LEGAL WRITING - is a type of technical writing used by lawyers, judges, legislators, and others in law to express legal analysis

and legal rights and duties. Legal writing in practice is used to advocate for or to express the resolution of a client's legal matter. Distinguishing features: 1. Authority Legal writing places heavy reliance on authority. In most legal writing, the writer must back up assertions and statements with citations to authority. This is accomplished by a unique and complicated citation system, unlike that used in any other genre of writing. 2. Precedent Legal writing values precedent, as distinct from authority. Precedent means the way things have been done before. For example, a lawyer who must prepare a contract and who has prepared a similar contract before will often re-use, with limited changes, the old contract for the new occasion. Or a lawyer who has filed a successful motion to dismiss a lawsuit may use the same or a very similar form of motion again in another case, and so on. Many lawyers use and re-use written documents in this way and call these re-usable documents templates or, less commonly, forms. 3. Vocabulary Legal writing extensively uses technical terminology that can be categorised in four ways: a. Specialized words and phrases unique to law, e.g., tort, fee simple, and novation. b. Quotidian words having different meanings in law, e.g., action (lawsuit), consideration (support for a promise), execute (to sign to effect), and party (a principal in a lawsuit). c. Archaic vocabulary: legal writing employs many old words and phrases that were formerly quotidian language, but today exist mostly or only in law, dating from the 16th century; English examples are herein, hereto, hereby, heretofore, herewith, whereby, and wherefore (pronominal adverbs); said and such (as adjectives). d. Loan words and phrases from other languages: In English, this includes terms derived from French (estoppel, laches, and voir dire) and Latin (certiorari, habeas corpus, prima facie, inter alia, mens rea, sub judice) and are not italicised as English legal language, as would be foreign words in mainstream English writing. 4. Formality These features tend to make legal writing formal. This formality can take the form of long sentences, complex constructions, archaic and hyper-formal vocabulary, and a focus on content to the exclusion of reader needs. Some of this formality in legal writing is necessary and desirable, given the importance of some legal documents and the seriousness of the circumstances in which some legal documents are used. Yet not all formality in legal writing is justified. To the extent that formality produces opacity and imprecision, it is undesirable. To the extent that formality hinders reader comprehension, it is less

desirable. In particular, when legal content must be conveyed to nonlawyers, formality should give way to clear communication. What is crucial in setting the level of formality in any legal document is assessing the needs and expectations of the audience. For example, an appellate brief to the highest court in your jurisdiction calls for a formal stylethis shows proper respect for the court and for the legal matter at issue. An interoffice legal memorandum to a supervisor can probably be less formalthough not colloquial because it is an in-house decision-making tool, not a court document. And an email message to a friend and client, updating the status of a legal matter, is appropriately informal. Transaction documentslegal draftingfall on a similar continuum. A 150-page merger agreement between two large corporations, in which both sides are represented by counsel, will be highly formal and should also be accurate, precise, and airtight (features not always compatible with high formality). A commercial lease for a small company using a small office space will likely be much shorter and will require less complexity, but may still be somewhat formal. But a proxy statement allowing the members of a neighborhood association to designate their voting preferences for the next board meeting ought to be as plain as can be. If informality aids that goal, it is justified. TYPES OF LEGAL WRITING 1. Functional 2. Informational 3. Persuasive Functional writing is writing designed to achieve a particular result. The document itself does something. Writings called instruments are ordinarily functional. Examples of functional writing are: wills, contracts, complaints, deeds. Functional writing often must include magic words. For that reason, archaic ceremonial language is often appropriate in functional writing. The will does not have to be persuasive. It need not be interesting. But it must be accurate, complete, and understandable.The register of this document ranges from ceremonial to formal. Some ceremonial language is required by the law. Informative writing is used to convey information. The goal is to communicate objectively. Examples are: Memoranda, Letters to clients,Statements of facts in briefs. Informative writing should be in the formal or informal register, depending on the recipient. Persuasive writing is designed to convince the reader to accept a certain viewpoint. The classic example is the argument section of a brief. Ceremonial language is almost never persuasive. It is here that your writing must be at its tightest. It must be interesting. It must be, for lack of a better word, good. LEGAL ANALYSIS - the term legal analysis is one that can be applied broadly across the entire legal spectrum, but it is basis is found in the concrete understanding that the application and

