Legal re search review

LEGAL RESEARCH REVIEWADVANCED LEGAL RESEARCHPROFESSOR LISA SMITH-BUTLER

Fall 2014

Introduction

Beginning your legal career means that you will need to know how to cost effectively perform legal research and other types of research. You may also need to know how to do medical, business, or scientific research.

When researching the law, you will need to locate both primary and secondary sources of law.

Primary sources of law constitute the law itself and can be used as a basis for legal decisions.

You will also encounter secondary sources of law which help explain and locate the law but do not constitute the law.

Introduction

Today we will review: research strategies; primary sources of authority; case finding tools; citators; & secondary sources.

Research Strategies

Before beginning any research project, ask yourself: is a letter, memo, or brief required? what are the cost and time restraints? what is the issue in dispute? what research terms should be used? is state or federal law involved? is statutory or common law involved? are cases, regulations or statutes needed? did you update your research?

Research Strategies Worksheet

Charleston School of Law, Sol Blatt Jr. Law Library

Client & Client Case Number: _______________________

Supervising Attorney: _______________________

Date Project Due: _______________________

Cost Constraints: __________ Time Constraints: _______

Westlaw/Lexis/LoisLaw/Casemaker/Fastcase Permitted:_______________________________

End Product: ( ) Opinion Letter ( ) Memo ( ) Brief ( ) Other

Background facts:

Issues to be researched:

Research terms to be used:

Type of information required:

Federal or state or a combination

Cases, statutes or regulations or a combination

Secondary Sources

Non-legal Sources

Primary sources utilized:

Secondary sources utilized:

Updated via:

Prepared by Lisa Smith-Butler, Updated 7/11/13

Primary Sources of American Law There are three primary sources of

American law. They are:

cases statutes regulations.

Cases

Cases are decided by the courts, the judicial branch of the government.

Courts construe the meaning of the common law and interpret the disputed meanings of statutory and/or regulatory provisions.

The doctrine of Stare Decisis is vital to American law.

In the U.S., a dual system of state and federal courts exists.

All of the above impact the publication of and location of American case law by legal researchers.

Hierarchy of Federal Courts

United States Supreme Court

United States Circuit Courts of Appeal

United States District Courts

District Courts

Trial courts are known as district courts. These courts provide the entry level into the federal court system.

These courts are located at the bottom of the pyramid. There is at least one district court in every state.

Here cases are tried with witnesses. Physical evidence is presented. Pleadings, answers, and motions are filed.

The U.S. District Court for South Carolina is headquartered in Columbia with branch offices in Charleston, Florence and Greenville.

Circuit Court of Appeals

In the middle of the pyramid are located the 11 United States Circuit Court of Appeals and the Federal Circuit.

Circuit Courts decide issues of law rather than issues of fact.

South Carolina is in the 4th Circuit Court of Appeals. The 4th Circuit Court of Appeals is in Richmond, VA.

United States Supreme Court The final court within the federal system

is the United States Supreme Court. The U.S. Supreme Court has both

appellate and original jurisdiction. The original jurisdiction is extremely

limited.

Federal Courts

Where can you find decisions from federal district courts? Print decisions are published in the F. SUPP.

& F. SUPP. 2D; On the Internet, some of these decisions

can be found at the U.S. Courts site at http://www.uscourts.gov

Federal Courts

Decisions from U.S. Circuit Courts of Appeals are published in the following: Print decisions are published in the FEDERAL

REPORTER (F., F.2D, F.3D) series. Check U.S. Courts site at

http://www.uscourts.gov/courtlinks/ for links to official web sites published by the Courts. Decisions are usually available at these sites.

Federal Courts

U.S. Supreme Court decisions are published in print in the following formats: initially as a single decision in a format

known as a slip opinion; in paperback books known as Advance

Sheets; and in the bound reporters known as the

UNITED STATES REPORTS, U.S.

U.S. Supreme Court Decisions: Print U.S. Supreme Court decisions are

published in both bound and loose leaf services. The publications are: SUPREME COURT REPORTER, S.CT. UNITED STATES REPORTS, U.S. (OFFICIAL) UNITED STATES REPORTS, LAWYER’S

EDITION, L.ED. UNITED STATES LAW WEEK, U.S.L.W. (Loose

Leaf)

Federal Courts

Several Internet sites also provide access to U.S. Supreme Court decisions. These decisions can be found at: U.S. Supreme Court official site at

http://www.supremecourtus.gov/ Cornell’s Legal Information Institute at

http://www.law.cornell.edu Findlaw at http://www.findlaw.com/ Oyez, Oyez, Oyez at

http://www.oyez.org/oyez/frontpage/

South Carolina State Courts

Decisions from the South Carolina Supreme Court and the South Carolina Court of Appeals are initially published in the print source, SOUTH CAROLINA REPORTS.

