Chapter 5: Legal Research Flashcards
Objective of Legal Research
to find specific authorities (legal rules) that govern a certain issue
Two types of legal authorities
- primary (mandatory)
2. secondary (persuasive)
Primary Laws
a primary law is mandatory; mandatory refers to the amount of weight that it must be given in the decision making process
Separation of Powers
Legislative, Judicial, and Executive branches of government
Categorization of Primary Laws
primary laws are categorized by type and which government branch they are issued by
Official Publication
Publications of primary laws by legislature, court, or agency (or legal publisher)
Substantive Law
substantive law establishes and defines the basic rights and duties that govern society (constitutions, legislative enactments, common law [judicial decisions], executive actions)
Constitutional Law
for federal & state systems. Constitutional rules carry the most weight and prevail when conflicting against other rules within the same system
Charter
“constitutional law” at the local government level
Statutory Law
Based on legislative enactments called “statutes”
Weight of Law
Constitutional > Statutory > Administrative Rule or Judicial Opinion
Common Law
Carries less weight than statutory law as a general principle; common law can however carry more weight on constitutional grounds
Stare Decisis
Process used to synthesize legal principles from all prior cases with similar facts and similar issues of law (precedents) in order to arrive at a decision for a specific case
Precedent
A previous case is precedent if:
- facts and legal issues are similar to current case
- it was decided by majority decision of higher court
- the case was reported (published)
T/F: A case published by a federal court of appeals is precedent for all federal trial courts of that circuit
True; however, not precedent for OTHER federal court of appeals. Has to come from higher court authority
T/F: Stare decisis and precedent are two different terms, but essentially mean the same thing
False; many times they are used synonymously, but they refer to different things.
Precedent of Administrative Agencies
Administrative agencies may use quasi-judicial powers to determine whether its rules or regulations have been violated. These decisions are precedent, but have no precedent value outside of the agency (e.g. USCIS)
Executive Action
Action taken by the President or Governor of a state that have the force of law
Treaty
An agreement made between the United States and a different country
Interstate Compact
Agreement between two or more states (for example, removal of radioactive waste)
Procedural Law
rules by which substantive law is enforced (also known as adjective law)
What does procedural law do?
assure parties of a fair adversary process, fair hearing. can vary widely from jurisdiction to jurisdiction
Federal Procedural Law
Distinct sets of law:
- Federal Rules of Criminal Procedure
- Federal Rules of Civil Procedure
- Federal Rules of Appellate Procedure
- Federal Rules of Evidence
- Local Court Rules
Federal Rules of Criminal Procedure
the way a defendant is charged, tried, and sentenced for a crime
Federal Rules of Civil Procedure
how civil actions are handled (complaint, summons, answer, discovery process, trial, and post-trial procedures)
Federal Rules of Appellate Procedure
procedure for appeals (U.S. District Court of Appeals within fed. system)
Federal Rules of Evidence
types of admissible evidence in criminal and civil trials, also how evidence can be presented at trial
Local Court Rules
each court adopts their own procedures outside of other procedural rules
T/F: a local court rules that first pleadings are called a petition. Federal rules of civil procedure state that a first pleading is referred to as a complain. Is this allowed?
False; local court cannot change rules established by federal rules
State Procedural Rules
- typically rules similar to those at federal procedure
- typically used to fill the gaps of state statute or other procedural rule
How is Primary Law is recorded?
recorded predominantly in constitutions, statutes, administrative rules, and court cases
Constitutions
U.S. Constitution is always at the front of the U.S. code; state constitution is generally included at the front of the state’s statutory code + index
Statutes
When a statute is adopted by legislature, it is recorded in different forms at different stages of the legislative process
Bill
A proposed legislative measure; not law until adopted by the legislature
Slip Law
A bill that has been adopted; printed singly rather than as part of a group of laws
Session Law
Once a legislative session has ended, the slip laws are published in chronological order (by enactment date) and published as session laws
T/F: Statutes are codified by topic
True
Where are federal session laws published?
The Statues at Large (Stat.)
Where are federal session laws codified and published?
United States Statutory Code (U.S.C.)