use of law is based almost entirely on interpretation. Laws vary across the spectrum of criminal, civil, corporate, or political law, and vary within its many categories in complexity. A law could be a simple as a sentence or as long as a book. On the other hand, laws are predicated on finding a consensus on how they are to be interpreted, and sometimes this calls for arguments to be made that support a particular interpretation, which is the process of legal argument. When a legal action has been undertaken by a party, it is based on an interpretation of the law, which has been reached at and supported by legal analysis. The tools used to analyze the law, are as numerous as they are complex. Like any form of discourse, arguments are generally supported by existing arguments as much as they are by reading of written law. These existing arguments are called precedents, and they are usually based on decisions made upon existing court cases which involved interpretation and reinterpretation of the law as a means of establishing a means by which to render a decision. In the case of the Supreme Court, their form of judicial review tries to determine whether an interpretation of a law brought before the Court can be interpreted under the United States Constitution. In the case of a law being found in violation of the Constitution or in support of it, the Court renders a decision supporting their finding. That decision then can be used as one form of precedent, though precedents can be established at all levels of the court, not only on the highest court, provided that a higher court has not already invalidated that decision. Legal analysis does not only happen in terms that involve specific legal action (though it is these legal actions alone that can establish precedents), but also enters in legalistic discourse through academic means, which can also be cited to support legal arguments (though they carry significantly less weight than precedents). Generally, this form of legal analysis is called predictive analysis, since it is not based on a legal matter with which it plays a direct part, but are based on presenting hypothetical interpretations. When the matter of legal analysis is based specifically on an existing matter that requires the arguing of a legal point, this is called persuasive analysis. Generally, the practice of law should be scene as the practice of argument, with legal analysis being seen as the means by which an argument is proposed, constructed, and supported either to . LEGAL DRAFTING - Legal drafting creates binding, legal text. It includes enacted law like statutes, rules, and regulations; contracts (private and public); personal legal documents like wills and trusts; and public legal documents like notices and instructions. Legal drafting requires no legal authority citation, and generally is written without a stylised voice.

MEMORANDUM - An informal record, in the form of a brief written note or outline, of a particular legal transaction or document for the purpose of aiding the parties in remembering particular points or for future reference. A memorandum may be used in court to prove that a particular contract was made. For instance, in a real estate transaction, a memorandum can be used to show that the parties to a sale have entered into an agreement to sell a particular parcel at an indicated price, in addition to other details of the agreement. This type of memorandum is also referred to as a binder. An attorney might use a memorandum to explain and summarize a specific point of law for a judge or for another attorney. A memorandum decision is a written decision, issued by a court, which reports the ruling, and the decisions and orders of the court. It does not, however, contain an opinion, which is an explanation of the rationale upon which the decision was based. memorandum n. 1) a brief writing, note, summary or outline. 2) A "memorandum of decision," or "memorandum opinion" are brief statements by a judge announcing his/her ruling without detail or giving extensive reasons, which may or may not be followed by a more comprehensive written decision. Such memoranda (plural) are issued by appeals courts in language such as: "The petition of appellant is denied for the reasons stated in Albini v. Younger," or "The decision below is affirmed." MEMORANDUM. Literally, to be remembered. It is an informal instrument recording some fact or agreement, so called from its beginning, when it was made in Latin. It is sometimes commenced with this word, though written in English; as "Memorandum, that it is agreed," or it is headed with the words, "Be it remembered that," &c. The term memorandum is also applied to the clause of an instrument. MOTION - In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case.[1] Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party. LEGAL BRIEF - A brief (Old French from Latin "brevis", short) is a written legal document used in various legal adversarial systems that is presented to a court arguing why one party to a particular case should prevail. A brief contains a concise summary for the information of counsel of the case which the barrister has to plead, with all material facts in chronological order, and frequently such observations thereon as the solicitor may think fit to make, the names of witnesses, with the "proofs," that is, the nature of the evidence which each witness is ready to give, if called upon. The brief may also contain suggestions for the use of counsel when cross-examining witnesses called by the other side. Accompanying the brief may be copies of the pleadings, and of all documents material to the case. The brief is always endorsed with the title of the court in which the action is to be tried, with the title of the

