145
LEGAL RESEARCH 1 LL.M. Legal Research
LEGAL RESEARCH 1LL.M. Legal Research
PRELIMINARIES
Legal Authority
• Legal Authority can be…•Primary—The Law Itself• Secondary—Commentary about the law
Four Main Sources of Primary Authority ConstitutionsEstablishes structure of the government and fundamental rights of citizens
StatutesEstablishes broad legislative mandates
Court Opinions (also called Cases)Interprets and/or applies constitution, statutes, and regulations
Establishes legal precedent
Administrative RegulationsFulfills the legislative mandate with specific rules and enforcement procedures
Primary Sources of American Law
United States Constitution
Executive Legislative Judicial
Regulations Statutes Court Opinions(Cases)
Executive Legislative Judicial
Regulations Statutes Court Opinions(Cases)
State Constitutions
Federal Government State Government
Civil Law Common Law
Cases • Illustrate or exemplify code.
• Not binding on third parties
• Interpret statutes
• Create binding precedent
Statutes (codes) • Very specificand detailed
• Broader and more vague
French Intellectual Property Code
Cases interpret statutes:Parody, like other comment and criticism, may claim fair use. Under the first of the four § 107 factors, “the purpose and character of the use, including whether such use is of a commercial nature ...,” the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors.
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569–70, 114 S. Ct. 1164, 1166, 127 L. Ed. 2d 500 (1994)
Cases establish precedent that is followed in later cases:A "parody has an obvious claim to transformative value," as "it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one." Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 578, 114 S. Ct. 1164, 127 L.Ed. 2d 500 (1994).
Lombardo v. Dr. Seuss Enters., L.P., 729 Fed. Appx. 131, 132, 2018 U.S. App. LEXIS 18367, *3, 2018 WL 3323476
Legal Research (ultimately) is:
locating authority that supports the theory of your case,
that is mandatory (binding on) or persuasive to the court
where your case is being heard,
and that is good law.
Why do we cite our authority?
• To establish authority for a legal claim or argument.
• To provide enough information for the judge, opposition, and public to locate and read the source.
In New York, the rule is well settled that an advertisement is merely an invitation to enter into negotiations, and is not an offer that may be turned into a contract by a person who communicates an intention to purchase the advertised item. Geismar v. Abraham & Strauss, 439 N.Y.S.2d 1005 (Dist. Ct. Suffolk Co. 1981).Geismar v. Abraham & Strauss, 439 N.Y.S.2d 1005 (Dist. Ct. Suffolk Co. 1981).
Parties
Repo
rter
R10p.94
THEBLUEBOOKA Uniform System of Citation
Court
Example of the Use of Legal Authority
The Americans with Disabilities Act uses a three-prong test to define "disability." 42 U.S.C. § 12102(2).
42 U.S.C. § 12102(2)United States
Code
Title
Title
Section
R12p.120
THEBLUEBOOKA Uniform System of Citation
Examples of the Use of Legal Authority
Title VII of the Civil Rights Act of 1964 states, it is “an unlawful employment practice for an employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”. 42 U.S.C. 2000e-2(a)(1).
In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court confirmed the language in Title VII and the EEOC guidelines related to sexual harassment.
More Examples of the Use of Legal Authority
Mandatory AuthorityWhat the law of a jurisdiction?The constitution, statutes, and regulations of that jurisdiction.
The opinions of the highest court in that jurisdiction to have ruled on the legal issue.
How do I know whether a particular opinion is binding?A court is bound by, i.e., must rule on a legal issue in the same way as, the opinions of highest court in the jurisdiction to have ruled on that issue.
State Systems
Constitution The constitution of that state.
Statutes The statutes passed by the legislature of that state.
Regulations The regulations promulgated by the agencies of that state.
Cases The opinions from the highest court in that state to rule on the issue.
The law of a jurisdiction:The Federal System
Constitution The United States Constitution
Statutes The statutes passed by the U.S. Congress
Regulations The regulations promulgated by U.S. federal agencies.
Cases The opinions from the United States Supreme Court or the highest court in that circuit to rule on the issue.
