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Not all legal authority has the same weight in a court decision. Legal authority is divided into two classifications: binding and nonbinding.

Binding: also called mandatory authority. Courts must follow and apply binding authority, even if application of binding authority would result in an unfair outcome. The court cannot dissent from a binding statute as it is written.

Nonbinding: also called persuasive authority. A court may follow and rely on it in a decision, but the court is not required to do so.

A primary authority may fall either under binding or non-binding classification. Secondary authority—unlike primary—is never binding in a deciding court. This is because secondary authorities are not actual law.( Read more... )

Authority of Laws

All laws, no matter where they originate, must be consistent with the federal constitution. Any law conflicting with the US constitution is deemed invalid and unenforceable. Any law suspected of being in conflict with the US Constitution is subject to "Strict Scrutiny" and suspended until its compatibility with the Constitution can be proven.

Legislature - creates statutes

Judicial - creates caselaw

Executive - creates administrative Regulations

( Read more... )

“That” and “which” are often mixed up in writing because the difference between them is extremely easy to miss. But both pronouns communicate something specific about the ideas contained in a sentence, and they are not, in fact, interchangeable.

“That” introduces a clause that provides essential information about the main idea of a sentence.

I want the dog that has spots

This sentence tells the reader that the spots are essential. The dog must have spots, no other dog will do.

“Which” introduces a clause that provides non-essential information and must be separated from the remainder of the sentence with a comma.

I want the dog, which has spots

This sentence tells the reader that the dog is the main idea, and that the dog in question only happens to have spots. The “which” clause could be dropped without losing the essential meaning: “I want the dog."

The “which” clause must always take a comma because it interrupts the main idea of a sentence.

Different Meanings Conveyed

Parentheses, dashes, and commas all communicate an interrupting phrase. Many new writers may use them interchangeably, but each interrupting punctuation invokes a different meaning.

Parentheses

Every word in formal writing should be important. Putting information in parentheses tempts the reader to skip the information

If one is including text that isn't important, they could be wasting the reader's time.

Dashes

This information cannot be skimmed

Commas

I. When reading a statute, consider “briefing” it.

Statutes or similar codified rules of law, like the Federal Rules of Civil Procedure or the Restatements of Law, should be analyzed when confronted.

Statutes are often broken down into sections and subsections. One subsection may contain several elements.

Break statutes down into readily understandable sections to see statutes’ different “tests,” components, and exceptions. A “brief” of a statute need not contain any particular section headings (as in a case brief); rather, it should track and organize the statute’s sections in an easy to understand way.

( Read more... )

Course Date:

Organize briefs with topic information.

Concept:

Most sources do not include a “concept” section in their briefing formats. In IRAC this section links cases together when outlining material.

Required understanding of the context of a particular case; identify the legal concept (or topic) to which the case pertains; help focus thoughts before reading and organizing briefs after reading. Use table of contents to help determine to what “concept” the case pertains.

( Read more... )

1. Survey

Obtain a context for the material. The casebook table of contents will catagorise the material under a topic.

Think: Under what general topic heading does this case fit?

Survey reading by focusing on section headings and subheadings. Read
introductory or summary sections of the material or definitions of the topics in a legal
dictionary. This step will get the “big picture framework” of the concepts covered by the reading and how those concepts fit into the overall legal structure.

2. Question

Think: Before reading—Why am I reading this? What concept/rule is it
supposed to illustrate? (Remember the context gathered in the survey step.)

During—What does this case tell me about the broad legal issue?
What is rule of law from this case?
Does the case divide the rule into elements or factors?
What are the key reasons/facts/policies upon which the court relied in reaching its holding?
How does the information from this opinion fit into the sections of my brief?
( Read more... )

Spatiality - oral, local, the space of the village, constrained by sound of voice, shared culture and language; a hierarchical space of standing.

Literate - broader, more expansive, the space if the nation-state, law, democratic, de-centralised, the compartmentalised space of public and private. Language barriers are not maintained by spatial barriers, but by education barriers.

Electronic - 'the global village' the space of the ideological 'tribe,' the information multi-verse, echo chambers of ideologies, the undermining of transnational groups and nation states; the distrust of expertise, world as a spectacle. Language barriers are maintained by chosen slang and nuanced word / symbol meanings of the ideological tribe.

