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
where are session laws published at the federal level
At the Federal level, the session laws are published in a series called the United States Statutes at Large.
slip opinion
The first publication stage of a judicial opinion. The slip opinion identifies basic information about the case, such as party names, the attorneys who represented the parties, the judges who presided over the action, the judge who authored the opinion, the date of the decision, and the text of the opinion.
Unpublished opinions, Non-precedential opinions, opinions not selected for publications
Generally, an opinion will be published if it meets certain criteria set by the court. In the
past, courts have considered the following factors:
(a) Does the decision establish a new rule of law, alter, or modify an existing rule of law, or call attention to an existing rule of law that appears to have been generally overlooked;
(b) Does the decision apply an established rule of law to facts significantly different from those in previously published opinions applying the rule;
(c) Does the decision explain, criticize, or review the history of existing decisional or enacted law;
(d) Does the decision create or resolve a conflict of authority within the court; or
(e) Does the decision concern or discuss a factual or legal issue of significant public interest.
How to limit a decision to the parties of the case
By not publishing an opinion, a court can limit the application of its decision to the parties of the action. In other words, unpublished case opinions are not binding on the court. They are at most persuasive authority.
Publication of a slip opinion
When a judge issues a written decision, a copy is filed with the clerk of the court and is known as a slip opinion.
Many courts publish their slip opinions online. Slip opinions are usually identified by the case (docket) number assigned by the court to the action. The slip opinion identifies basic information about the case, such as party names, the attorneys who represented the parties, the judges who presided over the action, the judge who authored the opinion, the date of the decision,and the text of the opinion.
Some opinions may also include a syllabus. This is a summary of the case added by the author to help the reader better understand the case and decision. It is not part of the official opinion
official reporter
A reporter is official if it is published under governmental authority. For example, the United States Supreme Court officially publishes
their opinions in the United States Reports.
Editorial Enhancements Within the West Reporter System
Commercial publishers, like West, frequently add editorial enhancements to published (and a few unpublished) opinions.
headnotes generally
To create headnotes, attorney editors at West carefully analyze a slip opinion. They identify and summarize the points of law addressed within the opinion. Then, they categorize the point of law as relating to a narrow issue under a broader legal topic.
3 ways headnotes help legal researchers
- They help researchers quickly determine if a case is relevant for their issue. Headnotes act as an outline of the legal issues that were addressed by the court in the opinion. The headnotes serve as a quick reference for attorney, who can then scan through them to determine if reading the full case will be useful to their research.
- They direct researchers to the specific part of the opinion where the relevant issue is discussed (this can be extremely helpful in lengthy opinions!)
- They can help researchers locate other relevant cases. It is important to understand that headnotes are written by case editors, not the issuing court. Headnotes are not the law and should never be cited in a brief. Use headnotes to make initial decisions about whether the case is potentially relevant, but don’t rely on their interpretation in case it is flawed.
Publishing in a reporter
Slip opinions that have been selected by the court for publication are then collected and
are published in chronological order in a Reporter.
The text of a single judicial decision may appear in more than one reporter. When you are viewing a case in an online database you may encounter one with multiple listed reporters. These are called parallel citations.
The West Topic and Key number system: headnote number
indicates that this headnote is the first point of law identified by the West editors in the opinion.
Methods for finding opinions: “known item”
This method is the easiest way of finding cases. If you know the name
of the case or citation, you can just plug it in to the Google-like search bar on the main search screen. Both Westlaw and Lexis Advance will try to predict relevant results and will display suggested cases. Click
on the case name to retrieve it.
methods of finding opinions: “one good case”
The “one good case” method involves using a known item - an opinion, statute, or a secondary source- and its unique editorial finding tools to locate more relevant authority.
Opinion Finding Tools:
- Textual citations, headnotes with Topic and Key Numbers, and citing references
- Annotated Statute Finding Tools: Notes of Decisions, citing references, and editorial references
- Secondary Source Finding Tools: Footnote citations and citing references
methods of finding opinions: topical
Once you have a case, you can mine the headnotes for relevant key numbers/topic headings.
But you don’t need a case to find useful key numbers. Westlaw and Lexis make their topical hierarchies available to search and browse.