Deeper Dive: Mandatory Authority (Cases)
Mandatory (binding authority) comes from:
Highest Court?
Court of Last Resort
Court of Intermediate Appeal
Trial Court
Lower
Higher
Federal Court System
Higher
Lower
State Court Systems
Higher
Lower
New York State Court System
Higher
Lower
Same Jurisdiction?
Jurisdiction: Territory within which a court may properly exercise its power.
Binding cases (opinions) come from:
Massachusetts Supreme Judicial Court
California Supreme Court
New York Court of Appeals
New Jersey Supreme Court
California Court of Appeals
California Superior Court
New Jersey Superior Court, Appellate Division
New Jersey Superior Court
New York Supreme Court, Appellate Division
New York Supreme Court
Massachusetts Appeals Court
Massachusetts District Court
Jurisdiction and Levels of Court: The States
Federal Jurisdiction: Circuits
United States Court of Appeals for the 1st Circuit
United States Court of Appeals for the 2nd Circuit
United States Court of Appeals for the 3rd Circuit
United States Court of Appeals for the 4th Circuit
United States Supreme Court
D.Me.D.Me
D.N.H. D.Mass. D.R.I. S.D.N.Y.D.Me
W.D.N.Y. D. Conn.
D.Vt.
D.Me
D.Me
E.D.N.Y.
N.D.N.Y. W.PAD.Me
M.PA E.PA.
D.DE
D.NJ N.D.W.Va.
D.Me
S.D.W.Va. E.D.Va. W.D.Va.
W.D.N.C. M.D.N.C. E.D.N.C. D.S.C.
Everything that isn’t binding
Authority from a different jurisdiction
Authority from the same or lower level of court.
Secondary Authority (commentary about the law)*.
*Sometimes very persuasive but never mandatory (binding).
What is persuasive authority?
What is Secondary Authority?
Commentary on or analysis of the law
Can help explain complex legal concepts that would be difficult for an uninformed researcher to grasp
Introduces the vocabulary and “terms of art” of and area of law.
Collects & summarize related primary law in a single location
• Legal encyclopedia• American Law Reports (A.L.Rs )• Treatises• Legal periodicals
Types of Secondary Sources
They contain:References to cases, statutes & regulationsReferences to other useful secondary sources
Footnotes (and internal citations) are Your Friend!
You + Citations =
Legal Periodicals v. Treatises v. Legal Encyclopedia v. American Law Reports
What kind of secondary source should I use?• I need a quick summary/overview of an area of the law so I know the
basics and can spot some preliminary issues.• Encyclopedias
• I’d like to develop a deep understanding of an area of the law, identify major primary sources & understand how those sources work together.• Treatises
• I’d like to find the governing principles (with citations to primary sources) in an area of the law in my jurisdiction.• Treatises about a topic that focus only on my jurisdiction (ex.
NY Products Liability)• Encyclopedias that focus on my jurisdiction (ex. NY Jur)• American Law Reports (ALRs)
What kind of secondary source should I use?• I’d like to learn about the historical development of an area of
the law whether statutory or case‐based• Law review articles • Treatises
• I’d like to find cases that address specific factual scenarios• ALRs• Restatements• Encyclopedias
• I want to make a novel argument or research a developing area of the law• Law review articles
• I need to draft a document like a pleading, motion or transactional document:• Form books & other practice materials
Remember secondary sources Are NOT binding. Never cite a secondary source in legal work.
Cite the primary sources you found IN the secondary source.
How to find a Secondary Source:1. Use tools (research guides, library catalog,
and reference desk) to help decide: Type of secondary source
AND/ORName of specific secondary source
2. Locate the source, either in print or electronically
3. With keywords identified during research plan, use the Index and Table of Contents to guide you to the correct sections
Remember books?
Look for your broad concept of the law first
Then look for more precise facts
Note down the citation and then look it up in main volumes
Table of Contents
Table of Contents
Legal Research (ultimately) is:
Locating authority that supports the theory of your case,
that is mandatory (binding on) or persuasive to the court where your case is being heard,
And that is good law.
