Research-ology-Harvard-Law-School.doc

Research Methodology: Explanation of TermsAnnotated code: A version of a code (a subject compilation of laws) which in addition to the language of the law also contains references to law review articles, other relevant regulations or statutes, and, most importantly, summaries of cases which discuss or interpret the particular code section. The annotations are provided by the editors and are not a part of the official language of the code. United States Code Annotated, published by West, is an annotated version of the official United States Code published by the federal government. Most annotated codes are statutory. There are very few annotated regulatory codes.Authority: Primary authority is the law-whether it is found in cases, statutes, regulations, or decisions of administrative bodies. Secondary authority are sources which explain the law. These may be law review articles, scholarly treatises, bar journals, encyclopedias or practitioner books.Mandatory authority or mandatory precedent: Binding authority in the particular jurisdiction, which must be followed. Whether a statute or regulation is mandatory authority may depend on the facts involved. Mandatory case law may also depend on the identical nature of the facts and legal issues involved as well as the level of the court which issued the opinion. A lower court is required to follow a higher courts ruling on an issue. A higher court is not required to follow the ruling or reasoning of a lower court opinion, although that opinion may be persuasive authority.Persuasive authority: All authority which may be used to convince a court to apply the law in a certain direction. Elements to consider are the similarity of key facts and legal issues, the reasoning of the court, and the authority of the issuing body. Decisions of high courts are more persuasive than decisions of lower courts. Arguments set forth in major law reviews are more persuasive than those set forth in bar journals.Blackletter law: This phrase refers to the basic standard elements for a particular field of law, whether it is, for example, the standard elements for a contract or the technical definition of battery. Blackletter law is not recorded in any one place or research source, nor is blackletter a term you will find in most indices. Instead, you will need to research the specific area of law to determine the standard elements. Secondary sources are your best source for these.Core legal theory: The core legal theory of your case theory encompasses both the key facts supporting your case and the various legal theories which you believe support your position. It is both the driving force behind the your conceptualization of the case and the art of making your point and finding the resources to support that position. Your core legal theory is the story you present which predisposes the finder of truth, be it a jury or a judge, to believe that an injustice has been done. It dictates the presentation of your case. It allows you to tie together the applicable legal rules with the emotional side of your case and the sense of justice.It is important to note the interaction between your core legal theory and your legal research. The activities you will undertake during a research project from the time you receive the assignment until you complete your written product, will involve many steps. You will perform a preliminary analysis of the problem, conduct legal research, analyze the results of your research, develop a core legal theory, and use that theory to apply the law you found in your research to the facts of your particular problem. Although you will go through several steps, this is not a linear process. A problem of any length or complexity will require you to evaluate and modify at several stages your analysis of the problem. Most likely you will go through a circular process of analysis, research, and evaluation of your analysis followed by more research. Initial theories may have to be changed or even abandoned. Seemingly important facts may not in the final analysis prove to be important while others may determine whether particular legal principles are applicable. During the course of this process of analysis and research, you will develop the core legal theory of your case which in turn will guide you in the presentation of your final arguments.Legal dictionaries: A legal dictionary defines terms relevant to law. While there are several dictionaries to choose from, Blacks Law Dictionary (KF156 .B53) and Ballentines Legal Dictionary and Thesaurus (KF156 .L95) are the two most popular. These are available in the Reference area of Langdell. Also, note that Blacks is available in Westlaw (database identifier is DI). Which legal dictionary you use is a matter of personal preference. You may also find, however, that after the first few weeks of school, you have only isolated occasions to refer to one.Digests: Provide subject access to cases which are published chronologically in case reporters. Without digests, there would be no efficient way of locating all the cases on a particular subject. Digests provide brief summaries of cases organized by subject. The West digest system is one major system which can serve to illustrate how a digest is structured.West has organized roughly 400 topics that the West editors believe are the broad topics representing all issues in American case law. These topics range from abandoned property to mental health to zoning. An outline for each topic has been developed which breaks each subject down into its various elements. These may be only a few or may be several hundred. Each of these elements or sub-topics is numbered. Editors at West read each case published, writing as many summaries of the various points of law as the editor deems necessary. Each of these summaries is then assigned a topic and key number according to the outline that has been developed. A case may have only a few of these summaries or it may have several dozen. The summaries along with the topic and key number are published as headnotes with the case in a West reporter. The summaries are also published in the appropriate West digest along with all the other summaries for each particular topic and key number.To locate cases using the digest system, you must use the appropriate topic and key number. If you do not know what topic and key number have been assigned to the area of law you are researching, you should use the digests Descriptive Word Index. As with any index to a research tool, you must search using the words and synonyms that convey your factual or legal issue. For example, assume you wish to locate Massachusetts cases that address the issue of the liability of doctors for failure to disclose information to a patient. To locate the appropriate topic and key number, you would turn to the Descriptive Index for the Massachusetts Digest Second Series. You might look up several words or phrases in the Descriptive Word Index such as doctor, physician or disclosure. Each of these can eventually lead you to the topic and key number physicians & surgeons 15(8). You would now want to turn to the appropriate volume of the digest where you will fine listed under that topic and key number, summaries of the cases for that jurisdiction and time period which are about mental capacity to commit crimes. Although you will not want to guess which topic the West editors have assigned to your issue, once you know a relevant