The Researcher’s Law DictionaryA legal dictionary with emphasis on the tools and resources
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The Researcher’s Law Dictionary A legal dictionary with emphasis on the tools and resources of legal research, of particular interest to researchers, students, and librarians, with definitions more in-depth than found in any other dictionary. Edward B. Sadowski, MLS .The Researcher’s Law Dictionary Page 2 Copyright 2010 by Edward B. Sadowski. All rights reserved. Citations in primary and secondary sources and documents use abbreviations of case reporters, codes, courts, law reviews, and other legal resources. Proper forms of abbreviations are required by courts for all submitted legal documents. Abbreviations of courts and publications used in legal citation are often completely inscrutable, akin to trying to...
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- The Researcher’s Law Dictionary A legal dictionary with emphasis on the tools and resources of legal research, of particular interest to researchers, students, and librarians, with definitions more in-depth than found in any other dictionary. Edward B. Sadowski, MLS
- The Researcher’s Law Dictionary Page 2 Copyright 2010 by Edward B. Sadowski. All rights reserved. Citations in primary and secondary sources and documents use abbreviation abbreviations of case reporters, codes, courts, law reviews, and other legal resources. Proper forms of abbreviations are required by courts for all submitted legal documents. Abbreviations of courts and publications used in legal citation are often completely inscrutable, akin to trying to decipher hieroglyphics. Before you can track down a publication in a citation, you need to figure out its complete title. There is not a standard set of abbreviations used by all law reporters and reference guides. Such sources as Shepard’s, Black’s Law Dictionary, and citation manuals such as The Bluebook may vary in their forms of abbreviations. The Bluebook: A Uniform System of Citation has a section in the back of the book with the most common abbreviations of legal publications. The blue pages in the middle of The Bluebook has the proper citations for the various states. The front of the state Digests has the abbreviations for that state’s courts. Black’s Law Dictionary is also a helpful resource, with a section on abbreviations.There are reference books devoted exclusively to legal abbreviations. There is an excellent British website for legal abbreviations in the English language (including US): the Cardiff Index to Legal Abbreviations at www.legalabbrevs.cardiff.ac.uk. Another site: www.legal-abbreviations.org. An online list of abbreviations and links to additional abbreviation resources is at http://en.wikipedia.org/wiki/List_of_legal_abbreviations . Another term for a law. After a bill is sent from the House of act Representatives to the Senate, it may be referred to as an act. After enactment by the Senate, the act becomes law, and still may be referred to as an act. A lawsuit, or litigation. action Grounds for legal action; based on facts in the complaint, sufficient actionable cause for a lawsuit; a filing of a lawsuit that meets legal requirements. The final decision, or final judgment, of the court that ends, adjudication terminates the case. A case is adjudicated in favor or against a plaintiff or defendant. A government body, also known as a regulatory agency, or administrative government agency, may have the name administration, board, agency commission, corporation, department, office, service. Agencies are usually created by statute to implement or enforce the law. Agencies have regulatory functions and the power to promulgate rules, issue decisions, opinions, and adjudicate disputes.
- The Researcher’s Law Dictionary Page 3 Administrative agencies are generally an independent part of the executive branch of the government, but may also be part of the legislative or judicial branch, or not part of any branch. Examples of agencies are the Federal Deposit Insurance Corporation, General Accounting Office, National Labor Relations Board, United States Postal Service, US Commission on Civil Rights. Administrative agencies may publish annual reports discussing the operation and activities and accomplishments of the agency. Before accepting a company as a client, a law firm may need to know what administrative agencies affect the company’s operations. Although a company can be affected by a web of federal, state, and local agencies, much of this information is found in the Code of Federal Regulations (CFR), which is available in the legal databases and is free on the Web at gpoaccess.gov/cfr. By browsing the various titles of the CFR the researcher can locate the agencies that could affect the client. A research tool, the Congressional Quarterly’s Federal Regulatory Directory, provides profiles of agencies, including background information and responsibilities, legislation administered by the agencies, and where to locate rules and regulations enforced by the agencies . The appropriate agencies are located using the index of terms that identify the different areas of responsibilities or functions of agencies. Administrative rules and regulations are enforced by a dministrative administrative judicial tribunals, created by Congress, who issue decisions through decision administrative hearings. The Administrative Procedure Act (APA), enacted by Congress in 1946, sets forth administrative law procedures to comply with Constitutional due process. Laws made by administrative agencies, including rules, administrative regulations and quasi-judicial decisions. Also known as law administrative code. Collectively these can be referred to as regulations, and are created both on the federal, state, and local levels. Statutes cannot cover every detail of every aspect of legally defined behavior of individuals and entities. These additional rules and regulations of societal behavior are left to administrative agencies. Administrative law—the rules, regulations and codes —are issued by governmental agencies at all levels—municipal, county, state and federal. These rules and regulations are directed to the general public, businesses and other agencies. Some of the better known agencies whose regulations get into the public spotlight are the Federal Aviation Administration (FAA), the Federal Communications Commission (FCC) and the Federal Drug Administration (FDA). Federal government agencies are usually part of the executive branch, also called executive agencies. Some agencies are part of the judicial and legislative branches. Sometimes agencies are referred to as the “fourth branch of the government.” Regulations have the force of law under the mandate of legislative statutes, in