action, and the names of the counsel and of the solicitor who delivers the brief. Counsel's fee is also marked. The result of the action is noted on the brief by counsel, or if the action is compromised, the terms of the compromise are endorsed on each brief and signed by the leading counsel on the opposite side. Trial briefs are presented at trial to resolve a disputed point of evidence. Legal briefs are used as part of arguing a pre-trial motion in a case or proceeding. Merit briefs (or briefs on the merits) refers to briefs on the inherent rights and wrongs of a case, absent any emotional or technical biases Amicus briefs refer to briefs filed by persons not directly party to the case. These are often groups that have a direct interest in the outcome. Appellate briefs refer to briefs that occur at the appeal stage. Memorandum of law may be another word for brief, although that term may also be used to describe an internal document in a law firm in which an attorney attempts to analyze a client's legal position without arguing for a specific interpretation of the law. IRAC Case Briefs Are usually a one page review done by a paralegal or attorney, ultimately used by the attorney to find previously decided cases by an Appellate court, in State or Federal Jurisdiction, which show how the courts have ruled on earlier similar cases in court. The brief or memorandum establishes the legal argument for the party, explaining why the reviewing court should affirm or reverse the lower court's judgment based on legal precedent and citations to the controlling cases or statutory law. To achieve these ends, the brief must appeal to the accepted forces such as statutory law or precedent, but may also include policy arguments and social statistics when appropriate. For example if the law is vague or broad enough to allow the appellate judge some discretion in his decision making, an exploration of the consequences of the possible decision outside of legal formalism may provide guidance. Such arguments may also support a legal argument when the purpose of the law at issue may be clear, but the particular application of that law in service of that purpose is in dispute. The party filing the appeal called the petitioner or appellant, who is attempting to convince the appellate court to overturn the lower court decision is responsible for submitting his brief first. The responding party the respondent or appellee, who is satisfied with the lower decision then files a reply brief within a specified time. Depending on the local rules of procedure, the court may allow or even require the parties to then file additional replies to the opposing party's briefs, multiplying the back-and-forth responses of the parties. Depending on local rules, the court may then decide the case purely based on the submitted briefs or may hear oral argument by the parties.

Statutory Construction When considering a statute, a court will apply rules of construction only when the language contained in the statute is ambiguous. Under the "plain-meaning" rule, if the intention of the legislature is "so apparent from the face of the statute that there can be no question as to its meaning, there is no need for the court to apply canons of construction" (Overseas Education Ass'n v. Federal Labor Relations Authority, 876 F.2d 960 [D.C. Cir. 1989]). Thus, before even considering what canons to apply, the court must first determine whether the statute in question is ambiguous. Courts have generally held that a statute is ambiguous when reasonably well-informed persons could understand the language in either of two or more senses (State ex rel. Neelen v. Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 [1964]). If a statute is found to be ambiguous, the court then applies a variety of canons, or rules, to help it determine the meaning of the statute. Issues of statutory construction are generally decided by the judge and not by the jury. In interpreting statutes, a judge tries to ascertain the intent of the legislature in enacting the law. By looking to legislative intent, the court attempts to carry out the will of the lawmaking branch of the government. This philosophy has its origins in the English Common Law first established over four hundred years ago. As the legal philosopherSir Edward Coke wrote in 1584, "[T]he office of all judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle invention and evasions for Continuance of the mischief according to the true intent of the makers of the act" (Heydon's Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 [King's Bench 1584]). In more contemporary terms, courts consider the history and nature of the subject matter of the statute; the end to be attained by the law; the "mischief," or wrong, sought to be remedied; and the purpose to be accomplished by the law (Crowder v. First Federal Savings & Loan Ass'n of Dallas, 567 S.W.2d 550, Tex. App. 1978). In determining legislative intent courts usually turn to a variety of sources: the language of the statute itself; the Legislative History of prior enactments on a similar subject; the proceedings surrounding the passage of the law, including debates and committee reports; and, if they are available, interpretations of the law by administrative officials. To aid in the interpretation of an ambiguous law, a court may also look to more "intrinsic" rules not related to the activities preceding the passage of the statute. These rules are applied to help the court analyze the internal structure of the text and the conventional meanings of the terms used in the law. In addition, intrinsic rules may be used when the court has little or no existing legislative history, such as that provided by committee reports or records of other proceedings, to draw on in interpreting the statute. Some of these canons of construction are expressed in well-known Latin phrases or maxims. Under ejusdem generis (of the same kind, class, or nature), when general words follow specific words in a statute in which several items have been enumerated, the general words are construed to embrace only objects similar in nature to the objects enumerated by the preceding specific words of the statute. Ejusdem generis saves the legislature from having to spell out in advance every contingency to which the statute could apply. For example, in a statute granting a department of conservation the authority to sell "gravel, sand, earth or other material," a court held that "other material" could only be interpreted to include materials of the same general type and did not include commercial timber (Sierra