topic, you might wish to browse through its outline to determine if key numbers other than the one you have will help.If you already have a relevant case, which you might have found from a secondary source, the headnote at the beginning of the case will give you the topic and key number.Digests can also provide you with the citations for known cases. If you know the name of the case, the Table of Cases will give you the citation. You should use the Defendant/Plaintiff if you only know the name of the defendant.A principal advantage of the West digest system is that it is uniform for all state and federal jurisdictions. Thus, a topic and key number mean the same thing for California appellate court cases as they do for the United States Supreme Court. In addition, you may use the topic and key number to search on Westlaw.Please note that many digests cover specific time periods and do not cumulate information published in previous series. Thus, you may have to check the same topic and key number in several volumes in order to complete your research. As with all legal research, you must be sure to check any pocket parts and updating pamphlets that are provided.Dispositive questions: Many legal research assignments present multiple questions: Do the actions involved constitute a harm to A for which he can recover? Can B be held liable? What are the damages? Has the statute of limitations run such that it is too late to commence an action? Answer one question at a time to determine how the answer to that question might affect another question. You may find that the answer to one question might make another question mootEncyclopedias: Secondary sources which present background information for broad subjects. They do not present the critical analysis that you will find in scholarly treatises or law review articles. They are more rudimentary and as such present you with the blackletter law you may need as well as key references to primary sources which you may need if you are just beginning to research a problem with no substantive knowledge of that area of law. Two major legal encyclopedia which are national in scope are Corpus Juris Secundum known as CJS (KF154 .C56) and American Jurisprudence 2d known as AmJur2d (KF154 .A42). Both of these are located in the Langdell Reading Room. You will also find legal encyclopedia for particular states such as New York Jurisprudence 2d (KFN5065 .N48) and California Jurisprudence 3d (KFC80 .C29). These are located on 3N.Law reviews: These are a subset of legal periodical literature which includes legal newspapers and bar association journals. The legal profession is unique in that the scholarly literature is published predominately in student-edited journals. Law reviews provide analytical articles discussing new developments in law, generally focusing on policy issues while pushing the law to the cutting edge. While not mandatory authority, articles by well-respected scholars in a field published in the best law reviews often serve as persuasive authority for courts.Looseleafs: Because of the need for currency and the amount of time involved in publishing books, the legal system relies extensively on looseleaf format for materials in some areas of law. These come in two major types. First, is the type in which additional pages are added at the end of the set as new cases are published or new materials are developed. United States Law Week, which reports activities of federal courts and publishes Supreme Court opinions, is an example. The majority of looseleaf sets, however, consist of binders of pages in which new pages are interfiled in the set at the point in the text where the changes have been made. This allows for materials to be updated on a regular basis, often weekly. Looseleaf sets may provide secondary source material or they may contain primary materials such as cases, regulations and statutes. Some sets contain almost everything a practitioner in that field would need. For example, the CCH Standard Federal Tax Reporter has the internal revenue code, the tax regulations, cases, digests of cases, finding tools, and even a citator.Online sources: Westlaw and LexisNexis are the two principal online sources for legal information. A developing new source is Loislaw which provides access to federal and state primary and secondary law sources. In addition, the Internet is increasingly becoming a resource for legal research, although one must constantly be more alert to the accuracy and completeness of the sources found on the Internet. Many students ask what the difference is between Lexis and Westlaw or why they should use one over the other. The answer to this varies and has many parts. First, your employer for whatever reason, including financial considerations, may only have one of the two systems. Personal preferences for whatever reason often plays a key part in deciding which system to use. Westlaw provides the headnotes from the West reporter system while Lexis wealth of non-legal and business information is highly valuable.Another important question often asked is, why use books at all if there are computers? The online services should be seen as another resource that can help you with your research. Often, it is the best source. However, there are also times when it may be a hindrance. You may need to research a project in both book and online sources, using the information gathered from one to help you with using the other. Of course, you may find that what you need is not available online yet-or that your access is limited at the time you need to find the answer.Practitioner materials: These are treatises and form books which provide a basic explanation of an area of law-often with step by step approaches and advice for handling a case along with recommended forms. They provide references to the basic authority such as leading cases or essential statutes. They tend not to provide explanations on the development of the law or argue for the direction the law should be developed in the future. Californias Continuing Legal Education series and New Yorks Practicing Law Institute are strong examples of publishers providing the field with respectable and essential how-to resources.Regulation: Rule or order issued by an agency of the executive branch of government which has the force of law. Regulations must be authorized by the statute and generally provide more details on a particular subject than does the authorizing statute. For example, the statutes on public accommodations under the American with Disabilities Act, 42 USC 12181 et seq., are supplemented with additional definitions and requirements, issued by the Department of Justice, which can be found at 28 CFR 36.101 et seq. The CFR is the Code of Federal Regulations, the subject compilation of current federal regulations, which are initially published chronologically in the Federal Register.Treatises: Treatises are scholarly secondary sources, which provide you with an analysis of the law in an area, the background to the laws development, and more detailed examples to the various possible alternative developments for a particular area. They will often argue the direction the law should be developed, pushing it to the cutting edge. How respected or authoritative a particular treatise is will depend on the respect a court will have for that author.Research GuidesGeneral Library Research | United States Law Research | Foreign, Comparative & International Law ResearchGeneral