Midterm Review Flashcards
difference between federal reporter and federal supplement
Appellate decisions, federal supplement is for district decisions
Four ways to generate more results in a search
Broader terms, narrower terms, synonyms, antonyms
Components to legal research
Make a research plan Record your research
Difference between coding in Westlaw v. Lexis
Westlaw processes connectors in this order: “X”, OR, /n, /s, /p, AND, NOT
Lexis processes connectors in this order: “X”, NOT, OR, /n, /s, /p, AND
Effect of AND in searching
Using AND between two search terms tells the system that every search result must include both words.
The AND connector functions as a limiter. With every term you add with the AND connector, you decrease the number of documents returned.
Effect of OR in searching
Using OR between two search terms tells the system to include results that have one term or the other term or both.
The OR connector functions as an expander. With every term you add with the OR connector, you increase the number of documents returned.
Effect of NOT in searching
Exclude terms from appearing in search results by using the NOT connector. The NOT connector acts as a limiter.
Be very careful when using the NOT connector or you may exclude otherwise relevant results.
Proximity searches
Proximity searches allow users to locate documents that contain terms within a user specified distance of other terms.
Being able to control how close words are mentioned to each other can dramatically increase the relevance of results and significantly decrease false positives.
{/#}
within a given number of terms
{/s}
within the same sentence
{/p}
within the same paragraph
Effect of nesting
If you don’t want to memorize the order of processing for each database, use nesting operators. When you nest entries inside parentheses, the database processes the command within parentheses first, and then processes the result with the commands outside the
parentheses.
Nesting searches is a great way to organize the search concepts visually. You quickly establish what concepts are grouped together as alternatives terms and how closely these concepts should appear within your results.
Why searches fail
- terms of common use
- terms with multiple meanings
- analogies (The problem with searching for analogies is that you never know where or in what context
they will occur. The analogous nature of the situation may not be readily apparent or it will
be dissimilar in some fundamental respects) - keyword searching fails
Why start with secondary sources
- secondary sources provide valuable context and background
information regarding your research topic - secondary sources provide citations to primary authority
- secondary sources can serve as persuasive authority in limited circumstances
Legal Encyclopedias
- usually not great in depth
- cover longstanding principles as well as long standing conflicts or split
- Legal encyclopedias are most useful when you first start your research, especially if you are researching an area of law that is unfamiliar. Encyclopedias are also best used to gain an understanding of well-established information and to provide access to primary authority.
- If the research situation involves a new, novel, or evolving issue, other types of sources will be more useful.
(Dunnell’s is only in Lexis)
Legal Treatise
- A legal treatise is a systematic comprehensive text, written by an expert in the field, that
explores a single topic or area of law - there is no standard format for treatises. Treatises vary widely in content, format, length, depth, reputation, currency, and so on -often multi volume
Elements to consider when reviewing treatises: Purpose
Treatises tend to be more analytical, interpretive, and critical than other secondary sources. The level of objectivity among specific authors will also differ
Elements to consider when reviewing treatises: Reputation
Treatises in general tend to command more respect than other types of secondary sources because of their scholarly nature and expert viewpoint. However, reputation can vary widely among individual treatises
Elements to consider when reviewing treatises: Format
Treatises may be multi-volume or single volume. While several treatises have been added to the databases, many prominent treatises are still only available in print.
Elements to consider when reviewing treatises: organization
Most reputable treatises have a well-organized topical structure, detailed tables of contents, and a comprehensive index. Some
treatises also provide appendixes of relevant rules and codes, or forms.
Elements to consider when reviewing treatises: currency
The currency of a treatise depends on the nature of the subject area and
the editorial decision making of the publisher. Some treatises are updated on a
weekly or monthly basis. Others may wait on a scale of years to receive an update.
For most areas of law look for treatises that are updated yearly (at a minimum) for
rapidly evolving areas, try to locate a treatise that is updated more frequently.
How to tell if a treatise is in fact a treatise
Treatises tend to, but do not always, follow particular naming conventions.
Examples of types of naming conventions include:
- [Author] on [Area of Law]
Williston on Contracts, Dobbs on Torts, Powell on Real Property, and so on. or
The Law of [Area of Law]
The Law of Real Property, The Law of Torts, The Law of UnfairCompetition, Trademarks and Monopolies, etc.
• A multi-volume set of books is indicative of treatise status.
• A title that has multiple editions is indicative of treatise status.
A title that is updated on a regular basis also indicates treatise status. A nutshell is not a treatise
What treatises are not?
