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LEGAL RESEARCH 1 LL.M. PRELIMINARIES Legal Authority

• Legal Authority can be… • Primary—The Itself • Secondary—Commentary about the law Four Main Sources of

. Establishes structure of the government and fundamental rights of citizens

. Establishes broad legislative mandates

. Opinions (also called Cases) Interprets and/or applies , statutes, and Establishes legal

. 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 Legislative Judicial

Regulations Statutes Court Opinions Regulations Statutes Court Opinions (Cases) (Cases)

Federal Government State Government 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 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 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 , opposition, and public to locate and read the source. Example of the Use of Legal Authority In , 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 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 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 confirmed the language in Title VII and the EEOC guidelines related to sexual harassment.

Mandatory Authority What the law of a ? 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 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

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 New York New Jersey Supreme Supreme Court of Supreme Judicial Court Court 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. . (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 • 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 is no longer good law if it has been: .overturned on appeal. .overruled by later precedent. .invalidated by or Overturned on Appeal

• Furthermore, in his Reply, the • Because the district court did not applicant makes no effort to show apply the correct legal rule, its that independent grounds for decision denying Rogers permissive jurisdiction exist. Therefore, he does intervention was not an appropriate not meet the requirements for exercise of discretion. We permissive intervention and his accordingly vacate that portion of motion for permissive intervention the district court's order and must be denied. remand.

Freedom from Religion Found., Inc. v. Freedom from Religion Found., Inc. v. Geithner, 2009 U.S. Dist. LEXIS Geithner, 644 F. 3d 836 (9th Cir., 2011) 111776 (E.D. Cal., 2009)

Overruled by later precedent

• …we cannot say that the Amendment • The Court in Betts v. Brady departed from embodies an inexorable command the sound wisdom upon which the Court's that no for any offense, or in any holding in Powell v. Alabama rested. court, can be fairly conducted and Florida, supported by two other States, accorded a who is has asked that Betts v. Brady be left intact. not represented by . Twenty‐two States, as friends of the Court, argue that Betts was "an anachronism when handed down," and that it should now be overruled. We agree.

Betts v. Brady, 316 U.S. 455 (1942) Gideon v. Wainwright, 372 U.S. 335 (1963)

CASES Stare Decisis Doctrine of Adherence to Precedent • Requires Courts to Decide Cases Consistently With Their Past Decisions Involving the Same or Similar Facts and Legal Principles. • Lower Courts are Bound by Decisions of Higher Courts in Same Jurisdiction

Stare Decisis Requires to Locate Mandatory and/or Persuasive How to Read a

Name of Case

Foamation, Inc. v. Wedeward Enterprises, Inc., 947 F.Supp. 1287 (E.D.Wis.,1996)

Volume number Page number Year

Court Reporter Name (Eastern District of () Wisconsin) How do I figure out what these abbreviations mean?

◻ Use Cardiff Index to Legal Abbreviations: http://www.legalabbrevs.cardiff.ac.uk/

◻ Come to the reference desk and ask us

◻ Use Table 1 in the Blue Book Check the jurisdiction of the court from your case citation & look up that jurisdiction in Table 1 of the Blue Book. It will tell you what reporters to use when citing cases in that jurisdiction. US Case reporting system

Cases are published in reporters. • Reporters are organized by jurisdiction and date. • Federal, regional, and state reporters • Almost all federal reporters published by ; some state reporters still published by private entities • Reporters publish cases in chronological order. Case Reporters Level Court Official Unofficial Court of Last Resort US Supreme Court U.S. Reports Supreme Court Reports (S. Ct.)

United States Supreme Court Reports, Lawyers Edition (L. Ed.)

