thursday, august 20, 2015 willamette university college of ... · • text & context •...

Thursday, August 20, 2015Willamette University College of Law

Orientation Week

Prof. Jeff Dobbins(Full presentation available on OSA website)

Presenter

Presentation Notes

Welcome; JCD; Civil Procedure (Admin, Federal Courts / federal jurisdiction, Appellate Process). Goal for next hour: baseline knowledge about structure of legal system in the United States, with emphasis on sources of law and structure of the federal courts. Review for some; unfamiliar to others. This is a 30,000 foot overview. There are differences, variations, alternatives, both from state to state and system to system, and over time – not necessarily always this way -- that I will not discuss here, but you’re welcome to ask about later (may have 5 minutes in the end for Q/A), or you can ask your other professors about. 10 minutes – sources of law; 10 minutes – structure of courts; 20 minutes relationship between courts. -- Begin: Where does law come from? Not asking a deep theoretical or jurisprudential question. Intended to be a simple one. If you want to know where you go to identify the baseline rules governing our legal system, where do you go? -- Four basic sources.

Administrative Rules

Constitution

Statutes

Common Law

Presenter

Presentation Notes

Will discuss more in a moment, but this basic hierarchy is replicated at a number of levels in the U.S. System –


U.S. Constitution

U.S. Code (Congress)

Common Law


Oregon Constitution

Oregon Revised Statutes

Common Law

Policies

City Charter

City Ordinances

Common Law

FEDERAL

STATE

LOCAL

Presenter

Presentation Notes

This basic structure replicates itself through the various levels of national sovereigns – federal, state, and local. There’s surprisingly little direct conflict between these areas. Federal law is governed by allocation of authority under the Federal Constitution – federal government was granted authority by the states, and its powers are limited to those outlined in the constitution. As you’ll learn in constitutional law, the proper scope of this delegation of authority has always been in dispute, but there are limits. Where there is direct conflict, federal law wins. How do you know? Based on first big topic of conversation: Constitution! Some notes: Federal Common Law is an unusual area. Not generally within the scope of federal court authority, as it’s not really within the scope of federal authority under the constitution generally. So most of the 1L materials that you work on are state law principles, not federal. There are some areas in which federal law governs, but many – most -- are state. Also, common law principles applicable to localities (cities and states) are generally not established by local courts (not really that many of those), but state courts.


Constitution

Statutes

Common Law

• Drafted, then ratified (usually by legislative or popular vote)

• Provides structure of government

• Outlines powers, duties, limits of government

• Establishes fundamental rights of people that gov’t cannot infringe upon

• Difficult, but possible, to amend

• Examples: U.S. Constitution, Oregon Constitution

Presenter

Presentation Notes

Source of all law – or, at least, under current systems, it’s the source of all law. Constitution… Drafted, then ratified (usually by legislative or popular vote) Provides structure of government Outlines powers, duties, limits of government Difficult, but possible, to amend Examples: U.S. Constitution, Oregon Constitution U.S. Const. Art. VI -- Here’s what I promised. -- the “Supremacy Clause” – this is the kind of high-level discussion that you see.


Constitution

Statutes

Common Law

• Drafted, then ratified (usually by legislative or popular vote)

• Provides structure of government

• Outlines powers, duties, limits of government

• Establishes fundamental rights of people that gov’t cannot infringe upon

• Difficult, but possible, to amend

• Examples: U.S. Constitution, Oregon Constitution

• U.S. Const. Art. VI

Article VI. …. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

“Supremacy Clause”

Presenter

Presentation Notes

Source of all law – or, at least, under current systems, it’s the source of all law. Constitution… Drafted, then ratified (usually by legislative or popular vote) Provides structure of government Outlines powers, duties, limits of government Difficult, but possible, to amend Examples: U.S. Constitution, Oregon Constitution U.S. Const. Art. VI -- Here’s what I promised. -- the “Supremacy Clause” – this is the kind of high-level discussion that you see.


