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104 Cards in this Set
- Front
- Back
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Research Methodology (Generally)
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Define the Problem
Know some specific Tactics Understand the sources Match the sources to the problem and use the tactics |
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Define the Problem
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Who, what, where, when, how
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Descriptive Word index
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Descriptive word index
It works like a Thesaurus – translating your terms into the language of the digest. **The words chosen by West Atty Editors may not match the words you would use. Result: Your are not finding relevant cases. |
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Recall v. Precision (generally)
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As recall increases precision decreases.
As precision increases recall decreases. |
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Specific tactics you must know
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Scavenging A primary source (to get secondary)
Scavaging a Secondary source to get primary sources key numbers Structures (time, subject, names) Get Context from Secondary Sources |
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Understanding the sources
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Type of Source
Purpose Set Up Location Method of Internal Access How it is updated Citation |
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Features of Am Jur
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Subject Index
Table of Statutes and Regs. |
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Structures of the System: Institution; Kind of Law; Chronological Publishing; Topical Publishing; Citation Publishing
LEGISLATURE |
Kind of Law: Statutory Law; Chronologically: Session Laws; Topically: Statutory Codes; Citation Publishing: Shepards, Keycite, Annotated Codes
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Legal Encyclopedias
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Am Jur; CJS
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Structures of the System: Institution; Kind of Law; Chronological Publishing; Topical Publishing; Citation Publishing
COURTS |
Kind of Law: Common Law; Chronologically: Case Reports; Topically: Case Digests (summaries of Primary Authority); Citation Publishing: Shepards, Keycite
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Structures of the System: Institution; Kind of Law; Chronological Publishing; Topical Publishing; Citation Publishing
AGENCIES & EXECUTIVE BRANCH |
Kind of Law: Administrative Law; Chronologically: Admin. Registers; Topically: Admin. Codes; Citation Publishing: Shepards, Keycite
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Features CJS
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Subject Index
Table of Cases Table of Statutes & Regs. |
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Updating Encyclopedias
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Both use pocket parts
Am Jur has a New Topic Service KeyCite Updates Am Jur |
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Hierarchy of Secondary Sources
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Legal Encylopedia
Hornbook Treatise and Looseleaf ALR Annotation Law Review Article |
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Important Treatises (generally)
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Harvard Legal Treatises by Subject Svengalis (narrative commentary on treatises in over 50 legal subject areas) Treatises on Lexis and Westlaw
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Questions to ask about any database or index
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Coverage (how far back does your index go); What does it index (titles and subjects); If it is electronic what does it search (titles only or full text)?
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Transition from Secondary Sources to Primary Sources
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Restatements of the Law; Restatement Text; Comment; Illustration; Reporters Note
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Digests and their topical Organization
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The topic are arranged alphabetically and numbered between 1 and 450.
Each topic addressees a broad legal issue Topics are added and deleted as necessary. |
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Dissecting a Digest "Key Number"
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First Number = Topic; Second = Subheading; Third number= Specific Key Number Example: 92 Con Law (Topic); 92K90.1 (subheading); 92k90.1(1.2)k (Specific Key Number)
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How cases are fit within the digest
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The point of law discussed in each headnote is assigned to at least one and as many as three west topic numbers and key numbers.
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Digest Headnotes
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They mirror case language but are not exact quotes (never cite them) Lexis Nexis 'Core Terms' contain language from the case. West is outsourcing to India for this.
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How digest volumes are organized
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Each digest series spans many volumes and is organized first alphabetically by topic
Then numerically by key number. Think of the topic and key number as an address. Each street in the city represents a digest topic There are many houses on each street and each house has its own number (key number) In order to find a particular house, you must know both the street name (topic) and the house number (key number) |
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Digest Descriptive Word Index
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The words chosen by West Atty Editors may not match the words you would use.
Result: you are not finding relevant cases. It works like a Thesaurus: translating your terms into the language of the digest. |
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Digest Research Strategies
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If you have know idea where to begin – start by identifying relevant digest topics
Then browse the outline of topics and subheadings to get relevant key numbers. Then read through the entries under the key numbers If you know what you are looking for use the KeyNumber Method |
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Different Types of Digests
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State, Regional, Federal Practice Digests
Speciality Subjects Decenennial digests (contain headnotes from cases for each 10 yr period starting with 1897) General (in between Decennials) |
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Uses for Digests
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Find Rules
Understand Rules Expand or Narrow Search Trace Ideas Back |
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Death of the Digest (criticism of Digest)
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Digests have been criticized for:
Rigid and slow to change Possessing the editorial biases of their creators For being cumbersome and difficult to use |
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Computer vs. Digest (Problems w/using computers)
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Erode the ability to think like a lawyer
Stop searching too soon False overconfidence in results |
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Use computers when...
