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Legal Research Review. Legal Research March 2005 Leah Sandwell-Weiss Reference Librarian. Primary Authority. “The Law” generated by the three branches of government Cases Statutes Administrative Regulations Accessing primary authorities is the ultimate goal of nearly all legal research.

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Legal Research Review

Legal Research

March 2005

Leah Sandwell-Weiss

Reference Librarian

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Primary Authority

  • “The Law” generated by the three branches of government

    • Cases

    • Statutes

    • Administrative Regulations

  • Accessing primary authorities is the ultimate goal of nearly all legal research

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Secondary Authority

  • NOT “the law”

  • Provides citations to primary authority

  • Provides background information that can aid in understanding primary authority (“the law”)

  • May present novel theories that later find their way into primary authority

  • Often provides the best starting point for research, especially when legal issues are unclear

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Mandatory Authority

  • “The law” of your jurisdiction

    • Your state’s highest court

    • Your state’s statutes

    • Your state’s regulations

    • Your federal district court

    • Your federal court of appeals

    • The United States Supreme Court

  • Have to follow

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Persuasive Authority

  • “The law” from somewhere else

    • Another state’s supreme court

    • Another federal court of appeals

    • Some secondary sources

  • Don’t “have to” follow, but use to persuade

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Secondary Sources

  • Provide commentary on law & references to primary law & other secondary sources

  • Persuasive Authority

    • Law Reviews

    • Treatises (but not hornbooks or nutshells)

    • Restatements

  • Not Persuasive Authority

    • Legal Encyclopedias

    • American Law Reports (ALRs)

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Organization of Federal & State Courts

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Reading a Case

  • Parallel Citation (editorial enhancement)

  • Title (editorial enhancement)

  • Docket # (editorial enhancement)

  • Case Summary (editorial enhancement)

  • Headnotes (editorial enhancement)

  • Opinion (official)

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Case Reporters

  • Organized by jurisdiction

  • Cases in chronological order

  • Arizona Cases

    • Arizona Supreme Court =

      • Arizona Reports, P., P.2d

    • Arizona Court of Appeals =

      • Arizona Appellate Reports (1965 – 1976), Arizona Reports, P., P.2d

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Federal Courts & Reporters

Supreme Court =

  • U.S. Reports (U.S.) (official)

  • Supreme Court Reporter (S. Ct.)

  • U.S. Supreme Court Reports, Lawyer’s Edition (L. Ed., L. Ed. 2d)

    Courts of Appeals =

  • Federal Reporter (F., F.2d, F.3d)

    District Courts =

  • Federal Supplement (F. Supp., F. Supp. 2d)

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Finding cases

  • Annotated Codes

  • Secondary Sources

  • Digest Topic Name and Key Number (subject index to all case law)

  • If have case name but no citation: Digest Table of Cases

  • Database search on Westlaw or Lexis (pick the most narrow database)

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  • All cases on a given legal point collected under the same digest topic & key number

  • Digest topics & key numbers consistent through all West digests

  • Select the appropriate Digest

    • Most jurisdictional

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Using Digests to Find Cases

  • From a case on point

    • Use the headnotes to identify relevant topics & key numbers

  • From the Descriptive Word Index

    • Look up relevant subjects

    • Check for new entries in pocket part

  • From a topic entry

    • Check out the outline of key numbers

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Using Digests, cont’d

  • Find topic & key number in right volume

  • Check court & dates to target appropriate cases to read

  • Read summaries

  • Update with pocket parts or interim pamphlets

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Finding Cases Online

  • Use Annotated Codes online

  • Find known case online & use headnotes (Westlaw) or core terms/core concepts (Lexis)

  • If already have a topic & key number, use them to find more cases on Westlaw

  • Use Shepard’s/KeyCite

  • Terms & Connectors/Natural Language Searches

    • Pay attention to database selection

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Case Law Tips

  • Look for mandatory authority first

    • Note: case law always primary authority

  • If there is insufficient mandatory authority, look for primary persuasive

  • Read opinions in full and cite only to the opinion itself

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Statutory Publication

  • Slip laws

    • Separately issued versions of each law as passed

  • Session laws

    • Chronological arrangement of statutes

      • Law as passed by legislature - No amendments

  • Codes

    • Organized by subject, often called “Titles”

    • “Current” version of law, with amendments

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Annotated Codes

  • Can be official or unofficial

  • Contain references to:

    • Cases (Notes of Decisions)

    • Administrative code sections (CFRs)

    • Legal encyclopedias

    • Legislative history

    • Law reviews & Treatises

    • West Codes – Headnotes & Key Numbers

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Finding Statutes

  • In Print

    • Subject indexes

    • Secondary Sources

    • References in cases

    • Popular Names Table to find specific act

  • Online

    • References in cases

    • Shepard’s/KeyCite

    • Terms & Connectors/Natural Language Searches

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Updating Primary Law

  • Pocket Parts in Print

  • Citators (Shepard’s/KeyCite) Online

    • Validating - is it still “good law?”

      • History of the case – Was your case overruled/revised on appeal?

      • Citing References – Was your case been overruled/ invalidated entirely? Was it chipped away at such that the validity is questionable? Has your specific issue been affected by negative treatment?

    • Expanding Research

      • Citing References & secondary sources on the same or similar points of law

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Limiting Citing References

  • Headnote number (specific Topic/Issue)

  • Jurisdiction

  • Type of document (case law, admin law, secondary sources)

  • Specific additional terms (Locate on Westlaw and Focus on Lexis)

  • Depth of treatment (Westlaw)

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Completing Your Research

  • Did you address the question asked?

  • Did you research the correct jurisdiction?

  • Do you understand the area of law you are researching?

  • Did you find enough applicable primary, mandatory authority to answer the question?

    • If not, did you find relevant primary persuasive authority?

  • Do you have the current language of all statutes?

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Completing Research, cont’d

  • Did you use several methods to locate relevant case law?

  • Did you validate statutes & cases using KeyCite/ Shepards?

  • Did you use KeyCite/Shepards to expand your research?

  • Did you check a secondary source near the end of your research to see if you have found what there is to find?

  • Do you keep finding the same materials everywhere you look?

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