Intermediate Appeal Federal Circuit None (F., F2d, F3d) Courts of Appeal Trial Court Federal District None Federal Supplement (F.Supp., F. Supp. Courts 2d)

Court of Last Resort NY Court of Appeals New York Reports North Eastern Reporter (N.E., N.E.2d) (N.Y., N.Y.2d) New York Supplement (N.Y.S., N.Y.S.2d) Intermediate Appeal NY Supreme Ct., Appellate Division New York Supplement Appellate Division Reports (A.D., A.D.2d) (N.Y.S., N.Y.S.2d) Trial Court NY Supreme Court Miscellaneous Reports New York Supplement (Misc., Misc.2d) (N.Y.S., N.Y.S.2d)

Anatomy of a Court Opinion

Heading • Parallel Citation to an Official Reporter • Case Name, Court, & Date

Synopsis of the Decision Headnotes • Paragraph(s) Summarizing Key Points

Attorneys and Opinion of the Court Headnotes ThisSynopsis versionHeading of of the the Decision heading West’s claim to fame, each case RecapsIncludesessentially key important facts, cites legal information the question case and published in their reporters is read suchaccording as theholding date to Bluebook of case the was case rules— decided through by an attorney and moreand the useful docket to the number practitioner of the assigned “topic” and “key case (No. 96‐C‐1047) numbers” that correspond to the relevant substantive or procedural issue discussed within the case Attorneys Useful for identifying relevant procedural documents on the Docket

You will be able to tell when the official text of the opinion starts when you see the Judge’s name listed Unpublished Decisions Decisions designated “unpublished” are deemed by the judge authoring them to be of little precedential value • Will appear with a LEXIS or WL citation: • 2007 U.S. App. LEXIS 201517 • 2007 WL 4867239

Court rules vary as to whether “unpublished” decisions may be cited “Unpublished decisions” may appear in the Federal Appendix (F. Appx.) STATUTES FEDERAL LEGISLATIVE PROCESS S. 3217 Bill is Introduced H.R. 4173

Senate Committee House Committee

Hearings Held Hearings Held

Senate Floor Vote House Floor Vote Debate/Amendments Debate/Amendments

Conference Committee

Senate Vote on House Vote on Conference Report President Conference Report Sign or Veto

PL 111-203 Statutory Publishing Process

Published by Published by date topic

Session in Slip Laws US Code Statutes at Large (12 USC 5301) (P.L. 111‐203) (124 Stat. 1376) Statutory Codes • The official code of federal statutes is called the United States Code (U.S.C.)

• It is divided into 54 “titles” which are broad topics

• The official publication is updated every year.

• The official publication is republished every 6 years.

• You should always cite to the official code. Why does the US codify its laws?

• Brings together all law on the same topic (must easier to research this way).

• Eliminates all repealed, superseded, or expired laws from the current publication of the U.S.C.

• Represents all of currently in force United States Code is organized in broad subject categories called titles. The 54 titles are in rough alphabetical order. PL 111-203 Dodd-Frank Act

§111 §1079A

USC Title 12 USC Title 18 Banks and Crimes and Banking

Statutory Publishing Process

Published by Published by date topic

Session Laws in Slip Laws US Code Statutes at Large (12 USC 5301) (P.L. 111‐203) (124 Stat. 1376) Unofficial Code Publications

• Unofficial versions of the U.S.C. and of parallel state codes are published by commercial publishers. • They are “annotated” with references to relevant cases and secondary sources. • Federal annotated codes are: • U.S.C.A. (United States Code Annotated) • West’s annotated version of the U.S.C. • Good for references to cases (by Topic & Key Number) • U.S.C.S. (United States Code Service) • Lexis’ annotated version of the U.S.C. • Good for references to regulations

• NY annotated codes are: • McKinney’s (West) • Consolidated Laws Service (CLS) (Lexis)

LEGAL CITATORS What is a citator?

◻ A citator gathers cases, briefs and secondary sources that cite your case, statute or regulation.

◻ A citator analyzes what other cases say about the case, statute or regulation you are interested in.

◻ This will help you to determine whether your case is still “good law”. Citators cont.

A citator can do two things: 1. It can help you determine whether a case/statute/regulation is still “good law”. a) Has a citing case over-ruled or spoken negatively of the cited case on a relevant point of law? b) Has your statutory provision or regulation been repealed, amended or interpreted in a different way by a case? 2. It can help you find additional cases & secondary sources that will be useful for your research question (another way to use “one good case”). Caution!

