CLA - Chap. 5 Legal Research

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Citation

A reference to a legal authority, such as a constitution, statute, case, etc.

A prior case is precedent within a particular jurisdiction if

(1) its facts & legal issues were substantially similar to the facts of the case before the court (instant case); (2) it was decided by majority decision of a higher court of that jurisdiction; and (3) the case was reported (published)

Statute formation (pg. 253)

- Bill (not a law yet until enacted by legislature); - Slip law (once bill is enacted); - Session law (arranged in chron. order according to date of enactment) - Codified (collected into a statutory code) The code arranges the statutes & amendments by topic (subject matter)

To locate specific legal authorities that govern a specific factual issue, one must determine:

- the type of procedural law (combination of statutes, rules of procedure, rules of evidence, and court rules) that must be followed

To locate specific legal authorities that govern a specific factual issue, one must determine:

- the type of substantive law involved; whether constitutional, statutory [civil or criminal], administrative, or case law

To locate specific legal authorities that govern a specific factual issue, one must determine:

- the type of system in which the factual issue arises; whether federal, state, or local

Three case reporters for U.S. Supreme Court cases

1. United States Reports (cited, U.S.) 2. Supreme Court Reporter (cited, S. Ct.) 3. United States Supreme Court Reports, Lawyers' Edition (cited, L. Ed. or L. Ed. 2d)

Example of a United States Code citation

15 U.S.C. § 7 (1988)

Federal Reporter (F.)

1880 to 1924; U.S. District Court

Federal Reporter, Second Series (F.2d)

1924 to 1932; U.S. District Court

Federal Supplement (F. Supp.)

1932 to present; U.S. District Court

Example of Code of Federal Regulations citation

22 C.F.R. § 145.6 (1992)

Example of a Federal Register citation

48 Fed. Reg. 37,315 (1983)

American Law Reports selects & publishes only those state appellate court cases which are significant

A case is significant to Lawyers Co-op editors if it indicates a change in the law or a new trend in legal thinking

Uniform System of Citation (USOC)

A complete list of federal specialty courts and their case reporters can be found in the Uniform System of Citation

Constitutional Law

A constitution exists for the federal system as well as for each state system

Statutory law

A legislative enactment is called a statute at the federal & state level; An ordinance at the local level

Trawicks

A treatise on the Florida Rules of Civil Procedure

Memorandum opinion

A very brief opinion; a cursory opinion; an opinion so abbreviated that it is hardly an opinion at all

Treaty

Agreement made between the U.S. and one or more of the other sovereign nations of the world

Interstate compact

Agreement made by two or more states (concerning such things as disposal of radioactive waste or use of a common waterway)

Southern Reporter (So. or So.2d)

Alabama; Florida; Louisiana; Mississippi

Pacific Reporter (P. or P.2d)

Alaska; Arizona; California; Colorado; Hawaii; Idaho; Kansas; Montana; Nevada; New Mexico; Oklahoma; Oregon; Utah; Washington; Wyoming

The universally accepted authority on legal citations is the book: A Uniform System of Citation

Also known as the Blue Book

When an official body (Congress) authorizes & directs the collection & publication of law, it is an official publication

An unofficial publication is one that is not specifically authorized or sanctioned by an official body but rather is compiled by a private publisher

South Western Reporter (S.W. or S.W.2d)

Arkansas; Kentucky; Missouri; Tennessee; Texas; Indian Territories

Primary law - how it's recorded

At federal & state levels, primary law is recorded predominantly: - in constitutions; - statutes; - administrative rules & regulations; - court cases

A constitution embodies the government's authority to exist & serves as an outline for the exercise of governmental powers

At the local level, this authorizing document is called a charter

Federal session laws are also codified & published in the United States Code (U.S.C.)

