Law Skills Flashcards
What is the Goal of legal research?
ID legal authority that resolves an issue problem of dispute
Legal authority comes from:
Constitutions, statutes, case law, administrative regulations
What is Binding authority?
Law that is jurisdictionally relevant and superior
What is Persuasive authority?
Anything outside of binding law such as other jurisdiction’s laws or secondary sources. A court may choose to follow or consider persuasive authority.
What is the Common law?
Judge made law through judicial opinions, in lieu of a statute
What is Stare Decisis ?
principal requiring a court to abide by the precedent of previously decided cases
What is the General court structure?
Trial, Intermediate/Appellate, Court of last resort
How many Missouri Trial Courts are there?
114+St. Louis. These are called Circuit Courts.
What sections comprise the Missouri Court of Appeals?
Divided into Eastern, Western (KCMO), and Southern. Each has 7-14 judges. Each appellate area is bound by decisions from the others.
How many judges sit on the Missouri Supreme Court?
Located in Jefferson City, seats 7 judges
What are the Federal Districts of Missouri?
Eastern and Western
What Circuit is Missouri in?
8th
What is the Official Reporter for MO. Supreme Court and MO. Court of Appeals?
South Western Reporter. The SWR does not have a regional digest (nor does NE or S digest)
Does Missouri have its own digest?
Missouri does not have its own digest (only Missouri Digest and American/Decennial Digest have Missouri judicial opinions)
How many Federal District Courts are there?
Lowest level, 94 federal districts
Federal Circuit Courts
13 circuits, 12 geographic and 1 that hears appeals from district courts in all other circuits relating to issues of patent law or cases in specialized courts/agencies
Is legislative history primary or secondary?
It can be both. Some parts are binding because it contains the law itself, other parts are secondary. In all cases it can help clarify the intent of the law.
How does legislative history differ between State and Federal authorities?
State authorities have very little legislative history
Is pending legislation primary authority?
No. It can be vetoed and overridden, so it is not yet primary.
What is the benefit of using a commercial database over a free database?
The free database is literal, whereas the paid research uses boolean search methods to give more useful results
What are the defining features of a proposed law?
It is known as a bill. It contains one topic. It originates in the house or senate. There is a deadline for introducing the bill.
What is the purpose of the USCA Popular Name Table?
The popular name table makes it easy to find legislative acts that have popular or common names
When does legislation that has been signed by the governor become effective in Missouri?
No earlier than 90 days after the end of the legislative session
What two bodies comprise the General Assembly of the State of Missouri?
The Senate and House of Reps.
How many days does the Governor have to act during a legislative session?
15 days. If legislative session is adjourned, the governor has 45 days. If the governor doesn’t sign or veto the bill it becomes a law
How are Missouri statutes compiled and indexed?
Chronologically and topically
What are Case Reporters?
A series of books containing the case opinions decided and designated for publication by the various courts, published in rough chronological order. There are unofficial reporters and official reporters. Official reporters are published or adopted by the state.
What is the national reporter system?
Unofficial reporters that cover all of the state and federal courts in the American legal system.
How is West’s National Reporter System organized?
By topics and key numbers to organize points of law making it possible to move from one case to another case that addresses the same point(s) of law
What happens when a state stops publishing their own reporter?
West becomes the official reporter
How many regional reporters are there in West’s National Reporter System?
7 (based on geographic location). The Missouri appellate court cases are in the South Western Reporter. The North East, Southern, and Southe Western Reporters do not have their own regional digests.
Are the synopses and headnotes a part of the case?
No, do not cite them. Headnotes are written by West so they have no authority.
What is dicta?
When a court explains what it would do if the facts were different. This is persuasive authority.
What is the US Reporter?
The official reporter for the US Supreme Court (U.S.)
What is the Federal Reporter?
The official reporter for the US appeals courts (Circuit Courts). Abbrev: F.2d, F.3d
Where are the US District Court opinions published?
Federal Supplement (F. Supp.)
How are federal court decisions organized in reporters?
By court level and in rough chronological order
What is a digest?
A topical index to case law reporters
How are digests organized?
