Primary Law (Mandatory)
Amount of weight that it must be given in the decision- making process. (Includes- listed in order of its general rank- constitutions, statutes, case law, rules of procedure, rules of evidence, adminitrative rules, court rules, executive orders, etc.)
establishes and defines the basic rights that govern society. (Consist of Constitutions, legislative enactments, common law (judicial decisions), and certain executive actions.
Constitution exists for the federal system as well as for each state system. A constitution embodies the government's authority to exist and serves as an outline for the exercise of governmental powers. At the local level, this authorizing document is called a charter. Within any legal system, constitutional rules carry the most weight and always will prevail when they conflict with other rules issued within that system.
A legislative enactment is called a statute in the federal and state level; an ordinance at the local level. Statutes carry less weight than a constitutional provision but more weight than an administrative rule or a prior judicial opinion.
Case law or judicial opinions are used to explain and to clarify existing constitional and statutory law. This is called judicial interpretation.
the 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. When a court has formulated a principal of law in a case, it then follows that principle by applying it to future cases where the facts and the legal issues are substantially the same.
within a particular jurisdiction if: (1) Its facts and legal issues were substantially similar to the facts of the case before the court (instant case). (2) It was decided by majority decision of a higher court o that jurisdiction (DCA or supreme court) and (3) The case was reported (published).
Some types of executive action taken by the President or the governor of a state have the force of law. (1) Executive Order: Issued by the President under special authority granted by Congress. (2) Treaty: Agreement made between the US and one or more of the other sovereign nations of the world and (3) Interstate Compact: Agreement made by two or more states concerning things as disposal of radioactive waste or use of a common waterway.
Types of Procedural Law
The manner in which substantive laws must be enforced.
Federal Procedural Law
Several sets of procedural rules operate within trial courts of the federal jurisdiction.
Federal Rules of Criminal Procedure
govern the way a defendant is charged, tried and sentenced for a federal crime.
Federal Rules of Civil Procedure
govern how civil actions are handled, including rules that cover complaints, summons, answer, discovery process, trial and post-trial procedures.
Federal Rules of Appellate Procedure
govern the form and procedure for appeals from the US District Court to the Court of Appeals within the federal system.
Federal Rules of Evidence
govern the types of evidence that are admissible in criminal and civil trials, and in some situations the manner in which the evidence can be presented during trial.
Local Court Rules
In addition to sets of procedure rules, as stated above, which govern all federal trial courts, each court typically adopts its own rules that govern things not covered by other procedural rules, such as management of the trial docket, how hearings are scheduled, etc.
State Procedural Rules
Many states have adopted procedural rules similar to those used at the federal level. Local court rules of state court perform the same function as local court rules of federal courts.
Separation of powers
each system (whether federal or state) is separated into a legislative, an executive branch and judicial branch.
Federal Constitution is the organization document of the federal legal system it does not undergo frequent change. It is found at the front of the United States Code.
When a statute is adopted by a legislature, it is recorded in different forms at different stages of the legislative process.
proposed by the legislature. Until it is adopted by the legislature, it is not law. Once the bill is adopted, it becomes a slip law.
At the close of each legislative session, all slip laws enacted during that session are arranged in chronological order according to date of enactment and are published. Because it may be difficult to find, statutes generally are codified. The code arranges the statutes and their amendments by topic (subject matter).
Statutes at Large (Stat.)
Federal session laws. They are codified and published in the United States Code (U.S.C.)
when an official body (Congress) authorizes and directs the collection and publication of law. [Statutes at Large and United States Code]
not specifically authorized or sanctioned by an official body but, rather, is compiled by a private publisher. Its status as an unofficial publication relates only the source of the publication ad not to its accuracy.
West Publishing and Lawyers Cooperative Publishing Company offer unofficial publications as well
United States Code Annotated (U.S.C.A.)., published by West; United States Code Service (U.S.C.S.) published by Lawyers Co-op.
Advantage of using unofficial publications
is that each offers additional resources for the researcher. i.e., explanatory notes, cases, etc.
uses the key number system. Every topic and subtopic is assigned its own key number (a number displayed on the head of the familiar West Key).