- The Researcher’s Law Dictionary Page 4 other words, statutes establish or limit agency powers . Federal agencies are authorized by Congress to promulgate rules and regulations. Administrative regulations are enforceable, with penalties for violations handed out through decisions by administrative judicial tribunals. Federal rules and regulations made by government administrative agencies are available in print, microfiche and on the Internet. First, regulations are issued daily, chronologically, in The Federal Register, then codified topically in the Code of Federal Regulations (CFR). Some federal regulations and procedural rules are included in some of the primary sources of federal statutes, such as the US Code Congressional and Administrative News Service (USCCAN) and the US Code Service (USCS). Federal regulations on the Internet are available from the government websites at GPOAccess.gov and FirstGov.gov, as well as agency home pages. Also useful are websites such as FindLaw.com and The Cornell Legal Information Institute at www.law.cornell.edu. State regulations may be harder to find. Many states publish regulations included with statutes, as well as in the form of “administrative codes” and are available on the Internet by combining “administrative code” with the name of the state. Many states publish state versions of the Federal Register and Code of Federal Regulations. State websites also have links to administrative codes which may be available centrally or from individtopual departments and agencies. The same as administrative law. administrative rules and regulations Hard copy reporters and statute collections are kept up to date advance with advance sheets. Advance sheets are temporary pamphlet sheet publications of enacted statutes and case opinions, issued within a couple of weeks of case opinion or enactment of statute. Advance sheets are also issued for administrative opinions. Court opinions may be revised or withdrawn before their reporter is published. W est Regional Reporter advance sheets are published weekly. Other advance sheets are published biweekly, monthly and semi- monthly. Advance sheets of statutes are preceded by the publication of slip laws, while case decisions are first printed as slip opinions. Advanced sheets are placed next to the hardcover volumes they relate to and are discarded when a permanent hardcover volume is published with the identical information and sam e volume number and pagination. Some libraries keep advance sheets behind the Reference Desk to prevent theft. W est reporter advance sheets feature a subject index, a key number digest, and a cumulative table of words and phrases
- The Researcher’s Law Dictionary Page 5 construed in the cases reported. Lawyers’ Edition, 2d advance sheets for the US Supreme Court Reports feature a “table of classifications to the U.S. Supreme Court Digest” and a table of statutes cited in the cases reported. A group set up to study an issue for the government and may issue advisory special reports or annual reports. committee A higher court’s confirmation, as valid, a lower court’s decision; to affirm uphold a lower court’s judgment or actions. An appeals court affirms a lower court’s decision. See administrative agency. agency A change to a bill, law, or Constitution. Laws get amended over amendment the years, meaning that parts of statutes or regulations are changed, added to, or deleted. The amended version of the law is the most current. Part of a law that has been changed is also known as a statutory amendment. The American Bar Association (ABA) (www.abanet.org), founded in American Bar 1878, is the nation’s major association for lawyers, a voluntary Association professional association organized to promote improvements in the American justice system and to provide guidelines for the advancement of the legal profession and legal education. Its membership of over 400,000 consists of practicing and non- practicing lawyers, judges, law professors, and administrators (but only half of the nation’s lawyers are members). Other legal associations are state bar associations as well as organizations based on specialty and ethnicity. The ABA publishes books, manuals, and, through its ABA Journal, articles on legal topics. The ABA has formulated rules of professional conduct, responsibility, and ethics and has participated in the development of model acts. The ABA provides accreditation to law schools and paralegal education. The ABA cannot discipline lawyers nor can it enforce its rules. The word “bar” in the association’s name derives f rom the bar in the courtroom—the railing that serves as a physical barrier between the spectators and judge, attorneys, defendants, and court staff. The American Law Reports, or ALR, published by West, contains American Law selected (that is, significant, leading, but not all) state and federal Reports appellate cases and comprehensive essays on legal issues , as well as typical illustrative cases. This differs from the general legal encyclopedias that cover all legal topics. ALR is a primary source in that it contains cases, albeit in a selected, not comprehensive collection of law, although it does cover a wide range of topics, with a narrow focus. ALR is most valuable as a secondary source as a finding tool as well as for its outstanding annotations. ALR also covers practice issues with cross-references to practice manuals and the American Jurisprudence Legal Forms books. Supposedly ALR is quoted and cited more than any other secondary authority.
