Chapter 5 - Legal Research (For Paralegals)

Front 1

3 things to consider when performing legal research

Back 1

1) type of system - federal, state, local

2) type of substantive law

3) type of procedural law

Front 2

Types of substantive law

Back 2

1) Constitutional law

2) Statutory Law

3) Common law (case law)

4) Executive Action

Front 3

Types of Executive Action

Back 3

1) Executive order

2) Treaty

3) Interstate compact

Front 4

Types of Procedural Law

Back 4

1) Federal Procedural Law

2) State Procedural Law

Front 5

Types of Federal Procedural Law

Back 5

1) Federal Rules of Criminal Procedure

2) Federal Rules of Civil Procedure

3) Federal Rules of Appellate Procedure

4) Federal Rules of Evidence

5) Local court rules

Front 6

How primary law recorded

Back 6

1) Constitutions

2) Statutes

3) Administrative Rules and Regulations

Front 7

How federal statutes are recorded

Back 7

Slip law

Session laws (at the close of the legislative session)

Statues at Large (complete collection) &

United States Code - only some (USCA; USCS)

Front 8

How state & local statutes are recorded

Back 8

Most state legislatures publish a codified version or get a private company to do it; also, they publish session laws

Front 9

How administrative rules and regulations are published

Back 9

Federal Register - published chronologically

Code of Federal Regulations - codified/arranged by subject matter

State admin rules usually codified; local rules are not

Front 10

How are federal case opinions first published?

Back 10

Slip opinion --> Advanced sheets (softbound loose leaf format)

Front 11

Where are Supreme Court opinions originally published?

Back 11

Two types of advance sheets:

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


2) United States Supreme Court Bulletin

Front 12

What are the three case reporters for Supreme Court opinions?

Back 12

1) United States Report (official)

2) Supreme Court Reporter (unofficial - West)

3) United States Supreme Court Reports, Lawyers' Edition (unofficial - Lawyer's Co-op)

Front 13

What are the case reporters for US Court of Appeals?

Back 13

Federal Cases (1789-1880)
Federal Reporter (1880 - 1924)
Federal Reporter, Second Series (1924-1993)
Federal Reporter, Third Series (1993-present)

All unofficial published by West

Front 14

What are the case reporters for US District Courts?

Back 14

Federal Cases (1789-1880)------ F. Cas.
Federal Reporter (1880-1924) ---- F.
Federal Reporter, Second Series (1924-1932)---- F. 2d
Federal Supplement (1932-present) ----F. Supp.

All unofficial published by West.

Front 15

How are state case laws published?

Back 15

National Reporter System

Atlantic Reporter --- A. or A.2d
North Eastern - N.E. or N.E. 2d
North Western ---- N.W. or N.W. 2d
Pacific ---- P. or P. 2d
South Eastern ---- S.E. or S.E. 2d
South Western ---- S.W. or S.W. 2d
Southern ---- So. or So. 2d

Front 16

How are federal specialty courts & case law recorded?

Back 16

They often publish their own reporters. For example, bankruptcy - Bankruptcy Reporter

Front 17

What are the sources of secondary law?

Back 17

1) Law from other jurisdictions

2) Legal Encyclopedias

3) American Law Reports

4) Restatements of Law

5) Legal Dictionaries

6) Treatises

7) Periodicals

Front 18

Majority opinion

Back 18

Opinion issued by the majority of judges of the appellate court; t he holding of this opinion may be cited as precedent if all other criteria are met (discussed supra). There is only one majority opinion in a case.

Front 19

Concurring opinion

Back 19

Opinion issued by one of more judges of the appellate court which agrees with the result reached by the majority but disagrees with the reasoning of the majority opinion. There can be more than one concurring opinion

Front 20

Dissenting opinion

Back 20

Opinion issued by one or more judges of the appellate court which disagrees with both the result and the reasoning of the majority opinion. There can be more than one dissenting opinion.

Front 21

Per curiam opinion

Back 21

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

Front 22

En banc

Back 22

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

Front 23

Memorandum Opinion

Back 23

A very brief opinion; a cursory opinion; an opinion so abbreviated that it is hardly an opinion at all.

