not review lower court rulings and aren’t directly binding in any other cases, whether or not appealed.

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Example: Seattle City Code is primary authority but a city trial on violations the city code won’t bind other courts.

Seattle Municipal Code Title 25 - ENVIRONMENTAL PROTECTION AND HISTORIC PRESERVATION1 Chapter 25.08 - Noise Control SMC 25.08.225 Residential disturbance. "Residential disturbance" means a gathering of more than one (1) person at a residential property located in a single family or multifamily zone, as defined in SMC Section 23.84A.048 between the hours of ten o'clock (10:00) p.m. (eleven o'clock (11:00) p.m. on Friday and Saturday nights) and seven o'clock (7:00) a.m. at which noise associated with the gathering is frequent, repetitive or continuous and is audible to a person of normal hearing at a distance of seventy-five (75) feet or more from the property. (Ord. 122311, Section 103, 2006; Ord. 121192, Section 2, 2003.)

MEANING – A city court might find you guilty of violating this law for a loud party late at night. Your friend, charged with another loud party can’t cite the courts ruling in you case as binding “authority.” 27

What makes a persuasive authority so 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 reputation of the judge, and the level of the court from which the decision came.

Consider the AGE of the case or precedent28

• Federalism• The U.S. Constitution

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

–THIS SHOULD BE A REVIEW OF WHAT YOU LEARNED IN HIGH SCHOOL CIVICS OR GOVERNMENT!!!!!

• Federalism• The U.S. Constitution

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

–THIS SHOULD BE A REVIEW OF WHAT YOU LEARNED IN HIGH SCHOOL CIVICS OR GOVERNMENT!!!!!

29Yell / 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 (think Dept. of Education…, C.D.C…)

Rules and regulations add detail Guidelines are often issued to clarify and implement laws


Case LawThe published opinions of judges that arise

from court cases where they interpret statutes, regulations, and constitutional provisions.

Case law may be binding (controlling) or persuasive but it’s always primary authority.

Legal system depends on these decisions and the precedents they establish; legal research focuses heavily on analysis of previous cases

Stare Decisis (Precedent)35


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 System

Federal 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 Appeal (“federal circuit courts”)

1st 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


THINK about how many types of courts exist.

Where do you find information about court cases and court opinions? Are they all published? Your state DMV/ DOL will have administrative hearings available if you appeal a license suspension….

Your state Dept. of Education will have published decisions of administrative law judges on special education cases…

There are constitutional, “due process” rights associated with certain administrative hearings, for example about education (IDEA), drivers licensing, property tax increases, SSDI, etc., etc..

About Unit 2

Submit 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.

Reading 3 chapters, reviewing two websites & a PPT

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

Group work on 42 USC – by team 41

Have a great week!Time to get your feet wet.

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unit 1 professor mary v. white 1. your instructor after excess grading activity 2

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