- Textbooks
- Casebooks
- Study Aids
- The majority of legal texts in the library
These publications provide neither a systematic and comprehensive scholarly analysis of the subject matter by an expert, nor extensive citations to supporting authority
why use treatises?
generally considered the most useful type of secondary source. If you
only have time to look at one secondary source for your research project, choose a treatise. They can be useful at any point in the
research process as a source of background information or primary authority.
When to use a legal treatise
you already know which area of law applies to your research topic you and you are
ready for a more in-depth discussion.
• you are looking for an expert analysis or critique of the law.
you would like to understand the history of or major policy concerns within a topic
Where can you get treatises
Westlaw, Lexis, and Bloomberg Law provide access to several treatises.
However, many prominent treatises are still only available in print. Law libraries do collect print treatises although the collection of treatises will vary depending on the size of the school, the research interests of the faculty, and the usefulness of the title.
What are legal periodicals
simply journals, newsletters, and newspapers, published on a regular recurring basis, that contain articles that comment on the law. There are two types of legal periodicals that you will encounter: Scholarly periodicals and trade periodicals. Each is used for a different purpose
Commercial and bar periodicals
published by private companies or bar associations. They tend to be more practice oriented, specialized, and expensive than the academic legal periodicals. Their focus is on practical articles, current legal issues, developments in the law, and features of interest to the subscribers. These periodicals may contain the first reports of an emerging issue, but they are not scholarly. They are best used for practical, real-world advice about a current legal issue or information about the business of law.
Law reviews/journals
contain scholarly articles written by professors, students, judges, and practitioners providing commentary and analysis on current, controversial, or novel legal issues. These will be most helpful to you during law school, so this is where we will focus our efforts
Law review content
Journals may publish articles on a particular subject area (e.g. Harvard Journal on Racial and Ethnic Justice) or may be general in nature and publish articles on a wide variety of subjects (e.g. Harvard Law Review). Individual articles within the journal usually address a very narrow area of the law. In addition, they tend to focus on current, evolving, or undeveloped areas of the law and often contain information not found in other secondary sources.
reputation and law reviews/journals
A trustworthy article is well researched, well-reasoned, well written, and current. The cite-ability of a law review article depends heavily on the prestige
of its author (school if student or experience if professional)
Format of law reviews: Lead articles
the first few articles in an issue and are written by prominent judges or Lead articles law professors. Other articles follow and are written by less prominent members of the legal field
Format of law reviews: student written articles
follow and may be categorized as a “comment” or a “note.” Comments are generally shorter versions of the type of article written by professors. In a note, a student selects a single recently decided case or recently enacted statute and discusses the background and the impact of the law.
Format of law reviews: organization
Law reviews and journals are organized chronologically by date of publication.
Law review currency
Law review articles are generally the most current of the secondary sources in when it comes to developments in the law because they are published with greater frequency than other secondary sources. However, once the article published, it does not receive updates. The information provided by an article is a snap-shot of the law at the time it was written.
When should you use law reviews?
- you are looking for a critical analysis of a current, developing, or unsettled legal issue.
you are looking for citations to authority that specifically address your narrow issue of law.
you would like to advocate for a change to the law and are looking for policy arguments to support your position.
What do ALRs contain?
a collection articles known as “annotations.”
Content of ALRs
an annotation is an article in which a single, narrow issue of law is dissected and described in detail. Article topics are inspired by new and interesting cases or statutes, an unsettled area of law, or an issue of significant controversy among jurisdictions.
ALR authors conduct a comprehensive state-by-state survey of all of the relevant
cases on the topic, summarize the cases, and then organize them within the
annotation in a logical fashion - typically by holding, common facts, rules, outcomes, elements of the legal theory, etc. The organization of an annotation makes it easy to spot different approaches taken by courts and the importance of key facts.
Purpose of ALR
Annotations are not meant to be read from cover to cover. While an annotation does provide an abbreviated overview of the topic, it does not harmonize, synthesize, provide history or context. The case synopses are neutral and the author does not make an argument for or against any particular interpretation of the law.
ALRs are more of a case finding tool to locate authority in your jurisdiction or to compare authority across jurisdictions. If you are able to find a relevant annotation, they can be a gold mine of citations.
Reputations of ALR
Attorney editors write annotations, but they are not experts in the topic area. Do not cite to ALR annotations.
Format of ALR
American Law Reports are published as a series (ALR, ALR2d, ALR3d, etc.).
