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Preservation Law (HIPR 6200): Legal Concepts

Information and resources for the Master of Historic Preservation students

General Legal Concepts


In general, there are trial courts and appellate courts.

Trial Courts

  • Where the trial is held (courts of first instance or impression).
  • Parties appear, witnesses testify, and the evidence is presented.
  • The basic function of a trial court is to determine any questions of fact in dispute and then apply the relevant rules of law.

Appellate Courts

  • Generally either party may appeal the outcome of a trial. The winner in a civil case might appeal because the monetary award was too low but usually it's the losing party that appeals. In some types of criminal cases there is an automatic appeal. 
  • Each state has a final court of appeals or court of last resort. Thirty-eight states also have intermediate courts of appeals.
  • The appellate court decides questions of law and its decision in each case is based on the trial record from below, e.g., pre-trial proceedings and trial transcript. Appellate courts do not receive new testimony or decide questions of fact, and in most jurisdictions only the appellate courts issue written opinions.
  • When a case is appealed to an appellate court, both parties submit written briefs that contain a summary of the facts and arguments on the points of law involved, and the court may hear oral arguments by the attorneys. The court then issues an opinion which states the legal basis for the decision. Almost all of the court opinions you read are the decisions of appellate courts. Databases like Lexis and Westlaw do not contain trial court transcripts.
  • If the case is decided by an intermediate appellate court, the losing party may be able to appeal one more time. This second appeal is usually at the discretion of the higher court.

In our hierarchical court system lower courts are bound by the decisions of higher courts. See the discussion on Precedent.

Some examples of the various types of courts. For other state court systems see the National Center for State Courts website.

Jurisdiction Court of Limited Jurisdiction Court of Original Jurisdiction Intermediate Appellate Court Court of Last Resort
 Federal  U.S. Tax Court  U.S. District Courts  U.S. Circuit Court of Appeals  U.S. Supreme Court
 Georgia  Magistrate Court
County Recorder's Court
 Superior Court  Court of Appeals  Supreme Court
 Maryland  District Court
 Orphan's Court
 Tax Court
 Circuit Court  Court of Special Appeals  Court of Appeals
 Michigan  District Court
 Probate Court
 Municipal Court
 Circuit Court  Court of Appeals  Supreme Court
 Montana  City Court
 Justice's Court
 District Court    Supreme Court
 New York  Surrogates' Court
 Town and Village Justice Court
 Supreme Court  Appellate Division of Supreme Court  Court of Appeals
 Pennsylvania   District Justice Court
 Philadelphia Municipal Court
 Court of Common Pleas  Superior Court
 Commonwealth Court
 Supreme Court



Another important principle in our legal system is that of jurisdiction. Jurisdiction is power, the power or authority of the court to decide a matter in controversy. The authority to compel witnesses to testify or command people to turn over documents or property, or to jail them for contempt. Jurisdiction is established in constitutions and by statute and is usually done geographically or by subject.

There are some matters over which a state or federal court has exclusive jurisdiction and some matters over which a state court has concurrent jurisdiction with the federal courts. Federal courts can, in some instances, decide questions of state law; state courts can, in some instances, decide questions of federal law. Sometimes it might be difficult to determine which matters are questions of federal, or state law, or both.

  • Levels
    • Federal
    • State
    • Local
    • Administrative
  • Types
    • Concurrent
    • Exclusive


Precedent is based on stare decisis, which means “to stand on what has been decided". The principle developed in English common law and establishes that the decision of a court not only settles a dispute between the parties involved but also sets a precedent or model to be followed in future, similar cases.

A decision is binding authority on the court that issued the opinion and on lower courts in the same jurisdiction for the disposition of factually similar controversies. In a hierarchical system like our state and federal court systems, the decision of a trial court can bind future decisions of that trial court, but the decisions do not bind other trial courts or appellate courts. Appellate courts can bind themselves and lower courts over which they have appellate jurisdiction, but appellate courts cannot bind each other by their decisions.

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