While not always an easy task, assessing the hierarchy of authority for a particular legal problem is an essential skill for lawyers to determine lines of inquiry. In addition, a legal researcher must be able to identify the different sources of law that create the rules of the problem under study. For these reasons, lawyers should closely monitor the structures of the U.S. legal system in their research. Civil law systems are used throughout Europe as well as in Central and South America. Some countries in Asia and Africa have also adopted codes based on European civil law. Germany, Holland, Spain, France, and Portugal all had colonies outside Europe, and many of these colonies adopted the legal practices imposed by colonial rule, as did the original thirteen states of the United States that adopted English common law practices. Cases are legal decisions based on a specific set of facts involving parties who have a real interest in the controversy. The main alternative to the common law legal system was developed in Europe and is based on Roman and Napoleonic law. A civil law or code system is a system in which all legal provisions are contained in one or more complete legal acts. During Napoleon`s reign, a comprehensive code of law – a code – was developed for the entire France. The Code included criminal law, criminal procedure law, non-criminal and non-criminal law, as well as commercial law. The rules of the Code are still applied today in France and other legal systems in continental Europe.
The Code is used to resolve some cases, usually by judges without a jury. In addition, judges are not required to follow the decisions of other courts in similar cases. As George Cameron of the University of Michigan noted, “the law is in the code, not in the cases.” He continues: “If several cases have interpreted a provision in a particular way, French courts may feel obliged to reach the same conclusion in future cases according to the doctrine of settled case-law. However, the most important body for growth and change is the legislature, not the courts. Thus, legal opinions contribute through jurisprudence to the various bodies of American law, both through the interpretation of the law and through the common law. In fact, many lawyers spend most of their research time researching cases. Legal opinions are discussed in more detail in Chapter 3. The right-wing realist school flourished in the 1920s and 1930s as a reaction to the historical school. Legal realists have pointed out that some laws and doctrines need to be changed or modernized to stay current, as life and society are constantly changing.
The social context of the law was more important to legal realists than the formal application of precedents to current or future litigation. Instead of assuming that judges inevitably acted objectively by applying an existing rule to a set of facts, legal realists observed that judges had their own beliefs, operated in a social context, and made legal decisions based on their beliefs and social context. Beyond the court`s decision, when you look at the court`s reasoning, you are most likely to understand which facts were most important to the court and which theories (law schools) each trial or appellate judge believes. Because judges don`t always agree on the original principles (i.e., they join different law schools), there are many divided opinions in appellate judgments and in every term of the U.S. Supreme Court. The American legal system is based on a system of federalism or decentralization. While the national or “federal” government itself has significant powers, individual states retain powers that are not explicitly listed as exclusively federal. Most states have judicial systems similar to those of the federal court system. The Articles of Confederation created the United States as a confederation resembling a federal state, but with a weaker central government and more independent local governments.7 Unfortunately, a weak central government with strong state governments did not adequately manage so much of the territory. The nascent United States, in particular, had economic problems.8 Thus, less than a decade after the ratification of the Articles of Confederation, the Founding Fathers met again to draft what became the Constitutions, Statutes, Regulations, Treaties, and Judicial Decisions of the United States that can provide a legal basis in positive law. You may believe that you have been wronged, but in order for you to have an enforceable right in court, you must have something in the positive law that you can indicate that supports a cause of action against the defendant you have chosen.
Several things distinguish legal research from the types of research that most law students did before law school.
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