(tribal music) - The title of this lecture is "Sources of Law", so, any time you make an assertion, you ought to be able to point to a source of authority for it. So, as a student, we're asking you to do this rather audacious thing, you're reading a Supreme Court opinion, and we then ask you to give your own opinion as to whether the Supreme Court got it right. And if you think, you've got nine justices who have life tenure, and have been appointed by the President, and nominated by the Senate. And here you are, at the beginning of your graduate school career, opining that they got it wrong. So you need to be able to point to a source of authority, because otherwise we might say, "Well, you just started studying this, "how can you be the one to know?" So, it's your way of saying, "Don't take my word for it. "Here's a source of authority, that demonstrates "that what I'm saying is true." That builds credibility for you, you can say, "I haven't been studying this for very long, "but I've studied it well enough "to be able to direct you to the sources for these rules." And this applies in life, not just in graduate school. In a free society, I might often say, particularly in a nation like ours, with radical individualism, I might say, "You are not the boss of me." So, any time that you declare that I owe you some obligation, you will need to point to a source of authority for that, I don't have to take your word for it, or you may not have the individual power to tell me what to do, but you might find that power in the law, you might find authority for your assertions. So, for example, in tort law, you're saying to someone, "You hurt me, so pay up." You're asking the court to use its power to take someone else's property away, usually in the form of money, and to hand it over to you. In order to demonstrate that that person has such an obligation, you need to be able to demonstrate, in law, where that obligation resides. Similarly, in criminal law, if we as a society, or if a prosecutor says, "We will confine you, we will take away your liberty," then your right to freedom requires that they point to a source of authority, allowing them to take away your liberty. So, you will take a separate course that demonstrates how to find these sources of law, but I wanna give you a brief definition of what are these sources of law. Generally, under the United States system, we begin with constitutional provisions, followed by common law, or case law, statutes, and regulations. What you'll notice in this framework, is that the Constitution creates three branches of government, the judiciary, the legislative, and the executive, and then each of the following sources of law, each of them is anchored in one of those three branches creating that rule, each branch is a source of law. So, the judiciary gives us case law or common law, statutes are acts of the legislature, so an act of Congress is legislation, it is a statute, and then finally, when the executive branch makes rules and regulations, it is exercising it's authority. So, first I should note, in terms of a constitution, a constitution is not required, in any given sovereign. So, the United Kingdom, and the Navajo Nation, have successfully governed for centuries without having a written constitution. But, in the modern era, constitutions are common, that is, they are the constitutive documents that establish a government, or create the rules for establishing a government. So, one example of this might be the rule for eligibility of US senators that's found in article one, section four, as amended by the 17 and 20 amendments. That requirement says that in order to be a senator in the United States you must be 30 years of age, you must be a US citizen for at least nine years, and you must reside in the state that you will represent. Then that rule for determining who is eligible to represent people as senator is then supplemented by a determination in the 17th amendment, that they will not be appointed by state legislatures, but instead will be subject to popular election, and then the beginning date of their term is established in the 20th. So, if you have two people competing, to determine which of them will get to be the senator, then this rule tells us how we make the determination as to which one, it's anchored in the Constitution, so it is the constitutional source of rules. Second, the United States adopted the common law, largely because the individual colonies were already applying the common law, so that seemed a natural source for baseline rules, to help govern society. Baseline rules that can be changed by statute, through an act of the legislature. But, to come up with a couple of examples for common law, as a source of law, or source of authority, the duty of reasonable care, the duty of non-negligence in tort law, is anchored in the common law. You are free to do what you will, for the most part, but you are liable for injuries, if you do not exercise that conduct with reasonable care, and that's the level of care that a reasonably prudent person, in the same or similar circumstances, would show. So that comes to us from the set of common law cases that were incorporated into US law at the beginning of the constitutional system. Or before the Constitution was established, even. One important thing to note about case law is the doctrine of stare decisis. That is, to let the decision stand. So that if there is a prior case within your jurisdiction, that has very similar facts then the rule applied in that case generally will be the rule that you apply in the current case. I do wanna note one important distinction, when it comes to applying the doctrine of stare decisis, and that is recognizing the difference between binding or mandatory authority, and persuasive authority. This matters in state courts, it also matters in the federal system. Binding authority is the doctrine of stare decisis applied within the same jurisdiction. So, the United States Supreme Court cases apply everywhere within the federal system, for example. But persuasive authority is a case that is factually on point, that is, its facts look a lot like the facts in your case, but it comes from a different jurisdiction. That means we might look to that case in order to be informed or shaped in our reasoning, but that case does not mandate a given outcome. So in the state of Oklahoma, we may have a case of first impression, that is, a case that has never been adjudicated before in Oklahoma court, until this case arose. But we might look to sister states like Arkansas or Texas or California, and note that they have already made rules about cases very similar to this one, so in Oklahoma, our courts are not bound to follow the rules of other states, but they might be persuaded by the reasoning found in those other cases. So we first favor mandatory authority, it is binding on the court, and then second persuasive authority arises from a case that is on point factually, but comes from a different jurisdiction. It's also worth noting, within the federal system, that with the 13 circuit courts, a case is binding within one circuit, but only persuasive elsewhere. So, if you have a tenth circuit case, dealing with an Indian land dispute, if the tenth circuit has never adjudicated that case before, and there's no Supreme Court