A legal opinion is no longer good law if it has been:overturned on appeal.overruled by later precedent.invalidated by statute or regulation
What is good law?
Overturned on Appeal
• Furthermore, in his Reply, the applicant makes no effort to show that independent grounds for jurisdiction exist. Therefore, he does not meet the requirements for permissive intervention and his motion for permissive intervention must be denied.
Freedom from Religion Found., Inc. v. Geithner, 2009 U.S. Dist. LEXIS 111776 (E.D. Cal., 2009)
• Because the district court did not apply the correct legal rule, its decision denying Rogers permissive intervention was not an appropriate exercise of discretion. We accordingly vacate that portion of the district court's order and remand.
Freedom from Religion Found., Inc. v. Geithner, 644 F. 3d 836 (9th Cir., 2011)
Overruled by later precedent
• …we cannot say that the Amendment embodies an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel.
Betts v. Brady, 316 U.S. 455 (1942)
• The Court in Betts v. Brady departed from the sound wisdom upon which the Court's holding in Powell v. Alabama rested. Florida, supported by two other States, has asked that Betts v. Brady be left intact. Twenty‐two States, as friends of the Court, argue that Bettswas "an anachronism when handed down," and that it should now be overruled. We agree.
Gideon v. Wainwright, 372 U.S. 335 (1963)
CASES
Stare DecisisDoctrine of Adherence to Precedent
• Requires Courts to Decide Cases Consistently With Their Past Decisions Involving the Same or Similar Facts and Legal Principles.
• Lower Courts are Bound by Decisions of Higher Courts in Same Jurisdiction
Stare Decisis Requires Lawyers to Locate Mandatory and/or Persuasive Precedents
How to Read a Case Citation
Foamation, Inc. v. Wedeward Enterprises, Inc., 947 F.Supp. 1287 (E.D.Wis.,1996)
Name of Case
Volume number
Reporter Name (Federal Supplement)
Page number
Court(Eastern District of
Wisconsin)
Year
How do I figure out what these abbreviations mean?
◻ Use Cardiff Index to Legal Abbreviations: http://www.legalabbrevs.cardiff.ac.uk/
◻ Come to the reference desk and ask us◻ Use Table 1 in the Blue Book
Check the jurisdiction of the court from your case citation & look up that jurisdiction in Table 1 of the Blue Book. It will tell you what reporters to use when citing cases in that jurisdiction.
US Case reporting systemCases are published in reporters.
• Reporters are organized by jurisdiction and date.• Federal, regional, and state reporters• Almost all federal reporters published by West; some state reporters still published by private entities
• Reporters publish cases in chronological order.
Level Court Official UnofficialCourt of Last Resort US Supreme Court U.S. Reports Supreme Court Reports (S. Ct.)
United States Supreme Court Reports, Lawyers Edition (L. Ed.)
Intermediate Appeal Federal Circuit Courts of Appeal
None Federal Reporter (F., F2d, F3d)
Trial Court Federal District Courts
None Federal Supplement (F.Supp., F. Supp. 2d)
Case Reporters
Court of Last Resort NY Court of Appeals New York Reports (N.Y., N.Y.2d)
North Eastern Reporter (N.E., N.E.2d)New York Supplement (N.Y.S., N.Y.S.2d)
Intermediate Appeal NY Supreme Ct., Appellate Division
Appellate Division Reports (A.D., A.D.2d)
New York Supplement(N.Y.S., N.Y.S.2d)
Trial Court NY Supreme Court Miscellaneous Reports (Misc., Misc.2d)
New York Supplement(N.Y.S., N.Y.S.2d)
Anatomy of a Court Opinion
Heading• Parallel Citation to an Official Reporter• Case Name, Court, & Date
Synopsis of the Decision
Headnotes• Paragraph(s) Summarizing Key Points
Attorneys and Judges
Opinion of the Court
HeadingIncludes important information
such as the date case was decided and the docket number of the
case (No. 96‐C‐1047)
This version of the heading essentially cites the case
according to Bluebook rules—more useful to the practitioner
Synopsis of the DecisionRecaps key facts, legal question and
holding of the case
HeadnotesWest’s claim to fame, each case
published in their reporters is read through by an attorney and assigned “topic” and “key
numbers” that correspond to the relevant substantive or procedural issue discussed within the case
AttorneysUseful for identifying relevant procedural documents on the
Docket
You will be able to tell when the official text of the opinion starts when you see the Judge’s name listed
Unpublished DecisionsDecisions designated “unpublished” are deemed by the judge authoring them to be of little precedential value• Will appear with a LEXIS or WL citation:
• 2007 U.S. App. LEXIS 201517• 2007 WL 4867239
Court rules vary as to whether “unpublished” decisions may be cited
“Unpublished decisions” may appear in the Federal Appendix (F. Appx.)
