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ANALYSIS, Legal Problem Solving and usually from a client interview.

Analysis more familiar you are with the law
RESEARCH & that governs the clients problem, the
Legal problem solving identify-
WRITING ing and diagnosing problems and more valuable the information you
Excerpted from generating strategies and tactics to will obtain at first. If you know noth-
Legal Services Practice Manual: Skills achieve client objectives is a le- ing about the law that affects the
2014 by Benchmark Institute gally trained persons most basic problem, you always can use the five
All rights reserved function. Most legal problem solv- Ws who, what, when, where,
ing activity involves some legal why as a fact gathering guide.
analysis combining law and facts You always must identify the client
LEGAL ANALYSIS: to generate, justify, and assess a objectives and priorities as part of
THE HEART OF THE legal problems merits. initial fact gathering.
Awareness of the process helps you ANALYZE THE FACTS involves de-

H elping people solve problems

is the essence of what we as advo-
analyze your own approach to solv-
ing problems, making it easier to
develop your ability to do legal analy-
termining which facts may be legally
significant. Legally significant facts
might be, for example, that a tenant
with an eviction notice has never
cates do. Expertise in how the law been supplied with hot water; or a
affects these problems particu- parent who is seeking custody of
larly those of low-income people Your Approach to Solving and
Analyzing Legal Problems her children has been convicted of
is our specialty. a crime; or a SSI recipients ben-
Recall a case that you handled from
beginning to end. Visualize in your efits have been terminated because
Here we present a model of the the recipient allegedly didnt report
tasks involved in legal problem solv- mind in as much detail as you can
what happened from your initial con- certain income.
ing, showing how legal analysis is a
critical part of each task. In your tact with the case to its final resolu-
tion. Focus on the process what At this stage, fact analysis can lead
busy practice, you dont have time to formulating the tentative, overall
to reflect on process how you do you did rather than the content
type of case, kind of law involved issues in the case. If you are unfa-
things you just do them. These miliar with the law that governs a
materials present opportunities to paying close attention to how you
analyzed the case. Describe the case, then your issue statement
reflect on these tasks to help you tends to be broad, e.g., Can the cli-
perform them more skillfully. tasks and the order in which you
did them ent be evicted? Can the client re-
Awareness of how legal analysis is tain custody of her children? Was
involved in problem solving tasks is the clients termination from SSI
key to understanding how to do it Legal Problem Solving
Process: A Model proper?
Compare your process to the model
diagramed in Illustration 5 - 1. The The more you know about the law
Study Questions that affects the problem, the more
These study questions highlight the model is designed to help you iden-
tify different components of legal precise your issue statement tends
key concepts in this section and to be, e.g., Did the landlords failure
serve as an organizer for your notes problem solving and the role that le-
gal analysis plays in that process. In to provide hot water to the premises
as you read it. constitute a breach of the implied
practice, these activities dont occur
in neat little compartments that are warranty of habitability which the
1.Describe the key steps in the le- tenant can raise successfully as a
gal solving process. perfectly distinct from one another;
the boundaries between components defense to the eviction action?
are usually fuzzy. Moreover, people dispute at this stage. This analysis
2.Describe how legal analysis is part also may change as you research the
of each step. frequently move through the activi-
ties several times before any type law and gather more facts. No
of solution is reached. matter how tentative, however, such
3.Describe the role of legal memo- an analysis serves to focus your re-
randa in legal problem solving. search and fact discovery.
The first box is labeled GATHER
FACTS. The first step in analyzing
a legal problem is to gather the facts,


Using various research strategies, problem completely. To close fact that the opposing party will make.
you SEARCH and ANALYZE THE gaps, you need to GATHER FACTS
LAW. You must always check the or do further discovery, which some- Once youve identified your legal
law if only to confirm that your times simply means asking your cli- theories and those of the other side,
memory of it is correct. Given the ent for information. Other situations you must evaluate them. Evaluat-
uniqueness of each fact situation and require initiating formal discovery, ing legal theories involves predict-
how quickly the law changes, every which usually is available if a law- ing how the decisionmaker will de-
problem merits a fresh look at the suit has been filed and in some ad- cide the case. The evaluation must
governing laws language. ministrative agency hearing pro- consider the decisionmakers
cesses. Additional facts may predisposition toward your legal
Since legislation statutes and change or modify an initial analysis, theories and supporting arguments
regulations governs the majority The facts and the dispute must be and those of your opponent.
of disputes, you should check it first. re-analyzed in light of new informa-
Once you find pertinent legislation, tion. This predisposition may be indicated,
you should identify its elements, iden- for example, by patterns of previ-
tify and frame the issues and define Once you have analyzed a problems ous decisions, reasons given for pre-
the elements in contention. Follow- facts and law, identified the legal is- vious decisions, or the decision-
ing these steps is critical to formulat- sues, and closed as many fact gaps makers particular characteristics.
ing legal rules and is discussed in as possible, you must FORMULATE, The evaluation should also examine
Introduction to Legal Analysis. EVALUATE and SELECT LEGAL any legal or factual equities that com-
To define the elements in contention, THEORIES of the case. A legal pel a particular result in a case. The
you should search for court opinions, theory may be defined as how you law, for example, may be so clear
legislative history and definitional conceptualize the relationship be- that any other legal theory is unac-
legislation. Each pertinent court tween law and facts that entitle the ceptable or the facts may be so
opinion should be briefed its key client to relief. strong that any other result would
elements identified and compared be blatantly unfair.
to the clients case. For example:
Theory evaluation ends the diagnos-
If legislation does not govern your The theory of a tenant seeking to tic phase of legal problem solving.
problem, then using appropriate re- defend against an eviction action Legal theories, supporting legal ar-
search strategies, you should read may be that the landlord has guments and counter arguments, and
and brief all pertinent cases, com- failed to supply hot water to the their evaluation are sometimes ex-
paring them to your clients case. tenants home for the past six pressed formally in an internal or
Analysis of court opinions is dis- months; inter-office memorandum.
cussed in Introduction to Legal
Analysis, infra. The theory of a mother asking Most public interest advocates do not
for custody of her children may have the luxury of writing formal
In some cases you must go beyond be that she has been their memos. Minimum standards of
merely identifying relevant law and primary caretaker for the past competence dictate that you in-
formulating legal rules through iden- five years and the father has clude a written diagnosis of the
tifying and defining the key elements never visited the children; clients problem in the case file in
of legislation and case law. You also some form of an opening memo-
must identify trends in the laws in- A TANF recipients theory for randum. At minimum the opening
terpretation and application; e.g., by remaining eligible for benefits is case memo should include all pos-
tracing and discussing the legislative that the childrens father suffers sible legal theories, supporting legal
history or prior versions of legisla- from a severe disability. arguments and counter arguments
tion or by identifying and synthesiz- and their evaluation. Although the
ing a rules development in a line of Legal arguments support and justify writing need not be the quality of a
cases. We briefly discusses these legal theories. Formulating legal memoranda submitted to a court or
skills in the next section, but do not theories means identifying and or- administrative body, it should be writ-
deal with them in depth. ganizing arguments and counter-ar-

guments in terms of claims, defenses
Research often reveals fact gaps and other legal results. It means in-
information you need to analyze the cluding the theories and arguments


ten so that someone else can under-
Five Ws
means that once a problem has been Client objectives and priorities
diagnosed, you must develop and
evaluate alternative solutions and ANALYZE FACTS
strategies, selecting and implement-
Legally significant facts
ing those that best advance some or Identify issues/key words to enter research materials
all of the clients objectives. Strate-
gies include adjudicating the matter
before a court or administrative law
Factual? Definitional? Consistent?
judge, negotiating a settlement or
using other forms of dispute resolu- Using research strategies
tion. Strategy implementation may
involve writing, drafting, negotiation,
and other advocacy skills. Advo-
cacy memoranda hearing, trial, or Go first to If no legislation, go to
other appellate briefs, memoranda of
law that accompany motions or or- Legislation Case Law
ders to show cause contain the
legal theories and arguments that Identify elements Brief
support the clients position, omitting Identify issues Compare to clients case
the objective evaluation found in in- Frame issues Identify trends in application/
ternal memoranda. Define elements interpretation


As you begin to master the legal To close fact gaps To close fact gaps
analysis process, youll understand
that this linear model cannot repre- GATHER FACTS
sent the exact way that legal prob- Interviews
lems are solved. Legal problems are Documents
not solved by mechanically follow- Site Investigation
ing a rote process, completing one Formal Discovery
step in its entirety before starting Once fact gaps closed
another. At all of its stages, legal
problem solving incorporates the re- FORMULATE/EVALUATE/SELECT LEGAL THEORIES
sults of continuous unfolding; like Relationship between facts and law
standing on a hilltop before dawn and Supporting legal arguments
watching the scene below become Assess re decisionmakers predisposition/equities
clearer and clearer as the sun rises.