These decisions are later published in the regional reporter known as the SOUTH EASTERN REPORTER (S.E., S.E. 2d) series.

South Carolina State Courts

On the Internet, South Carolina’s Supreme and appellate court decisions can be located at http://www.judicial.state.sc.us/ .

State Courts

Decisions from various states’ Supreme Courts can also be found in various print and electronic sources.

Print decisions are located in appropriate state reporters, and they are also available in regional reporters. There are seven regional reporters: ATLANTIC REPORTER (A., A.2D, A.3D) NORTH EASTERN REPORTER (N.E., N.E.2D) NORTH WESTERN REPORTER (N.W., N.W.2D) PACIFIC REPORTER (P., P.2D, P. 3D) SOUTH EASTERN REPORTER (S.E., S.E.2D) SOUTH WESTERN REPORTER (S.W., S.W. 2D, S.W.3D) SOUTHERN REPORTER (S., S.2D, S.3D)

State Courts

State court decisions are also available on the low cost Internet legal subscription services LoisLaw and Versus Law.

State court decisions can also be found on Findlaw at http://www.findlaw.com or Washlaw at http://www.washlaw.edu/.

How can I locate cases?

As demonstrated, cases can be located in a variety of sources, both print and electronic. Now that you know where cases are published, how do you find cases? You can locate a case by: citation; party name; or subject/keyword searching.

Citation

If you have a citation to a case (456 U.S. 1), you can: pull the book off of the shelf; or use the search tool bar on Bloomberg Law,

Lexis Advance and WestlawNext.

Party Name

If you have a party name (Miranda v. Arizona) but lack the citation, you can: use the Table of Cases in the appropriate

Digest volume to obtain a citation; Key in the party names on the search bar in

both WestlawNext, Lexis Advance, Bloomberg Law, Casemaker, and LoisLaw.

Locating cases by subject or keyword

If you have neither a party name nor a citation, you will need to locate your case by subject. To assist you with subject searching, several print and electronic case finding tools exist. These include: American Law Reports Digests Shepard’s/KeyCite Legal Periodicals, including Indexes Legal Encyclopedias Words & Phrases Loose Leafs

Case Finding Tools: AMERICAN LAW REPORTS (ALR)

The AMERICAN LAW REPORT series (A.L.R., A.L.R.2d, A.L.R.3d, A.L.R.4th, A.L.R.5th, A.L.R. 6th, A.L.R. Fed): selects unique cases for publication; thus coverage is

selective rather than comprehensive; often includes an article or an annotation written by an

expert in the field; provides citations to similar cases throughout the U.S.; can be accessed with the A.L.R. DIGEST, A.L.R. INDEX, or

A.L.R. QUICK INDEX; can be updated with the A.L.R. BLUE BOOK OF

SUPPLEMENTAL DECISIONS or SHEPARD’S A.L.R. CITATIONS; and is available in print and exclusively on WestlawNext.

Case Finding Tools: Digests

Digests are published for state, regional, federal and the national reporter series.

There are several publishers who publish digests; however, West Group Publishers is the primary digest publisher.

West’s digests are unique in that they use a topic and key number system that allow a researcher to move from a regional to a federal digest, using the same topic and key number.

Once a researcher has his/her topic and key number in a West digest, he or she can move around in any West state, regional, federal, national, or specialty digest with that same topic and key number.

What is a digest?

Digests are essentially a detailed index that provide you with: a brief abstract of a case; the case name; the case citation; and the applicable digest topics and key

numbers.

How do you use a digest?

Essentially there are four ways to access a print digest: use the Table of Cases volume which

contains an alphabetical arrangement of party names and provides citations;

use the Descriptive Word Index volume which works exactly like any other index encountered;

use the Words and Phrases volume for terms of legal significance; or

use the topical outline at the beginning of a topic.

Digests

West publishes electronic digests on its digital subscription, WestlawNext.

Citators

Citators serve two purposes: they can be used to locate similar cases on

a subject, and they allow researchers to ascertain the

validity of their research by updating it. There are two citator services:

Shepard’s and KeyCite.