Constitution

Statutes

Common Law

• Enacted by legislature with executive branch approval (or veto override)

• Includes Civil and Criminal Law• Limited by scope of Constitutional

powers, restrictions• Often preceded / accompanied by

legislative committee reports, hearings

• Occasionally based on model codes

• Can be amended by subsequent legislative enactments

• Examples: U.S. Code, Oregon Revised Statutes (codified statutes)

• 16 U.S.C. § 347; O.R.S. 173.300

Presenter

Presentation Notes

Next one: Statutes Enacted by legislature with executive branch approval (or veto override) Includes Civil and Criminal Law Limited by scope of Constitutional powers, restrictions Often preceded / accompanied by legislative committee reports, hearings Occasionally based on model codes Can be amended by subsequent legislative enactments Examples: U.S. Code, Oregon Revised Statutes (codified statutes) 16 U.S.C. § 347; O.R.S. 173.300


Constitution

Statutes

Common Law

• (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute)

• Most common form of interaction with public in the US

• Limited by scope of Constitutional and statutory authority

• Process of promulgation and application of rules is subject of Administrative Law

• Can be modified by later rules• Examples: Code of Federal

Regulations; Oregon Admin. Rules (codified rules)

• 36 C.F.R. § 13.920

Presenter

Presentation Notes

Next one: Administrative Rules (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute) Most common form of interaction with public in the US Limited by scope of Constitutional and statutory authority Process of promulgation and application of rules is subject of Administrative Law Can be modified by later rules Examples: Code of Federal Regulations; Oregon Admin. Rules (codified rules) 36 C.F.R. § 13.920 Special form of Rules: Rules of Procedure = Civ Pro. (FRCP, ORCP) All of these forms of enacted / promulgated law are known as “positive law” – they are specifically articulated in writing by authorized bodies.


Constitution

Statutes

Common Law

• (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute)

• Most common form of interaction with public in the US

• Limited by scope of Constitutional and statutory authority

• Process of promulgation and application of rules is subject of Administrative Law

• Can be modified by later rules• Examples: Code of Federal

Regulations; Oregon Admin. Rules (codified rules)

• 36 C.F.R. § 13.920• Special form of Rules: Rules of

Procedure = Civ Pro. (FRCP, ORCP)

Presenter

Presentation Notes

Next one: Administrative Rules (aka “regulations”) Promulgated by Administrative Agencies (which were created by statute) Most common form of interaction with public in the US Limited by scope of Constitutional and statutory authority Process of promulgation and application of rules is subject of Administrative Law Can be modified by later rules Examples: Code of Federal Regulations; Oregon Admin. Rules (codified rules) 36 C.F.R. § 13.920 Special form of Rules: Rules of Procedure = Civ Pro. (FRCP, ORCP) All of these forms of enacted / promulgated law are known as “positive law” – they are specifically articulated in writing by authorized bodies.


Constitution

Statutes

Common Law

• Law announced by Courts in certain fundamental areas

• Source of much law in nation’s first 100 years (rooted in English law)

• Much of First Year of Law School focuses on common law areas: Contract, Criminal, Tort, Property.

• Almost exclusively state-court issued opinions.

• Common law cases can be overruled by courts, or (most common now) codified - turned into statutes by legislatures.

• Model codes (seen in most areas) attempt to synthesize & write down common law principles


Constitution

Statutes

Judicial Interpretation



Judicial interpretation= “Common Law”?

• Text & context• Legislative history• Legislative intent• Interpretive canons

Presenter

Presentation Notes

Of course, all of these sources of law are subject to judicial interpretation in civil and criminal cases. How is that done? Process of determining what the law means … much ink and thought spilled on this. Generally phrased as “intent of the drafters” – though even there, the idea can fall short (what did framers of Constitution think about GPS trackers or internet?) Best evidence is: Text – and surrounding words. (“Surrounding” becomes ever broader) Legislative history Belief re intent “Interpretive canons” – linguistic (Examples: “every word has meaning” & policy – based “read statutes narrowly to avoid constitutional questions.”) Court-announced. Sometimes even looks very different than plain language of statutes. In our common law system, these statements effectively turns into “law” – common law. It does that through force of precedent – the topic for the last 10-15 minutes of class. Leave it for a moment, and talk about structure of these entities – these courts. Once again, remember that this structure is replicated within each of the sovereign systems; Oregon has Constitution, Statutes, Administrative Rules, Common Law principles. In fact, common law principles are more important at state level than at federal level (arguably, no “general federal common law.” – Erie, which you learn about in civil procedure and federal courts.)