Club v. Kenney, 88 Ill. 2d 110, 57 Ill. Dec. 851, 429 N.E.2d 1214 [1981]). In the opposite situation, where specific words follow general ones, ejusdem generis is also applied; again, the general term embraces only things that are similar to those specifically enumerated. Another Maxim of statutory construction is expressio unius est exclusio alterius. Roughly translated, this phrase means that whatever is omitted is understood to be excluded. Thus, if a statute provides for a specific sanction for noncompliance with the statute, other sanctions are excluded and cannot be applied (Sprague v. State, 590 P.2d 410 [Alaska 1979]). The maxim is based on the rationale that if the legislature had intended to accommodate a particular remedy or allowance, it would have done so expressly; if the legislature did not provide for such an allowance or event, it should be assumed that it meant not to. The maxim has wide application and has been used by courts to interpret constitutions, treaties, wills, and contracts as well as statutes. Nevertheless, expressio unius est exclusio alterius does have its limitations. Courts have held that the maxim should be disregarded in cases in which an expanded interpretation of a statute will lead to beneficial results or will serve the purpose for which the statute was enacted. CONSTRUCTION AND INTERPRETATION OF LAWS ntroduction Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex. What does the text mean? How does that meaning translate into legal doctrine? And how does the doctrine apply in the context of the facts of the case? One way to think more clearly about this process is to distinguish betweeninterpretation and construction. We can roughly define these two activities as follows:

Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text. Construction: The activity of determining the legal effect (or legal content) of a legal text.

Those definitions sound pretty technical, but I hope you are starting to get the idea. We interpret the meaning of a text, and then weconstruct legal rules to help us apply the text to concrete fact situations. Courts and legal theorists use the distinction between interpretation and construction in a variety of legal contexts, including contract law and constitutional law. In a contracts case, for example, the Iowa Supreme Court stated, "Interpretation involves ascertaining the meaning of contractual words; construction refers to deciding their legal effect." Fashion Fabrics of Iowa v. Retail Investment Corporation, 266 N.W. 2d 25 (Iowa 1978). This introduction to the interpretation-construction distinction is aimed at law students (especially first year law students) with an interest in legal theory. Some Background Concepts Before we get back to interpretation and construction, it may be helpful to clarify some of the background concepts and ideas. We can begin with the idea of meaning itself.

Meaning What does the word "meaning" mean? This question (which may sound pedantic) is actually incredibly important, and a good deal of confusion can be avoided if we are careful about the way we use this slippery word. Consider the following senses of the word meaning: Linguistic meaning The primary sense of "meaning" is used in expressions like, "What does that word mean?" or "What did he mean by that?" In this sense, when we ask what a constitutional or statutory provisions means, we are asking for its semantic content. Teleological meaning But sometimes we use the word meaning in another sense. When we ask for the meaning of a statute, we can be asking why the statute was enacted? When someone says, "by passing that statute, Congress meant to benefit the construction industry," they are not referring to the semantic content of the statute, they are refering to the purpose or teleological meaning of the statue. Applicative meaning Lawyers sometimes use meaning in a third sense, to refer to the implications that a legal text has for a particular case. "What does the Second Amendment mean for my client?"--this question is not about the semantic content or the purpose of the statute, it is about the way the statute will apply. Back to the interpretation-construction distinction for just a moment. Interpretation is about meaning in thelinguistic sense. Vagueness and Ambiguity The interpretation-construction distinction is closely connected to another distinction--between vagueness and ambiguity. There is a entry in the Legal Theory Lexicon on vagueness and ambiguity so I will be very brief here. A word, phrase, sentence, or clause is ambiguous if it has more than one sense: for example, the word "cool" is ambiguous because it can mean (a) hip, (b) of low temperature, or (c) of even temperament. A word or phrase is vague when it has borderline cases: for example, the word "tall" is vague, because there is no bright line between those individuals who are tall and those who are not. The same word can be both ambiguous and vague in one of its senses: cool is ambiguous and each sense of cool is vague. Sometimes legal texts are vague. Sometimes they are ambiguous. Sometimes they are both vague and ambiguous. And sometimes they are neither vague nor ambiguous. For example, the provision of the United States Constitution that gives each state two senators is neither vague nor ambiguous: in context, neither "two" nor "Senator" is ambiguous. And Senators come only in whole numbers, so "two" is not vague. But many provisions of the constitution are vague: What constitutes an "infringement" of "freedom of speech"? Characteristically, interpretation resolves ambiguity and construction creates subsidiary rules that resolve vagueness. Why? Interpretation resolves ambiguity, because it is usually the case that there is a linguistic fact of the matter about the semantic meaning of a text that is ambiguous. For example, the phrase "domestic violence" is used in Article I of the United States Constitution: does it mean "spouse abuse" or "riot,