This model is meant to guide you in WRITE

your first efforts at legal analysis by Internal/Opening Memo
making you conscious of the tasks
and skills involved in legal analysis FORMULATE/EVALUATE/SELECT/IMPLEMENT
in the context of solving a clients STRATEGIES
problems. Refer to it whenever the WRITE
trees become so dense that you need Pleadings/Motions/Trial/Hearing Briefs
a sense of the forest of legal Business Plan/Business Documents

Illustration 5 - 1

LEGAL ANALYSIS: 4.Describe what decision-makers do spitting on her pet rabbit, Bonzo,
COMBINING LAW when they decide a case. which is confined in Florences
AND FACTS backyard. You look up spit in the
5.Define and distinguish factual, defi- index of your state annotated code
nitional and consistency disputes. and find two statutes. One prohib-
its any person from spitting in a public
LEGAL ANALYSIS AT WORK place and the other provides that
astering legal analysis is like
Legal analysis involves selecting le- any person who spits on the chat-

M riding a bicycle once

youve mastered the ba-
sics, you never forget how.
And the more conscious you are of
gal rules and applying them to facts.
Facts are information describing
persons, things or events. Legal
tel of another is liable to the owner
for $100.

rules, enforceable governmental To determine what legal rules gov-

the processes involved, the quicker
standards of conduct, consist of leg- ern a situation, you break down leg-
youll become better at doing it.
islation constitutions, treaties, islation into elements conditions
statutes, executive orders, adminis- that must be met if the rule is to ap-
This section describes legal analy-
trative agency regulations, charters, ply. You then compare the elements
sis as you do it in your work, for
ordinances and court rules and with your fact situation to see if the
example when you use your knowl-
case law judicial and administra- rule might apply.
edge of the law to get the relevant
tive agency opinions.
facts. We also look at it from a de-
You identify the elements in the first
cision-makers perspective.
Legal analysis concerns what legal statute as person, spit, and pub-
Judges do legal analysis when they
rules govern a specific factual situ- lic place. You decide it does not
decide cases they determine the
ation and how the rules apply to apply because neither the rabbit nor
law that governs a case, decide what
these facts. Determining what law Pat was in a public place when the
the law means and apply the law to
governs the facts means sifting spitting occurred. You identify the
the facts as they find them to be.
through the law and selecting the elements in the second situation as
Finally, we describe the difference
rules that apply to the facts. Apply- person, spit, and chattel of an-
between factual, definitional and
ing the law to the facts means tak- other. You locate a statute that
consistency disputes. Deciding
ing the rules that govern a particular defines a chattel as any personal
whether a dispute is factual, definiti-
fact situation and determining how property and a court opinion that
onal or one of consistency helps fo-
they operate on the facts. The ap- holds that a rabbit is considered per-
cus your legal analysis. Should you
plication process is somewhat like sonal property. You decide that this
focus on arguing what the law means
placing a stencil legal rules statute governs your case.
or whether its inconsistent with
over a pattern facts to deter-
other laws? Or should you concen-
mine if the pattern fits the stencil. Applying the law to the facts, you
trate on gathering persuasive proof
If the pattern fits, then the rule ap- decide that Pat is liable to Florence
to prove your clients version of the
plies and the consequences of the for $100. If Pat can defeat any of
rule pertain. these elements, i.e., shes not a per-
son (shes a robot), she didnt spit
Study Questions
We dont believe as some schools (she sneezed), Bonzo is not a rabbit
These study questions highlight the
of thought hold that legal analy- (hes a high public official), Bonzo
key concepts in this section and
sis is a neutral, objective or scien- does not belong to Florence (hes
serve as an organizer for your notes
tific process that always leads to government property), then the law
as you read it.
identical results when applied to would not apply. And Pat would not
identical key facts. Social, economic, suffer the consequences of the rules
1.Define legal analysis.
and political considerations do influ- applicability; i.e., she would not be
ence courts in how they apply legal liable to Florence for $100.
2.Describe the relationship between
rules to facts. Were using the sten-
the law of a case and the facts of a
cil analogy here to help make an The Interdependent Relation-
abstract process concrete. ship of the Law and the Facts
To analyze a legal problem, you must
3.Define findings of fact and con-
For example, suppose that your cli- know the legally significant facts and
clusions of law.
ent, Florence, says she wants to stop the law that governs the problem.
her next door neighbor, Pat, from A cases facts and law are inextri-


cably intertwined; you need the facts farmer. benefit law.
to find the applicable law; you need You return to Jerry with questions Inexperienced advocates, especially
the law to determine which facts are about his age, income and amount lawyers, tend to place more impor-
legally significant. of time as a *farmer. He says hes tance on finding the law than inves-
worked 29 years as a farmer, al- tigating the facts, in large part be-
Analyzing a legal problem usually though Selma, his 65-year -old wife, cause fact investigation is given short
begins by gathering some facts, most has farmed for 37 years, earning shrift in law school. Law students
likely in a client interview. Knowl- $800,000 in her lifetime. Returning read appellate court opinions that
edge of the law that governs the to the law, you find a court opinion focus on interpreting and applying the
problem makes this process more that says farmer means male head law where the facts are settled,
efficient and effective; the more law of household or female who has i.e., not subject to dispute. In re-
you know, the more legally signifi- worked at least 20 years growing search projects and examinations,
cant facts youll get. Researching peas, tomatoes, and corn. You find facts are given and not subject to
the law usually reveals the need to another court opinion that holds that controversy and investigation as in
gather more facts, because certain lifetime earnings means earnings real life.
facts do not become significant until from farming only.
the law that governs the problem is On the other hand, most inexperi-
analyzed. Armed with additional Note how in this example, know- enced paralegals tend to ignore the
information, you return to the law ledge of the law directs and focuses law, particularly court opinions ap-
that sometimes reveals even more fact investigation. Whether you are plicable to the case. This tendency
facts that must be investigated. responsible for conducting an entire is probably due to lack of training in
case or only for its fact investiga- finding and analyzing the law and the
The interdependent and circular re- tion, you must be familiar with the myth that analyzing the law is solely
lationship between the law and facts law that governs it. If you were fa- within the province of lawyers.
involves continual sifting and com- miliar with NRFA benefits in Jerrys
paring until the relevant law and the case, you would have gotten more Experienced advocates have com-
significant facts emerge. This rela- pertinent information at Jerrys ini- plete command of the facts and law
tionship can be illustrated as a con- tial interview, whether the case was of a case. They understand that this
tinuous circle: yours or you were gathering facts mastery is critical to identifying facts
for someone else. that must be proved and predicting
law how the law will be applied to a
cases factual findings essential
facts facts FACTS, FACTS, FACTS: ITS legal problem solving skills.
law In our legal system facts are su- THE DECISIONMAKERS
preme. Our job as advocates is to ROLE: DECIDING FACTS AND
Another example: Suppose your determine how the legal system will LAW
client, Jerry, wants to know if he is deal with the facts our clients bring A legal dispute is a controversy over
entitled to NRFA benefits. He us. the facts what happened, who
says that hes heard that all retired said or did what and the law that
farmers are entitled to these ben- Knowing the facts directs and fo- applies to the facts what law ap-
efits. You go to the index in your state cuses legal research. To find the plies, its meaning and how it applies.
annotated code and look under law, you must know the facts. Rules A legal dispute occurs between two
farmers and retirement benefits. of law are meaningless outside the or more parties that may or may not
Luckily, you find a statute entitled factual context to which they are be brought for resolution to an adju-
National Retired Farmers Act applied. To solve a legal problem, dicatory body such as a court or
that says, All farmers who are re- you must know the facts that give administrative hearing. The role of
tired from full-time farming and are rise to it. To resolve disputes, deci- the official decisionmaker is to re-
over the age of 65 are entitled to sion-makers require complete fac- solve disputes; their resolution ends
benefits if their lifetime income is tual presentations. An ALJ decid- in a decision or judgment.
under $1,000,000. You find a court ing Jerrys and Selmas case for
opinion that holds that full time example, would want to know how In most disputes, parties do not dis-
farming means that a person must the law affects their unique facts; agree on all of the facts and law of
work at least thirty years as a the judge would not be interested in the dispute; commonly, they find
a comprehensive essay on all NRFA
several areas of agreement. Most basis for the decision in the case. Henrys. The Judge makes the find-
adjudication systems focus on the This process is diagramed in ing of fact that Henry owns
facts and law at issue; i.e., over Decisionmakers Tasks in Resolv- Purpleacre.
which the parties disagree. Judges ing Disputes in Illustration 5 - 2.
reach decisions by determining the The Judge now must apply the law
facts at issue and deciding what law As an example: suppose Wendy and to the facts. Wendy and Henry
governs and how the law applies to Henry seek a divorce. The only is- agree that Section 222 is the law that
those facts. Decisions about the sue is the child support amount governs the case and that asset
facts are called findings of fact; Henry must pay for the support of means thing of value. Agreeing
decisions about the law are called his daughter, Debbie. The pertinent with their interpretation of the law,
conclusions of law. law is Rev. Stat. Section 222 that the judge applies the law to the facts
provides: and concludes that Henrys assets
As triers of fact, a role played by a include a parcel of real property
jury when one is impaneled, judges To determine the amount of child worth $30,000.
make findings of fact based on the support , the court must consider
evidence presented to them. If no each partys earning capacity, needs, Wendy and Henry agree on the facts
evidence such as testimony, docu- obligations and assets and then ap that Henry suffers from depression
ments, or objects is presented to ply the payment schedule which and requires therapy. They disagree
prove the facts in question, then the appears in its local court rules. over the meaning of needs. Henry
trier of fact can make no finding that argues that needs include psycho-
the fact exists. The parties agree on Henrys earn- logical needs, while Wendy argues
ing capacity and obligations. They that needs are confined to physi-
In determining questions of law, disagree over the amount of his as- cal needs such as food, shelter and
judges consider and often rely on sets whether he owns clothing. Both parties support their
parties legal arguments, presented Purpleacre, a parcel of land valued legal theories with authority. The
orally closing or oral argument at $30,000, and his needs legal question is whether Henrys
or in writing advocacy memos. whether psychological therapy is a therapy is a need which the court
Each partys legal argument de- need. must consider under Section 222.
scribes its best legal theories sup-
ported by authority, i.e., what law The parties agree that Henrys After considering the arguments, the
governs the case, the laws mean- monthly income is $1,200, and that judge decides that Section 222 gov-
ing and how it applies to the disputes he spends $500 per month for food erns the case and that needs in-
facts. Theoretically, judges are not and housing. They disagree over cludes psychological needs. Apply-
confined to the legal arguments that whether Henry owns Purpleacre. ing this interpretation of the law to
parties present, but must decide the the undisputed facts that Henry
law correctly regardless of any Wendy introduces a document that suffers from depression and requires
argument presented to them. In shows that a Jake Moran owns therapy the court concludes that
practice, many judges do not look Purpleacre. She also offers a hand- Henrys therapy is a need under
beyond the parties arguments. writing expert who testifies that Section 222. Taking its conclusion
Therefore, in all cases each party Henry signed the deed as Jake of law that Purpleacre is Henrys
always must present its best possible Moran. Wendy also introduces asset and Henrys therapy is a need
legal arguments to persuade the Henrys recent conviction for per- the court applies the payment
decisionmaker to decide the case in jury. schedule and decides that amount of
the clients favor. child support Henry must pay.
Henry testifies that he did not sign
Basically, decisionmakers resolve the document as Jake Moran. His Note that the parties are not argu-
disputes by finding the facts, decid- handwriting expert says the same ing over the facts in the needs is-
ing what law applies to the dispute, thing. sue; they agree that Henry suffers
interpreting that law, and applying from depression and requires
the law as interpreted to their fac- The factual question to be resolved therapy. They disagree over the in-
tual finding to reach conclusions of is: does Henry own Purpleacre? The terpretation of the law; i.e., the
law. These conclusions form the judge considers and weighs the evi- meaning of needs in Section 222.
dence and decides that Wendys Contrast this issue with the question
evidence is more persuasive than about Henrys ownership of the real