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–You are familiar with the area of law
–Unique search term, phrase or quotation (fact based) –Distinctive phrase from an authority –The area of law is new or emerging –Current information –You are looking for a known case –You are looking for cases involving a certain party, attorney or law firm –You are looking for unpublished opinions –You are updating or verifying your research (Shepard's or KeyCite) |
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Use books when...
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You are researching an area of law that is
very new to you –Complex concept or legal theory –Procedural issue –Your issue can only be expressed in common words that occur frequently in the database –Too many synonyms are required to retrieve all relevant documents –Your search terms are ambiguous –You are researching statutes |
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Recall vs. Precision (when to use which)
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When you don’t know much:
Go for recall and sacrifice precision Controlled vocabulary tools Natural language When you Know Structure and Terms: Go for precision at the expense of recall Boolean searching Filed Searching |
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Natural Language vs. Boolean Searches
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Natural Language:
Computer formulates search for you You are researching a new area and don’t know the structures or terms of art Searching annotated statutes (legislatures use arcane terms) As a check against your Boolean search Boolean Search: You define the search by adding terms and connectors You are experienced in an area and know structure/terms of art Your are searching for common terms you are searching for cases involving a known judge,party, atty, ect. As a check against your natural language search |
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Manipulating your natural language search
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Most statistically relevant results are
displayed first • Grammar is not important, use spell checker • Equivalencies are applied: Avenue= Ave., three = 3. • Include variants and use thesaurus feature • Put terms of art in quotes |
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Terms & Connectors (Basic Types)
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Boolean Operators (OR, AND, NOT)
• Phrase (“”) retrieved exactly as written and in the order written • Proximity Connectors (/n, /s, /p and “preceding”operators) /s (within same sentence) /p (within same paragraph) /# within __ number of terms) • Term Extenders and Universal Characters (! And *) ! will return all variations of a word * returns all variations of just one character • Nesting and Order of Operations Only concern yourself with this if your search involves two or more Boolean connectors and you are not getting the results you want. • Westlaw & LexisNexis connectors are processed according to a series of rules, not left to right. • Control order of operations using parentheses. (attorney AND Chicago) OR New York. This forces attorney AND Chicago to be searched first, then OR New York is searched. • Nesting ((two sets of parentheses)) can be used when you have more than two connectors. Nest the connectors you want done first. |
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Connector Processing Order (Westlaw)
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Westlaw: (highest to lowest priority)
“phrase” • space, or • +n • /n • +s • /s • +p • /p • & (and) • % (but not) • or • /n, pre/n, not/n • /s • /p • and • and not two or more of same connector-read left to right multiple /n, pre/n, not/n- |
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Connector Processing Order (Lexis)
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Lexis: (highest to lowest priority)
• space, or • +n • /n • +s • /s • +p • /p • & (and) • % (but not) or • /n, pre/n, not/n • /s • /p • and • and not two or more of same connector-read left to right multiple /n, pre/n, not/n- read smallest to largest number |
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Cost saving strategies for using westlaw & lexis
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know the plan your firm is under
hourly or transactional pricing free to contact reference attys return to same day’s research until 2am following day for free free to search custom digests no charge for working with results check citations with keysearch, shepards, westcite or checkcite no charge for running westclip searches use your browser to print at no charge |
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Three functions of Citators
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Determine if __ is still good __/
See how ___ has been treated by future ___ Current awareness features |
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Citator Terminology
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“Direct History” (sometimes just “history”)
“Indirect History” |
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To google or not to google (that is the question)?
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Strengths:
Advanced algorithims Searches over 8 million pages Unique terms and phrases For very current info Weaknesses: Misconceptions about google Common terms and issues Pre-1995 Things for sale Knowledge found only in books and journals |
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Using Wikipedia
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Evaluate who is editing
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Why info quality is important
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Lawyers must do their research diligently
Judicial notice will be taken only if the matter is beyond dispute because it is (1) generally known in the jurisdiction or (2) easily ascertainable by reasonable undisputed sources. |
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Evaluating online info
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Identify the source
Discover source’s expertise Level of objectivity Establish date of publication Verify what the information claims |
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Evaluating print materials
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Author’s reputation
Publisher’s reputation Style and reference features Availability online Comparison with other titles Date of publication |
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Important book for preparing practice...
