General overview on American legal system
Law of the United States was originally derived from the common law system of English. The supreme Law of the land is the United States Constitution, and under this constitution, congress enacts many laws and treaties. Under the supremacy clause, constitution has given wide powers to congress to make laws and to enact them.
In the United States, the law is derived from mainly four sources. Constitutional law, Administrative law, Statues and common law. Among these the most important source of law is the Constitutional law. For example, if congress enacts a law which is contrary to the Constitutional law then the court can invalidate it as unconstitutional. Treaties are also considered as sources of law. If the congress does not interfere with a court rule, then it becomes a law. Court rules are framed by judicial conference. This conference are made by advisory committee consisted of judges, scholars and person’s specialized in particular branch of law. Some of the court rules are Federal rule of civil procedure, Federal rule of criminal procedure etc.
Common law is also an important source of law. The principle behind why courts refer to case laws when there is no enacted laws is stare decisis. The rule helps the court to look back to past cases for deciding future matters. It allows the court to decide the present matter as decided in past.
State laws, each state is separate from the other and has its own sovereign powers.
Fifty states have their own state constitutions and state governments, state enacts their own laws and the federal courts cannot extend its jurisdiction to interfere in state matters. They retain plenary powers to make laws covering anything not preempted by federal constitution.
State Constitutions delegated its law making power to number of agencies, public bodies and other governmental departments in some particular matters. All states constitution, statutes and administrative laws are subject to judicial interpretation by the court like the Federal.
Finally American citizens are bound by a number of federal and state laws, which they themselves find it difficult to trace out under which geographical location they fall to determine a case. Moreover efforts are still going on to codify a uniform state law, which is not yet achieved.
Author:RajadasKurias
JuniorAssociate
LegalEase Solutions Pvt Ltd
Kochi.
Monday, March 31, 2008
Force of Law
The legal systems of both India and the US have both originated from the Common law. No wonder why the basic principles of law are very similar or almost the same. Law gets its existence from various sources like customs, common law, statutes, precedents etc. Austin’s famous definition of law as the command of the sovereign gives an idea about the binding nature of law. As we live in an organized structure of a system called ‘state’ we are bound to follow certain rules and regulations in order for the state to maintain peace and security. Even if it is not mandatory to follow the law of the land, people have a fear of law. Or it is rather self control or self restriction driven by moral principles. Because we live in a society, people generally follow a pattern of behavior that is acceptable by all including the state. There need not be any specific law for that. Law enables the State to handle any situation where individuals start behaving against the acceptable patterns.
Law has become very diverse keeping in pace with the various transactions that people enter in to. Law is keeping abreast of the latest developments in the areas of business, communications and technology. Even if the law has various sources, it has to accept the changes that have occurred in the society and mindset of the people. What good can the law serve if it does not cater to the interests of the people? After all the ultimate purpose of a legal system is administration of justice and justice is for the people. Out of the various sources of law like customs, statutes, precedents etc, there might be certain principles that will not hold good in today’s situation. Most legal systems of the civilized world are designed in such a way as to be amended as and when the society changes in that regard. Precedents as a source of law play a very important role. There are certain basic principles of law that never requires any change. For e.g., the natural law. This can remain the same for all generations. The interpretation given to this law in the 19th century need not be the same in the 21st century also. Judges who interpret the law play a vital role here. They can interpret the law in such a way that it meets the standards of the new century. Precedent is a strong source of law in this regard. Though when compared to the binding nature of statutes, precedents has got only a persuasive nature. The Legislature can always invalidate or overrule such unwritten laws by amending the existing statute or by bringing in a new statute. This gives a high hand to the legislature which is run by people’s representatives. Legislature is thus supreme though Constitution is said to be the one. Constitution is itself a product of the legislature.
Author:RubinJohn
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.