rebellion, or insurrection"? In context, it is clear that the linguistic meaning of "domestic violence" was the latter and not the former. Construction resolves vagueness, because interpretation cannot do that work. When a word or phrase has a linguistic meaning that isvague, then interpretation has done all the work it is capable of doing. At that point, what we need is a construction that allows us to draw a line (making the vague provision more specific) or that gives us a decision procedure (allowing case-by-case resolution of the vagueness). One point of clarification is important. Although ambiguity is typically resolved by interpretation and vagueness by construction, both interpretation and construction are always involved in the process. We determine linguistic meaning when we conclude that it is vague. Once an ambiguous text has been clarified by interpretation, we still need to engage in construction (giving the text legal effect) in order to apply the text to a particular case. Interpretation and construction are two moments (or stages) in legal practice. What Work Does the Interpretation-Construction Distinction Do? Is this interpretation-construction distinction really necessary? What work does it do? Does the distinction reflect a real and fundamental difference between different modes of legal practice? One way to think about these question is to imagine what things would look like if we didn't have the interpretation-construction distinction. What if we called everything "interpretation" and didn't recognize construction as a distinct activity? Well, we could reinvent the distinction within the concept of interpretation. You can imagine talking about two stages of interpretation--stage one corresponding to the narrower idea of interpretation and stage two corresponding to construction. But if we did that, we would simply be using different labels to refer to the same concepts. So let's do a thought experiment that involves our failing to distinguish between the lingustic meaning and legal effect of legal texts. Judges and legal theorists have actually done that (so I guess it isn't really a "thought experiment). For example, Allan Farnsworth once wrote, "[Courts] have more often ignored [the interpretation-construction] by characteizing the process of 'construction' as that of 'interpretation' in order to obscure the extentof their control over private agreement." If courts deliberately ignore the distinction in order to make their role opaque rather than transparent, then legal theorists can deploy the interpretation-construction distinction in order to expose what is really going on. (There is a Legal Theory Lexicon entry on transparency.) But sometimes courts run interpretation and construction together without any awareness of the what they are doing. That is, the court may not realize that there is a difference between the inquiry into the linguistic meaning of a legal text and the creation or application of subsidiary rules that translate the semantic content into legal content. When courts (or legal theorists) are confused in this way, it is not surprising that their reasoning is likely to be confused or incoherent. On the one hand, they may try to squeeze constructions out of linguistic facts. On the other hand, they may try to reach conclusions about the actual linguistic meaning of a text on the basis of policy considerations. (Making the egregious error of arguing for the existence of a fact from its desirability.) When this happens, the

interpretation-construction distinction allows the legal theorist to step in and reconstruct the arguments so that they make sense (or if they don't, then in a way that exposes the error). So is the interpretation-construction distinction real and significant? Of course, it isn't the particular terminology that matters, but the substance of the distinction is not something that legal theorists can do without. The linguistic meaning of a legal text and the content of legal rules are really two different things. The Interpretation-Construction Distinction and the New Originalism One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism." One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction. (This is especially clear in the work of Keith Whittington and Randy Barnett.) The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation. Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work. New Originalists deny that this is true. They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results. We might call the view that original meaning and a living constitutionalism are consistent "compatabilism"--the case for this view has been made by Jack Balkin. This also suggests the possibility that continued appeals to "original intentions" or "original expected applications" beyond the original public meaning of the text are actually efforts to engage in construction to address issues of vagueness in original meaning. Some originalists who resist compatibilism are really arguing the living-constitutionalist construction is inconsistent with originalist construction. This is just one example of the interpretation-construction in action. It is relevant in a number of other doctrinal contexts, including contract law, trusts and wills, and the theory of statutory interpretation and construction. Conclusion Once you become aware of the interpretation-construction distinction, you will begin to notice its ubiquity and subterranean quality. The distinction is ubiquitous, because the law in theory and practice is almost always about the application of legal texts to particular cases. The distinction is subterranean, because of the failure of theorists, judges, and lawyers to observe the distinction, with resultant deception or confusion. With the distinction at hand, your own thinking about the law can become