- The Researcher’s Law Dictionary Page 6 ALR is valuable not so much for text of cases (case reports are also published in a number of other resources) but for in-depth essays (annotations) of high caliber that follow each case. The annotations are written by staff lawyers and not by prominent scholars, thus ALR is not to be used as persuasive authority, but as a help to understand the law. Its annotations include discussions of a topic in different jurisdictions, following different rules and approaches, using key facts, bringing together relevant authorities. Some ALR annotations are 150 pages long! Most of the latest annotations cover new topics not covered in previous volumes. Some of the recent annotations cover topics found in earlier volumes, thus superseding the earlier annotations. “Annotation” is a misleading term for ALR content in that its annotations are very detailed and lengthy articles, unlike the annotations in digests, which are one-sentence summaries of cases. The ALR includes scope notes, summaries, practical practice pointers, outlines of cases, in-depth index, sample terms for electronic searches, and table of cited statutes and cases. Probably the best starting point in ALR is the index to locate a topic. If a key primary authority is known, annotations discussing that authority can be found in the tables in the ALR Index or ALR Federal Tables volumes. Pocket parts should always be checked as they may indicate if annotations have been superseded, also indicated in the Annotation History Tables. The American Law Reports, started in 1919, is published in two separate collections. ALR covers state cases while ALR Federal covers the federal cases. There are five separate series of ALR. Each series is a separate collection of material, not cumulative--in other words, each subsequent series does not replace the previous series, unlike encyclopedias. Six to ten ALR volumes are published each year for each current series, with each volume containing about ten annotations. There are helpful cross-references to other sources that discuss the specific issues, such as legal encyclopedias, treatises, practice manuals, law reviews, and digests and indexes. There is a separate Shepard’s Citations for ALR. Starting with volume 111 (in the year 1993, which is the first year of the fifth series) cross-references are made to West’s key number system and electronic queries for Westlaw online searching. The complete ALR is only available electronically on Westlaw. ALR has a telephone hotline for case updates for cases not yet published: 800-225-7488. The commercially-published collections of laws that contain notes annotated added by editors to the text of statutes. These notes by the editors (codes, include summaries of cases that interpret or discuss particular statutes) sections of the code. The notes also contain references to other relevant statutes, cases, law review articles and other resources. Annotated codes are published for federal and state laws, but generally not for regulations.
- The Researcher’s Law Dictionary Page 7 A description, explanation, or overview of a topic in the form of a annotation note, editorial comment or summary that helps explain statutes and cases is an annotation. Annotations have cross references to related primary sources and secondary resources. Annotated statutes contain “case blurbs” explaining sections of statutes. Annotations in digests summarize case decisions. Digest annotations in West digests summarize a subtopic (identified by key number) under a larger topic. The American Law Reports (ALR) annotations, on the other hand, are lengthy and detailed essays on points of law. Annotations in codes delineate statutes within a legal context of how the statute has been interpreted by the Judicial branch and enforced by the Executive branch. Code annotations include a “Historical Note,” providing legislative history of dates when the law was originally enacted and amended; cross-references to related Executive branch regulations; “Notes of Decisions” summarizing court cases interpreting the statute; and references to secondary resources, such as law review articles, treatises, or encyclopedias that discuss the particular law. A legal proceeding where an appellant, or defendant, requests that appeal a case decision be reviewed and reversed by a higher court. The losing party in the court of appeals can attempt to appeal the decision to the United States Supreme Court through a “writ of certiorari.” The Supreme Court may decide not to hear the case. Most court cases are not appealed, especially because they are time-consuming and costly. The party, formerly a plaintiff or defendant in a lower court, appellant requesting that a higher court review actions of a lower court. A written legal argument submitted to an appellate court asking appellate brief that a trial court decision be upheld or reversed. Appellate briefs are very helpful in understanding legal issues raised in a case on behalf of a plaintiff or defendant. Unfortunately, only briefs for the US Supreme Court are regularly published. Selected full-text briefs are available in the Landmark Brief series. Summaries of briefs for all US Supreme Court cases reported are found in the Supreme nd Court Reports, Lawyer’s Edition, 2 . Same as appeals court. Federal or state higher court which hears appellate appeals from a lower court. An appeals court. See appeal. The court U.S. Court of Appeals is the intermediate federal appellate court, consisting of 13 circuits. The party, formerly a plaintiff or defendant in a lower court, appellee against whom an appeal is taken to a higher court. A supplementary section at the end of a law book or legal appendix document. The appendix of a law book often includes statutes, rules, charts and tables. An appendix in an appellate brief often includes parts of the record, such as the opinion.
- The Researcher’s Law Dictionary Page 8 The federal and state government’s chief counsel and highest- attorney ranking lawyer is the attorney general. State attorneys general issue general advisory opinions when requested by state officials when court opinion cases are unclear or lacking on a particular issue or problem. In some states these advisory opinions are binding law, or otherwise have persuasive authority. Sometimes the only authoritative source available for a legal researcher on a certain issue may be an attorney general opinion. Attorney general opinions usually come out in slip form, then are bound, and are indexed quarterly, semi-annually or annually. Attorney general opinions are available on some state attorney general websites. Attorney general opinions are available online on Findlaw (www.FindLaw.com) and in the legal subscription databases. Attorney whose name appears in the permanent files or records of a attorney of case. record A legal writing or resource stating the law, such as a judicial authority opinion, which also can influence or bind a court. (Generally, a case that has been reversed on appeal cannot be cited as authority.) Authorities are citations in primary and secondary sources of statutes, regulations, decisions, and scholarly writings (particularly treatises and law review articles) that support a legal argument. Thus one “cites an authority.” Binding is done by a mandatory authority, while influencing is rendered by a persuasive authority. A statute defining the authority and responsibilities of a government authorizing agency. statute Background research on a person—simple contact information or background more detailed data—can be accomplished online through free and check fee-based services. This information may be needed by the practitioner for debt collection, tracking of beneficiaries in estate proceedings, locating witnesses, experts, researching potential clients, adversaries in litigations, corporate officers, and so on. The extent of legal accessibility to public records varies from state to state, yet generally a significant amount of public information is available. One method of obtaining information—“pretexting”—is uniformly prohibited by federal law: the use of false pretexts to obtain unlisted phone numbers, financial information, credit history, medical records, and other types of personal information. Disclosure of certain personal information is restricted by federal law, obtainable only under specified conditions with required notification to the consumer. Free resources start with online phone director ies such as switchboard.com and AnyWho.com. Reverse phone lookups are available at sites such as AnyWho.com. Using Google, Yahoo! and other search engines can yield significant information for some individuals. News articles from current and archived files can also be useful. These news sources are available from Google, newspaper websites, and library subscription databases.
