Finding the Law: Paralegal Research & Writing PDF

Chapter 1 Finding the Law We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution....

Chapter 1 Finding the Law We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution. Charles Evans Hughes (1907) A. The Paralegal’s Role in Legal Research and Writing B. Law Libraries C. Sources of Law in the United States D. Legal Systems of Other Countries E. Legal System of the United States F. Law Book Publishing G. Nonprint Research Media H. Change in Our Legal System I. Identifying the Holding in a Case J. How the Legal Research Process Works: A Research Scenario K. Case Citation Form Chapter Overview In this chapter we will discuss the role of paralegals in legal research and writing, the ethical duty to perform research competently, types of law libraries and their uses, and the sources of law in the United States. We will also examine the classification of law books as either primary or secondary sources. Finally, there is a brief introduction to the major law book publishers, who will be compared in greater detail in later chapters. A. The Paralegal’s Role in Legal Research and Writing 1. Legal Research and Writing as Core Competencies Paralegals are expected to perform the task of legal research competently and cost effectively. In fact, the American Association for Paralegal Education (“AAfPE”), a national organization that serves the needs of paralegal educators and institutions offering paralegal education programs, identifies legal research as one of the “core competencies” that a successful paralegal must possess. Performing legal research today is both easier and more difficult than it was just a generation ago. It is easier because many materials are available through electronic sources and on the Internet, making it quick and easy to find statutes, cases, and other legal authorities. It is more difficult because these new materials make so many sources accessible that tracking down the right authority can seem like finding a needle in a haystack. 37  Today’s paralegals are expected to know how to use conventional print sources, the computer-assisted research services Lexis Advance and Westlaw, and the Internet to find the best answer to a research problem as quickly and effectively as possible. Once you have conducted legal research, you will need to communicate the results of that research. In fact, the cornerstone of the legal profession is communication — communication with a colleague, client, adverse party, or judge. In most cases the communication will be in written form. Even in those instances in which you communicate orally, you will often follow up with a written letter or memo to a file. Effective legal writing is not only a task expected of paralegals but also one of the core competencies identified by AAfPE for success in the paralegal profession. 2. Ethical Duty to Research Accurately Perhaps the most fundamental aspect of the attorney-client relationship is the client’s absolute trust and confidence in the competence of the attorney. This duty of competence is imposed on paralegals as well who are required to exercise the ordinary skill and knowledge that would be expected of similar paralegals in similar circumstances. In fact, Guideline 1 of the American Bar Association’s Model Guidelines for the Utilization of Paralegal Services specifically requires that attorneys take reasonable measures to ensure that a paralegal’s conduct is consistent with the attorney’s obligations, meaning that obligations imposed on attorneys are likewise imposed on paralegals. Thus, attorneys are responsible for ensuring that their paralegals are competent to perform assigned work, including legal research and writing. Although it is important to “know” the law, particularly in a field in which you may intend to specialize, it is even more important to be able to “find” the law. In this sense, proficiency in legal research is the foundation for a successful career as a paralegal. Your employer will not be as interested in your final grade in any specific class as much as your ability to find accurate answers to questions relating to topics even though you may not have been exposed to those topics in school. If you cannot perform legal research tasks accurately and efficiently, you will not be a successful paralegal despite excellent grades in your coursework. In fact, the duty to perform accurate legal research has been addressed in a number of cases, including People v. Ledesma, 729 P.2d 839, 871 (Cal. 1987), in which the court noted that an attorney’s first duty is to investigate the facts of a client’s case and to research the law applicable to those facts. In sum, the ethical duty to conduct adequate research required of attorneys is shared by paralegals as well. Moreover, the failure to research adequately may lead to liability for legal malpractice. In one of the earliest cases on this subject matter, Smith v. Lewis, 530 P.2d 589 (Cal. 1975), overruled on other grounds, 544 P.2d 561 (Cal. 1976), the California Supreme Court affirmed a lower court decision awarding $100,000 to be paid to a former client by an attorney who had failed to conduct adequate legal research. The court held that the attorney was obligated to undertake reasonable research and stated, “[e]ven as to doubtful 38 matters, an attorney is expected to perform sufficient research to enable him to make an informed and intelligent judgment on behalf of his client.” 530 P.2d at 596. In sum, you will be expected to perform competent legal research not only because your employer will insist on it but also because ethical standards demand it. Finally, as further evidence of the importance of legal research, a number of law librarians and other experts have advocated that bar examinations include a legal research component. Now that we have established the role of paralegals in legal research and writing and the ethical duty shared by paralegals with attorneys to conduct competent legal research, we can address two critical questions: where legal research is performed and what sources are used. B. Law Libraries 1. Types of Law Libraries As noted in the introduction to this text, legal research is a “hands-on” skill, requiring you to know how to use a law library. Your first task, therefore, is to locate a law library that you may use. There are approximately 3,600 law libraries in the United States. Following is a list of the most common types of law libraries with a brief description of each: Law School Libraries All accredited law schools have their own law libraries, most of which will have tens of thousands of volumes in print and nonprint forms such as Lexis Advance, Westlaw, e-books, microforms, and online. If you are attending a paralegal program that is affiliated with a law school, you will undoubtedly have access to the law library at the law school. Even if you do not attend a paralegal program affiliated with a law school, you may have access to a law school library if it has been designated as a Federal Depository Library, or a partial or selective depository, meaning that certain publications of the United States government, generally statutes and court decisions, will be sent to the library for review and access by the general public. In many cases, local public libraries or university libraries are designated as federal depositories. You can easily determine whether a library is a Federal Depository Library by calling the reference librarian at the library and inquiring. The locations of the approximately 1,250 depository libraries can be found at the Government Publishing Office’s website: http://www.gpo.gov/libraries or at http://www.fdlp.gov. Paralegal School Libraries Some paralegal programs maintain their own law libraries, although these are typically much smaller and contain far fewer volumes than law school libraries. Generally, only students who attend these programs have access to these law libraries. Local Law Libraries Often a county or city will maintain a law library, and these are usually open to members of the general public. These law libraries vary in size, with the largest law libraries being found in the largest counties. Often they are located near a courthouse. The American Association of Law Libraries provides a list of state, 39  county, and court law libraries at the following website: http://www.aallnet.org/sections/gll/membership/Member-Libraries.html. Government or Agency Law Libraries Various governmental agencies, such as the Department of Justice, maintain their own law libraries. These law libraries typically serve only agency employees, and members of the general public will have no access. The Library of Congress, the world’s largest library, located in Washington, D.C., was established by the United States Congress in 1800 primarily to provide reference and research assistance to members of Congress. It has an excellent law library, which is open to any member of the general public. Courthouse Law Libraries Many courts, both federal and state, maintain their own law libraries. Court law libraries are often found in the courthouse for the county seat. Some law libraries are open to the public while others restrict access to courthouse personnel, attorneys, and their paralegals. Bar Association and Private Group Law Libraries Often bar associations or private groups, such as insurance companies or real estate boards, will maintain law libraries. These are usually open only to members of the association or group. Law Firm Libraries Almost every law firm will maintain a law library, some of which may be nearly as extensive as a law school or courthouse law library. These law libraries are available for use only by members or employees of the firm. You should consult a directory or use a general Internet search engine, such as Google, and contact law schools, courthouses, and county offices in your area to determine whether members of the general public have access to those law libraries and to obtain the hours for each. Be particularly careful of law school libraries, which tend to schedule their hours of operation around the law school calendar and will often close unannounced after final exams or during semester breaks. Additionally, many public and college or university libraries are increasing their collections of law books. Although these libraries typically offer only the major sets of books, such as the cases of the United States Supreme Court, federal statutes, and statutes from the state in which they are located, these public or college libraries may afford a quick answer to some legal research questions. Finally, law libraries now exist in computer databases such as those offered by Lexis Advance or Westlaw and in cyberspace with vast collections of legal materials available for free “24/7.” These virtual law libraries afford quick and easy access to a significant number of legal resources. One of the best known and most reliable is the Federal Digital System (https://www.gpo.gov/fdsys), which provides free online access to publications from all three branches of the federal government, including access to federal statutes and regulations and selected federal court cases. The Federal Digital System is being replaced by a new site, GovInfo (https://www.govinfo.gov), in its beta stage at the time of the writing of this text. Conducting legal research using Lexis Advance and Westlaw is discussed in Chapter 11, and conducting legal research through the Internet is discussed in Chapter 12. 