clearer and more transparent, and you possess a powerful tool for understanding or criticizing the work of others. STATUTES - An act of a legislature that declares, proscribes, or commands something; a specific law, expressed in writing. A statute is a written law passed by a legislature on the state or federal level. Statutes set forth general propositions of law that courts apply to specific situations. A statute may forbid a certain act, direct a certain act, make a declaration, or set forth governmental mechanisms to aid society. A statute begins as a bill proposed or sponsored by a legislator. If the bill survives the legislative committee process and is approved by both houses of the legislature, the bill becomes law when it is signed by the executive officer (the president on the federal level or the governor on the state level). When a bill becomes law, the various provisions in the bill are called statutes. The term statute signifies the elevation of a bill from legislative proposal to law. State and federal statutes are compiled in statutory codes that group the statutes by subject. These codes are published in book form and are available at law libraries. Lawmaking powers are vested chiefly in elected officials in the legislative branch. The vesting of the chief lawmaking power in elected lawmakers is the foundation of a representative democracy. Aside from the federal and state constitutions, statutes passed by elected lawmakers are the first laws to consult in finding the law that applies to a case. The power of statutes over other forms of laws is not complete, however. Under the U.S. Constitution and state constitutions, federal and state governments are comprised of a system of checks and balances among the legislative, executive, and judicial branches. As the system of checks and balances plays out, the executive and judicial branches have the opportunity to fashion laws within certain limits. The Executive Branch may possess certain lawmaking powers under the federal or state constitutions, and the judiciary has the power to review statutes to determine whether they are valid under those constitutions. When a court strikes down a statute, it in effect creates a law of its own that applies to the general public. Laws created through judicial opinion stand in contradistinction to laws created in statutes. Case law has the same legally binding effect as statutory law, but there are important distinctions between statutes and case law. Case law is written by judges, not by elected lawmakers, and it is written in response to a specific case before the court. A judicial opinion may be used as precedent for similar cases, however. This means that the judicial opinion in the case will guide the result in similar cases. In this sense a judicial opinion can constitute the law on certain issues within a particular jurisdiction. Courts can establish law in this way when no statute exists to govern a case, or when the court interprets a statute. For example, if an appeals court holds that witness testimony on memory recovered through therapy is not admissible at trial, that decision will become the rule for similar cases within the appeals court's jurisdiction. The decision will remain law until the court reverses itself or is reversed by a higher court,

or until the state or federal legislature passes a statute that overrides the judicial decision. If the courts strike down a statute and the legislature passes a similar statute, the courts may have an opportunity to declare the new statute unconstitutional. This cycle can be repeated over and over if legislatures continually test the constitutional limits on their lawmaking powers. Judicial opinions also provide legal authority in cases that are not covered by statute. Legislatures have not passed statutes that govern every conceivable dispute. Furthermore, the language contained in statutes does not cover every possible situation. Statutes may be written in broad terms, and judicial opinions must interpret the language of relevant statutes according to the facts of the case at hand. Regulations passed by administrative agencies also fill in statutory gaps, and courts occasionally are called on to interpret regulations as well as statutes. Courts tend to follow a few general rules in determining the meaning or scope of a statute. If a statute does not provide satisfactory definitions of ambiguous terms, courts must interpret the words or phrases according to ordinary rules of grammar and dictionary definitions. If a word or phrase is technical or legal, it is interpreted within the context of the statute. For example, the term interest can refer to a monetary charge or ownership of property. If the term interest appears in the context of a statute on real estate ownership, a court will construe the word to mean property ownership. Previous interpretations of similar statutes are also helpful in determining a statute's meaning. Statutes are not static and irreversible. A statute may be changed or repealed by the lawmaking body that enacted it, or it may be overturned by a court. A statute may lapse, or terminate, under the terms of the statute itself or under legislative rules that automatically terminate statutes unless they are reapproved before a certain amount of time has passed. Although most legal disputes are covered at least in part by statutes, tort and contract disputes are exceptions, in that they are largely governed by case law. Criminal Law, patent law, tax law, Property Law, and Bankruptcy law are among the areas of law that are covered first and foremost by statute. TYPES OF STATUTES Types Of Statutes

By following proper procedures and observing Constitutional limitations, the General Assembly can create new law and can destroy old law. The kinds of laws which are enacted may be classified under five general heads:

(1) Laws regulating individual conduct. These laws prohibit certain acts or require certain acts by an individual in order to promote the interests of society generally. These laws frequently impose a penalty of a fine, imprisonment, or both, for violations, and in such cases are known as criminal laws.