the case fit within the definition or
over Henrys assets was factual;
To Resolve Issues they disagreed over whether Henry
(Areas where parties disagree) owned the property, not over the
definition of asset.
Decide Facts Determine Law
For excample, Ron and Bill disagree
Consider the evidence Decide what laws over whether Rons pet, Edwin, is a
offered to prove facts govern the dispute turkey. Both agree that a turkey is
at issue a large bird that says gobble,
gobble. Ron claims that Edwin
t t doesnt gobble, Bill says he does.
Weigh the evidence Interpret the
The dispute here is not over the defi-
governing laws
t nition of turkey, but over whether
Make findings of fact Edwin fits the definition, i.e., does
he gobble?
APPLY LAWS AS INTERPRETED The welfare department terminates
TO Hilarys benefits, alleging that she
FACTUAL FINDINGS failed to notify it of a change in in-
come. Both agree on the meaning
To reach of Reg. Section 111 that provides:
All notices regarding change of in-
CONCLUSIONS OF LAW come must be written and hand-de-
livered to a recipients eligibility
To reach worker. Hilary says she handed a
written notice to Barbara, her eligi-
DECISION bility worker. Barbara denies it. The
parties agree about what constitutes
notice its definition; they disagree
over whether that definition was met
Illustration 5 - 2
in this case; i.e., did Hilary hand a
written notice to Barbara?
property. In that issue, the parties present decisionmakers with the le-
disagreed over the facts whether gal analysis that they will adopt. You Definitional Disputes
Henry owned the property; they did present the law that should govern In definitional disputes, the parties
not disagree over the meaning of the case and demonstrate how it do disagree over the definition of a
asset or whether real property should be interpreted and applied to rule of law or a portion of it. The
was an asset. the facts as you prove them to be. Wendy-Henry dispute over needs
was definitional Wendy argued
In summary, decisionmakers in le- ANALYZING THE DISPUTE: that needs in Section 222 the
gal disputes decide questions of fact FACTUAL DEFINITIONAL relevant legal rule meant basic
and law. Triers of fact make fac- CONSISTENT physical needs, while Henry argued
tual findings based on the evidence Deciding whether issues in a case that needs including psychological
presented. Based on the parties are facutal, definitional or ones of needs.
legal arguments and sometimes their consistency helps focus legal re-
own independent research and search and fact investigation. For example, on the issue of
analysis, judges formulate conclu- whether Edwin is a turkey, assume
sions of law by deciding what law Factual Disputes that Ron and Bill agree on the facts
governs a case, interpreting the In a factual dispute, the parties agree that Edwin is large, gobbles, and has
laws meaning, and then applying it on the definition of the rule of law two legs. Ron claims that a turkey
to the factual findings. or the test used to determine is a bird with four legs; therefore,
As an advocate, your job is to whether the legal rule applies. The
dispute is over whether the facts of
Edwin is not a turkey. Bill argues question of consistency is whether involve a consistency dispute. She
that a turkey is a bird with two legs; Section 666 violates or is inconsis- could argue that the regulation, in-
therefore, Edwin is a turkey. The tent with the Federal or state terpreted to require a notice written
parties agree on the facts; they dis- constitution. in the recipients blood, violates both
agree on the definition of turkey. its enabling statute and constitutional
Section 777 of a state legislative due process guarantees.
For example, on the issue of code requires county agencies to
whether Hilary notified the welfare investigate all allegations of pater- Analyzing a case in terms of the
department about her change in in- nity to force fathers to fulfill support types of disputes involved helps di-
come, assume that the parties agree obligations. Regulation Section rect case strategy. If a dispute is
that Hilary hand-delivered a type- 45.68 of its administrative code pro- primarily factual a fact case,
written letter to Barbara which de- vides that mothers who do not co- efforts should be focused on gath-
scribed her income change. The operate in establishing paternity of ering the most persuasive evidence
welfare department argues Section their children shall be denied aid. available to prove the facts at issue.
111 requires written notice to be The Fourteenth Amendment of the Case strategy might entail doing ev-
hand-written in the recipients blood. United States Constitution guaran- erything possible to win at the hear-
Hilary argues that a typewritten no- tees due process of law. ing or trial level, since winning a
tice constitutes valid notice. This fact case on appeal is difficult. If
dispute is definitional; the debate The consistency questions are: does a dispute is primarily definitional or
centers on the meaning of written Section 777 authorize the agency to over consistency a law case,
notice in Section 111. condition aid on cooperation in es- efforts should be focused on
tablishing paternity as required by developing legal arguments. Case
Disputes over Consistency Reg. Section 45.68? Is the regula- strategy might constitute making a
The question in a consistency dis- tion consistent with the statute? record for appeal, if the chances for
pute is whether one rule violates or If Reg. 45.68 is validly based on winning at the lower level are re-
contradicts another. Two laws of Section 777, does the condition vio- mote. Similarly, the nature of a dis-
equal with such as two statutes or late the constitutional right to due pute can affect a negotiation stra-
two regulations may contradict one process? Are these laws consistent tegy.
another. A statute or regulation may with the Constitution?
be inconsistent with a state orhe fed- Emphasizing the facts or law aspect
eral constitution. A regulation may Consistency disputes almost always of a case, does not mean ignoring
be inconsistent with its enabling leg- involve a definitional dispute. the law in a fact case or the facts in
islation. The most common consis- Whether a statute violates the con- a law case. Remember the interde-
tency problems involve these latter stitution, or a regulation goes beyond pendent relationship between the
two situations laws that conflict what its enabling statute authorizes, two as discussed earlier in this chap-
with higher laws. depends on its meaning. Consis- ter. Presenting the facts persua-
tency disputes, therefore, are treated sively in a law case makes explicit
Examples as definitional disputes as discussed the relevance of the facts.
Section 333 provides that a divorce above.
petition must be filed 25 days after Finally, analyzing a dispute in this
service of the petition. Section 444 A case may involve all three types fashion might lead to developing an
provides that a response must be of disputes, although usually a dis- effective legal theory that otherwise
filed 30 days after service of the pute is primarily of one kind or the might have been missed. Some
petition. The consistency question is other. The parties might disagree people, for example, view the law
whether Sections 333 and 444 con- about the facts in one issue, over the as unchallengeable; i.e., the law is
tradict one another. definition of the law in another, and as written and ever shall be. As a
whether rules are consistent in still result, regulations that may be incon-
Section 666 requires female teach- another. sistent with their enabling statutes or
ers to take a six-month leave during laws that may be unconstitutional,
pregnancy. The Fourteenth Amend- The Wendy-Henry dispute involved are not challenged in appropriate
ment to the United States Constitu- a factual dispute over assets and a cases. If each case is analyzed as
tion and a state constitution guaran- definitional dispute over the mean- to whether it involves factual, defi-
tee equal protection of the laws. The ing of needs. Hilarys dispute with nitional or consistency disputes, the
the welfare department easily could possibility of missing a good legal


