Legal Research

1. Legal Research Chapter 1 Legal Research and Syllabus Review

2. This Lecture • Read pages 1-11 • Mostly follow the lecture • See attachments on MyCourses on Legal Research • See there also for examples • Briefly review the syllabus (now)

3. The bluebook • This is my copy of the Bluebook from when I was in law school • It is how nearly every court will require any legal document to be cited • The different editions will not vary that much • One can find it online, but one might find a paper copy helpful, especially in law school

4. How to properly cite a case • You can find how to properly cite any case or document within the bluebook • Different courts will require either for a case to be italicized or underlined • The key is to be consistent in a document • Also to read the rules for which one to use • When referring to a specific Court with only using the word “Court”, it should be capitalized • Case citations follow this order: • Moving party v. responding party • Followed always by a comma • The location in the reporting book (the first page of which the opinion starts) • Followed by a comma if it is a pinpoint cite • In parenthesis- the Court and year of the decision • The Supreme Court is different in that one never has to list it for a case, so only use the year- this is the only Court that only lists a year • This may also be followed by other things we will also cover

5. More on citing a case • Let’s start with the U.S. Supreme Court • Since 1875, all cases have been published in the United States Reports • Before that there were other Reports • See your Bluebook for these • Also, since 1882, all these cases are also published in the Supreme Court Reporter • However, it is preferable to cite to the U.S. Reports if possible • Here is an example of a case citation: • Reynolds v. Sims, 377 U.S. 533 (1964). • However, it takes cases a few years to be published in a report • Generally, they will be available in the Supreme Court Reporter first • When they are available in the Supreme Court Reporter, but not the U.S. Reports, you can use the Supreme Court Reporter • But sometimes, neither will have a formal page number assigned, so use this format: • Shelby County v. Holder, 570 U.S. ___ (2013).

6. Even more on citations • When the Supreme Court announces decisions, they are posted on the Court’s website immediately • www.supremecourt.gov • These are known as slip opinions • There will be a number at the top of the page, which will be the same as what I mentioned earlier as the way to cite: • Green v. Brennan, 578 U. S. ____ (2016). • Your pinpoint cite will be • Green v. Brennan, 578 U. S. ____, 5 (2016). • If you are citing to anything other than the majority opinion, that should be noted after the citation • So, a concurring or dissenting opinion should be noted if that is what you are citing • Davis v. Bandemer, 478 U.S. 109, 144 (1986), (Burger, J. concurring). • Shaw v. Reno, 509 U.S. 630, 660 (1993), (White, J. dissenting).

7. Citations, again • Some opinions are unsigned • They are known as per curiam opinions • That should be noted in your citation as well • Bush v. Gore, 531 U.S. 98 (2000) (per curiam). • However, there were dissents in that case as well • Bush v. Gore, 531 U.S. 98, 130 (2000), (Souter, J. dissenting). • Other Federal Courts • Circuit Courts • Found in Federal Reporter (currently in 3rd edition) • The circuit comes before the date in parenthesis • 432 F.3d. 382 (2nd Cir. 2005) • District Courts • Found in Federal Supplement (currently in 2nd edition) • The bluebook will tell how to cite the district • 219 F.2d 821 (S.D.N.Y. 2012).

8. State courts • All states have a highest court of last resort • In most states it is called the Supreme Court • In New York, it is the Court of Appeals • States appellate cases are found in different reporters • These are Atlantic (A.2d), Northeastern (N.E.2d), Northwestern (N.W.2d), Pacific (P.2d), Southern (So. 2d), Southeastern (S.E.2d), Southwestern (S.W.2d) • These are for the 2nd editions. Most are currently in the 2nd editions • When you are using the highest appellate court in the state, simply use the state’s abbreviation in the bluebook • (N.Y. 2016) (Mass. 2015) (Mich. 2014) • For intermediate appeals courts, look to the bluebook • Generally (but not always!), they will be something like this • (Tenn. Ct. App. 2013) (Wash. Ct. App. 2012) • In states with different appeals districts, if found in these reports, it is not necessary to use the districts • However, some courts have different names, so check the bluebook! • (Okla. Crim. App. 2011) (Pa. Super. Ct. 2010)

9. statutes • Federal statutes are known as the U.S. Code • Title U.S.C. § Section (year). • 18 U.S.C. § 1983 (2009). • States vary pretty widely in how they are cited. • You will have to check the bluebook for these • Also, if you use an annotated statute book, the citations will be different • Ind. Code § 35-42-1-1 (2008). • Ind. Code Ann. § 35-42-1-1 (West 2007).

10. Miscellaneous • Some words in a case should be abbreviated • These can be found in Section T.6 in the bluebook • Pretty much any other type of citation style can also be found in the Bluebook.

