Torts Evening - Fall 2007
Professor Ralph Brill
Course Information
Course Information


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There are Primary and Secondary sources of law; and there are Federal and State sources.

Primary means that the sources are, in appropriate circumstances, binding or determinative of the outcome of a legal dispute.

Secondary means they are not binding, but merely viewpoints of writers or research aids.

Primary Sources of Federal and State Law



∙ Constitutions are government charters.
∙ They create and empower the various branches of government.
∙ In addition, they establish the rights and obligations of persons under the jurisdiction of the government.


∙ Establishes the federal government.
∙ And it establishes the limitations on both state and federal action – no state or federal law shall contravene the U.S. Constitution.
∙ i.e, it is the “supreme law of the land.”
∙ It establishes the three (3) branches of federal government:
(1) Legislative...the House of Representatives and the Senate, with the power to pass laws.
(2) Executive...President to agree to the laws passed and to carry them out, with the aid of other administrative personnel.
(3) Judicial...Creates the Supreme Court and authorizes Congress to create the lower federal courts, which it did in the Judiciary Act of 1789.


Each state has its own Constitution.

A State may grant greater rights to its citizens than are granted by the U.S. Constitution;
however, a State Constitution may not limit or take away rights granted or protected by the United States Constitution.



∙ The main ones are the Commerce Power and the Taxing and Spending Power, but it also may act to implement several of the guarantees established by Constitutional Amendments, such as the 13th, 14th and 15th amendments.

State statutes:


These are agreements between countries, but usually have domestic impact. They are made by the President, with the advice and consent of the Senate. They are on the same level as federal statutes, in spite of the fact that the House of Representatives has no role, where they are self-implementing; often, they are not self-implementing, and require action of Congress to implement them.



Federal: While there is no direct reference to administrative agencies in the Constitution, Congress has created many, and delegated powers to them. They may pass rules and regulations to supplement or cover the details of federal statutes (e.g., O.S.H.A., Food & Drug, Environmental) affecting industries in interstate commerce. They then may be responsible for enforcing and carrying out the laws and the rules and regulations issued. They may be given the role of administrative tribunals to adjudicate violations of the rules and regulations. So, they may have both legislative and adjudicative functions. Their actions are subject to court review by the U.S. Court of Appeals.

State: States also have administrative agencies, acting pursuant to powers delegated to them by the state legislature. Once again, state agencies may enact stricter regulations than federal, unless the federal action has preempted the field, expressly or impliedly.


Both the President at the federal level and governors at the state may issue orders and proclamations. Executive orders have the force and effect of law, especially if issued pursuant to statutory or constitutional authority. They cannot override Congressional action. Proclamations are usually “housekeeping” or may be used to commemorate persons, places or events.



Probably the largest body of law in the United States is case law.
For example, it is the basis for most of Tort Law, Contract Law, Property Law, Agency Law, etc.

It is based on decisions of the state and federal courts, especially those of the highest courts in the specific jurisdiction, and their binding effect in subsequent cases is based on the doctrine of Stare Decisis, or Precedent.

It is called the Common Law because judges said they were not making the law, but finding it in the common view of society.

Secondary Sources of Law

Secondary sources are not law....that is, they are not binding on any court or legislature. They are the attempts by their authors to comment upon, summarize, restate, explain, criticize, or advocate changes in the law. These include treatises or books on specific topics, legal encyclopedias, restatements, law reviews, annotations, and other commercial products designed to aid lawyers and students doing research to find the primary/binding sources of the law applicable to a specific problem.



Definition: “to abide by, or adhere to, decided cases.” A more extensive definition: “the doctrine that when a court has once laid down a principle of law as applicable to a certain state of affairs, it will adhere to that principle, and apply it to all future cases, where the facts are the same or substantially the same.”

Under this doctrine, a decision by a court of last resort serves two purposes– it settles for good the dispute between the litigants in the case before it; but it also settles the principles of law for all subsequent litigants coming to court with the a case involving the same or substantially the same facts and issue.


1. It prevents judges from acting arbitrarily. Makes it difficult for judges to decide cases based on their own prejudices or predilections, unless they can make their conclusion conform to previous precedent. It imposes an objective standard on courts.

2. It is an instrument of convenience and expediency. It enables judges to decide a large percentage of the issues brought before the court by resort to former decisions.

3. It furnishes the legal system with some stability. A substantial amount of certainty or predictability is safeguarded. It enables lawyers to counsel clients with a reasonable degree of confidence that certain acts will produce certain consequences. It enables members of society to chart and plan future conduct with knowledge of the probable risks and outcomes.

4. Another way of stating this is Reliability. People will rely in carrying on business or dealing with property or their private affairs that a principle of law in effect will continue to be in effect. People will rely on the assurance that the rules will not be changed to make their past conduct wrongful or illegal.

