Fundamentals of Procedural Law
Adam J. McKee, Ph.D.
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One of the most important distinctions in the law that the novice scholar can make is the difference between primary sources of law and secondary sources of law. Because of our Common Law heritage, the courts United States consider the written opinions of judges in appellate cases as primary sources of law. The second important primary source of law are statutes passed by legislative assemblies, such as Congress.
At first glance, there may seem to be a clear distinction between court cases and statutes. After all, they are distinctly different sources of law that are derived from different institutions using different methods. It must be realized that there is an interplay between statutes and cases and that this complex relationship can be confusing.
Some areas of law are determined almost wholly by case law, such as the law of criminal procedure. Other areas of law are determined almost wholly by statute, such as the substantive criminal law. Some areas of law are an admixture of the two. In every area of law, there are at least some influences of both.
From the constitutional perspective, Congress has the power to make laws. In highly technical matters, Congress often chooses to delegate these powers to administrative agencies of the federal government that have the expertise to regulate these technical areas. The subsequent regulations derived from these delegated powers have the force of laws and are thus considered primary sources of law. Many of these federal agencies have quasi-judicial powers and are thus authorized to hear cases involving violations of these rules.
Modification History File Created: 08/04/2018 Last Modified: 08/10/2018
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
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