Topically and then alphabetically, with over 450 topics that include abstracts (Short summaries of cases)
What do regional digests include?
Summaries of state cases within the regions, they do not contain federal cases in the region
What is the “Word and Phrases Volume”?
A tool which identifies words a court has used and directs the researcher to a case that defines the word for that jurisdiction
How are secondary sources helpful?
They help in finding background research, aids, and persuasive authority. They discuss and analyze primary authority. They help you find more info about an area of the law you don’t know much about.
What are legal encyclopedias?
Large volumes that give a basic overview of the law
What are the two main legal encyclopedias?
American Jurisprudence (AmJur) and Corpus Juris Secundum (CJS)
What is the approach of American Jurisprudence?
AmJur focuses on primary or majority rule of law, uses the descriptive word or known topic approach, updated through pocket parts issued in general index, features the “New Topic Service” which covers new topics and topics that have been extensively changed since the bound volumes were last printed.
What is the approach of Corpus Juris Secundum?
CJS focuses on primary or majority authority, uses the descriptive word or known topic approach, arranges volumes alphabetically by subject or topic, cross referencing to West Key number system
What are treatises?
Secondary Source that summarize, explain, and critique an area of law. They contain a table of contents, table of cases, and index.
What are hornbooks?
Secondary Source that are single volume works which summarize the topic. They are not regularly updated. They are helpful to find primary authority and they are available on Westlaw.
What are Restatements?
Secondary Source that summarize or restate the common law as it has evolved. It is not a part of a jurisdiction unless it is adopted. Restatements will propose ways to reconcile differences between jurisdictions.
When is a Restatement primary authority?
When it has been adopted by a jurisdiction. Otherwise it is secondary.
What are the American Law Reports?
ALR is a secondary source where each series has a digest. ALR includes annotations that discuss and cite cases from multiple jurisdictions, providing specific, exhaustive information about a narrow area of law. They are updated with pocket parts.
What is a supplementary annotation (ALR)?
They discuss a new development in an area of law that was not considered in the original annotation
What is a superseding annotation (ALR)?
(ALR) These address larger scale changes
What are legal periodicals?
Law reviews, legal journals, bar journals, etc. They are published on a periodic basis and often provide thorough, thoughtful, and critical analysis of legal issues, cases, or legislation. They are updated through supplementary pamphlets.
What is the Missouri Practice Series?
Secondary source authored by Missouri lawyers, judges, and law professors which covers Missouri-specific topics with illustrative case citations and legal forms
What are looseleafs?
They are Topical compilations of pertinent federal and state statutes, administrative rules and regs, and relevant court decisions. They are a hybrid of primary and secondary source material. The info is more quickly available compared to gov publications.
What are the three functions of citators?
- Update the law (is it still good law?)
- Research/find sources (How can you connect to an authority?)
- Judicial History (What has happened before/since the case in question?)
What does a red stop sign mean (Shepards)?
Warning: Strong negative treatment impacting your case
What does a red exclamation mean (Shepards)?
Warning: Strong negative treatment indicated for the statute
What does a yellow Q mean (Shepards)?
Questioned: The validity has been questioned by citing references
What does a blue A mean (Shepards)?
Neutral: Treatment is available that is not positive or negative
What does a blue I mean (Shepards)?
Citation information is available without treatment
What does a yellow flag mean (Key-Cite)?
Some negative treatment for cases, statutes, regs, etc
What does a red flag mean (Key-Cite)?
There is at least one point of the case that is no longer good law, a statute has been amended, repealed, superseded, or found to be unconstitutional
What does a blue striped flag mean (Key-Cite)?
The current docoment has been appealed to US COA or Supreme Court
What does an orange exclamation mean (Key-Cite)?
The overruling risk warning indicates a doc may no longer be good law
How do both KeyCite and Shepards organize case citations?
By jurisdiction and depth of treatment
In what two ways do administrative agencies make law?
Rulemaking and adjudication
What is rulemaking for admin agencies?
Quasi legislative function of an agency, when a statute provides an agency the ability to create rules or regs to carry out specific purposes
What is adjudication for admin agencies?