The legal systems of both India and the US have both originated from the Common law. No wonder why the basic principles of law are very similar or almost the same. Law gets its existence from various sources like customs, common law, statutes, precedents etc. Austin’s famous definition of law as the command of the sovereign gives an idea about the binding nature of law. As we live in an organized structure of a system called ‘state’ we are bound to follow certain rules and regulations in order for the state to maintain peace and security. Even if it is not mandatory to follow the law of the land, people have a fear of law. Or it is rather self control or self restriction driven by moral principles. Because we live in a society, people generally follow a pattern of behavior that is acceptable by all including the state. There need not be any specific law for that. Law enables the State to handle any situation where individuals start behaving against the acceptable patterns.
Law has become very diverse keeping in pace with the various transactions that people enter in to. Law is keeping abreast of the latest developments in the areas of business, communications and technology. Even if the law has various sources, it has to accept the changes that have occurred in the society and mindset of the people. What good can the law serve if it does not cater to the interests of the people? After all the ultimate purpose of a legal system is administration of justice and justice is for the people. Out of the various sources of law like customs, statutes, precedents etc, there might be certain principles that will not hold good in today’s situation. Most legal systems of the civilized world are designed in such a way as to be amended as and when the society changes in that regard. Precedents as a source of law play a very important role. There are certain basic principles of law that never requires any change. For e.g., the natural law. This can remain the same for all generations. The interpretation given to this law in the 19th century need not be the same in the 21st century also. Judges who interpret the law play a vital role here. They can interpret the law in such a way that it meets the standards of the new century. Precedent is a strong source of law in this regard. Though when compared to the binding nature of statutes, precedents has got only a persuasive nature. The Legislature can always invalidate or overrule such unwritten laws by amending the existing statute or by bringing in a new statute. This gives a high hand to the legislature which is run by people’s representatives. Legislature is thus supreme though Constitution is said to be the one. Constitution is itself a product of the legislature.
Author:RubinJohn
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.
Courts and Administration of Justice
Both in India and the US, Common law has lost its independent existence. It has got diluted in to their legal systems. Common law has become very much their own. The striking similarity between the US and Indian legal system is their common law origin. Common law has got Americanized and it is now ‘American’ law which includes the Constitution, the statutes, treaties, administrative agency rules, state constitution, state statutes etc. We can also see traces of common law in the Indian Constitution, various Indian statutes. But we cannot separate out common law from Indian law. American legal system is far more advanced than Indian legal system. The Court structure is very systematic in the US though complicated. Two parallel system of Courts run in the US owing to the nature of the political system of the country i.e., federal and state. The hierarchy of courts is well set up but it has its own inadequacies. There is an elaborate system of courts both in US and India but the results produced does not always meet the standards of justice as laid down by the common law. Delay, misinterpretation, maladministration etc haps the delivery of justice.
Author:RubinJohn
JuniorAssociate
LegalEase Solutions Pvt Ltd
Kochi.
Both in India and the US, Common law has lost its independent existence. It has got diluted in to their legal systems. Common law has become very much their own. The striking similarity between the US and Indian legal system is their common law origin. Common law has got Americanized and it is now ‘American’ law which includes the Constitution, the statutes, treaties, administrative agency rules, state constitution, state statutes etc. We can also see traces of common law in the Indian Constitution, various Indian statutes. But we cannot separate out common law from Indian law. American legal system is far more advanced than Indian legal system. The Court structure is very systematic in the US though complicated. Two parallel system of Courts run in the US owing to the nature of the political system of the country i.e., federal and state. The hierarchy of courts is well set up but it has its own inadequacies. There is an elaborate system of courts both in US and India but the results produced does not always meet the standards of justice as laid down by the common law. Delay, misinterpretation, maladministration etc haps the delivery of justice.
Author:RubinJohn
JuniorAssociate
LegalEase Solutions Pvt Ltd
Kochi.
