Lecture Notes For Legal Research, Analysis, and Writing, 14th Edition

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CHAPTER 1INTRODUCTIONTOLEGALPRINCIPLESANDAUTHORITIESLecture Plan/Chapter OutlineInstructor’s Note:The purpose of this chapter is to provide students a basic familiarity with thesources of law, hierarchy of the law, federal and state court systems, and fundamentalconcepts involved in legal analysis, such as precedent and authority. The material in thischapter may be covered in greater depth in other courses. It is presented here to ensure thatbasic information and concepts related to legal analysis and writing are covered and availableto students in the text. Even if there is repetition of material presented in other courses, theinformation is important and bears repetition. The assignments are designed to allow studentsthe opportunity to apply the concepts presented in this chapter.I. INTRODUCTIONDefinelegal research, legal analysis,andlaw.Legal researchis the process of finding the law that applies to a client’s problem.Legalanalysisis the process of determining how the law applies to the problem. For the purposesof the text,lawis defined as the body of enforceable rules that govern individual and groupconduct in a society.II. SOURCES OF LAWSummarize the history of the U.S. legal system.A. Enacted LawDefine the termenacted lawand what makes up enacted law.Enacted lawencompasses alllaw that has been adopted by a legislative body or the people. It includes:▪Constitutions—adopted by the people

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▪Statutes, ordinances—laws passed by legislative bodies▪Regulations—actions of administrative bodies that have the force of law1. ConstitutionsAconstitutionis a governing document adopted by the people. It establishes the frameworkfor the operation of government, defines the powers of government, and guarantees thefundamentalrightsofthepeople.Boththefederalandstategovernmentshaveconstitutions.U.S. Constitution1.Establishes and defines the powers of the three branches of federal government:executive (president), legislative (Congress), and judicial (courts)2.Establishes the broad powers of the federal and state governments and defines therelation between the federal and state governments3.Defines in broad terms the rights of the members of societyState ConstitutionsEach state has adopted a constitution that establishes the structure of the state government.In addition, each state constitution defines the powers and limits of the authority of the stategovernment and the fundamental rights of the citizens of the state.2. StatutesLaws passed by legislative bodies are calledstatutes.Statutes declare rights and duties orcommand or prohibit certain conduct. A statute is any law passed by any legislative body:federal, state, or local. Such laws are referred to by various terms, such asacts, codes,statutes,orordinances.3. Administrative LawAdministrative lawis the body of law created by administrative agencies. It is composed ofthe rules, regulations, orders, and decisions promulgated by the administrative agencieswhen carrying out their duties.

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B. Common Law or Case LawDefine the termscommon lawandcase lawand explain how courts create and interpret law.In a narrow sense, the termcommon lawrefers to the law created by courts in theabsence of enacted law.Case lawencompasses a broader range of law than common law. Case law includes notonly the law created by courts in the absence of enacted law but also the law created whencourts interpret or apply enacted law.1. Role of the CourtsDisputes in our society arise from specific fact situations. The courts are designed to resolvethese disputes.The creation of new law and the interpretation and application of existing law by thecourts become law itself.The result reached by a court is usually called adecision.The court’s written decision,which includes the reasons for the decision, is called anopinion.The case law is composed ofthe general legal rules, doctrines, and principles contained in court opinions.2. Court SystemsThere are two parallel court systems: the federal court system and the state court system.JurisdictionJurisdictionis the extent of a court’s authority to hear and resolve specific disputes. A court’sjurisdiction is usually limited to two main areas:1.Personal jurisdictionis the authority of a court over the parties to resolve a legaldispute involving the parties.2.Subject matter jurisdictionis a court’s authority over the types and kinds of cases itmay hear and decide.▪There are two types of courts in both the federal and state court systems:

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1.Courts of general jurisdiction have the authority to hear and decide anymatter brought before them.2.Courts of limited jurisdiction are limited in the types of cases they can hearand decide.Concurrent JurisdictionConcurrent jurisdictionexists when more than one court has the authority to deal with thesame subject matter.Federal Court SystemThe federal court system is composed of three basic levels of courts:1.Trial Courts.The trial court is the court where the matter is heard and decided. If thetrial is conducted by a judge and a jury, the judge decidesquestions of lawsuch aswhat the law is or how it applies. The jury decidesquestions of factsuch as whether aperson performed a certain act.2.Court of Appeals.The primary function of a court of appeals is to review the decisionof a trial court to determine and correct any error that may have been made.3.U.S. Supreme Court.The U.S. Supreme Court is the final court of appeals in thefederal system. It is the highest court in the land. A party who disagrees with thedecision of a court of appeals must ask (petition) the Supreme Court to review it. Therequest is called apetition for writ of certiorari.State Court SystemEvery state has its own state court system.1.Trial Courts.All states have trial courts where the evidence is presented, testimonytaken, and a decision reached. The court of general jurisdiction is often called adistrict court. There are various courts of limited jurisdiction, such as probate courts,small claims courts, county courts, domestic relations courts, and magistrate courts.2.Courts of Appeals.Many states have intermediary courts of appeals that function inthe same manner and play the same role in the state court system as the federalcourts of appeals does in the federal system.