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Svengalis: “Legal Information Buyer’s Guide & Reference Manual”
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World of Legal Publishing (3 main sources)
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Thomson
West RIA Findlaw Reed Elsevier Congressional Information Service Martindale Hubble LexisNexis Shepards Matthew Bender Wolters Kluwer Aspen CCH Loislaw |
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Consequences of Consolidation of Legal publishers
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Benefits:
Integration of Resources Drawbacks: Monopolistic control over market Less choice High cost supplements and supplements issued to make money |
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Facts about supplements
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(The REAL money maker)
Most are cumulative Distinguish between primary and secondary materials Consider supplementing every other year or not at all |
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Used Books
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Savings Example:
Federal Reporter 2ndand 3rdnew: $14,000 – used: Free • Incomplete sets make bad used purchases • CCH, BNA, and true loose-leafs are bad used purchases • ALR’s, Hornbooks, Treatises, and anything that is cheap and easy to update makes a good used book purchase |
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Core Federal Collection
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Statutes
Reporters Administrative Materials Federal Digest Court Rules Treatises and Practice Resources |
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Core OK collection
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Statutes
Reporters Administrative Materials Municipal Ordinances Oklahoma Digest Practice Resources |
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What is Legislative History?
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Documents containing information considered by the legislature prior to enacting law
Consistently it is the aspect of legal research and writing that students find most troublesome. |
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Uses of Legislative history...
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Legal Significance: Determine the intent of legislature or construe ambiguous statute
Helps you understand why a bill did or did not become law Allows you to track the progress of legislation |
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Abuses of legislative history
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Justice Scalia and other Federal judges contend that legislative history is an unreliable guide to
legislative intent because lobbyists and congressional staffers distort it. “Legislative history should not be used as a authoritative indication of a statute’s meaning.” |
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Threshold for use of legislative history
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Before resort to legislative history, statutory text must meet a threshold level of uncertainty in the
form of: –Ambiguity –Absurdity • Special circumstances: –To determine the context of amendments –Federal Preemption of State Law –Deference to an administrative agency’s interpretation of a statute |
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The codification process for Legislative history
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Office of Federal Register Assigns PL#’s and Statute Pages
House office of Revision Counsel Slip Law/Session Law (Chronological) Statutory Code (Subject) |
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Statutes at Large
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Public & Private Laws in Chronological
Order • Time Lag 1-2 years & not updated • Features in Each Volume –Subject Index –Popular Name Table –Legislative History Information (not hearings) • Cite as 112 Stat. 670 • Entire Run Available in Hein Online |
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USCCAN
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Public Laws in Chrono. Order
• No Time Lag • Features –Legislative History Volumes –Legislative History Information • (not hearings) –Index and Popular Name Table –Table Showing USC Classification –Updated With Pamphlets • Available on Westlaw |
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The United States Code
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50 titles arranged by subject
• Issued every 6 years –old laws come out & new go in • Is updated annually • References the Statutes at Largecitation • Includes historical notes and cross-references to related sections • Includes an index, popular name table, conversion tables, table of repealed and amended statutes going back to 1878 and table showing where laws are codified. • Bluebook Rule 12: 28 U.S.C. §1291 (1994). |
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The United States Code Annotated
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Updated faster than USC
• Annotations to cases & other authority • Index & Popular Name Table • Numerous Other Tables • Updated with pocket parts • In print and Westlaw |
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United States Code Services (USCS)
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Follows Statutes at Large –not USC
• Numerous Tables and Indicies • References to Lawyers Co-Op publications. • Available on LexisNexis |
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Research Strategies for Legislative History
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Find a compiled legislative history
–A collection of the documents in full text that make up the legislative history for a given law. -If you can’t find a compiled legislative history at least find a list of documents that make up the legislative history -For success with either strategy you will need as much information as possible about the law –Popular name –Pregnancy Discrimination Act • Popular Name Tables in USC, USCA, USCS and in each volume of the Statutes at Large. –Bill number –S-995 –Public Law number –PL 95-555 –Statutes at Large citation –92 Stat. 2076 |
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Bill Numbers
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• Bills are numbered sequentially for the
congressional session. • The first bills of the session will be numbered: H.R. 1; H.J. Res. 1; S. 1; SJ Res. 1. • Get bill numbers from: Statutes at Large, USCCAN and electronic sources. |
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Public Law Numbers
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–All public laws are given a public law number.
