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3.7.1 Introductory Exercise on Code Research 1.) You are an associate at a mid-size law firm in Washington, D.C. Your managing partner comes to you to say that a client, an extremely wealthy woman who inherited an alcohol-distribution company, stopped in to request that the firm initiate divorce proceedings on her behalf. Apparently, her significantly-older husband has become increasingly cantankerous and erratic following some failed political ambitions. In your client’s own words, “he’s just become too much of a maverick.” Upon being asked in which state the matrimonial residence was located, the client confessed that the couple often spend time apart but rotate monthly to dwellings in the following locales: Kahului, Hawaii Sedona, Arizona Key West, Florida Arlington, Virginia You have been tasked with finding statutory grounds for divorce in each of the jurisdictions listed. Please find the relevant code sections. 2.) Try your hand at putting legal authorities into hierarchical order! For each of the following fact patterns, put the authorities listed into order from the most authoritative to the least authoritative. Draw a line at the point above which all authorities are mandatory and below which all authorities are persuasive. As we have seen, American law comes from many sources. Not only does each branch of government create its own source of law, but each separate jurisdiction within the U.S. possesses its own set of laws. As such, knowing how the different pieces of law interact with each other takes on huge importance for legal researchers (especially if the different pieces of law in any way contradict each other, which is not an unusual occurrence). Lawyers refer to individual sources of law as authorities and describe their relationship to each other as the hierarchy of authority. As discussed above, the standard hierarchy of authority starts with constitutions as the most authoritative, and then proceeds in order of authoritativeness through statutes, judicial opinions, and administrative regulations. However, this simple hierarchy does not capture the nuance involved when dealing with authorities from multiple jurisdictions or authorities from one jurisdiction being applied by the courts of another. Furthermore, not all judicial opinions carry equal weight. Some additional concepts are therefore necessary to sort and rank authorities. Determining the weight of authority for some sources of law can be quite straightforward. If a jurisdiction’s constitution applies to a set of facts before a court, then the constitution acts as mandatory authority. Similarly, if a statute from the jurisdiction in question relates to the facts in controversy, a court must apply it. The same holds true for regulations, though they tend to apply to more narrowly defined sets of facts. In other words, constitutions, statutes, and regulations can never be persuasive; they are either mandatory or irrelevant. Conversely, secondary authority, since it is not actually law but merely interpretation, can never be mandatory but only acts as persuasive authority. Thus, a determination of weight for many authorities will be quick and easy. The weight of authority of judicial opinions, however, depends on several factors. A lawyer must first consider choice of law. In order to be binding, a precedent must apply the same jurisdiction’s laws as would apply to the controversy at hand. However, choice of law alone does not determine weight of authority. Second, the lawyer must consider venue, or the court where her controversy would be heard if it went to trial. In order to be mandatory, an earlier case must have been issued from the same court system as will be adjudicating the controversy to which a lawyer would like to apply the precedent. Furthermore, the earlier case must be from a higher court, in a direct line of appeal, from the current controversy’s venue. As state court structures vary, let us look at a hypothetical case in the federal court structure as an example. As discussed above, the federal court structure consists of trial level courts (District Courts), intermediate appellate courts (Courts of Appeals), and ultimately, the United States Supreme Court. District Courts and Courts of Appeals are grouped into twelve geographic circuits (and one topical circuit). If a lawyer loses a trial in a District Court, she may appeal to the Court of Appeals for whichever geographic circuit contains the District Court that tried her case. See Figure 1.5.3 for a list of which circuits contain which districts. Federal Circuit Corresponding District Courts by State in which they Reside First Circuit ME, NH, MA, RI, Puerto Rico Second Circuit NY, VT, CT Third Circuit PA, NJ, DE, Virgin Islands Fourth Circuit MD, VA, WV, NC, SC Fifth Circuit TX, LA, MS Sixth Circuit TN, KY, OH, MI Seventh Circuit IN, IL, WI Eighth Circuit MN, IA, MO, AR, ND, SD, NE Ninth Circuit CA, AZ, NV, ID, OR, WA, MT, AK, HI, Guam, Northern Mariana Islands Tenth Circuit UT, WY, CO, NM, KS, OK Eleventh Circuit* AL*, GA*, FL* D.C. Circuit D.C. The Federal Circuit certain appeals determined by subject matter Figure 1.5.3: The Federal Judicial Circuits * The Eleventh Circuit split from the Fifth Circuit on October 1, 1981. Therefore, Fifth Circuit Court of Appeals decisions prior to that date are binding upon District Courts in the Eleventh Circuit. 1.6.1 Introductory Hierarchy of Authority Exercise You represent Old Tobias Tobacco Company. Recently, a start-up “guerrilla marketing” firm operating on Old Tobias’s behalf may have inadvertently violated federal law. Apparently, the guerrillas started a campaign whereby they were encouraging Facebook users to change their profile pictures to an Old Tobias print ad from the 1950s, an ad which runs afoul of current laws, and now the feds are preparing to file suit in the Middle District of North Carolina (where Old Tobias is headquartered). As a result, you did a little research into the matter. Please rank the authorities you found according to weight and hierarchy of authority: FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). [United States Supreme Court Case] Robert J. Baehr, A New Wave of Paternalistic Tobacco Regulation, 95 Iowa L. Rev. 1663 (2010). [Scholarly Article About Tobacco Regulation] 15 U.S.C. § 1335 (2012). [Federal Statute] R.J. Reynolds Tobacco Co. v. Seattle-King County Dept. of Health, 473 F. Supp. 2d 1105 (W.D. Wash. 2007). [Federal District Court Case] R.J. Reynolds v. Phillip Morris, 199 F. Supp. 2d 362 (M.D.N.C. 2002). [Federal District Court Case] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). [United States Supreme Court Case] Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2001). [Federal Court of Appeals Case] Brown & Williamson v. FDA, 153 F.3d 155 (4th Cir. 1998). [Federal Court of Appeals Case]