It is important to remember that series are different from editions. When a source is published in a new edition, the text of the later edition updates the earlier edition.
In the case of a new series, each volume of the new series contains completely new, rather than updated, information. Within the series, individual volumes are arranged chronologically by date of publication. ALRs have extensive and detailed indexes to help you locate relevant annotations within the volumes.
Currency of ALR
An annotation will be updated after they are published with citations to new case law, but the revision date varies depending on whether you are looking in print or online. At a minimum, annotations are revisited on a yearly basis by editors to identify changes to the law.
Be careful with older annotations. Because they are written on evolving issues, the area they cover may change drastically and rapidly over time. Look to see if your annotation has been “superseded.” If that is the case, a newer annotation (probably) exists that amends or supplements the older one.
Elements of an ALR
an abstract outline index table of authorities cited section text references to other secondary sources
When should an ALR be used?
When Should I use an A.L.R. Annotation?
American Law Report annotation are most useful when:
Your research issue is new or unsettled
You would like to see a list of all cases, organized by jurisdiction, that have addressed the issue.
- You would like to see a list of cases that address a specific facet of your issue (such
as whether a court has found a fact legally significant or not).
Restatements
clarify and organize the existing state of case law
on a given topic, or, in other words, restate the law. The restatements contain analysis on an area of law, summarize and refer to case law
across jurisdictions, and may offer suggestions on how the legal system could clarify an area of law going forward.
Bar Journals, Legal Magazines, and Newsletters
National, state and local bar associations publish journals that contain articles on the law, news of interest to members, and in some cases text of legal ethics opinions. They include little analysis or in-depth information, but are helpful for “how to” information and
current awareness
Form Books
Blank templates or forms that lawyers can use in constructing their own legal documents. Usually, some explanatory text, similar to what
you would see in a treatise, accompanies the templates.
Jury instruction guides
jury instructions are directions or guidelines that judges
give a jury concerning the law of the case before the jury begins deliberating. Judges and attorneys rely on model jury instructions when preparing jury instructions for a particular case. Model jury instructions are useful for researchers because they can provide concise explanations of the law of a jurisdiction. The commentaries for the instructions are also likely to identify leading cases on the issues.
Legal Newspapers
Published on a national, state and local level, legal newspapers
provide timely legal news, reports of recent court decisions, changes in court rules and other legal information. Some include dockets,
court calendars, and the full text of lower court decisions (not otherwise published).
Model Codes and Uniform Acts:
advocate standards to improve organization in certain areas of the law. Just as Model Codes and Uniform Acts: the name implies, these publications are written in the form of model statutes that jurisdictions can adopt in part or completely into their own statutory codes
Practice series
Practice Series resemble legal encyclopedias in that they cover a variety of legal topics (though perhaps not as many as a legal encyclopedia) and they tend to be jurisdiction-specific. They are usually written by practitioners or scholars specializing in that jurisdiction and may contain descriptions of the current state of the law, some analysis of the law, and possibly forms relating to a particular
topic.
Practitioner handbooks and guidebooks
address realistic legal Practitioner handbooks and guidebooks problems and often provide useful features for practicing lawyers,
such as forms and tables
Evaluating the reliability of secondary sources (CRAAP): Currency
Currency, Relevance, Accuracy, Authority, Purpose Does the source reflect the current state of law? determine when published - Journal articles tend to be more current than treatises, but then again, they might be somewhat out-of-date as soon as they are published because the editing and publication process can take some time. But even if there was little time lag between the writing and publication of the article, you will still have to determine if the content in the article is still current at the time you are reading the article. Have there been any major upheavals in the topic area since the article was written?
determine when or if it has been updated — This can vary greatly depending on the source. For example, journal articles are not typically updated. An author of an article may wish to revisit and update the topic but will do so by writing a new article. Treatises may or may not be updated - but generally the more reliable ones are.
Evaluating the reliability of secondary sources (CRAAP): Relevance
How closely does the information relate to your topic or how well does answer your specific question?
Evaluating the reliability of secondary sources (CRAAP): Accuracy
What is the reliability, truthfulness, and correctness of the content?
Can you verify any of the information in another source (not from a similar website, as some
information is duplicated over and over on the web) or from personal knowledge?
Does the author support his or her analysis with evidence and extensive citations to a range
of reliable authorities?