Because the codification of federal statutes is selective, the Statutes at Large is the only complete collection of federal statutory law

Headnote or syllabus (element of a reported case)

Brief summary of a legal rule discussed in the opinion; headnotes are numbered. Key numbers are used in West publications

Statement of Facts (element of a reported case)

Brief summary of facts of case, including its procedural posture

Loose-leaf service publishers

Bureau of National Affairs; Commerce Clearing House

U.S. Constitution

Can be found at the front of the United States Code; An index of its articles & amendments is included with index to United States Code

Presidential Proclamations & Executive Orders

Can be found in the Federal Register

Federal Rules Decisions (F.R.D.)

Cases related to federal rules of civil & criminal procedure are collected in this case reporter

Federal case reporters may cover a specific jurisdiction (U.S. Supreme Court); a specific geographical area (Arizona) or a specific subject (bankruptcy reporter)

Cases within a particular reporter are arranged chronologically by date of decision

Parallel citations should not be used when citing U.S. Supreme Court cases

Cite to U.S. Reports only

Obiter dicta

Comments by a judge in a court opinion that aren't necessary for the resolution of the case

Commerce Clearing House publishes

Congressional Index; Federal Securities Law Reporter; Standard Federal Tax Reports; Trade Regulation Reporter

Atlantic Reporter (A. or A.2d)

Connecticut; Delaware; District of Columbia; Maine; Maryland; New Hampshire; New Jersey; Pennsylvania; Rhode Island; Vermont

Primary law - mandatory & carries the most weight. Mmust be followed within the legal system to which it applies

Constitutions; statutes; case law; rules of procedure; rules of evidence; administrative rules; court rules; executive orders

Federal Rules Decisions

Contains case law on rules of civil & criminal law

Supreme Court Reporter Lawyers Edition - unofficial case reporter, published by Lawyers Co-op

Contains star paging to U.S. Reports; includes summary of each case (located before the headnotes); It's the only Supreme Court case reporter to include summaries of the briefs of counsel

Opinion (element of a reported case)

Court's explanation; includes the holding, rationale and dicta

Stare decisis

Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued

De novo

Decision of an appellate court to try a case as if the appellate court was the first court to hear that case

Bankruptcy Reporter

Decisions of federal bankruptcy courts from 1979 forward

Supreme Court Reporter - unofficial case reporter published by West (uses key numbering)

Does not contain decisions prior to 1882 but does contain star paging to the official reporter, U.S. Reports

Each decennial of the American Digest System contains an alphabetical table of cases by plaintiff

Each case listed gives the full citation, together with the topics and key numbers under which the case has been digested

Local Court Rules

Each court typically adopts its own rules to govern things not covered by other procedural rules, such as management of the trial docket, how hearings are scheduled, etc.

Loose-leaf services compile all relevant primary authority regardless of its original source

Each loose-leaf service contains its own topical index

Substantive law

Establishes & defines the basic rights & duties that govern a society

U.S.C.A. uses the key number system

Every topic & subtopic is assigned its own key number

At the state level, cases are reported for a state's highest appellate court & intermediate appellate courts only

Exceptions are New York & California, which report lower court cases as well

Annotation

Explanatory note

Once relevant statutes & cases are found in the legal research process, researcher must assure that the statute or case is still good law

For statutes, updating means determining if: - stricken as unconstitutional; - repealed; - modified by amendment

Research tools included with compilations of statutory law & constitutions include

General indexes and topical or subject matter indexes

South Eastern Reporter (S.E. or S.E.2d)

Georgia; North Carolina; South Carolina; Virginia; West Virginia

Federal Rules of Civil Procedure

Govern how civil actions are handled, including rules that cover the complaint, summons, answer, discovery process, trial, and post-trial procedures

Federal Rules of Appellate Procedure

Govern the form & procedure for appeals from the U.S. District Court to the Court of Appeals within the federal system

Federal Rules of Evidence

Govern the types of evidence that are admissible in criminal & civil trials and, in some situations, the manner in which the evidence can be presented during trial

Federal Rules of Criminal Procedure

Govern the way in which a defendant is charged, tried, and sentenced for a federal crime