theory is minimized. ASSIGNMENT b. Mary argues that she
In summary, every legal dispute 1.True/False received $1,000. The welfare
should be analyzed to determine if it Since judges must determine department alleges that she
is primarily factual, definitional, or what law governs a case and received $1,500.
one of consistency. This analysis how it applies to a disputes
focuses legal research and issue for- facts, advocates need not c. Mary argues that
mulation at the diagnostic stage of present arguments on the law. section 100 contravenes
legal problem solving and provides Section 560.9 of the state
helpful information in planning and 2.True/False welfare code which states
implementing problem-solving stra-
In administrative hearings, that her sum is a resource.
judges make findings of The welfare department says
Summary fact based on testimony, that Section 560.9 has
This chapter presented a broad documents and objects nothing to do with recipients.
overview of legal analysis and how presented on the hearing
it operates in resolving disputes. record. d. Mary owns a bicycle with
Basically, legal analysis is combin- a motor attached to it. The
ing the law that governs a legal prob- 3.State whether the statements welfare department argues
lem with its facts; it involves select- below are findings of fact or that per Section 209, the bike
ing legal rules and applying them to conclusions of law. is a vehicle. Mary argues
facts. We emphasized the interde- that it is not a vehicle within
pendence of the law and facts, show- a. The claimant left the meaning of that section.
ing that mastery of both is critical in employment for good cause.
analyzing a case. We outlined how e. Mary owns an automobile.
decisionmakers, by deciding factual b. The claimant moved her She says it is worth $200.
and legal questions, resolve disputes. residence 250 miles. The welfare department says
We discussed how to analyze that it is worth $1,000.
whether a dispute primarily involves
c. The claimant hit another
factual or legal issues and the ben-
worker with a bottle.
efits of such an analysis.
d. The claimant did not read

the notice.

e. The claimant is disabled.

f. When the claimant moves
his right foot, he experiences

4. State whether the disputes

described below are factual,
definitional or ones over

a. Mary, a recipient of public

benefits, receives $1,000. She
argues that according to the
agencys regulations, Section 100,
is a resource.

The welfare department says that

per Section 100, the sum is
LEGAL RESEARCH: 7. How many federal district
FINDING THE LAW THAT courts are in your state? 19. Define primary and secondary
What federal circuit is your authority.
state in?
20.Describe the relationship
8. In what reporters are these between case law and legislation.
nalyzing the law requires re-

A search skills. To analyze a

problem, you must know the
law that governs it. Except in the
federal courts opinions found:
District Courts
Court of Appeals
Supreme Court
Discovering Ambiguities Legal
research is searching for the law to
solve legal problems. Legal research
simplest cases, no one is familiar with
is not about finding answers; the
all the law. Therefore, knowing the
9.What is a petition for a writ of correct law that governs a clients
law is tantamount to an ability to find
certiorari? problem does not pop up like toast
from a toaster. Legal research con-
10. What West regional reporter cerns discovering ambiguities that
This section is designed to help you
governs your state? can be clarified and manipulated
research and analyze the law by
11. Does your state have an to formulate legal theories and
making explicit the relationship be-
intermediate court of appeal? arguments that further client ob-
tween legal research and legal
analysis skills and by providing in-
12. Define the following:
formation about the law and the in-
Legal research skills come into play
stitutions that create it.
Precedent repeatedly during the course of le-
gal problem solving. During the di-
This section also describes the rela-
Stare decisis agnostic stage, for example, you do
tionship between enacted law or leg-
legal research to find the law to for-
islation and court opinions. Under-
Case of first impression mulate legal theories and arguments.
standing this relationship and how
You might also research points of
courts deal with enacted law in their
On point decision procedure how to subpoena wit-
opinions is critical to being able to
nesses to a hearing, what evidence
analyze a clients problems and write
13.Under what circumstances do is admissible while formulating or
objective and persuasive memo-
courts create law. implementing your case strategy.
14. Describe how courts interpret Researching the law requires ana-
Study Questions enacted law. lytical skills. Finding the law that
1.Define and give examples of governs a problems facts requires
legislation and case law. 15. Describe two rules of selecting the applicable law from
statutory construction that laws that do not apply. Making this
2.Define constitutions, courts use in interpreting selection requires the analytical skills
statutes, regulations, court enacted law. of identifying and defining the ele-
opinions and administrative ments of each law examined and
agency opinions. 16. Define judicial review. applying the elements the facts. If
the elements of the law might possi-
3.Describe the information re- 17.Describe these administrative bly govern the problem, the law is
ported in a court opinion. agency functions: subjected to further analysis.
4.Define legislative history Executive For example, in our earlier hypo-
and describe why it is important in thetical involving Pat spitting on
interpreting statutes. Legislative Florences pet rabbit, Bonzo, we
found two statutes that might have
5.In what books are federal Adjudicative applied to the problem. To deter-
statutes found? mine whether one or both laws gov-
18. Where do you find federal erned the problem, we identified and
6. Define subject matter jurisdic- regulations and where are they defined their elements. We then
tion, original and appellate jurisdic- updated? eliminated the statute that prohibited
tion. any person from spitting in a public
place because we were reasonably
sure that neither Pat nor Florence AMERICAN LAW
would claim that the spitting oc-
curred there. However, if the spit-
ting might have occurred in a public Constitutions The fundamental law which creates the
place, we would have analyzed that government framework, e.g., three
statute in more depth. branches Executive, Legislative, Judicial
and identifies basic governmental obligations
Researching a legal problem requires and citizens rights and liberties. Provides the
more than the ability to use the re- standards against which all laws are measured.
source materials that contain, collate,
describe, explain and update the law, Treaties Agreements between two or more sovereign
the emphasis of traditional legal re- countries, including Indian treaties. The exclu-
search courses. Besides analytical sive prerogative of the federal government, the
skills, researchers must understand President has the sole power to initiate and
some essential characteristics of law make treaties that the Senate must approve.
the object of their research.
Researchers must also develop re- Executive Orders Laws issued by the Chief Executive to direct
search strategies to find the appro- and govern the activities of government
priate law efficiently and effectively. officials and agencies.