THE ART OF LEGAL WRITING
Writing is an acquired skill. Having good ideas but not being able to effectively put it across to others is a problem that many people face today. With proper training it is possible to get rid of this handicap. Like all skills, writing also requires some formal specialized training. The profession of a lawyer involves a lot of writing but a law student gets little or no formal training in writing while at law school. A student of law may refer to secondary sources like books to write an assignment. However a lawyer usually is required to refer to the primary sources of law for the purpose of his profession. Primary sources can be divided into two. They are case laws [judicial decisions] and enacted law [statutes, constitution and administrative regulations] Gathering of information therefore becomes very important and it becomes necessary that the information should be taken from the right sources.
The first information that needs to be collected is regarding the origin of the primary source of law. The rule is that enacted law prevails over case law and therefore, the search should always begin with the applicable statutes or the constitutional provision. In the absence of any statutory or constitutional provision, case laws take predominance.
The United States is a common law country and in common law countries, the judge made laws form an important part of the legal system. Decisions rendered by the judges, attain the status of law and are binding precedents. Some precedents have greater authoritative value than others. The courts are required to follow only binding precedents. Precedents become binding on a court only when the decision is by that court or a higher court.
The doctrine of Stare decisis constrain a judge to decide a case in accordance with the rules laid down in the previous decision. However in case the judge does not want to follow the same decision, he can repudiate the earlier decision and lay down a new rule different from the one previously adopted. This is usually done when the earlier decision has become outdated, due to changed conditions, when the earlier decision produced undesirable results or was guided by poor reasoning.
Therefore when writing an analysis on a problem, the search should always begin with the relevant statutes and then the relevant case laws interpreting the statutes. The author should always start with the relevant case laws from the highest court and then move on to other relevant decisions from that jurisdiction’s lower courts.
In case the citing of case law appears to be complicated, the citing of statutes is not too simple either. In the first instance, the enacted law has a hierarchy. Under the enacted law, the Constitution comes first, followed by the Federal statutes and treaties and then the State laws. Problems crop up in the matter of interpretation of statutes by courts since there may be ambiguity with regard to the language of the statute, the construction of the sentence etc.
With respect to the case laws also, some decided cases may have more weight age than others depending on the court which decided the matter, the reputation of the judge who decided the issue, the year of the decision etc.
Another important aspect that needs to be mentioned here is the topic of citation to the source. Citation to the source shows the authority from whom that particular sentence was taken. It also helps to avoid plagiarism. In case a sentence or paragraph comes very close to the original, it is better to quote it rather than to cite it.
Therefore in conclusion it can be said that to be a good legal writer, a person is required to have reasonable writing skills and an understanding of the relevant statutes and case laws on the subject. Last but not the least, when writing a topic, care should be taken to make sure that the citations is properly made. With a little guidance and some formal training everybody can master the art of legal writing.
Author:SanjanaNair
JuniorAssociate
LegalEase Solutions Pvt Ltd
Kochi.
Writing is an acquired skill. Having good ideas but not being able to effectively put it across to others is a problem that many people face today. With proper training it is possible to get rid of this handicap. Like all skills, writing also requires some formal specialized training. The profession of a lawyer involves a lot of writing but a law student gets little or no formal training in writing while at law school. A student of law may refer to secondary sources like books to write an assignment. However a lawyer usually is required to refer to the primary sources of law for the purpose of his profession. Primary sources can be divided into two. They are case laws [judicial decisions] and enacted law [statutes, constitution and administrative regulations] Gathering of information therefore becomes very important and it becomes necessary that the information should be taken from the right sources.
The first information that needs to be collected is regarding the origin of the primary source of law. The rule is that enacted law prevails over case law and therefore, the search should always begin with the applicable statutes or the constitutional provision. In the absence of any statutory or constitutional provision, case laws take predominance.
The United States is a common law country and in common law countries, the judge made laws form an important part of the legal system. Decisions rendered by the judges, attain the status of law and are binding precedents. Some precedents have greater authoritative value than others. The courts are required to follow only binding precedents. Precedents become binding on a court only when the decision is by that court or a higher court.