U.S. Claims Court

Hears cases related to claims brought against the U.S. government and reports them in an official publication published by the court itself, the Records of the United States Court of Claims

Caption (element of a reported case)

Identifies the court issuing the opinion, the parties, and the docket number assigned to the case

Parallel citation(s) (element of a reported case)

If the same case is published in another case reporter, the volume & page number of that reporter is shown

All statutory codes are updated by statutory supplements

If the statutory provision or section appears in the supplement, cite the supplement as the most recent version of the statute

North Eastern Reporter (N.E. or N.E.2d)

Illinois; Indiana; Massachusetts; New York; Ohio

Federal Appellate Court case decisions can be found

In the Federal Reporter Second (F.2d)

North Western Reporter (N.W. or N.W.2d)

Iowa; Michigan; Minnesota; Nebraska; North Dakota; South Dakota; Wisconsin

Executive Order

Issued by the President under special authority granted by Congress

A restatement collects & distills the primary, general rules in a given legal topic area - what the rules are and sometimes what the committee believes they ought to be

It also provides explanations of the rules & gives examples of how they apply, using brief, hypothetical cases

Unofficial U.S. Supreme Court reporter is Lawyers' Edition

It contains summaries of the attorney's and amici's briefs

The National Reporter System is the product of West Publishing Company

It divides the U.S. into 7 geographical regions & reports the decisions of the highest appellate court of each state within that region

A digest is a finding tool, usually compiled by the publisher of the case reporter to which it relates

It reprints the headnote summaries of points of law found in reported cases & classifies them by subject

If an appellate court decides that the ruling of the trial court judge was correct

It will affirm the trial court's decision

Codes

Laws of the federal government

Shepard's Citations

List every published case in every state & federal case reporter, citation by citation, and show every subsequent case cited & treatment of case

United States Law Week and United States Supreme Court Bulletin

Loose leaf services that print the full text of all U.S. Supreme Court decisions

West publishes Corpus Juris Secundum (C.J.S.), which is tied to the key number system & very heavily footnoted with legal authorities

Many researchers are attracted to this because its heavily footnoted & uses key numbers

Lawyers Co-op publishes American Jurisprudence, Second Series (Am. Jur. 2d), which contains more narrative & not as many footnotes

Many researchers prefer this when they want simply to obtain background information, because its uninterrupted text is easier to read

Substantive skills a researcher must have

Must be able to prepare case briefs & legal memoranda that summarize the legal authorities once they are found

Technical skills a researcher must have

Must be able to use research tools to find the most current legal authorities on a given point & must be able to cite the authorities correctly

A digest is a finding tool only

Never cite a digest as legal authority for any purpose

Dicta (element of a reported case)

Obiter dictum - comments of the court about minor issues or concerns other than the specific holding, rationale, and decision. Dicta is never cited as precedent

Headnote

One paragraph summary of specific point of law decided in case

Concurring opinion

Opinion issued by one or more judges of the appellate court that agrees with the result reached by the majority but disagrees with the reasoning of the majority opinion. There can be more than one concurring opinion.

Dissenting opinion

Opinion issued by one or more judges of the appellate court that disagrees with both the result & the reasoning of the majority opinion. There can be more than one dissenting opinion.

Majority opinion

Opinion issued by the majority of judges of the appellate court; the holding of this opinion may be cited as precedent if all other criteria are met. There is only one majority opinion in a case.