STATUTES
FEDERAL LEGISLATIVE PROCESS
Senate Committee
Senate Floor Vote Debate/Amendments
Conference Committee
Senate Vote onConference Report President
Sign or Veto
Bill is Introduced
House Committee
Hearings Held Hearings Held
House Floor Vote Debate/Amendments
House Vote onConference Report
PL 111-203
S. 3217 H.R. 4173
Statutory Publishing Process
Slip Laws(P.L. 111‐203)
Session Laws in Statutes at Large(124 Stat. 1376)
US Code(12 USC 5301)
Published by date
Published by topic
Statutory Codes • The official code of federal statutes is called the United States Code (U.S.C.)
• It is divided into 54 “titles” which are broad topics
• The official publication is updated every year.
• The official publication is republished every 6 years.
• You should always cite to the official code.
Why does the US codify its laws?
• Brings together all law on the same topic (must easier to research this way).
• Eliminates all repealed, superseded, or expired laws from the current publication of the U.S.C.
• Represents all of statutory law currently in force
United States Codeis organized in broad subject categoriescalled titles. The 54titles are in roughalphabetical order.
PL 111-203Dodd-Frank Act
USC Title 12Banks and Banking
USC Title 18Crimes and
Criminal Procedure
§111 §1079A
Statutory Publishing Process
Slip Laws(P.L. 111‐203)
Session Laws in Statutes at Large(124 Stat. 1376)
US Code(12 USC 5301)
Published by date
Published by topic
Unofficial Code Publications
• Unofficial versions of the U.S.C. and of parallel state codes are published by commercial publishers.
• They are “annotated” with references to relevant cases and secondary sources.
• Federal annotated codes are:• U.S.C.A. (United States Code Annotated)
• West’s annotated version of the U.S.C. • Good for references to cases (by Topic & Key Number)
• U.S.C.S. (United States Code Service)• Lexis’ annotated version of the U.S.C.• Good for references to regulations
• NY annotated codes are: • McKinney’s (West)• Consolidated Laws Service (CLS) (Lexis)
LEGAL CITATORS
What is a citator?
◻ A citator gathers cases, briefs and secondary sources that cite your case, statute or regulation.
◻ A citator analyzes what other cases say about the case, statute or regulation you are interested in.
◻ This will help you to determine whether your case is still “good law”.
Citators cont.
A citator can do two things:1. It can help you determine whether a
case/statute/regulation is still “good law”.a) Has a citing case over-ruled or spoken negatively of
the cited case on a relevant point of law?b) Has your statutory provision or regulation been
repealed, amended or interpreted in a different way by a case?
2. It can help you find additional cases & secondary sources that will be useful for your research question (another way to use “one good case”).
Caution!◻ When using a citator, you will find cases that
provide positive analysis of your case or negative analysis
◻ It is crucial that you read the cases that comment negatively on your case to see whether that impacts your argument
◻ You want to read the positive cases because:⬜ you want to know whether the law has evolved⬜ it is another way to find good cases
Vocabulary
◻ Cited case: the case that you’d like to use in your memo/brief/argument. You want to make sure it is still good law. In our example, the cited case is Roe v. Wade.
◻ Citing case: a case that cites the cited case, the case you’d like to use. In our example, the citing cases are the approx. 4000 cases that have cited Roe v. Wade.
◻ Shepardize: using a citator, whether the citator is on Lexis (Shepards), Westlaw (Keycite) or Bloomberg Law (BCite).