The doctrine of Stare decisis constrain a judge to decide a case in accordance with the rules laid down in the previous decision. However in case the judge does not want to follow the same decision, he can repudiate the earlier decision and lay down a new rule different from the one previously adopted. This is usually done when the earlier decision has become outdated, due to changed conditions, when the earlier decision produced undesirable results or was guided by poor reasoning.
Therefore when writing an analysis on a problem, the search should always begin with the relevant statutes and then the relevant case laws interpreting the statutes. The author should always start with the relevant case laws from the highest court and then move on to other relevant decisions from that jurisdiction’s lower courts.
In case the citing of case law appears to be complicated, the citing of statutes is not too simple either. In the first instance, the enacted law has a hierarchy. Under the enacted law, the Constitution comes first, followed by the Federal statutes and treaties and then the State laws. Problems crop up in the matter of interpretation of statutes by courts since there may be ambiguity with regard to the language of the statute, the construction of the sentence etc.
With respect to the case laws also, some decided cases may have more weight age than others depending on the court which decided the matter, the reputation of the judge who decided the issue, the year of the decision etc.
Another important aspect that needs to be mentioned here is the topic of citation to the source. Citation to the source shows the authority from whom that particular sentence was taken. It also helps to avoid plagiarism. In case a sentence or paragraph comes very close to the original, it is better to quote it rather than to cite it.
Therefore in conclusion it can be said that to be a good legal writer, a person is required to have reasonable writing skills and an understanding of the relevant statutes and case laws on the subject. Last but not the least, when writing a topic, care should be taken to make sure that the citations is properly made. With a little guidance and some formal training everybody can master the art of legal writing.
Author:SanjanaNair
JuniorAssociate
LegalEase Solutions Pvt Ltd
Kochi.
THE AMERICAN SYSTEM OF LAW
A prudent person after analyzing and understanding the American Legal System may realize the complexity of American Law. The Constitutional Law is often contradictory. There is a debate over the topic Separation of Powers and the concept of federalism. The evolution of American law, like the Indian law is from the English Common law. Though the English Common Law was adopted in entirety American law went through drastic changes over the years. Case laws, customs, logic, precedents, local laws and rules, everything played an important role in shaping the American Constitution. When European settlers came to America they brought the French, Spanish and the Dutch laws. Eventually the framers of the Constitution framed it with the objective of providing fair and natural justice to all. The Constitution says about the wide powers of the State but often restricts the State’s power by making the federal supreme. For example, the United States Supreme Court has no power to decide on any issue of the State and so the State Constitutional rulings are immune from the reversal of the United States Supreme Court unless any federal subject is in dispute. The Commercial Clause of the Constitution grants the federal supremacy over the state law. The Legislature is vested with the power to abolish or modify the Common Law.
If we consider the hierarchy of law, starting from the highest to the lowest, federal constitution tops the hierarchy and the state common law is at the bottom. About the trial system we can say that there are three different stages in a trial: pre-trial, trial and post-trial stage. Trial courts have a single judge only. They conduct trial with or without jury depending on the type of the case and the choice of the parties. The judge has the power to punish for contempt of court. The trial court hears all the evidences and arguments presented by the parties. They determine the facts of the case and the application of the correct law to the facts. The facts cannot be changed or new facts cannot be presented on appeal. Pre-trial motions are conducted before the judge without the assistance of the jury. There are two appellate courts: the Intermediate Appellate Court and the Supreme Court. The judges of the Supreme Court are called Justices. The Intermediate Appellate Court may consist of 3 judges and the Supreme Court may have 5, 7-9 judges. In most of the cases right of appeal is granted only if discrepancies are obvious. The scope of appeal under the American legal system is much narrower.
Generally, when a pre-existing rule is in dispute, the constitution is subject to amendment and moreover the framers could not foresee of such a dispute. But still to the Americans, they hold their Constitution the Supreme Law of the land.