This section generally discusses the Statutes Laws or acts passed by a legislature which
creation of law, its forms and their prescribe conduct, define crimes, create
relationship, its operation as author- inferior governmental bodies and appropriate
ity, and various strategies for re- public monies.
searching the law. It does not ex-
plore the resource materials that Regulations/ Laws promulgated by administrative agencies
contain, collate, describe, explain and Rules which implement or explain the statutes or
update the law except in passing. executive orders that govern the agency.
Many books do describe these ma-
terials and their use. Charters The fundamental law of a local governmental
unit which authorizes it to perform governmen-
tal functions, a local governments constitu-
Forms Of American Law tion.
The two forms of American law are
legislation constitutions, treaties, Ordinances Laws passed by the legislative branch of a
executive orders, statutes, regula- local government, ordinances regulate matters
tions, charters, ordinances and court of local concern, e.g., zoning, parking, refuse
rules and case law opinions disposal and crimes such as loitering.
or decisions of courts or administra-
tive agencies. Court Rules Laws governing court operations and practice
before a particular court, e.g., timing, filing and
Like most English-speaking coun- form of court papers and pre-trial procedures.
tries, the United States is considered Promulgated by courts, court rules are usually
a common law jurisdiction, be- subservient to statutes governing procedure.
cause American law is based on the
common law system of England. Opinions/Cases A courts explanation of why it reached its
Except Louisiana, whose laws are decision.
based on the Civil Law System, each
state has incorporated English com- Administrative Agencys resolution of specific controversies
mon law into its own body of law by Decisions by applying regulations, statutes, or executive
statute. As a result, old English orders.
cases still are good law, unless their
Illustration 5-3
rules have been changed or abro-
gated by legislation.
As first developed, case law was the process eventually resulted in a set that are new or controversial, would
common law systems only form of of codes, arranged by subject mat- be costly to implement, or affect
law. Statutes were enacted later, but ter, which contained acts passed by great numbers of people usually
played an insignificant role in the the legislature and common law rules have an exhaustive legislative his-
English and early American legal first developed in case law by the tory, because these bills are subject-
systems. In the process of settling courts. ed to extensive hearings,
disputes at common law, the courts committee reports and debate
made rules that were followed by All common law has not been codi- on the congressional floor. Legisla-
courts deciding later disputes with fied. Rules developed at common tive histories of state laws are far
similar facts. As is done to this day, law that have not been enacted into less complete and in many instances
Judges wrote opinions, official case or abrogated by legislation still are are not recorded at all. Legislative
statements, which reported: good law. In areas where no legis- histories of local legislation are al-
lation exists, courts continue to make most non-existent.
1. facts necessary to understand the law in the process of deciding dis-
dispute and which influenced the putes. Courts are also responsible Legislative history may become im-
courts decision; for interpreting legislation and deter- portant when a laws meaning is at
mining whether it conforms to the issue. The key to a laws meaning
2. issues or questions that were re- Federal and state constitutions. depends on legislative intent, i.e.,
solved; what the legislature intended to ac-
LEGISLATIVE SYSTEMS complish by enacting the law. Courts
3. past cases or precedents that the Legislatures are branches of the sometimes examine legislative his-
court examined and found to con- federal, state and local govern- tory to determine a laws legislative
trol the dispute; ments which are responsible for intent. For example, a court might
enacting legislation. Congress and examine the changes made in the
4. courts reasoning or explanation all state legislatures but Nebraska, bills language before it became law
of how it reached its decision; and have two chambers, called the Sen- or any testimony given in commit-
ate and House of Representatives tees that discussed the bill as evi-
5. disposition or result reached in in Congress and in most states. dence of what the legislature in-
the case. In order to find the law Locally, legislative bodies consist of tended the law to mean.
that governed a dispute, lawyers and one chamber and have various titles,
judges had to extract the rules of law In a definitional or consistency dis-
e.g., boards of supervisors, alder-
from those cases with similar facts. pute, advocates should analyze a
men/women or city councils.
laws legislative history, especially
Codification of Laws when no cases exist which interpret
In mid-nineteenth century, Ameri- Legislative Process the law in a manner favorable to the
can statutory law began to grow. Making legislation is similar at all client. Where possible, advocates
This legislative explosion reflected levels of government. Most laws should include statements in the leg-
the need for a comprehensive set of begin as bills which members of a islative history of laws that affect
laws, responsive to a changing, in- legislature introduce into a chamber. clients, to facilitate later favorable
dustrial society. The proliferation of The few bills that become law must court interpretations of these laws.
statutes resulted in the codifi- survive a torturous process through
cation of the laws, which involved various committees and subcommit-
organizing and enacting statutes and tees where they are amended sev-
common law into codes. Codifica- eral times. Consequently, the law
tion of statutes involved organizing as enacted is rarely a replica of the
bill as introduced. See How Bills

existing statutes into codes by sub-
ject matter, e.g., all laws dealing with Become Law Illustration 5-4 for
crimes were put into a Criminal an example of the legislative pro-
Code. cess.

Codification of the common law Each law has a legislative history,

involved enacting large bodies of a record of all the events that take
the common law rules extracted place before the bill became law. In
from cases into statutes. This the federal system, the legislative
history of important laws laws

Passage Passage Passage Passage

Refused Refused Refused Refused
t t t t


1. Drafted by Senate Bill Introduced Committee Recd Floor To House t Recd Floor Passed
Legislative (with number) Assignments Passage Debate House Committees Passage Debate
counsel (Testimony by
bill author, experts,
lobbyists, citizens)


Passage Passage Passage Passage Executive
Refused Refused Refused Refused
t t
t t t


2. Suggested House Bill Introduced Committee Recd Floor To Senate Recd Floor Passed

by Citizens (with number) Assignments Passage Debate Senate Committees Passage Debate
(Testimony by
bill author, experts,
lobbyists, citizens)

Primary Sources of JUDICIAL SYSTEMS Limited or special jurisdiction:
Legislation The judiciary is the governmental A court of limited jurisdiction may
Most federal and state statutes are branch that decides disputes. In the only decide cases that deal with sub-
collected in books called codes, laws process of deciding disputes, courts ject matter specifically defined by
or revised statutes. Each set is gen- create, interpret, and apply the law. law, e.g., some state courts are lim-
erally organized according to subject ited to hearing only family cases. All
matter, e.g., crimes, education, pub- Fifty-one court systems exist in the federal courts are courts of limited
lic health and welfare. Research- United States: one system for each jurisdiction; if federal law does not
ers almost always use annotated state and federal court system. specify that a federal court may de-
codes that contain the law and in- Each system is self-contained, ex- cide a type of case, then it has no
formation pertaining to each statute cept when highest state decisions subject matter jurisdiction over the
in the form of annotations. The are reviewed by the United States case.
annotations include notes about the Supreme Court. Laws within each
statutes research guides, and sum- system define their courts subject General jurisdiction: A court of
maries of case decisions that have matter jurisdiction and their struc- general jurisdiction may decide all
interpreted the statute. Each anno- ture. cases that are not within the exclu-
tated set of statutes also includes the sive jurisdiction of another court; i.e.,
applicable constitution. Subject Matter Jurisdiction if no law gives jurisdiction to another
The power of each court to hear and court, then a court of general juris-
Federal statutes are contained in the decide cases is called a courts sub- diction has the power to hear the
United States Code Annotated ject matter jurisdiction. Legislatures dispute. State courts of general ju-
(U.S.C.A.) and the United States enact laws that define the types of risdiction may decide all cases that
Code Service Lawyers Edition cases that its courts may decide. arise in the state, except those cases
(U.S.C.S.). Each State has its own Type of case usually refers to the within the exclusive jurisdiction of
set of annotated statutes, e.g., Cali- disputes subject, e.g., civil, crimi- another court.
fornia Annotated Codes, Michi- nal or family, monetary amount in-
gan Compiled Laws Annotated, volved, or stage of the dispute, e.g., Concurrent jurisdiction: When
Oklahoma Statutes Annotated, appeal or trial. two courts both may hear the same
and Revised Code Washington type of case, their jurisdiction is con-
Annotated. The first question a court must de- current, e.g., the federal and state
cide is whether it has subject matter courts have concurrent jurisdiction
Local government laws are called jurisdiction over a case, i.e., is the over cases involving interpretation of
ordinances. Since local government dispute the type of case that it may the federal constitution.
takes many different forms, re- decide? If a court lacks subject
searching ordinances may be diffi- matter jurisdiction over a dispute, Original jurisdiction: The court
cult. Generally speaking, ordinances then it must dismiss the case with- of original jurisdiction is the first
are often divided into local codes, out deciding on its merits. A judg- court where a legal dispute is taken.
i.e., building code or traffic code and ment rendered by a court which It hears the evidence and legal ar-
can be found in the offices of the lacks subject matter jurisdiction is guments, makes findings of fact and
agency to which they pertain. Par- void, i.e., has no effect. conclusions of law upon which it
ticularly in larger cities or counties, bases its decision. A court of origi-
ordinances are sometimes collated, Subject matter jurisdiction is classi- nal jurisdiction is usually called the
indexed and found in law libraries fied as exclusive, limited, general, trial court or court of first in-
and the county or city clerks office. original, appellate and concurrent. stance.

Exclusive jurisdiction: A court Appellate jurisdiction: Courts

with exclusive jurisdiction is the only with appellate jurisdiction hear ap-
court that may decide the matter, peals of disputes from lower tribu-

x e.g., federal courts have exclusive nals. Usually these courts do not
jurisdiction over appeals from SSI take evidence, but decide on the
disability cases. Such an appeal filed record the evidence introduced
in a state court would be dismissed in the court of original jurisdiction
for lack of subject matter jurisdic- whether any errors of law were
tion. made below.


