ReutersLegalResearch如何进行法律研究备忘录写

1、LEGAL RESEARCH THOMSON REUTERS LEGALWESTWANG CHANG, ESQ.OCTOBER 23, 2008第一页，共五十一页。AgendaThomson Reuters - LegalAmerican Courts What is legal research? Forms of legal informationWests National Reporter SystemWests Key Number SystemAmerican Digest SystemALR and annotations第二页，共五十一页。Thomson Reuters Leg

2、al 汤姆森路透法律信息集团 The North American Legal market is the worlds largest and comprises primarily professional law firms, corporations, government and judicial agencies, and academic institutions. This market relies heavily on online technology for information sourcing. 汤姆森路透法律信息集团- 世界上最大的法律市场和法律信息服务市场,

3、包括专业律师事务所, 公司法务, 政府部门, 司法部门, 以及学术机构。法律及法律信息市场在很大程度上依赖高科技的在线信息资源和产品。 第三页，共五十一页。Thomson Reuters Legal - North American汤姆森路透法律信息集团北美总部Current Eagan campus size is approximately 271 acres 北美集团伊根总部占地271英母Data centers comprise 75,000 square feet 全球领先的数据中心，7万5千平方英尺Holds more than three petabyte of installe

4、d disk space and over 3.5 petabytes of data backed up on tape. 三万多兆字节数据存储在硬盘空间上； 三万五千余兆数据备份在磁带上 One petabyte of data would fill a stack of CDs 1.75 miles high.一万兆字节的数据装满的CD盘，叠起来将长达1。74英里7000 employees (More than 1000 attorneys). 共有 7000 名员工(其中1000多位律师)第四页，共五十一页。Inside West第五页，共五十一页。Thomson Reuters L

5、egal 汤姆森路透的主要法律业务部门West 集团： 法律图书，软件，多媒体产品， 法律培训Westlaw: 世界最大最权威的在线法律法规数据库集成Foundation Press: 法律研究和高校法律教材专业出版社Findlaw: 专业法律人士门户网站Bar/Bri: 律师资格考试服务集团Sweet & Maxwell: 历史悠久、倍受尊敬的英国法律出版集团Westlaw China （万律）：中国法律数据库和咨讯平台第六页，共五十一页。AgendaThomson Reuters - LegalAmerican Courts What is legal research? Forms of

6、 legal informationWests National Reporter SystemWests Key Number SystemAmerican Digest SystemALR and annotations第七页，共五十一页。Separation of Powers第八页，共五十一页。Comparative PerspectiveStare Decisis/ Precedent: Stare Decisis/ Precedent: fairness and stability. the basic assumption is that if there is a case f

7、rom the past having facts and legal issues similar to those in the case currently before the court, the outcome of the past case should control the outcome of the present case. This concept is often referred to as precedent. (Common law) Separation of Powers: Check on government powers: “unconstitut

8、ional”Due Process - Juries -Adversary system: two parties present to the Court all the evidence and testimony they can find, in the most persuasive manner allowable, in order to achieve a decision favorable to their interests. - Procedural rules are made by the courts: Federal Rules of Civil Procedu

9、re; Federal Rules of Criminal Procedure; Federal Rules of Evidence; Court Rules第九页，共五十一页。Comparative Perspective - ContinuedLawyer, an officer of the court. - To our clients, we are advocates and advisors. - To the courts, we are officers whose duty it is to speak for the justice system. - To the pu

10、blic, we represent the rule of law, and we have an obligation to represent it honorably. Standard of review: is the amount of deference given by one court (or some other appellate tribunal) in reviewing a decision of a lower court or tribunal. - Where a lower court has made a discretionary ruling (s

11、uch as whether to allow a party claiming a hardship to file a brief after the deadline), that decision will be reviewed for abuse of discretion. - Where a lower court makes a finding of fact, it will be reviewed for clear error. - A finding of law is reviewed de novo - as if the reviewing court were

12、 considering the question for the first time. 第十页，共五十一页。Judge: Federal and StateThe US Supreme Court justices, court of appeals judges, and district court judges are nominated by the President and confirmed by the United States Senate, as stated in the Constitution. Federal judges in the United Stat

13、es (except those who have recess appointments) serve life terms for their period of good behavior. Once appointed, state judges in the United States usually serve terms for a fixed period of years, although in some states (e.g., Massachusetts) the appointment is for life, often subject to mandatory

14、retirement at some fixed age. In those states where the appointment is not for life, judges must, after their initial term, be re-elected, face a retention election, or face reappointment by an appropriate authority. The law governing judicial elections in the United States is in flux with the gener

15、al tendency being to discard historical limitations on the ability of a judge to campaign based upon judicial philosophy. 第十一页，共五十一页。Dual SystemFederalCases in which the United States is a partyCases involving foreign officialsCases involving parties from different states Cases involving the United

