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Paralegal Certification > Chapter 5: Legal Research > Flashcards

Chapter 5: Legal Research Flashcards

1
Q

Objective of Legal Research

A

to find specific authorities (legal rules) that govern a certain issue

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2
Q

Two types of legal authorities

A
  1. primary (mandatory)

2. secondary (persuasive)

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3
Q

Primary Laws

A

a primary law is mandatory; mandatory refers to the amount of weight that it must be given in the decision making process

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4
Q

Separation of Powers

A

Legislative, Judicial, and Executive branches of government

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5
Q

Categorization of Primary Laws

A

primary laws are categorized by type and which government branch they are issued by

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6
Q

Official Publication

A

Publications of primary laws by legislature, court, or agency (or legal publisher)

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7
Q

Substantive Law

A

substantive law establishes and defines the basic rights and duties that govern society (constitutions, legislative enactments, common law [judicial decisions], executive actions)

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8
Q

Constitutional Law

A

for federal & state systems. Constitutional rules carry the most weight and prevail when conflicting against other rules within the same system

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9
Q

Charter

A

“constitutional law” at the local government level

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10
Q

Statutory Law

A

Based on legislative enactments called “statutes”

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11
Q

Weight of Law

A

Constitutional > Statutory > Administrative Rule or Judicial Opinion

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12
Q

Common Law

A

Carries less weight than statutory law as a general principle; common law can however carry more weight on constitutional grounds

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13
Q

Stare Decisis

A

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

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14
Q

Precedent

A

A previous case is precedent if:

  1. facts and legal issues are similar to current case
  2. it was decided by majority decision of higher court
  3. the case was reported (published)
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15
Q

T/F: A case published by a federal court of appeals is precedent for all federal trial courts of that circuit

A

True; however, not precedent for OTHER federal court of appeals. Has to come from higher court authority

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16
Q

T/F: Stare decisis and precedent are two different terms, but essentially mean the same thing

A

False; many times they are used synonymously, but they refer to different things.

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17
Q

Precedent of Administrative Agencies

A

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)

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18
Q

Executive Action

A

Action taken by the President or Governor of a state that have the force of law

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19
Q

Treaty

A

An agreement made between the United States and a different country

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20
Q

Interstate Compact

A

Agreement between two or more states (for example, removal of radioactive waste)

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21
Q

Procedural Law

A

rules by which substantive law is enforced (also known as adjective law)

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22
Q

What does procedural law do?

A

assure parties of a fair adversary process, fair hearing. can vary widely from jurisdiction to jurisdiction

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23
Q

Federal Procedural Law

A

Distinct sets of law:

  1. Federal Rules of Criminal Procedure
  2. Federal Rules of Civil Procedure
  3. Federal Rules of Appellate Procedure
  4. Federal Rules of Evidence
  5. Local Court Rules
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24
Q

Federal Rules of Criminal Procedure

A

the way a defendant is charged, tried, and sentenced for a crime

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25
Q

Federal Rules of Civil Procedure

A

how civil actions are handled (complaint, summons, answer, discovery process, trial, and post-trial procedures)

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26
Q

Federal Rules of Appellate Procedure

A

procedure for appeals (U.S. District Court of Appeals within fed. system)

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27
Q

Federal Rules of Evidence

A

types of admissible evidence in criminal and civil trials, also how evidence can be presented at trial

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28
Q

Local Court Rules

A

each court adopts their own procedures outside of other procedural rules

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29
Q

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?

A

False; local court cannot change rules established by federal rules

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30
Q

State Procedural Rules

A
  • typically rules similar to those at federal procedure

- typically used to fill the gaps of state statute or other procedural rule

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31
Q

How is Primary Law is recorded?