- The Researcher’s Law Dictionary Page 9 Fee-based resources containing public records databases, for contact and background information about individuals and companies, include Accurint, AutoTrackXp, ChoicePoint, Merlin, as well as LexisNexis and Westlaw. These database provide information on asset ownership of real estate property, motor vehicles, airplanes, and boats. Also available from these services are criminal and court records, including bankruptcy filings, judgments and liens. Business information includes UCC filings, corporate and Ltd. partnerships, and small business ownerships. Professional license information for various occupational and business fields are available from individual state agencies. Vital (birth and death) and marital information are also available free from government sources such as the various state vital records departments and the Social Security Death Index (http://ssdi.genealogy.rootsweb.com ). Military records are available free at www.archives.gov/research_room/obtain_copies/veterans_service_r ecords.html. Fee-based services for military records include www.MilitarySearch.org and www.MilitaryUSA.com/us_locator.html. W hen a law’s positive value to support an issue has, through bad law subsequent history and treatment, becomes undermined and invalidated. Statutes, regulations, and rules can be modified. amended, repealed or otherwise treated negatively (criticized) by courts and other authorities. Cases can be modified and overruled in the appeal process, as well as invalidated or treated negatively (criticized) by courts and other authorities. The issue of whether a law is constitutional can come into play. A case-in-hand becomes bad law when it is (a) modified or reversed on appeal; or (b) criticized, distinguished in a decision in a different later case. In addition, if (c) a case on which the case-in-hand relies on is over-ruled, criticized, distinguished in a later case. Or (d) if a case on the topic, which is neither the case-in-hand nor a case on which the case-in-hand relies, is over-ruled, criticized or distinguished in a later case. Or if (e) a subsequent statute, regulation, or rule enacted by a legislature states a rule contrary to or different from the rule in the case-in-hand (over-turning the rule). These case history developments can be generally researched through the use of citators, primary and secondary authorities. Citators are not foolproof tools to catch all instances of bad law, and cannot be relied upon solely in all of these situations. Relying on additional research tools (such as secondary authorities) will prevent shortcomings of a citatory. For instance, citators will miss situation d. A citator may miss situation e unless it is indicated in a citating case. Situation c can be caught by using the citator table-of- authorities. (A table-of-authorities feature is part of LexisNexis and W estlaw. This function acts as a reverse citator, citating cases referred to in a case-in-hand.)
- The Researcher’s Law Dictionary Page 10 The word bar refers to attorneys as a group, or the profession of bar law. As a verb, to bar means to nullify, defeat, prevent a claim or action. The word “bar” in a bar association’s name derives from the bar in the courtroom—the railing that serves as a physical barrier between the spectators and judge, attorneys, defendants, and court staff. A subjective feeling or conviction about an idea or fact, but not belief based on concrete knowledge or verifiable information. Proposed legislation introduced into the House of Representatives. bill A bill must be passed (enacted) by both houses of Congress or the state legislatures to become law, signed by the President (federal) or governor (state), or passed over a veto of the President or governor. Bills may be private or public, and when passed, become public or private laws. Bills are designated by HR (House of Representatives) number or S (Senate) number, depending on the chamber in which they were first introduced. Examining bills is part of researching legislative history. Bills and pending legislation are listed in the US Code and Administrative News, as well as on the Internet. Mandatory authority, or mandatory precedent, meaning binding decisions of superior courts are usually binding on lower courts in a authority common jurisdiction. Statutes are sometimes referred to as “black letter law,” well- black letter established legal principles that have withstood the test of time. A law well-known guide to black letter law is the Black Letter Series, a set of books on legal subjects, from Antitrust to Wills, that identifies and summarizes the rules of law that apply to various cases. Shorthand for blog (weblog). Denise Howell is credited by some for blawg coining the term blawg. The most recent news and cutting edge legal analysis, as well as practical advice and guidance from experts, before it reaches journals and other publications, can be found in blawgs, and can be very instructive for practitioners and students alike. Subject directories of blawgs include abajournal.com/blawgs and blawgs.com, Blawg subject areas that can be accessed include those specific to lawyers, paralegals, and librarians, and by practice area. Specific blawgs for legal research include Legal Research Plus legalresearchplus.com , LLRX.com llrx.com, Legal Research Blog law.onecle.com/archives, Legal Research 101
- The Researcher’s Law Dictionary Page 11 albanylawlibrary.wordpress.com/category/legal-research-101. The Bluebook: A Uniform System of Citation is the best-known and The Bluebook most-used guide for proper citation forms and abbreviation rules for preparing legal documents. The Bluebook has been issued by the Harvard Law Review Association and other law reviews for over three-quarters of a century. It was created by the law-student editors of four Ivy League university law reviews to show how to cite law review articles. The Bluebook helps you make sure you use the right legal abbreviations, capitalization, and that you space it right. For the correct abbreviations of case reporters, codes, and so on, go to the shaded pages at the end of The Bluebook. For specific citation forms for various states, go to the blue pages in The Bluebook. A LexisNexis online product, Shepard’s Brief Suite, with its Shepard’s BriefCheck feature, automatically checks for Bluebook citation formatting errors. Using Boolean logic, the same principles used in algebra and boolean computer programming, searching can be enhanced with databases operators and search engines to add precision to searching using the operators and, or, not (or and not), and proximity operators such as near, to connect search terms or keywords entered into the search text box. Other search features included expanders, such as wild cards, universal characters, where adding a symbol such as a * or ! to the root of a word will find variations of a word based on the