5 steps to selecting a judicial opinion
Seminal Case (usually from the highest court to decide relevant issue) Most recent case Bolstering cases and reformation cases Application Cases Avoid parroting cases (cases that parrot the language of the seminal case, adding little to nothing to the analysis.
- You can use a citator to… Select all that apply.
a) Find a parallel citation
b) Learn the subsequent and prior history of a case
c) Expand your research
d) Determine at a glance what points of law in an opinion are no longer good law
You can use a citator to find parallel citations, learn the history of your case, and expand
your research.
While a citator will alert you to the fact that your case has been overruled, it
won’t explain why. You must read the case providing the negative treatment.
A week ago you found a case that is directly on point for your research issue and cited it in a memo for a partner. Today, you would like to use it in a different memo to another supervising attorney.
a) No, if it’s not being submitted to the court, it is best to be cost-effective and save
your client money by not updating every case.
b) No, a week is not very long. The case could not have received detrimental negative treatment in that amount of time. c) Yes, you must update every case you rely on in any document to make sure it is still good law
- Every time you rely on a case you must check to see if it’s still good law. In the grand scheme of things, citator reports are the least expensive and most important part of your research strategy.
You have found a case in Westlaw with a red flag. Can you still use it?
a) Yes. A red flag means there has been some negative treatment, but you can still use it.
b) Possibly. You must use the citator report to find and read the cases giving it negative treatment before relying on it.
c) No. A red flag means the case has been overruled or reversed, so you should not use it.
Possibly. If a case was not overruled on the point of law you are interested in, you can still use a case with a red flag. But you must make that determination by reading the citing case treatment.
You have found a case in Lexis with an orange Q. Can you still use it?
a) No. An orange Q means the case has been questioned. So to be safe you should not use it.
b) Yes. There would be a red stop sign if it had been overruled, so it is probably
fine to use.
c) Possibly. You should update the case and see what negative treatment it has received before using it.
d) No. You should cite to a case only if it has a green symbol associated with it.
Even though the case in question doesn’t have a red stop sign (the most negative treatment), before you rely on a case you must ALWAYS look at whatever negative
treatment it has received to determine how detrimental it is to the point of law in question.
Which of the following actions does NOT undermine the authority of a case?
a) A higher court reverses it.
b) It is cited in a dissenting opinion.
c) A later case overrules it.
d) A case on which it relies is overruled by a later case
e) The legal doctrine in the case is abrogated by statute.
- A cite in a dissenting opinion will not undermine a case’s authority.
Citator Terminology
Cited Case - subject of the citatory report
Table of Authorities - a list of opinions that appear within the text of the cited case opinion
Citing Case - a case that cites to the cited case
Treatment - how subsequent opinions evaluate cited case
Direct prior history - any opinion issued in the same litigation before the cited case
Direct subsequent history - any opinion issued in the litigation after the cited case
methods of finding opinions: field search
Alternatively, statutes have Citations, Captions, Statutory Text, History, Annotations, etc. Westlaw and Lexis allow you to search only in the relevant section (or field) of the document.
Field searching is especially helpful when you:
• are looking for opinions written by a certain judge
• are looking for cases involving a specific party
• are looking for cases involving a particular attorney or firm • have a partial or incorrect citation
The most valuable field for me as a legal researcher is the synopsis/digest field. This field limits the search to only case summaries and headnotes. The result is that it pulls case opinions that concentrate on your particular issue or fact pattern. It leaves out the cases where your issue is mentioned briefly or in a parenthetical to another case citation.
Two fundamental purposes of citators
1)locate additional authorities that pertain to your research
2) Determine whether the cited case is still good law for a point of law
it states
Functions of federal administrative agencies: oversight
Administrative agencies relieve the legislature from the burden of having to create legislation that deals with every detail of a specific problem. Statutes lay out the legal requirements to achieve broad social and economic policy. They outline principles, desired outcomes, and general prohibitions. Regulations, on the other hand, fill in the blanks and provide specific and detailed direction for realizing Congressional mandates.