Author:Nesirin Vinod
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi
A prudent person after analyzing and understanding the American Legal System may realize the complexity of American Law. The Constitutional Law is often contradictory. There is a debate over the topic Separation of Powers and the concept of federalism. The evolution of American law, like the Indian law is from the English Common law. Though the English Common Law was adopted in entirety American law went through drastic changes over the years. Case laws, customs, logic, precedents, local laws and rules, everything played an important role in shaping the American Constitution. When European settlers came to America they brought the French, Spanish and the Dutch laws. Eventually the framers of the Constitution framed it with the objective of providing fair and natural justice to all. The Constitution says about the wide powers of the State but often restricts the State’s power by making the federal supreme. For example, the United States Supreme Court has no power to decide on any issue of the State and so the State Constitutional rulings are immune from the reversal of the United States Supreme Court unless any federal subject is in dispute. The Commercial Clause of the Constitution grants the federal supremacy over the state law. The Legislature is vested with the power to abolish or modify the Common Law.
If we consider the hierarchy of law, starting from the highest to the lowest, federal constitution tops the hierarchy and the state common law is at the bottom. About the trial system we can say that there are three different stages in a trial: pre-trial, trial and post-trial stage. Trial courts have a single judge only. They conduct trial with or without jury depending on the type of the case and the choice of the parties. The judge has the power to punish for contempt of court. The trial court hears all the evidences and arguments presented by the parties. They determine the facts of the case and the application of the correct law to the facts. The facts cannot be changed or new facts cannot be presented on appeal. Pre-trial motions are conducted before the judge without the assistance of the jury. There are two appellate courts: the Intermediate Appellate Court and the Supreme Court. The judges of the Supreme Court are called Justices. The Intermediate Appellate Court may consist of 3 judges and the Supreme Court may have 5, 7-9 judges. In most of the cases right of appeal is granted only if discrepancies are obvious. The scope of appeal under the American legal system is much narrower.
Generally, when a pre-existing rule is in dispute, the constitution is subject to amendment and moreover the framers could not foresee of such a dispute. But still to the Americans, they hold their Constitution the Supreme Law of the land.
Author:Nesirin Vinod
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi
Writing on legal authority on basis of primary sources
To be a good legal writer, the essential factors are the skills to write well and the basic understanding of law and how to interpret it. To basically do a good job one must be able to read quite a bit and have a very analytical mind. We have to do a lot of research to collect the necessary information which forms the basis for good writing. The essential factor is the primary sources. Primary sources can be broadly classified into: two.
• Case laws consisting of judicial decisions
• Enacted laws. Which includes constitution, statutes and administrative laws.
Analyzing a given problem will be an amalgamation of 1, the enacted laws that regulates the subject matter of that particular problem and 2. the decisions of cases involving similar situations and issues.
When we do a research of a particular problem we have to keep in mind first the enacted laws relevant to the given situation, but we also have to see the scope of similar relevant cases handled earlier and take an account of the decisions taken therein. If at all a particular statute or constitutional law is not given, then we have to rely on. earlier cases to provide the law on the subject.
Talking about how law works in the United States,
The system of law of United States is very similar to the law of England in that both follow the law of precedence. Both follow the common law principle. Common law is Judge- made law. What it means is that rule of law comes from the written decisions of judges who hear and decide litigations. When a case is decided by a judge it attains the status of law and becomes a precedent for future similar controversial cases. That means it has twin role. The decision resolves the litigation that is before the court and if the decision is published it becomes available for use by judge in later litigations. Since we are familiar with the structure of the court system of the United States Of America, I would like to stress upon the development of the law through the common law process.
Position of a court within the structure determines how decisions are taken as precedent. Some courts have greater value than the others. Another term we come across similar to Precedent is Stare decisis. It is the shortened form of a phrase in Latin which means “to stand by precedent and not to disturb settled points” What it means in simple words is that the court has to follow those precedents that are binding authority. The precedent becomes “the binding Authority” if the cases were decided by that court or an even higher court in the same jurisdiction.