root. Every database and search engine varies in the extent that Boolean operators are made available as options in searching. Some databases and search engines use and, or, and not as the operators, while others may use other wordings and typographical symbols. The Westlaw database calls the operators connectors and allows extensive variations of setting parameters for searching using the various connectors. A hardbound, or hardcover, book. Advance sheets are temporary bound softcover (unbound) copies of case decisions that later are printed volume with others in bound volumes, such as bound reporters. A written argument prepared by counsel for a case, submitted to brief the court. A brief contains the history of the proceedings, a summary of the facts and legal issues of the case, the relevant laws and authorities that apply to the facts of the case, and relief sought. A brief is most often used as part of the appeal process and is called an appellate brief. A lawyer may argue that the lower court made mistakes on ruling on objections, resulting in prejudicial error, requiring a new trial. A brief submitted to a trial court is somewhat less formal, often called a memorandum of law. A brief is also a summary and analysis of a case used for study in law school. “Briefing a case” is done by a student, following a certain form, for discussion in the classroom.
- The Researcher’s Law Dictionary Page 12 A schedule, or agenda, of judicial or legislative business. A judicial calendar calendar includes dates set for trial and oral arguments. A legislative calendar contains legislative business such as action taken on bills, committee hearings scheduled. At the beginning of a case opinion, the parties, citation, dates. caption A lawsuit. Also, the written opinion of a court. Case can also refer case to the evidence in support of a legal position. See digest. case digest A judicial opinion covering a similar situation being researched, case in point substantiating a legal argument. A resource that is used to locate relevant cases. Digests are a case finder primary tool to locate cases. Other useful case finders are Shepard’s, online cite checking, annotated statutes, encyclopedias and ALR. Indexes in digests and reporters, e.g., Words and Phrases, are also useful as case finders. The body of law consisting of the written opinions of judges case law collected in reporters. In contrast to statutory law, which is the codified law of statutes and regulations. Case law is created reactively by criminal proceedings and civil litigation. Case law is established by appellate court interpretations of statutes, regulations, constitutions and other cases. Case law is based on judicial precedents, binding or persuasive, sometimes referred to as “common law.” Case law develops out of interpretations of clear as well as vague and general constitutional provisions and from interpretations of clear as well as ambiguous statutory law. The names of the parties of a case, e.g., Roe v. Wade. Also called case name case title. The case name consists of the names of the plaintiff (listed first) and defendant, also: appellant v. appellee, petitioner v. respondent. Case names are listed in tables of cases found in the various digests and reporters A number assigned to individual court cases. The number is useful case number for looking up cases on court websites. See also docket number. Case reporters, or court reporters, or reports, are the published case reporter case law, printed in hardbound copies or CD-ROM. The decisions, rulings, opinions by various courts that are publishe d are “reported.” Reported Federal and state cases go back to 1789. Reporters mainly contain state and federal appellate and supreme court cases, as well as rulings by administrative agencies. One federal reporter covers some of the district court decisions. Federal jurisdictions also have their own reporters by area of the law, not by geographic region. Most reported state and federal court decisions are published in
- The Researcher’s Law Dictionary Page 13 reporters by West. West publishes state appellate and supreme court cases in its regional reporter system, and also published most of the Federal reporters. Most trial court decisions are not published. Not all state and federal appellate decisions are published. Because not all cases are published, unreported cases do not carry much persuasive weight. See also National Reporter System. A legal textbook used in law schools with excerpts, reprints of legal casebook opinions accompanied by comments and questions. A writ (order) issued by an appellate court, typically the US certiorari Supreme Court, ordering that a case be brought before it from a lower court. Often abbreviated “cert.” An appeal for review is made by applying to the higher court for a writ of certiorari, which is either granted or denied, based on the court’s discretionary certiorari jurisdiction. Certiorari is granted when at least three members of the US Supreme Court believe the appealed case has issues sufficiently significant for the public interest on a federal level warranting a review. By denying the appeal, the court states that the lower court decision, or precedent, should stand. In a few cases, the law provides for a jurisdictional appeal to the court, rather than by a review of writ or certiorari (for example, for cases under the Voting Rights Act.) Instead of a writ of certiorari, a “jurisdictional statement” is submitted by the party seeking the review, with the opposing party filing a “motion to dismiss or affirm.” The court then can decide to review the case, entertain a full briefing and argument, and can affirm or reverse the lower court judgments. Summary affirmances and reversals have precedential value; dismissals are like denials of certiorari. Chronological publication refers to statutes and cases that are chronological compiled and published (“reported”) shortly after they become law in publication the order that the statutes are enacted or the cases are decided. Each volume of chronologically-published laws are numbered consecutively, with the highest volume numbers having the most recent enacted or decided laws. This contrasts with topical publications. Advance sheets (softcover publications) are issued temporarily for the chronologically-arranged laws until the hardcover volume is printed. Statutes that are compiled and published in the order that they are enacted by legislative bodies include state session laws, federal public laws (statutes at large), and federal administrative rules and regulations. For instance, US public laws are first published by the government chronologically as slip laws and advance sheets, as well as pamphlets in the United States Code Congressional and Administrative News. These US public laws are published annually by the government in chronological order in an official series of books called the Statutes at Large.