Courts may have several types of court. This appeal is called an ap- tion over cases that involve the in-
subject matter jurisdiction. Courts peal of right, which means that terpretation and application of fed-
of general and limited jurisdiction the court must hear the appeal. If a eral law and where the constitution-
may have original jurisdiction party loses in the intermediate ap- ality of state or federal laws is ques-
be the first place a case is heard pellate court, it may seek review in tioned. Several specialized federal
appellate jurisdiction hear ap- the court of last resort. In a system courts exercise original jurisdiction
peals from disputes, exclusive juris- with no intermediate appellate court, over particular types of cases: the
diction be the only place a case a losing party must appeal to the Tax Court, Claims Court, and the
may be heard and concurrent ju- court of last resort. Court of International Trade. The
risdiction share power to hear trial court exercises appellate juris-
disputes with other courts. Only In most cases, courts of last resorts diction over appeals of federal ad-
courts of limited and general subject review of lower courts decisions is ministrative agency decisions like the
matter jurisdiction are mutually ex- discretionary. The court chooses to Social Security Administrations de-
clusive, because they are opposites. hear only cases with important legal cisions on SSI eligibility.
A court of general jurisdiction a issues or where lower courts rul-
court which may hear all cases un- ings conflict with one another. A Federal district court opinions are
less power is granted to another party who appeals a case to a court reported in the Federal Supplement
court cannot be a court of lim- of last resort must convince the (F. Supp.) or Federal Rules Deci-
ited jurisdiction a court that may court that the case falls within these sions (F.R.D.).. Most district court
hear only what the law specifically categories. In a system with no in- opinions are not reported; opinions
says it may hear. termediate appellate court, parties are issued when a court decides sig-
have no appeal of right; they must nificant issues of law as designated
Court Structure petition the appellate court to exer- by federal court rules. Unreported
The federal and state systems con- cise its discretion to hear the case. opinions usually may be obtained
tain two basic types of courts: trial from the court which issued the opin-
courts and appellate courts. Trial Federal Courts ion.
courts have original jurisdiction in As the trial court, the federal dis-
most disputes, i.e., they are the first trict court is the court of original ju- The federal intermediate court of
place disputes are taken. Trial courts risdiction of most cases filed in the appeals is the United States Court
hear evidence to determine a federal system. The United States of Appeals, sometimes called Cir-
disputes facts and interpret and ap- is divided into about 98 districts with cuit Courts. There are thirteen cir-
ply the law to its findings of fact to at least one in each state, the Dis- cuits, eleven of which consist of
reach a decision. trict of Columbia, the Virgin Islands, states and territories grouped geo-
Puerto Rico and Guam. Some states graphically, the twelfth for the Dis-
The party who loses in a trial court have more than one district, e.g., trict of Columbia the D.C. Cir-
usually has the right of appeal to an California and Texas have four dis- cuit and the Federal Circuit for
appellate court. Appellate courts tricts. No district court has jurisdic- patent and customs cases. Each
determine whether the trial court tion over an area that covers more Court of Appeals hears appeals from
committed errors of law, i.e., applied than one state. the district courts within its circuit.
the wrong law or incorrectly applied
the law to the facts. These courts Federal law defines the cases that a The Court of Appeals only reviews
do not receive evidence to make federal district court may hear; if no errors of law; it does not hear evi-
factual determinations, but rely on statute directs that the court may dence, but limits its review to the
the facts as determined by the trial hear a matter, the court has no sub- district court record. Certain fed-
court. ject matter jurisdiction to decide the eral agencies may appeal to the
dispute. Because the district court Court of Appeals directly without
Some systems have two types of is a court of limited jurisdiction, all going to district court. The Court of
appellate courts: intermediate ap- initial pleadings filed in federal court Appeals for the Federal Circuit was
pellate courts and final courts of must specify the law that confers established in 1982 to review deci-
appeal or courts of last resort. In a subject matter jurisdiction on the sions of the Claims Court and the
system with an intermediate appel- court. Court of International Trade.
late court, a party who loses in the
trial court has a right to appeal the Generally, federal district courts
case to an intermediate appellate have original subject matter jurisdic-


The opinions of the courts of appeals
are found in the Federal Reporter
(F ) Federal Reporter, Second Se-
ries (F.2d). The Federal Reporter
also reports opinions of the Court of
Claims and the Court of Customs
and Patent Appeals.

The Court of last resort which is the

final review of all federal courts and
agencies is the U.S. Supreme Court.
The Court may review state court
decisions only when these cases
raise questions involving the U.S.
Constitution or other federal law.
Court review is discretionary and is
granted only on rare occasions.
Parties must file a petition for a
writ of certiorari (cert.) which con-
tains their arguments about why the
Court should hear their case. Only
if the Court grants the petition for
certiorari, will the case be heard on
its merits.

The Court is a court of original ju-

risdiction in a few matters such as
cases involving disputes between
two states. Moreover, the Court will
review a decision directly from a
District Court in certain instances,
e.g., when a District Court rules a
federal law unconstitutional.

United States Supreme Court opin-

ions appear in three separate report-
ers: United States Reports (U.S.),
Supreme Court Reporter (S.Ct.),
and United States Supreme Court
Reports, Lawyers Edition (L.Ed).
Like most court opinions, they are
arranged roughly in chronological


The United States Court System

(Court of Final Appeals)

United States

Supreme Court


(Court of Middle Appeals)

United States United States

Courts of Court of Customs
Appeals and Patent Appeals
t t

(Courts of Original Jurisdiction)

U.S. U.S.
U.S. District U.S. Court
Tax Court Customs
Courts of Claims

Direct Appeals
from State Courts
in 50 States

The chart on the following page illustrates the division of the federal court system into eleven
geographic cirecuits (each with its own United States Court of Appeals), and its further subdivision
into ninety-four geographic distrcits (each with its own United States District Court). Note that each
distrcit falls within one of the eleven circuits. (In addition to these eleven circuits, the District of
Columbia has its own circuit.) Appeals from a District Court go to the Court of Appeals for the
geographic circuit in which that District Court is located.


State Courts
Although state trial court structures
Circuits of the U.S. Court of Appeals vary, a common arrangement is a
two-tier system of trial courts. At
1st Circuit the first level are courts with limited
Maine New Hampshire Rhode Island subject matter jurisdiction. These
Massachusetts Puerto Rico courts usually hear cases involving
small claims, divorce or small sums
2nd Circuit of money. Local courts such as Jus-
Connecticut New York Vermont tice of the Peace and Police Courts
often fall into this category.
3rd Circuit
Delaware Pennsylvania Virgin Islands At the second level are courts of
New Jersey general jurisdiction which handle
cases involving large sums of money
4th Circuit or serious violations of state law.
Maryland South Carolina West Virginia These courts may be called Supe-
North Carolina Virginia rior Courts, Courts of Common
Pleas, District Courts or Circuit
Courts. In some instances, the two
5th Circuit
levels may be divided into depart-
Canal Zone Mississippi Texas Louisiana ments or divisions, e.g., a common
arrangement in a large court is to
6th Circuit have separate departments or divi-
Kentucky Ohio Tennessee sions for civil and criminal matters.
Michigan Many state courts of general juris-
diction exercise appellate jurisdiction
7th Circuit over appeals from their courts of lim-
Illinois Indiana Wisconsin ited jurisdiction and state administra-
tive agency decisions.
8th Circuit
Arkansas Missouri North Dakota Iowa Each state has a final court of ap-
Nebraska South Dakota Minnesota peal usually called the Supreme
Court. About half the states have
9th Circuit intermediate courts of appeal called
Alaska Hawaii Nevada Courts of Appeal or Circuit Courts
Arizona Idaho Oregon of Appeal. Some states have sepa-
California Montana Washington rate appeal courts for criminal and
Guam civil matters. Other states are di-
vided into appellate districts with
10th Circuit each court of appeals hearing ap-
Colorado New Mexico Utah peals from the courts of general ju-
Kansas Oklahoma Wyoming risdiction in its district. Like federal
appellate courts, state appellate
courts only review errors of law. An
11TH Circuit
appeal to an intermediate court of
Alabama Florida Georgia appeal is an appeal of right, while an
appeal to a final court of appeal is
District of Columbia Circuit within the discretion of the court to
grant or deny.
Federal Circuit
State trial courts rarely write opin-
Illustration 5 - 6 ions. Occasionally, a trial court ex-
ercising appellate jurisdiction will
write an opinion; these opinions are
seldom published. Some states do


not publish every intermediate ap-
pellate opinion. Cases are desig-
nated for publication according to
criteria usually found in their court
rules, e.g., the opinion establishes a
new rule, alters or modifies an ex-
isting rule, involves an issue of
continuing public interest, or criti-
cizes an existing law. Unpublished
opinions have no value as precedent.

The published opinions of the high-

est state court and any intermediate
appellate court are collected in one
of the seven regional reporters (At-
lantic, Northeastern, Northwestern,
Southeastern, Southwestern, South-
ern, and Pacific) of Wests National
Reporter System. Each regional
reporter contains all the published
state court decisions arising from the
states in its region, e.g., the North-
east Regional Reporter contains pub-
lished opinions from Illinois, Indiana,
Ohio, New York (highest court only),
and Massachusetts. West also pub-
lishes the California Reporter and the
New York Supplement that contain
all the published appellate decisions
of their respective states.

In addition to the National Reporter

System, many states have a sepa-
rate system of official reports,
published in accordance with state
law, for their appellate cases. In
states with intermediate appellate
courts, the opinions from those
courts and the highest courts deci-
sions are published in separate re-
porters. For example, Illinois Su-
preme Court opinions are found in
Illinois Reports (Ill.), while Illinois
Court of Appeal Opinions are con-
tained in Illinois Appellate Reports
(Ill. App.).

