●
Then discovery: find all the facts via various discovery techniques (depos, RFP,
RFA, interrogatories, etc.)
●
Then comes summary judgment motions (“we don’t need a trial”), but this only
happens if there is no real question to any fact.
●
Then comes the trial, mostly heard by juries. Voir dire, opening arguments,
plaintiff presents evidence through witnesses, and then sometimes a directed
verdict, then defendant presents case through witnesses, then closing, jury
instructions from Judge, then the jury makes their decisions. Then often cases are
brought up on appeal.
Processes by which a law is made:
●
Formulation of rules by the Courts in decided cases coming before them in areas
of law in which no statues apply
●
The enactment and interpretation by courts of statutes.
●
The interpretation and application of constitutional provisions
●
Promulgation of rules and regulations by administrative agencies
Most branches of government are stator by nature, but several branches are still
essentially common law in nature in 49 states.
Types of Precedent
: Authority originating in courts above the trial court in the
appellate chain is called mandatory authority, as in the judge must follow it. If there
is no precedent in the state of the legal question presented, then the judge may
examine the decisions of courts of other states. But, the majesty of the common law
lies in its flexibility and adaptability. BUT, many activities are of such a nature that
they can hardly be regulated by common law principles and the judicial processes.
The legislature can also expresses change common law rules when it believes that
such a modification is necessary.
Limitations on Legislative Bodies
-
Procedural requirements
-
Requirements of certainty (all statutes are subject to the general principle of
constitutional law that they be “reasonably definite and certain.”)
6) Statutory Interpretation
Statutes are occasionally so clear that it is obvious how they resolve a particular
question. In such cases, courts often invoke the plain meaning rule. However, much
more commonly it is not clear how a statute applies to a particular set of facts.
Courts are required to engage in the process of statutory interpretation where their
objective is not to interpret a statute in the way the judges think it should have been
written but, instead, in the way the judges think that the legislature would have
wanted it applied. This search for legislative intent often involves studying
legislative history, examining the purpose for which the law was enacted, and even
using rules of grammar and punctuation. Two common rules of grammar,
ejusdem
generis
and
expression uniusest exclusion alterius
, are often used by the courts to
interpret legislative intent from the words of the statute and they are explained in
the text.