case governing the outcome, then the tenth circuit judges will likely look to, first other appellate courts, in other circuits, like the ninth or the eighth or the sixth, and then if they don't find good authority there, they might look to district court opinions, to see what trial courts have said on those subjects. Our third source of authority comes from the legislature, that is, statutes or acts of Congress. Congress is the law making body of the United States, so you might ask, how does a law making body act? Well, it acts by passing legislation. So, in passing legislation or passing statutes, we have, therefore, congressional acts. So that's why you'll hear something like, the Archeological Resources Protection Act, being titled that way because it is an act of Congress, it is a piece of legislation, it is a statute. You will find in these statutes, or in this legislation, you will find two different citations for it. A public law number, for example, with ARPA, the Archeological Resources Protection Act of 1979, it's public law number is 96-95. That means it is the 95th statute passed by the 96th Congress, and that was the Congress in 1979. You will notice that that statute, the Archeological Resources Protection Act, creates certain restrictions on what individual citizens are allowed to do. It prohibits the excavation, removal, alteration or destruction of archeological resources on either federal or Indian lands, unless you have permit. It was also amended by the Native American Graves Protection and Repatriation Act of 1990, so ARPA might apply to NAGPRA violations as well. And, it also prohibits the sale, purchase or transport of any archeological resource taken in violation of state law. There are criminal and civil penalties both for violating this statute, so Congress said that violations might be felonies, and they are punishable with fines up to 250,000 dollars, and imprisonment of up to 10 years, as well as forfeiture of property. So, Congress has exercised it's lawmaking authority to pass this statute, to penalize the damage to archeological resources. You will notice that this is an act, it is a law, or a statute, it is legislation, it is not just a bill. A bill is the product of one of the houses of our bicameral, or two house legislature, so you can have a Senate bill or a House bill, and if you remember, the "School House Rock" episode of "I'm Just a Bill", his entire blues rendition is about life of a rule that is not yet a binding rule, in the form of legislation. So, we start out with a bill from each house, and then we reconcile those bills, by having a committee from each branch of the legislature decide what the ultimate legislation will be, and then the legislation is voted on in both houses, and then it goes to the President. Once it is a law, then, as an act of Congress, it is binding according to its own terms, as limited by the Constitution. A moment ago I mentioned that this ARPA was public law 96-95, that's generally not how you would find it. Generally you would find it by going to the United States Code, which is a set of books, that are available online now, and the reason I say it's the United States Code is that it is codified. So, the public laws are organized chronologically, public law 96-96 follows public law 96-95, but a codified collection of laws takes provisions from each statute, and places them in a thematically organized way. So, for example, the Clean Air Act of 1970 is found at 42 U.S.C., 7401, if you look in title 42, you'll find that there are lots of environmental statutes there. Most of the statutes governing Native Americans are found in title 25, which is entitled "Indians." So a codification lets you look at statutes organized based on their subject matter. The public law lists them in order of passage. Legislatures also act through information gathering, and dissemination of information, through reports, generally from committees. But the binding rules that come out of Congress, or out of legislatures are acts or statutes. And then fourth, we have regulations. Regulations are executive branch rule making, and generally we have a rule that says an agency must follow it's own regulations just as it must follow the statutes of Congress, and regulations generally fill gaps where Congress has been silent, or ambiguous about a particular provision, but an agency needs to create more detailed rules in order to implement the statute. So the rule gets passed by the agency, through, generally, a notice and comment period, published in the federal register, and then after getting comments, they pass a final rule, or final regulation, and then the agency applies that regulation. Of course, it has to be available to the public, also not in a chronological way, like it is in the federal register, but in a codified way. And the place we go for those regulations is to the CFR, the Code of Federal Regulations. So, if you wanted to know, what are the rules governing air quality in the United States? Well, you know that the Clean Air Act, in sections 107 to 111, that is, in 42 USC 70401, 70401 is section 101 of the Clean Air Act, but it gets a new number when it's put in the US code, so Clean Air Act section 107 is 42USC 70407. But, you go to the US code, and you find sections 107 through 111, but they just tell you how we define criteria pollutants for which national ambient air quality standards must be created, but the actual determination is made by the EPA. So the EPA then has to create rules by which it sets the maximum amount of a pollutant, designated as a criteria pollutant, that can be in our ambient air, that is, they have to make a rule governing the national ambient air quality standard. And we would go to 40 CFR part 50, or 40 CFR section 50, to look at the rules that have been passed by the agency, in order to implement the Clean Air Act, that is, the rules by which they make the determination that the seven criteria pollutants we now have, remain regulated, we have safe amounts of them in the air. One distinction I wanna make, too, is the difference between regulations and guidelines. So, when an agency passes a regulation, that creates a positive rule. But they also sometime pass guidelines to govern their own behavior, but not to dictate their own behavior. And courts say generally that agencies must follow their own regulations, but they do not have to follow their own guidelines, those guidelines are there as a recommendation, effectively, or general practice, but they're not binding in the same way that regulations are. So you might think of regulations as being a firmer rule than guidelines, but of course, regulations are generally less powerful than our statutes, but they're more precise. So we have, generally, four sources of law, Constitutional provisions, case law or the common law, statues or legislation, and regulations passed by the executive branch. Those four sources will generally be the things to which you will cite when you're looking at primary authority, because this is the primary source of the information or of the obligation. As opposed to a secondary source, which would be an academic article, for example, that writes about these other sources of law. We look forward to having you in class, and hope that you enjoy the rest of the program. (tribal music)