In the states that no longer publish

their own official reports, the re-
gional reporter is the only place the
opinion is reported. West publishes
special state editions for most states,
which only contain the opinions of
all individual state that are reported
in the regional reporter, e.g., Pacific
Reporter, Kansas cases only con-
tains Kansas decisions.

State Supreme Court

(Court of final resort. Some states call it Court of Appeals,

Supreme Judicial Court or Supreme Court of Appeals.)

Intermediate Appellate Courts

(Only 23 states have intermediate appellate courts, which are an intermediate

appellate tribunal between the trial court and the court of final resort. A major-
ity of cases are decided finally by these appellate courts.)

Superior Court

(Highest trial court with general jurisdiction. some states call it Circuit Court,
District Court, Court of Common Pleas, and in New York, Supreme Court.)

Probate Court* County Court* Municipal Court*

Some states call it Surrogate Court (These courts, sometimes called (In some cities, it is customary to
or Orphans Court (PA). It is a Common Pleas or District Courts, have less important cases tried by
special court which handles wills, have limited jurisdiction in both civil municipal justices or municipal
administration of estates, guardian- and criminal cases.) magistrates.)
ship of minors and incompetents.)

Domestic Relations Court

Justice of the Peace** (Also called Family Court or

and Juvenile Court.)
Police Magistrate

(Lowest courts in judicial hierarchy.

Limited in jurisdiction in both civil
and criminal cases.)

*Courts of special jurisdiction, such as Probate, Family or Juvenile and the so-called inferior courts, such as Common
Pleas or Municipal courts, may be separate courts or may be part of the trial court of general jurisdiction.
**Justices of the Peace do not exist in all states. Their jurisdictions vary greatly from state to state where they do exist.

State and Local Judicial System-SOURCE: American Bar Association, Law and the Courts, 20 (1974)


The National Reporter System
Reporter Abbreviation State Courts Included

Atlantic Reporter A. and A.2d Supreme and intermediate appellate courts in D.C.,
Connecticut, Delaware, Maine, Maryland, New
Hampshire, New Jersey, Pennsylvania,
Rhode Island, and Vermont

Northeastern Reporter N.E. and N.E.2d Court of Appeals in New York and supreme and
intermediate (First and Second Series) appellate
courts in Illinois, Indiana, Massachusetts and Ohio

Northwestern Reporter N.W. and N.W.2d Supreme and intermediate appellate courts in Iowa,
Michigan, (First and Second Series) Minnesota,
Nebraska, North Dakota, South Dakota and

Pacific Reporter P. and P.2d Supreme and intermediate appellate courts in

Alaska, Arizona, (First and Second Series)
California (Sup. Ct.only since 1960), Colorado,
Hawaii, Idaho, Kansas, Montana, Nevada,
New Mexico, Oklahoma, Oregon, Utah,
Washington and Wyoming

Southeastern Reporter S.E. and S.E.2d Supreme and intermediate appellate courts in
Georgia, North (First and Second Series) Carolina,
South Carolina, Virginia and West Virginia

Southern Reporter So. and So.2d Supreme and intermediate appellate courts in
Alabama, Florida, (First and Second Series)
Louisiana and Mississippi

Southwestern Reporter S.W. and S.W.2d Supreme and intermediate appellate courts in
Arkansas, Kentucky, Missouri, Tennessee and

New York Supplement N.Y.S. All New York supreme and intermediate appellate

California Reporter Cal. Rptr. All California supreme and intermediate appellate

Illustration 5 - 8


How Courts Create Law to work hard and has sat around the monly, courts are presented with
Under a common law system, courts house eating chocolate bon-bons cases governed by precedent or leg-
create law in the process of decid- ever since he quit. She also alleges islation. When no legislation con-
ing disputes before them. Each ju- that she never promised to support trols the dispute, the court examines
dicial decision not only resolves a him. After considering the evidence, prior cases that have resolved dis-
dispute, but becomes a precedent the court makes the factual findings putes similar to the case before it.
for the guidance of other courts in that Jack and Mary lived together Examining these cases, the court
deciding future cases. Precedents for ten years, Jack gave up his ca- compares the key facts in the pre-
are decisions in individual cases that reer to manage their household, and cedent case with the case before it.
may serve as authority for decisions Mary promised to support Jack. If the key facts are substantially
in future cases. similar, the court determines the rule
No Independence legislation gov- established by the precedent case.
Decisions are converted into bind- erns this dispute and no court deci- The court then applies the rule to the
ing authority by the doctrine of stare sions have ever considered such a dispute before it to reach a decision.
decisis, literally let the decision case. The court therefore, must cre-
stand. Stare decisis is the doctrine ate a new rule of law without the For example, suppose Donnie and
that once a court has set down a guidance of precedent. To create Marie, an unmarried couple, have
principle of law as applied to a par- such a rule, the court will consider lived together for five years in Inde-
ticular set of facts, it will adhere to public policy questions, relying on pendence. The parties agree that
that principle and apply it in all cases social utility, ethics, general standards Marie gave up her job as a waitress
where the facts are substantially the of justice, custom, business practice to manage their household and, in
same. or expediency. It may consider the return, Donnie promised to support
undesirable consequences if other her. After they separate, Donnie
Simply, a court has two1 choices available choices were adopted. In refuses to support Marie and she
each time it is required to decide a this case, the court might ask: should sues him. Assume that Jack v.
case which is not governed by leg- an unmarried person be allowed to Mary is the only relevant precedent
islation: it can apply an existing get support from a partner? Under and no factual dispute exists.
rulefollow precedent) or it can what circumstances? How would
develop a new or variant rule (refuse such a rule affect society and the Marie argues that Jack v. Mary is
to follow precedent or conclude no institution of marriage? What result a directly on point or an on point
precedent exists). if the court refused to adopt such a decision, since the facts of her case
Cases of first impression, cases rule? Jack urges the court to adopt are substantially similar to the facts
which are not governed by any ex- a rule that enforces an unmarried in Jack v. Mary. She argues that
isting precedent, make obvious how partners promise of support, while therefore, the court should bow to
courts create law when no prece- Mary argues against such a rule. the authority of Jack v. Mary and
dent exists. For example, suppose award her support. Donnie argues
Mary and Jack, an unmarried After examining public policy ques- that Jack v. Mary is not disposi-
couple, have lived together for ten tions, the court agrees with Jack and tive of applicable to his case
years in the state of Independence. decides that unmarried partners and therefore should not be followed.
Jack alleges that he gave up his ca- should be awarded support when Donnie tries to distinguish show
reer as a paralegal to manage the their partner promises to support the differences in Jack v. Mary
household in return for Marys prom- them. Applying this rule to its fac- from his case. He argues that his
ise to support him. Mary and Jack tual findings, the court awards Jack sex he is a male, Mary is a fe-
separate and Mary refuses to sup- $200 a month for support. By this male Maries former occupation
port him in the style to which he has decision, the court has accomplished she was a waitress, Jack was a
been accustomed. Jack sues Mary two tasks: it has decided the dispute paralegal and the relationships
for support in an Independence trial between Mary and Jack and cre- length five years for Marie and
court. ated a precedent to be followed in him and ten years for Mary and Jack
future cases.2 should mean that Jack v. Mary
Mary alleges that Jack did not give should not control his case.
up his career to manage the house- Cases of first impression are rare;
hold; she alleges that he quit his as the body of case law increases, Analyzing Jack v. Mary, the court
paralegal job because he didnt want the possibility of a case of first im- finds that its key facts were that an
pression decreases. More com- unmarried partner gave up a job to


