Legal Writing Fall 2012: Professor Kelly Curtis Law: That authority which we hold to be authoritarian, governing, regulating

and adjudicating human interactions in a civilized society 3 primary sources of law: 1. Legislation 2. Administrative action 3. Judicial action/case law Types of authority Primary=the law itself (3 primary source of law) Secondary=commentary on the law Primary sources Constitution= a document that established a system of gov. and defines the boundaries of authority granted to the gov (limits the power of gov)Is pre-eminent/ relatively few cases actually touch on const. issues can never lessen rights given by fed. const. but can give you greater rights) state const. are usually more progressive/ In Ohio, we can amend const relatively easily Statutes= any act by a leg. that prescribes and governs conduct/ once enacted are an independent source of law/ delegates rule making authority to Adm. agencies are responsible for enacted laws and carrying out these laws in states/adm. law is exceptionally detailed Legislature has the exclusive const. authority to enact statutes Congress-fed and General Assembly-state: both are bi-cameral

Secondary sources Very helpful to explain the law when confused (great tools),very persuasive, non-binding ( may follow but not req.) NEVER cited in documents/only the law itself is cited Examples include: Treatises=vast scholarly works on a subject of law/ restatements Hornbooks=mini-treatises for students/ legal encyclopedias Authority= any cited source a court or an attorney uses to support of oppose a legal proposition American Jurisprudence=Am. Jur Corpis Juris Secundum=CJS

Functions of the court: Resolve a past controversy/dispute b/w litigants Establish a rule of law for future cases Intermediate court may overrule (reject the decision or argument of) Int. court cases Decision Interpreting enacted law True that courts can't rewrite a statute but have to interpret vague or ambiguous lang. from statutes Have to determine whether a given law or statute applies to the facts (explain or determine if or why it applies) Once a court interprets it, it is the law (until legislature amends ruling and created another statute)

Hierarchy is Ohio Supreme Court= 7 justices Court of appeals= 12 appellate districts (some large counties have an entire district) Court of Common Pleas Holding: courts resolution of the legal issue before it but constrained to the facts of the decided case Leg. significant facts: affects the outcome of the case/ matters to the courts in resolving the case

Civil law: every legal issue is controlled by a written statute (Judges find the right code to apply to facts/cases) France, Spain, Louisiana Constitutions are diff but a grouped into legislature created in a legislative precedence Constitutions, Case law and enacted law All the branches of gov have the power to create and publish law Leg creates statutes Exe creates adm. regs Jud creates jud. action

The Law Enacted Constitution Statutes and Codes Ordinances Charter Treaties Regulations Decrees Licenses Case Common Law Decisions interpreted

Case Law: Published cases are important sources of rules that can either be expressed or implied, resolves ambiguous language in a statute or a rule that alters or informs an existing common-law principle Express Rules are clear and manifest in the body of the opinion o Describes a principle of law employed or adopted by the court to resolve the legal issue Implied Rules are embedded w/in the body of the opinion but aren't articulated o Can have the same authoritative weight as expressed rule o Lawyers must extrapolate the missing legal principle from expressed parts of op

Enacted Law: Rules established by an authoritative act of a legislative body that are binding on all legal entities w/in the jurisdictional reach of that legislature. Rarely unexpressed. Superior to common law Common Law: Created exclusively by judiciary and may only be created in the absence of ENACTED law (If there is a statute, judiciary may not create new law that it feels is better) CL may be abrogated (repealed) by a leg. act (contracts, torts and properly are largely common) Created precedence so that we didnt descend into chaos (a binding prior court decision) Precedential value= how much weight given to a particular precedent Almost all appeal cases focus on whether or not a precedent is binding to cases Stare decisis= "let the decision stand" requires a court to reach the same decision that it did in a factually similar prior cases (courts are strongly encourages to follow previous rulings) *Only way to have fairness and justice in CL/ Designed to promote predictability and reliability Court does have the power to deviate from stare decisis: they have the power to correct past injustice, protect people and reflect contemporary issues