5. Final reason: Fairness and equality. It is only fair that what was decided for one person on a certain set of facts should not be decided differently when the only change in the relevant facts is the identity of attributes of the next person. As Justice Douglas once said: “ It is not equal justice if a rule of negligence is applied in the morning but not in the afternoon.”

Qualifications to Stare Decisis

1. Holding v. Dictum. A court is not bound by the words used in a prior decision, nor all of the reasoning used; it is only bound by the legal principle or principles that were necessary for the previous court to reach the decision it reached....i.e., the new case is only bound by the HOLDING or RATIO DECIDENDI of the former decision.

2. The previous opinion may have talked about many things not necessary to the outcome. Such a statement is classified as DICTUM (or if more than one, DICTA)(sometimes OBITER DICTUM).

Why aren’t these binding? We have an adversary system. That principle of law was not argued by the litigants in the previous case, and not fully weighed by the court in deciding the previous case. Often, they are merely opinions of the court, and will not be applied in a case where the issue clearly is presented and fully argued.

So, when reading any decision, whether in a substantive course or for legal writing research paper, it is very important that you identify the exact holding of the case, and what is merely dicta.

3. The prior decision is binding only if the facts in the subsequent case are the same, or substantially the same, as in the previous case -- i.e. if they are fully analogous.

If there are significant differences, the previous case may be “distinguished”, or are “disanalogous,” and will not be binding on the subsequent case.

That is not to say that the new case cannot reach the same conclusion, but the court in the new case is not required to follow the previous case. It may now extend that case’s reasoning to include the new case. On the other hand, it may conclude that the new facts are significantly different and require a different conclusion. (Illustrate with Pierson v. Post and subsequent cases).
4. The previous case may have contained a Majority opinion, a Concurring Opinion, and a Dissenting Opinion. Technically, under Stare Decisis, the subsequent case is only bound by the Majority opinion.

The other opinions are written by judges who have either slight or major differences of opinion, and are there to try to influence later cases to change, or overrule, the decision in question.

However, sometimes it is very difficult to discern what is the majority decision; it isn’t necessarily the Opinion of the Court, especially where there are concurrences in part, or dissents in part, or concurrences as to result but not reasoning, and dissents as to result only but not on the basic legal doctrine. It may be necessary to actually count noses to find out what viewpoint was held by the majority.

5. The major qualification to Stare Decisis stems from the nature of the court systems. The case in issue is only bound by the previous decision of the highest court to have ruled on the issue in the appropriate jurisdiction.

But that means one must determine whether the issue is a matter of state law or federal law, and what level of court has previously ruled on the issue. So, we must first address the various levels of courts, and their jurisdiction:


6. Levels of Courts:



State Supreme Court
(Court of final resort, except for possibility of certiorari or appeal to U.S. Supreme Court on some issues. Must hear some appeals (for example, death penalty cases); most of its docket is discretionary, by leave to appeal).

Intermediate Appellate Court
(Currently, 37 states have such a court between the trial and supreme courts. Usually, a party has a right to appeal to the intermediate appellate court, so its docket, unlike the supreme court’s, is not discretionary. The vast majority of cases that are appealed are decided finally by the appellate court.


Trial Court, called Circuit, District, Superior, Common Pleas, (New York = Supreme Court).
May have specialized branches, such as Criminal, Probate, Family, Chancery. In some states, it has an appellate function also, hearing appeals from courts of limited jurisdiction such as municipal courts, police courts, small claims courts; also may hear appeals from administrative agencies.


The Trial Court (Circuit, Superior, District, etc.)

• The trial court’s function is to resolve disputes.
• The trial court hears witnesses and views evidence.
• The trial judge decides issues of law; the jury decides questions of fact. (When there is no jury, the trial court judge decides both the questions of law and the questions of fact).

The Intermediate Court of Appeals (Appellate Court, Court of Appeals, Appellate Division)

• The intermediate court of appeals reviews the written record and exhibits from the trial court; it does not rehear the witnesses, take evidence; there are only judges, anywhere from three to seven, and no jury.

• When an issue raises a question of law, the intermediate court of appeals may substitute its judgment for the judgment of the trial court judge; when an issue raises a question of fact, the appellate court must defer to the decision of the finder of fact (the jury or, if there was no jury, the trial judge).

• The court may affirm the lower court’s judgment, reverse it and remand to the lower court for action consistent with the court of appeals’ opinion (for example, to reweigh the evidence under the proper criteria), or reverse it outright.

The Supreme Court (High Court, Court of Appeals, etc.)


Role 1
Highest court in the federal court system.

Reviews decisions of the United States Courts of Appeals, some direct appeals from the United States District Courts, and some appeals from other federal courts, such as the Tax Court.

Role 2
Final arbiter of the meaning of the United States Constitution. In that role, it may hear appeals from final decisions of state courts involving alleged violations of the United States Constitution.

Role 3.

