E) Primary versus Secondary Authority

The various sources of law may also be broken down into primary and secondary sources of law. Primary sources of law may be mandatory on a particular court, or they may be merely persuasive. Whether they are binding or persuasive will depend on various factors.

Secondary authority is not itself law, and is never mandatory authority. A court may, however, look towards secondary sources of law for guidance as to how to resolve a particular issue. Secondary authority is also useful as a case finding tool and for general information about a particular issue.

F) Dual Court Systems

The American legal system is based on a system of federalism, or decentralization. While the national or "federal" government itself possesses significant powers, the individual states retain powers not specifically enumerated as exclusively federal. Most states have court systems which mirror that of the federal court system.

G) Interrelationship Among Various Sources of Law

One of the more complex notions of American jurisprudence is the extent to which the various sources of law, from both the state and federal systems, interrelate with one another. There is a complex set of rules that defines the relative priority among various sources of law and between the state and federal systems.

Task 2. What Is Common Law?

The term "common law" evokes confusion and uncertainty-which is no surprise given its duality of meaning. The term "common law" may refer to any of the following:

A) Common Law as Differentiated from Civil Law

The American system is a "common law" system, which relies heavily on court precedent in formal adjudications. In our common law system, even when a statute is at issue, judicial determinations in earlier court cases are extremely critical to the court's resolution of the matter before it.

Civil law systems rely less on court precedent and more on codes -which explicitly provide rules of decision for many specific disputes. When a judge needs to go beyond the letter of a code in disposing of a dispute, the judge's resolution will not become binding or perhaps even relevant in subsequent determinations involving other parties.

B) Case Law

Common law may refer to "judge-made" law, otherwise known as case law. Cases are legal determinations based on a set of particular facts involving parties with a genuine interest in the controversy.

Case Law May Be of Several General Types:

(1) Pure decisional case law —Court called upon to decide cases on the basis of prior court decisions (precedent) and/or policy and a sense of inherent fairness. In cases of pure decisional law, there is no applicable statute or constitutional provision that applies. This type of decisional law is what is referred to as "judicially-created doctrine." Historically, the term "case law" referred to certain areas of law (e.g., torts, property) that began as judge-made, or pure decisional law.

(2) Case law based on constitutional provisions— Court called upon to consider whether a particular statute or governmental action is consistent with the United States Constitution or a particular state constitution. Court interpretation may rely upon prior decisional law interpreting same or some other constitutional provision.

(3) Case law based on statutory provisions -- Courtcalled upon to interpret a statute. Court interpretation may rely upon prior decisional law interpreting the same or similar statute.

Subsequent Case History:

(1) Subsequent Case History defined —What a higher level court has done with respect to a lower-level court decision on appeal.

(2) Importance of Subsequent Case History—If a higher level court has taken action on a lower level case, it is the opinion and holding of the higher level court that will constitute the precedent in the case. A higher level court opinion will in effect abrogate the lower level court opinion in the same case.

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