What is the only complete collection of federal statutes?
the Statutes at Large
Official Publication
when an official body (like Congress) authorizes and directs the collection and publication of a law
Unofficial publication
a publication that has not been specifically authorized or sanctioned by an official body, but is compiled by an independent publisher
T/F: An official publication is more authoritative and accurate than an unofficial publication
false
United States Code Annotated (U.S.C.A)
published by West Publishing Company; uses key number system
United States Code Service (U.S.C.S)
published by lawyers co-operative publishing company; uses annotations
Key Number System
every topic and subtopic is assigned its own key number. same key numbers are referenced throughout all west publications
Annotation
explanatory notes; contains references to other cases, usually more limited than west publications
Session Laws of State Legislatures
typically publish session laws at the close of each legislative session
Local Legislatures
typically publish more sporadically, have their own codified methods
Federal Register (Fed. Reg.)
rules and regulations of federal agencies are published
Code of Federal Regulations (C.F.R.)
rules and regulations of federal agencies codified
Case Law
sometimes referred to as law reports, common law, court opinions, or court decisions
T/F: Court decisions and court opinions are synonymous terms
False; court decisions is the court’s ruling; court opinions are the explanatory comments regarding the ruling
Court Decision
the court’s ruling or disposition of the case (whether affirmed, reversed, remanded, or dismissed)
Court Opinion
the court’s explanatory comments, including rationale behind the ruling and dicta
Majority Opinion
opinion issued by the majority of judges of the appellate court; holding of this opinion may be cited as precedent if all other criteria are met (discussed supra)
Supra
Latin for “above,” in legal briefs and decisions it refers to the citation of a court decision which has been previously mentioned. Thus a case when first cited will be referred to as Guinn v. United States, (1915) 238 U.S. 347, meaning it can be found in volume 238 of the U.S. Reports (of the Supreme Court) at page 347 and was decided in 1915. The next time the case is cited as Guinn v. United States, supra.
Concurring Opinion
opinion issued by one or more judges of the appellate court which agrees with the result, but disagrees with the reason of the majority decision. *There can be more than one concurring opinion
Dissenting Opinion
opinion issued by one or more judges of the appellate court which disagrees with the result and reasoning of the majority opinion; can be more than one dissenting opinion
Per Curiam Opinion
opinion of the entire court (all judges who heard the case), as opposed to an opinion written by a specific judge
En Blanc
the entire court participates rather than the permissible quorum. This does not mean that the entire court agrees on the outcome
Quorum
A quorum is the minimum number of members of a group or committee required to be in attendance in order for that group to be able to take official action. Groups that often have quorum requirements include legislative bodies, corporate boards of directors, and corporate shareholder meetings.
Memorandum Opinion
a very brief opinion; a cursory opinion; an opinion so abbreviated that it is hardly an opinion at all (?)
De Novo
anew; from the beginning; the case is tried in the appellate court as if it had not been tried previously, and witnesses are allowed to testify. The initial appeal from a small claims court to a district court or a superior court for example might be tried de novo
De Novo On the Record
anew on the record; appellate courts may come to an independent decision from trial courts, appellate courts can never defer to trial courts for matters of judgement
“Record”
consists of pleadings from the court file of the trial court
Elements of a Reported Case:
- Caption
- Date of Decision
- Parallel Citations
- Headnote or Syllabus
- Statement of Facts
- Opinion
- Holding
- Rationale
- Dicta
- Decision
Caption
identifies the court issuing the opinion, the parties, and the docket number assigned to the case
Date of Decision
Date the decision was rendered
Parallel Citations
if the same case is published in another case reporter the volume and page number of that reporter shown
Headnote (or Syllabus)
brief summary of a legal rule discussed in the opinion; headnotes are numbered. Key numbers are used in West publications
Statement of Facts
brief summary of facts of the case
Opinion
court’s explanation (holding, rationale, and dicta)
Holding
rule of law for which the case is cited as precedent; legal effect of the facts of the case
Ration decidendi
Rationale; court’s reasoning or basis for its holding and decision
Obiter dictum
dicta; comments of the court about minor issues or concerns other than a specific holding, rational, and decision
T/F: Dicta is never cited as precedent
True
Advance Sheets
slip opinions collected and bound in a softbound or looseleaf format
Advanced Sheets Publications from U.S. Supreme Court
United States Law Week (U.S.L.W.)