–Laws are numbered consecutively throughout the congressional session. –P.L. 108-1 (the first public law of the 108th congressional session) –Get public law numbers from the credits at the end of USC, USCA, USCS, USCCAN and Statutes at Large |
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compiled legislative history print sources
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Bernard Reams & Nancy Johnson
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USCCAN (dates of coverage)
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1948-Present
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Electronic Sources for Compiled legislative history
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LexisNexis Congressional
–From 91st Cong. (1969) –present –Documents in full text from 1984 –present • Thomas –From 93rdCong. (1973) –present –Select documents in full text • Lexis • Westlaw • Hein Online |
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Documents that make up a legislative history
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CIS Legislative Histories(’84-). Provides references for each Public
Law to bills, hearings, reports, debates, presidential documents, and other legislative actions. Does not limit coverage to a single term of Congress but includes references to prior congressional sessions. • CIS Index(‘70-) reports, hearings, prints and documents are indexed by subject, title and bill #, w/ references to abstracts summarizing these documents. Each index entry includes an accession # that provides access to specific publications in the abstract volume • USCCAN –lists documents that make up the legislative history of each public law, exceptfor hearings. • Statutes at Large–lists documents that make up the legislative history of each public law, except for hearings. |
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Bills
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Contain the intent of legislature –any change in language reveals change in intent
• Want to identify all companion bills and bills from prior sessions • Update your research by searching for pending bills on similar subjects |
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Sources for Bills
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Electronic Sources;
Thomas GPO Westlaw Lexis LexisNexis Congressional Print Sources: Digest of Public General Bills and Resolutions CIS Microfiche Library |
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Committee Hearings
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Not considered primary legislative history
• Provide background information and context • Useful for understanding why a particular provision did or did not become law • Search for hearings during the session the bill was enacted and also previous sessions • Search for hearings conducted by the committees the bill was assigned to • Hearings are not held on all legislation and not all hearing transcripts are published |
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Sources for Hearing Transcripts
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Electronic:
Thomas GPO Access Lexis LexisNexis Congressional Westlaw Print: Serial Set CIS Microfiche Search Library Catalog |
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Committee Prints
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The publication of studies conducted by committee staff.
• Not considered primary legislative history documents because they are not formally adopted by committees. • Valuable in understanding legislation because they can provide background and context for the decisions made by committees |
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Committee Reports
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The most important document in a legislative history because they represent the understanding of members of Congress who worked closely with the bill.
• Reports usually contain the text of the bill, changes to it made in committee, and a section by section analysis of the intent of the bill and rationale behind the committees recommendation. • Committee Reports to identify: Reports of committees of both houses to which the bill was sent. Conference committee if issued (usually issued as a House report) Value of Committee Reports: Tells you the purpose of the law. |
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Sources of Committee Reports
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Electronic:
GPO Access Thomas LN Congressional Lexis Westlaw (USCCAN) Print: USCCAN Serial Set Library Catalog CIS Microfiche |
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Congressional Debate
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Generally not as influential as committee reports.
• Statements from Bill sponsors or explanations of intent. • Floor amendments. • Debates can occur at any time but generally happen when a Bill is reported out of committee. |
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Sources of Presidential or Executive Agency Documents
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The President may add a signing statement or veto message explaining Presidential action.
• Published in the Federal Register and compiled for the year in Title 3 of the Code of Federal Regulations. • Codification of Presidential Proclamations–OCU has from ’45-’89. • Public Papers of the Presidents -Begins with the Hoover administration; published annually with a cumulative index. OCU has ’74, ’83-present. • White House Internet Site has Executive Orders and Proclamations. |
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Two most important Sources of Legislative History & Why
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–Text of Bills, because change in language may reveal legislative intent
–Committee Reports, because they represent the understanding of members of Congress who worked closely with the bill. Reports usually contain the text of the bill, changes to it made in committee, and a section by section analysis of the intent of the bill and rationale behind the committees recommendation. |
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Two main strategies for conducting legislative history research
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Find a complied legislative history.
Find a list of the documents that make up the legislative history for the law. |
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How do you discover where a particular section of a law will be codified into the USC?
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Statute at Large and USCAAN give you reference to where sections will be codified.
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Where can I find a bill number?
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Statutes at Large & USCCAN
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Rule of Administrative Agency "outcomes of agency actions"
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Rules or Regulations
Orders Decisions Advisory Opinions License |
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The "Law" of Administrative Law
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Administrative Procedure Act
Other Relevant Federal Statutes Enabling Act Internal Agency Manuals |
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Formal & Informal Rule making in Administrative Law
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Prior Notice of Rulemaking (federal register)
Interested parties can participate Final rule published in the federal register and the CFR. |
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Federal Register
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Published every week day.
Contains Rules, Proposed Rules, and Notices. Each year is a volume. Currently in volume 73. Pages run throughout the year (can exceed 80,000) Contents are required to be judicially noticed by 44 U.S.C.A. § 1507. |
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Things to remember about the federal register...