40 2. Arrangement of Law Libraries There is no one standard arrangement for law libraries. Each law library is arranged according to the needs of its patrons or by decision of the law librarian. The best introduction to a law library is a tour given by a staff member, and you should inquire whether orientation tours of the law library are given. If you cannot arrange for a tour, obtain a copy of the library handbook or guide that will describe the services offered, set forth the library’s rules and regulations, and provide a floor plan of the law library. Spend an hour wandering around the law library and familiarizing yourself with its arrangement, organization, and collections. You will notice that there may be duplicate volumes of some books or even duplicate sets of books. In general, books that are widely used will have duplicates to ensure ease of use and accessibility. In many cases you can judge legal books by their titles, which usually describe their contents. The law library’s website may offer a “virtual” tour. Nearly all law libraries use an electronic or online catalog or OPAC (online public access catalog) to help you locate materials. Most of the online catalogs are very easy to use, and you should not be intimidated. The law library staff is usually quite willing to provide instruction, and training sessions can be completed in only a few minutes. Typically, you will type in or “enter” the title, author, or subject matter you desire in the search box displayed on the screen, and you will then be provided with the “call number.” The shelves or “stacks” in the law library are clearly marked, and locating a book is merely a matter of matching up the call number provided by the online catalog with the appropriate stack label. Most law school and large law firm law libraries use the Library of Congress classification system to arrange their books. The Library of Congress classification system arranges books on the shelves in subject order. Materials are organized according to twenty- one branches of knowledge. The category “law” is Class K. Each book is marked with a three-line classification number, consisting of an alphanumeric combination, which includes letters, a whole number, and a decimal. For example, a book may be classified as “KFC80.W5.” The designation “KF” is the Library of Congress identifier for American legal publications, “C” represents “California,” and “80.W5” refers to the book’s location in the stacks. An unusual feature of law libraries is that, in general, they are not circulating libraries. That is, unlike other libraries that circulate their volumes by allowing one to check out books, law libraries seldom allow patrons to check out books. You can imagine your frustration if you were unable to read a case because someone had already checked out the volume containing the case. Books that are not widely used, however, may often be checked out by individuals who possess library identification cards. Practice Tip The Law Library 41  Familiarize yourself with your law library by investing half an hour to wander through the stacks and gain a sense of how the library is arranged. Experiencing the way the stacks are organized will imprint itself on your memory. This initial investment will save time for you later when you need to recall, for example, where the books relating to corporate law or litigation are located. 3. Law Library Staff Most of the larger law libraries are serviced by full-time law librarians who not only are lawyers who have been awarded a Juris Doctor degree but also possess a Master’s Degree in Library Science. Most library staff members are extremely helpful and responsive to questions; however, you should diligently try to locate a book or answer before you approach library staff for help. In law school libraries, the individuals who sit at the front desk are often law students who may not be thoroughly knowledgeable about the arrangement of the library or its collections. Therefore, if you have a question, be sure to address it to one of the professional law librarians (in this regard, the reference librarians are particularly helpful) rather than a student who may be more interested in studying at the front desk than helping you locate a book. Many reference librarians are available for research consultations by appointment. Some law library websites offer live chat assistance. Although law librarians will provide useful research tips and suggestions, they will not provide legal advice. 4. Law Library Courtesy You should assume that everyone who uses the law library is as busy as you, and therefore you should observe standard library etiquette by reshelving properly every book you use (unless the law library you use prohibits reshelving or has a separate preshelving area for books that are to be reshelved). Nothing is more frustrating than taking time out of a busy schedule to travel to a law library and search for the appropriate sources only to realize that a needed volume is missing. If you take books to a study carrel to read or to the photocopier to reproduce a page, you must reshelve them when you are finished. This is particularly true in school situations in which your fellow classmates will in all likelihood have the same assignments as you and will thus need to use the same books. Do not deface the books by turning pages down or marking an answer. Finally, do not resort to unfair conduct by hiding or intentionally misplacing books. There is no excuse for such overzealous tactics that not only impede learning but also reflect poorly on one who is purporting to be a member of a profession devoted to the law. Ethics Alert Researching Economically Because legal researchers have so many sources from which to choose when conducting a research project, it is critical to consider which sources best serve the client’s interests. Rather than rushing to begin a project the minute it is assigned, spend some time thinking things through. Should you begin with the conventional 42  print sources? Lexis Advance or Westlaw? The Internet? Your ethical duty to research accurately includes the duty to research economically as well. 5. Other Library Services Most law libraries offer a variety of other services to ensure students can conduct productive research. For example, if you are working on an extensive project, your law library may reserve a carrel for you and allow you to store books and materials there. Similarly, you may be able to reserve a group study room so you can meet with other students to brainstorm a research project. Law librarians can provide you with permits and letters of introduction to other law libraries in the area so you can retrieve materials not available at your law library. If certain materials are not maintained at your law library, the reference librarian may assist you in borrowing materials from other institutions through interlibrary loans. The ease of facsimile and online transmission results in ready access to a wealth of materials from all over the nation and the world. Most law libraries also offer research tutorials though their websites. Practice Tip Legal Abbreviations In the beginning of your legal career, you may become confused by the numerous abbreviations used for legal books, case reports, and journals. To determine the meaning of abbreviations such as “Ala.” (for Alabama Reports) or “C.J.S.” (for Corpus Juris Secundum), check Appendix A in Black’s Law Dictionary (10th ed. 2014), which provides an extensive list of abbreviations commonly used in law. Additionally, be patient. Within just a few weeks you will likely learn about 90 percent of all of the abbreviations you are likely to encounter. See Chapter 4 for a list of some common legal abbreviations. C. Sources of Law in the United States 1. Cases and Our Common Law Tradition If your task is to be able to find the law, one may well ask, “What is the ‘law’ we are talking about?” There are numerous definitions of the word “law.” On an academic or philosophical level, law is a system of rules that governs society so as to prevent chaos. On a practical level, on the other hand, as indicated by the quotation at the beginning of this chapter, Governor of New York, and later United States Supreme Court Chief Justice, Charles Evans Hughes suggested that the law “is what the judges say it is.” This second view may give you cause for concern. If the law is what a judge says, what if the judge rules against you because of your race, or sex, or religion? What if the judge is not familiar with an area of the law? The American legal system has certain safeguards built into it to protect litigants from such scenarios. The American legal system is part of what is referred to as the “common law” tradition. 43 “Common law” is defined in part by Black’s Law Dictionary (10th ed. 2014) as that body of law that derived from judicial decisions rather than from statutes or constitutions. Common law is thus often referred to as “judge-made law.” This common law system began in England several hundred years ago. Since at least 1300 A.D., people who may have been training to be lawyers began “taking notes” on what occurred during trials. When judges were called upon to decide cases, they then began referring to these written reports of earlier cases and following the prior cases in similar situations. The English referred to this system as the “common law” because it was applied equally all throughout England and replaced a less uniform system of law. This system of following similar previous cases was considered the most equitable way of resolving disputes: People who are involved in like situations should be treated in the same manner. This concept of following previous cases, or precedents, is called stare decisis, which is a Latin phrase meaning “to stand by things decided.” In its broadest sense, the doctrine of stare decisis means that once courts have announced a principle of law, they will follow it in future cases that are substantially similar. It is this doctrine of stare decisis that serves to protect litigants from judges who may not be familiar with an area of the law. If the judge is required to follow precedent, he or she cannot rule against you based on your race, sex, or religion. Similarly, these precedents will guide a judge who is unacquainted with a certain area of the law. In this way, stare decisis advances fairness and consistency in our legal system. Moreover, stare decisis promotes stability in our judicial system. It would not only be chaotic but manifestly unfair if judges treated each case that came before them as being severed from our great body of legal tradition and then rendered different and inconsistent rulings on a daily basis. You can imagine the frustration of a client who seeks advice of counsel on the division of property in a dissolution of a marriage only to be informed that the division depends on which judge hears the case: that Judge Jones divides property in a marital dissolution on a 50/50 basis; Judge Smith divides the property on a 40/60 basis; and Judge Anderson divides the property differently each day depending upon his mood. The client’s rights would be totally dependent upon an arbitrary assignment to a judge. Such a result is not only unjust but also unpredictable. Thus, stare decisis not only encourages stability in our legal system but also aids those in the legal profession in advising clients as to the likely disposition of their cases. Under this system or doctrine of precedent following, “the law” was thus found in the written decisions of the judges, and these decisions served as precedents that were followed in later cases involving substantially similar issues. Thus, the first source of law in the United States is judge-made case law. 2. Constitutions The second source of law in the United States is constitutions. A constitution sets forth the fundamental law for a nation or a state. It is the document that sets forth the principles and basic laws that govern a country, state, or organization. We have a United States 44 Constitution, our supreme law of the land, and each state has its own constitution. 