A

recorded predominantly in constitutions, statutes, administrative rules, and court cases

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32
Q

Constitutions

A

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

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33
Q

Statutes

A

When a statute is adopted by legislature, it is recorded in different forms at different stages of the legislative process

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34
Q

Bill

A

A proposed legislative measure; not law until adopted by the legislature

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35
Q

Slip Law

A

A bill that has been adopted; printed singly rather than as part of a group of laws

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36
Q

Session Law

A

Once a legislative session has ended, the slip laws are published in chronological order (by enactment date) and published as session laws

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37
Q

T/F: Statutes are codified by topic

A

True

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38
Q

Where are federal session laws published?

A

The Statues at Large (Stat.)

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39
Q

Where are federal session laws codified and published?

A

United States Statutory Code (U.S.C.)

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40
Q

What is the only complete collection of federal statutes?

A

the Statutes at Large

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41
Q

Official Publication

A

when an official body (like Congress) authorizes and directs the collection and publication of a law

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42
Q

Unofficial publication

A

a publication that has not been specifically authorized or sanctioned by an official body, but is compiled by an independent publisher

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43
Q

T/F: An official publication is more authoritative and accurate than an unofficial publication

A

false

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44
Q

United States Code Annotated (U.S.C.A)

A

published by West Publishing Company; uses key number system

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45
Q

United States Code Service (U.S.C.S)

A

published by lawyers co-operative publishing company; uses annotations

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46
Q

Key Number System

A

every topic and subtopic is assigned its own key number. same key numbers are referenced throughout all west publications

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47
Q

Annotation

A

explanatory notes; contains references to other cases, usually more limited than west publications

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48
Q

Session Laws of State Legislatures

A

typically publish session laws at the close of each legislative session

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49
Q

Local Legislatures

A

typically publish more sporadically, have their own codified methods

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50
Q

Federal Register (Fed. Reg.)

A

rules and regulations of federal agencies are published

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51
Q

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

A

rules and regulations of federal agencies codified

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52
Q

Case Law

A

sometimes referred to as law reports, common law, court opinions, or court decisions

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53
Q

T/F: Court decisions and court opinions are synonymous terms

A

False; court decisions is the court’s ruling; court opinions are the explanatory comments regarding the ruling

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54
Q

Court Decision

A

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

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55
Q

Court Opinion

A

the court’s explanatory comments, including rationale behind the ruling and dicta

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56
Q

Majority Opinion

A

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)

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57
Q

Supra

A

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.

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58
Q

Concurring Opinion

A

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

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59
Q

Dissenting Opinion

A

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

60
Q

Per Curiam Opinion

A

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

61
Q

En Blanc

A

the entire court participates rather than the permissible quorum. This does not mean that the entire court agrees on the outcome

62
Q

Quorum

A

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.

63
Q

Memorandum Opinion

A

a very brief opinion; a cursory opinion; an opinion so abbreviated that it is hardly an opinion at all (?)

64
Q

De Novo

A

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

65
Q

De Novo On the Record

A

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

66
Q

“Record”

A

consists of pleadings from the court file of the trial court

67
Q

Elements of a Reported Case:

A
  1. Caption
  2. Date of Decision
  3. Parallel Citations
  4. Headnote or Syllabus
  5. Statement of Facts
  6. Opinion
  7. Holding
  8. Rationale
  9. Dicta
  10. Decision
68
Q

Caption

A

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

69
Q

Date of Decision

A

Date the decision was rendered

70
Q

Parallel Citations

A

if the same case is published in another case reporter the volume and page number of that reporter shown

71
Q

Headnote (or Syllabus)

A

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

72
Q

Statement of Facts

A

brief summary of facts of the case

73
Q

Opinion

A

court’s explanation (holding, rationale, and dicta)

74
Q

Holding

A

rule of law for which the case is cited as precedent; legal effect of the facts of the case

75
Q

Ration decidendi

A

Rationale; court’s reasoning or basis for its holding and decision

76
Q

Obiter dictum

A

dicta; comments of the court about minor issues or concerns other than a specific holding, rational, and decision

77
Q

T/F: Dicta is never cited as precedent

A

True

78
Q

Advance Sheets

A

slip opinions collected and bound in a softbound or looseleaf format

79
Q

Advanced Sheets Publications from U.S. Supreme Court

A

United States Law Week (U.S.L.W.)