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3.State Supreme Court.Every state has a highest appellate court, usually called thesupreme court. This court is the highest court in the state, and its decisions are finalon all questions involving state law.3.Precedent and Stare DecisisPrecedentPrecedentis an earlier court decision on an issue that applies to govern or guide asubsequent court in its determination of an identical or similar issue based on identical orsimilar facts. A case that is precedent is often calledon point.Stare DecisisThe doctrine ofstare decisisis a basic principle of the case law system that requires a courtto follow a previous decision of that court or a higher court when the current decisioninvolves issues and facts similar to those involved in the previous decision. The doctrine doesnot apply if there is a good reason not to follow it. Some of these reasons include:1.The earlier decision has become outdated because of changed conditions or policies.2.The legislature has enacted legislation that has, in effect, overruled the decision of anearlier court.3.The earlier decision was poorly reasoned or has produced undesirable results.III. HIERARCHY OF THE LAWDefine what the termsfederalismand thesupremacy clausemean.In general, within each jurisdiction, the constitution is the highest authority, followed bythe other enacted law (legislative and administrative law), then the case law.The U.S. Constitution separates the powers to govern between the federal and stategovernments. This separation of powers is calledfederalism.Thesupremacy clauseof theConstitution (Article VI) provides that between federal and state law, federal law is supreme.IV. AUTHORITYDefine the termauthority.

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Authoritymay be defined as anything a court may rely on when deciding an issue. Itincludes not only the law but also any other nonlaw source that a court may look to inreaching a decision.A. Types of Authority1. Primary AuthorityPrimary authorityis the law itself. It is composed of the two main categories of law: enactedlaw and case law.2. Secondary AuthoritySecondary authorityis any source a court may rely on that is not the law, that is, not primaryauthority. Secondary authority consists of legal resources that summarize, compile, explain,comment on, interpret, or in some other way address the law.Secondary authority can be used in several ways:▪To obtain a background or overall understanding of a specific area of the law. Legalencyclopedias are useful for this purpose.▪To locate primary authority (the law) on a question being researched.American LawReports (ALR),treatises, digests, andShepard’scan be used for this purpose.▪To be relied on by the court when reaching a decision, which usually occurs only whenthere is no primary authority governing a legal question or it is unclear how theprimary authority applies to the question. Treatises, law reviews, andRestatements ofthe Laware relied on for this purpose.AnnotationsAnnotationsare notes and comments on the law. One of the well-known annotations is theALR.Law DictionariesLegal dictionaries include definitions of legal terms (and usually a citation to the authority forthe definition) and guides to pronunciation.

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Law ReviewsLaw reviews are scholarly publications usually published by law schools.Legal EncyclopediasA legal encyclopedia is a multivolume set of books that provides a summary of the law.Restatements of the LawRestatements of the Law,published by the American Law Institute, presents a variety oftopics and discusses what the law is on each topic or what it should be.TreatisesA treatise is a single-volume or multivolume work written by an expert in an area that coversthat entire area of law.B. Role of Authority1. Mandatory AuthorityMandatory authorityis any source that a court must rely on or follow when reaching adecision (e.g.,a decision of a higher court in the jurisdiction on the same or a similar issue).Secondary authority can never be mandatory authority.Enacted LawThere is a three-step process for determining whether an enacted law applies to govern alegal question:STEP 1:Identify all the laws that may govern the question.STEP 2:Identify the elements of the law or statute.STEP 3:Apply the facts of the case to the elements.Case LawFor a court opinion to be mandatory authority, binding another court to follow the rule orprinciple of law established in the opinion, two conditions must be met:1.The court opinion must be on point.2.The court opinion must be written by a higher court in that jurisdiction.

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2.Persuasive AuthorityPersuasive authorityis any authority a court is not bound to consider or follow but mayconsider or follow when reaching a decision.Primary Authority as Persuasive AuthorityOn occasion, courts look to enacted law as persuasive authority.Secondary Authority as Persuasive AuthoritySecondary authority should not be relied upon when there is mandatory authority. If there isno mandatory authority and there is persuasive primary authority, the secondary authoritymay be used in support of the primary authority.Secondary authority is most valuable in situations where there is no primary authority,either mandatory or persuasive.V. INTRODUCTION TO LEGAL CITATIONThere are two manuals that provide the rules and format of legal citation.A. The Bluebook: A Uniform System of Citation (The Bluebook)The Bluebook is organized into four main parts: Introduction, Bluepages, Rules, and Tables.1. The Bluepages and Bluepage TablesSummarize the rules for citing legal resources in documents prepared for filing in court or foruse in a law office.2. Citation RulesThere are rules of citation for each type of legal source.3. TablesList necessary abbreviations for use in citations.B. The ALWD Guide to Legal Citation (ALWD Guide)The ALWD Guide is used in many colleges and law schools. It provides ease of use and in-depth explanations of the various citation rules. It is organized into seven parts, the followingare essential to its effective use:

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1. Part 1: Introductory Material2. Text of Citation Rules3. How to Use Citations4. The AppendicesThere are eight appendices.VI. KEY POINTS CHECKLISTVII. APPLICATIONTeaching TipsFocus first on the sources of law and the types of courts. Then discuss how the hierarchy ofthe law and types of authority are related. This is best accomplished through a review of theexamples presented in the text. Emphasize the importance of knowing the definition of theterms used in the chapter.Suggested AssignmentsThe following are additional assignments related to the subject matter presented in thischapter.1.Direct students to identify the number and names of the justices on the state court ofappeals and the state supreme court in your state.2.If there is more than one court of limited jurisdiction in your state, have studentsidentify the courts and show how the jurisdiction of each differs. For example, somestates have county courts and municipal courts; each court has different limitedjurisdiction.3.Have students identify the sources of law in your state and discuss the hierarchy ofauthority of the sources of law in your state.