◻ When using a citator, you will find cases that provide positive analysis of your case or negative analysis

◻ It is crucial that you read the cases that comment negatively on your case to see whether that impacts your argument ◻ You want to read the positive cases because: ⬜ you want to know whether the law has evolved ⬜ it is another way to find good cases Vocabulary

◻ Cited case: the case that you’d like to use in your memo/brief/argument. You want to make sure it is still good law. In our example, the cited case is Roe v. Wade. ◻ Citing case: a case that cites the cited case, the case you’d like to use. In our example, the citing cases are the approx. 4000 cases that have cited Roe v. Wade. ◻ Shepardize: using a citator, whether the citator is on Lexis (Shepards), (Keycite) or Bloomberg Law (BCite). SHEPARDIZING A CASE

Lexis Advance Shepard’s Signals

SIGNAL MEANS Red stop sign Warning: Negative treatment is indicated. Orange square surrounding the Questioned: Validity questioned by citing references. letter Q Yellow triangle Caution: Possible negative treatment.

Green diamond surrounding a Positive treatment is indicated. plus sign Blue circle surrounding the Citing references with analysis available. letter A Blue circle surrounding the Citation information available. letter I Step 1:

Check the case you want to use for a signal indicating whether you case has received positive or negative treatment from other cases. The red stop sign indicates that Roe has received severe negative treatment from a citing case. Step 2:

Identify the headnotes in your case that are relevant to your research problem. Since we want to use Roe on the issue of right to privacy, we want to focus in on citing cases that talk about that issue.

HNs 5, 6, & 7 all look interesting . Step 3:

Look at the list of cases that cite your case. According to Lexis there are slightly more than 4000 cases that cite to Roe. That’s way too many to look at. Step 4:

Filter by jurisdiction. Click on Citing Decisions to find all cases that have cited to Roe v. Wade. Since I need to find the cases that cite to Roe that are mandatory authority, I will filter by the 2nd Circuit and the US Supreme Court.

If I want to filter for multiple , I click on Select multiple. Now I’ve got a list of cases that are mandatory authority. There are only 349 cases now. Step 5:

Filter by legal topic (i.e. restrict citing cases to those HN topics you are interest in). 349 cases is still too many to look at. I want to focus on finding cases that deal with the issues I am interested in.

Remember that I previously identified HNs 5, 6, & 7 as being most interesting.

Scroll down to filter by headnote. If you can remember which HN you might be interested in, you can view the text here.

To view multiple headnotes, select this link. Select the headnotes you are interested in. I’m down to only 100 cases!

Now I’ve got a set of cases that are mandatory authority for me and expressly discuss the issues I’m interested in.

Just like Westlaw, Lexis shows the HNs from Roe that each case discusses. Step 6:

What if I’m just interested in cases that cite my case on one HN. If you are only interested in one HN in a case click on the Shepardize link below the HN to find cases that cite your case on this HN. Step 7:

Look closely at the cases that speak negatively about your case. Now that we have a nice list of cases that are mandatory authority and on our issue(s), we want to look at the type of analysis these cases give Roe, especially the cases that speak negatively about it.

Going to the analysis section, we see that Lexis does a great job of breaking down the cases by different types of analysis.

This can be very useful. For example, cases are often distinguished based on factual differences. This still counts as cautionary treatment. However, the more significant cautionary analysis are those cases that have criticized Roe. On Lexis, it is easy to find those cases. Because I wanted to One great feature of shepardizing on Lexis is that it lists the various select the case that different treatment that a citing case gives your case. had the most negative analysis of Roe, I selected Warning.

Lexis shows that Planned Parenthood not only overruled Roe in part but also criticized it, followed it and explained. Lexis points you to the page in the case where this treatment happens. Step 8:

Filter citing cases by characteristics like depth of treatment, date, reported/unreported. You can also filter by Publication Status to avoid non‐precedential cases.

Lexis also has Discussion bars that track how much a citing case discusses your case. Filter by this to find cases that spend a lot of time discussing your case.

Don’t forget to filter by date to find the most recent cases that have cited to your case. You can also use Shepards to find other types of materials that cite your case. In addition to cases, you can also find other materials like secondary sources, briefs etc, that cite to your case. Click on Other Citing Sources. You can then filter by type of document.

Note that you can also filter by searching for additional terms within your results.