What to use: Is the legal area or issue novel, new, or controversial or is it well
settled?
better for new and novel - ALRs and Law Review
better for well-established - encyclopedias and treatises
Do you need a summary or a comprehensive
discussion? Which source to go for each
Summary - encyclopedia
comprehensive discussion - ALR, Treatises
Law Reviews and law reviews are better
Is your issue jurisdiction specific or are you trying to determine how the issue is handled across jurisdictions?
Jurisdiction specific - encyclopedia and treatise
across jurisdictions - Encyclopedias (national), treatises (national), Law reviews, American Law Reports
Are you looking for critical analysis and policy arguments or a neutral just-the-facts
summary of the law?
Just to the facts - - ALR, Encyclopedia
critiques – Law reviews, Treatises
Why use the federal register?
1) New regulations are promulgated daily. In order to be up-to-date in your research, you will need to check the Federal Register.
2) If it is not clear as to how the regulation applies to your client’s situation, you can
find the agency’s thinking and supporting research for their decision in the regulation’s Proposed Rule.
3) You can learn about proposed regulations of interest to a client on which your client may wish to comment.
4 types of documents in the federal register
Notices - Notices do not carry the force of law but can often offer researchers helpful guidance as to how an agency applies its regulations.
Proposed Rule - When a federal administrative agency wishes to change an existing regulation or issue a new regulation, it is required to publish the regulation as a proposed rule in the Federal Register. Additionally details are provided as to why the proposal is needed.
Final rule - may contains the procedural history and authority of the rule and the regulatory language
Presidential Documents - Executive Orders and Proclamations must be published in the Federal Register. Publication of administrative orders and other miscellaneous documents is optional.
statutory code
Statutes enacted by a legislature are organized by subject matter into what is known generically as a code. Each jurisdiction publishes its own code. For example, the United States government published the United States Code and New York government publishes the Consolidated Laws of New York.
A code only contains laws of a general and permanent nature that are currently in effect. Legislatures pass many laws, but not all of them make it into the code because they are not general or permanent enough. For example, a provision defining a certain action as a Federal crime is general while one naming a post office is not. A provision requiring an agency to submit a report to Congress every year from now on is permanent while one making a one-year budget appropriation is not
Code Organization: Title
Each Title of the code covers a broad subject area. Just a glance at the Title outline can give you a good idea what subject areas are generally under the Federal government’s control.
Code organization: Code subsection
Each Title, in turn, has its own structure and hierarchy. Every Title is divided into smaller parts and sections in different levels. A typical structure of a title of the US code will be divided into Subtitles, Parts, Chapters, Sub-Chapters, and finally Sections. Why is it important to learn about the structure of a code? Context is key when analyzing statutes. Think of the section as a unit of law that is part of a series of units of law. In order to understand the statute, you must analyze it with the overarching framework in mind.
structure of statutory section
A basic unannotated statutory section has three segments: 1) The section number and title (also known as the caption) 2) the text of the section, and
3) the history of the section.
case annotations
A case annotation (as found in an annotated statute) is a summary of a court opinion that
examined or interpreted the statute. Some statutes have been examined and interpreted by the courts more than others, and thus have many cases listed in the annotations. In these situations, the publisher provides a table of contents to help you quickly locate cases that interpret your statute by the topic discussed. On the other hand, some statutes have no case annotations
how to cite a statute
[Title number] [Code] § [Section number] (Year of publication). [Title number] [Code] § [Section number] ([Publisher] [Year of publication]).
18 u.s.c. § 4424 (2019)
this will probably be a question
What legal dictionaries are available to you? Where can you find them?
Black’s Law Dictionary - West, Reference Area
Ballentine’s Law Dictionary - Lexis
Boolean operator
Search logic functions that allow you to combine words and phrases using the words AND, OR, NOT to limit, widen, or define your search.
Proximity connector
Allows one to specify the relationship between the words or phrases that are being searched. A proximity connector defines the
relationship more explicitly than a Boolean connector.
Universal Character/Wildcard
Universal characters/wildcards substitute a symbol for one letter of a word.
Root Expander/Truncator
Truncation is a technique that broadens your search to include various word endings and spellings. Truncation allows you to search any ending on a root word.
T.R.A.C.E
Terms: Things you are searching for
Roots: Variations of the word you’re searching for
Alternatives: Other words to search for that mean similar. Broader and narrower.
Connectors: put the terms together in the right way
Evaluate: What have you come up with? Do you need to change your input?
What to look for in articles
- Prestigious schools are more likely to have more well known experts - Currency matters. But old articles that have well established law might not matter currency as much.
- What journal is it in, the main or secondary
- Where is the article placed within it? - Who is the author, whats their rep