Shepard’s

Shepard’s began as a print product in 1873 and was developed by Frank Shepard. It is now published by Lexis Publishing and is available exclusively on Lexis-Nexis. It is available in the following: print or electronic.

Shepard’s

Over the years as Shepard’s inundated the legal profession, law students became so familiar with the Shepard’s updating process that it became known as shepardizing.

Shepard’s provides the researcher with the following information about a case: parallel citations; subsequent history citations; treatment of the case by later cases; and citations to secondary sources.

KeyCite

KeyCite was developed by West Publishing in 1996 to compete with Shepard’s.

KeyCite is available in an electronic format but it is not available in print.

KeyCite

KeyCite provides you with: the direct appellate history; the negative indirect history; cites to all cases available on Westlaw; and cites to all cases that cite a federal statute

or regulation.

Legal Periodicals

Legal periodicals can also provide both the novice and experienced researcher with information about a subject as well as cites to cases, statutes and regulations concerned with the issue.

To obtain citations to periodicals, you can use either print or electronic indexes.

Print indexes for legal periodicals are: CURRENT LAW INDEX which provides coverage from 1980 to the

present; and the INDEX TO LEGAL PERIODICALS which provides coverage from 1908

to the present. To obtain citations to legal periodicals electronically, in addition to

using WestlawNext and Lexis Advance, you can use: INDEX TO LEGAL PERIODICALS; RETROSPECTIVE INDEX TO LEGAL PERIODICALS; OR LEGALTRAC.

Scroll down the screen…

Legal Encyclopedias

There are two national legal encyclopedias that can provide researchers with background information as well as citations to cases. These are: AMERICAN JURISPRUDENCE (AM. JUR.) CORPUS JURIS SECONDUM (C.J.S.)

Words & Phrases

WORDS AND PHRASES is a multi volume series published by West. It functions as a case finding tool.

It contains words of legal significance, arranged in alphabetical order.

Under a particular phrase (i.e. res ipsa for example) are citations to cases that contain an extensive discussion of the phrase.

Loose Leaf Services

Loose Leaf services are usually multi volume series that devote themselves exclusively to a specific subject area that is heavily regulated, i.e., banking, securities or tax.

While every loose leaf varies, typically a loose leaf series will contain statutes, applicable regulations, citations to cases on the topic, and editorial analysis. Thus the loose leaf provides subject specialization and can also be used as a case finding tool since it contains citations to cases.

In the past, loose leafs were published only in the print format. Today, loose leaf services are available in print and electronic formats.

Both CCH and BNA are some of the largest and best known loose leaf publishers.

Legislation

In addition to cases, statutes are also primary sources of law.

Statutes are enacted by legislatures to govern behavior.

Statutes are published in print in the following formats: initially a law is published as a slip law; next a session’s laws are bound and published in a

chronological arrangement of the law enacted by the particular legislative session; and

finally laws are published in a code which is a subject arrangement of the laws currently in force.

Legislation: Session Laws

When a legislature passes laws in a particular session (i.e. 2004-2006), the laws passed in the session are known as session laws. Session laws permit historical research.

Session laws are the chronological arrangement of the law. If you want to read the 1933 Securities Exchange Act as it was enacted in 1933, you would need to consult the federal session laws for 1933.

Federal session laws are published in print and electronic formats in the following sources: STATUTES AT LARGE (STAT.) (Official) UNITED STATES CODE CONGRESSIONAL ADMINISTRATIVE NEWS

(U.S.C.C.A.N.) They are also published electronically on Lexis Advance and

WestlawNext. To access federal session laws, you must consult the index of the

year of the session as indexes for session laws do not cumulate.

Congress.gov*

Congress.gov provides access to: pending bills; enacted legislation; CONGRESSIONAL RECORD; congressional committees; and congressional members.

* Congress.gov was designed to replace Thomas.

Legislation

To locate the laws that are currently in force, you must consult a code. A code is a subject arrangement of laws presently in effect.

Federal laws currently in force are published in the following print formats: UNITED STATES CODE (U.S.C.) (Official) UNITED STATES CODE ANNOTATED

(U.S.C.A.) UNITED STATES CODE SERVICE (U.S.C.S.)

Legislation: U.S.C.

You can access the U.S.C. via: a descriptive word (subject) index; citation (i.e. 17 U.S.C. §701); or Popular Names Table.

The U.S.C. can also be accessed via the Internet at Cornell’s Legal Information Institute or at FDsys.