Functions of federal administrative agencies: expertise
Certain specialized and highly technical areas need law makers who are subject matter experts to make effective and informed decisions. Agencies consult their own highly qualified staff or work closely with constituents of the regulated field to shape solutions for challenging problems.
functions of federal administrative agencies: continuity
Agencies, and their staff, accumulate a body of knowledge through years of experience in dealing with similar problems. They are more suited to understanding the intricacies of a particular situation and more readily able to identify potential consequences for actions taken to manage the situation.
enabling act
An agency’s enabling act is the source of the agency’s name, purpose, functions, authority, structure, and position within the government. The enabling act establishes clear guidelines for the objectives that the agency must work toward and specifies the extent to which the agency may exercise its authority. Provided the agency stays within the boundaries formed by its enabling and procedural acts, it has broad discretion in creating additional policy and procedure.
Lexis Headnotes in general
Lexis’ headnote classification system is not as detailed as Westlaw’s. You can still search for headnotes by topic and subtopic, but you won’t be getting the level of precision that you get with the Key Number system.
powers of agency: judicial
A group may informally ask for an agency to provide guidance on how the agency would
rule on a particular issue or an agency might also engage in a process called formal
adjudication. Formal adjudication is a process that is like a civil bench trial in court and is
presided over by a neutral administrative law judge.
Unlike civil courts, most agencies do not seat juries, use formal rules of evidence, or permit comprehensive discovery. Extensive pre- trial and post-trial procedures are rare.
Administrative decisions resemble judicial opinions, except that they are issued by agencies’ own hearings or review boards. These decisions lack the force of precedent and do not generate common law. Federal agencies may also publish an official reporter that includes the reports of agency adjudications.
powers of agency: legislative
Regulations enacted by an agency have the full force and power of federal law if they are
constitutional, are within the power granted to the agency by the legislature, and were
issued according to proper procedure.
The Administrative Procedures Act (APA) governs the process by which all administrative
agencies create and enact laws. The purpose of the APA is to provide clear standards for
agency rulemaking and to ensure that the public has adequate notice and an opportunity
to comment on proposed laws.
5 things the APA and enabling act require
- notification than plan to make a new rule
- publish the proposed rule in the federal register
- solicit public commentary on the proposal
- respond to and consider public commentary
- publish the final rule in the federal register before it goes in to effect
Agency Rulemaking Functions (Federal Register )
The Federal Register was established by Congress during the New Deal Era. It consolidated agency rule making in to a central depository. It now acts as a daily briefing of all federal agency regulation development.
The FR’s pages are numbered consecutively in each volume, meaning that the first issue of the year, published on January 2nd, begins with page one and continues consecutively with each issue. Page numbers in December issues often approach six digits
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. Additonally 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.
3 reasons to 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.
Coding of Federal Regulations
Of the four types of documents published in the Federal Register, only Final Regulations and Presidential Documents are codified in the
Code of Federal Regulations (CFR).
there are two situations where you will need to use a different version of the CFR or use the Federal Register to locate the applicable language:
1) The events of your client’s situation occurred long ago and the regulation was
created or updated recently;
2) The situation you are researching happened recently (or events will occur at a
future date) and you need to check (or monitor) recent regulatory activity.
code of federal regulation generally
The CFR is published annually and contains the agency’s rules that are in full force and effect at the time of its publication. Withdrawn regulations are removed and the new or modified versions are published. Most importantly, the CFR reorganizes the rules from the FR into a subject organization.
State Admin Agencies
State Admin Agencies
State agencies promulgate administrative regulations that regulate certain activities specific to the state. In format, administrative regulations will vary state by state to a certain degree, but they tend to mimic the form of federal regulations.
Most states also publish administrative registers like the Federal Register. However, these administrative registers are not as extensive as their federal counterpart. They contain far less information and are published more infrequently (sometimes monthly
as opposed to daily). Even so, a state register provides residents with notice of proposed
rule changes, and researchers can still use it to update administrative code sections.
HEADNOTES CAN BE FOUND WHERE?
CASE LAW
HOW DO YOU KNOW IF YOUR CASE IS STILL GOOD LAW?
KEYCITE
P.L. 110-135… WHAT DOES THE 135 STAND FOR? 110?
135TH LAW PASSED IN THE CONGRESSIONAL SESSION
110 IS FOR THE 11OTH CONGRESS
WHAT SHOULD YOU USE TO GENERATE SEARCH TERMS
DICTIONARIES AND THEASOURUSES
WHICH IS NOT A METHOD YOU CAN USE TO LOCATE OTHER CASES FROM “ONE
GOOD CASE”
NOTES AND DECISIONS
What is the correct order of the statute process?