3. Statutes The third source of law in the United States is statutes. A statute, or law, is defined by Black’s Law Dictionary (10th ed. 2014) as “a law passed by a legislative body.” In the United States, legislatures did not become particularly active in enacting statutes until the early to mid-nineteenth century, when the United States economy began changing from a very rural base to a more urban base. This major change in American society was coupled with a tremendous population growth, due largely to immigration, and it became clear that rather than having a system that decided disputes on a case-by-case basis, which was slow and cumbersome at best, enacting broader laws that would set forth rules to govern behavior of the public at large would best serve the needs of a growing society. For example, when people live miles apart from one another and interact on a sporadic basis, few disputes will arise. On the other hand, when people are crowded into apartment buildings and work in densely populated urban areas, the number of problems greatly increases, and there is a concomitant need for general regulation by law or statute. 4. Administrative Regulations A fourth source of law in the United States is found in the vast number of administrative rules and regulations promulgated by federal agencies such as the Federal Communications Commission (“FCC”), the Food and Drug Administration (“FDA”), the Occupational Safety and Health Administration (“OSHA”), and numerous other agencies. Agencies exist in the individual states as well, and these also issue rules and regulations. The agencies play a unique role in our legal system because they function quasi- legislatively and quasi-judicially. You may recall from basic history and civics classes that our government is divided into three branches: the legislative branch, which makes laws; the judicial branch, which interprets laws; and the executive branch, which enforces laws. Each division is to exercise its own powers, and, by a system known as “checks and balances,” each functions separately from the others and limits the powers of the others. The agencies, on the other hand, perform two functions: They act as a legislature by promulgating rules and regulations that bind us; and they act as a judiciary by hearing disputes and rendering decisions. Although you may not have given a great deal of thought to the effect of the agencies in your daily life, their influence is significant and far-reaching. For example, the radio you listen to and the television you watch are regulated by the FCC; the cosmetics you use and the food or aspirin you ingest are regulated by the FDA; and the safety of your workplace is regulated by OSHA. 5. The Executive Branch Although the primary function of the federal executive branch is to enforce the law, it does 45 serve as a source of law in three ways. First, treaties are entered into by the executive branch with the advice and consent of the United States Senate. These agreements between two or more nations do affect your daily life and serve as a source of law because they may relate to trade and import matters, economic cooperation, or even international boundaries and fishing rights. Second, the President, our chief executive, can issue executive orders to regulate and direct federal agencies and officials. State governors may also issue executive orders. Third, the executive branch exerts influence on the law through policies on enforcing laws. For example, if various federal laws relating to possession of small amounts of drugs are rarely enforced, the effect is as if the law does not exist despite the fact that a statute clearly prohibits such acts. Nevertheless, although such an approach by the executive branch influences the law as well as societal behavior, such influence on the law is indirect and remote. In the event the government then prosecutes an individual for violation of such a previously unenforced law, the individual usually cannot raise the previous laxity as a defense. In a related example, in 1980, when the Selective Service System was reinstated to require United States males born in 1960 or later to register with the Service, several conscientious objectors refused to register. The federal government immediately prosecuted some of these individuals, who then asserted as a defense that they had been singled out for prosecution because they had been vigorous opponents of this draft registration. This defense, commonly known as “selective enforcement,” is rarely successful and was not successful in the draft registration cases. To use a simple analogy, if you are cited for speeding, you cannot successfully assert that either all people who speed should be likewise cited or that none should. You would accept that you had simply been unluckier than other speeders. On the other hand, if only women are cited or only Hispanics are cited, such would appear to be the result of discrimination based on sex or ethnic origin, and a defense of selective enforcement alleging such invidious discrimination might well be successful. D. Legal Systems of Other Countries Although every country has its own system of law, most systems are classified as being either part of the common law tradition, described above, or part of the civil law tradition. Civil law systems developed from Roman law. The Eastern Roman emperor Justinian I commissioned a comprehensive code of laws known as Corpus Juris Civilis, meaning “Body of Civil Law,” to set forth all of the law of the Roman Empire. As a result, countries whose systems of law follow the Roman scheme of law with thoroughly comprehensive codes are said to be part of the civil law tradition. Even today many countries’ codes of civil law are derived from the original Roman codes. In general, civil law countries (which are a majority of nations) place much heavier reliance on their collections of statutes than on their much smaller collections of cases. These statutes are designed to address every conceivable legal issue that might arise, and it is these statutes that provide the ultimate answers to legal questions. Cases considered by 46 judges rarely form the sole basis for any decision in civil law countries. Austria, China, France, Germany, Greece, Italy, Japan, Mexico, the Russian Federation, South Korea, Spain, and most of the countries of Latin and South America are considered civil law countries. Islamic law is followed by several countries in the Middle East. In general, English-speaking countries or those that are prior British Commonwealth colonies are part of the common law system, which is greatly dependent on cases used as precedents, which in turn are followed in future cases that are substantially similar. Non- English-speaking countries are usually part of the civil law system, which is greatly dependent on codes or statutes intended to apply to every legal question or dispute. Because of the thoroughness of the Roman codes, statutes came to be known as the “written” law while the common law, relying as it does on judge-made case law, is often referred to as the “unwritten” law. It is interesting to note that every state in the United States, except Louisiana, and every Canadian province, except Quebec, is part of the common law tradition. Because Quebec and Louisiana were settled by the French, their legal systems are largely patterned after the law of France, a civil law country. In fact, the Civil Code of Louisiana is heavily influenced by the Code Napoleon, the French legal code enacted in 1804. In practice, however, even in many countries with systems based on civil law, case law still plays a significant role. Table T.2 of The Bluebook identifies more than 40 foreign countries as either common law or civil law countries. E. Legal System of the United States The nature of our federalist system of government seeks to apportion power between our central or federal government and the 50 separate states and the District of Columbia. The framers of the country feared that an overly strong federal government with concentrated power would ultimately engulf the separate states. Therefore, the Tenth Amendment to the Constitution was adopted. This amendment reserves to the individual states any powers not expressly granted or delegated to the federal government. As a result, although the United States adheres to a uniform common law tradition, there is no one single legal system in this country. We have federal laws enacted by the United States Congress and federal cases decided by our federal courts, including the United States Supreme Court. Moreover, unless an area of the law has been preempted by the United States Constitution or the federal government, each state and the District of Columbia are free to enact laws as well as decide cases dealing with state or local concerns. Even within each state are smaller political subdivisions such as cities and counties, which enact local ordinances and regulations. Thus, there is a tremendous body of legal literature on the shelves of law libraries: federal cases and federal statutes; Connecticut cases and Connecticut statutes; Florida cases and Florida statutes; Utah cases and Utah statutes; and so forth. Additionally, both the federal government and state governments promulgate administrative regulations, attorneys 47 general issue opinions regarding legal problems, and experts publish commentary regarding the law. As early as 1821, Supreme Court Justice Joseph Story complained, “The mass of the law is accumulating with an almost incredible rapidity.... It is impossible not to look without some discouragement upon the ponderous volumes, which the next half century will add to the groaning shelves of our jurists.” This statement was made about the time volume 19 of the United States Reports was published. As of 2016, the United States Reports covered more than 560 volumes. All of the great mass of legal authorities can be classified as either primary authority or secondary authority. That is, every book in any law library is a primary authority or a secondary authority. See Figure 1-1. Primary authorities are official pronouncements of the law by the executive branch (treaties and executive orders), legislative branch (constitutions, statutes, and administrative regulations and decisions), and judicial branch (cases). The key primary authorities are cases, constitutions, statutes, and administrative regulations. Thus, primary sources are those created by a governmental entity. If a legal authority does not fall within one of the previously mentioned categories, it is a secondary authority. Secondary authorities may consist of legal encyclopedias, which provide summaries of many areas of the law; law review articles written about various legal topics; books or other treatises dealing with legal issues; law dictionaries; annotations or essays about the law; and expert opinions on legal issues. In general, the secondary authorities are not the law but rather provide comment, discussion, and explanation of the primary authorities and, more important, help you locate the primary authorities. It is critical to understand thoroughly the differences between primary and secondary authorities because only the primary authorities are binding upon the court, agency, or tribunal that may be deciding the legal issue you are researching. That is, if your argument relies upon or cites a case, constitution, statute, or administrative regulation that