(2) Laws providing for services by the State. These laws include provisions for schools, hospital and health services, agricultural and industrial research, public recreation facilities, and many other types of services which the State may provide for its people.

(3) Laws empowering or directing local governments to act. Cities, counties, and many other types of local governmental units are subject to State control. This control is generally exercised through the General Assembly by laws enabling or directing the local units to act in the manner desired by the State.

(4) Laws determining how much money shall be raised by the State and for what purposes it shall be spent. When the General Assembly enacts the various tax and appropriations bills, it makes two determinations: (a) How much of the resources of the people of the State shall be taken for purposes of government, and (b) Which governmental services and purposes shall have priority in the competition for available funds.

(5) Amendments to the State Constitution. In addition to the above four types of statutes, the General Assembly may propose amendments to the State Constitution. If an act to amend the Constitution is approved by at least three-fifths of the total membership of each house, the proposal is then submitted to the voters of the whole State. If a majority of the voters approve, the proposed amendment becomes part of the Constitution. BRIEF HISTORY OF CONSTITUTION The History and Evolution of the Philippine Constitution

The constitution is the most important part in organizing a state. It contains not only the national territory, but more importantly, it states the set of rules and principles which serve as the fundamental law of the land. Among the guidelines which are set by the constitution are the matters of: form and duties of the government; the distribution of powers of the branches of the government; and the basic rights of the citizens of the state. The Philippine Constitution has been rewritten seven times starting from the Biak-na-Bato Constitution to the 1987 Constitution. The political evolution and every significant event in the Philippine history resulted a change in the constitution. The first Philippine constitution is the Biyak-na-Bato Constitution that was enacted in 1897. It outlined the revolutionary objectives of independence from Spain.

Two years later, the president decreed the creation of the Malolos Constitution. A new central government was set up with executive, legislative and judiciary branches. It governed the First Philippine Republic proclaimed in the Barasoain Church in the same year. Due to the turbulent times of the early governments, the first two constitution were not fully enforced. What is considered the first Philippine Constitution to be fully enforced was drafted by the virtue of the Tydings-McDuffie Law in 1934 during the Commonwealth Period. It was enforced from 1935 - 1943. During World War II, a short lived constitution (The 1943 Constitution) was sponsored by the Japanese invaders within their own program of Japanization. When the political independence was granted by the United States in 1946, the constitution was revised and was enforced from 1946 to 1973. Eventually considered inadequate against the changing needs of Filipinos, the 1935 Constitution was replaced with a new one ratified in 1973. The 1973 Constitution was approved for ratification two months after the imposition of the martial law on November 29, 1972. When Ferdinand E. Marcos was ousted in 1986, the new government led by Corazon C. Aquino promulgated what is now know as the Freedom Constitution. This 1987 Constitution restored the presidential form of government. To date, the 1987 Constitution still stands, although some sectors have started to lobby for change in certain provisions as well as the change of the whole constitution. DE JURE AND DE FACTO - e jure, "by law", means laws exist to enforce segregation (such as "separate but equal" schools). De facto means that while not law, it still exists in practice, such asminority neighborhoods. PRINCIPLES GUIDING STATE POLICIES Principles Guiding State Policy (Part II) Sub Section: Overview Basic Law of State Principles Public Right and Duties Head of State Oman Council Judiciary General Provision Article (10) Political principles: Preserving the States independence and sovereignty, protecting its security and stability, and defending it against all forms of aggression. Reinforcing co-operation and reaffirming ties of friendship with all States and peoples on a basis of mutual respect, common interest, non-interference in internal affairs, compliance with international and regional charters and treaties, and the generally recognised principles of international law, in a manner conducive to the promotion of peace and security between States and Peoples.