16、States ConstitutionCases involving patents, copyrights and bankruptciesStateAll except Federal 1, 2, and 5 第十二页，共五十一页。Dual System Continued The United States Supreme Court13 judicial circuits, each with a court of appeals (6 -28 judges each circuit)89 districts in the 50 states. + Puerto Rico, the V

17、irgin Islands, the District of Columbia, Guam, and the Northern Mariana Islands. In total there are 94 U.S. district courts. Minnesota Supreme CourtMinnesota Court of AppealsMinnesota District CourtsMinnesota Tax CourtMinnesota Workers Compensation Court of Appeals第十三页，共五十一页。American Courts Trial Co

18、urtsby geography or by subjectIssues of fact and lawFact finder: judge or juryFact findings are binding on the parties and cannot be appealedIssues of law are decided by the judge and can be appealed第十四页，共五十一页。American Courts Appellate CourtsPanel of judgesOnly questions of lawMust have raised objec

19、tion in courtPrecedent for lower courts in same jurisdictionOnly hear small percentage of cases from trial courts第十五页，共五十一页。US Federal Circuits第十六页，共五十一页。The Courts of Last ResortSit en banc (odd number)usually how many for state court? ( 5 9) How many in the US Supreme Court? (9) Decide what cases

20、to hear Extremely small percentage of lower court cases heardPrecedent for all lower courts第十七页，共五十一页。Supreme Court of The United StatesThe highest court in the landHas the final word on federal issues raised in state courts, and it hears cases arising between states. The Court makes law through its

21、 decisions in individual casesAnnual term: first Monday of October Late June or early July of next yearIssues opinions in less than 100 cases/ year 第十八页，共五十一页。AgendaThomson Reuters - LegalAmerican Courts What is legal research? Forms of legal informationWests National Reporter SystemWests Key Number

22、 SystemAmerican Digest SystemALR and annotations第十九页，共五十一页。IRACIssueRuleAnalysis/ApplicationConclusionIRAC is a methodology for legal analysis; IRAC is used to organize a legal argument. 第二十页，共五十一页。How To Find the LawLegal research is the process of identifying and retrieving information necessary t

23、o support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation.“第二十一页，共五十一页。Legal Research as a Fundamental

24、 Lawyering SkillsFundamental Skill # 3: “In order to conduct legal research effectively, a lawyer should have a working knowledge of the nature of legal rules and legal institutions, the fundamental tools of legal research, and the process of devising and implementing a coherent and effective resear

25、ch design . ” MacCrate Report: Legal Education and Professional Development, An Educational Continuum Report of The Task Force on Law Schools and the Profession: Narrowing the Gap, JULY 1992. American Bar Association, Section of Legal Education and Admissions to the Bar第二十二页，共五十一页。The “Ideal” Proces

26、sFrame the issue Brainstorm search terms Determine jurisdiction Locate, read, and update secondary sources Locate read and update primary authorityLookup rules of procedure, ethics, non-legal and other materials if needed 第二十三页，共五十一页。Key questions Be clear about the scope of your project. Are you re

27、searching an issue for an appellate brief, a memo to a partner, a scholarly article, an oral presentation? How much time (and money) can you devote to the project? Be sure you have the basic facts. Ask the who, what, when, where, why and how questions. Articulate the legal issue. What jurisdiction i

28、s involved? Federal or state? Is this a civil or criminal matter? Who are the parties and what relief is sought?Is this a substantive or procedural issue? Consider which of three branches may have established the law on this issue.第二十四页，共五十一页。Legal Research Process第二十五页，共五十一页。Know Where to Stop The

29、Loop RuleWhen you start to see the same documents and citations over and over, you should probably realize you are done, especially if you have used the research products of more than one publisherThe Economic Analysis or Diminishing Return RuleWhen you are investing more in your research than you a

30、re getting in returnThe Zen RuleWhen you have been working in an area of the law for a long time, you will be so familiar with the primary and secondary law you will have become an expert and will know when to stop.第二十六页，共五十一页。AgendaThomson Reuters - LegalFundamentals of American law What is legal r

31、esearch? Forms of legal informationWests National Reporter SystemWests Key Number SystemAmerican Digest SystemALR and annotations第二十七页，共五十一页。Legal Information in a NutshellPrimary Authority IS the lawCases, Statutes, Constitutions, Regulations, RulesSecondary AuthorityAnalysis and commentary Usually

32、 the best place to begin researchTreatises, Practice materials, Periodicals, American Law Reports & much moreFinding Tools and Updating ToolsDigests, Indices and other techniquesWestlaw Keycite第二十八页，共五十一页。Sources of Law Primary SourcesUS Constitution; Bill of Rights; state constitutionsTreaties are

33、formal agreements among nations under international lawStatutes and laws Rules, regulations, and ordersExecutive orders Case laws Primary authorities as a body constitutes the law, the set of enforceable legal rules and principles and may be mandatory or persuasive.第二十九页，共五十一页。Sources of Law Seconda