is relevant to a legal issue, it must be followed. All other authorities, for example, the secondary authorities, are persuasive only. If your argument cites Black’s Law Dictionary for the definition of negligence, a court might be persuaded to adopt such a definition, but it is not bound to do so. On the other hand, if you cite a relevant case that defines negligence, a court must follow that definition. In sum, a primary authority is the law; a secondary authority discusses the law. Even though the secondary authorities are not binding on a court, they are often extremely effective research tools and provide excellent introductions to various legal topics. Nevertheless, you should keep in mind the purpose of the secondary authorities — to explain the primary authorities and locate the primary authorities that, if relevant, must be followed by a court. In addition to the various authorities previously discussed, there are other books in the law library that are in the nature of practical guides or finding tools. These include books such as digests, which help you locate cases (see Chapter 5); form books, which provide forms for various legal documents such as wills, deeds, and contracts (see Chapter 7); and print and electronic tools that help you update the primary authorities you rely upon in any 48 legal writing (see Chapter 9). Although these books are not true secondary authorities, their principal function is either to assist in locating primary sources or to serve as practical or finding guides for those in the legal profession. The Final Wrap-Up Using and Citing Primary and Secondary Authorities Use: Use primary authorities to support the legal assertions you make. Use secondary authorities to summarize and explain the primary authorities and to help you locate the primary authorities. Citation: You may cite to any primary authority. If a primary authority is on point, it must be followed in your jurisdiction. You may cite to most secondary authorities. Many are highly authoritative (such as the Restatements and many treatises). Others, however, are elementary and weak (for example, most legal encyclopedias) and should be used to familiarize yourself with an area of law and to direct you to the primary authorities. F. Law Book Publishing As shown in Figure 1-1, the collection and variety of books in a law library are incredibly extensive. Compared to the litigation explosion of the last generation, the early period of American history produced a fairly small number of cases. But just as the change in American society from agrarian and rural to an industrial and urban population resulted in a need for statutes to establish standards for behavior, this change also resulted in increased litigation and attendant case decisions. For example, in the United States district courts alone, the number of civil cases filed between 2006 and 2015 increased by about 8 percent. According to the National Center for State Courts, the nation’s state courts received more than 94 million cases in 2013. In fact, this same organization reports that approximately 95 percent of all legal cases initiated in the United States are filed in the state courts. Most cases filed in the trial courts, approximately 90 percent, never come to trial. Of those state court cases that go to trial, only about 10 percent are appealed and result in a published opinion due to the fact that trial court opinions are rarely published. Nevertheless, even that number, added to the cases decided and published by the federal courts, results in approximately 50,000 cases being published each year. Additionally, Congress and the state legislatures publish thousands of pages of statutes, and thousands of pages of administrative rules and regulations are also published annually. 49  Figure 1-1 Primary Authorities (binding) Secondary Authorities (persuasive) Thus, a tremendous amount of publication of legal authorities, both primary and secondary, occurs each year. You cannot expect to know all of the law contained in these authorities; however, you can be reasonably expected to be able to locate and use these legal authorities. That is the goal of legal research. The actual publication of these authorities is conducted by only a handful of publishing companies, including the following, which are among the best known legal publishers: Thomson Reuters Corporation (“West”). Although West, with its U.S. headquarters in Minnesota, is actually owned by Thomson Reuters Corporation, a global information company, in the United States it is still routinely referred to as Thomson 50 Reuters/West or simply “West.” Because so many practitioners still refer to this publisher as “West” and many of the publisher’s books themselves still use the brand “West,” this text will generally refer to this publisher as “Thomson Reuters/West” or “West” rather than “Thomson Reuters.” Founded in 1872, West publishes cases, statutes, secondary authorities, and provides Westlaw, its computer-assisted legal research system (previously called “WestlawNext” for several years but rebranded as simply “Westlaw” in 2016). West also owns FindLaw (http://www.findlaw.com), a leader in free online legal information. For simplicity, this text will generally use “West” when referring to print products and “Westlaw” to refer to the computer-assisted legal research system. LexisNexis Legal & Professional (“Lexis”). Lexis is a division of RELX PLC (formerly Reed Elsevier) of London. It competes head-on with West in the publication of many legal sources, including statutes. Lexis also provides its self-named computer-assisted legal research system. Its newer research platform, Lexis Advance, will soon replace the original platform, Lexis; thus, the focus of this text is on Lexis Advance. Through a series of acquisitions, Lexis has combined with other publishers, including Matthew Bender. You will likely notice some differences in the presentation of Lexis’s name on its various publications. For simplicity, this text will generally use “Lexis” to refer to the company’s print publications and “Lexis Advance” to refer to its electronic research service. Wolters Kluwer. Headquartered in the Netherlands, Wolters Kluwer includes a number of other “brands,” including Aspen Publishers and CCH Inc. Wolters Kluwer publishes a variety of primary and secondary authorities. The numerous combinations and acquisitions of publishing companies have resulted in changes in some features of some law books. For example, for years a set of books called American Law Reports was published by Lawyers Co-op. It therefore referred its users to other Lawyers Co-op books. In 1998, the set was acquired by West, and thus it now directs readers to West-owned law books. Moreover, some of the features of the set changed slightly after West acquired it. Thus, as books are described in this text, it is possible that some of their features and layout have changed over the years, with recent books in a set appearing slightly different from earlier published books in the set. Law book publishers also face increasing competition from emerging technologies. As discussed in Chapter 11, many cases now appear on the Internet at no cost. These inroads on print publication have caused decreases in circulation of print materials. Additionally, some companies such as Bloomberg BNA specialize in the publication of looseleaf services — that is, sets of books dealing with various legal topics and contained in ringed binders. The hallmark of these looseleaf volumes is that they publish information on legal topics that are subject to frequent change and that if placed in hardback volumes would quickly become out-of-date. Publication of materials in looseleaf binders allows frequent updating by replacement of individual outdated pages with current pages. The looseleaf sets are thus “evergreen.” One of the common features shared by the primary sources (cases, constitutions, 51 statutes, and regulations) as they are initially published is that they are arranged in chronological order. That is, cases are published in the order in which the court issued the decisions. A court will not designate a month as landlord-tenant month and only hear cases dealing with landlord-tenant law before moving on to some other topic, but rather may hear a case involving burglary followed by a contract dispute followed by a probate matter. The cases appear in volumes of books, called “court reports,” in chronological order. Similarly, during any given session, a legislature will enact laws relating to motor vehicles, regulation of utilities, and licensing of real estate salespeople. The initial publication of these statutes is in the order in which they were enacted rather than according to subject matter. This type of organization makes research difficult. If you were asked to locate cases dealing with landlord-tenant law, you would find that they have not been brought together in one specific location but rather may be scattered over several hundred volumes of cases. It is clear then that a method of obtaining access to these primary authorities is needed and, in general, the secondary authorities and digests will assist you in locating the primary authorities. For example, a secondary source such as a legal encyclopedia will describe and explain landlord-tenant law and will then direct you to cases that are primary or binding authorities relating to this area of the law. These cases, when cited in a legal argument, under the doctrine of stare decisis, must be followed by a court, whereas the encyclopedia discussion is persuasive only and need not be followed by a court. G. Nonprint Research Media For centuries, all legal research was performed using conventional print volumes in law libraries. With the advent of computer-assisted legal research (see Chapter 11) and Internet legal research (see Chapter 12), legal professionals use a variety of media to get the right answers to their research questions and are no longer tied to the law library. Good researchers must be adept at both methods of performing legal research: using conventional print sources and using newer technology sources such as law-related mobile “apps,” commercial databases such as Lexis Advance and Westlaw, and the Internet. In fact, in 2012 the American Bar Association modified its Model Rules of Professional Conduct to impose an affirmative duty on attorneys to understand the benefits and risks of technology. Using newer technologies allows legal professionals to perform research at their desks and on the road. Some methods are more efficient and cost-effective than others. For example, if you need general background information about an area of law, you should consider browsing an encyclopedia or treatise in print form. If you need information about a new or evolving area of law, computer-assisted legal research will likely provide the most current information. If you need to refresh your memory about a statutory provision, it may be more cost-effective for the client if you quickly review the statute in print form rather than going to the expense of logging on to Lexis Advance or Westlaw. Moreover, you need to be 52 flexible in using all methods of legal research if case materials are unavailable: Books can disappear from library shelves and networks can crash. Thus, effective legal researchers are creative and adaptable. A 2014 survey by the American Bar Association reported that the responding attorneys used fee-based services, such as Lexis Advance and Westlaw, and free Internet sites more than any other sources when starting a project (although print sources were popular in certain practice fields, such as trusts and estates and with more