- The Researcher’s Law Dictionary Page 14 Case reporters (Pacific Reporter, US Supreme Court Reports, etc.) compile cases chronologically as the decisions are rendered, while case digests are topically-arranged later. See US Court of Appeals. circuit courts of appeal To find authorities referring to a source, e.g., to citate American citate Law Reports annotations or Restatements in Shepard’s or KeyCite. See also parallel citations. (Also shortened as “cite”). A brief citation reference, in abbreviated form, in a document or discussion of the law, to a legal authority and in which publication the authority is found. The reference identifies a primary or secondary source and the source location. Citations to primary sources are source locations of cases, statutes, constitutional provisions, regulations, and court rules. Citations to secondary sources include law review articles, treatises, encyclopedias, and the American Law Reports. The citation follows a consistent format of abbreviations, capitalization, spacing, according to rules found in a citation manual such as The Bluebook or ALWD. Citations for cases are listed in Shepard’s Citations (print and online) and Westlaw KeyCite (online); and found in primary sources such as annotated statutes and cases; in various secondary sources such as Digests, American Law Reports (ALR), encyclopedias, law review articles, and legal news articles. Court decisions are usually cited by case name, volume number, reporter, page number and date. More specifically, these five elements of a case citation are: (1) the name of the parties involved (plaintiff, defendant, appellant, respondent, etc.); (2) the case reporter series in which the case can be found; (3) the volume number, within the series, in which the case can be found; (4) the page number on which the case begins; (5) the year of the decision. An example of a case citation is Roe v. Wade, 410 US 113 (1973). The case was adjudicated in 1973, published in volume 410 of the official United States Reports, beginning on page 113. Federal and state codes are cited by title and section. An exam ple of a federal statute code, for copyrights, is 17 USCS 101, meaning Title 17, section 101 in the United States Code Service (an unofficial series published by LexisNexis). Citations to the federal Statutes at Large are by volume and page number, as 106 Stat. 3384. (The Statutes at Large contain the laws arranged by Public Law numbers. Tables in these resources convert Public Law numbers to code citations.) See also parallel citations. An online citation tutorial: www.law.cornell.edu/citation Citation manuals are guides for providing precise references to legal citation resources. These guides supply proper citation forms and manual
- The Researcher’s Law Dictionary Page 15 abbreviation rules for preparing legal documents. Some courts have their own citation protocols that have to be followed. Legal citation style may seem a more chaotic and less logical departure from citation formats of the other academic fields. The two most widely used citation manuals are the Bluebook and ALWD. The Bluebook for the longest time has been the most-used and best-known citation guide. Alternatives to the Bluebook have been created to simplify the existing Bluebook rules, and include the University of Chicago Manual of Legal Citation, ALWD Citation Manual, and the American Association of Law Libraries AALL Universal Citation Guide (www.aallnet.org/committee/citation/ucg/index.html). A LexisNexis online product, Shepard’s Brief Suite, with its Shepard’s BriefCheck feature, automatically checks for Bluebook citation formatting errors. The University of Chicago Manual of Legal Citation is also referred to as The Maroon Book and is edited by the University of Chicago Law Review and the University of Chicago Legal Forum. It is one of the few widely used legal citation guides besides The Bluebook. It was created as a practical alternative to The Bluebook setting forth general guidelines and encouraging people to merely use common sense when devising citations not explicitly listed. An alternative citation guide that is gaining popularity for its ease-of- use, and preferred by some states, is the ALWD Citation Manual: A Professional System of Citation (ALWD), published by the Association of Legal Writing Directors (www.alwd.org). The ALWD Citation Manual closely follows the Bluebook -prescribed format but provides more examples and requires more complete bibliographic information for some sources. A service, print and online, that provides cite checking. Cite citator checking through citators tracks the development of a case or statute, showing other authorities that reference the statute or case. A citator has a dual function as a finding tool as well as a validating tool, to examine the history as well as treatment of a case. A citator also provide parallel citations. The main citators are the print Shepard’s Citations and the online Shepard’s in LexisNexis, Keycite in Westlaw, and GlobalCite in Loislaw. As a finding tool, a citator tracks cases, statutes, or regulations that are mentioned in other cases, statutes and resources such as ALR and law review articles. As a validating tool a citator lists the most current citation of a case, a way of updating your research. Thus one can see, for instance, if a case has been affirmed, overruled, or distinguished. A citator identifies a “good law,” a case or statute that is still valid for a particular issue, meaning that it has not been superseded or modified (negative history). The positive history of a case validates a case as a precedent. Using the electronic citators provided by LexisNexis, W estlaw, and Loislaw are easier to use and are more current than using the print Shepard’s—changes to the law are updated online within 24 hours.
