THE SOURCES OF THE LAW

Professor Allison Connelly Associate Professor UK College of Law

THE THREE BRANCHES OF GOVERNMENT & SOURCES OF LAW THE FEDERAL GOVERNMENT

UNITED STATES CONSTITUTION

LEGISLATIVE BRANCH EXECUTIVE BRANCH J U D I C I A R Y B R A N C H CONGRESS PRESIDENT

STATUTES ADMINISTRATIVE AGENCIES CASES, CIVIL & CRIMINAL RULES

REGULATIONS THE COMMONWEALTH OF KENTUCKY KENTUCKY CONSTITUTION

LEGISLATIVE BRANCH GENERAL ASSEMBLY STATUTES ADMINISTRATIVE AGENCIES CASES, CIVIL & CRIMINAL RULES EXECUTIVE BRANCH GOVERNOR JUDICIARY BRANCH COURTS

REGULATIONS

THE SOURCES OF THE LAW

I. Law: A body of rules of action or conduct prescribed by controlling authority, and having binding legal force. United States Fidelity and Guaranty Co. v. Guenther, 281 U.S. 34 (1930). The American Legal System consists of a collection of rules that governs behavior in society. The American Legal System allows both consistency, which is necessary to predict the probable outcome of ones behavior, and flexibility, which accommodates change.

A. B.

C. II. A.

Rule of Law: A rule is a formula for making a decision.1 Two Primary Sources of American Law: Legislative & Judge or Court Made Legislative law (General to specific) 1. Definition: A prescribed general rule expressed in verbal form enacted by a lawmaking body, such as Congress or the Kentucky General Assembly. Laws explain what is required, permitted or prohibited behavior in advance of the action. Legislation includes the U.S. Constitution, each states constitution, including the Kentucky Constitution, and federal and state civil and criminal statutes. Although federal and state administrative regulations are established by the Executive Branch, they are based on an enabling statute passed by the legislature. The enabling statute grants the executive branch the authority to make certain rules to fill in or implement a statute. Constitution: The written instrument agreed upon by the people of the Union or of a particular state, as the absolute rule of action and decision for all departments (i.e branches) and officers of the government in respect to all the points covered by it, which must control until it shall be changed by the authority which established it (i.e., by amendment), and in opposition to which any act or ordinance of any such department or officer is null and void. Blacks Law Dictionary 310 (7th ed. 1999). a. The source of our system of federal and state government that prescribes the rights of individuals in relation to the state, and in the U.S. Constitution, the relationship between the federal government and the states.

2.

3.

4.

Richard K. Neuman, J., Legal Reasoning and Legal Writing, Section 2.1 at 15 (3rd ed., 1998). 4

b.

Constitutions set the parameters of a government so constitutions are written in very general language and have the least specificity Constitutions have the longest life and are the hardest to amend. To amend the U.S. Constitution, 3/4ths of state legislatures must approve the amendment.

c.

5.

Statutes: A formal written enactment of a legislative body, whether federal, state, city or county. Blacks Law Dictionary 1410 (7th ed. 1999). a. Statutes are more specific than Constitutions and are written and enacted by Congress or a states legislative body as a solution to a major problem. Statutes can be civil or criminal in nature. Statutes are easier to amend than a Constitution. The same procedure used to enact the statute is used to repeal it.

b. c.

6.

Regulations: A regulation implements the policy adopted in a statute.A rule or order having force of law issued by executive authority of government. Blacks Law Dictionary 1286 (7th ed. 1999).2 a. Most regulations are issued by agencies located in the executive branch. Agencies issue regulations to guide the activity of those regulated by the agency and of their own employees and to ensure uniform application of the law. Blacks Law Dictionary 1286 (7th ed. 1999).

Courts also have the power to make rules governing procedure and practice in its courts. For example, the Kentucky Supreme Court has developed the Kentucky Rules of Civil Procedure, the Kentucky Rules of Criminal Procedure, and rules governing attorney and judicial discipline. 5

b.

The legislative body must give the executive agency the authority to make and implement regulations in an enabling statute. Regulations are promulgated by administrative agencies that are responsible for administering the statute. Usually the agency has an expertise in the particular field.

c.

d. B.

Judge or Court Made Law: Common Law or Case Law (Specific to general) 1. 2. The Common Law is composed of decisions by courts in individual cases. Common law has its beginnings in specific facts. The court only resolves the specific dispute between the parties with its individual facts. Judges make law by applying and interpreting the law on a case by case basis To decide an individual case, the court uses earlier cases involving the same or similar legal questions and the same or similar facts as precedent. In this way, the court is able to infer a rule from decision in past cases. a. The use of precedent is the hallmark of the common law system. This is known as the principle of stare decisis (to stand by things decided.) Stare decisis means that past judicial decisions are generally binding for disposition of factually similar present controversies with the same material facts. Stare decisis requires a court to follow the precedent established by the same or higher level court in the same jurisdiction with the same material facts. Such precedent is called binding authority. 6

3. 4.

b.

c.

d. e.

Like cases are treated alike which creates consistency and stability in the law. As such, an appellate court decision has two purposes: 1) to authoritatively settle the controversy before it (res judicata); and 2) as precedent. If the case presents different facts that could require a different outcome, the court can distinguish the case before it from a prior case. These distinctions can create new rules. Generally speaking, the United States Supreme Court, the U.S. Courts of Appeals sitting en banc, and the Kentucky Supreme Court can overrule a case or a line of cases. When the highest court overrules a prior decision, the conclusiveness of the earlier decision as settlement of the particular controversy isnt affected, but the overruled decision is no longer authoritative precedent. Appellate courts can also reverse a lower courts judgment in a particular case on appeal because the lower court reached an erroneous result. Decisions from other jurisdictions are not binding authority on the court, but can be persuasive authority where there is no precedent.

f.

g.

h.

i.

j.

C.

The Hierarchy of Legal Authority 1. As with our court systems, laws have a hierarchal arrangement. Some laws carry more weight than other laws.

2.

Article VI(2) of the United States Constitution states: The Constitution, and the Laws of the United States which shall be made in Pursuance thereof. . .shall be the supreme Law of the Land; and the Judges 7

in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 3. Called the supremacy clause, this clause means that federal law prevails over state law if there is a conflict between the two. There is also a hierarchy of authority within the federal system and each state system The hierarchy in the Federal System is: a. b. c. d. United States Constitution Federal Statutes Federal Regulations issued by federal administrative agencies Federal Case Law

4. 5.

6.

The hierarchy in a State System is: a. b. c. d. e. The United States Constitution whenever a federal question is involved The State Constitution State Statutes State Regulations issued by state administrative agencies State Case Law 8

2.

Types of Authority a. b. There are two types of legal authority: primary authority and secondary authority. Primary sources are authoritative statements of legal rules by governmental bodies. They include opinions of courts, constitutions, legislation, administrative regulations and opinions, and rules of court.3 Secondary Sources are materials about the law that are used to explain, interpret, develop, locate or update primary sources. The major types of secondary sources are treatises, Restatements, Looseleaf services. . . law reviews and other legal periodicals, legal encyclopedias, American Law Reports (A.L.R.) Annotations, and legal dictionaries.4

c.

3 4

Roy M. Mersky & Donald J. Dunn, Legal Research Illustrated, Sec. B (8th ed. 2002). Id. 9