experienced attorneys). Legal Technology Resource Center, American Bar Association. Successful legal researchers thus combine research media to obtain information for clients. Knowing which media to use requires an analysis of many factors, including the complexity of your task, the costs involved, and time constraints. Many teachers urge students first to become familiar with the conventional print tools before becoming too wedded to computer-assisted or Internet legal research. Strong skills in manual legal research provide a good foundation for using Lexis Advance, Westlaw, and the Internet more effectively. Thus, this text will fully examine the conventional print research tools before discussing technologies such as computer-assisted legal research and Internet legal research. Practice Tip Access to Government Publications The Government Publishing Office website (previously known as “GPO Access”) provides free online access to official publications from all three branches of the federal government through its “Federal Digital System” (often referred to as “FDsys” and located at http://www.gpo.gov/fdsys). This site offers easy access to authenticated government documents, including our federal statutes, our Code of Federal Regulations, and numerous other primary sources. At the time of this writing, FDsys was being replaced by a newer and enhanced platform, GovInfo (https://www.govinfo.gov), which allows easier searching, more documents, and improvements to facilitate use on mobile apps. H. Change in Our Legal System Although stare decisis promotes stability, fairness, and uniformity in our legal system, blind adherence to established precedents in the face of changing societal views and mores may result in injustice. For example, in 1896, the United States Supreme Court held that “separate but equal” public facilities for blacks and whites were lawful. Plessy v. Ferguson, 163 U.S. 537 (1896). This precedent served to justify segregation for more than 50 years. In 1954, however, in Brown v. Board of Education, 347 U.S. 483, 495 (1954), the Supreme Court overruled its earlier decision and held that segregation solely according to race in public schools violated the United States Constitution. A strict adherence to stare decisis would have precluded a second look at this issue and would have resulted in continued racial segregation. 53  Similarly, the view of women has changed in our case law. In Bradwell v. State, 83 U.S. (16 Wall.) 130, 141 (1872) (Bradley, J., concurring), the Justice noted: “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.” One hundred years later, Justice Brennan acknowledged, “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women, not on a pedestal, but in a cage.” Frontiero v. Richardson, 411 U.S. 677, 684 (1973). Thus, it is clear that as society changes, the law must also change. A balance must be struck between society’s need for stability in its legal system and the need for flexibility, growth, and change when precedents have outlived their usefulness or result in injustice. In discussing the fact that the United States Supreme Court can overrule its precedents to correct an injustice, Woodrow Wilson remarked that the Court sits as “a kind of constitutional convention in continuous session.” It is the function of our courts to achieve both of these seemingly contradictory goals: the need for stability and the need for change. You should not view these changes as abrupt and unsettling frequent events. Change often occurs slowly and always occurs in an ordered framework. This order is a result of the structure of our court systems into a hierarchy of lower courts, which conduct trials, and higher courts, which review the conduct of those trials by appeal. Change in established legal precedent comes about by rulings of higher courts, which then bind lower courts in that judicial system or hierarchy. For example, a small claims court in Portland, Oregon, cannot overrule Brown v. Board of Education. Because Brown v. Board of Education was decided by the United States Supreme Court, it can only be overruled by the United States Supreme Court. Similarly, a decision by the highest court in Minnesota binds all of the lower courts in Minnesota, and a decision by the Ninth Circuit Court of Appeals is binding on all courts within that circuit, but not in other circuits. Nevertheless, lower courts often attempt to evade precedents by striving to show those precedents are inapplicable to the cases then before them. For example, a lower court might hold that a precedent established by a court above it dealing with the interpretation of a written contract is not binding because the lower court is interpreting an oral contract. Lower courts thus often reject precedent or refuse to follow precedent on the basis that those precedents are inapplicable to their case or can be distinguished from their case. This flexibility in reasoning results in a rich, complex, and sometimes contradictory body of American case law. According to Hart v. Massanari, 266 F.3d 1155, 1173 (9th Cir. 2001), “This ability to develop different interpretations of law among the circuits [and courts] is considered a strength of our system. It allows experimentation with different approaches to the same legal problem so that when the Supreme Court eventually reviews the issue it has the benefit of ‘percolation’ within the lower courts.” Thus, stare decisis means more than simply following settled cases. It means following settled cases that are factually similar and legally relevant to the case or problem you are researching. Such a factually similar and legally relevant case from a court equivalent to or higher than the court that will hear your particular case is said to be “on point” or “on all 54 fours” with your case. The goal of legal research is to be able to locate cases on point with your particular case. Such cases are binding upon and must be followed by the court hearing your case. In the event you cannot locate cases on point in your judicial hierarchy (possibly because your case presents a novel issue not yet considered in your jurisdiction), you should expand your search for cases on point to other jurisdictions. That is, if your case presents an issue not yet decided by the Minnesota courts, often called a case “of first impression,” search for on-point cases in other states. If you locate a Wisconsin case on point, it is not binding in Minnesota. It may, however, be persuasive to the Minnesota court. If the Minnesota court adopts the view espoused in the Wisconsin case, it is then a precedent in Minnesota and according to the doctrine of stare decisis is binding upon that Minnesota court and all others lower than it in Minnesota. See Figure 1-2. Among the factors that may be considered by the Minnesota court in adopting the Wisconsin view are whether the Wisconsin case is well reasoned and well written, whether Minnesota and Wisconsin have some tradition in relying upon and respecting each other’s cases, whether the Wisconsin case was issued by one of the higher Wisconsin courts, and whether the Wisconsin view is shared by other jurisdictions or approved by legal scholars. Change in our legal system can occur not only as a result of judges expanding or overruling precedents found in cases but also through enactment, repeal, or amendment of a statute by a legislature or even through judicial interpretation of a statute. You may notice as you read statutes that many are broadly written, ambiguous, or vague. In such a case, judges may interpret the meaning of the statute, clarify ambiguous terms, explain the language of the statute, or declare the law invalid. For example, a statute may require a landlord to provide 30 days’ notice to a tenant before evicting the tenant for nonpayment of rent. A question may arise as to the meaning of this provision if the thirtieth day occurs on a national holiday. If the statute does not address this issue, a court is free to determine that if the thirtieth day occurs on a Sunday or holiday, the tenant will be given an extra day’s notice. Although a court cannot change the plain meaning of a statute, it is free to interpret the statute. Thus, even when you locate a statute that appears directly to address your research problem, you cannot stop researching. You must read the cases that have interpreted the statute because it is judicial interpretation of a statute rather than the naked language of a statute that is binding under the doctrine of stare decisis. This research requirement brings us full circle to the practical definition of “the law” given before — that the law is what the judges say it is. In statutory construction, the law is not always what the statute says but rather what a judge says it means. You have seen that a case from a higher court in one state or jurisdiction is binding upon lower courts in that state or jurisdiction and may be persuasive authority in other states. In contrast, a statute has no effect whatsoever anywhere other than in the jurisdiction that enacted it. When the Kansas legislature is enacting statutes relating to the licensing of real estate salespersons, it is unaffected by statutes in Nevada relating to the same topic. Any Nevada statutes on this topic lack even persuasive effect outside Nevada’s jurisdictional boundaries. 55  Figure 1-2 Stare Decisis and Our Judicial Hierarchy Primary law consists of cases, constitutions, statutes, treaties, executive orders, and administrative regulations. All other legal authorities are secondary. Primary law from your state or jurisdiction is binding within your state or jurisdiction. Primary law from another state or jurisdiction is persuasive only in your state or jurisdiction. If your state or jurisdiction adopts the law or position of another state or jurisdiction, then that position is now binding within your judicial hierarchy. Secondary law (no matter where it originates) is persuasive only. Higher courts in any given judicial hierarchy bind lower courts in that hierarchy. Higher courts can depart from a previously announced rule if there are compelling and important reasons for doing so. United States Supreme Court cases are binding on all courts in the United States. I. Identifying the Holding in a Case You can readily see that the foundation of the American legal system lies in its rich and varied body of case law. While analysis of cases will be discussed in great detail in Chapter 4, you should be aware that under the concept of stare decisis, only the actual rule of law announced in a case is binding. That is, only the holding of the case is authoritative. The holding is referred to as the ratio decidendi or “reason for deciding.” The remainder of the language in the case is referred to as dictum, which is usually used as an abbreviated form of obiter dictum, meaning a remark “in passing.” Black’s Law Dictionary (10th ed. 2014) provides that dictum is “a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the discussion in the case and therefore not precedential.” Dictum in a case is persuasive only. On some occasions, a court may speculate that its decision would be different if certain facts in the case were different. This type of discussion is dictum and although it may be persuasive in later cases, it is not binding authority. In many cases, distinguishing the holding from the dictum is easily done. Often a court will set the stage for announcing its holding by using extremely specific language similar to the following: “We hold that a landlord may not commence an action to evict a tenant for nonpayment of rent without providing the tenant with a written notice to either pay rent or forfeit possession of the leased