Daniel Oran - Oran's Dictionary of the Law
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548 Appendix C
concurring opinions that complicate analysis of what is binding because you need to hunt through all the opinions to find what a majority of the judges agreed on.)
Even within the majority opinion, there is often material, known as dicta, that is not binding authority. Dicta are anything in the opinion that is not a logically necessary part of the decision. (Dicta, however, are often very persuasive.) The reason that dicta are not binding authority is that a judge’s role is to resolve actual controversies; any words offered beyond such resolution are beyond the judge’s official role, and are thus not binding on others. The resolution of the actual controversy, the logically necessary core of the judge’s decision, is called the holding.
To summarize your search process for relevant cases:
■From well over a million printed opinions
■You want only opinions that are binding or persuasive
■And must have all opinions that are binding
■But can rely on only each majority opinion’s holding
Techniques of Research
Analyzing the Facts
Know Your Facts
Much of research is listmaking. Your first, most important list will be of everything you know about the facts of your problem: The things, happenings, persons, and places involved. Note beside each fact what you know, how you know about it, and how sure you are about each of the subfacts. Avoid making assumptions about what the law might be at this stage.
Know Your Objectives
An ounce of thinking is worth ten pounds of research. Analyze what you want to accomplish. What results do you (your client, etc.) hope for? Are they realistic? Make a list and look at it often throughout the research process.
Finding the Law
Create a Word List
Most research tasks involve either too few potentially useful reference sources or too many. In neither case should you flounder through more and more books. The solution may be to cartwheel.
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Cartwheel is a method of creating and expanding word lists to use your sources best and to lead you to new sources. (Cartwheel was developed by William Statsky, and can be seen in greater detail in Legal Research and Writing: Some Starting Points, 5th edition (West Publishing, 1999)).
Cartwheel lets you turn your lists of facts (things, happenings, persons, places) and your list of objectives (see Analyzing the Facts) into words to “plug into” the indexes, tables of contents, references, and word lists within your sources. It helps if you phrase each word or idea in as many different ways as possible to find more leads to useful information. You should take each word or phrase on your list and put it into the cartwheel, as seen in Figure 3.
Suppose that one important word from your fact lists is “bloody nose.” Under broader words, you might list “injury” and “trauma”; under related procedural terms, possible types of lawsuits, such as for “battery” or “tort”; under long shots, “fight” or “insult.” Generate as many words as possible and plug them into as many indexes, tables of contents, computerized search programs, and other finding aids as possible.
You can use Cartwheel, use a system devised by another author or publisher, or use your own system. Some researchers prefer a system that includes a memory device such as TARP (Things, Actions, Remedies, and Parties) or TAPP (Things, Acts, Persons, Places). Generating new words (especially when you run out of ideas) is a key to unlocking “vaults” of information. This dictionary can help generate new words using any system if you look for related words in each definition.
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Figure 3 ■ Cartwheel
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Do Your Search
Here are some guidelines to help you along:
■Keep Sources of the Law (especially Figure 4 on page 554–555) handy as you work.
■Start with primary sources (statutes, cases, regulations, etc.) if you know them.
■Use this dictionary to look up new words as you find them.
■Be flexible. Let the words on your lists, new Cartwheel words, and the references suggested by your sources tell you where to go next. Follow some side paths. You may not know exactly what you need until you find it.
Analyzing the Law
Reading Cases
Much law school training is based on the “case method.” Students read, brief (summarize and analyze), and discuss the reported decisions (opinions) of appellate courts.
You will need to brief cases for many research problems. Once you have found a case that is potentially central to your research problem, read the headnotes printed before the opinion. (Figure 6 on page 561 is a collection of headnotes.) This will give you an orientation to the case.
Here is how to brief the case:
1.Write down all the citation information (names and numbers) that identifies the parties, the court, and the reporter volume.
2.Write down who wrote the decision. If it lacks a name, but says “per curiam or memorandum decision,” it is by all the judges.
3.Write down the procedural history of the case. From where did it come on appeal?
4.Write down the result, the judge’s holding. This is a key part of your job, and often the hardest.
5.Write down the reasoning justifying the holding point-by-point. The judge may summarize for you, but be careful. Both here and elsewhere in the opinion, the words the judge used may be dicta (see that word).
6.Write down what the court did with the case. This might be to affirm, reverse, remand, etc.
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7.Write down any important points made by judges who concur or dissent.
8.Write down the case’s later history, if any, that you find. (See
Validate with a citator below.)
