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Hierarchy of Laws -- A response to a student question
Sunday, October 16, 2011 7:03 PM
From: "Peter Bibler" <professorbibler@gmail.com> Add sender to Contacts To: legalenglishone2011@yahoo.com, legalenglishtwo2011@yahoo.com, legalenglishthree2011@yahoo.com, legalwriting2011@yahoo.com

I enjoy receiving questions. Please keep asking them. _______________________________ "Federal regulation" is a general term that can refer specifically to federal statutes, federal regulations and federal rules (for civil procedure in the federal courts, for example). In class, I stated that the US Constitution is superior to federal statutes and treaties, and these are superior to federal administrative regulations, all of which are superior to federal judicial decisions. Federal statutes are enacted by the legislature, federal regulations are passed by federal administrative agencies, and federal judicial decisions are decided by the federal courts. It is correct to say that judicial decisions are law. However, if a case before the court involves a statute, the court cannot ignore the statute; it must follow the statute. The question then becomes how to apply the statute to the case before the court. The judicial decision interpreting the statute and applying it to the case then becomes "law" or precedent for courts in that same jurisdiction for similar cases involving that same statute. While courts cannot ignore a statute, the court has the authority to determine whether the statute is valid under the US Constitution. Thus, it has the power to strike down, or invalidate, a law that it deems unconstitutional. Finally, although judicial decisions are law. If the legislature disagrees with a court's creation of a common law rule or disagrees with its interpretation and application of a specific statute, the legislature has the power to amend the statute or pass a new statute. This would be superior to the old judicial decision.

The above also applies to the state level.




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