premises.” On other occasions, finding the holding requires a great deal more persistence and probing. You may notice that some cases are difficult to read and are written using archaic and outmoded language. Do not get discouraged. Reading cases takes a great deal of patience and experience. You will find, however, that the more cases you read, the more skillful you 56 will become at locating the holding, distinguishing dicta from the holding, and understanding the relevance of the case for the future. J. How the Legal Research Process Works: A Research Scenario Just as it is nearly impossible to put together a puzzle without first seeing a picture of the finished product, it is difficult to understand the process of legal research before actually performing a legal research project. To understand what you will be able to do when you have completed your research class, consider the following scenario, which is typical of the type of task a researcher often encounters. Peggie, a paralegal, was recently hired by a law firm and asked by her supervising attorney to do some legal research. The attorney met with a client, Grace, whose husband Phil died two years ago. Grace is the mother of a ten-year old boy. The son spends occasional time with Phil’s parents. Grace is remarrying, and although Phil’s parents are kind and loving, Grace has decided that it would be better to limit any visits by her son with them so that she can begin her new marriage and start her new family. Phil’s parents have told Grace that they will go to court to seek visitation. The attorney wants Peggie to find out how the courts in the state handle grandparent visitation. After getting the assignment, Peggie returned to her office to begin the research process. First, she thought about the places she might need to look to find an answer to this question. Because Peggie is unfamiliar with family law, she realized that she would need to learn a bit more about grandparent visitation in general so that she would have the background to understand the materials she would be reading as she worked on this research assignment. Peggie thus reviewed some introductory information in a legal encyclopedia (Chapter 6) to “get her feet wet.” Next, she looked to see whether her state had any statutes (Chapter 3) that address this issue. After reading the statutes, Peggie realized that she needed a better understanding of the meaning of some of the language in the statute, so she looked up some court cases (Chapter 4) that interpreted the statute. One case in particular was relevant to this question, so she used a digest (Chapter 5) to find other cases that dealt with the same issue. She then reviewed a set of books on family law in general and read the chapters relating to grandparent visitation (Chapter 6). Peggie also decided to use Lexis Advance or Westlaw to locate the most current information and other specialized articles or texts on grandparent visitation (Chapter 11). Next, she made sure that the statutes and cases were still in effect and had not been modified or overturned (Chapter 9). Finally, Peggie wrote her attorney a memorandum (Chapter 17) describing what she had found out from her research, being careful to use correct citation form (Chapter 8). Peggie’s approach to her research problem is only one way that the problem could be solved; another researcher might well approach the problem differently, but both would reach the same conclusion. It is thus important for researchers to understand thoroughly all of the legal research resources that are available, so that when a project is received, it can be completed efficiently and correctly. Moreover, researchers need to understand the American legal system and court structures (Chapters 2 and 4) so that cases can be put into context and researchers therefore understand which authorities are binding. Legal research is not so much about following a predictable formula as it is about understanding how the numerous resources fit together so that researchers can make intelligent decisions about performing legal research. Thus, the next chapters will afford you an in-depth understanding of the available resources so that you will know how and 57 where to look for answers, allowing you to fulfill your ethical duties to perform research accurately and efficiently and help clients with their legal problems. K. Case Citation Form Although case citation will be discussed in depth in Chapter 8, the sooner you begin examining the books in which our cases are published or reported and the sooner you begin reading those cases, the more confident you will become about your ability to research effectively. All cases follow the same basic citation form: You will be given the case name, the volume number of the set in which the case is published, the name of the set in which the case appears, the page on which it begins, and the year it was decided (and the deciding court, if not apparent from the name of the set). For example, in “reading” the citation to the United States Supreme Court case Brown v. Board of Education, 347 U.S. 483 (1954), you can readily see the following: 1. The case name is Brown v. Board of Education; 2. It is located in volume 347; 3. It is found in a set of books entitled United States Reports; 4. It begins on page 483 of volume 347; and 5. It was decided in 1954. State court cases are cited much the same way. The citation State v. Paul, 548 N.W.2d 260 (Minn. 1996) informs you that: 1. The case name is State v. Paul; 2. It is located in volume 548; 3. It is found in a set of books entitled North Western Reporter, Second Series; 4. It begins on page 260; and 5. It is a Minnesota Supreme Court case decided in 1996. Although this text shows case names and book titles in italics, underlining or underscoring is also acceptable according to The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 20th ed. 2015) (“The Bluebook”). For many years, another citation manual competed with The Bluebook. That citation manual, ALWD & Coleen M. Barger, ALWD Guide to Legal Citation (5th ed. 2014), was user-friendly and popular with students. In its present fifth edition, however, its rules are identical in nearly every respect to those in The Bluebook, and thus the emphasis in this text is on The Bluebook, which is the commonly accepted manual for citation form throughout the nation. There are additional citation systems, however, and variation among practitioners, so check with your firm or office to determine if there is a preference. Finally, this text will 58 show citations in the “ordinary” typeface used by practitioners, rather than in the LARGE AND SMALL CAPITAL format used for academic writing and law review articles. (See Chapter 8.) Internet Resources 59 Writing Strategies Always support arguments with cases on point. Precedents that differ significantly from your case will not only not be helpful, they may actually hurt your case by causing the reader to believe that there is no authority to support the position you advocate. Carefully scrutinize the cases you find for their weight (what level is the court that rendered the decision?), their date (when was the case decided?), their issues (are the legal issues involved in the cases you find similar or identical to ones in your case?), and the facts (are the facts involved in the cases you find similar or analogous to the ones in your case?). Use only the “best” decisions to support your argument. Be merciless. Discard cases that provide the adversary with any ammunition. When you have selected the cases that will best advance your position, use analogy to show the reader how similar 60  they are to your case so the reader can easily see why these cases are controlling. Use active voice and vivid and forceful language when constructing your argument. Personalize your clients by identifying them by name (“Jill Wallace”) and depersonalize adverse parties by referring to them by a “label” (the “defendant,” the “company”). Assignment for Chapter 1 1. a. Give the name of the case located at 501 U.S. 808 (1991). b. Review the quotation on page 827 of the case relating to stare decisis. Why is stare decisis the “preferred course”? 2. a. Give the name of the case located at 561 U.S. 63 (2010). b. Who delivered the opinion of the Court? c. Who dissented in this case? 3. a. Give the name of the case located at 549 U.S. 199 (2007). b. Who delivered the opinion of the Court? c. Was the lower court’s ruling affirmed or reversed? 4. a. Give the name of the case located at 542 U.S. 129 (2004). b. Give the date the case was argued. c. Give the date the case was decided. d. In brief, what general subject matter or topic does this case discuss? e. Locate a case in this volume in which the defendant’s name is Winn and give its citation. f. What part did Justice Kennedy play in this Winn case? Internet Assignment for Chapter 1 1. Use the Glossary at the website of the George Mason School of Law. What is the definition of “precedent”? 2. Access the website of the American Association for Paralegal Education. Review the Core Competencies expected of paralegals. What is the last legal research skill identified? 3. Access the website for the National Center for State Courts and select “Information and Resources” and then “Browse by State.” a. Who is the Chief Justice of the California Supreme Court? b. Review California’s State Court Structure Chart. Which court is the exclusive court for death penalty cases? 4. Access the website of the Government Publishing Office and locate information 61  about the Federal Depository Library Program. Identify the library in Wilmington, North Carolina, that is a federal depository library. 5. Access the website for the Law Library for UCLA’s School of Law. Select “Law Library Research Guides” and then “UCLA School of Law Legal Research and Writing Guide.” Locate the Research Checklist. What is the third task in a research project? 62  Chapter 2 The Federal and State Court Systems To have standing, a complainant must have a dog in the hunt; if complainant has no such dog, then complainant cannot object to things occurring in the hunt. Tex. Disposal Sys. Landfill, Inc. v. Tex. Comm’n on Envtl. Quality, 259 S.W.3d 361, 363 (Tex. App. 2008) A. Federalism B. Establishment of Federal Court Structure C. Jurisdiction D. Ground Rules for Cases E. The Federal Court Structure F. State Court Organization G. Citation Form Chapter Overview As discussed in Chapter 1, there is no one legal system in the United States. There are 52 legal systems: one system composed of cases and statutes decided and enacted by federal courts and the federal legislature, namely, the United States Congress, and another system composed of cases and statutes decided and enacted by the state courts and state legislatures for each of the 50 states and the District of Columbia. This chapter will provide an overview of the federal and state court systems. To perform research tasks, you should understand these court structures so that when you are confronted with a research assignment or a case citation you will readily understand the hierarchy of cases within a given court structure, giving greater emphasis to cases from higher courts such as the United States Supreme Court and the United States Courts of Appeal than to cases from the federal trial courts, the United States District Courts, or the lower state courts. A. Federalism As you no doubt remember from basic American history or civics classes, there are three branches in the federal government: the legislative branch, which is charged with making 63 federal law; the executive branch, which is tasked with enforcing the law; and the judicial branch, whose function