9.Write down the important ways that the facts in this case are similar to (and different from) the facts in your research problem, and whether any issues of fact in the case or in your research problem cloud the comparison.
10.Write down the issues of law in the case that are relevant to your research problem and how they are (or are not) decided.
Some researchers use the memory device IRAC (Issue, Rule, Application/Analysis, Conclusion).
Reading Statutes and Regulations
Reading statutes and regulations is as hard as reading cases. You must read them word-by-word because they are often very precise in places and very vague in others. Each comma may matter.
“Briefing” statutes is not as hard as briefing cases. The form of the brief doesn’t matter as long as it contains the statute’s citation and information on who is included in and excluded from the statute’s reach, on when and how it operates, on whether it commands or only permits something, and on any details directly bearing on your problem. Quote the key parts directly unless they are too long.
If anything important about the statute is unclear after a careful reading, you must use the cases and historical data given in the statute’s annotations to find the legislative history. You should always at least look at the annotations to see if you are interpreting something incorrectly.
Briefing regulations is generally similar to briefing statutes. You must also include information on the statutes that authorize the regulations.
Using the Research
Validate with a Citator
You have found what you want. Now what? First, make sure you have what you think you have. Are your cases, statutes, or regulations still good authority? The only way to find out is to trace them down through later cases and other sources to see if they have been criticized, overruled, changed, etc. Read the Sources of the Law section on Shepard’s Citators and Key Cite (pages 566–568).
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Cite It Right
A case or other authority is worthless if you (and those to whom you offer it as authority) cannot find it again. Always write down a correct citation. For example, Ex parte Grossman 267 U.S. 87, 88 (1925) gives the case name, volume, reporter, page, page of a pinpoint citation, and date. If you find the case in one reporter, but another reporter is its official place of publication, you should include both citations.
Copy down the citation before you take notes and make sure you copied it perfectly. (If you are not sure of the proper form, consult The Bluebook: A Uniform System of Citation or a computerized cite-checker such as The Electronic Bluebook or Cite Rite.)
Re-analyze, Including Both Sides’ Positions
Once all your research is complete, reanalyze your arguments to see if there are any loose ends. Then analyze your arguments’ strengths and the strengths of the other side’s arguments. Upon what will they likely rely? Does that mean more research for you? It sometimes helps to work out how the other side is likely to analyze the issues using IRAC (Issue, Rule, Application/Analysis, Conclusion).
Write It Up
Order and label all your papers, make an informal index, and write a summary of what you have, what you did, and what you concluded. Keep it short, clear, and simple. Check your work against a book such as Legal Writing: Sense and Nonsense by David Mellinkoff (West Publishing) or Modern Legal Usage by Bryan Garner (Oxford University Press).
Sources of the Law
The rest of this appendix outlines answers to the following legal research questions:
What are the materials used in legal research?
Where are they?
When do you use each of them?
How do you use them?
Sources of the law are divided into two types: primary and secondary. (Both primary and secondary sources can be official or unofficial.) Primary sources include such things as reporters of court opinions, and collections of statutes and regulations. Secondary sources include materials
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about the primary sources such as digests, encyclopedias, and citators. Both types of sources may be accessed through books and computerassisted legal research.
Figure 4 on page 554 is a chart of various types of primary and secondary sources. It is adapted from William Statsky’s Legal Research and Writing: Some Starting Points, 5th edition (West Publishing, 1999). This appendix concentrates on finding and using opinions, statutes, and regulations, the first, second, and fourth items on the chart.
Primary Sources
Federal Statutes and Regulations
Where Do You Find Them? The official source for recently passed federal statutes (called public laws in this form) is the United States Statutes at Large. The best unofficial source for recently passed federal statutes and information about bills going through Congress is the United States Code Congressional and Administrative News (U.S.C.C.A.N., West Group).
The official source for statutes once they have been sorted by subject into a permanent order is the United States Code (U.S.C.). The two unofficial sources are the United States Code Annotated (U.S.C.A., West Group) and the United States Code Service (U.S.C.S., LEXIS Publishing). These unofficial sources are the main places to go for federal statutory research because they contain the law in the most useful form, come out sooner than the official U.S.C., and have annotations to caselaw, legislative history, regulations, etc.
The official source for proposed federal administrative rules and regulations is the Federal Register. It is published daily. (See the next paragraph for unofficial sources.)
The official source for most administrative regulations once they have been sorted by subject into a permanent order is the Code of Federal Regulations (C.F.R.), although collections for many individual agencies also exist. There is no one unofficial source for administrative regulations, but WESTLAW, LEXIS, and various looseleaf services have major portions.