United States have many jurisdictions so it is necessary to determine which precedents a court in each jurisdiction must follow besides its prior decision.
State Law:In the matter of state laws the state court must follow precedents from the higher court.If the trial court consists of different intermediate appellate court then it must follow precedence of the intermediate courts also.State courts are bound by the statute of that state as interpreted by the court. It is not necessary that the interpretation of the statute of one state be binding for another state.
Federal Law:The decisions of the supreme court of the United States is binding for all the courts in all jurisdictions for matters of constitutional and federal laws. For matters of Federal law court of appeals are bound by its own decisions and of the Supreme Court.The District court is not bound by the decisions of any other District court nor by decisions of any other federal court of appeal.
So in a nut shell since the common law and statutes are binding for all future litigations when we write on legal authority we should
• Identify the binding laws on the issue or problem.
• We should note the relevant statutes involved .
• Identify cases that interprets the statues.
Author:Susan Alex
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.
To be a good legal writer, the essential factors are the skills to write well and the basic understanding of law and how to interpret it. To basically do a good job one must be able to read quite a bit and have a very analytical mind. We have to do a lot of research to collect the necessary information which forms the basis for good writing. The essential factor is the primary sources. Primary sources can be broadly classified into: two.
• Case laws consisting of judicial decisions
• Enacted laws. Which includes constitution, statutes and administrative laws.
Analyzing a given problem will be an amalgamation of 1, the enacted laws that regulates the subject matter of that particular problem and 2. the decisions of cases involving similar situations and issues.
When we do a research of a particular problem we have to keep in mind first the enacted laws relevant to the given situation, but we also have to see the scope of similar relevant cases handled earlier and take an account of the decisions taken therein. If at all a particular statute or constitutional law is not given, then we have to rely on. earlier cases to provide the law on the subject.
Talking about how law works in the United States,
The system of law of United States is very similar to the law of England in that both follow the law of precedence. Both follow the common law principle. Common law is Judge- made law. What it means is that rule of law comes from the written decisions of judges who hear and decide litigations. When a case is decided by a judge it attains the status of law and becomes a precedent for future similar controversial cases. That means it has twin role. The decision resolves the litigation that is before the court and if the decision is published it becomes available for use by judge in later litigations. Since we are familiar with the structure of the court system of the United States Of America, I would like to stress upon the development of the law through the common law process.
Position of a court within the structure determines how decisions are taken as precedent. Some courts have greater value than the others. Another term we come across similar to Precedent is Stare decisis. It is the shortened form of a phrase in Latin which means “to stand by precedent and not to disturb settled points” What it means in simple words is that the court has to follow those precedents that are binding authority. The precedent becomes “the binding Authority” if the cases were decided by that court or an even higher court in the same jurisdiction.
United States have many jurisdictions so it is necessary to determine which precedents a court in each jurisdiction must follow besides its prior decision.
State Law:In the matter of state laws the state court must follow precedents from the higher court.If the trial court consists of different intermediate appellate court then it must follow precedence of the intermediate courts also.State courts are bound by the statute of that state as interpreted by the court. It is not necessary that the interpretation of the statute of one state be binding for another state.
Federal Law:The decisions of the supreme court of the United States is binding for all the courts in all jurisdictions for matters of constitutional and federal laws. For matters of Federal law court of appeals are bound by its own decisions and of the Supreme Court.The District court is not bound by the decisions of any other District court nor by decisions of any other federal court of appeal.
So in a nut shell since the common law and statutes are binding for all future litigations when we write on legal authority we should
• Identify the binding laws on the issue or problem.
• We should note the relevant statutes involved .
• Identify cases that interprets the statues.
Author:Susan Alex
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.
Common Law Process and its Development
In United States, law is developed through litigations conducted in courts. Each state has its own jurisdiction and hierarchy of courts. The court system is organized along a vertical structure. The position of a court in this vertical structure determines the way its decisions are treated as precedents.