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Text Assignments: AnswersASSIGNMENT 1Instructor’s Note:Answers vary depending on location of student.This assignment requires students to research their own state’s statutes. Because most stateshave more than one court of limited jurisdiction, such as municipal, probate, and countycourts, the assignment may be expanded to require students to name and describe thejurisdiction of more than one limited jurisdiction court.ASSIGNMENT 2Instructor’s Note:This assignment may be expanded to require students to describe thejurisdictional differences between a state’s court of appeals and its supreme court. A trialcourt is where the evidence is presented, testimony is taken, and a decision is reached. It iswhere the matter is heard and decided. It differs from a court of appeals in that it is not therole of a trial court to review the decision of another court. The primary function of a court ofappeals is to review the decision of a trial court to determine and correct any error that mayhave been made. A court of appeals differs from a trial court in that it does not hear thematter; that is, it does not hear testimony, try the case, or hear the evidence.ASSIGNMENT 3A court opinion becomes a precedent when the facts and issues of an opinion are identical orsimilar to the facts and issues in the case before the court.ASSIGNMENT 4Instructor’s Note:This assignment involves the following authority, which is listed here forquick reference:1.State A’s Uniform Commercial Code Act2.State A’s Consumer Credit Act3.State B’s Uniform Commercial Code Act4.Federal statute—Consumer Credit Act5.Iron v. Supply Co.—a decision of the highest court in state A6.Milk v. Best Buy Inc.—a decision of the highest court in state B7.Control Co. v. Martin—a decision of an intermediary court of appeals in state A

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8.Lesley v. Karl Co.—a decision of a trial court in state A9.Irene v. City Co.—a federal case involving the federal Consumer Credit Act10.Regulations adopted by state A’s Corporation Commission that apply to consumercredit and the sale of goods11.Restatements of the Lawdefining sales, consumer credit, and other terms related tothe problem12.AnALRreference that directly addresses the issues in the caseASSIGNMENT 4APrimary authority is defined as the law itself. It is composed of enacted law (constitutional,legislative, regulatory, etc.) and common law or case law (court-made law). Secondaryauthority is any source a court may rely on that is not the law and that is not primaryauthority. With these definitions in mind, numbers 1 through 10 of the above-listedauthorities are primary authority.a.Numbers 1 through 4 are laws passed by state or federal legislative bodies.b.Numbers 5 through 9 are court decisions that present common law or court-made law.c.Number 10 is administrative law. The regulations adopted by the state’s CorporationCommission have the force of law.d.Numbers 11 and 12 are secondary authority. They are reference sources that are notthe law.Restatements of the Lawincludes formulations of what the law should be andcommentsanddiscussionsonwhytheformulationsarerecommended.ALRreferences are notes and comments on the law, not actual law.ASSIGNMENT 4B PART 1Mandatory authority is any primary authority a court must rely on when reaching a decision.In this assignment, since the problem involves the sale of goods in state A, the mandatoryauthority is the authority that the courts in state A must apply when reaching a decision. Ofthe 12 sources of authority listed in the assignment, the following may be mandatoryauthority for state A courts:

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a.Number 4, the federal Consumer Credit Act. The federal Consumer Credit Act may bemandatory authority for a state A court if, by terms of the statute, it applies to governthe particular sale-of-goods question being addressed by a state A court.b.Numbers 1, 2, and 10, state A’s Uniform Commercial Code, Consumer Credit Act, andCorporation Commission regulations, respectively. These may be mandatory authoritybecause they are enactments of state A’s legislature or an administrative agency, allof which are laws of state A. The state courts must follow the laws enacted by thestate legislative body and administrative agencies unless the laws violate the U.S.Constitution or state A’s constitution.c.Numbers 5 and 7,Iron v. Supply Co.andControl Co. v. Martin. These court opinionsare decisions of the highest court and intermediary court of appeals in state A,respectively. The decisions of these courts establish the law in state A and must befollowed by the courts in state A.d.Number 9,Irene v. City Co.This federal court decision can be mandatory authoritybecause if the federal Consumer Credit Act (number 4) applies, the federal court’sinterpretation of that law must be followed by state A courts.e.Number 8,Lesley v. Karl Co.Trial court decisions in a state normally are notmandatory authority. Usually, only the opinions of a state’s highest court andintermediary courts of appeal are mandatory authority that other courts in the statemust follow; however, this may vary from state to state.ASSIGNMENT 4B PART 2Not all of the primary authority will be mandatory authority for state A courts. Certainconditions must be present for primary authority to be mandatory authority.a.Number 4, the federal Consumer Credit Act. For a federal statute to be mandatoryauthority, the provisions of the act must apply to govern the question beingaddressed by the court. In addition, a federal law will not apply if its application isdeemed to violate the U.S. Constitution.