U.S.C.S. (Lawyers Co-op)
uses annotations. Annotation is an explanatory note.
Administrative Rules and Regulations
published in the Federal Register (Fed Reg.) at the time of their adoption and codified in the Code of Federal Regulations (C.F.R.).
sometimes called law reports, common law court opinions, or court decisions) represent the bulk of primary law.
issued when a federal court first decides a case.
periodically slip opinions are collected and published in a softbound or loose leaf format.
United States Supreme Court (Federal Case Reporter)
United States Reports, cited U.S.; Supreme Court Reporter, cited S. Ct.; and United States Supreme Court Reports, Lawyers' Edition, cited L. Ed. or L. Ed. 2d
is a star, asterisk, or insertion in the text of the opinion, followed by the page number.
United States Courts of Appeals (Federal Case Reporter)
Federal Reporter, Third Series, cited as F.3d; Federal Reporter, Second Series, cited as F.2d; Federal Reporter, cited as F.; and Federal Cases, cited as F. Cas.
United States District Courts (Federal Case Reporter)
Federal Supplements, cited as F. Supp; Federal Reporter, Second Series, cite as F.2d; Federal Reporter, cited as F.; and Federal cases, cited as F. Cas.
Federal Specialty Courts and Case Law (Federal Case Reporter)
Federal Rules Decisions, cited F.R.D. and Bankruptcy Reporter, cited B.R.
Uniform System of Citation (USOC)
a complete list of federal specialty courts and their case reporters can be found
National Reporter System
divided into 7 geographical regions and reports the decisions of the highest appellate court of each state within the regions. (1) Atlantic Reporter, cited as A. or A.2d; (2) North Eastern Reporter, cited as N.E. or N.E.2d; (3) North Western Reporter, cited as N.W. or N.W.2d; (4) Pacific Reporter, cited as P. or P.2d; (5) South Eastern Reporter, cited as S.E. or S.E.2d; (6) South Western Reporter, cited as S.W. or S.W.2d; and (7) Southern Reporter, cited as So. or So.2d
Consists of legal authorities which are persuasive but are not mandatory (binding) within a particular jurisdiction. Secondary law carries less weight than primary law but may be used effectively, depending upon its source, when primary law is not available or when a change in existing primary law is sought.
provide background material in unfamiliar areas to research. Corpus Juris Secundum, cited C.J.S. (west) and American Jurisprudence Second Series, cited Am. Jur. 2d
American Law Reports
selects and publishes only state appellate court cases which are significant. (A.L.R.)
Restatement of Law
American Law Institute (A.L.I.), restatements are persuasive legal authorities because they are compiled by committees of prominent legal scholars, all experts in the topic area of the restatement. A Restatement collects and distills the primary, general rules in a given legal topic area, what the rules are and sometimes what the committee believes they ought to be.
provides definitions. Black's Law Dictionary and Ballantine's Law Dictionary
a treatise is a single-volume text written by a legal scholar in a given topic.
provide persuasive authority in a given case and should not be overlooked. Law review articles are very detailed and provide critical analysis if the principles involved.
Technical Skills of Legal Research
Finding the law. (1) Topic Method [Thing, Action, Relief, Parties]; (2) Case Method; (3) Shepard's Citations; (4) Looseleaf Services; (5) Computerized Search Tools- WESTLAW and LEXIS-- Benefits and Drawbacks.
Updating the Law
for statutes updating means determining whether it has been (1) stricken as unconstitutional; (2) repealed, or (3) modified by amendment. All statutory codes are updated by statutory supplements.
Citing the Law
citation is a reference to a legal authority (i.e. constitution, statute, case, administrative rule, or other authority. Included in briefs and legal memoranda to show reader where the case or statute may be found. Use Uniform System of Citation to cite.
U.S. Constitution citation
(article) U.S. Const. art. IV, § 2, cl. 3. and (amendment) U.S. Const. amend. XIV, § 1.
Unites States Code citation
(1) number of code title; (2) abbreviation for United States Code (U.S.C.); (3) section symbol, followed by the number of the code section; and (4) date of code volume in which the most recent version of the section can be found. Ex.- 15 U.S.C. § 7 (1988).
