LS100 Eight Skills Prof. Jane McElligott

 There are many sources of law such as cases, statutes, federal and state constitutions, federal administrative regulations, and books that explain this law.  Sources of law are also referred to as “authority”; authority is anything a court can rely on to make its decision.  In each case you read, you’ll see that the court cites relevant statutes, precedent cases (preceding relevant cases the court is relying upon), and applicable rules and regulations. These sources are primary sources of law (primary authority) because they are the law itself. Any actual law issued by a court, legislature, or administrative agency or any other governmental body is primary authority.  Primary authority has the most weight and is cited by the courts in the case law to provide a basis for their decisions. If a higher court in a state decides an issue a particular way, then all the lower courts in that state must follow that decision; this is known as following precedent, which means to follow previously decided relevant cases.

Primary sources of law include:  Cases  Statutes  Administrative Regulations  State and Federal Constitutions  Executive orders (orders issued by the President)  Treaties (agreements entered into between countries)

 Secondary sources of law (secondary authority) are NOT the law itself, but they explain the law and are useful for researching the law.  Secondary sources such as law review articles, legal encyclopedias, and law dictionaries are helpful to use to understand or to research the law, but they do not have the weight that primary sources have, so you always want to rely more on the actual law itself in any briefs or motions to the court.  In legal writing, be sure to cite the actual law (primary sources), not just explanations of the law (secondary sources). It’s fine to cite to some secondary sources that would be helpful to explain the concepts for your reader, but be sure to cite to primary law as well.

Secondary sources of law include:  Legal encyclopedias  Law reviews  Treatises (in-depth books on specialty areas of law)  Law dictionaries  Annotations  Practice Guides and Form Books  Legal Newsletters

 Primary sources of law (cases, statutes, administrative regulations) are made by the three branches of government (legislative branch, executive branch, and the judicial branch). These three branches exist in the federal government and in each state government.  Let’s look at the United States Constitution, Articles I - III, to see how these three branches were created in the federal government: United States Constitution.United States Constitution

 Article 1 of the Constitution created the Legislative Branch (Congress), which consists of the Senate and the House of Representatives – this is the law-making branch that enacts Acts and statutes, such as the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (which prohibits discrimination in employment on the basis of race, color, sex, religion, and national origin), the Social Security Act, and the Environmental Protection Act.  When Congress enacts a major Act that is very comprehensive and important, such as the major Acts listed above, Congress will also include an enabling act, which establishes an administrative agency to interpret and enforce the Act. For example, the EEOC (Equal Employment Opportunity Commission) is the federal administrative agency that interprets and enforces the ADA, Title VII, and several other non-discrimination acts. Administrative agencies issue administrative regulations to further define the Acts and issues administrative rulings on specific legal issues regarding the application of these Acts.  Here’s a great overview of the Legislative Branch.Legislative Branch

 Article II created the Executive Branch, headed by the President. The President and his Cabinet (the appointed heads of key Departments such as the Department of State, Department of Homeland Security, Department of Justice, etc.), are the “Enforcers” – they enforce the laws issued by Congress and the federal courts.  Some key enforces are the Federal Bureau of Investigation (FBI); Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and the Drug Enforcement Administration (DEA), all of which organizations are part of the Department of Justice. For a list of all the agencies in the Department of Justice, see: Department of Justice Agencies.Department of Justice Agencies  The Department of Homeland Security includes the Transportation Security Administration (TSA); United States Immigration and Customs Enforcement (ICE), United States Coast Guard, United States Customs and Border Protection, Federal Emergency Management Agency (FEMA), and the United States Secret Service. For all the agencies of Department of Homeland Security, see: Organizational Chart.Organizational Chart

 The President is the Commander-in-Chief of the Armed Forces and can enter into treaties and can issue Executive Orders. “An Executive Order (EO) is a directive issued to executive-level agencies, department heads, or other employees from the President under the President's statutory, or constitutional powers.” Presidential Executive Orders. Presidential Executive Orders  Here’s an example of Executive Orders signed by President Obama in January 2009, which order the closure of the Guantanamo Bay detention facility and ban the use of torture in the interrogation of terrorism suspects by requiring that “the Army field manual be used as the guide for terrorism interrogations.” Obama signs order to close Guantanamo Bay facility.Obama signs order to close Guantanamo Bay facility  Here’s a good overview of the Executive Branch.Executive Branch

 Article III created the federal court system, made up of the United States Supreme Court, the United States Courts of Appeal, and the United States District Courts. The courts interpret and apply the laws enacted by the Legislative Branch. For an overview of the federal court system, see the “Federal Court System Power Point,” which I ed to the class and uploaded to Doc Sharing.  Note that the three branches of government exist in each state government as well as at the federal level. At the state level, the state legislature is the legislative branch; the Governor, District Attorney, and the major state executive departments make up the executive branch, and the state courts make up the judicial branch of the state.  Here’s a great overview of the Judicial Branch.Judicial Branch

Here are some websites to check out for more information on primary and secondary sources of law:  Introduction to Primary Legal Sources Introduction to Primary Legal Sources  Using Secondary SourcesUsing Secondary Sources  Secondary Materials: Restatements, Formbooks, and Treatises Secondary Materials: Restatements, Formbooks, and Treatises  Law Library Research Guide: A Dictionary for First Year Students Law Library Research Guide: A Dictionary for First Year Students  Secondary Sources: An Introduction Secondary Sources: An Introduction