Trial Courts

Court of Last Resort

Intermediate

Appellate Court

Presenter

Presentation Notes

Will discuss role of these courts in more detail in a moment, but suffice it to say that the basic structure looks something like this: Trial courts try cases, appeals are taken by losing parties to intermediate appellate courts, and some of the intermediate appellate court cases are reviewed by the highest court – the court of last resort. Describe State - Federal

U.S. District Courts

(1-4 per state)

U.S. Supreme Court

(Washington, DC)

U.S. Courts of Appeals

(12 Geographic Circuits)

Presenter

Presentation Notes

Most familiar with federal courts U.S. District Courts – usually one per state, but some have up to 4 – CA, NY, TX, FL U.S. Courts of Appeal – there are 12 geographic circuits – first through 11th, and then DC Circuit. U.S. Supreme Court. Nominated by president, confirmed by senate, serve “during good behavior” = life term, per Article III of constitution.

The Supreme Court of the United States

James R. Browning Federal Courthouse, San Francisco, CA(also in Pasadena, Portland, Seattle)

Mark O. Hatfield Federal Courthouse, Portland, OR(also in Eugene, Medford, Pendleton)

Trial Courts


Intermediate

Appellate Court

Presenter

Presentation Notes

Describe State – Federal. 50 different additional jurisdictions in the US; states, each with their own structures, methods of selection (many state court judges are elected to terms of office; some partisan elections, some non-partisan elections; some retention elections, some pure terms. Some appointed like federal system.) Also DC, PR, VI, Guam, other territorial courts that we won’t get into here. Same structure still holds true, though. Again, the basics run something like this…

Circuit Courts

(generally one per county)

Oregon Supreme Court

(Salem, OR)

Oregon Court of Appeals

(One court in Salem, OR)

Presenter

Presentation Notes

Describe Oregon Courts. 7 justices, 13 appellate judges, then circuit judges throughout state. Are also other “limited jurisdiction” courts – will discuss shortly.

Presenter

Presentation Notes

Note that the US District Court building is just across the park from the Multnomah County Circuit Court building in Downtown Portland. (Show clicks.) Cases in these courts can look very similar, but there are very particular rules about what kinds of cases can be brought in federal court. See Civil Procedure, Federal Courts.

Trial Courts


Intermediate

Appellate Court

www.courtstatistics.org

Presenter

Presentation Notes

FYI, Selection of state judges is very different than selection of federal judges – hardly any “life term” judges in state courts. More commonly based on elections, whether partisan (like in Alabama) or nonpartisan (as in Oregon), or selection / appointment by a commission, with gubernatorial involvement and subsequent “retention” elections. Even when “elected,” often initially come to bench by appointment on an interim basis. In many states, like Oregon, very rare for incumbent judges to have opposition. Leave to you and subsequent classes to discuss the way in which different methods of selection – appointment vs. election, life terms vs. limited terms – may be beneficial or not to the rule of law in different jurisdictions.

http://www.courtstatistics.org/

Superior Courts

(14 divisions)

Supreme Judicial Court

(Boston, MA)

Appeals Court

(Boston, MA)

Supreme Courts

(12 districts)

Court of Appeals

(Albany, NY)

Appellate Divisions

of the Supreme Courts

(4 departments)

Presenter

Presentation Notes

Law & Order. – Supreme Court in NY is trial court. Note generally – states are different from federal system. Law school focuses on federal and general common law principles, because we want to train you to practice anywhere, but that means it’s your responsibility to pay attention when you move from sovereign to sovereign. Just as practicing law in France or Saudi Arabia or Germany will be different from practicing in the US, practicing in Oregon federal court different than practicing in Oregon state court. Maybe not as much of a difference, but there is. And the laws differ, too.

Trial Courts


Intermediate

Appellate Court

• State: Courts of “General Jurisdiction” (Federal = Limited J.)

• 1 or more judges on “court”• Judges sit individually & manage

cases filed by parties• Criminal: State or Prosecutor

files vs. Defendant (the accused), who is “guilty” or not guilty (std. of proof: BARD)

• Civil: Plaintiff or Petitioner files vs. Defendant or Respondent; D is “liable” or “not liable” Preponderance OTE

• Facts found by judge or jury based on affidavit & testimony / cross ex

• Many (90+%) filed cases are never tried, but settled or dismissed

• Occasional written opinions on motion; rarely reported @ state level, federal D.Ct. more common; 254 F. Supp.2d 1196 (D. Or. 2014).