United States Supreme Court Bulletin

80
Q

Case Reports for U.S. Supreme Court Cases

A
  1. United States Reports
  2. Supreme Court Reporter
  3. United States Supreme Court Reports, Lawyers’ Edition
81
Q

Case Reports for the U.S. Courts of Appeals

A

no official case reporter for these courts, only unofficial reporter is “Federal Reporter”

82
Q

Case Reports for U.S. District Courts

A

no official case reporter for U.S. district courts. Published by West, cases are published selectively. Called “Federal Supplement”

83
Q

Case Reporters for Specialized Courts

A

Uniform System of Citation (USOC) contains info about each of the specialty court reporters

84
Q

National Reporter System

A

decisions of appellate courts across United States (broken up into seven regions)

85
Q

Michigan is in the _____________ Regional Reporter

A

North Western Reporter, cied N.W. or N.W.2d

86
Q

Sources of Secondary Law

A

legal encyclopedias, law from other jurisdictions, american law reports, restatements of law, dictionaries, treatises, and periodicals

87
Q

Corpus Juris Secundum

A

cited C.J.S., tied to the key number system, heavily footnoted with legal authorities

88
Q

American Jurisprudence, Second Series

A

cited Am. Jur. 2d - contains narrative, not as many footnotes as Corpus Juris Secundum. Good resource for obtaining background information on a topic

89
Q

American Law Reports

A

leading annotated law reporter. publishes significant state appellate court cases

90
Q

Restatement

A

published by American Law Institute; collects and distills primary general rule in a certain legal topic area

91
Q

Dictionaries

A

Two legal dictionaires: Black’s Law Dictionary and Ballentine’s Law Dictionary

92
Q

Treaties

A

aka “hornbook”, single volume book by legal scholars, provides more explanation than a legal encyclopedias

93
Q

Periodicals

A

legal and nonlegal; provide persuasive authority in a given case

94
Q

How to start legal research

A
  1. topic method - using a digest for general topics, using a general index for statutory and constitutional law
  2. case method - used when looking up specific case names (i.e. “Dredd Scott case”)
95
Q

Digest

A

finding tool via publisher regarding related case reporters. NEVER cite a digest as a legal authority

96
Q

American Digest System

A

headnotes are catalogued under topics and subtopics assigned to key numbers via the TARP Method: (T) thing, (A) Action, (R) Relief, and (P) parties

97
Q

Case Method

A
  • Shepard’s Acts and Cases by Popular Name: Federal and State
  • Special Digests contain a “table of cases by popular names” section
98
Q

Shepard’s Citations

A

most comprehensive legal citator. also contains parallel citations for the case

99
Q

Looseleaf services

A

devoted to certain topics in law; useful for staying updated specialty topics

100
Q

Computerized Search Tools

A

WESTLAW and LEXIS

101
Q

Statutory Supplements

A

where statutory codes are updated

102
Q

Shepardizing

A

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)

103
Q

To locate statutes & constitutions

A

use index, read statutory section, check supplements for status

104
Q

To locate cases

A

use digest to locate case references, read the case in the case reporter, shepardize to determine status

105
Q

T/F: The procedure for locating statutes and constitutions is different than the procedure for locating cases

A

True

106
Q

Citation

A

reference to a legal authority (such as constitution, statute case, adminstrative rule, or other authority)

107
Q

T/F: digests should be cited

A

False; do not use a digest as a legal authority. useful as a reference, but not an authority

108
Q

Treatise

A

AKA hornbook. Single volume text about a single topic area. written by legal scholars

109
Q

Periodicals

A

can be persuasive in legal arguments

110
Q

Blue Book

A

Also known as Uniform System of Citation (USOC). Authority on legal citations

111
Q

United States Code Citation

A

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

112
Q

What is § ?