United States Supreme Court Bulletin
Case Reports for U.S. Supreme Court Cases
- United States Reports
- Supreme Court Reporter
- United States Supreme Court Reports, Lawyers’ Edition
Case Reports for the U.S. Courts of Appeals
no official case reporter for these courts, only unofficial reporter is “Federal Reporter”
Case Reports for U.S. District Courts
no official case reporter for U.S. district courts. Published by West, cases are published selectively. Called “Federal Supplement”
Case Reporters for Specialized Courts
Uniform System of Citation (USOC) contains info about each of the specialty court reporters
National Reporter System
decisions of appellate courts across United States (broken up into seven regions)
Michigan is in the _____________ Regional Reporter
North Western Reporter, cied N.W. or N.W.2d
Sources of Secondary Law
legal encyclopedias, law from other jurisdictions, american law reports, restatements of law, dictionaries, treatises, and periodicals
Corpus Juris Secundum
cited C.J.S., tied to the key number system, heavily footnoted with legal authorities
American Jurisprudence, Second Series
cited Am. Jur. 2d - contains narrative, not as many footnotes as Corpus Juris Secundum. Good resource for obtaining background information on a topic
American Law Reports
leading annotated law reporter. publishes significant state appellate court cases
Restatement
published by American Law Institute; collects and distills primary general rule in a certain legal topic area
Dictionaries
Two legal dictionaires: Black’s Law Dictionary and Ballentine’s Law Dictionary
Treaties
aka “hornbook”, single volume book by legal scholars, provides more explanation than a legal encyclopedias
Periodicals
legal and nonlegal; provide persuasive authority in a given case
How to start legal research
- topic method - using a digest for general topics, using a general index for statutory and constitutional law
- case method - used when looking up specific case names (i.e. “Dredd Scott case”)
Digest
finding tool via publisher regarding related case reporters. NEVER cite a digest as a legal authority
American Digest System
headnotes are catalogued under topics and subtopics assigned to key numbers via the TARP Method: (T) thing, (A) Action, (R) Relief, and (P) parties
Case Method
- Shepard’s Acts and Cases by Popular Name: Federal and State
- Special Digests contain a “table of cases by popular names” section
Shepard’s Citations
most comprehensive legal citator. also contains parallel citations for the case
Looseleaf services
devoted to certain topics in law; useful for staying updated specialty topics
Computerized Search Tools
WESTLAW and LEXIS
Statutory Supplements
where statutory codes are updated
Shepardizing
using Shepard’s Citations to determine whether a case is still “good law” (in other words, making sure a statute hasn’t been stricken from the record or deemed unconstitutional)
To locate statutes & constitutions
use index, read statutory section, check supplements for status
To locate cases
use digest to locate case references, read the case in the case reporter, shepardize to determine status
T/F: The procedure for locating statutes and constitutions is different than the procedure for locating cases
True
Citation
reference to a legal authority (such as constitution, statute case, adminstrative rule, or other authority)
T/F: digests should be cited
False; do not use a digest as a legal authority. useful as a reference, but not an authority
Treatise
AKA hornbook. Single volume text about a single topic area. written by legal scholars
Periodicals
can be persuasive in legal arguments
Blue Book
Also known as Uniform System of Citation (USOC). Authority on legal citations
United States Code Citation
15 U.S.C. § 7 (1998). 15 refers to the number of the code title, U.S.C. is abbreviation of United States code, § is the section symbol, 7 is the code section, and 1998 refers to the date of the code volume where the most recent version of the section can be found
What is § ?
Section symbol. Used to refer to a certain section of a document, like a legal code
Statues at Large Citation
Health Care Act, Pub. L. 92-117, 83 Stat. 624 (1987). Health Care Act refers to the name of the act. Pub. L. is abbreviation of “public law”. 92-117 refers to the volume number of the statutes at large. Stat. refers to abbreviation of the “statutes at large”. 624 is the page number where the statute begins. 1987 refers to the year in which the statute was passed as a law
Procedural Rules Citation
Fed. R. App. P. 2. - means Rule 2 of the Federal Rules of Civil Procedure
T/F. Is the following a correct Procedural Rules citation? Fed. R. Evid. 401
True; Rule 401 of Federal Rules of Evidence
T/F. Is the following a correct Procedural Rules Citation? Fed. R. Civ. 12. P.