The system of Precedents has a companion doctrine called stare decisis which is a shortened form of the phrase Stare decisis et non quieta movere. The phrase means that the courts should follow the precedents by not disturbing the settled points. Therefore, the courts should follow only the precedents which have a binding authority on them.
Precedents can be either binding or persuasive according to the positions of the courts in the hierarchy within the specific jurisdiction. If there are precedents from a higher court of the same state jurisdiction on a particular point of law, then the judges of the lower court are constrained to decide a pending case according to the earlier decisions. Such a precedent is a binding authority on the lower courts in the vertical structure of court system. If there are some decisions from a higher court of a state, the judge of a lower court in another state is not bound to decide a pending case according to that decision. Precedents from another state jurisdiction have only persuasive authority. The Judge may take these decisions into account, but it is not necessary to follow them.
When we search for case authorities, we should search for binding authorities. If the case is a first impression case, we should look for how the courts in other jurisdictions have treated similar cases, so that those precedents will persuade the court to decide the case.
Except for state law issues, United States Supreme Court is the Appellate authority for all the courts in the United States of America. United States Supreme Court is the only court which is specifically created by the constitution. The composition and jurisdiction of the court are decided by Congress. It consists of 9 Judges including 8 Associate Justices and the Chief justice of The United States of America. The Court hears all the cases en banc, which means that all the 9 justices sit and make final decisions in all cases. A decision can be reviewed by the Supreme Court, either as a matter of right or through a writ of certiorari. The term certiorari means ‘bring up the record’. The Supreme Court maintains the supremacy and consistency of Federal Law by the exercise of appellate certiorari jurisdiction over the cases involving federal issues from lower federal courts and the highest courts of the states.
Author:Neethu Alex
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.
In United States, law is developed through litigations conducted in courts. Each state has its own jurisdiction and hierarchy of courts. The court system is organized along a vertical structure. The position of a court in this vertical structure determines the way its decisions are treated as precedents.
The system of Precedents has a companion doctrine called stare decisis which is a shortened form of the phrase Stare decisis et non quieta movere. The phrase means that the courts should follow the precedents by not disturbing the settled points. Therefore, the courts should follow only the precedents which have a binding authority on them.
Precedents can be either binding or persuasive according to the positions of the courts in the hierarchy within the specific jurisdiction. If there are precedents from a higher court of the same state jurisdiction on a particular point of law, then the judges of the lower court are constrained to decide a pending case according to the earlier decisions. Such a precedent is a binding authority on the lower courts in the vertical structure of court system. If there are some decisions from a higher court of a state, the judge of a lower court in another state is not bound to decide a pending case according to that decision. Precedents from another state jurisdiction have only persuasive authority. The Judge may take these decisions into account, but it is not necessary to follow them.
When we search for case authorities, we should search for binding authorities. If the case is a first impression case, we should look for how the courts in other jurisdictions have treated similar cases, so that those precedents will persuade the court to decide the case.
Except for state law issues, United States Supreme Court is the Appellate authority for all the courts in the United States of America. United States Supreme Court is the only court which is specifically created by the constitution. The composition and jurisdiction of the court are decided by Congress. It consists of 9 Judges including 8 Associate Justices and the Chief justice of The United States of America. The Court hears all the cases en banc, which means that all the 9 justices sit and make final decisions in all cases. A decision can be reviewed by the Supreme Court, either as a matter of right or through a writ of certiorari. The term certiorari means ‘bring up the record’. The Supreme Court maintains the supremacy and consistency of Federal Law by the exercise of appellate certiorari jurisdiction over the cases involving federal issues from lower federal courts and the highest courts of the states.
Author:Neethu Alex
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.
Friday, March 14, 2008
LegalEase,Kochi celebrates Tariq Akbar's b'day...
From your old friend's and new...............,
Happy B'day to you........................!!!!!!!!!!!!
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