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Legal Research 1 TM LA Version PDF
Legal Research 1 TM LA Version PDF
RESEARCH 1
LL.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
Constitutions
Establishes structure of the government and fundamental rights of citizens
Statutes
Establishes broad legislative mandates
Court Opinions (also called Cases)
Interprets and/or applies constitution, statutes, and regulations
Establishes legal precedent
Administrative Regulations
Fulfills the legislative mandate with specific rules and enforcement procedures
Primary Sources of American Law
United States Constitution
State Constitutions
Executive Legislative Judicial Executive Legislative Judicial
Regulations Statutes Court Opinions Regulations Statutes Court Opinions
(Cases) (Cases)
Federal Government State Government
Civil Law Common Law
Cases • Illustrate or • Interpret
exemplify code. statutes
• Not binding on • Create binding
third parties precedent
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569–70, 114 S. Ct. 1164, 1166, 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,
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.
Example of the Use of Legal Authority
Reporter
Parties
Court
R10
p.94
THE
BLUEBOOK
A Uniform System of Citation
Examples of the Use of Legal Authority
42 U.S.C. § 12102(2)
United States
Section
Title
Code
R12
p.120
THE
BLUEBOOK
A Uniform System of Citation
More Examples of the Use of Legal Authority
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.
The law of a jurisdiction:
State Systems The Federal System
Mandatory (binding authority) comes from:
Highest Court?
Higher
Court of Last Resort
Court of Intermediate Appeal
Trial Court
Lower
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:
Jurisdiction and Levels of Court: The States
New York New Jersey
Massachusetts California Supreme Superior
Appeals Court Court of Court, Court,
Appeals Appellate Appellate
Division Division
D D DD D
. . . . .
D.Me. D.N.H. D.Mass.
M
D.R.I. S.D.N.Y. W.D.N.Y. D. Conn
M
. N.D.N.Y. W.PA M.PA E.PA.
MM
D.NJ N.D.W.Va. S.D.W.Va. E.D.Va.
M
W.D.Va.
e e ee e
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 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
Types of Secondary Sources
• Legal encyclopedia
• American Law Reports (A.L.Rs )
• Treatises
• Legal periodicals
Footnotes (and internal citations)
are Your Friend!
You + Citations =
They contain:
References to cases, statutes & regulations
References to other useful secondary sources
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/OR
Name 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
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.
What 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
Overturned on Appeal
• Furthermore, in his Reply, the • Because the district court did not
applicant makes no effort to show apply the correct legal rule, its
that independent grounds for decision denying Rogers permissive
jurisdiction exist. Therefore, he does intervention was not an appropriate
not meet the requirements for exercise of discretion. We
permissive intervention and his accordingly vacate that portion of
motion for permissive intervention the district court's order and
must be denied. remand.
Freedom from Religion Found., Inc. v. Freedom from Religion Found., Inc. v.
Geithner, 2009 U.S. Dist. LEXIS Geithner, 644 F. 3d 836 (9th Cir., 2011)
111776 (E.D. Cal., 2009)
Overruled by later precedent
• …we cannot say that the Amendment • The Court in Betts v. Brady departed from
embodies an inexorable command the sound wisdom upon which the Court's
that no trial for any offense, or in any holding in Powell v. Alabama rested.
court, can be fairly conducted and Florida, supported by two other States,
justice accorded a defendant who is has asked that Betts v. Brady be left intact.
not represented by counsel. Twenty‐two States, as friends of the Court,
argue that Betts was "an anachronism
when handed down," and that it should
now be overruled. We agree.
Betts v. Brady, 316 U.S. 455 (1942) Gideon v. Wainwright, 372 U.S. 335 (1963)
CASES
Stare Decisis
Doctrine 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
Name of Case
Foamation, Inc. v. Wedeward Enterprises, Inc.,
947 F.Supp. 1287 (E.D.Wis.,1996)
Court
Reporter Name
(Eastern District of
(Federal Supplement)
Wisconsin)
How do I figure out what these
abbreviations mean?