Quasi-judicial power of agencies to render decisions in cases arising under statory or regulatory law
What are the two types of federal agencies?
Independent (have set terms) and Executive (appointed by the president)
How do administrative agencies derive power?
Enabling statutes by either the state or the federal legislature
What is the Federal Register?
An official document that lists the new and proposed regulations of executive departments and regulatory agencies issued daily, used as a source of legislative history.
How does the Federal Register organize the regs?
Chronologically
What categories of info can be found in the Federal Register?
Notices, proposed rules, final rules, presidential docs, sunshine act meetings
What is the Federal Register Index?
This index provides descriptive entries and Federal Register page numbers for documents published in the daily Federal Register. Issued monthly, in cumulative form, published separately
What is the Code of Federal Regulations (CFR)?
The CFR is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. Features 50 titles representing broad areas of the law. It is published once a year and features new regulations that have been passed.
Where should you look in the Code of Federal Regulations to locate info?
Table of contents.
Where are the Missouri Administrative Rulemaking documents found?
Missouri Register and Code of State Regulations (CSR)
What is the Missouri Register
Daily compilation of agency action, arranged chronologically, contains emergency rules, executive orders, proposed rules, orders of rulemaking, and dissolutions
What is the Code of State Regulations?
Administrative regulations arranged topically with focus on agencies (each title corresponds to a Missouri Admin Agency)
What is the United States Statutes at Large?
The United States Statutes at Large is the collection of laws passed by the United States Congress, in chronological order.
Who publishes the Missouri Approved Instructions?
The Missouri Supreme Court
In the process of passing a statute, what is the first phase?
The statute is published as a slip law which is the statute by itself on a single sheet or in pamphlet form. It is assigned a Public Law Number in the form of XX-YY. The first number is the session of Congress the law was passed under, the second is the chronological order in which it was passed. Slip laws are available in print or on the Library of Congress website.
In the process of passing a statute, what is the second phase?
The statute is published as a session law. Session laws are the slip laws bound chronologically by Congressional session (each Congress lasts two years and is divided into two sessions). The Statutes at Large is the official U.S. government compilation of federal session laws.
In the process of passing a statute, what is the third phase?
The statute is then published in a code. A code arranges the statutes by topic (rather than chronologically), indexes statutes to allow for subject access, and incorporates any amendments and repealed language to always give you the current picture of the law.
What is the United States Code (USC)?
The official codification (i.e., the version published by the U.S. government) of federal statutes, broken into 53 titles which each cover a major area of the law. The USC is published every six years. with supplements printed yearly to update it.
What is an unofficial code?
An unofficial code is a commercially-published version of an official code - for legal research. Unofficial codes include references (called “annotations”) to primary and secondary sources that relate to each code section, and are updated much more frequently than the U.S.C.
What are the two unofficial codes?
United States Code Annotated (U.S.C.A., published by West, used for Key Cite) and the United States Code Service (U.S.C.S., published by Lexis used for Shepards). Both include annotations, references to secondary sources, historical features, topics, and key numbers, etc.
What is a table of authorities?
Lists the cases your case has cited. It helps find the hidden weaknesses of your case, such as the fact that your case was relying on a case that is no longer good law.
What are annotated codes?
Annotated codes are state or federal compilations of statutes. In addition to the actual text of the statute, you’ll find summaries of judicial decisions, regulations, and attorney general opinions relating to that statute. You will also find citations to secondary sources that discuss your statute, including law review articles and practice guides.
Do State-only digests feature state or federal cases?
Both
What do stars by a case indicate in Key Cite?
The length of the case, more stars = longer case
What is the table of cases and where is it located?
It is an electronic compilation of all the decided cases in the universe located on Westlaw.
What is Mandatory Authority?
Constitutions, cases, statutes, or regulations that the court MUST follow. Primary material is mandatory when it is binding in a given jurisdiction.
What is USSCAN?
USCCAN is the United States Code Congressional and Administrative News, a publication that contains certain collections of Congressional and Administrative materials.
Can trial courts establish precedent?
No their decisions are only binding on the parties involved.
Do sibling appellate courts have to follow each others’ precedent?
They do not, the intermediate courts are free to disagree.