 Precedent= prior decision itself Weight of auth.= degree to which cited auth. source controls the resolution of legal issue 1. Judge faces w/ controversy 2. Determines facts (may do alone or w/ aid of jury) 3. Decides what the law is 4. Looks to prior decision (if they exist may be bound to follow) Keep below separate and remember that they never intersect! *Common law= announcing judge made law (purely made by judges/ no leg. involved) *Enacted law can take away common law ( legislated) *Case law=anything that comes from a judge (cases that interpret enacted law) Characteristics prior case must have to be a binding precedent 1. Type of auth. (primary/secondary) 2. Is it binding? 3. Is it still good law? (abandon, overruled, reversed) expressed or implied 4. Same legal issue 5. Sufficiently similar facts 6. Higher court in same jurisdiction (made the decision) 7. Trial court opinions can never be binding 8. Intermediate court opinion= mandatory for trial courts subordinate to them in court structure 9. Court of last resort-mandatory for every court below them 10. Jurisdiction can be a geographic place or power of a court to hear a case 11. Rules stated in op. are mandatory ONLY in courts jurisd. 12. If no mandatory authority only persuasive, use the most prestigious court first Legal Tests: What kind of rule is this? (how is this rule structured?) * Many rules reflect more than one rule structure An inquiry that determines whether a party has satisfied their burden of proof to support or defend against a cause of action or criminal charge 1. Element Test: require the court to consider several parts or subparts (elements) of a rule in order to satisfy the whole. Party must satisfy each to meet their burden of proof Conjunctive: each element is required for burden of proof Disjunctive: when any one sub-part of multiple sub-parts that establish a certain result is satisfied

2. Balancing Test: consists of several factors that a court will weigh to reach its conclusion. Court will balance several considerations, looking at the quality or quantity of evidence supporting each. Balance countervailing factors (NOT the factors test) 3. Totality of the Circumstances Test (Factors Test): used to determine the outcome of cases. Unlike the above tests that have a set # of sub-parts, this test requires the court to consider all of the relevant circumstances of a particular case and not any one circumstance. Must balance competing interests 4. Defeasible Rule: rule w/ an exception (watch out for layered negatives) 5. A rule w/ NO elements, factors or other sub-parts: simple declarative statements *Imply and infer are often confused. Imply: Indicate or suggest without being explicitly stated. In other words, it's indirect i.e. "Are you implying that my client is dishonest?" or "The text implies that each house must take its decisions by majority vote". Infer: To draw conclusions based on evidence or logical reasoning rather than from express statements or explicit statements (replace with read between the lines") i.e. "What did the question infer?" and "One cannot directly infer one from the other". Dicta: any discussion in an op. that is irrelevant/unnecessary to resolution of case before the court (never mandatory but is incredibly persuasive to lower courts) When reading cases: Be cautious an take good notes Add a section for dicta Remember that prof. derive hypos from dicta Dicta will become law at some point

Forms of reasoning: A. Rule based/ Deductive: Most commonly used form, Deduce a conclusion from stated legal premise or rule 1. Takes a rule (already established) and applies to a certain fact Broad to specific Major Premise: The answer is X if there are certain facts present

Minor Premise: All of the required facts are present Conclusion: The answer is X Steps: 1. Look at the factual situation and identify a relevant authoritative major premise 3. Formulate a truthful minor premise in the language of the major premise 4. Draw a sound conclusion (Premises must be true for conclusion to be true) Watch for: 1. Ambiguous: words that may have two or more identifiable meanings (the word bar) 2. Vague: words that may have meanings that shade continuously from one to another with no line of demarcation (i.e. orange and yellow) 3.Sentence ambiguity: when groups of words lack clarity (the house had a gazebo in the yard which was yellow) B. Inductive Reasoning: Specific to Broad (these are opposites) Induce a conclusion by drawing an analogy b/w the facts of the client's case and the facts in controlling authority 1. Analogical Reasoning: reaches a result by showing similarity The answer is X B/c this situation is like the situation in prior cases And in those cases X was the answer Steps: 1. Identify a base point situation from which to reason. Base consists of the relevant facts together w/ a decision about what someone should do BP: can use precedents of any court even if not binding or can use hypotheticals cases or a holding 2. Identify factual similarities and difference b/w the precedent and the problem case 3. Judge whether the factual similarities or the differences are more important and then whether to follow or distinguish the precedent 2. Converse Analogical Reasoning: Distinguishes negative authority Although the result in two prior cases was X X should not be the result in this case B/c of certain legally significant differences 3. Narrative Reasoning: Where undue influence is part of the rule

