Lecture for the
Georgian Bar Association
October, 17, 2014
Professor Edward C. Harris
Chicago-Kent College of Law
Copyright © 2014
Sources of Law in the U.S.
 Primary vs. Secondary
 Mandatory vs. Persuasive
 Weight of a source is dependent on position of law
making body in the hierarchy of authority.
Sources of Law in the U.S.
 Legal Systems in the U.S.
 50 State Systems plus Washington, D.C.
 1 Federal System
 Military Legal System (not important for our purposes)
Sources of Law in the U.S.
 Each system contains the obvious branches of
government:
 Legislature (creates constitutional and statutory law)
 Executive (executes the law – but executive orders)
 Judicial (interprets law, but may make case law)
Sources of Law in the U.S.
 Primary – the law!
 Constitutions
 Federal and state
 Statutes
 Federal and state
 Administrative Regulations
 Municipal Ordinances
 Case Law
 Priority in the order above!
Sources of Law in the U.S.
 Constitutions
 Highest source
 General in character
 Describes the relationship and powers of each of the
branches of government, but also includes important
human/civil rights
Sources of Law in the U.S.
 Statutes (Fed and State)
 Laws on specific subjects
 Process – two houses of congress/state legislature, plus
approval of the President/Governor
 May be still too general on the subject for people and
businesses to know what the law requires;

May need the further source of administrative regulations for
specifics
Sources of Law in the U.S.
 Administrative Regulations (Fed and State)
 Municipal Ordinances
 All of the above are ENACTED sources of law
Sources of Law in the U.S.
 Case law
 Rule of common law
 Statutory interpretation (or of an Administrative
Regulation).
 How does it apply and how does it bind other
courts???
 The rule vs. the reasoning
 Reasoning by analogy – analogous vs. distinguishable
Sources of Law in the U.S.
 Secondary sources…
 Not the law; commentary about the law
 Lots of different secondary sources
 Used to:


Aid understanding
Find other primary sources
Sources of Law in the U.S.
 Sample of secondary sources:
 Legal encyclopedias
 Treatises / hornbooks
 Restatements (common law areas)
 Uniform laws and commentary
 Law review and journal articles
 Legal dictionaries
 Digests (not really a secondary source – a finding tool)
Analytical Paradigms
 IRAC
 Typical for law school exams, but some lawyers use this
in various forms of analysis
 Issue, Rule, Application, Conclusion
 CRuPAC
Analytical Paradigms
 The paradigm that you use (whether IRAC or CRuPAC
or something else) will change slightly and the
language you use will change based on whether you are
writing predictively or persuasively
 Predictive “Likely”
 Need to hedge to avoid having your words being
interpreted as absolute
Analytical Paradigms
 CRuPAC
 Conclusion:


Start with this, and you may need to wait until you know the
answer to write this portion.
Your reader wants to know the result at the beginning.
Analytical Paradigms
 CRuPAC
 Rule



Here you want to state the relevant portions of the rule or
rules that govern your facts.
You may need more than one rule
Move logically through this section by stating general rules
first, then more specific rules, and exceptions to the rules
Analytical Paradigms
 Proof of the rule:
 Your reader needs to know that the rule really is the rule
in your jurisdiction.
 How?


Citation to the applicable authority (simple)
Explanation of the rule (more complex)
 Could be discussion of legislative record, case law, how the law
has been applied to similar situations, etc.
 By the time your reader has read this information, he or
she feels confident that the law is in fact the correct law,
her or she understands it and how it applies
Analytical Paradigms
 Application of the rule to the relevant facts.
 In your application of rule to facts, you need to make it
obvious to your reader that the application of the rule
leads to the conclusion that you mentioned at the
beginning (and again at the end).
 Don’t leave out facts that could have an impact on the
conclusion.
 Don’t leave out aspects of the rule that might be relevant
to your prediction.
 Here is where you might also hint at information that
you do not have and need to know.
Analytical Paradigms
 Also in the application of rule to facts, you might want
to also compare how the rule has been applied in the
past to similar situations by the court (or relevant
decisional body). This helps your reader see that your
application of rule to facts is consistent with how the
decisional body has previously applied the rule.
 This type of comparison is typically reserved for
lengthier legal analysis, e.g., a full-length office memo.
Analytical Paradigms
 Conclusion:
 Restate your conclusion and perhaps add something
that indicates what you think the result means… such as,
“the employer should consider a settlement negotiation
with the former employee rather than take a risk of
losing at trial…”
Language and Organization
 The overall piece
 Section to section…

(1) Intro/issue/background; (2) analysis (1, 2,3, or 4 parts); (3)
do each of your main parts to the analysis need to be further
divided into subparts? (4) conclusion
 Subsection to subsection – logical path
 Use headings and subheadings to guide the reader
 Paragraph to paragraph – logical path - one main idea
leading to the next main idea
 Sentence to sentence – same
Analytical Paradigms
 Use of transitional words and phrases to show the
logical flow of ideas:
 In addition,…
 Further,…
 On the other hand, ….
 However,…
 Although,…. there is nevertheless….
 These words mean something very specific and
demonstrate the logical relationship between the idea
that comes before and the one that follows. They give
clear signals to your reader.
Analytical Paradigms
 A few other language basics:
 Articles – definite and indefinite
 Verb form and agreement
 Active voice vs. passive voice
Transactional Drafting (Contracts)
 “Legalese” vs Plain English
 Organizing a contract (see course materials Section 4)
 Definitional terms or terms of art: how to define, how
to use, and consistency, consistency, consistency!
Transactional Drafting (Contracts)
 Parts of a typical contract – what they are and what
they do:
 Title
 Introductory Paragraph
 Recitals
 Transitional clause
 Transactional provisions (substantive)


Definitions
Key elements of the transaction – this is the “what” and “how”
of the transaction
Transactional Drafting (Contracts)
 Transactional provisions (continued)
 Representations and Warranties
 Covenants
 Term, termination, and breach
 Anything else???
 Notices
Transactional Drafting (Contracts)
 Miscellaneous provisions:
 Severability
 Choice of law
 Choice of forum
 Attorneys fees
 Modification
 Assignment
 No waiver
 Merger clause – Parole Evidence Rule
Transactional Drafting (Contracts)
 Miscellaneous (continued)
 Liquidated damages ??? Maybe in the main body of the
contract under “breach”
 Force majeure
 Other???
 Signature Block
 Name, title, and date
 Notary?
 Annexes