The Imitative Art of Poetry

Overview:
Plato mentored Aristotle, but their philosophies on art slightly diverge. Plato observes that the imitative arts have the greatest capacity to lie, and therefore all imitative art must be carefully measured. The greatest imitative arts are the closest to reality, and the truest depictions of what they imitate. According to Aristotle, though, the greatest art finishes what nature cannot finish, and perfects reality, thus reaching beyond nature into the good or the idea, which is more pure than the material physical. In both cases the ideal pre-exists the art.

Book X | The Republic | Plato

“All poetical imitations are ruinous to the understanding of the hearers, and the knowledge of their true nature is the only antidote to them.”

“There are many ways in which the feat might be quickly and easily accomplished, none quicker than that of turning a mirror round and round—you would soon enough make the sun and the heavens, and the earth and yourself, and other animals and plants and all other things of which we were just now speaking… and the painter too is, as I conceive, just such another—a creator of appearances, is he not?”

“The tragic poet is an imitator, and therefore, like all other imitators, he is thrice removed from the king and from the truth.”  “So, when we hear persons saying that the tragedians, and Homer, who is at their head, know all the arts and all things human, virtue as well as vice, and divine things too, for that the good poet cannot compose well unless he knows his subject, and that he who has not this knowledge can never be a poet, we ought to consider wether here also there may not be a similar illusion.”( Read more... )

Novalis pioneered Romanticism by exploring what a novel was meant to accomplish, and how it accomplished it. According to Novalis "a novel must be poetry through and through." What he meant by this was that everything in the novel had unity, and each action and word pointed towards a final end or idea. "We feel the infinite, incomprehensible simultaneous sensations of a plurality in agreement."

Imagination which builds a narrative from memories becomes like a choir, or orchestra, where each word and style becomes a 'different instrument' in the grand tale. For this reason, an author has to abandon their biases and be willing to explore all types of people and opinions that play a part in the tale.

But Novalis also says that "the novel contains no definite result—it is not the image or fact of a proposition. It is the visible execution- the realization of an idea." The novel to Novalis does not necessarily make an argument or is fully realized by an argument. Instead, the novel exists to allow for the deepest exploration of a human idea, memory, or life situation without putting true reality in danger. The reader explores the depths of human desire, then closes the book and emerges into a life untouched by the consequences.

This depth, or realization of an idea, though, is narrow. Because all components of the novel reach for one distilled end, it creates a reality where life is unreal. "all colors are sharper there—fewer shades in between - the movements more lively - the outlines hence more striking." He calls this a fragmentary view of the world but means that the real world is more inspiring than the novel. The true poet is inspired infinitely by reality, consuming it and ordering it into his writing, and depicting reality in a true, though fragmented, way. In this way, "The true poet is all-knowing - he is a real world in miniature.”

He uses mathematics to demonstrate this in his essay, Monologue. In mathematics, the most beautiful equations and formulas are the most representative models of reality. In writing, like mathematics, the most beautiful and simple writings get closer to truth than the over complex ones. Even if a writer knows what the truth is, if they do not understand simple and beautiful writing, how to distill reality to one end, then they will fail to impart the truth to their readers.

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Page Summary

Binding and Nonbinding Legal Authorities
United States Legal System
Clarity: “That” and “which”
Sentence Structuring: Parentheses, Dashes, Commas
Reading and Interpreting Statutes
Briefing Format | IRAC | “big picture”
Adequate Research Preparation
A short musing on Language Societies
Plato VS Aristotle on The Imitative Art of Poetry
A short musing on Art II | Restructuring With a Focus on Novalis

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Turtles' Lair

quotes hoard from whatever I've recently read.

Recent Entries

Binding and Nonbinding Legal Authorities

United States Legal System

Authority of Laws

Clarity: “That” and “which”

Sentence Structuring: Parentheses, Dashes, Commas

Different Meanings Conveyed

Reading and Interpreting Statutes

I. When reading a statute, consider “briefing” it.

Briefing Format | IRAC | “big picture”