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b.Numbers 1 and 2, state A’s Uniform Commercial Code and Consumer Credit Act,respectively. State statutes are mandatory authority when:1.Their provisions apply to govern the facts of the case. (Use the three-step processdiscussed in Section IV.B.1.a of this chapter.)2.Their application does not conflict with a federal law that governs the area.3.Their application does not violate the U.S. Constitution or the state’s constitution.c.Number 10, Regulations adopted by state A’s Corporation Commission. Regulationsadopted by a state A administrative body can be mandatory authority when:1.Their provisions apply to govern the facts of the case. (Use the three-step processdiscussed in Section IV.B.1.a of this chapter.)2.Their application does not conflict with a federal or state law that governs thearea, and their application does not violate the U.S. Constitution or state A’sconstitution.d.Number 9,Irene v. City Co. For the federal court decision to be mandatory authority:1.The federal statute (number 4, the federal Consumer Credit Act, in this case) mustapply to govern the question.2.The case must be on point; that is, it is sufficiently similar to the facts of the casefor the decision to apply as precedent (see Chapter 12).3.The decision must not have been superseded by a higher federal court decision.e.Number 5,Iron v. Supply Co. Under the doctrine of stare decisis, the decision of thehighest court in state A is mandatory authority and must be followed by the lowercourts in state A. The prerequisites are that the decision is on point (see Chapter 12)anditsapplicationdoesnotviolateeithertheU.S.ConstitutionorstateA’sconstitution.f.Number 7,Control Co. v. Martin. Under the doctrine of stare decisis, the decision ofthe intermediary court of appeals is mandatory authority and must be followed by thelower courts in state A. The prerequisites are that the decision is on point, itsapplication does not violate either the U.S. Constitution or state A’s constitution, and

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its application does not conflict with a higher court decision in state A (the statesupreme court).Also, under the doctrine of stare decisis, the intermediary court of appeals in state A willfollow an earlier decision of a state A intermediary court of appeals if the earlier decision ison point. A later court of appeals, however, is not absolutely bound to follow an earlier courtof appeals decision. It is free to amend or overrule the decision if it finds that the earlierdecision was in error or no longer reflects current public policy or current legal thinking.ASSIGNMENT 4CPersuasive authority is authority that a court may rely on and follow but is not bound to relyon or follow. It can be either primary or secondary authority. In certain situations, all of the 12listed sources of authority could be persuasive authority.a.Numbers 3 and 6, state B’s Uniform Commercial Code Act andMilk v. Best Buy Inc.,respectively. The statutes and case law of state B cannot be mandatory authority instate A. A state is not required to follow the law of other states; however, in theabsence of mandatory authority in state A, state A courts may consider, adopt, orfollow state B law and court decisions.For a court decision to be considered persuasive authority, the decision must be onpoint. That is, the key facts and applicable law of the court opinion must besufficiently similar to the key facts and applicable law of the case being heard by thecourt before the opinion may provide guidance to the court in deciding an issue (seeChapter 12).b.Numbers 11 and 12,Restatements of the Lawdefining sales, consumer credit, andother terms related to the problem and anALRreference that directly addresses theissues in the case, respectively.Restatements of the LawandALRreferences aresecondary authority and therefore are not mandatory authority. In the absence ofmandatory authority, a court may look to and adopt secondary authority if it sochooses. The usual prerequisite is that the secondary authority is on point; that is, itaddresses legal questions and applies laws or legal principles that are sufficiently

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c.similar to the questions and laws being applied in the case before the court.d.Number 8,Lesley v. Karl Co. A decision of a state trial court is not mandatory authorityfor other trial courts or higher courts in the state. The other courts, including thehigher state courts, may consider, adopt, or follow a decision of a trial court.e.Numbers 5, 7, and 9,Iron v. Supply Co., Control Co. v. Martin,andIrene v. City Co.,respectively. When the decision of a federal court or a higher state court is notmandatory authority (see the previous discussion in Assignment 4B), the reasoning orholding may still be persuasive precedent and considered, adopted, or followed inwhole or in part. An opinion may not be mandatory authority, but a court mayconsider it persuasive authority when:▪It is not on point, but the court refers to the reasoning or analysis in the decisionfor general guidance in interpreting the statute (see Chapter 12).▪The decision has been superseded by a higher state court or later court of appealsdecision in state A, yet the reasoning or analysis in the decision is persuasive to asubsequent court. The court may refer to the prior reasoning or analysis unless itwas rejected by the subsequent ruling.▪The question is governed by a federal statute but there is no federal case lawinterpreting the statute, leaving the state case as guidance.▪The question is governed by a state statute but there is no state case lawinterpreting the statute; then, a federal case law may be referred to for guidance.f.Numbers 1, 2, 3, 4, and 10, state A’s Uniform Commercial Code Act, state A’sConsumer Credit Act, state B’s Uniform Commercial Code Act, the federal ConsumerCredit Act, and Regulations adopted by state A’s Corporation Commission that applyto consumer credit and the sale of goods, respectively. A statute or regulation maynot be mandatory authority because the elements of the law do not apply to governthe facts of the case. When a statute or regulation does not apply, a court may stilllook to the statute or regulation for guidance when interpreting another law that hassimilar provisions.