Per curiam opinion

Opinion of the entire court (all judges who heard the case), as opposed to an opinion written by a specific judge

The parallel citation for a state case cited in the state where the case was decided must be shown if a parallel citation exists

Parallel citations for out-of-state cases need not be cited; instead, cite only to the regional reporter

Procedural law

Prescribes the manner in which substantive laws must be enforced (procedural rules can vary widely in each jurisdiction and can vary from court to court within a particular jurisdiction)

Two major types of legal authorities are:

Primary (mandatory); Secondary (persuasive)

Legal Encyclopedias

Provides background information when researcher is unfamiliar with subject matter to be researched

There is not a loose-leaf service for every topic of law

Rather, loose-leaf services cover only selected topics

Rationale (element of a reported case)

Ratio decidendi - court's reasoning or basis for its holding & decision

Case law

Recorded primary law; consists of opinions of reported cases, usually from appellate courts of a particular jurisdiction

A reported case is one which is published

Reported cases are collected & published in case reporters, which may be official or unofficial

United States District Courts - only case reporter for federal district courts is unofficial & published by West

Reporting for federal trial courts is selective; not all cases are included

Decision (element of a reported case)

Result or disposition of the case

Holding (element of a reported case)

Rule of law for which the case is cited as precedent; it's the legal effect of the facts of the case

Code of Federal Regulations (C.F.R.)

Rules & regulations of admin. agencies are codified (arranged by subject matter) in the Code of Federal Regulations

Restatements

Scholarly treatises published by the American Law Institute which attempt to formulate the existing law of a given area

Shepard's also publishes specialized citators

Shepard's Federal Law Citations in Selected Law Reviews; Shepard's Acts & Cases by Popular Name: Federal & State

Advance sheets

Slip opinions are collected & published in a softbound or looseleaf format called advance sheets

Hornbooks

Technical & detailed descriptions of the law in a certain area

Judicial interpretation

The process of interpreting and applying the correct meaning of legal documents, as engaged in a judge in a court of law

Stare decisis

The process used to synthesize legal principles to arrive at a decision in a specific case

Examples of loose-leaf services

The United States Law Week; Criminal Law Reporter; Family Law Reporter; Securities Regulation & Law Report

The distinguishing feature of American Law Reports is not the cases it reports but, rather, the extensive editorial commentary (annotations) that follows each reported case

The annotations examine all sides of the issue; present general legal principles gleaned from the reported case & from other cases on the subject; and provide exceptions, distinctions, and qualifications of those legal principles

Contra

The cited authority contradicts the proposition stated in the memorandum

See, e.g.

The cited authority directly supports the proposition; other authorities also could have been cited but weren't cited to avoid duplication

See generally

The cited authority presents helpful background information about the proposition

Cf.

The cited authority states a proposition that's different from the proposition stated by the writer; similar to lend support to writer's proposition

Court opinion

The court's explanatory comments, which include the holding, the rationale for the holding, and dicta

Court decision

The court's ruling or disposition of the case (whether affirmed, reversed, remanded, or dismissed)

Date of Decision (element of a reported case)

The date on which the decision was rendered

The digest for each 10-year period is called a Decennial (sometimes, a Decennial Digest)

The digest for the current period is called the General Digest

En banc

The entire court participates rather than the permissible quorum. This doesn't mean that the entire court agrees on the outcome.

State case reporters are preceded by slip opinions & then advance sheets

The page numbers of the advance sheets correspond to the page numbers that will appear in the bound volume of the case reporter

Parallel citation

The same case published in more than one case reporter

Each restatement has its own index

The second editions also contain cross-references to the key number digest system (West) and the A.L.R. series (Lawyers Co-op)

United States Courts of Appeals - only case reporter for federal courts of appeals is unofficial & published by West

There is no official case reporter for these courts

U.S. Supreme Court - while the court is in session, slip opinions are issued as cases are decided

These are collected periodically & published in 2 different sets of advance sheets: United States Law Week (U.S.L.W.); United States Supreme Court Bulletin

An administrative agency may decide administrative cases & publish administrative decisions affecting that party

These decisions are precedent within that particular agency but have no precedential value outside the agency

TARP

Thing or subject matter involved in case; Action (cause of action) or ground for defense (negligence or mandamus); Relief sought (damages; restitution) Parties, meaning legal relationship of parties

A single opinion may be a memorandum, per curiam opinion, reached by a court sitting en banc.