Presenter

Presentation Notes

At state level, there are usually trial courts “of general jurisdiction.” True for (for instance) State Circuit Courts in Oregon. What does that mean? Well, this term – jurisdiction – is one you hear a lot in the first year civil procedure class. It can mean different things. Generally, refers to the scope of a court’s authority over cases or parties, or the principles associated with the scope of that authority. In this context, it means that in all states, there are some courts – generally these lower level trial courts – that have authority to hear cases of essentially every kind. Often, this authority will end up being delegated over time by the legislature to specialty courts that have exclusive or concurrent jurisdiction over certain subclasses of cases – Probate Courts, City Courts, Traffic Courts, etc. Note, however, that federal courts are not courts of general jurisdiction – they have jurisdiction limited by both constitution and statute. Learn more about this in Civil Procedure and Federal Courts. At end of trial court case, have a “judgment” that deems guilty / not guilty; liable / not liable. If the loser doesn’t like it, they can appeal. In all but a couple of states, goes to next level – intermediate appellate courts.

Trial Courts


Intermediate

Appellate Court

• Appeal “as of right” when losing party requests review

• 5-20+ judges on court• Hear cases in groups (panels) of 3+• Limited by established factual

record• Limited by issues presented by

parties below or in briefs• Limited by “standard of review.”

Don’t necessarily reverse just because disagree

• Limited by “harmless error” doctrine

• Focus on issues of law – disputes of fact rarely relevant

• Written opinions, usually reported.• Examples: Sohappy v. Smith, 529

F.2d 570 (9th Cir. 1976); Atkeson v. T & K Lands, LLC, 258 Or. App. 373, 309 P.3d 188 (2013).

Presenter

Presentation Notes

Describe State – Federal. Note different citation formats, idea of “parallel citations.”

Trial Courts


Intermediate

Appellate Court

• Discretionary review + some appeals as of right (capital cases, e.g.).

• 5-9 judges on “court”; sit en banc• Appellate decisions – attention to

legal holdings, rather than facts.• Focus on areas of particular

importance, conflict or uncertainty• Written, almost always reported

opinions, often multiple opinions by different judges / justices

• Examples: Citizens United v. FEC, 558 U.S. 310 (2010); State v. Lawson, 352 Or. 724 (2012).

Presenter

Presentation Notes

Details of each court. Some mandatory review; generally very discretionary. USSC ~15K petitions, takes about 100. Oregon a little different – Note that all these courts have geographical limits, but theoretically, within those limits, same power. If Washington State Dept. of Ecology acts contrary to federal constitution, a federal district court in ED Washington can deem the action unconstitutional and unlawful, just as much as the Ninth Circuit or USSC can. Some limits-can get different opinions, for instance, from one geographic location to another (statute might be read to mean one thing in one circuit court, another thing in another circuit court) – that’s when the Courts of Last resort have to step in.

Reported opinions – dominant source of reading material for your 1L year (and beyond), though supplemented by some statutes, rules, other commentary

Mostly (though not all) appellate ct. opinions Multiple judges on a panel sometimes =>

multiple opinions.◦ Majority opinion (majority of court joins and agrees)◦ Concurring opinion (agrees with outcome, but has

something else to say regarding reasoning)◦ Dissenting opinion (disagrees with outcome)◦ Will occasionally apply to different parts of opinion.

U.S. v. Kebodeaux, 133 S.Ct. 2496 (2013).

5 justices support Breyer’s opinion for the Court. 2 more agree with outcome, not reasoning (and

not necessarily with each others’ reasoning) 2 more disagree with outcome (don’t entirely

agree with each other) “Per curiam” – unsigned; often (but not always)

unanimous.

Presenter

Presentation Notes

Kebodeaux – Case decided a couple of months ago involving whether Congress has power to revise (and arguably strengthen) obligations regarding state sex offender registration laws for those who were convicted of crimes while in the military, but whose sentence had been served at the time of the new congressional statute. After K. had been released and initially registered, Congress enacted a law that imposed differing penalties and conditions on those subject to reporting requirements under federal law. CA5 concluded that requiring him to comply with new law was outside congressional power; USSC disagreed. Note switch in outcome (the 5 votes are strict with the criminal) in order to preserve congressional authority. “Congress did not apply SORNA to an individual who had, prior to its enactment, been “unconditionally released,” but rather to an individual already subject to federal registration requirements enacted pursuant to the Military Regulation and Necessary and Proper Clauses. ” (NB Ex post facto & DP clauses not at issue).

Precedent: The principle that a court’s legal* decisions should be guided* by relevant* prior legal holdings* by other courts.◦ *Legal decisions, not factual ones.◦ *Guidance can vary in strictness – depends on

relationships between second court and first one.◦ *Relevance can be tricky to determine◦ *Holdings count, not “dicta.”

