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Legal Research 1 Ll.M LEGAL 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 Statutes (codes) • Very specific • Broader and and detailed more vague French Intellectual Property Code Cases interpret statutes: Parody, like other comment and criticism, may claim fair use. Under the first of the four § 107 factors, “the purpose and character of the use, including whether such use is of a commercial nature ...,” the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist's claim to quote from existing material is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's work. But that tells courts little about where to draw the line. Thus, like other uses, parody has to work its way through the relevant factors. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 569–70, 114 S. Ct. 1164, 1166, 127 L. Ed. 2d 500 (1994) Cases establish precedent that is followed in later cases: A "parody has an obvious claim to transformative value," as "it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one." Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569, 578, 114 S. Ct. 1164, 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, that is mandatory (binding on) or persuasive to the court where your case is being heard, 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 In New York, the rule is well settled that an advertisement is merely an invitation to enter into negotiations, and is not an offer that may be turned into a contract by a person who communicates an intention to purchase the advertised item. Geismar v. Abraham & Strauss, 439 N.Y.S.2d 1005 (Dist. Ct. Suffolk Co. 1981). Geismar v. Abraham & Strauss, 439 N.Y.S.2d 1005 (Dist. Ct. Suffolk Co. 1981). R10 p.94 Court THE Parties Reporter BLUEBOOK A Uniform System of Citation Examples of the Use of Legal Authority The Americans with Disabilities Act uses a three-prong test to define "disability." 42 U.S.C. § 12102(2). 42 U.S.C. § 12102(2) States R12 Code p.120 Title Title Section THE United BLUEBOOK A Uniform System of Citation More Examples of the Use of Legal Authority Title VII of the Civil Rights Act of 1964 states, it is “an unlawful employment practice for an employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin”. 42 U.S.C. 2000e-2(a)(1). In Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), the United States Supreme Court confirmed the language in Title VII and the EEOC guidelines related to sexual harassment. Mandatory Authority What the law of a jurisdiction? The constitution, statutes, and regulations of that jurisdiction. 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 Constitution The constitution of that state. Constitution The United States Constitution Statutes The statutes passed by the legislature of that state. Statutes The statutes passed by the U.S. Congress Regulations The regulations promulgated by the agencies of that Regulations The regulations promulgated by U.S. federal agencies. state. Cases The opinions from the highest court in that state to rule on Cases The opinions from the United States Supreme Court or the issue. the highest court in that circuit to rule on the issue. Deeper Dive: Mandatory Authority (Cases) 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 Massachusetts California New York New Jersey Supreme Supreme Court of Supreme Judicial Court Court Appeals Court New York New Jersey Massachusetts California Supreme Superior Appeals Court Court of Court, Court, Appeals Appellate Appellate Division Division Massachusetts California New York New Jersey District Court Superior Supreme Superior Court Court Court Federal Jurisdiction: Circuits United States Supreme Court United States United States United States United States Court of Appeals Court of Appeals Court of Appeals Court of Appeals for the 1st Circuit for the 2nd Circuit for the 3rd Circuit for the 4th Circuit D D DD D D.Me. D.N.H. D.Mass.. D.R.I. S.D.N.Y. W.D.N.Y. D.. Conn. N.D.N.Y. W.PA M.PA E.PA.. D.NJ N.D.W.Va. S.D.W.Va. E.D.Va.. W.D.Va. M M MM M e e e e e E.D.N.Y. D.Vt. D.DE W.D.N.C. M.D.N.C. E.D.N.C. D.S.C. What is persuasive authority? . 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 Then look for more precise facts Note down the citation and then look it up in main volumes Table of Contents Table of Contents Legal Research (ultimately) is: 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.
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