Laying suitable foundations for the establishment of the pillars of genuine Shura Consultation, based on the national heritage, its values and its Islamic Shariah, and on pride in its history, while incorporating such contemporary manifestations as are appropriate. Establishing a sound administrative system that guarantees justice, tranquillity and equality for citizens, ensures respect for public order and safeguards the higher interests of the country. Article (11) Economic principles: The basis of the national economy is justice and the principles of a free economy. Its chief pillar is constructive, fruitful co-operation between public and private activity. Its aim is to achieve economic and social development that will lead to increased production and a higher standard of living for citizens, in accordance with the States general plan and within the limits of the Law. Freedom of economic activity is guaranteed within the limits of the Law and the public interest, in a manner that will ensure the well-being of the national economy. The State encourages saving and oversees the regulation of credit. All natural resources are the property of the State, which safeguards them and ensures that they are properly utilised while taking into account the requirements of State security and the interests of the national economy. No concession may be granted, nor may any of the countrys public resources be exploited, except in accordance with the Law and for a limited period of time, and in such a manner as to preserve national interests. Public property is inviolable. The State shall protect it, and citizens and all other persons shall preserve it. Private property is protected. No-one shall be prevented from disposing of his property within the limits of the Law. Nor shall anyones property be expropriated, except for the public benefit in those cases defined by the Law and in the manner stipulated by the Law, and on condition that the person whose property is expropriated receives just compensation for it. Inheritance is a right governed by the Shariah of Islam. Confiscation of property is prohibited and the penalty of specific confiscation shall only be imposed by judicial order in circumstances defined by the Law. The basis of taxes and public dues shall be justice and the development of the national economy. The institution, adjustment and cancellation of public taxes shall be by virtue of the Law. No one may be exempted from payment of all or part of such taxes except in circumstances defined in the Law. No tax, fee or other entitlement of any kind may be applied retrospectively. Article (12) Social Principles:

Justice, equality and equality of opportunity between Omanis are the pillars of society, guaranteed by the State. Co-operation, compassion, strong ties between citizens, and the reinforcement of national unity are a duty. The State shall prevent anything that could lead to division, discord, or the disruption of national unity. The family is the basis of society, and the Law regulates the means of protecting it, safeguarding its legal structure, reinforcing its ties and values, providing care for its members, and creating suitable conditions for the development of their aptitudes and capabilities. The State guarantees assistance for the citizen and his family in cases of emergency, sickness, incapacity and old age in accordance with the social security system. It also encourages society to share the burdens of dealing with the effects of public disasters and calamities. The State cares for public health and for the prevention and treatment of diseases and epidemics. It endeavours to provide health care for every citizen and to encourage the establishment of private hospitals, clinics and other medical institutions under State supervision and in accordance with the rules laid down by Law. It also works to conserve and protect the environment and prevent pollution. The State enacts laws to protect the employee and the employer, and regulates relations between them. Every citizen has the right to engage in the work of his choice within the limits of the Law. It is not permitted to impose any compulsory work on anyone except in accordance with the Law and for the performance of public service, and for a fair wage. Public employment is a national service entrusted to those who carry it out. The State employees while performing their work shall seek to serve the public interest and society. Citizens are considered equal in taking up public employment according to the provisions of the Law. Article (13) Cultural Principles: Education is a fundamental element for the progress of society which the State fosters and endeavours to make available to all. Education aims to raise and develop general cultural standards, promote scientific thought, kindle the spirit of enquiry, meet the needs of the economic and social plans, and create a generation strong in body and moral fibre, proud of its nation, country and heritage, and committed to safeguarding their achievements. The State provides public education, combats illiteracy and encourages the establishment of private schools and institutes under State supervision and in accordance with the provisions of the Law. The State fosters and conserves the national heritage, and encourages and promotes the sciences, literature, and scientific research. Article (14) Security Principles

The States goal is peace, and safeguarding the countrys security is a duty entrusted to every citizen. The Defence Council studies matters concerning the maintenance of the Sultanates security and its defence. It is the State alone that establishes the Armed Forces, public security organisations and any other forces. They are all the property of the nation and their task is to protect the State, safeguard the safety of its territories and ensure security and tranquillity for its citizens. No institution or group may set up military or paramilitary organisations. The Law regulates military services, general or partial mobilisation and the rights, duties and disciplinary rules of the Armed Forces, the public security organisations and any other forces the State decides to establish. DOCTRINE OF STATE IMMUNITY - he doctrine and rules of state immunity concern the protection which a state is given from being sued in the courts of other states. The rules relate to legal proceedings in the courts of another state, not in a state's own courts. The rules developed at a time when it was thought to be an infringement of a state's sovereignty to bring proceedings against it or its officials in a foreign country. There is now a trend in various states towards substantial exceptions to the rule of immunity; in particular, a state can be sued when the dispute arises from a commercial transaction entered into by a state or some other non-sovereign activity of a state. The United Nations Convention on Jurisdictional Immunities of States and their Property, which is not yet in force, formulates the rules and the exceptions to them. It does not cover criminal proceedings, and it does not allow civil actions for human rights abuses against state agents where the abuse has occurred in another country.