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A term defined in Act A may not be defined in Act B, the act that governs the problembeing addressed by the court. In this situation, the definition in Act A may be relied on by thecourt, guide it in its interpretation of the term in Act B, and be adopted in whole or in part. Insuch a situation, Act A can be persuasive authority.ASSIGNMENT 4DIn general, the hierarchy of primary authority within each jurisdiction is the constitution (thehighest authority), followed by the enacted law (legislative and administrative), then thecommon, or court-made, law. When state and federal law both apply, the federal law takesprecedenceoverstatelaw.Whenthereisprimarymandatoryauthorityandprimarypersuasive authority, the primary mandatory authority takes precedence over the primarypersuasive authority. With these guidelines in mind, the hierarchy of the primary authoritylisted in the assignment is as follows (the highest primary authority is listed first followed bythe next highest, and so forth):1.Number 4, Consumer Credit Act—the federal statute2.Numbers 1 and 2, state A’s Uniform Commercial Code Act and state A’s ConsumerCredit Act, respectively—the more specific statute generally has the greaterauthority value3.Number 10, Regulations adopted by state A’s Corporation Commission that applyto consumer credit and the sale of goods4.Number 9,Irene v. City Co.—a federal case involving the federal Consumer CreditAct5.Number 5,Iron v. Supply Co.—a decision of the highest court in state A6.Number 7,Control Co. v. Martin—a decision of intermediary court of appeals instate A7.Number 8,Lesley v. Karl Co.—a decision of the trial court in state A (As mentionedinAssignment4C,thedecisionsofstatetrialcourtsdonotusuallyhaveauthoritative value. If in state A, certain trial court decisions have authoritativevalue, then that value is mandatory authority only for any courts lower than the

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trial court in that jurisdiction and takes precedence over persuasive authority,such as the persuasive authority listed below.)8.Number3,stateB’sUniformCommercialCodeAct(StateB’slegislativeenactments cannot be mandatory authority in state A. This statute’s value asauthority is subordinate to the authority listed above, all of which can bemandatory authority.)9.Number 6,Milk v. Best Buy Inc.—a decision of the highest court in state B (LikeNumber 3 above, this is persuasive authority and is subordinate to the mandatoryauthority.)ASSIGNMENT 5This assignment involves the following authority, which is listed here for quick reference.1.Idle v. City Company—a 1980 decision by the highest court of state A in which thecourt created a cause of action in tort for the wrongful destruction of businessrecords. The court ruled that a cause of action exists if the records were destroyed inanticipation of or while a worker’s compensation claim was pending. The court alsoheld that a cause of action exists if the destruction was intentional or negligent.2.A 1989 state A statute—a law passed by the legislature of state A that created a causeof action in tort for the intentional destruction of business records. The statuteprovides that a cause of action exists if the destruction occurs in anticipation of orwhile a worker’s compensation claim is pending.3.Merrick v. Taylor—a 1990 decision of the court of appeals of state A. The court ofappeals is a lower court than the state’s highest court. The court held that the termintentionalwithin the meaning of the 1989 statute includes either the intentionaldestruction of records or the destruction of records as a result of gross negligence.4.Davees v. Contractor—a decision of the highest court of state B interpreting a state Bstatute identical to the 1989 state A statute. The court held thatintentionalas used inthe statute includes gross negligence only when the gross negligence is accompaniedby a “reckless and wanton” disregard for the preservation of the business records.

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5.A 1991 federal statute—the statute is identical to the 1989 state statute. It onlyapplies to contractors with federal contracts.6.ALRreference—anALRreference that addresses specific questions similar to thoseraised in the client’s case.ASSIGNMENT 5AAs discussed in Assignment 4A, primary authority is defined as the law itself. It is composed ofthe enacted law (constitutional, legislative, regulatory, etc.) and the common law or case law(court-made law). Secondary authority is any source a court may rely on that is not the law—and that is therefore not primary authority. Numbers 1 through 5 on this list are primaryauthority. Number 6, theALRreference, is secondary authority; it is not the law.ASSIGNMENT 5Ba.Numbers 2, 3, and 5 can be mandatory authority. Numbers 2 and 5 are statutory law(enactments of legislative bodies), both of which could apply to govern the questionof whether the destruction of business records constitutes a tort.Number 2, the 1989 state A statute, is mandatory authority if the client pursues atort claim against the employer for the destruction of the business records. Theapplication of the statute is not preempted by the application of the federal statute,and the application of the statute does not conflict with the provisions of the U.S.Constitution or state A’s constitution.Number 3,Merrick v. Taylor,is a decision of the court of appeals of state A andcan be mandatory authority for the lower courts in state A.Merrick v. Taylorcan bemandatory authority if the case is on point, it has not been superseded by a higherstate court decision, its application does not violate the U.S. Constitution or state A’sconstitution, and the question involves the interpretation of the 1989 state A statute.Number 5, the 1991 federal statute, can be mandatory authority if the client’semployer is a contractor with a federal contract and the application of the statutedoes not violate the U.S. Constitution.

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b.Number 1,Idle v. City Co.,is probably not mandatory authority because it has beensuperseded by the 1989 state A statute (Number 2). See the discussion of this case inAssignment 5D.ASSIGNMENT 5CAs discussed in Assignment 4C, persuasive authority is authority a court may rely on andfollow but is not bound to rely on or follow. It can be either primary or secondary authority. Incertain situations, all of the six listed sources of authority could be persuasive authority, withthe possible exception of Number 1,Idle v. City Co. IfIdlehas been superseded by the 1989state A statute, then it may not be authority at all. Refer to the discussion of this case inAssignment 5D.a.Number 2, a 1989 state A statute. The 1989 state A statute may be persuasiveauthority if the cause of action is based on another statute that has similar provisionsto the 1989 statute and the court looks to the statute for guidance when interpretingthe similar provisions.b.Number 3,Merrick v. Taylor.Merrickcan be persuasive authority when:▪It is not on point; a court may refer to the reasoning or analysis in the decision forgeneral guidance in interpreting the statute (see Chapter 12).▪The decision has been superseded by a higher state court or later court of appealsdecision in state A, yet subsequent courts have found the reasoning or analysis inthe decision to be persuasive. A court may refer to the prior reasoning or analysisunless it has been rejected by a subsequent ruling.▪The question is governed by a federal statute but there is no federal case lawinterpreting the statute, resulting in reliance on the state case for guidance. (Thisanswer is similar to the answer in Assignment 4C[d].)c.Number 4,Davees v. Contractor. Decisions of other states may act as persuasiveprecedent. In the absence of mandatory authority in state A, state A courts mayconsider, adopt, or follow state B law and court decisions. For a court decision to be