Presenter

Presentation Notes

Precedent… --Important – and arguably fundamental - part of the common law system of courts in the United States. And here I mean common law in a broad, historical sense – in the sense that courts have a substantial role in defining and articulating the legal principles that guide relationships under the law. Basic idea is that once you answer a legal question, subsequent similar legal questions should be answered in basically the same way. So look at how prior cases have decided particular legal questions. -- Asterisks ** -- there are, of course, qualifications. *Applies only to “legal” decisions – not factual ones. A factual finding does not bind later parties under principles of precedent (though there are equivalent doctrines that will often lock a party in once certain facts have been found in a case – issue preclusion – civ pro.) *Strictness of “guidance” can vary – will talk about that more in a moment. Sometimes, there’s no choice by second court – must follow – other times, there is a choice. * Relevance – Much of what you discuss & learn in 1L classes is intended to help you suss out what parts of Case 1 are relevant to Case 2, and what parts aren’t relevant. * Sometimes, courts talk about things that they don’t have to talk about. Only holdings matter. Say that they decide that the evidence does not support a trial court’s conclusion that malpractice was committed. They then go on to talk about why the relevant statute governing damages would not support the damages that were awarded anyway. Damages discussion is arguably “dicta” and wouldn’t bind a later decision.

Precedent: The principle that a court’s legal* decisions should be guided* by relevant* prior legal holdings* by other courts.

Applies to all types of decisions & legal principles (common law, statutes, constitutional interp., etc.)

Note: Does not apply to degree that first court does not intend later courts to be bound. (So: unpublished, “non-binding” decisions or orders are often considered non-precedential.)

Presenter

Presentation Notes

Precedent… --”Guided*”? What does that mean? … different strengths of precedent exist. Look at spectrum.

1) Binding Precedent (slide 1)◦ The second court has no choice but to follow the

legal principles of the prior decision.◦ Usually applies only to situations in which

decisions by the second court can be appealed to the first court. Second court is “bound” by prior court’s precedent.◦ Exceptions? If the law changes. Statutes changed or repealed. If you want to challenge / disagree with prior decision,

you can – but chances are, you’ll be reversed.

Presenter

Presentation Notes

When the definition says “guided*,” what does that mean? Strictest type: Applies to decisions of USSC vs decisions of any other court on areas of expertise. Applies to decisions of Ct. App. Panels to other ct. app panels. A little different. Rules in states vary re management of decisions of intermediate courts of appeal. Intracircuit binding precedent is Unusual example. Why? Because not in appellate relationship. If Judges Kozinski, Kleinfeld, and Graber decide a case one way, no guarantee that they – or any given CA9 panel – will hear the case. Appeals go to USSC, not to another CA9 panel. So later court panel – not in appellate relationship with first. It’s luck of the draw. Not generally the case. One D.Ct. judge doesn’t bind another D. Ct. judge in this way. BUT -- Argue that it was wrong and try and persuade court to reverse. Happened in Roper v. Simmons, MO S. Ct. concluded that USSC decision from 9 years prior was incorrect, and refused to follow it. Worked!

1) Binding Precedent (slide 2)◦ Example: Decisions of the U.S. Supreme Court on the

federal constitution and federal statutes are “binding precedent” on all federal and state courts.

◦ Example: Decisions of the U.S. Court of Appeals for the Ninth Circuit are “binding precedent” on all U.S. District Courts for districts in the Ninth Circuit (OR, WA, ID, CA, etc.)

◦ Example: Decisions of the Washington Supreme Court are “binding precedent” on all Washington Trial Courts.

◦ Unusual Example: A decision by one panel of U.S. Court of Appeals judges is binding on all subsequent panels unless en banc court overrules.

Presenter

Presentation Notes

When the definition says “guided*,” what does that mean? Important part of the common law system of courts in the United States. And here I mean common law in a broad, historical sense – in the sense that courts have a substantial role in defining and articulating the legal principles that guide the operative Unusual example. Why? Because not in appellate relationship. If Judges Kozinski, Kleinfeld, and Graber decide a case one way, no guarantee that they – or any given CA9 panel – will hear the case. Appeals go to USSC, not to another CA9 panel. So later court panel – not in appellate relationship with first. It’s luck of the draw. Not generally the case. One D.Ct. judge doesn’t bind another D. Ct. judge in this way. Argue that it was wrong and try and persuade court to reverse. Happened in Roper v. Simmons, MO S. Ct. concluded that USSC decision from 9 years prior was incorrect, and refused to follow it. Worked!