Final arbiter of the interpretation of federal statutes. In that role, it may hear appeals from final decisions of state courts involving interpretations of federal statutes.

Most of its case load is discretionary; The U.S. Supreme Court chooses from among thousands of petitions for certiorari each year to hear less than fifty cases. Some few cases are mandatory, and decided as appeal of right.

6. Back to Stare Decisis:

On a state level, the Supreme Court of a state is bound by: (1) its own previous decisions on an issue of state law; (2) the decisions of the U.S. Supreme Court on an issue of federal law (constitutional or statutory).

Surprisingly, the Court is not bound on matters of federal law by the decisions of the U.S. Court of Appeals for the Circuit in which the state is located if the Supreme Court has not ruled on the issue. These would be highly persuasive, however.

The State Supreme Court is not bound by decisions of courts lower in rank to itself – i.e. state trial and appellate courts, nor the U.S. District Court.

The State Appellate Court is bound by (1) the previous decisions of the State Supreme Court on matters of state law; (2) the decisions of the U.S. Supreme Court on an issue of federal law; (3) if the State Supreme Court has not ruled on an issue, by the previous decision of that Appellate Court.

The Appellate Court is not bound by previous decisions of courts lower in rank. Depending on which state, the Appellate Court may or may not be bound by previous decisions of other branches of the Appellate Court. (Example).

The Trial Court is bound by (1) the previous decisions of the State Supreme Court on matters of state law; (2) the decisions of the U.S. Supreme Court on matters of federal law; (3) if the State Supreme Court has not ruled on a state issue, by the previous decisions of the State Appellate Court for the district in which the trial court sits, and in some states by the previous decisions of any previous Appellate Court decision no matter what district.

It is not bound by previous decisions by any other trial court judge, nor by decisions of juries in previous cases. For one thing, it is rare that trial courts write written opinions or opinions that are published and accessible.


7. In the federal system, the U.S. Supreme Court’s decisions are (1) binding on all lower federal courts; (2) binding on the U.S. Supreme Court itself in later cases, unless the Court decides to overrule or modify its former decisions; (3) binding on all state courts on issues of federal statutory, administrative or constitutional law.

The decisions of a panel of a specific Circuit Court of Appeals are (1) binding on subsequent cases before any panel of that same Circuit Court of Appeals; (2) not binding on any other Circuit Court of Appeals, but may be highly persuasive; (3) binding on the District Courts within the Circuit in which it sits; (4) not binding on District Courts within other Circuits.

A decision by one panel of a Circuit Court may be reversed by the entire Circuit Court sitting en banc, and an en banc decision in a later case may overrule a prior decision of one panel of that court.

A Federal District Court is not required to follow previous decisions by another district court judge, even from the same Circuit. These decisions may be highly persuasive, however, and unlike state trial court proceedings, the rulings of district court judges on points of law usually are written and reported, and thus can be read by other judges.

8. Federal courts may have to rule on matters of state law where relevant. For one thing, litigants may file state law claims in federal court where there is diversity of citizenship and a claim valued at $50,000 or higher; other cases in which federal issues are involved may involve state law claims as “pendant” jurisdiction.

In such cases, the federal courts must “step into the shoes” of the highest state court and determine what it would do on the issue in question. Thus, the federal court would be bound by the previous holdings of the state supreme court. If the state supreme court has not spoken on the issue, the federal court would have to predict what the state supreme court would have done, and will look to the decisions of state appellate courts for persuasive effect, though it may conclude the state supreme court would have reached different results.

9. Finally, highest courts may “overrule” prior precedent.
Lower courts theoretically cannot, though there have been occasional cases in history where a lower court has refused to follow a previous precedent it believed was “palpably wrong.”

There is a greater tendency not to overrule precedent in commercial or property law, where reliance and stability essential, but to leave change, if necessary, to the legislature. The same is true for interpretations of statutes, especially criminal laws.

In individual rights cases, including tort law, there is less hesitancy to overrule older law, since the “common view of society” may change as times change. The validity of a precedent there depends on its agreement with the spirit of the times.

Other factors that influence whether a case will continue to be adhered to include whether the original was decided by a divided court, with a strong dissent by a respected judge; whether it has been criticized in the intervening years; whether it is a rule of long standing; the trend in other states; the reputation of the judge who wrote the opinion or the court at the time it was decided; whether other states have followed it or not.

Sometimes, a court may criticize the older law, but say that any change is for the legislature.

In the area of constitutional law, many cases have been overruled. How can that be? It's the same constitution being interpreted by the same court?

For one thing, it isn’t as easy to overturn bad results by legislation; changes can only be made by amending the Constitution, which is very difficult, as it should be. (E.g., Dred Scott).

Also, the framers used very broad terms, and there is much in the debates and deliberations indicating that they intended the document to be a growing, changing document, not frozen into a pattern one generation has given it. (Thus, Plessy v. Ferguson to Brown v. Board of Education).