- The Researcher’s Law Dictionary Page 16 A couple of online services provide Shepardizing and Keyciting of cites uploaded from a newly-created document: LexisNexis Shepard’s Brief Suite and Westlaw’s WestCheck. Despite all the features, citators are not foolproof tools to catch all instances of bad law, and cannot be relied upon solely in all situations where a case is subsequently invalidated or undermined. (For more specific explanation of these failings, see bad law.) The two major citators—Shepard’s and KeyCite—do not always completely agree in their cite checks of the law. Often one citator will include a citing authority not included by the other citator. The two services also do not always agree on the validity of a case. Shepard’s, for example, may tag a case with a caution (yellow triangle), while for the same case KeyCite may indicate a green C (no direct or indirect negative history). Using both citators, therefore, can be advantageous. “Shepardizing” or “cite checking” is often the terminology used for the process of using Shepard’s Citations or databases to update a case, or law. (See also cite check). How do the above citators differ and which one is the best? Each citator differs in features and may have strengths and weaknesses in comparison to the other citators. W ith time the citators may be modified and redesigned that may make a judgment invalid and obsolete. Shepard’s is sometimes referred to as “the gold standard,” reflecting some researchers’ respect and preference for that citatory. For updating cases, Shepard’s has more positive feedback signals and might be more up to date. Some researchers prefer KeyCite for finding secondary sources and for updating statutes and regulations (KeyCite is supposed to be more up to date). For cases, KeyCite claims to include more sources than Shepard's. A chart comparing Shepard’s and KeyCite is at http://lib.law.washington.edu/ref/oncite.html Cite-checking is a two-fold process in producing a valid legal brief or cite check argument: First, verifying that the laws and cases cited are up-to-date and “good law.” This process of validation of primary authorities is done through “Shepardizng”—through the print and online (LexisNexis) Shepard’s Citations, or online through Westlaw’s KeyCite (keyciting). Also called citating. Second, ensuring that the citations’ format meets Bluebook rules for citation form (abbreviations, capitalization, spacing, etc.). A case that is a type of cited reference. cited case A document or authority, such as a case, statute, article, that is cited cited, meaning it is mentioned, referenced, such as in a reporter, reference code book, or in periodical articles or other books. The document to which a citing reference refers. The citation entered into a citator,
- The Researcher’s Law Dictionary Page 17 resulting in a list of citing references referring to the citation. A citing reference. A citing case is the case, such as one found in citing case a reporter, or from results obtained through citating, that refers to another case (the cited case). Thus if one “Shepardizes” or “KeyCites” a case one will get a list of cases (citing cases) which will refer to the case in question. Citing reference is a document, authority (case, statute, citing regulation, law review article, treatise, brief, etc.) that cites, or reference refers to, the document, authority, whose citation you have entered into the citator. Note that the terms “citing reference” and “cited reference” are relative terms. A cited reference in one context may be a citing reference in another, and vice-versa (just as a person can be one relative’s brother and another relative’s uncle simultaneously). (reword) A case involving civil law, a lawsuit, civil litigation. Civil actions civil action are claims for debt, for damages arising from motor vehicle accidents, divorces, adoptions, matrimonial property actions, foreclosures, and administration of estates following a death. The persons involved in a civil action are called the parties. A case involving civil law. civil case The law of private rights and relationships between individuals, and civil law individuals and entities, such as corporations. Civil law applies to contracts and breach of contracts, property rights, injuries due to negligence, and individual freedoms based on constitutional rights. A civil action, or lawsuit, is brought about by a party (a litigant, or plaintiff) who has been injured or has suffered a loss, with a c laim for compensation sought as a remedy. A civil case may not go to trial if the parties involved reach a settlement, because civil actions are very costly and time-consuming. Civil law contrasts with criminal law. The standard of proof in a civil case is a preponderance of evidence, a weaker standard than what is required in a criminal case, which requires an absence of reasonable doubt. Civil law also refers to the legal system used in Louisiana, continental Europe and many countries outside of the Eng lish- speaking world, which contrasts with the Anglo-American common law system. The civil law system was developed from the law of the Roman Empire, based on the code of the Emperor Justinian. A party initiating a legal action, asserting a right, making a claim for claimant money, property, title. A plaintiff in a personal injury suit is also known as the claimant. A party claiming damages. A plaintiff, complainant. A claimant can also be a party requesting benefits or payment, such as regarding insurance.
