1. CHAPTER FIVE INSTITUTIONAL SOURCES OF AMERICAN LAW
INTRODUCTION TO LAW
CHAPTER FIVE
INSTITUTIONAL SOURCES OF AMERICAN LAW

2. General Will discuss two general areas of law:
Legislative power-ability of legislative bodies to make laws and limits on that power
Precedent how courts make decisions in the absence of specific constitutional and legislative direction
Important to know certain definitions
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3. Definitions
Constitutional Law supreme law of nation, state or local government; does four things: 1) determines structure of government, ) dictates how laws are made, 3) divides power with other levels of government, 4) grants basic rights
Constitutional law has two purposes
Source of legislative power and
Limit on that power
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4. Definitions
Constitutional law limits legislative power United States Constitution limits federal, state and local government, state constitution limits state and local government. charter limits local government
Statutory Law laws passed by a legislative body in manner prescribed by applicable constitution (can be federal, state or local)
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5. Definitions
Civil Law system of law in which statutory law is very detailed and dictates what must be done in most situations; following detailed forms and standards very important
Common Law system of law where emphasis is on looking for guidance to what past courts did (precedent), also intent of parties more important than following form
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6. Definitions Unlike common law system, civil law system:
Does not make use of precedent
Does not use juries in non criminal cases
Avoids complicated rules of evidence
Places much emphasis on compliance with applicable statutory law
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7. Determining Validity Of Legislative Power
Courts are bodies which determine if legislative action is valid (constitutional) or invalid (unconstitutional)
All legislation is presumed valid until court rules otherwise burden of proof is on challenging party
Examine constitution closely as legislative restrictions may not apply to all levels of government
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8. Sources Of Legislative Power (Federal)
U.S. Congress can only pass laws (exercise power) in those areas allowed by Constitution
Article 1, Section 8 includes power to: raise and maintain an army and navy; coin money; regulate interstate commerce etc.(called “enumerated powers”-all other powers go to states)
Necessary and proper clause Congress can pass laws needed to carry out its powers
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9. Sources Of Legislative Power (State)
Two sources of state power to legislate
10th Amendment all powers not specifically assigned to federal government (see Article I, Section 8) to go to states
Police power may pass such laws as necessary for health, safety and welfare of citizens
Limit can take no unconstitutional actions, see also Article I, Section 10
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10. Sources Of Legislative Power (Federal and State)
Concurrent regulation States sometimes are allowed to pass laws in areas assigned to federal government; however federal government cannot pass laws in areas assigned to states
Test to determine if concurrent regulation allowed examine 3 items: ) Supremacy Clause; 2) U.S. Constitution and 3) area being regulated
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11. Sources Of Legislative Power (Federal and State)
Supremacy clause Art. IV. Sec. 2 when acting in areas assigned it by U.S. Constitution, laws passed by U.S. Congress displace conflicting state legislation, courts interpret this clause loosely, favor joint regulation
Express provisions U.S. Constitution some provisions U.S. Constitution specifically bar states from passing laws regulating areas assigned federal government (see art. I, Sec. 10)
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12. Sources Of Legislative Power (Federal and State)
Area being regulated (when allowed) Test
Is state able to regulate without interfering with federal purpose?
Is state able to regulate without retarding, impeding or stymieing federal purpose?
Is there a history of allowing concurrent regulation in this area?
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13. Sources Of Legislative Power (Federal and State)
Federal courts determine if concurrent regulation should be allowed examine all three items
Federal government (Congress) can pass laws which specifically displace concurrent regulation if it chooses (must be in area assigned fed. government by US Constitution)
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14. Sources Of Legislative Power (Federal and State)
Courts will try to find in favor of concurrent regulation (test)
Subject matter being regulated
Purpose of federal law
Will concurrent regulation frustrate federal purpose?
Intent of U.S. Congress in passing law-does federal legislative history indicate only federal regulation desired?
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15. Limits On Legislative Power (Ex Post Facto Laws)
See U.S. Constitution Art. I, Sections 9 & 10 bans laws which:
make criminal an act which was not when committed; or
impose a more serious punishment than existed at time of commission; or
make proof of guilt easier than when committed.
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16. Limits On Legislative Power (Ex Post Facto Laws)
Purpose to prevent legislative abuse
Only apply to penal or criminal statutes
Can act prospectively but not retroactively
Easing punishment or making proof of guilt more difficult allowed retroactively
Look to legislative intent (close scrutiny)
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17. Limits On Legislative Power (Bill Of Attainder)
Defined acts of a legislative body which apply to an individual or easily identified group and act in a manner which punishes without trial (see U.S. Constitution Art. I. Sections 9 and 10)
Purpose Similar to that banning ex post facto laws-prevention of abuse of legislative power
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18. Sources/Limits Legislative Power (Statutory Construction)
Defined Rights can be created or limited by court interpretation of constitutional provision or legislation
When applicable
Legislation appears to violate federal and/or state constitution (or existing statutory law)
Uncertain how constitutional provision applies to specific situation; or
Legislative language is unclear (if language unambiguous no court action)
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19. Sources/Limits Legislative Power (Statutory Construction)
Application of constitutional provision does a constitutional right exist? if so, court will define what it is
Does legislation conflict with constitutional provision, existing statute? Compare law which has been passed with constitutions, statutes (fed. state and local if applicable); can any conflicts be resolved?
