James Gilbert

EDLD 8431
M1 Assignment Questions and Issues for Discussion
1. How does common law differ from civil statutory law? While both are subject to the
constitution, statutory law is derived from a particular statute that is passed by the legislative
branch of government. Common law is derived from the decision of judges based on common
practices and customs of the land and previous court cases. Common law in some cases can lead
to the development and passage of statutory law by the legislature.
2. What is the value of precedent as a legal concept? Precedent helps to insure continuity in
the law. It helps to limit the power of judges by insuring that judgments are rendered by the
absolute power and discretion of the judge independently of previous standards and
interpretations.
3. What is the standard of test for overturning legal precedent in American law? The
standard for overturning precedent is that it must not have been set by a higher court to which the
present court is subordinate. A court must abide by its own former decision unless it is found
that the decision was wrongly decided and less mischief will result from overturning the
precedent than allowing it to continue. Discuss some of the problems with this standard. This
standard is potentially problematic because decision rendered by higher courts may not be the
best decisions always and choices to overturn and based largely upon subjective reasoning.
7. Briefly describe the main events entailed in the process of going to court. The first event is
to contact a lawyer to determine if the case is civil or criminal and if court is necessary. The next
event is pleading in which the defendant is notified via summons and given a chance to respond.
The next step is discovering evidence, facts, and aid in formulating issues and legal arguments.
The next event is whether or not the judge will dispose of the suit without trial for various
reasons. The next event is trial before either a judge or jury. Jury is selected and opening
statements are made by respective attorneys and trial precedes with the burden of proof resting
upon the plaintiff. The next event is judgment is rendered when the official decision of the court
is made by either the jury decision or judge. The last event is an appeal by the losing party.
8. What primary legal resources do you need to write a term paper on legal subject matter?
The primary legal resources include legal encyclopedias and restatements, dictionaries, law
reviews, books on the law, and law digests.