- The Researcher’s Law Dictionary Page 18 A collection of statutes found in sets of books (code books), such code as the United States Code, state statutes, or administrative Code of Federal Regulations. The overall body of statutes for a jurisdiction. Generally the terms codes and statutes are used interchangeably. In some states “code” can also refer to a separate group of statutes under a subject, such as penal code or probate code. These codified laws or regulations are grouped by subject matter, arranged topically by title or major subdivision and section. Enacted Congressional bills are first published as Public Laws , arranged in chronological order, not by subject matter, then published topically as the US Code after the Congressional session. Bills in the state legislatures are passed as Session Laws, then topically published as codes in the state statute books. Administrative rules and regulations are created by government Code of agencies and are chronologically compiled in the Federal Register, Federal then topically arranged (by subject) in The Code of Federal Regulations Regulations (CFR). Available online: gpoaccess.gov/cfr The Code of Federal Regulations is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation. Each volume of the CFR is updated once each calendar year and is issued on a quarterly basis. Titles 1-16 are updated as of January 1st Titles 17-27 are updated as of April 1st Titles 28-41 are updated as of July 1st Titles 42-50 are updated as of October 1st Each title is divided into chapters, which usually bear the name of the issuing agency. Each chapter is further subdivided into parts that cover specific regulatory areas. Large parts may be subdivided into subparts. All parts are organized in sections, and most citations in the CFR are provided at the section level. A list of agencies and where they appear in the CFR may be found in Appendix C of the U.S. Government Manual www.gpoaccess.gov/gmanual/index.html The state equivalents are called codes of state regulations. To arrange enacted laws and regulations by topic, published as codify codes and statutes. Shortly after enactment, Federal and state laws are first issued chronologically without topical arrangement, as slip laws, advance sheets and session laws. Subsequently, a year or so after, these laws are compiled by subject in the Statutes at Large (federal) and as statutes and codes (state). A term used loosely referring to “case law” (“judge-made law”) common law rather than statutes. More specifically, the basis of the Anglo-
- The Researcher’s Law Dictionary Page 19 American legal system, common law is substantive law originated in England as unwritten law given judicial interpretation based on established customs, rather than enacted through legislation. Developed over hundreds of years, common law is based on prior judicial decisions and precedent--stare decisis (“let the decision stand”) applied to cases with similar fact situations--as opposed to using legislative definitions, or statutory law. In the twentieth century much common law, which was conservative in nature, was displaced by statutes passed by Congress and state legislatures. In contrast, other countries use the civil law system. Legally valid or admissible evidence that gives weight to a dispute competent or issue in a case: in a murder case, a weapon with a defendant’s evidence fingerprints, or a credible eyewitness; in a lawsuit, reliable information that affirms an argument. Plaintiff. In criminal cases, the complaining witness; or in civil complainant cases, an individual or entity (a party or parties) initiating a lawsuit or civil action in a court. Computer Aided Legal Research (CALR) refers to free and fee- computer based online legal research resources. aided legal research Traditional print legal research is giving way to the online world of fee-based services such as LexisNexis (the first such service, introduced in 1973) and Westlaw, as well as to the free Web. Subscription services LexisNexis and Westlaw started off clunky and difficult to use in the 1970s, but have made great strides as viable alternatives to the print world of information. Other online legal database services, geared to smaller law firms include Loislaw, VersusLaw, Casemaker, and FastCase. Available electronically on the Web, free and for a price, are a vast array of legal and general resources. General resources such as W eb sites and databases provide information such as statistics, facts, and news in all disciplines that may relate to legal issues, including business, medicine, and science. There are advantages and disadvantages to using online and print legal resources. Online research can be faster or slower depending on the type of search and experience of the searcher, but also can be more expensive when using subscription databases versus the print approach. Online legal information is for the most part available in a more timely manner than print (changes in the law are made available in hours online versus days and weeks). Print legal resources still shine for their wealth of annotations and background information, which the free Internet lacks in great part. For certain kinds of legal research, especially for background information in unfamiliar territory, print resources are often easier to use and more “user friendly.” Browsing through unfamiliar areas of the law is often easier with print materials. Of course, this assumes one has found the right resources to work with. Different resources use different terms for the same areas of the law, which can be a stumbling block both in print and online searching.
- The Researcher’s Law Dictionary Page 20 Computer searches can be slow and difficult, necessitating trial-and- error search string composition, if one doesn’t use the right keywords or search terminology, which compounds the cost factor of using the online services. “Natural language” searching —the use of plain English rather than a controlled vocabulary of pre -set terms—can ease the search process. Many legal professionals miss the traditional print resources, even though they are increasingly forced to use computer-based methods, which they do not always find satisfactory. The fundamental laws and principles of the nation and states —“the constitution supreme law of the land”—establishing the form of government, its powers and limits, and the rights and liberties of its citizens. The US Constitution is the world’s oldest written constitution still in force. Two major components of the United States Constitution include the Bill of Rights (the first ten amendments) and enunciation of the separation of powers among the three branches of government (executive, legislative, and judicial). Constitutional law is different from statutory law in that constitutional law is higher than statutory law, governing all other laws. District and appellate courts can rule certain acts and laws as unconstitutional, being contradictory to the basic principles of the constitution. The US Constitution has 27 amendments (additions) and has been designed to make it difficult to make changes. Each state has its own constitution, which must harmonize (not contradict or clash) with the federal constitution. State constitutions are included in the state codes. constitutional Controlling authority, or controlling law, is precedential law, controlling mandatory authority, the on point authority, the relevant law, that authority answers a legal question. A legal question is ultimately and ideally answered “yes” or “no” by a controlling authority, a definitive statute or case. Code books typically have conversion tables which can locate conversion different citations of the same law: for instance, the code citation if table you only have a session law citation or public law number for a statute. Or, for outdated section numbers for statutes that have been re-numbered, a conversion table will list the up-to-date section number. The cost of using online services has added new pressures and cost factors complications to researching the law—whether the charges are flat- of legal fee subscriptions, or hourly, monthly, or per-view. Most lawyers research— cannot afford LexisNexis and Westlaw. Although using both of these services is advantageous, many law firms have to choose between free v. fee- the two or choose one as the primary resource. The costs of using based online services can quickly mount uncomfortably high, especially by an inexperienced user or even an experienced user researching