SHEPARDIZING A CASE
Lexis Advance
Shepard’s SignalsSIGNAL MEANS
Red stop sign Warning: Negative treatment is indicated.
Orange square surrounding the letter Q
Questioned: Validity questioned by citing references.
Yellow triangle Caution: Possible negative treatment.
Green diamond surrounding a plus sign
Positive treatment is indicated.
Blue circle surrounding the letter A
Citing references with analysis available.
Blue circle surrounding the letter I
Citation information available.
Step 1:
Check the case you want to use for a signal indicating whether you case has received positive or negative treatment from other cases.
The red stop sign indicates that Roehas received severe negative treatment from a citing case.
Step 2:
Identify the headnotes in your case that are relevant to your research problem.
Since we want to use Roe on the issue of right to privacy, we want to focus in on citing cases that talk about that issue.
HNs 5, 6, & 7 all look interesting .
Step 3:
Look at the list of cases that cite your case.
According to Lexis there are slightly more than 4000 cases that cite to Roe. That’s way too many to look at.
Step 4:
Filter by jurisdiction.
Click on Citing Decisions to find all cases that have cited to Roe v. Wade.
Since I need to find the cases that cite to Roe that are mandatory authority, I will filter by the 2nd Circuit and the US Supreme Court.
If I want to filter for multiple jurisdictions, I click on Select multiple.
Now I’ve got a list of cases that are mandatory authority. There are only 349 cases now.
Step 5:
Filter by legal topic (i.e. restrict citing cases to those HN topics you are interest in).
349 cases is still too many to look at. I want to focus on finding cases that deal with the issues I am interested in.
Remember that I previously identified HNs 5, 6, & 7 as being most interesting.
Scroll down to filter by headnote. If you can remember which HN you might be interested in, you can view the text here.
To view multiple headnotes, select this link.
Select the headnotes you are interested in.
I’m down to only 100 cases!
Now I’ve got a set of cases that are mandatory authority for me and expressly discuss the issues I’m interested in.
Just like Westlaw, Lexis shows the HNs from Roe that each case discusses.
Step 6:
What if I’m just interested in cases that cite my case on one HN.
If you are only interested in one HN in a case click on the Shepardize link below the HN to find cases that cite your case on this HN.
Step 7:
Look closely at the cases that speak negatively about your case.
Now that we have a nice list of cases that are mandatory authority and on our issue(s), we want to look at the type of analysis these cases give Roe, especially the cases that speak negatively about it.
Going to the analysis section, we see that Lexis does a great job of breaking down the cases by different types of analysis.
This can be very useful. For example, cases are often distinguished based on factual differences. This still counts as cautionary treatment. However, the more significant cautionary analysis are those cases that have criticized Roe. On Lexis, it is easy to find those cases.
Because I wanted to select the case that had the most negative analysis of Roe, I selected Warning.
One great feature of shepardizing on Lexis is that it lists the various different treatment that a citing case gives your case.
Lexis shows that Planned Parenthood not only overruled Roe in part but also criticized it, followed it and explained. Lexis points you to the page in the case where this treatment happens.
Step 8:
Filter citing cases by characteristics like depth of treatment, date, reported/unreported.
Lexis also has Discussion bars that track how much a citing case discusses your case. Filter by this to find cases that spend a lot of time discussing your case.
You can also filter by Publication Status to avoid non‐precedential cases.
Don’t forget to filter by date to find the most recent cases that have cited to your case.
You can also use Shepards to find other types of materials that cite your case.
In addition to cases, you can also find other materials like secondary sources, briefs etc, that cite to your case. Click on Other Citing Sources.
You can then filter by type of document.
Note that you can also filter by searching for additional terms within your results.
Or you can filter by date.
SHEPARDIZING A CASE
Westlaw
Westlaw Status Flags Indicating KeyCite History
NOTATION MEANS
Red flag The case is no longer good law for at least one of the points it contains.
Yellow flag The case has some negative history, but has not been reversed or overruled.
Blue & white striped flag Case is on appeal.
On Westlaw…Step 1: Check the case you want to use for a flag indicating whether your case has received positive or negative treatment from other cases.