The four official sources of federal statutes and regulations are available in paper (book and pamphlet) form and are available on-line from feebased providers (WESTLAW and LEXIS). They are available free on-line on the World Wide Web, but sites, links to sites, and ease of searching the sites change regularly. The three unofficial sources are available in paper, WESTLAW, and LEXIS forms only. (See Computer-Assisted Legal Research for more information.)
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The United States Code Annotated (U.S.C.A.) reprints the fifty titles of the U.S.C. in over one hundred volumes.
There are three ways to find the section (subdivision of a title) you need. If you know the statute’s popular name, go to the popular name tables in the end volumes. If you know the general area of law you need, read through the general index of the fifty titles. Once you choose a title, use that title’s individual subject index. And, if you know only certain specific facts or legal catchwords, go to the general index in the end volumes first. (If nothing turns up, you may have to go through a word-list expansion exercise such as “Cartwheel” on page 549.)
Once you have the section you need, there is often a wealth of information on legislative, executive, and judicial handling of the subject, all in one place with references, with most of the executive and judicial information organized by West Key Numbers.
To update the U.S.C.A. volumes, you must use pocket parts, “Supplementary Pamphlets,” and “Special Pamphlets.” Also, make sure you are using the latest hardback volume because volumes are revised on separate publication schedules.
To update the U.S.C.A. and its pamphlets with the most recent news, you need the United States Code Congressional and Administrative News and its supplementary pamphlets. They contain easy-to-use tables that refer you to recent related legislation and regulation. And don’t forget to determine each statute’s current validity using a citator.
The United States Code Service works generally the same way as U.S.C.A. and covers the same statutes, etc. Its main references are to LEXIS materials rather than West’s.
The Code of Federal Regulations, currently published entirely in colorcoded pamphlet form due to frequent revision, is an official source for most federal administrative law materials. Its fifty titles do not correspond to the United States Code titles that authorize them, but the titles do group generally by the federal agency that administers them. In the citation “2 CFR §7.1” the “title” is 2, the “part” or major subdivision is 7, and the “section” (everything after the “section symbol”) is 7.1.
If you have a United States Code citation (for statutes in your area of law), the best way to find the right CFR section (for administrative regulations issued under the authority of these statutes) is to convert the United States Code citation directly through tables in the CFR pamphlet containing finding aids. Lacking that, you should use the general index in CFR. (If you find nothing and suspect that you are dealing with an entirely new area of law, check the various Federal Register indexes.)
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To update your CFR research, first make sure that you have the latest volume. (The titles are revised once each year in quarterly batches.) Then find the latest CFR monthly update pamphlet called the List of Sections Affected. It tells which CFR sections have been recently affected by new regulations, new proposed regulations, etc. Read the text of these changes in the Federal Register (the page number is given). Finally, for last-minute updates, check the CFR Parts Affected tables in each subsequent issue of the Federal Register and read the changes in the daily issues you are referred to.
State Statutes
Many researchers use state statutes more often than they use federal statutes, but not too much is said about them here because there are fifty different states. There are, however, some similarities among states that should be mentioned.
All states first print their new laws chronologically as session laws, sometimes modeled on the “public laws” of the United States Statutes at Large (see the prior section). They are called by various names, such as Acts and Resolves. States then organize their statutes into codes. Most states have both official and unofficial versions of their codes, many modeled on the United States Code Annotated (see the prior section), or containing many of its features, such as references to encyclopedias and other secondary sources.
Most state codes, in both annotated and nonannotated forms, and some session laws, are available on-line through WESTLAW and LEXIS. The World Wide Web has some of these materials, either through individual state sites or sites that collect material and links. Sites, links, and ease of searching the sites change regularly. (See Computer-Assisted Legal Research for more information.) The following information helps with both paper-based and on-line research.
To find state statutory law, you can start by looking up your subject in the Digest volumes of Martindale-Hubbell. Its use is explained on pages 561–562. This may give you a quick, but not authoritative, answer to your question and a reference to the state statute with the answer. Otherwise, go directly to the statutes and take a few minutes to read the explanatory material at the front of the first volume. This will alert you to anything unusual about the set’s organization.
Next, check to see if there is a general index in the last volumes of the set. These vary in size and quality, so you may have to do some wordexpansion exercises such as “Cartwheel” to expand your search possibilities. Once you find the right volume, check to see if it has an index, and use that also. (Some code titles fill more than one volume, so check for an index in each volume that contains the code title.)