CLA - Chap. 5 Legal Research
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