unit 2 - analyzing statutory law and legislative history
TRANSCRIPT
Unit 2 - Analyzing Statutory Law and Legislative History
• Federal government has only the powers granted to it in the
Constitution
• The states have all powers not granted to the federal government
3Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved
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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
Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved
Laws written by federal or state legislatures and signed by President
or GovernorStatutes are general policy
frameworkState laws may go beyond federal
laws as long as they don’t conflict
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Legislatures delegate power to administrative agencies to
develop regulationsRules and regulations add detail
Guidelines are often issued to clarify laws
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Research Identification of facts Identification of issues Finding appropriate law
Analysis Relating the law to the issues and facts
Writing Communicating your findings to the
attorney
Cases and our common law traditionConstitutions and statutesAdministrative regulationsThe executive branch
AUTHORITIES SOURCE
Cases* Judiciary
Constitutions Legislature
Statutes Legislature
Administrative regulations Administrative agencies
Executive orders Executive branch
Treaties Executive branch
Written by judges and called decisions or opinions
Considered primary authority when delivered by an appellant court from your state, U. S. Court of Appeals from your state’s circuit, or U. S. Supreme Court
Will be based on, and/or, will create precedent
“to stand by things decided”Following settled cases that are
factually similar and legally relevant to the case or problem being researched.
Official reportersRegional reportersCD-ROMsOn-line reporters
LEXIS Westlaw
Shepard’s can be used to find how all the ways that other cases have dealt with your case or statute. Shepardizing your case will show you: Cases that followed the rule of law set out in your case.
Cases that are distinguishable on the facts from your case.
Cases that criticize your case.Cases that reverse your case or
overturn a point of law from your case.
AUTHORITIES Encyclopedias Law review articles Periodical
publications Treatises and texts Dictionaries Attorneys general
opinions
Restatements Annotations Foreign sources Form books Practice guides (such
as jury instructions or opinions on ethics)
*cases from other states or federal circuits.
Legal issues are questions presented to the court for resolution
What is it that we will ask the court to answer.
What are the questions we will need to answer in order to present the case before a court.
Or, is it?
Under Virginia law must a driver stop at a red stoplight?
At 3:30a.m. the morning of December 25, 2010, Mr. Smith was driving his pregnant wife to the hospital. He came to a what he thought was a malfunctioning stoplight. He sat at the intersection for about 4 minutes before be proceeded through the intersection as the light remained red. Mrs. Smith was experiencing contractions during the trip and the baby was born within minutes of arriving at the hospital. Mr. Smith received a citation for failing to obey a highway signal and has asked you to represent him.
1. What Is Legislative History?
2. Why and How To Use Legislative History?
3. Concerns About Using Legislative History
4. Conclusion19
Documents from the legislative process
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http://www.nd.edu/~lawlib/students/guides/fedleghist.pdf
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Different versions of a bill can be helpful in determining intent
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Testimony of experts and interested parties
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Published in the Congressional Record
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Generally considered to be the most authoritative source
To correct a legislative drafting error
Statutes are not always clear
Research may reveal legislative intent
Or provide support for your argument
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Potential for manipulation
Many times floor speakers are addressing only a few other members of Congress
…or an empty room
Comments can be entered into the record in written form
Potential to disrupt the Constitutional balance of power
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What’s the alternative? Plain Meaning Textualism False appearances of objectivity?
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A court cannot interpret a statute …in the absence of context.
The only question is whether it will rely on a context secretly supplied from the judge's own intellect, or will use and acknowledge openly the context supplied by Congressional documents.
• United States Supreme Court
• United States Courts of Appeals
– 13 circuit courts
• Federal District Courts– 98 district courts
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Vertical PowerVertical Power
Court of Last Resort
Appellate or Intermediate Court
Trial Court
Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved
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
30Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved
Unit 2: Submit the issue that you are planning to use in your legal memo/course project.
Unit 2: Teamwork –one page summary
Unit 3: Case BriefUnit 3: Teamwork assignment –case
briefing
Or comments…..