Front 24

De novo

Back 24

anew; from the beginning; the case is tried in the appellate court as if it had not been tried previously, and witnesses are allowed to testify. The initial appeal from a small claims court to a district court or to a superior court, for instance, night be tried de novo.

Front 25

On the record

Back 25

The appellate court reviews the record for the prejudicial legal errors committed in the trial court but gives great deference to the findings of fact; factual findings generally are reversed only when they are "arbitrary or capricious" (little or not factual basis). Appellate courts never defer to trial courts concerning issues of law. Appeals from administrative decisions are typical among those appealed on the record.

Front 26

De novo on the record

Back 26

Anew; on the record; the appellate court must base its decision on the record (no new testimony can be received) but may reach an independent factual finding if the facts from the trial court are "clearly erroneous" based on the record as a whole. Appellate courts never defer to trial courts concerning issues of law.

Front 27

Two legal dictionaries

Back 27

Black's Law Dictionary

Ballantine's Law Dictionary

Front 28

Names of two legal encyclopedia

Back 28

Corpus Juris Secundum ---- C.J.S.
- heavily annotated

American Jurisprudence, Second Series ---- Am. Jur. 2d
-not nearly as annotated

Front 29

Stare decisis - definition

Back 29

process used to synthesize legal principles from all prior cases with similar facts and similar issues of law (called precedent) to arrive at a decision in a specific case.

Front 30

What makes a case a precedent

Back 30

1) its facts and legal issues were substantially similar to the facts of the case before the court (called instant case)

2) it was decided by the majority opinion of a higher court

3) The case was reported/published.

Front 31

Hierarchy of laws

Back 31

1. Constitutional law

2. Statutory law

3. Administrative rule/judicial opinion

Front 32

Statutes at Large

What is it? How to cite?

Back 32

Complete collection of federal session laws (statutory)

Stat.

Front 33

United States Code

What is it? How to cite?

Back 33

Official publication & codified/selective publication of federal statutes

U.S.C.

Front 34

What is a bill?

Back 34

A proposed legislative measure

Front 35

What are session laws?

Back 35

At the close of the legislative session, all slip laws enacted during that session are arranged in chronological order according to date of enactment and are published as session laws.

Front 36

What are the United States Code Annotated and the United States Code Service? How are they cited?

Back 36

Unofficial publications of federal statutes.

U.S.C.A. - west
U.S.C.S.- lawyer's co-op.

Front 37

What is the Federal Register? How is it cited?

Back 37

Fed. Reg.

Rules and regulations of administrative agencies that is published chronologically

Front 38

What is the Code of Federal Regulations? How is it cited?

Back 38

C.F.R.

Rules and regulations of administrative agencies that are arranged by subject matters.

Front 39

What is a court decision?

Back 39

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

Front 40

What is a court opinion?

Back 40

the court's explanatory comments, which can include the holding, the rationale for the holding and dicta.

Front 41

Elements of a Reported Case

Back 41

1) Caption
2) Date of Decision
3) Parallel Citation
4) Headnote or syllabus
5) Statement of fact
6) Opinion
7) Holding
8) Rationale
9) Dicta
10) Decision

Front 42

What is a caption?

Back 42

An element of a reported case

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

Front 43

What is a parallel citation?

Back 43

An element of a reported case

If the same case is published in another case reporter, the volume and page number of that reporter is shown.

Front 44

What is a headnote or syllabus?

Back 44

An element of a reported case

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

Front 45

What is a statement of a fact?

Back 45

An element of a reported case.

It is a brief summary of facts of case, including its procedural posture.

Front 46

What is an opinion?

Back 46

An element of a reported case.

Court's explanation; including the holding, rationale, and dicta

Front 47

What is a holding?

Back 47

Element of a reported case; part of the opinion

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

Front 48

What is a rationale?

Back 48

Element of a reported case; part of the opinion

Ratio decidendi - court's reasoning or basis for its holding and decision.

Front 49

What is a dicta?