11. How to brief a case • One of the more of basic things that one might have to do in law school is to brief a case that you might be required to read • Here are the parts of a short brief that I would ask of you in this class. • Remember, that a brief involving putting interpretation of case in your own words, not copying and pasting parts of a case. • Doing so without proper attribution is plagiarism • Procedural History: What path did this case take to get to the Supreme Court? • Facts: What are the facts of the case? • Issue: What was the question that the Court was considering? • Holding:/Judgment How did the Court rule? • Reasoning: Why did the Court rule the way that they did (this will be the larger part of your assignment)? What prior cases and precedent did they use to come to their decision • Also, describe the reasoning for any concurrences or dissents as well. Why did they concur or dissent? • Policy: What are the future policy or legal implications of further cases that might reach the Court?

12. LEGAL WRITING • Generally, you will have two types of writing • Analytical • Generally, these type of questions will involve something to start such as “you are a junior partner in a law firm” or “you are a clerk for a judge” • The goal here is to analyze the question to present arguments and the law for both sides • You are not taking sides, you are looking at what the state of the law is • You may be asked in the conclusion to state what you think the correct answer is based on the law • Persuasive • This is more likely to be a person drafting a legal argument either in favor or in opposition of a position • You have to find the law most persuasive to the position of your client • You cannot ignore precedent that goes against you • But you can try to distinguish why it may not apply to your case • Remember that in the real world when you are writing a legal brief to be filed in a court, it is for a client who has retained your services- your goal is to win the case

13. Citing cases (sorry- again) • There are some points on how to cite your cases within a legal document • Whenever you directly quote specific language within a case, you need a pinpoint citation to where you cited it • Whenever you may be indirectly quoting a part of a case, you may have a pinpoint cite that spans a few pages, rather than just one. • Citations will generally be at the end of a quote • However, sometimes when you are speaking directly about the case, they may go in the sentence or split • In Reynolds v. Sims, 377 U.S. 530 (1964), the Court stated that state legislative districts must be of equal size. • In Reynolds v. Sims, the Court stated that state legislative districts must be of equal size. 377 U.S. 530 (1964). • After you have cited a case once, there are some shortcuts to use later. • If you are quoting from the case you have just cited, you can use the word Id. • This is only for citing the same case you previously cited • So Id. at 121. • If you have previously quoted the case and you have cited other cases in between, the shortened version would look like this: • Reynolds, 377 U.S. at 546. • Unless a citation is in the center or beginning of a sentence, citations should end with a period, as if a sentence. • Whether you choose to italicize or underline a case, be sure NOT to do the same with the rest of the citation.

14. Legal writing organization- Memo • Any legal memorandum should include a TO, FROM, DATE, RE at the top • Then a title of some kind • It should generally include the following: • Question presented • This should be a few sentences that spell out the question to which you are seeking to answer within your memo • Short answer (helpful, but not required- generally) • This is a one paragraph summation of the answer to the question presented • Facts of the case • Lay out the facts of the case in the way that most accurately describes them • Discussion • This is the critical part of any memo • This is finding the law and applying it to the facts of the case • Conclusion • Briefly in a paragraph state how you think the Court would rule and why

15. IRAC • For your discussion, a suggested way of organization for each point of law is IRAC • If there are multiple questions you seek to answer, you may want to put them in different sections • Issue • You should have covered this before • Rule • This is the law that you have found • Don’t say “the rule is”, but state what the cases on point to the question say • Application • Apply the law that you found to the facts of the question before you • You may want to address any counter arguments here as well • But when writing a memo, you address both sides • This is more for an argument • Conclusion • How does the application of the law to the facts answer the question

16. Writing a legal argument • This is where you are attempting to persuade • Generally, you are wanting to persuade the trial court or an appellate court • You want to make your point and potentially refute arguments against your position • You are not being even handed! • You want the judge(s) to rule in your favor • But a critical difference for your sections between a memo and an argument • A memo should be a question • III. Does the Texas Voter ID law violate Section 2 of the Voting Rights Act? • An argument should be an affirmative statement • III. The Texas Voter ID law violates Section 2 of the Voting Rights Act.

17. Finding legal cases • More recent Supreme Court cases can be found at their website: • www.supremecourt.gov • Most state courts also post recent decisions • For others • Google Scholar • Lexis • Your BU Library account can be of great use as well • We have access to West Law

18. Resources for legal writing • CUNY Law School Writing: • http://www.law.cuny.edu/legal-writing/students.html • WikiHow • http://www.wikihow.com/Write-a-Legal-Brief • You can also search google for examples • Many law schools provide examples of these • Don’t fret too much. • I am not grading you as if you would be taking a first year Con Law class in law school • But I do expect you to try your best

19. Next Lecture • We will talk about the Court system • Read pages 11-22