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20. Sources/Limits Legislative Power (Statutory Construction)
Legislative language unclear-steps courts take
Look to legislative intent as reflected in debates surrounding passage
Look at Congressional Record or similar publications
Keep in mind substantive due process could result in law being stricken
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21. Sources/Limits Legislative Power (Administrative Agencies)
Defined Legislatively created agencies charged with handling complex and detailed area (e.g. communications, aviation, sales of stocks and securities)
Provided direction and power by “enabling legislation” spells out mission and grants authority to pass rules which have less force than statutory law but more force than common law
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22. Sources/Limits Legislative Power (Administrative Agencies)
Limits on administrative agencies ability to make regulations
Same restraints as legislative bodies (no violations of constitutional law, cannot conflict with existing statutes, etc..)
Administrative Procedure Act (identifies process by which regulations must be made)
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23. Courts, Power To Make Law (Precedent)
Defined policy whereby courts look to decisions of previous courts for guidance in handling matters (also known as doctrine of “stare decisis”)
When used
In absence of constitutional or statutory law; OR
When constitutional or statutory law unclear (one is not certain how it applies)
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24. Courts, Power To Make Law (Precedent)
How precedent operates (in establishing precedent higher courts decisions must be followed by lower courts)
Federal law US Supreme Court binds US Circuit Courts of Appeal which bind Federal District Courts
State law State Supreme binds state Court of Appeals which bind trial courts
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25. Courts, Power To Make Law (Precedent)
Mixed issues of federal and state law-Highest federal court binds (or if case confined to state courts highest state court sets precedent)
For precedent to apply case being heard must be factually similar to case being suggested for use as precedent (Facts must be “on point” not “distinguishable”)
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26. Courts, Power To Make Law (Precedent)
Precedent/Doctrine of stare decisis not always binding (courts can ignore or change precedent but risk reversal on appeal by doing so)
When precedent can change
To prevent unjust result
Where outmoded and not in keeping with societal norms (legislative action preferred method of altering precedent)
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27. Courts, Power To Make Law (Rule Of Case/ Rule Of Law)
Rule of case factual situation in a given case (is the case similar to that being heard?)
Rule of law principle for which a case stands (holding)
Once rule of case is proven then rule of law will apply (if facts are similar precedent should apply)
Case can have more than one holding
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28. Courts, Power To Make Law (Dictum)
Defined Language in a court’s opinion that is not necessary to support the decision, side comments or remarks made by the court
Dictum has no value as precedent but can be considered persuasive as opposed to binding
Do not worry about this definition, courts often argue over what is dictum and what is precedent
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29. Courts, Power To Make Law (Applicability Of Court Decision)
When does court decision take effect and to whom does it apply can be either
Prospective binds parties, all pending cases (where final verdict has not been reached) and all future cases
Retroactive binds all of the above and allows re-opening of previously decided cases (highly disfavored due to potential unfairness and likely disruption)
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30. Courts, Power To Make Law (Applicability Of Court Decision)
Test to determine if retroactive application should be allowed (civil)
Has new principle of law been established?
Would retroactive application help or hinder that purpose?
Will retroactivity cause hardship or unfairness?
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31. Courts, Power To Make Law (Applicability Of Court Decision)
Test to determine if retroactive application should be allowed (criminal)
What is purpose to be served by new rule? What does it seek to accomplish?
To what degree did law enforcement officials rely on the old rule?
What effect will new rule have on administration of justice?
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32. Courts, Power To Make Law (Applicability Of Court Decision)
Test to determine if retroactive application should be allowed (criminal)
Give retroactive impact to any rule which will aid truth finding function and/or raise questions about accuracy of a finding of guilty
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33. Courts, Power To Make Law (Absence Of Precedent)
Defined Unique factual or other situation where past cases provide no guidance to the court hearing the matter
In absence of precedent courts look to
Laws of other jurisdictions (neighboring states, major policy making states)
Anglo-Saxon legal heritage
Public policy (community sense of fairness as determined by judge)
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34. Courts, Power To Make Law (Conflicts of Law)
Defined-situation where law of more than one jurisdiction (state) could apply to case Usually arises where events connected to law suit took place in more than one state
In conflicts cases court hearing case must decide what substantive law to use; forum court always uses its own procedural law
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35. Courts, Power To Make Law (Conflicts of Law)
Modern approach is to use “significant relations” (also known as “center of gravity”) test
Factors in contracts cases: 1) Where K was negotiated; 2) Where K was signed; 3) Where K was to be performed; 4) Subject matter of K and where located; 5) Intent of parties; 6) Residence of parties
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36. Courts, Power To Make Law (Conflicts of Law)
Factors in tort cases: 1) Where parties reside; 2) Where actions which constituted tortious behavior took place; 3) Where final act that allows imposition of liability took place
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37. Courts, Power To Make Law (Limits-Full faith and credit; Comity)
Concerns enforcement of foreign judgments (must person who won lawsuit in another state or country start entirely new lawsuit in order to collect that judgment?)
Judgment creditor allowed to avoid trial de novo if requisites of full faith and credit or comity are met
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38. Courts, Power To Make Law (Limits-Full faith and credit; Comity)
Full faith and credit applies between states, allows enforcement of judgments from other states (see U.S. Constitution Art. I, Sec. 4)
Must enforce judgment from other states unless to do so would
Violate federal or state constitutional rights; or
Seriously offend public policy of enforcing state
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39. Courts, Power To Make Law (Limits-Full faith and credit; Comity)
Comity applies to judgments from other countries, done as matter of international courtesy and to insure reciprocity
Can enforce judgment from another nation unless doing so would offend public policy
Ask if trial were fair, did it have safeguards similar to those required for procedural due process?
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