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d.considered persuasive authority, the decision must be on point. That is, the key factsand applicable law of the court opinion must be sufficiently similar to the key factsand applicable law of the case being heard by the court before the opinion mayprovide guidance to the court in deciding an issue (see Chapter 12).e.Number 5, a 1991 federal statute. The federal statute may not be mandatoryauthority because the elements of the law do not apply to govern the facts of thecase. When a statute does not apply, a court may still look to the statute or regulationfor guidance when interpreting another law that has similar provisions. (This answer issimilar to the answer in Assignment 4C[e].)f.Number 6, anALRreference. AnALRreference is not mandatory authority; it issecondary authority and therefore is persuasive authority by definition. In theabsence of mandatory authority, a court may look to and adopt secondary authority ifit so chooses. The usual prerequisite is that the secondary authority is on point; thatis, it addresses legal questions and applies laws or legal principles that are sufficientlysimilar to the questions and laws being applied in the case before the court. (Thisanswer is similar to the answer in Assignment 4C[b].)ASSIGNMENT 5DIdle v. City Co.is probably not mandatory authority because it has been superseded by the1989 state A statute (Number 2). The 1989 state A statute was enacted subsequent to theIdledecision and creates a statutory cause of action in tort for the intentional destruction ofbusiness records.Legislative bodies have the authority to modify or replace court decisions. This authorityis only limited by the requirement that the legislative act may not violate the U.S.Constitution or the state constitution. In this instance, theIdledecision created a cause ofaction in tort for the intentional or negligent destruction of business records while a worker’scompensation claim was pending. The subsequent state A legislative act replaces the courtdecision with a statute that limits the cause of action to the intentional destruction ofbusiness records.

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By not including in the statute a cause of action for the negligent destruction of businessrecords, that cause of action has been eliminated. The legislature is presumed to be aware ofthe law created by court decisions. By passing a statute that specifically addressed andnarrowed a cause of action created by the court, the legislature appears to have intended toreplace the decision of the court inIdle v. City Co. The statute, therefore, probablysupersedes the court decision.ASSIGNMENT 5EIfIdle v. City Co.can be considered authority at all, it would only be authority for guidance ininterpreting that portion of the cause of action that was not eliminated by the 1989 state Astatute. The statute provides a cause of action for intentional destruction of business records.The part of theIdledecision that addressed the intentional destruction of business recordsmay be considered authority. Any reasoning, rules, principles, or guidelines presented in thecase concerning the intentional destruction of records may be considered authority bysubsequent courts addressing issues involving the intentional destruction of business records.ASSIGNMENT 5FMerrick v. Tayloris a state court of appeals decision that interprets the “intentionaldestruction of business records” as used in the statute to include the destruction of records asa result of gross negligence. In effect, the decision expands the scope of the statute to includethe negligent destruction of business records if the type of negligence is gross negligence.Courts have the authority to interpret statutes, and through the use of this authority, courtshave the power to expand or restrict the operation of a statute.ASSIGNMENT 5GDavees v. Contractor(Number 4), a state B court decision, cannot be mandatory authority instate A. State courts are never bound to follow the decisions of other states. The requirementsfor a court decision in another state to be persuasive authority are discussed in the answer toAssignment 5C.InDavees,the highest court of state B interpreted a state B statute identical to the 1989state A statute. The court interpreted the terms “intentional destruction of business records”

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to include grossly negligent acts only when the gross negligence was accompanied by a“reckless and wanton” disregard for the preservation of the records. If a state A court isaddressing the question of what constitutes gross negligence as discussed inMerrick v.Taylor,it may look to theDaveesdecision for guidance if the question has not already beenaddressed by state A courts. In this situation, theDaveesdecision would be consideredpersuasive authority.ASSIGNMENT 5HInstructor’s Note:The introduction to this assignment is the same as the introduction toAssignment 4D; both assignments address the same question.In general, the hierarchy of primary authority within each jurisdiction is the constitution (thehighest authority), followed by enacted law (legislative and administrative), and thencommon law or court-made law. When state and federal law both apply, federal law takesprecedence over state law. When there is primary mandatory authority and primarypersuasive authority, the primary mandatory authority takes precedence over the primarypersuasive authority. With these guidelines in mind, the hierarchy of the primary authoritylisted in Assignment 5 is as follows (the highest primary authority is listed first followed bythe next highest, and so forth):Number 5, a 1991 federal statute. If the federal law applies, it is higher authority thanthe state law.Number 2, a 1989 state A statute. The state law is subordinate to the federal lawwhen the federal law applies. When the state law does apply, it is higher authority thancase law.Number 3,Merrick v. Taylor.The decision of the state A court of appeals involvingstate A law is the next highest authority, unless there is a higher state A court decision onthe subject. This assumes that theIdle v. City Co.decision is no longer authority because ithas been replaced by the 1989 statute. IfIdleis primary authority, it is higher authoritythanMerrickbecause it is a decision of a higher state A court than the court of appealsthat decided theMerrickcase.