34、ry SourcesLegal encyclopediasText and treatises (hornbooks)RestatementsLaw reviewsAnnotations ALRSecondary sources comment upon, analyze, discuss, interpret, and/or criticize primary authorities, but cant rise above persuasive authority. 第三十页，共五十一页。Search Books finding and updating toolsDigests: e.g

35、., American Digest System Indices: Table of CasesCitators: e.g. KeyCiteWest publishes primary sources, secondary sources, and search books. 第三十一页，共五十一页。The Development of Legal Publishing - Blackstone200 years ago, almost all the information a lawyer needed was contained in the American edition of B

36、lackstones Commentaries on the Law of England the great multivolume, comprehensive law text of the 18th century. “With Blackstone, a desk, and an inkwell, you were a lawyer. “第三十二页，共五十一页。The Development of Legal Publishing - WestWest Publishing was founded by John B. West and his brother Horatio in

37、1872 in St. Paul, Minnesota. In 1882, with Charles W. Ames and Peyton Boyle, the West brothers incorporated the company. West Publishings first product was The Syllabi, a weekly record of excerpts from Minnesota courts. Between 1876 and 1887, this publication was expanded into the National Reporter

38、System. John B. West was the first salesperson for the company and the first full-time law book salesperson in Minnesota, traveling throughout the upper Midwest by train, horse-drawn carriage and sleigh. A century later in 1975, West Publishing launched its first computer-assisted legal research ser

39、vice, Westlaw. West Publishing moved its headquarters to Eagan, Minnesota, in 1992. 第三十三页，共五十一页。AgendaThomson Reuters - LegalFundamentals of American law What is legal research? Forms of legal informationWests National Reporter SystemWests Key Number SystemAmerican Digest SystemALR and annotations第三

40、十四页，共五十一页。West National Reporter SystemNorthwestern (N.W.; N.W.2d): IA, MI, MN, NE, ND, SD, WIPacific (P.; P.2d.; P.3d.): AK, AZ, CA, CO, HI, ID, KS, MT, NV, NM, OK, OR, UT, WA, WYAtlantic (A.; A.2d): CT, DE, DC, ME, MD, NH, NJ, PA, RI, VTNortheastern (N.E.; N.E.2d): IL, IN, MA, NY, OHSouthwestern (

41、S.W.; S.W.2d): AR, KY, MO, TN, TXSoutheastern (S.E.; S.E.2d): GA, NC, SC, VA, WVSouthern (So.; So.2d): AL, FL, LA, MS第三十五页，共五十一页。West National Reporter System第三十六页，共五十一页。AgendaThomson Reuters - LegalFundamentals of American law What is legal research? Forms of legal informationWests National Reporte

42、r SystemWests Key Number SystemAmerican Digest SystemALR and annotations第三十七页，共五十一页。West Publishing DigestsTopic and Key number system invented in 1908 and is published in digestsA “master index to all of the case law of the country.”There are seven major areas of the law, 440 legal topics and more

43、than 95,000 points of law in those topicsSystem indexed case law from 1658 Today, there are more than 20 million headnotes第三十八页，共五十一页。The Key Number SystemThe West Key Number System The Index to American LawIn existence for over 100 years.The Key Number System is the only research taxonomy for legal

44、 information. It is the most widely used index system in the world. The System is an outline of the entire body of American law, broken down into over 400 topics and 100,000 subtopics. Uniform across all federal and state jurisdictions throughout all of Wests Digest and on Westlaw; Searchable on Wes

45、tlaw or through use of print Digests.Ever changing and expanding.第三十九页，共五十一页。Matters Relating to the Following Categories:PersonsPropertyContractsTortsCrimesRemediesGovernment第四十页，共五十一页。Why is the Key Number System important?It makes legal research easier, more accurate & more relevant.It is an inde

46、x used to find opinions relevant to a legal problem and it is a list of issues important in the law.Not only will it help you find cases, but it will also help you identify the issues you need to consider. 第四十一页，共五十一页。Topic and Key Number - IllustrationThe approximately 400 topics are arranged alpha

47、betically and numbered between 1 and 450.Each topic addresses a broad legal issue. Some topics have been added after the original 414 topics were assigned numbers See 48A Automobiles and 48B AviationOther topics have been eliminated, renamed, or reorganized. (There is no longer a topic 3.)第四十二页，共五十一

48、页。Topic and Key Number - IllustrationEach topic is broken down into subheadings.There can be up to eight levels in the topic and key number hierarchy.This process continues until further breakdown of a point of law is unproductive and a specific key number is assigned. See, 92k90.1(1.2) above.There

49、are approximately 100,000 specific key numbers.第四十三页，共五十一页。AgendaThomson Reuters - LegalFundamentals of American law What is legal research? Forms of legal informationWests National Reporter SystemWests Key Number SystemAmerican Digest SystemALR and annotations第四十四页，共五十一页。West DigestsSince 1872, the Digest System has been one of the most important tools in American legal research. It is the most comprehensive index to the American legal system, con