BIILL, SLIP LAW, SESSION, CODE
WHAT TYPE OF STATUTORY CODE CONTAINS CITATIONS TO CASE LAW AND
SECONDARY SOURCES
ANNOTATED CODE
3 different types of search processes Lexis and West use
- natural language - will look for all or some of the words entered into the search engine and return documents based on their relevance.
- plain language search - will attempt to “add value” to the search you run by automatically returning documents with synonyms of the key words you entered, favoring documents where your terms appear closer together or more frequently, ranking more popular documents higher than less popular documents
- Terms and Connectors (Boolean) - algorithm identifies and retrieves documents containing the exact terms you identify in the arrangement you specify. You control the search results. It is that precision and efficiency that makes it the preferred choice when conducting legal research.
short clip on maximizing search results
https://www.youtube.com/watch?v=cAWzbWm7RPI
Westlaw processes connectors in this order
“X”, OR, /n, /s, /p, AND, NOT
Lexis processes connectors in this order
NOT, OR, /n, /s, /p, AND
How agencies are created
Agencies are typically created by legislatures through statute and may only function within the confines of their given authority.
most general secondary source
Legal encyclopedia you dummy
Legal encyclopedias organized by….
Alphabetical
American Jurisprudence 2d and Corpus Juris Secundum.
National Legal Encyclopedias Corpus Juris Secundum –> Lexis American Jurisprudence –> both
most useful type of secondary source?
Treatise
Universities which have developed treatise finders
Harvard and GTown
Law reviews/journals are an example of what type of secondary source
Legal Periodical
How often are ALRs updated
At least yearly basis, online may be sooner
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).
How is statutory code organized? randomly or by subject?
by subject
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.
At the Federal level, slip laws are called
Public Laws and each public law is assigned a special number based on the Congressional session it became law and the order in which it
was signed into law by the president
The first official publication of newly enacted legislation is generically known as a
slip law
session laws
At the end of a legislative session, the slip laws enacted during the session are gathered in chronological sequence and are published in
a permanent form as session laws
United States Statutes at Law
where session laws are published
How format changes from statutes at large to coding
no longer ordered chronologically, but rather by subject
Highest court at state level is called
court of last resort
does the key number identify the topic or subtopic
subtopic
star pagination.
Star pagination uses a symbol, such as an asterisk, to indicate where page breaks occur within the opinion for the different reporters.
indirect negative history… are citators good at picking this up?
Indirect negative history occurs when a case opinion appears valid from the citator report because no negative treatment is associated with it directly, but is actually flawed because the underlying authority cited within the case has received substantial negative treatment.
difference between CFR and FR
FR is organized chronologically whereas CFR is by subject
CFR is updated once every calender year whereas FR is everyday (except holidays)
Statutes at Large is an official publication
which includes all laws
enacted by Congress.
True False
true
The United States Code is an official publication which includes all laws enacted by Congress. True
False
False
Each state publishes an official reporter that includes decisions of its highest state court. True
False
false
The Federal Supplement includes all decisions of the United States District Courts across the country.
True False
False
Statutes are published as session laws before
they are codified.
True
False
true
The Federal Supplement is an official reporter.
True
False
False
The Federal Reporter, Second Series, includes all decisions of the United States Courts of Appeals across the country.
True False
False
The American Digest System includes the
Decennial Digests and a
General Digest..
true
The terms “memorandum opinion” and “memorandum of law” mean approximately the same thing.
True
False
False
The Federal Reporter, Second Series, is an
official reporter.
True
False
false
Federal session laws may be found in:
The Federal Register The Federal Reporter Statutes at Large United States Code
statutes at large
U.S. Law Week
is an official publication contains recent decisions of the United States Supreme Court contains recent decisions of all federal appellate courts
all of the above
contains recent decisions of the United States Supreme Court
The official reporter of the U.S. Supreme Court is
United States Reports Supreme Court Reporter
Supreme Court Reporter, Lawyers Edition
none of the above
united states reports
Obiter dictum is a Latin term that refers to
the overall decision of a court case
the holding of a court case
the court’s explanation of the holding in the case
the court’s comments about things other than the holding in the case
the court’s comments about things other than the holding in the case
The record of a court case includes pleadings, transcript of trial testimony, and exhibits
pleadings, briefs, motions, transcript of trial testimony, and exhibits
transcript of trial testimony and exhibits all documents filed in the trial court
pleadings, briefs, motions, transcript of trial testimony, and exhibits
Felony Possession of a firearm
- Identification
- Act: Possession
- Prior Felony
- Jurisdiction –> gun travelled across state lines
How to cite to a law that has not been added to the code?