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Number 4,Davees v. Contractor.The case law of state B cannot be mandatoryauthority in state A. A state is not required to follow the law of other states. At most, thedecisions of other states are persuasive authority. In the absence of mandatory authorityin state A, state A courts may consider, adopt, or follow state B court decisions. TheDaveesdecision has the least authoritative value of the primary authority presented inthe assignment because numbers 1, 2, 3, and 5, in certain situations, can be mandatoryauthority in state A, and mandatory authority is higher authority than persuasiveauthority.MindTap Supplementary Exercises: AnswersASSIGNMENT 1Instructor’s Note:Most state supreme courts have websites. Many, but not all, courts ofgeneral jurisdiction also have websites. A general search, using the name of the court as thetopic, will usually help find the court. For example, the search topic “Texas Supreme Court”will locate the court’s website. One of the best sites for finding state court sites ishttp://www.findlaw.com.ASSIGNMENT 2Mandatory authority is any source that a court must rely on or follow when reaching a decision.Persuasive authority is any authority a court is not bound to consider or follow but mayconsider or follow when reaching a decision. Examples will vary.ASSIGNMENT 3This assignment involves the following authority, which is listed here for quick reference.1.A 1998 state A statute that provides that a candidate for state supreme court judgemust have resided in the state three years prior to the election.2.A 2000 state B statute that states that individuals running for any county or municipaloffice must have resided in the county or municipality for six months.3.Garcia v. Municipality of Weston. A 2001 state A court of appeals decision providingthat a person running for state senate must reside within the senate district for aminimum of one year prior to the election.

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4.Reisin v. City.A state B supreme court decision holding that a person running for anymunicipal position must reside in the municipality for three months.5.American Jurisprudence Secondsection, which provides that most states have a three-month residency requirement for the purposes of eligibility to run for municipalpositions.ASSIGNMENT 3APrimary authority is the law itself, such as constitutional, statutory, or case law. Numbers 1and 2 are statutory laws and therefore primary authority. Numbers 3 and 4 are case laws andtherefore primary authority. Number 5 is secondary authority.ASSIGNMENT 3BMandatory authority is any source that a court must rely on when reaching a decision. Primaryauthority becomes mandatory authority only when it governs the legal question or issue beingdecided by the court. None of the authority is mandatory authority.1.The 1998 state A statute does not apply to municipal elections; therefore, it is notmandatory authority.2.The 2000 state B statute is not a state A statute and state B law does not apply tostate A matters; therefore, it does not apply to state A elections.3.Garcia v. Municipality of Westondoes not apply to municipal elections; therefore, itdoes not govern the issue of the residency requirement for those elections.4.Reisin v. Cityis a state B court decision, and state B court decisions do not have to befollowed in state A.5.American Jurisprudence Secondis secondary authority, and secondary authority is notthe law and can never be mandatory authority.ASSIGNMENT 3CPersuasive authority is any authority a court is not bound to consider or follow but mayconsider or follow when reaching a decision. All of the authority listed may be persuasiveauthority because all may act as guidance for a court when deciding the question of residencyrequirements for municipal elections. The state A statute and court decision are state A laws

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that establish the residency requirements for certain state A elections and may be consideredwhen addressing questions concerning municipal elections. The state B statute and courtdecision provide guidance as to how another state has addressed residency requirements formunicipal elections. TheAmerican Jurisprudence Secondsection provides guidance as to howmost states have addressed the question.ASSIGNMENT 4Answers will vary by student.ASSIGNMENT 5Answers will vary by student.ASSIGNMENT 6Precedent is an earlier court decision on an issue that applies to govern or guide a subsequentcourt in its determination of an identical or similar issue based on identical or similar facts.Stare decisis is a basic principle of the case law system that requires a court to follow a previousdecision of that court or a higher court when the current decision involves issues and factssimilar to those involved in the previous decision. That is, similar cases are decided in similarways.ASSIGNMENT 7Answers will vary by student.ASSIGNMENT 8APrimary authority is the law itself—constitutional, statutory, or case law. The following areprimary authority:1.The 1982 state A embezzlement statute2.State v. Pete3.State v. Artee4.State v. Stahl5.United States v. Crimm6.Federal Statute 18 U.S.C. §641TheAm. Jur.section and the law review article are secondary authority—they are notconstitutional provisions, enacted law, or case law.

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ASSIGNMENT 8BMandatory authority is any primary authority a court must rely on when reaching a decision.The following can be mandatory authority:1.Since the problem involves a charge of embezzlement in state A, the 1982 state Astatute is mandatory authority.2.SinceState v. Peteis a decision of the highest court of state A, it will be mandatoryauthority if it is on point.3.SinceState v. Arteeis also a decision of a state A court, it will be mandatoryprecedent for lower courts in the state if it is on point.ASSIGNMENT 8CPersuasive authority is authority a court may rely on and follow but is not bound to rely on orfollow. It can be either primary or secondary authority. The following could be persuasiveauthority:1.State v. PeteandState v. Arteecould be persuasive authority if it is determined thatthey are not sufficiently on point to be mandatory authority. Even though they are noton point, the court still may be persuaded to follow guidance provided in theopinions.2.SinceState v. Stahlis not an opinion of a state A court, it cannot be mandatoryauthority; however, it could be persuasive authority if the state A court considers itsufficiently on point to provide guidance.3.SinceUnited States v. Crimmis not an opinion of a state A court, it cannot bemandatory authority. LikeState v. Stahl, it could be persuasive authority if a state Acourt considers it sufficiently on point to provide guidance.4.Both theAm. Jur.section and the law review article could be persuasive authority.Even though these secondary authority sources cannot be mandatory authority, theycan be persuasive authority. A court may look to and follow the guidance of thesesources if they are on point, that is, if they address legal questions and apply laws or