Consequences to minor not part of rule but part of policy behind rule

4. Policy based: reaches the result that is best for society (has no indep. legal force but can supplement other reasoning) The answer should be X B/c X furthers the policies underlying This particular law or central to this area of law (ONLY used for Buttressing=reinforcing/supporting an argument that is already supported by primary authorities) A complete "policy supported" argument example: X is the answer not only b/c the authorities had X result But also b/c X result sacrifices policies That are important to a particular area of law Structure of a Deductive Argument using rule-based reasoning: Objective is to describe the controlling law and then explain how the facts of a case, when applied to the law, compel a conclusion 1. State the point of the analysis or conclusion Point sentence introduces the reader to topic or point of analysis May also describe general reasons that support the argument conclusion 2. State the rule 3. Explain the rule (if necessary) Explain how the rule is derived UNLESS its clear, controlling and unequivocal If derived from judicial op or from a variety of op, establish how it was built

If derived from piece of enacted law or statute/ reg, explain any ambiguous or vague provisions in the law 4. Apply the law to the facts 5. Conclude To complete the argument, the relevant facts from the case are applied to the rule to deduce a conclusion Demonstrates how the acts connect to the stated legal principle Once the rule (major premise) is explained/described, the arguments continues w/ minor premise State w/ specificity the facts that are required under the rule to deduce a conclusion

 Explain how the rule operates under the stated facts C. Deductive/Inductive Combination Apply the relevant facts from a case to the rule to deduce a conclusion and the facts from a precedent are compared tot eh facts of the client's case to induce a conclusion Rule Synthesis: Process that describes a complete expressed or unexpressed rule from its component parts. Some ops reach a conclusion w/o expressly articulating a rule. Some express it but not fully. Others op express a piece of rule but other opinions are needed to complete the legal thought 1. Never change the wording of rules from Const., statutes and adm. regs 2. Don't change the wording of a much-cited historical rule. Write any modifications second 3. Synthesize the applied rule if it makes a clear, succinct, and coherent statement of the applied rule. Don't synthesize if it forces you to write a long, overly complicated, run-on sentence for a rule Borrowed rule: When the court borrows or adopts a statement of the applicable rule of law on the issue that was found in earlier authorities

1. 2. 3. 4. 5. 6. 7. 8.

Rule of law that may be applied to make decision and it part of the holding Case becomes one more precedent on the meaning and application of the BR Start by scouring op. to find borrowed rule (rule from previous case that courts borrow) BR is not necessarily part of the holding (imp. to remember) Only a part of the holding Identify facts relevant to BR Facts court used to decide how to apply in that case Identify any new info that opinion gives abt BR (anything new abt rule) BR modified/supplemented by new info. abt the rule Applied rule-comes out of that process

Applied Rule: The court, in analyzing the case and applying the BR to case, may: 1. Interpret: Court may write a new interpretation rule on the BR May apply the rule or an element in such away that legal effect of the rule/element is changed in a significant way 2. Modify May add an element/factor to the rule or take away an element/factor from the rule May redefine or even reword a rule/element, changing its legal effect

3. Strike (or Abrogate or Overturn) the entire rule or part of the rule: More common w/ courts of last resort Court will usually only strike a statute sown b/c of a state or federal const. defect in the law or b/c the law clashed w/federal or international law under the Supremacy Clause of the US Const. Predictive analysis Structured as an argument Not meant to persuade Synthesizing: Did the courts apply the rule in a consistent way to both cases? Is one of the cases just a more complete explanation of one of the elements from the case? Distinguishing: Do these 2 inconsistent legal rules apply to two factual different cases? Is one rule an exception?