False; Should be Fed. R. Civ. P. 12. Rule 42 of the Federal Rules of Civil Procedure
Federal and Case citations
use similar citation form, regardless of the court issuing the opinion
T/F: United States is never abbreviated in case citations where the federal government is a party
True. Citation would be something like “United States vs. Jones”
T/F: Administrative agencies are abbreviated in case citations, except for IRS.
True; abbreviate all agencies like FCC, SEC, etc. When citing the IRS, cite as “Commissioner”. Not “Internal Revenue Service” or “IRS”.
Parallel Citation
Same case published in more than one case reporter.
Case names in memoranda and briefs
must be either underlined or in italics
Standard Case Citation: Avery v. Exxon Co., 397 U.S. 812 (1991)
1) Avery v. Exxon Co. refers to case name, is underlined. 2) 397 U.S. 812 is the case reporter in which the case is published (volume #, abbreviation of case reporter, page where case begins), 3) year in which was published 4) (optional) subsequent history, if any
infra
indicates that a full citation appears later in the memorandum, brief, or other work. Short form of infra is “id”.
Code of Federal Regulation Citations: 22 C.F.R. § 145.6 (1992)
22 is the title (chapter) number. C.F.R. is abbreviation of “Code of Federal Regulations. 145.6 is the section number. 1992 is the year of publication
_____ contain a general commentary on or explanation of the subject
secondary authorities
if a researcher knows the date when a federal statute was adopted, which of the following will provide the most direct access to the text of that statute?
Congressional Record
To update the status of a particular case, what research tool is used?
Shepard’s Citations
In a petition for a writ of certorari to the United States Supreme Court, the _____ appears first in the case caption, regardless of how the caption may have been show in lower courts
Name of the appellant
When a researcher is unfamiliar with the subject matter being researched, what tool may be consulted to provide background information?
Legal Encyclopedias
Compilations of cases and historical matters dealing with various aspects of code or statute, which contain short summaries of other cases, both for and against, are called
annotations
The principles stated in opinions of judges, to be followed in future cases, are called
Precedent
T/F: The United States Supreme Court Reports, Lawyers’ Edition contains summaries of the briefs of counsel
False
T/F: Star paging is used in all volumes of all official and unofficial Supreme Court Reporters
false
Identify the reporter in which the federal trial court opinions are contained
Federal Supplement
What is the correct citation for an article entitled “Nocturnal Crimes”, written by Professor Willard Weitz and published in the 20th volume of the Brooklyn Law review in 1992. The article appears at page 180
Willard Weitz, Nocturnal Crimes (underlined), 20 Brooklyn L. REv. 180 (1992)
Which is more correct: 46 U.S.C. § 89 (1976) OR Freedom of Information Act, 197 Stat. 230 (1976)
46 U.S.C. § 89 (1976)
Digests Summarize:
judicial decisions (do not summarize statute topics)
T/F: Star paging is best described as a signal used to indicate page numbers in another reporter
true
Cases decided by the U.S. Court of International Trade (formerly the U.S. customs court) are reported selectively in the
Federal Supplement
What is the difference between statutes at large and the United States Code
the statutes at large are compiled chronologically; the code by topic
T/F: The typical case reporter contains either a separate section or a separate volume devoted to a table of cases and a descriptive word index
True
T/F: The signal supra is used in legal memoranda and briefs to refer to a case that has been cited in full previously
False (“Supra (Latin for “above”) is an academic and legal citation signal used when a writer desires to refer a reader to an earlier-cited authority. For example, an author wanting to refer to a source in his or her third footnote would cite: See supra note 3. Or for text in that note: See supra text accompanying note 3.”)
T/F: each state has both an official and an unofficial reporter series for the opinions of its highest court
False
To update the status of a particular statute, what research tool would be used?
supplement volumes of pocket part supplements
T/F: Parallel citations generally are not provided for federal cases, but they are required for home state cases when parallel citations exist
true
T/F: The case summaries found in digests may be cited as secondary authority
False; never cite a digest as legal authority
T/F: The United States Code contains all federal statutory law enacted by congress
False
