Procedural participation should follow substantial participation. The procedural statement deals with what the court has done with the case procedurally. This may include setting aside the judgment of the lower court, upholding the judgment of the lower court, or adjusting a judgment imposed by the lower court. This book discusses litigation in detail in Chapter 2, “The Legal System in the United States.” Finally, but still decisive for the case brief, reasoning is reasoning. The reasoning deals with the reasoning of judges when deciding the case. Justifications may establish guidelines that are not technically jurisprudence, but may still serve as precedents in some cases. Knowing where to start a difficult legal research project can be difficult. But if you already understand the basics of legal research, the process can be considerably simpler, if not faster. The term “source of law” can sometimes refer to the sovereign or seat of power from which the law derives its validity.  The first source of law is constitutional law. Two constitutions are applicable in each state: the Federal or U.S. Constitution, which is in force throughout the United States of America, and the State Constitution.
The Constitution of the United States created our legal system, as discussed in Chapter 2, “The Legal System in the United States.” State constitutions generally focus on matters of local concern. In the old England, before the colonization of the United States, jurisdiction was the most widespread source of law. This contrasted with countries that followed the Roman legal system, which was based mainly on written codes of conduct promulgated by the legislator. Case law in England was entangled in local tradition and customs. The social principles of law and justice were the guiding principles when the courts announced their judgments. In an effort to ensure consistency, it is the policy of English judges to follow previous judicial decisions, creating for the first time a unified legal system across the country. Case law was called common law because it was common to the entire nation (Duhaime, L., 2010). The cases are diverse, and the case law does not really have the force of law until the judge has ruled on the case, so there must be a way to ensure the predictability of the jurisprudence. It would not be fair to punish someone for behavior that is not yet illegal.
Therefore, judges adhere to a policy called stare decisis. Stare decisis is derived from English common law and requires judges to follow judgments in previous cases. A previous case is called a precedent. Once judges have rendered a decision in a particular case, the public can be confident that the resulting precedent will continue to be followed by other judges. Stare decisis is not absolute; Judges may depart from it to adapt the law to the modern expectations of society. Don`t cast your net too far when it comes to legal research, i.e. you should focus on the relevant jurisdiction. For example, does your case deal with federal or state law? And if it is the law of the state, which state? You may find a case in California state court that goes straight to the point, but it won`t be much help if your legal project involves New York law. Whether you`re a student still in law school or a seasoned lawyer with years of experience, strong research skills are essential to making a winning argument.
That`s why it`s so important to know how to conduct legal research, including where to start and what steps to take. The common law still plays an important role in criminal law, even though most of today`s crimes are enshrined in law. The classification of crimes as felonies reflects English common law. Legislators often create laws out of old common law crimes. Judges follow the common law when defining legal terms, initiating criminal prosecutions and creating defences for crimes. The United States is considered a common law country. All states, with the exception of Louisiana, which is based on the French Civil Code, adopt common law as state law, unless a law provides otherwise (Legal Definition, 2010). For security reasons, we see more exceptions to constitutional protections in public schools and prisons. For example, public schools and prisons may prescribe a certain style of dress to ensure safety. Technically, forcing a person to dress a certain way could violate the right to self-expression guaranteed by the First Amendment. However, while wearing a uniform can reduce gang conflict at school and prevent prisoners from escaping, the government can constitutionally suppress free speech in these places.
State criminal laws vary widely, so much so that in the early 1960s, a group of jurists, lawyers, and judges who are members of the American Law Institute drafted a series of criminal bills called the Model Penal Code. The purpose of the Model Penal Code was to provide a standardized set of criminal laws that all states could adopt, thereby simplifying the diversity effect of the United States legal system. Although the Model Penal Code has not been widely adopted, a majority of States have incorporated parts of it into their penal codes, and the Model Penal Code survives as a guideline and talking point when state legislators amend their criminal laws. A judge writes the legal opinion. Judges vote on how they decide, and not all cases are supported by a unanimous decision. Occasionally, other judges will wish to supplement the judicial opinion. If a judge agrees with the judge`s opinion, the judge can write a concurring opinion, which is why the judge agrees. If a judge disagrees with his or her opinion, he or she could write a dissenting opinion explaining why the judge disagrees. The dissenting opinion does not change the opinion of the court, but can also serve as a precedent in a future case if there are reasons to change the law. Parliamentary conventions are not strict legal rules, but their violation can lead to violations of the law. They are usually found in the English legal system and help compensate for the lack of a single written constitution in the UK. As a general rule, parliamentary conventions govern relationships, such as those between the House of Lords and the House of Commons; between the monarch and Parliament; and between Britain and its colonies.
For example, under the Finance Act 1909, the House of Lords lost its power to obstruct the passage of bills and can only delay it. Prerogatives are subject to a convention, and in 2010 the monarch`s power to dissolve parliament was abolished. Britain`s tradition with its colonies is that they govern themselves (though historically rarely with universal suffrage) and that the mother country should stay away. Published legal opinions are written by judges and can be lengthy. They may also contain more than one case law, depending on the number of issues addressed. Pleadings reduce a court`s opinion to the essentials and can contribute to understanding the most important aspects of the case. Standard short formats may vary, but a format that lawyers and paralegals often use is explained in the next paragraph. Read Keeler v. Superior Court, 470 P.2d 617 (1970). In the Keeler case, the accused attacked his pregnant ex-wife, and their baby was subsequently stillborn. The California Supreme Court dismissed a murder charge against Keeler under Section 187 of the California Penal Code because the law only criminalized the malicious murder of a “human being.” The court made its decision after reviewing the human definition and concluding that the definition did not include the fetus.
The court argued that he could not create a new crime without violating the Due Process Clause, the separation of powers, and Section 6 of the California Penal Code, which prohibits the creation of common crimes. Following the Keeler decision, California legislators amended section 187 of the Criminal Code to admit a fetus, except for abortions (Cal. Penal Code, 2010). The law is inferior to constitutional law, which means that a law cannot conflict with or attempt to replace constitutional rights. If there is a conflict between constitutional law and statutory law, the courts must resolve the conflict. Courts may strike down unconstitutional laws because of their power of judicial review, which will be discussed in a future section. Now that you`ve gathered the facts and know your legal problem, the next step is to know what to look for.