Cite to the official session law publication. For the federal system, this is the Statutes at Large
What is included in the publication of session laws?
All laws that passed during that congressional session, even those that have been later amended or repealed.
What is the name of the publication of MN Session laws?
Laws of Minnesota is an annual compilation and is often referred to as the “session laws”
Official name of MN statute code?
Minnesota Statutes
Which online research has the current Statutes at Large?
Lexis, they have them from 1776-present
When are session laws useful?
Looking at historical versions of laws or the full language of the original legislation
Where is the only official online source of the US Code?
The only official online version of the code is freely available on the Federal Digital System, or FDsys, which is the website for the Government Publishing Office, or GPO. If a law has been codified, you would always cite to the official code.
What do courts rely on to clarify vague or ambiguous language in statutes?
Legislative history
What type of authority is legislative history?
Persuasive legal authority
What are slip laws called at the state level?
They are called chapters, as opposed to the federal system where they are called public laws
What are administrative materials?
Any published information generated by a government agency in the course of its work
Rule on citing to unpublished opinions in MN
Unpublished opinions of the MN Court of Appeals are not precedential. They must not be cited unless the party citing the unpublished opinion provides a full and correct copy to all other counsel at least 48 hours before its use in any pretrial conference, hearing, or trail.
What is the Complete Internal Revenue Code an example of?
The Internal Revenue Code is an example of enabling legislation
How to agency powers mirror the powers of the three branches of government?
Legislature - creating regulations, Judicial - adjudicating, Executive - investigate wrongdoing and enforce regulations
Where can you find regulations?
The Federal Register is the single most important administrative publication. A daily publication of the federal government, the Federal Register functions primarily to provide a place for agencies to officially publish their proposed and final regulations.
What is the Code of Federal Regulations?
Where the Federal Register is a daily journal of proposed and final regulations published as they are promulgated, the Code of Federal Regulations, called the CFR, constitutes a comprehensive compilation of all the regulations currently in force at the time each title is published. The CFR represents a moment frozen in time; any regulation it contains could have changed the next day. The Federal Register is to regulations what the Statutes at Large is to public laws. The CFR is like U.S. Code, as they are both arranged by topic.
What can notices include?
Notices can include announcements of public meetings, hearings, investigations, grants and funding, and environmental impact statements.
What can presidential documents include?
Presidential documents include proclamations, executive orders, and other communications.
How often is the Code of Federal Regulations (CFR) updated?
It is divided into 50 titles that represent broad areas subject to Federal regulation. Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis.
Titles 1-16 are updated as of January 1st
Titles 17-27 are updated as of April 1st
Titles 28-41 are updated as of July 1st
Titles 42-50 are updated as of October 1st
What is the largest classification in federal codes?
The subject groupings are called titles, and are numbered in roughly alphabetical order. For example, Title 17 of the U.S. Code is about copyright, and Title 18 is about crimes and criminal procedure.
What is the structure of the US Code?
The U.S. Code is organized by subject area into 54 titles. Titles are further broken down by chapter and section. Citations to the U.S. Code look like this: 42 U.S.C. 1382 or 42 § 1382. This means the law appears in title 42, section 1382 of the Code.
Title, part, chapter, section
What does Authority cite to in regulations?
Authority is a reference to the enabling legislation for the particular regulation. This means that the Authority section includes a citation to the United States Code.
What does “source” cite to in regulations?
Source is a reference to where the regulation first appeared in the Federal Register.
What needs to happen for a proposed regulation rule to become a final rule?
The final regulation must be published in the Federal Register, listing an effective date not less than 30 days after the date of publication
Difference between content in American Jurisprudence 2nd, and Corpus Juris Secundum?
Am.Jur. is more selective, with shorter footnotes and greater readability. Alternately, CJS provides longer, more detailed coverage, with lengthy footnotes aimed at providing every relevant citation on a topic
What filter do you use on Lexis to search ALRs?
Jurisprudence
