Outline of Legal Research - Finding Constitutional Law | LA 102, Study notes of Legal and Social Theory

Download Outline of Legal Research - Finding Constitutional Law | LA 102 and more Study notes Legal and Social Theory in PDF only on Docsity! Chapter 16 Legal Research and Analysis Chapter Outline 1. Introduction 2. Primary and Secondary Sources 3. Researching Case Law—The Preliminary Steps 4. Secondary Sources of Case Law 5. The Case Reporting System 6. Analyzing Case Law 7. Researching Statutory Law 8. Analyzing Statutory Law 9. Researching Administrative Law 10. Finding Constitutional Law 11. Updating the Law—Learning to Use Citators Chapter Objectives After completing this chapter, you will know: • How primary and secondary sources of law differ and how to use each of these types of sources in the research process. • How court decisions are published and how to read case citations. • How to analyze case law and summarize, or brief, cases. • How federal statutes and regulations are published and the major sources of statutory and administrative law. • How to read and interpret statutory law and what kinds of resources are available for researching the legislative history of a statute. • Why finding current law is important and how to verify that your research results are up to date. Chapter 16 Legal Research and Analysis Chapter Outline I. INTRODUCTION A. For many paralegals, legal research is a fascinating part of their jobs. B. Many paralegals now use computerized legal services to assist in their legal research. II. PRIMARY AND SECONDARY SOURCES A. Primary sources of the law consist of all documents that establish the law, such as case decisions, a legislative act, administrative rule, or presidential order. B. Secondary sources consist of books and articles that summarize, systematize, compile, or otherwise interpret the law, such as legal encyclopedias, articles in a law review, and treatises. III. RESEARCHING CASE LAW―THE PRELIMINARY STEPS A. Defining the Issue i. The first step in the legal-research process is to identify the legal question, or issue, to be researched. ii. Examine the facts of the case to determine the nature of the legal issue involved. B. Determining Your Research Goals i. Cases on Point 1. A case on point is a previous case involving fact patterns and legal issues that are similar to a case that has not yet been decided by a court. 2. The ideal case on point would be a case in which all four elements of the case (parties, circumstances, legal issues, and remedies sought) are very similar; such a case is called a case “on all fours.” ii. Mandatory Authorities 1. A mandatory authority is any source of law that a court must follow when deciding a case. 2. To serve as mandatory authority, a case must be on point and decided by a superior court. 3. A lower court is bound to follow decisions set forth by a higher court in the same jurisdiction. 4. When researching, look for cases on point decided by the highest court in your jurisdiction. iii. Persuasive Authorities 1. A persuasive authority is not binding on a court. 2. Examples are as follows: a. Prior court opinions of other jurisdictions 1. Legal periodicals are a source of secondary authority. 2. Legal periodicals contain thoroughly researched information on a specific area of the law. V. THE CASE REPORTING SYSTEM A. State Court Decisions i. State Reporters 1. State court decisions are usually published in both official and unofficial reporters. 2. A few states, including New York and California, publish more than one official state reporter. 3. Citation Format a. After an appellate decision has been published, it is normally referred to by its citation. b. A reference to the other reporter or reporters in which the case can be found is known as a parallel citation. c. When performing legal research, you should include citations to cases or other legal sources in your notes. d. The most widely used book on how to cite legal sources is The Bluebook: A Uniform System of Citation. B. Federal Court Decisions i. Federal trial court opinions are published unofficially in West’s Federal Supplement (F.Supp.). ii. Opinions from the federal circuit court of appeals are published unofficially in West’s Federal Reporter (F., F2d, or F3d). C. United States Supreme Court Decisions i. The United States Reports 1. This is the official edition of all decisions of the United States Supreme Court. ii. The Supreme Court Reporter (S.Ct.) 1. The Supreme Court Reporter is an “unofficial reporter.” 2. The opinion is preceded by a brief syllabus and headnotes with key numbers. iii. The Lawyers’ Edition of the Supreme Court Reports (L.Ed. or L.Ed.2d) 1. This unofficial edition of the entire series of the Supreme Court reports contains many decisions not reported in earlier official volumes. 2. The Lawyers’ Edition offers research tools and provides summaries of the briefs presented by counsel. iv. Unofficial Loose-Leaf Services 1. These services publish Supreme Court decisions the day after a decision is announced. VI. ANALYZING CASE LAW A. The Components of a Case i. Case Title 1. The title of a case indicates the names of the parties to the lawsuit. ii. Case Citation 1. The citation shows the volume and page number where the case is located in a particular case reporter. iii. Docket Number 1. The docket number is assigned by the court clerk where the case is initially filed. iv. Dates Argued and Decided 1. The date the case was decided is an important component of a case. v. Syllabus 1. The syllabus is a brief synopsis of the facts of the case, the issues analyzed by the court, and the court’s conclusion. 2. Reading the syllabus is not a substitute for reading the case. vi. Headnotes 1. The headnotes are short paragraphs that serve to highlight and summarize specific rules of law mentioned in the case. vii. Names of Counsel 1. These are the names of the lawyers representing the parties in the case. viii. Name of Judge or Justice Authoring the Opinion Now I Have to Read Those Books? Locating research material is difficult enough, but understanding what you have located is even harder. Statutes may not be written in plain English or in a reader- friendly format. Cases may be complex, involving much dicta about issues unrelated to that which you are researching. Be patient. Learn to dissect cases and break statutes into elements or component sections. Then, apply these research materials to your facts and demonstrate an analytical answer to your client’s legal issue. 1. In some cases, instead of the name of a judge or justice, the decision will be authored per curiam, which means that the opinion is that of the whole court. ix. Opinion 1. The formal opinion of the court contains the analysis of the decision of the judge or judges who heard and decided the case. x. The Court’s Conclusion 1. In the conclusion, the judges indicate their decision on the issue or issues before the court. B. Analyzing Cases i. Look for Guideposts in the Opinions 1. It may be necessary to reread a case several times to understand what is being said. 2. Judges often indicate sections and subsections within an opinion by numbers, letters, or subtitles. ii. Distinguish the Court’s Holding from Dicta 1. Only the holding (the legal principle to be drawn from the court’s decision) is binding. 2. Other views expressed in the opinion are referred to as dicta and are not binding in subsequent cases. C. Summarizing and Briefing Cases i. Legal professionals often use an analytical technique called case briefing to reduce the content of the case to its essentials. ii. A typical case brief will contain the case citation, the key facts of the case, the case’s procedural history, a statement of the issue(s) raised in the case, the court’s holding, the court’s rationale, and the court’s judgment. VII. RESEARCHING STATUTORY LAW A. Statutory law is a primary source of American law. B. Statutes are enacted by legislative bodies. C. The Publication of Federal Statutes i. Federal statutes are published in three forms: 1. Slip laws present the text of statutes in the form of pamphlets or a single sheet. 2. Session laws are collections of statutes contained in volumes and arranged by the year or legislative session during which they were enacted. 3. Statutory material is published in compilations referred to as codes. ii. The United States Code (U.S.C.) 1. The U.S.C. is published by the U.S. government.