Or you can filter by date. SHEPARDIZING A CASE

Westlaw Westlaw Status Flags Indicating KeyCite History

NOTATION MEANS

Red flag The case is no longer good law for at least one of the points it contains. Yellow flag The case has some negative history, but has not been reversed or overruled. Blue & white striped flag Case is on appeal. On Westlaw… StepStep 1: 1:

CheckCheck thethe case case you wantyou to want use for to a flag use indicating for a whetherflag indicatingyour case has whether received positive your or case negative has treatment received from positiveother cases. or negative treatment from other cases. Step 1: When you first look at a case check for any flags that indicate the status of the case. Here, the yellow flag indicates negative treatment.

Westlaw tells you that there is some sort of disagreement and gives you a citation to the citing case that gives your case the most negative treatment. For a quick assessment of your case, take a look at that citing case. Step 2: Step 2:

Identify the headnotes in your case Identifythat the are headnotes relevant to your in research your case that areproblem. relevant to your research problem. I’d like to use Roe for the court’s reasoning on the issue of right to privacy. HN 9 & 10 look really interesting so I note them down. These headnotes both have the topic . Step 3: Step 3:

Let’s lookLook at at the the cases cases that thatcite to citeour to our casecase ‐ are –are there there too too many many to look to at them all? look at them all? If you want to look at all citing If you just want to cases, click on the dropdown focus on negative arrow by Citing References citing cases, click on and choose Cases from the the tab for Negative dropdown menu. Treatment. There are almost 4000 cases citing to Roe. That’s way too many to look at! How will I find the relevant ones? Step 4: Step 4: Filter your case by jurisdiction. Filter your cases by jurisdiction... Clicking on Cases opens up other filtering options like jurisdiction, date, topic and search within results.

We need to find out what cases that are mandatory authority for us say about Roe v. Wade.

So, let’s start by looking at cases from jurisdictions that are mandatory authority for us. Since I’m in SDNY, I select cases from the US Supreme Court and the Second Circuit.

Hit Apply Filters. Now I only have 176 cases to look at and they are all mandatory authority! Step 5: Step 5:

RestrictRestrict citing citing cases cases to to those on onthe the HN topicsHN topicsyou youare are interested interested in. in... To further reduce the number of cases I need to look at, I’m going to select cases by the I select Constitutional Law since Topics assigned to the both HN 9 & 10 are Con Law headnotes.. headnotes. To see cases on specific headnotes click the link Specify by the topic Constitutional Law.

Scroll through the headnotes to the find the relevant one. Scroll down to the bottom of the headnote and then click on box.

You can select as many headnotes as Once I’ve selected by you want. HNs I hit Apply Filters Here I’ll continue to scroll down and select HN 10 as well. Now, that I’ve filtered by jurisdiction and by HNs I only have 57 cases to look at. That’s a lot better than 4000 cases.

The last column shows you which HNs from Roe this case discusses.

Because we filtered citing cases by HNs # 9 & 10, all cases in this list will have either a 9 or a 10 in this column. Step 6: Step 6: What if I’m just interested in cases thatWhat cite if I’m my just interestedcase on in cases one HN?that cite my case in one HN? Clicking on this link will find all cases that cite this Roe on the issue in HN9. Then you can still Search within results, filter by Jurisdiction etc. Step 7: Step 7: Look closely at the cases that speak negativelyLook closely at about the cases your that case... speak negatively about your case. On Westlaw, scroll down to the bottom of the left hand filtering column. You can filter to view negative cases only. Step 8: Step 8: Filter citing cases by characteristics like depth of treatment,Filter citing cases date, by characteristics like depth of treatment, dates, reported/unreported...reported/unreported. Westlaw assigns each case a depth of treatment which shows how much Stenberg v. Carhart discusses Roe v. Wade. You can filter by Depth Of Treatment to focus on cases that really talk about your case extensively.

Note that for each case, Westlaw gives some indication of what the case says about Roe v. Wade. You can search within results to find cases that match the facts of your case.

It is important to find out what recent cases say about your case.

Filter by date to find newer cases. Remember that in many jurisdictions unreported cases have no value as precedent. Use the Reported Status filter to find cases with precedential value. Finding Findingother other types types of of materialsmaterials that cite to yourthat cite case... to your case. Choose a different source type to see other documents that cite to your case. You can filter further by source type.

Or search within documents for more specific search Orterms. by date

Or by HN topic