2) “Stare Decisis”◦ To “stand on what has been decided”◦ Principle that a court, in deciding a subsequent case,

should follow its own legal holdings in prior cases.◦ Why? Consistency, efficiency, fairness, predictability,

encourages respect for the court.◦ Not as strict as “binding precedent” because a court has

absolute authority to overrule its own prior legal holdings.◦ In most situations, a court will not overrule its prior cases

without well-articulated reasons.◦ Examples: Applies in U.S. Supreme Court to prior decisions

of U.S. Supreme Court, applies in OR S. Ct. to prior decisions of OR S. Ct.

Presenter

Presentation Notes

When the definition says “guided*,” what does that mean? Next level of strictness: Stare Decisis. “The decision has been made”. Significant part of common law system of courts in the United States. Essentially, point is that once a court decides an issue of law, that decision won’t be reversed unless there’s a good reason to do so. Still has to bind prior decision; still has to

2) “Stare Decisis”◦ Planned Parenthood v. Casey, 505 U.S. 833, 854-855

(U.S.Pa.,1992) (O’Connor, Kennedy, Souter)◦ “…[W]hen this Court reexamines a prior holding, its judgment is

customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. … [W]e may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.”

Presenter

Presentation Notes

When the definition says “guided*,” what does that mean? Important part of the common law system of courts in the United States. And here I mean common law in a broad, historical sense – in the sense that courts have a substantial role in defining and articulating the legal principles that guide the operative Unusual example. Why? Because not in appellate relationship. If Judges Kozinski, Kleinfeld, and Graber decide a case one way, no guarantee that they – or any given CA9 panel – will hear the case. Appeals go to USSC, not to another CA9 panel. So later court panel – not in appellate relationship with first. It’s luck of the draw. Not generally the case. One D.Ct. judge doesn’t bind another D. Ct. judge in this way. Argue that it was wrong and try and persuade court to reverse. Happened in Roper v. Simmons, MO S. Ct. concluded that USSC decision from 9 years prior was incorrect, and refused to follow it. Worked!

3) Persuasive Precedent.No “obligation” to follow the decision of another court.

Generally applies when the first decision is from a jurisdiction outside of the appellate process for the second court.◦ Example: CA Supreme Court decisions are merely “persuasive”

precedent for OR S.Ct.◦ Depends on quality of reasoning, perceived quality of court, relevance

of prior decision (“directly on point,” well-reasoned prior decision makes more difference than

◦ Often, persuasive precedent is largely irrelevant and courts don’t want to hear it. Clutters the brief. Tell them what they are obligated to do, and that’s it.

4) Other (“Secondary Sources”) - Statements that aren’t opinions deciding an issue in a case, or statements by entities other than courts, which may be useful to reasoning in a later case, but which doesn’t really have any precedential value at all. (Though some are more persuasive than others.)

Highest court in a system has the “last word” on that sovereign’s law.◦ U.S. Supreme Court has “last word” on interpretation of U.S.

Constitution, federal statutes, federal administrative rules◦ Oregon Supreme Court is bound by U.S. Supreme Court on

interpretations of US Law, BUT OR S.Ct. is “last word” on interpretation of Oregon Constitution, statutes & rules (including common law).

◦ U.S. S.Ct. won’t interpret Oregon’s Laws◦ Federal courts will apply Oregon laws on occasion, but are

only attempting to apply/interpret law as OR S.Ct. would.◦ State courts must apply federal law (and US Supreme Court

will review their interpretations of it)◦ Of course, if OR S.Ct. interprets OR Statute to require action

unconstitutional under federal law, USSC can apply federal law and overrule state law.

Constitution; Statutes; Rules; Common Law (both traditional and interpretive)

Multiple sovereigns – federal, state, local

Higher controls the lower Court of Last Resort;

Intermediate Court of Appeals; Trial Court

Trial = fact; Appellate = law The higher court controls the

lower by principles of precedent

Federal courts: limited jurisdiction. State courts: general jurisdiction.

Civil case: Plaintiff sues defendant to determine liability by POTE

Criminal case: Prosecutor charges the defendant to determine guilt BARD

Majority (governs precedential effect) / Concurrence / Dissent

Presenter

Presentation Notes

BTW, high / low – I should be more careful.

thursday, august 20, 2015 willamette university college of ... · • text & context •...

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