Back 49

Element of a reported case; part of the opinion

Obiter dictum - comments of the court about minor issues or concerns other than the specific holding, rational, and decision.

Dicta is never cited as precedent

Front 50

What is a decision?

Back 50

Element of a reported case

Result of disposition of the case

Front 51

What is a slip opinion?

Back 51

A single opinion of the court issued without headnotes or indexing. (Case law).

Front 52

What are advance sheets?

Back 52

Collection of slip opinions collected in a softbound or looseleaf format. (Case law)

Front 53

What is American Law Reports?

Back 53

Leading annotated law reporter.

Pick certain cases and look at it from all sides

A.L.R.
A.L.R. 2d
A.L.R. 3d
A.L.R. 4th
A.L.R. Fed.

Front 54

What are treatises?

Back 54

Also called hornbooks; a treatise is a single-volume text written by a legal scholar in a given topic area. More explanation than a legal encyclopedia bu may be less critical than law review articles and other periodicals.

Front 55

What are two approaches for beginning legal research?

Back 55

Topic method - use a digest

Case method - Shepard's Acts and Cases by Popular Name; Most special digests contain a Table of Cases by Popular Name

Front 56

What is the TARP method?

Back 56

Thing (subject matter involved)
Action (cause of action)
Relief (sought)
Parties (the legal relationships of parties)

Headnotes in the American Digest System are catalogued under topics and assigned to key numbers

Front 57

What are Shepard's Citations?

Back 57

They list every published case in every state and federal case reporter. They show every subsequent case that has cited the case in question, as well as the treatment of the subsequent case & case histories. They also list ALR annotations, Restatements and other authorities.

Front 58

What kinds of things do Shepard's Citations publish volumes for?

Back 58

U.S. Supreme Court reporters, federal court reporters, state and regional reporters, federal and state constitutions; and some specialized ones

Front 59

What kind of digest can statutory law be found?

Back 59

In a general index - in the USC, USCS, USCA for example

Front 60

What is a looseleaf service? What are some examples?

Back 60

One or more looseleaf binders devoted to a specific topic of law. United States Law Week; Criminal Law Reporter; Family Law Reporter

Front 61

Things to keep in mind when "updating the law" for statutes

Back 61

For statutes - where it has been repealed, amended, or been stricken as unconstitutional.

Front 62

Things to keep in mind when updating the law for cases.

Back 62

For cases- reversed or modified on appeal; overruled by a subsequent or different case.

If it has been overruled or reversed, it is not good law. Cannot be cited.

Front 63

Procedure to locate cases

Back 63

Use digest to find case references

Read the case in the reporter

Shepardize to determine status

Front 64

Procedure to locate statutes and constitutions

Back 64

Use index to find statute section

Read the statutory section

Check supplements for status

Front 65

How to cite the United States Constitution

Back 65

U.S. Const. art. IV, & 2, cl. 3

U.S. Const. amend. XIV, & 1.

Front 66

Components of a U.S.C. citation

Back 66

1) number of the Code title
2) abbreviation for United States Code
3) section symbol, followed by number of the Code section
4) date of the Code volume in which the most recent version of the section can be found

Hint 66

15 U.S.C. & 7 (1988).
or

Robinson-Patiman Act & & 4-6 (1988).

Front 67

Components of a Statute at Large citation

Back 67

1) Name of Act
2) "Pub. L." and public law number
3) volume # of the Statutes at Large
4) "Stat."
5) page # where statute begins
6) year when statute was passed as law

Hint 67

Health Care Act, Pub. L. 92-117, 83 Stat. 624 (1987).

Front 68

Procedural Rules Citation

Rule 2 of the Federal Rules of Appellate Procedure

Back 68

Fed. R. App. P. 2

Front 69

Procedural Rules Citation

Rule 12 of the Federal Rules of Civil Procedure

Back 69

Fed. R. Civ. P. 12

Front 70

Procedural Rules Citation

Rule 42 of the Federal rules of Criminal Procedure

Back 70

Fed. R. Crim. P. 42

Front 71

Procedural Rules Citation

Rule 401 of the Federal Rules of Evidence

Back 71

Fed. R. Evid. 401