Statutes at Large citation
(1) name of act (required); (2) abbreviation for "Public Law" and the public law number; (3) volume number; (4) abbreviation for Statute at Large; (5) page number where the statute begins; and (6) year the statute was passed as law. Ex.- Health Care Act, Pub L. 92-117, 83 Stat. 624 (1987).
Procedural Rules citation
Ex.- Fed. R. App. P. 2.- Rule 2 of the Federal Rules of Appellate Procedure
(1) case name; (2) case reporter in which the case is published (include volume number, abbreviation of case reporter, and page where case begins); (3) identity of the court issuing the opinion unless the issuing court is apparent from the reporter abbreviation; (4) year in which decision was issued; and (5) subsequent history, if any. Ex.- Avery v. Exxon Co., 397 U.S. 812 (1991). Commissioner v. J.C. Penny Co., 429 Supp. 57 (Neb. 1991), aff'd 509 F.2d 318 (8th Cir. 1992), cert. denied 417 U.S. 622 (1993).
same case published in more than one case reporter (not used when citing U.S. Supreme Court Cases-- cite only in case reporters)
may be used in legal memoranda and briefs only when referring to authorities other than constitutions, statutes, or cases.
indicates that the full citation appears later in the memorandum, brief or other work.
used to indicate that the full citation appears immediately above, meaning that no other citations intervene between the full citation and the short form id.
Law Review citation
(1) full name of author; (2) designation of type of article (required only if written by a student); (3) title of article; (4) volume number if law review; (5) abbreviated name of law review; (6) page number where article begins; and (7) year unless it appears elsewhere in the citation. Ex.- Virginia Koerselman, Comment, Workmen's Compensation, 15 Creighton L. Rev. 415 (1981).
(1) full name of author; (2) "Annotation"; (3) title of annotation (underscored or in italics); (4) volume number of A.L.R. series; (5) abbreviation for Annotated Law Reports (A.L.R.) collection; (6) page number where annotation begins; and (7) year. Ex.- John Willis, Annotation, Industrial Noise: Promoting an Unsafe Work Environment, 76 A.L.R. Fed. 489 (1986).
Legal Encyclopedia citation
(1) volume number if encyclopedia; (2) abbreviated name of encyclopedia (either Am. Jur. 2d or C.J.S.); (3) title of article (underscored or italics); (4) section symbol and section number within the articles; (5) specific page within section (no page if citing to entire section); and (6) date of publication. Ex.- 88 C.J.S. Trial V 107 (1980) and -- 46 Am. Jur. 2d Husband and Wife § 118, 121 (1986)
Legal Dictionary citation
(1) full name of dictionary; (2) page where term is defined, and; (3) edition of dictionary. Ex.- Black's Law Dictionary 411 (7th ed. 1992).
example- See generally, See, e.g., Cf., Contra
Sequence of Citation Within Each Signal
(1) U.S. Constitutional provisions and amendments; (2) Federal statutes (most recent first); (3) Federal procedural rules; (4) Federal rules; (5) State cases; (6) Federal administrative rules and regulations; (7) Law review articles; (8) Annotations; (9) Legal encyclopedia; and (10) Law dictionaries.
The Substantive Skills of Legal Research
(1) Obtain as much background information as needed; (2) Identify the relevant facts; (3) Frame the legal issued involved; (4) Find legal authorities; (5) Update the law through statutory supplements and Shepard's citators; (6) Brief statutes and case that are on point; (7) Analogize the facts of the case with the statues and cases found; and (8) Document the results in a memorandum to the supervising attorney.
Researcher evaluates case law by:
comparing the facts and issues of the case with the client's facts for similarities and differenced.
Case Brief components
(1) case name and citation; (2) identify the court; (3) judicial history; (4) Facts; (5) Issue [find the holding because it often suggest the issue]; (6) Decision; (7) Holding- rule of law and (8) Rationale- the court's reasoning to support its holding in the case.
(1) heading; (2) date; (3) name of the attorney for whom the memorandum is written; (4) name of writer; (5) client name or case name; (6) statement of facts; (7) question presented; (8) brief answer or brief summary of the conclusion; (9) discussion; and (10) conclusion.