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Think of it as a daily compilation of
administrative rules, regulations and notices. Rules & Regulations will list where they will be codified in the CFR and their statutory authority CFR Parts Affected allows you to track changes to rules and regulations by month and day |
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Code of Federal Regulations
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Regulations first published in the Federal Register on a daily basis are then codified in the code of federal regulations.
The CFR is divided into 50 titles, roughly corresponding with the USCA. Each titled is divided into chapters, subchapters, parts and sections A regulation is cited by title, part, and section. Soft covered volumes are issued each year in sets on a staggered quarterly basis. Each new set contains the test of all regulations in force as of the “current through” date. Different color each year (except for title 3 which is always white) |
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Access to the CFR
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Current Year in paper
GPO Access, 1996-Present Westlaw 1984-Present Lexis 1981-Present Hein Online 1938-Present |
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Things to remember about the CFR...
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Think of the CFR as the codification of rules and regulations that first appeared in the federal register.
Remember the set will be different colors because it is issued quarterly. Each time a volume is reissued it is updated – old material is taken out and new is put in. Each regulation will tell you where it appeared in the federal register. |
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Updating Regulations
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Strategy:
Do you need the most current regulation (with all amendments) Use electronic source (lexis, westlaw, and E-CFR incorporate changes as they appear in the federal register). |
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Updating Regulations "Tracking or seeing at a particular point in time"
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Step One: start with the CFR volume closest to the date you are interested in.
Step Two: update the CFR with the List of Sections Affected Issued Monthly Cites to Fed Register page for final and proposed changes made since the last publication of the CFR. Step Three: Check the CFR Parts Affected to update to the day Found in the Federal Register For the Day (in front) Cumulating for the month (in the back) |
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If you have a statute and you want to find regulations...
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Use the annotations after the text of the statute in the USCA or the USCS for the references to the CFR
Consult the Table of Parrallel Authorities in the USCS or the CFR index to find regulations issued pursuant to your statute and that interpret your statute. |
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Administrative Law research strategy for researching by subject...
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Consult the indexes
Use the Federal Procedure Lawyer’s Edition Find an agency or statute relevant to your subject. |
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Find cases interpreting administrative regulations
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Shepard’s Citations
Keycite (more secondary sources) |
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Research stages for Criminal Law
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Know where you would look for info on each of these stages (think trial practice)
1. Information Gathering a. Public records check b. Elements of the offense 2. Client Interview a. Fee Arrangment 3. Investigation a. Discovery b. Plea negotiations 4. release a. bond 5. motions 6. trial a. Voir Dire b. Evidence c. Instructions 7. Post-Conviction a. Sentencing b. Appeal |
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What does Indian law consist of?
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What does Indian law include?
• U.S. and Oklahoma Constitution • Statutes-federal and state • Regulations-federal and state • Case law-federal and state • Tribal court rules and procedures • Treaties • Doctrines |
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9 General Tribal Powers
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– Form govt
– Tax – Domestic relations – Regulate non-members’ conduct – Regulate tribal land – Law and order – Regulate commerce/trade – Determine tribal membership - Regulate individually owned land |
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Reserved Rights Doctrine
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“Any right not expressly extinguished by a treaty is generally reserved to the tribe.”
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Indian Law Research Resources (primary/secondary)
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Primary:
Relevant Case Law Secondary: Treatises, research guides, and nutshells OCU Native American Clinic Native American Rights Fund |
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Which Federal Agencies have authority over Indians?
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Department of the Interior-federal agency responsible for Indian Affairs
Bureau of Indian Affairs or BIA under the DOI that directly oversees Indian Affairs |
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Does the US still enter into treaties with tribes?
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Nope.
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Strategies for US Immigration Law
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Develop contextual understanding
Gain Knowledge of the system and structure Research the law Secondary sources Primary sources |
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What kind of power does Congress have over tribes?
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Plenary
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System and Structure for Immigration Law
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Laws are structured to deal with different categories of
entrants Immigrants (Some are subject to numerical limitations) Non-Immigrants Non-immigrants 23 Categories (Only 4 of these categories are subject to numerical limitations) B -Temporary visitors for business or pleasure F -Students H -temporary workers P -Entertainers and Athletes TN -NAFTA Professionals Refugees/Asylum Seekers Involves many federal departments and agencies State Department Department of Homeland Security Department of Justice Department of Labor Social Security Administration Also may involve state agencies State Workforce Agency Oklahoma Employment Security Commission |