is interpreting the law. A chart showing the organization of the government of the United States can be found in the U.S. Government Manual available at https://www.gpo.gov/fdsys. That we have federal courts that exist separate and apart from state courts is a result of a feature of our system of government called federalism. The principle of federalism developed from the time of the drafting of the Constitution. At the time of the Constitutional Convention in 1787, there were two conflicting ideas held by the framers of the Constitution. On the one hand, the framers recognized the need for a strong central or “federal” government to act in matters of national concern and to reduce George Washington’s fear that the fledgling nation had “thirteen heads, or one head without competent powers.” On the other hand, the delegates to the Convention were wary of delegating too much power to a centralized government; after all, almost all of the delegates had served as soldiers in the Revolutionary War, which had been fought against a monolithic government insensitive to the rights of the newly emerging colonies. This principle of states’ rights was seen as the best protection against an encroaching central government. The solution was a compromise: For those delegates opposed to a strong national government, the principle developed that the national government could exercise only those powers expressly delegated to it. These powers were specifically enumerated in Article I, Section 8 of the Constitution, which states that, among other things, the federal government has the power to borrow money, collect taxes, coin money, establish post offices, declare war, raise and support armies, and make any other laws “necessary and proper” for carrying out these delegated powers. This “necessary and proper” clause is often called the “elastic” clause as it makes clear that the federal government not only has the powers expressly delegated to it in Article I, Section 8 but can also take action that is not specifically mentioned so long as it is “necessary and proper” to enable it to carry out the delegated powers. As is readily seen, these specifically enumerated powers are extremely important, and those delegates in favor of states’ rights were concerned that, as a result of the compromise, the federal government was too strong and would eventually “swallow up” the states. In fact, Patrick Henry refused to attend the Convention because of his opposition to granting any additional power to the national government and expressly warned that the Constitution “squints toward monarchy.... Your President may easily become King.” However, the Constitution was immediately modified by the addition of ten amendments collectively known as the Bill of Rights, which were designed to protect individual liberties. The Tenth Amendment, in particular, was enacted to reassure those in favor of states’ rights that the federal government would not be able to encroach on the rights of the 13 new states or their citizens. The Tenth Amendment, often referred to as the “reserve” clause, provides that any powers not expressly given to the national government are reserved to, or retained by, the individual states (or the people). The result of the historic Constitutional Convention is our “living law” — a unique 64 federalist system in which the states have formed a union by granting the federal government power over national affairs while the states retain their independent existence and power over local matters. In a system based on federalism, power is shared between the national and state governments. B. Establishment of Federal Court Structure Article III, Section 1 of the Constitution created the federal court system. This section provides in part that “the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.” Thus, only the existence of the Supreme Court was ensured. It was left up to Congress to determine its composition and to create any other federal courts. In fact, the very first Congress began to work on establishing a functioning federal court system and enacted the Judiciary Act of 1789. This Act created 13 district courts in prominent cities with one judge apiece, three circuit courts, and above these, the United States Supreme Court consisting of a Chief Justice and five Associate Justices. Although the Judiciary Act of 1789 has been amended several times (among other reasons, to increase the number of Supreme Court Justices), the basic structure of our federal court system remains as it was in 1789: district courts, intermediate circuit courts of appeal, and one United States Supreme Court. Judges appointed to these courts (and to the United States Court of International Trade) are often referred to as “Article III judges.” C. Jurisdiction The jurisdiction (or power to act) of the federal courts does not extend to every kind of case or controversy but only to certain types of matters. You will learn a great deal more about this topic in your litigation or civil procedure classes, but a brief explanation is in order here for you to understand fully why some research assignments will be researched through the exclusive use of federal law, and others will be researched through the exclusive use of the law of a particular state. There are two types of cases that are resolved by federal courts: those based on federal question jurisdiction and those based on diversity jurisdiction. 1. Federal Question Jurisdiction The federal courts are empowered to hear cases that involve a federal question, namely, any case arising under the United States Constitution, a United States (or federal) law, or any treaty to which the United States is a party. Additionally, federal courts may decide controversies between states or between the United States and certain foreign officials and any cases involving the U.S. government. Cases arising under the Constitution include cases alleging racial, sexual, or age discrimination; cases involving freedom of speech, 65 freedom of the press, freedom of religion; cases involving a defendant’s right to a fair trial; cases involving federal crimes such as bank robbery or kidnapping; and any other such actions pertaining to a federal law or the Constitution. It may be easier for you to remember the scope of federal question cases (sometimes called “subject matter jurisdiction” cases) if you keep in mind a simple analogy. If a 7–11 convenience store in your neighborhood were burglarized, you would expect your local law enforcement officials to investigate the crime. On the other hand, if a bank in your area were burglarized, you would expect the investigation to be handled by the FBI, our federal law enforcement officials. Similarly, federal questions, namely those arising under federal law or the Constitution, are resolved by federal courts while more local matters are typically resolved by state courts. 2. Diversity Jurisdiction The other category of cases that is handled by federal courts is determined not by the issue itself (as are federal question cases) but by the status of the parties to the action. Imagine you are a New York resident on vacation in Montana where you become involved in an automobile accident with a Montana resident. You may have some concern whether a court in Montana would treat you, an outsider, the same as it would treat its own residents, particularly in a locality in which the residents elect the judge. To ensure that litigants are treated fairly and to eliminate any bias against an out-of- state litigant, the federal courts may resolve cases based on the diversity of the parties; that is, in general, federal courts may hear cases in civil actions between: (i) citizens of different states; and (ii) citizens of a state and citizens of a foreign nation. Diversity cases accounted for about 34 percent of the total filings in federal district courts in 2014. Note that diversity jurisdiction is conditioned upon satisfying another key element: The amount in controversy must exceed $75,000 exclusive of interest and court costs. For example, if a resident of Oregon sues a resident of Nevada for breach of contract and alleges (in good faith) damages in the amount of $80,000, the matter may be instituted in federal court. Diversity must be complete; all plaintiffs must be citizens of different states from all defendants. A federal court in a diversity case will apply the substantive state law of the state in which it is located. For example, if an Ohio resident sues a Texas resident for $100,000 for breach of contract in a Texas federal court, the federal court will rely on Texas’s law in reaching its decision. In early 2005, Congress passed the Class Action Fairness Act of 2005, which amended the federal diversity statute (28 U.S.C. § 1332 (2012)) by granting district courts original jurisdiction in civil actions in which the matter in controversy exceeds $5 million. The legislation was intended to reduce forum shopping by sending most large multistate class actions to federal court (although the district court may decline jurisdiction and send the case to a state court if the primary defendant(s) and more than one-third of the plaintiffs are from the same state). Over the years, the federal courts have increased the monetary amount in diversity cases 66 in order to prevent the federal courts from becoming inundated with cases. Until 1988, the monetary amount was $10,000. When it became apparent that almost any routine “fender bender” resulted in damages in excess of $10,000, Congress increased the monetary limit to the amount of $50,000. In October 1996, the limit was increased again to its present requirement of $75,000. There is no monetary jurisdictional limit for cases instituted in federal court based on federal questions; that is, if a plaintiff alleges she has been wrongfully discharged from her employment due to sexual discrimination, she need not allege damages in excess of $75,000. Congress has periodically considered automatically increasing the monetary limit in diversity cases based on changes in the Consumer Price Index. Diversity jurisdiction has its detractors, among them late Chief Justice William H. Rehnquist, who had urged elimination of diversity jurisdiction as a basis for initiating an action in federal court. Because total elimination of diversity jurisdiction appeared unlikely, Rehnquist alternatively suggested that diversity jurisdiction be curtailed so as to prevent citizens of one state from suing citizens from another state in federal court. It is believed such a modification to diversity jurisdiction would eliminate “forum shopping,” that is, the selection of a particular federal court for certain perceived advantages, among them the strategy of making it difficult for individuals to defend themselves in a court not located near their residences. Another criticism of diversity jurisdiction, especially in cases brought by a citizen of one state against a citizen of another state, is that the federal courts are becoming “clogged up” deciding non-federal questions such as routine automobile accident cases, which are better resolved by the state courts. Finally, federal courts do not exercise jurisdiction in domestic relations or probate matters, even if other diversity requirements are satisfied. Thus, federal courts do not probate wills or issue divorce decrees. If a plaintiff brings a case in state court that could have been brought in federal court (based on either federal question or diversity jurisdiction), the defendant may remove it to federal court. If removal was improper (because the court lacked jurisdiction), the case must be remanded or returned back to the state court. See Figure 2-1 for chart of federal jurisdiction. Figure 2-1 Federal Jurisdiction Federal jurisdiction may be based upon the following: Federal question: Any case arising under the U.S. Constitution or any federal law or treaty (28 U.S.C. § 1331 (2012)); or Diversity: Generally, cases in which all plaintiffs are from different states from all defendants and in which the matter in controversy exceeds $75,000. (28 U.S.C. § 1332 (2012)). 