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Advanced Legal Research
University of North Carolina School of Law
Sampson, SaraA.

Sara Sampson

Advanced Legal Research

Fall 2013

I. Legal Research Process

a. Sources, Skills & Strategy

i. To be a competent legal researcher, you must master all three.

ii. Sources

1. Codes vs. Session Laws

iii. Skills

1. Controlled vocabulary searching vs. keyword searching

iv. Strategies

1. How to find cases similar to a known case

2. When do I stop researching?

b. Fundamentals

i. 51+ different and independent legal systems in the U.S.

ii. Each system operates differently –

1. Different names for courts

2. Different levels of review

3. Different codification structure

4. Different rules for using unreported opinions

5. Different rules for statutory construction

c. Federal Government Structure

i.

d. Sources of Law

i.

e. United States Court System

i.

f. Legal Structure

i. US is a common law country

1. Common law: law developed from judicial decisions

a. Doctrine of Precedent (stare decisis):

2. But also elements of civil law systems

a. Increasing influence of statutory and regulatory law

b. Judicial interpretation and review

g. Types of Authority

i. Mandatory authority

1. Law that must be followed

ii. Persuasive authority

1. Influential but non-binding

iii. Status depends upon jurisdictions involved

h. Primary vs. Secondary

i. Primary Sources

1. The actual text of the law

2. Distinct from mandatory/persuasive authority

ii. Secondary Sources

1. Explain, analyze or critique the law

2. May function as finding aid

i. Interaction of Source and Authority

i.

j. Research Plans

i. Have a plan to guide you

ii. Keep a log

1. Where did I look/How did I look/What did I find?

a. I.e. Lx-all cases; “oper! a motor vehicle”; these 5 cases

k. Rombauer Method

i. Perform preliminary analysis

ii. Search for statutes, regulations

iii. Find cases—mandatory precedent

iv. Find persuasive precedent

v. Refine, double-check and update

l. Types of Searching

i. Full-text

1. Field/segment searching

a. i.e. au(Hazen); looking at parts of what’s written

2. Boolean searching; terms and connectors searching

3. Complete control to user; doesn’t find anything more or less

ii. Relevancy searching

1. “Google” search using “black box” to give results

2. Little control, don’t know what it’s doing

iii. Subject searching

1. Human-mediated process

2. i.e. person has read all of the cases and decide where it goes

3. Case Notes

m. Generating Search Terms

i. Who, what, when, where, why

ii. TARPP (Things, Actions, Remedies, People, and Places)

iii. Extrapolate vertically and horizontally

n. The Goal of Legal Research

i.

II. Statutes

a. Why First?

i. Highly regulated society

ii. Most often something on-point

1. If you find something, it will naturally lead to other relevant sources

a. Layout of the code-by subject and indexed

b. Lead you to secondary sources and cases

b. Two Basic Sources of Statutes

i. Session Laws & Codes

c. Session Laws

i. Why Use Session Laws?

1. Not used to figure out what the law is today

2. To trace the development of the statute over time

3. A source for uncodified acts

4. As the original form of the act and to determine the original numbering of its sections

a. Sometimes people will refer to numbers in the Act and not the numbers in the Code

5. For convenience (when the codification scatters the text of the law)

6. Previous versions of the law

7. Law in the past may govern your case depending on when it happened (i.e., was it a misdemeanor or felony at the time of the crime)

ii. Where to find session laws?

1. Federal

a. United States Statutes at Large (official)

b. United States Code Congressional & Administrative News (USCCAN)

c. Available freely on FdSys and on Westlaw, Lexis, HeinOnline

2. North Carolina

a. Available in the Session Laws of North Carolina

b. Included in the state session law database on Hein (has all states and will eventually have all years)

c. Available freely from State Library of NC

i. http://ncgovdocs.org/guides/sessionlawslist.htm

iii. Federal Public/Private Law Distinction

1. Public law – affect the public at large

a. Applies to everyone

2. Private law – for the benefit of individual

a. Intended to apply only to an individual

b. No private laws in code

3. Equal status as law

4. Editorial discretion

a. No appeal

iv. Example of a Session Law

v. North Carolina – Types of Acts

1. Private Acts

a. Concern one person

2. Local Act

a. Concern issues relevant to at least one, but less than 15 counties

b. Special rules for passage and limitations on subjects in Constitution

c. Bill will usually have local in right hand corner

a. Overview of history

b. Selective annotations to leading cases

c. Other useful tables – like Acts of Congress Held Unconstitutional by the Supreme Court

3. NC Constitutional Research

a. There have been 3 constitutions

i. 1776 (called the Independence Constitution)

ii. 1868 (called the Reconstruction Constitution)

1. Significantly amended in 1873 & 1875

iii. 1971 (called the Constitution of 1971)

1. Declaration of Rights

iv. Interpreting the current constitution

1. Annotations in the code set (online or print)

2. John Orth’s The North Carolina State Constitution

f. Check

i. What are the major differences between codes and session laws?

1. Session laws arranged chronological; codes by subject

2. Everything in session laws; private laws, temporary laws, appropriations, and appointments are not in code

ii. When should a legal researcher use session laws?

1. Know what the history of the law is (History)

2. Want to look at the whole law (Convenience)

iii. When should a legal researcher use codes?

1. Find sections that are all on the same subject

2. Find cases, regulations, things that are relevant to the code section

3. When you want to know what the current in force law is

iv. True or False: All federal laws currently in force are contained in the US Code.

1. False; judicial decisions may make the law not in force

2. Not even all federal statutory laws

g. Statutory Research Process

i. Determine the relevant jurisdiction and therefore code or session law database

1. Codes are jurisdiction specific

ii. What are your entry points?

1. Do you have a subject, a name of an act, or some sort of citation?

2. Find the section(s) with the appropriate method.

iii. Browse around it

iv. Update your research

1. If in free database, check when database was updated

h. Possible results of your research

i. Find something that answers unambiguously

ii. Relevant but doesn’t answer