This describes a very brief opinion written unanimously by the entire appellate court.

All headnotes from reported state & federal cases are catalogued in the American Digest System, using West's key number system

This digest series is helpful when researcher doesn't want to focus narrowly on 1 jurisdiction for case law; or when researcher wants to compare case law of various states & federal case law

Judicial opinions (state & federal) are used to explain and to clarify existing constitutional and statutory law

This is called judicial interpretation

When a case has several different headnotes, each headnote is catalogued

This results in the case's appearance in several different places within the digest

American Law Reports is the leading annotated law reporter

This secondary legal authority is published by Lawyers Co-op

Secondary sources

Treatises; American Law Reports; Bar Journals; Citators; Legal Encyclopedias

Federal statutes are published in these 3 books

United States Statutes at Large; United States Code; United States Code Annotated

There are two separate digests that access U.S. Supreme Court cases only

United States Supreme Court Digest (West) and United States Supreme Court Digest, Lawyers' Edition (Lawyers Co-op)

When a statute is stricken as unconstitutional by court decision, that fact may not appear in the statutory code

Use Shepard's Citations for Statutes to see if a statute was reviewed by a court & the result

To locate cases

Use digest to find case references; Read the case in the reporter; Shepardize to determine status

To locate statutes & constitutions

Use index to find statute section; Read the statutory section; Check supplements for status

Reporters

Volumes of court decisions arranged chronologically

Primary legal publishers in the U.S.

West Publishing Company; Lawyers Cooperative Publishing Company

Slip opinion

When a federal court first decides a case, a slip opinion is issued; It's a single opinion of the court issued w/out headnotes & w/out indexing

Statutes - adopted by legislature

When a statute is adopted by a legislature, it's recorded in different forms at different stages of the legislative process. These differences are important when conducting a legislative history.

Digests typically contain a table of cases listed by both plaintiff & defendant name

and a descriptive word index to help researcher find the correct topic area

Statutes at Large (Stat.)

Where federal session laws are published

Each legal system (federal or state) is separated into a legislative, executive & judicial branch (separation of powers)

Within each system, legislative branch authorizes certain administrative agencies to exist & delegates limited powers to them

Federal Register (Fed. Reg.)

Within the federal system, the rules & regulations of administrative agencies are published chronologically in the Federal Register at the time of their adoption

West publishes the American Digest System

a continuing digest series that collects headnote summaries from all federal & state courts (combined) during consecutive 10-year periods

West publishes a separate set of reference books called Words and Phrases

a finding tool devoted exclusively to the headnotes of court cases interpreting specific words & terms

Case law carries less weight than statutory law

however, a particular judicial opinion can overrule a specific statute on constitutional grounds

Common law exists only at the state level

however, both state & federal courts use concepts of precedent

infra

indicates the full citation for the case follows at a later point in the memorandum or brief

The United States attorney general or a state attorney general writes opinions

interpreting statutes; which are persuasive authority; often followed by the court

A case published by a particular federal court of appeals is precedent for all federal trial courts of that circuit

it's not precedent for other federal courts of appeals

The Court of International Trade was created in 1980 and has published its own decisions since that time

its decisions continue to be published selectively in the Federal Supplement

Case law and common law

judicial opinions

Annotated versions of statute books contain

legislative history & related court decisions

Precedent suggests that a court must

respect the prior statements of law & follow same and apply the doctrine of stare decisis

For cases, updating means determining whether the case is

reversed or modified on appeal; overruled by a subsequent & different case

U.S.C.S. contains the same distinguishing feature for which all Lawyers Co-op publications are known

the extensive use of annotations

Case reporter volume (federal)

usually includes - a table of the cases contained in the volume; - a table of statutes interpreted by the cases in that volume; - subject index or digest of the reported cases; - judicial definition of words & phrases used in the reported cases

Some digests contain a section called "Words and Phrases"

which refers the researcher to those cases in the digest that interpret specific words & terms


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