week 2
Wildchild
File1.pptxThe Law in Books: An Introduction to Legal Research
1
That’s the Law! Maybe…
When folk’s make this claim they mean at least two things:
They are asserting that the law as it is written requires or prohibits some action.
The claim of legality suggest implicitly or explicitly that the courts will interpret and apply the written law in a predictable manner.
Techniques of legal research are based on the need to find out
the most authoritative statements, rulings, and commentaries on specific problems in the shortest possible time.
In order to do this it’s important to understand how to use the traditional tools of legal research.
What are the Sources of Law and Types of Legal Authority?
The Supreme Court is a source of law,
but it only deals with a small number of cases.
The major amount of interpretations that guild administrative action at any level of the public sector comes from
the lower federal courts or states tribunals.
Question: How does a legal disputes work their way through the legal system and which sources of law are used to resolve them?
Note: Most potential legal disputes never go to court.
They are resolve through discussion and compromise, a type of alterative dispute resolution.
Alternative Dispute Resolution
Alternative dispute resolution (ADR) includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation.
It is a collective term for the ways that parties can settle disputes, with the help of a third party.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has gained widespread acceptance among both
the general public and the legal profession in recent years.
In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried expressly contemplates so-called "compulsory" mediation;
this means that attendance is compulsory, not that settlement must be reached through mediation.
Additionally, parties to merger and acquisition transactions are increasingly turning to ADR to resolve post-acquisition disputes.
The rising popularity of ADR can be explained by the
increasing caseload of traditional courts,
the perception that ADR imposes fewer costs than litigation,
a preference for confidentiality,
and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.
https://en.wikipedia.org/wiki/Alternative_dispute_resolution
Duel Court System
A dual court system is a legal organizational structure that supports two contemporaneous court systems: usually one at a local level, and one at a national level.
Black Letter Law
In common law legal systems, black letter laws are the well-established legal rules that are no longer subject to reasonable dispute.
These informal black letter legal doctrines includes the basic principles of law generally accepted by the courts and/or embodied in the statutes of a particular jurisdiction.
The letter of the law is its actual implementation, thereby demonstrating that black letter laws are those statutes, rules, acts, laws, provisions, etc. that are or have been written down, codified, or indicated somewhere in legal texts throughout history of specific state law.
Some examples are the "black-letter law" of contracts or the "black-letter law" of trademarks.
Black-letter law can be contrasted with legal theory or unsettled legal issues.
The phrase definitely refers to a distillation of the common law into general and accepted legal principles.
This can be seen in the quote from the Supreme Court (1831)where the court is noting that while the black letter law is clear, New York precedent deviates from the general principles.
Repositories of the Black Letter Law
The law decisions of appellate courts are the law within, their respective jurisdictions. But under system of precedent these repositories are only one of a number of sources of black letter laws.
Constitution
Treaties
Statutes
Ordinances
Executive orders
Administrative regulations
Appellate court decisions
Contracts
Repositories of Black Letter Law
Constitutions
Treaties and Contracts
Administrative Regulations
Executive Orders
Appellate Court Decisions
Statues and Ordinances
Beginning Legal Research
Legal materials are published by official sources at various levels of government and by private commercial houses.
In doing legal research work, the researcher must frequently move from materials prepared by one private publisher to
those of the government or another publisher.
Although there are different types of research strategies that’s available for use, its important to:
Finding the law;
Reading the law;
Supplementing the law.
Finding the Law
First the researcher most look for “key” terms in the language of the law that one is investigating.
Make a list of terms that come to mind or words that are mention in the literature found in the research area.
By focusing on specific key terms it will save time. They can be found in indexes, dictionaries, and encyclopedias. Examples are:
Black’s Law Dictionary
Ballentine’s Law Dictionary
FindLaw.com
Law review articles (secondary sources)
Note: In law, unlike some other fields, words usually have an authoritative definition derived directly from the definition given to the words by courts that have considered them.
Reading the Law
To get from the law finder to the black letter law, one must understand the use of “legal citations.”
The citations consists of two parts: the case or article title and the reference.
Note: Lower court citations must contain an indication as to which court rendered the opinion because, unlike U.S. Supreme Court opinions,
a lower court’s ruling is only binding within its jurisdictions.
Legislative Enactments
A statute is a formal written enactment of a legislative authority that governs a city, state, or country. Typically, statutes command or prohibit something, or declare policy.
Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies.
In virtually all countries, newly enacted statutes are published in a Government gazette which is then distributed so that everyone can look up the statutory law.
A universal problem encountered by lawmakers throughout human history is how to organize published statutes.
Such publications have a habit of starting small but growing rapidly over time, as new statutes are enacted in response to the exigencies of the moment.
Eventually, persons trying to find the law are forced to sort through an enormous number of statutes enacted at various points in time to determine which portions are still in effect.
The solution adopted in many countries is to organize existing statutory law in topical arrangements (or "codified") within publications called codes,
then ensure that new statutes are consistently drafted so that they add, amend, repeal or move various code sections.
In theory, the code will thenceforth reflect the current cumulative state of the statutory law in that jurisdiction.
In many nations statutory law is distinguished from and subordinate to constitutional law.
U.S. Legislative Enactments
During a given year, Congress may enact several hundred statutes.
There are also 50 states legislatures more or less continuously engaged laws.
For example: When a member of the House of Representatives or a senator introduces a legislative proposal, it is assigned a bill number.
Thus, the bill to create the Department of Homeland Security began a H.R. 5005.
Once the bill has been enacted into law, it is assigned a public law number.
Each year the statutes are compiled chronologically by public number into the statutes at large.
Note: It’s useful to remember that the words of a statute may be necessarily be vague because
the legislature, among other reasons, must enact laws that are general enough to cover a range of problems and future circumstances.
Supplementing the Law
Supplementing the legal research involves at least tow distinct kinds of works.
First, one must ensure that materials are current.
Second the researcher must round out the research or place it in proper context.
Failure to follow through in legal research by supplementing materials, as in most other things, can nullify the hard work expended in finding and reading the law.
Note:
Ongoing Challenges
For law and public administration practitioners or scholars, the great strength of legal research is paradoxically also its great weakness.
Legal research tools and techniques are designed to methodically narrow the study to a very small part of a massive body of law.
Tunnel vision is always dangerous, and particularly so in public law and public administration problems.
Administrative problems arise from and are affected by a wide range of factors:
Statutory Problems
Financial issues
In ability to investigate, to ligate, and counsel
Interest Groups
New research
The bigger picture
Supreme Court of the United States - Official Site