67  Additionally, cases originally filed in state court may be removed to a federal court, as follows: Removal: If a civil action is originally filed by a plaintiff in state court and federal jurisdiction exists, the case may be removed to federal district court by the defendant. (28 U.S.C. § 1441 (2012)). Remand: If it appears that a district court lacks subject matter jurisdiction, the case must be remanded or returned to the state court. (28 U.S.C. § 1447 (2012)). 3. Concurrent Jurisdiction Often one hears about cases that are being litigated in a state court when it seems clear the action involves a federal question, for instance, racial discrimination. In such cases, concurrent jurisdiction may exist, meaning the plaintiff alleged a cause of action that violated both state law and federal law. In the example mentioned above, the basis for the action, racial discrimination, violates both California law and federal law. The plaintiff in such a case then has a choice whether to proceed in state court or federal court. In fact, unless Congress vests exclusive jurisdiction of a matter in the federal courts, any claim arising under federal law may be heard in either federal or state court. The decision in which court to bring an action when concurrent jurisdiction exists is often made on the basis of tactics and strategy. For example, a plaintiff may wish to proceed in a federal court because it is not as crowded with cases as the local state court, thus resulting in a more speedy trial and resolution. Moreover, any diversity jurisdiction case regardless of the amount of money involved may be brought in a state court rather than a federal court. 4. Exclusive Jurisdiction Some matters are handled exclusively by federal courts and are never the subject of concurrent jurisdiction. For example, by federal law all bankruptcy cases are resolved by the United States Bankruptcy Courts (discussed below). Other examples of cases that are handled exclusively by federal courts are maritime, copyright infringement, and patent infringement cases. Generally, statutes govern which cases are subject to such exclusive jurisdiction. Because issues relating to jurisdiction are often complex, always ask your supervising attorney if you have a question relating to the jurisdiction of a case. D. Ground Rules for Cases Even if a federal question is involved or even if the requirements for diversity jurisdiction are satisfied, there still remain some ground rules that must be satisfied before a federal court will hear a case. 68  In large part, these ground rules are rooted in Article III of the Constitution, which establishes the jurisdiction of federal courts and restricts federal courts to resolving “cases” and “controversies.” This limitation has been construed to mean that federal courts will only resolve an actual controversy. Moreover, the actual controversy must exist throughout the matter, and not merely at the date the action is initiated. With very few exceptions, federal courts will not consider issues that are “moot” or already resolved. In fact, it is a fraud on a court to continue with a case that is moot. An exception to this requirement is demonstrated by the well-known case Roe v. Wade, 410 U.S. 113 (1973), in which a pregnant plaintiff challenged a Texas law prohibiting abortion. By the time the case reached the United States Supreme Court, the plaintiff had given birth and placed the baby for adoption. The United States Supreme Court could have dismissed the case claiming it was moot — namely, that the issue had already been effectively decided upon the birth of the child and that even if the court awarded the relief the plaintiff had requested, declaring abortion lawful, the plaintiff’s situation would not be affected by the ruling. However, in Roe, the United States Supreme Court, realizing that such a case would inevitably be rendered moot by the time it would reach the Court, made an exception and heard the case. A close corollary to this ground rule that federal courts will not consider questions that are moot is that federal courts will not render advisory opinions, even if asked by the President. The federal courts view themselves as constitutionally bound to resolve actual ongoing disputes, not to give advice. For example, President George Washington once sent the Supreme Court 29 questions on treaties and international law, asking for advice. The Justices refused on the dual bases that under the Constitution, they could not share powers and duties with the executive branch and that they were forbidden to issue advisory opinions. Finally, a plaintiff must have personally suffered some actual or threatened injury; that is, the plaintiff must be adversely affected by some conduct of the defendant and cannot base a claim on the rights or interests of some other persons. No matter how convinced you may be that a law is unconstitutional, you cannot challenge it unless your rights are directly affected. This requirement is referred to as “standing.” For example, in Sierra Club v. Morton, 405 U.S. 727 (1972), the Sierra Club brought an action to prevent development of California’s Mineral King Valley into a commercial resort. The Court concluded that the Sierra Club lacked standing as it had not alleged that it or any of its members would be affected by the defendant’s activities in developing Mineral King Valley. The Court noted that standing does not exist merely because one has an interest in a controversy or a matter is personally displeasing; one must have a personal stake in the outcome of the controversy. In a more recent example, in late 2009, the United States District Court for the District of Columbia entered judgment in favor of defendant’s Ringling Bros. circus in an action brought by a former circus employee who alleged that the circus’s conduct toward its elephants violated the Endangered Species Act. The court ruled that the plaintiff lacked standing to sue because he did not prove he had a strong attachment to the elephants and that their treatment caused him to suffer injury. The court also found that he lacked 69 credibility because he was essentially a “paid” plaintiff. ASPCA v. Feld Entm’t, Inc., 677 F. Supp. 2d 55, 67 (D.D.C. 2009). E. The Federal Court Structure 1. District Courts The district courts are the trial courts in our federal system. At present, there are 94 district courts scattered throughout the 50 states, the District of Columbia, and the territories of the United States. There is at least one district court in each state, and the more populous states, namely, California, New York, and Texas, have four within their territorial borders. Other less populous states, such as Alaska, Idaho, and Vermont, each have only one district (although they may have branches or divisions in other parts of the state to allow easy access for litigants). There are also district courts located in Puerto Rico, Guam, the Northern Mariana Islands, and the Virgin Islands. Although there may not be a federal district court located in your hometown, there is at least one in your state, thus providing you with ready access to the federal courts. See Figure 8-1 in Chapter 8 for a list of all district courts. These district courts have jurisdiction over a wide variety of cases. One day a district court judge may hear a case involving a bank robbery and the next day may resolve a civil rights question followed by a case involving securities fraud. Bankruptcy courts are considered units of our district courts with judges appointed by the courts of appeal for renewable terms of 14 years. Each of our 94 districts includes a United States bankruptcy court. There are 670 authorized judgeships for our federal district courts. The judges are, as are all of the judges in the federal court system, appointed by the President and confirmed with the advice and consent of the United States Senate. The number of judges assigned to a particular district court will vary depending upon the number of cases the court is called upon to adjudicate. There may be as few as one district court judge assigned to a division (although there must be at least two assigned to each district), or there may be nearly 50, as is the case for the increasingly busy Southern District of New York. In the event of a shift in the population that increases the caseload of a district, the United States Congress will add or approve new judgeships to enable the district court to keep pace with its increasing demands. The district court judges, who are paid $203,100 per year, usually sit individually; that is, they hear cases and render decisions by themselves rather than as a panel or group as the judges for our intermediate courts of appeal and our United States Supreme Court Justices sit. The vast majority of all federal cases end at the district court level; only approximately 18 percent of these federal cases are appealed. Civil filings in the district courts increased about 4 percent between 2010 and 2014. Recent studies estimate that less than 2 percent of all federal civil cases go to trial, fewer than did in 1962, partly because of out-of-court settlements and partly because of alternatives to litigation, such as mediation and 70 arbitration. Many experts are dismayed by the lack of trials, believing that the trial system is central to democracy and to developing our common law. Additionally, prisoner petitions declined after the enactment of the Prisoner Litigation Reform Act, aimed at reducing prisoner petitions. Finally, product liability cases such as those involving breast implants and asbestos cause moderate fluctuations from year to year. 2. United States Courts of Appeal The 13 United States Courts of Appeal, sometimes called the circuit courts, are the intermediate courts in our federal system. The theory of our judicial system is that a litigant should have a trial in one court before one judge and a right to an appeal in another court before a different judge or judges. This structure serves to satisfy the cause of justice and to ensure that a litigant who may have been denied any rights at the trial in the district court will have a second opportunity before a different panel of judges in these intermediate courts of appeal. In fact, a statute directs that no judge may hear an appeal of a case originally tried by him or her. In a civil case, either side may appeal the verdict. In a criminal case, the defendant may appeal a guilty verdict, but the government may not appeal if a defendant is found not guilty. Either side in a criminal case may appeal with respect to the sentence that is imposed after a guilty verdict. It is critical to distinguish between the district courts, where the trial occurs, evidence is presented, witnesses testify, and a decision is rendered, and the courts of appeal, whose primary function is to review cases from these district courts. The courts of appeal do not retry a case. They do not receive additional evidence or hear witnesses. They merely review the record and the briefs of counsel to determine if a prejudicial error of law was made in the district court below. A second important function of the United States Courts of Appeal is to review and enforce decisions from federal administrative agencies such as the National Labor Relations Board or the S