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legal principles that are sufficiently similar to the questions and laws being applied inthe case before the court.ASSIGNMENT 8DIn general, the hierarchy of authority within each jurisdiction is the constitution (the highestauthority), followed by the enacted law (legislative and administrative), then common law, orcourt-made law, and then secondary authority. When there is primary mandatory authorityand primary persuasive authority, the primary mandatory authority takes precedence over theprimary persuasive authority. With these guidelines in mind, the hierarchy of the primaryauthority listed in the assignment is as follows (the highest primary authority is listed firstfollowed by the next highest, and so forth).1.The 1982 state A statute is the highest authority. Applicable state law is higherauthority than applicable case law.2.State v. Peteis the highest court decision in a state A court.3.State v. Arteeis the second-highest decision of a state A court.4.State v. Stahlis a decision by a nonstate A court (a state B court).5.The law review article published in 2004 discusses what constitutes entrustment andconversion. The law review article probably is more specific and on point than theAm.Jur.section.6.26Am. Jur.2dEmbezzlement§23 (2006).ASSIGNMENT 8Ea.The federal statute andUnited States v. Crimmprobably do not have authoritativevalue in this case because the charges are state, not federal. Although federal lawusually takes precedence over state law when both apply to a fact situation, this is astate criminal charge, and federal law does not apply. A state court is not bound byfederal law when dealing with state matters.There is probably not a situation in this case in which the federal statute will haveauthoritative value. The court may look to the federal statute for guidance, such as

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when interpreting a term not defined by the statute being applied by the court. In thiscase, the federal statute is entirely different from the state statute and probably willnot be looked to by the state court.United States v. Crimmcould be persuasiveauthority if the state A court considers it sufficiently on point to provide guidance inmaking its decision.MindTap Study Questions: Answers1.Law is defined as the enforceable rules that govern individual and group conduct in asociety.2.Legal analysis involves a determination of how the law applies to a client’s facts. Itrequires knowledge of what the law is and the general principles that govern itsapplication.3.Enacted law is the body of law adopted by the people or legislative bodies. It includesconstitutions, statutes/ordinances, and regulations.4.Case law encompasses a broader range of law than common law does. Case lawincludes not only the law created by courts in the absence of enacted law but also thelaw created when courts interpret or apply enacted law.5.There are two parallel court systems, the federal court system and the state courtsystem. The federal court comprises trial courts, court of appeals, and the U.S.Supreme Court. The state court system comprises trial courts, court of appeals, and thestate supreme court.6.Jurisdiction is the extent of a court’s authority to hear and resolve specific disputes.Jurisdiction is limited to personal jurisdiction and subject matter jurisdiction. Personaljurisdiction is the authority of the court over the parties to a legal dispute. Subjectmatter jurisdiction is the court’s authority over the types and kinds of cases it may hearand decide.7.Personal jurisdiction is the authority of the court over the parties to resolve a legaldispute involving the parties. Example will vary.

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8.Subject matter jurisdiction is the court’s authority over the types and kinds of cases itmay hear and decide. Example will vary.9.Concurrent jurisdiction exists when more than one court has the authority to dealwith the same subject matter. Example will vary.10.The trial court is the court where the matter is heard and decided. Evidence ispresented, testimony taken, and a decision reached. There are trial courts of generaljurisdiction and trial courts of limited jurisdiction.11.A court of appeals is a court that reviews the decision of a trial court or other lowercourt to determine and correct any error that may have been made. It only reviewswhat took place in the trial court. It does not hear new testimony, retry the case, orreconsidertheevidence.Itreviewstherecordofthelowercourtandtakesappropriate action to correct any errors. These courts are also called circuit courts.12.Precedent is an earlier court decision on an issue that applies to govern or guide asubsequent court in its determination of an identical or similar issue based onidentical or similar facts.13.The doctrine of stare decisis is a basic principle of the common law system thatrequires a court to follow a previous decision of that court or a higher court when thecurrent decision involves issues and facts similar to those involved in the previousdecision.14.The supremacy clause of the Constitution (Article VI) provides that between federaland state law, federal law is supreme. If an enacted law or court decision of a stateconflicts with a federal law or court decision, the state law/decision is invalid to theextent it conflicts with the federal law/decision. Examples will vary.15.Primary authority is the law itself. It is composed of the two main categories of law:enacted law and common law or case law. Courts refer to and rely on primaryauthority first when resolving legal problems.

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16.Secondary authority is any source a court may rely on that is not the law, that is, notprimary authority. Secondary authority consists of legal resources that summarize,compile, explain, comment on, interpret, or in some other way address the law.17.Mandatory authority is any source that a court must rely on or follow when reaching adecision (e.g.,a decision of a higher court in the same jurisdiction on the same or asimilar issue).18.Persuasive authority is any authority a court is not bound to consider or follow butmay consider or follow when reaching a decision.19.The four main parts of The Bluebook are the Introduction, Bluepages, Rules, andTables.

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