Legislation: U.S.C.A.

West publishes a commercial publication of the federal code, known as the UNITED STATES CODE ANNOTATED or the U.S.C.A.

It is available in print and via WestlawNext.

U.S.C.A. on WestlawNext

Browse the Table of Contents Search via

Keyword USCA Index Popular Name Table

Browsing the Table of Contents

Searching via USCA Index

Popular Names Table: Patient Protection & Affordable Care Act

Searching by Keyword

Lexis & the U.S.C.S.

Lexis publishes both a print and electronic version of the federal code.

It is known as the UNITED STATES CODE SERVICE (U.S.C.S.) and is available in print and electronically, exclusively on Lexis Advance.

Search Lexis Advance via Citation Keyword

Citation

Keyword Searching

Bloomberg Law

Search via Citation Browsing the Table of Contents Keyword

Citation

Browsing the Table of Contents

Searching via Keyword

South Carolina Legislation

South Carolina’s legislation also needs to be reviewed and understood from a perspective of session laws (ACTS AND JOINT RESOLUTIONS OF THE STATE OF SOUTH CAROLINA) and laws that are currently in force, i.e. a code.

South Carolina’s current laws are published in the CODE OF LAW OF SOUTH CAROLINA.

South Carolina Legislation

The laws enacted during a particular legislative session of the South Carolina legislature are published in the ACTS AND JOINT RESOLUTIONS OF SOUTH CAROLINA.

The session laws can be searched via a non-cumulating index by session. Citation, popular name and subject searching are available.

This information is also available from 1975 onwards on the South Carolina Legislature’s site at http://www.scstatehouse.gov/

South Carolina Legislation

While the ACTS AND JOINT RESOLUTIONS provide a historical view of the laws of South Carolina, the CODE OF LAWS OF SOUTH CAROLINA provides access to the laws of South Carolina that are currently in force.

Arranged by subject, the Code has 62 chapters/titles that can be searched via citation, a keyword/general index, and Popular Name.

Executive

A third and final source of U.S. legal authority is promulgated under the auspices of the Executive Branch. Regulations are made by administrative agencies, operating under a delegation of authority from the legislative branch.

Administrative agencies are frequently described as having quasi-judicial and quasi-legislative functions. They publish rulings and issue orders.

Regulations can be described as filling in the blanks left by statutes.

Federal Regulations

Federal regulations are published in print and electronic formats.

Federal regulations are first published in the FEDERAL REGISTER (FR) which is published every business day. Like the STATUTES AT LARGE, the FEDERAL REGISTER is a chronological arrangement of federal regulations.

The Federal Register contains: proposed agency rules; final agency rules; & notices of agency meetings.

Federal Regulations

Currently the present source of the FEDERAL REGISTER is available at depository libraries in print format. It is also available at the FDsys, i.e. government, Internet site at http://www.gpo.gov/fdsys/ .

Locating Federal Regulations?

To locate final regulations that are presently in force, you will need to consult the CODE OF FEDERAL REGULATIONS (CFR) which is published annually.

The CFR is a subject arrangement of federal regulations and is analogous to the UNITED STATES CODE (U.S.C.)

The CFR contains both final regulations and Executive Orders of the President.

In addition to the print source, the CFR is available at the FDsys Internet site at http://www.gpo.gov/fdsys/ .

Federal Register

Code of Federal Regulations

Search Both with an Advanced or Citation Search

Citation

Advance Search

South Carolina Regulations

South Carolina’s regulations are published in the print source, CODE OF LAW OF SOUTH CAROLINA: REGULATIONS.

This source is available on WestlawNext, Lexis Advance, and Bloomberg Law.

It is also available on the Internet at http://www.scstatehouse.gov/coderegs/statmast.php .

Executive Orders & Proclamations Presidential Executive Orders and

Proclamations can be located at the official White House site at http://www.whitehouse.gov/ .

South Carolina’s Governor’s Executive Orders can be located on the official South Carolina Governor’s web page at http://www.governor.sc.gov/

Secondary Sources

While secondary sources do not constitute the law, they can help you locate primary sources on point. Secondary sources include: American Law Reports Legal Encyclopedias Legal Periodicals Loose Leafs Restatements of the Law Hornbooks.

Conclusion

When you receive your research assignment, remember to plan your research strategy.

If you have questions or would like suggestions, please contact the Reference Desk at [email protected] or (843) 377- 4020.