A

Section symbol. Used to refer to a certain section of a document, like a legal code

113
Q

Statues at Large Citation

A

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

114
Q

Procedural Rules Citation

A

Fed. R. App. P. 2. - means Rule 2 of the Federal Rules of Civil Procedure

115
Q

T/F. Is the following a correct Procedural Rules citation? Fed. R. Evid. 401

A

True; Rule 401 of Federal Rules of Evidence

116
Q

T/F. Is the following a correct Procedural Rules Citation? Fed. R. Civ. 12. P.

A

False; Should be Fed. R. Civ. P. 12. Rule 42 of the Federal Rules of Civil Procedure

117
Q

Federal and Case citations

A

use similar citation form, regardless of the court issuing the opinion

118
Q

T/F: United States is never abbreviated in case citations where the federal government is a party

A

True. Citation would be something like “United States vs. Jones”

119
Q

T/F: Administrative agencies are abbreviated in case citations, except for IRS.

A

True; abbreviate all agencies like FCC, SEC, etc. When citing the IRS, cite as “Commissioner”. Not “Internal Revenue Service” or “IRS”.

120
Q

Parallel Citation

A

Same case published in more than one case reporter.

121
Q

Case names in memoranda and briefs

A

must be either underlined or in italics

122
Q

Standard Case Citation: Avery v. Exxon Co., 397 U.S. 812 (1991)

A

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

123
Q

infra

A

indicates that a full citation appears later in the memorandum, brief, or other work. Short form of infra is “id”.

124
Q

Code of Federal Regulation Citations: 22 C.F.R. § 145.6 (1992)

A

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

125
Q

_____ contain a general commentary on or explanation of the subject

A

secondary authorities

126
Q

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?

A

Congressional Record

127
Q

To update the status of a particular case, what research tool is used?

A

Shepard’s Citations

128
Q

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

A

Name of the appellant

129
Q

When a researcher is unfamiliar with the subject matter being researched, what tool may be consulted to provide background information?

A

Legal Encyclopedias

130
Q

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

A

annotations

131
Q

The principles stated in opinions of judges, to be followed in future cases, are called

A

Precedent

132
Q

T/F: The United States Supreme Court Reports, Lawyers’ Edition contains summaries of the briefs of counsel

A

False

133
Q

T/F: Star paging is used in all volumes of all official and unofficial Supreme Court Reporters

A

false

134
Q

Identify the reporter in which the federal trial court opinions are contained

A

Federal Supplement

135
Q

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

A

Willard Weitz, Nocturnal Crimes (underlined), 20 Brooklyn L. REv. 180 (1992)

136
Q

Which is more correct: 46 U.S.C. § 89 (1976) OR Freedom of Information Act, 197 Stat. 230 (1976)

A

46 U.S.C. § 89 (1976)

137
Q

Digests Summarize:

A

judicial decisions (do not summarize statute topics)

138
Q

T/F: Star paging is best described as a signal used to indicate page numbers in another reporter

A

true

139
Q

Cases decided by the U.S. Court of International Trade (formerly the U.S. customs court) are reported selectively in the

A

Federal Supplement

140
Q

What is the difference between statutes at large and the United States Code

A

the statutes at large are compiled chronologically; the code by topic

141
Q

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

A

True

142
Q

T/F: The signal supra is used in legal memoranda and briefs to refer to a case that has been cited in full previously

A

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.”)

143
Q

T/F: each state has both an official and an unofficial reporter series for the opinions of its highest court

A

False

144
Q

To update the status of a particular statute, what research tool would be used?

A

supplement volumes of pocket part supplements

145
Q

T/F: Parallel citations generally are not provided for federal cases, but they are required for home state cases when parallel citations exist

A

true

146
Q

T/F: The case summaries found in digests may be cited as secondary authority

A

False; never cite a digest as legal authority

147
Q

T/F: The United States Code contains all federal statutory law enacted by congress

A

False

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