Court of Last Resort NY Court of Appeals New York Reports North Eastern Reporter (N.E., N.E.2d)
(N.Y., N.Y.2d) New York Supplement (N.Y.S., N.Y.S.2d)
Intermediate Appeal NY Supreme Ct., Appellate Division New York Supplement
Appellate Division Reports (A.D., A.D.2d) (N.Y.S., N.Y.S.2d)
Trial Court NY Supreme Court Miscellaneous Reports New York Supplement
(Misc., Misc.2d) (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
Headnotes
This version of the heading
Synopsis of the Decision
Heading
West’s claim to fame, each case
Recaps key facts, legal question and
Includes important information
essentially cites the case
published in their reporters is read
such as the date case was decided
according to Bluebook rules—
holding of the case
through by an attorney and
more useful to the practitioner
and the docket number of the
assigned “topic” and “key
case (No. 96‐C‐1047)
numbers” that correspond to the
relevant substantive or procedural
issue discussed within the case
Attorneys
Useful 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 Decisions
Decisions 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
S. 3217 Bill is Introduced H.R. 4173
Senate Committee House Committee
Conference Committee
PL 111-203
Statutory Publishing Process
Published by Published by
date topic
Session Laws in
Slip Laws US Code
Statutes at Large
(P.L. 111‐203) (12 USC 5301)
(124 Stat. 1376)
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 Code
is organized in broad
subject categories
called titles. The 54
titles are in rough
alphabetical order.
PL 111-203
Dodd-Frank Act
§111 §1079A
Session Laws in
Slip Laws US Code
Statutes at Large
(P.L. 111‐203) (12 USC 5301)
(124 Stat. 1376)
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?
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 Roe
has 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 One great feature of shepardizing on Lexis is that it lists the various
select the case that different treatment that a citing case gives your case.
had the most
negative analysis of
Roe, I selected
Warning.
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.
You can also filter by Publication Status to
avoid non‐precedential cases.
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.
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:
Step 1:
Check the case you want to use for a flag
Check the case you want to use for a flag indicating whether
indicating whether your case has received
your case has received positive or negative treatment from
other cases.
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: Step 2:
Identify the headnotes in your case
Identify the headnotes in your case
that are relevant to your research
that are relevant to your research
problem.
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:
Step 3:
Let’s look at the cases that cite to
Look at the cases that cite to our
case –
our case ‐ are there too many to look
are there too many to
at them all?
look at them all?
If you want to look at all citing
If you just want to
cases, click on the dropdown
focus on negative
arrow by Citing References
citing cases, click on
and choose Cases from the
the tab for Negative
dropdown menu.
Treatment.
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:
Step 4:
Filter your case by jurisdiction.
Filter your cases 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:
Step 5:
Restrict citing cases to those on the
Restrict citing cases to those on the
HN topics you are interested in...
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 I select Constitutional Law since
Topics assigned to the both HN 9 & 10 are Con Law
headnotes.. headnotes. To see cases on specific
headnotes click the link Specify by
the topic Constitutional Law.
Scroll through the headnotes
to the find the relevant one.
Scroll down to the bottom of the
headnote and then click on box.
You can select as many headnotes as
Once I’ve selected by you want.
HNs I hit Apply Filters
Here I’ll continue to scroll down and
select HN 10 as well.
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:
Step 6:
What if I’m just interested in
What if I’m just interested in cases
cases that cite my case on
that cite my case in one HN?
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:
Step 7:
Look closely at the cases that
Look closely at the cases that
speak negatively about your
speak negatively about your case.
case...
On Westlaw, scroll down to the
bottom of the left hand filtering
column. You can filter to view
negative cases only.
Step 8:
Step 8:
Filter citing cases by characteristics like
Filter citing cases by characteristics
depth of treatment, date,
like depth of treatment, dates,
reported/unreported...
reported/unreported.
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.
Note that for each case, Westlaw gives some
indication of what the case says about Roe v.
Wade.
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
Finding other types of materials that
that cite to your case.
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