Step 1:
Check the case you want to use for a flag indicating whether your case has received positive or negative treatment from other cases.
Step 1: When you first look at a case check for any flags that indicate the status of the case. Here, the yellow flag indicates negative treatment.
Westlaw tells you that there is some sort of disagreement and gives you a citation to the citing case that gives your case the most negative treatment. For a quick assessment of your case, take a look at that citing case.
Step 2:
Identify the headnotes in your case that are relevant to your research problem.
Step 2:
Identify the headnotes in your case that are relevant to your research problem.
I’d like to use Roe for the court’s reasoning on the issue of right to privacy.
HN 9 & 10 look really interesting so I note them down. These headnotes both have the topic Constitutional Law.
Step 3:
Let’s look at the cases that cite to our case ‐ are there too many to look at them all?
Step 3:
Look at the cases that cite to our case – are there too many to look at them all?
If you just want to focus on negative citing cases, click on the tab for Negative Treatment.
If you want to look at all citing cases, click on the dropdown arrow by Citing Referencesand choose Cases from the dropdown menu.
There are almost 4000 cases citing to Roe. That’s way too many to look at! How will I find the relevant ones?
Step 4:
Filter your cases by jurisdiction...
Step 4:
Filter your case by jurisdiction.
Clicking on Cases opens up other filtering options like jurisdiction, date, topic and search within results.
We need to find out what cases that are mandatory authority for us say about Roe v. Wade.
So, let’s start by looking at cases from jurisdictions that are mandatory authority for us.
Since I’m in SDNY, I select cases from the US Supreme Court and the Second Circuit.
Hit Apply Filters.
Now I only have 176 cases to look at and they are all mandatory authority!
Step 5:
Restrict citing cases to those on the HN topics you are interested in...
Step 5:
Restrict citing cases to those on the HN topics you are interested in.
To further reduce the number of cases I need to look at, I’m going to select cases by the Topics assigned to the headnotes..
Scroll through the headnotes to the find the relevant one.
I select Constitutional Law since both HN 9 & 10 are Con Law headnotes. To see cases on specific headnotes click the link Specify by the topic Constitutional Law.
Scroll down to the bottom of the headnote and then click on box.
You can select as many headnotes as you want.
Here I’ll continue to scroll down and select HN 10 as well.
Once I’ve selected by HNs I hit Apply Filters
Now, that I’ve filtered by jurisdiction and by HNs I only have 57 cases to look at. That’s a lot better than 4000 cases.
The last column shows you which HNs from Roe this case discusses.
Because we filtered citing cases by HNs # 9 & 10, all cases in this list will have either a 9 or a 10 in this column.
Step 6:
What if I’m just interested in cases that cite my case on one HN?
Step 6:
What if I’m just interested in cases that cite my case in one HN?
Clicking on this link will find all cases that cite this Roe on the issue in HN9.
Then you can still Search within results, filter by Jurisdiction etc.
Step 7:
Look closely at the cases that speak negatively about your case...
Step 7:
Look closely at the cases that speak negatively about your case.
On Westlaw, scroll down to the bottom of the left hand filtering column. You can filter to view negative cases only.
Step 8:
Filter citing cases by characteristics like depth of treatment, date, reported/unreported...
Step 8:
Filter citing cases by characteristics like depth of treatment, dates, reported/unreported.
Note that for each case, Westlaw gives some indication of what the case says about Roe v. Wade.
Westlaw assigns each case a depth of treatment bar which shows how much Stenberg v.Carhart discusses Roe v. Wade.
You can filter by Depth Of Treatment to focus on cases that really talk about your case extensively.
You can search within results to find cases that match the facts of your case.
It is important to find out what recent cases say about your case.
Filter by date to find newer cases.
Remember that in many jurisdictions unreported cases have no value as precedent. Use the Reported Status filter to find cases with precedential value.
Finding other types of materials that cite to your case...
Finding other types of materials that cite to your case.
Choose a different source type to see other documents that cite to your case.
You can filter further by source type.
Or search within documents for more specific search terms. Or by date
Or by HN topic