manage the household in return for rectly on point decision of a higher examining its language, history or the
a promise of support. Comparing court in the same jurisdiction. policy behind the legislation.
Jack v. Marys facts to this disputes
facts, it finds them to be substantially Courts making law then, usually Courts construction of enacted law
similar. The court then determines refers to situations where courts cre- usually begins with the laws lan-
that the rule in Jack v. Mary is that ate precedent when legislation is guage. Some courts use the plain-
an unmarried partner who gives up absent. Courts also create prece- meaning approach, which looks at
a job to manage a household in re- dent however, when they decide dis- laws words and gives them their
turn for support is entitled to sup- putes that are governed by legisla- natural and normal meaning. This
port from the promising partner even tion. These disputes constitute at approach is based on the theory that
after the relationship ends. Apply- least 80% of all reported cases. a legislatures intent is best reflected
ing that rule to the facts, the court in the language that it selects. In
decides that Marie is entitled to sup- How Courts Interpret Enacted the early days of statutory construc-
port from Donnie. Law tion, courts refused to examine any-
Enacted law is superior to common thing outside a laws words, if their
When confronted with precedent law. In deciding a dispute, courts first meaning was clear and unambigu-
that a party argues is controlling, a determine whether legislation gov- ous.
court can also refuse to follow it. If erns the dispute. When it does, the
a court concludes that the courts duty is to interpret the legis- Words do not have absolute mean-
precedents and disputes significant lation in light of its legislative intent, ings. And legislators do not always
facts are not substantially similar to i.e., what the legislature intended to know precisely what they intend to
justify the same result, it may distin- accomplish by enacting the law. say or can imagine all future cases
guish or limit the precedent case and Although a court may violently dis- where a law might apply. Recog-
refuse to follow it. Had the court agree with a legislatures wisdom in nizing these limitations, courts cre-
agreed with Donnies argument that enacting a law, its duty is not to sec- ated the golden rule exception to
the key facts in Marie v. Donnie ond-guess legislative judgment, but the plain-meaning approach. This
were different than the key facts in to interpret the law to carry out the exception provides that the literal
Jack v. Mary, it could have distin- meaning the legislature intended. meaning is followed unless it leads
guished Jack v. Mary, thereby re- Such duty is easier said than done. to absurd or unjust results. Although
fusing to apply it to Marie v. Donnie. rejected by the U.S. Supreme Court
Rules of statutory interpretation are in favor of the purpose approach, a
Even if the court concludes that the numerous and difficult to apply. As few state courts still follow the plain-
significant facts are substantially a general rule, however, the court meaning approach.
similar, it can still refuse to follow uses several techniques to determine
the precedent and overrule it, stat- a laws legislative intent. Considered contradictory to the
ing public policy reasons for plain-meaning approach, is the pur-
abandoning the rule, e.g., the rule is First, a court will examine any prior pose approach, whereby courts in-
no longer just, expedient, or serves cases that have interpreted and ap- terpret enacted law to accomplish
society. Courts do not like to over- plied the legislation. If the key facts legislative objectives. Through this
rule precedent directly; when con- in these cases are similar to the key approach, courts seek to understand
fronted with a precedent they dont facts in the pending case, the court the objectives that a law is designed
wish to follow, they prefer to distin- may bow to the authority of the pre- to achieve by examining its language,
guish or limit it to its facts. More- cedent case, applying it to the pend- the circumstances surrounding its
over, this option is open only when ing case as described in the context enactment and its legislative history.
the rejected precedent is a decision of case law in Marie v. Donnie. Courts will examine a law to deter-
of the same or lower court, e.g., the Courts also may refuse to apply the mine if its language and plain-
U.S. Court of Appeal Fifth Circuit precedent case, distinguishing it from meaning is consistent with its pur-
may overrule its own decision or a the pending case on its facts or over- pose.
decision of a district court in the Fifth ruling it.
Circuit; the California Supreme Courts sometimes invoke rules or
Court may overrule itself or a Cali- If no prior analogous cases exists, canons of construction to aid their
fornia Court of Appeal decision. A the court will use other techniques interpretations of enacted law.
lower court cannot overrule a di- to interpret the legislation such as Some canons call for strict
narrowor liberal broad


construction, depending on the type American courts have not generally rested while reciting the Declaration
of law involved. For example, pe- accepted and consistently applied of Independence on the state capi-
nal laws designed to punish their theory of interpreting enacted law. tol steps. At her trial in the Inde-
violators and laws in derogation The techniques a court uses can pendence Superior Court, Ms. Sin-
of common law are construed depend on its attitude toward the ister raises Section 33s unconstitu-
strictly; remedial laws designed substance of the law it is interpret- tionality as a defense. She argues
to give relief to those harmed by their ing, i.e., whether it approves or dis- that Section 33 is an invalid law, be-
violation are construed liberally. approves of the law. These attitudes cause it contradicts the First Amend-
in turn depend on the political, so- ment (Free Speech) and the Four-
Sometimes courts refer to canons by cial, and personal values of its judges. teenth Amendment (Equal Protec-
their Latin names. For example, In preparing arguments to support a tion of the Laws) of both the Inde-
ejusdem generis (a-yus-dem particular interpretation, advocates pendence and U.S. constitutions.
jener-is), literally, of the same kind, must consider these attitudes as af-
class, or nature, means that where fecting a courts choice of tech- Using various statutory construction
general words follow lists of particu- niques and fashion arguments for techniques, the court interprets Sec-
lar classes, persons, or things, the their clients accordingly. tion 33 and the First and Fourteenth
general words shall be construed as Amendments. It then compares
applicable only to persons or things them to decide if Section 33 as in-
of the same general nature or kind terpreted conflicts with the consti-
as those listed. Hence, in a law Judicial Review tutional provisions. The court could
which prohibits importing oranges, One of the most important powers base a decision that Section 33 is
lemons, grapefruit and other such of courts is judicial review the unconstitutional on the grounds that
fruits, the term other such fruit, power to strike down unconstitu- it conflicts with: 1) both the Inde-
may be interpreted to mean only cit- tional laws. All legislation is subject pendence and U.S. constitutions; or
rus fruits and not all fruit, e.g., apples, to judicial scrutiny to determine 2) the Independence Constitution
bananas or plums whether it conforms to constitutional only; or 3) the U.S. Constitution only.
principles. When a court declares a Courts will rule a law unconstitu-
Expressio unius est exclusio law unconstitutional, the law is in- tional only as a last resort. For ex-
alterius (ex-pre-she-o u-ne-us est valid. Determining a laws consti- ample, where possible, courts will
ex-klu she-o al-ter -e-us), literally, tutionality involves interpreting both attribute a constitutional meaning to
expression of one thing is the ex- its meaning and the meaning of ap- a law on the theory that legislatures
clusion of another, means that men- plicable constitutional provisions. intend laws to have constitutional
tion of one thing within a law im- meanings. Rather than rule a law
plies exclusion of something that is Federal courts have the power to unconstitutional, a court will also at-
not mentioned. Thus, a law which determine whether a federal or state tempt to resolve a dispute on other,
grants certain rights to city librar- law contravenes the United States non-constitutional grounds.
ians, lawyers, and police officers Constitution. State courts can de-
would be interpreted to exclude other clare state legislation invalid if it con-
city employees not mentioned in the flicts with either the U.S. or their
law. state constitution. The United States
Supreme Court has the final author- ADMINISTRATIVE AGENCIES
Some canons artificially limit the ity to decide whether state and fed- Federal, state and local administra-
meaning of words; while others logi- eral legislation conflict with the U.S. tive agencies are governmental
cally guide in assigning a law mean- Constitution; while each state court authorities, other than courts or leg-
ing when other means are absent. of last resort is the final authority as islatures, which administer and carry
Nevertheless, even logical canons to whether its state laws contravene out the laws enacted by the legisla-
can be applied to reach results in- its own state constitution. ture. Agencies are considered part
consistent with a laws purpose. of the Executive Branch of govern-
Most courts use canons to support As an example, suppose the State ment because their function is to
further a result suggested by other of Independence enacts Penal Code carry out and administer the laws.
approaches or to aid in interpreting Section 33 which provides that no
laws which have no published legis- left-handed person may read out Most agencies perform legislative
lative history. loud in a public place. Ms. Marie and judicial functions. In their quasi-
Sinister, a left-handed person, is ar- legislative capacity, they promulgate


rules; in their quasi-judicial capac- be invalidated. However, most of-
ity, they adjudicate disputes. Agen- ten agency rule-making procedures
cies are authorized to perform these are challenged in the context of an
functions only because a legislature individual case; e.g., a party raises
has delegated the power to them a rules invalidity in response to an
through specific statutes called en- agencys attempt to apply the rule
abling legislation. If regulations do to the partys situation.
not carry out the provisions of en-
abling legislation, they are invalid. For a listing of sixty-four tech-
niques courts use in dealing with pre-
cedents, see K. Llewellyn, The Com-
Rule-Making Power mon Law Tradition: Deciding Ap-
The United States and many states peals 77-91 (1960).
have enacted Administrative Pro- Many trial courts and intermedi-
cedure Acts (APA) which govern ate appellate courts would probably
the manner in which agencies must not be so bold as to establish a new
exercise their rule-making power. rule on their own in this fact situa-
For example, like many state APAs, tion. More likely, the court would
the Federal APA provides that an dismiss Jacks action without a trial.
agency must publish proposed no- Jack would appeal and the highest
tices of rule-making, allow public state court (if it decided to hear the
participation in rule-making, and pro- case) would create the new rule of
cedures for interested parties to re- law. The court then would remand
quest the issuance, amendment or the case to the trial court to make
repeal of a rule. The federal APA findings of fact to which it would
does not govern all federal agencies. apply the new rule of law.
Unfortunately, many state agencies
with which legal services clients deal
are non-APA agencies. Although
non-APA agency rule-making is
subject to some procedural require-
ments, they usually are more lenient

than APA requirements.

To be valid, an agency regulation


interpret, implement, make spe-

cific or carry out the provisions of
enabling legislation,

be promulgated according to rule-

making procedures, and

be constitutional.

Most administrative rule-making is

subject to court review. The fed-
eral and most state APAs provide
that any interested party may
challenge a rule on the grounds it
does not conform to APA promul-
gation standards; e.g., a party may
file a case in court asking that a rule




Governed by no Governed by no Consider public policy

legislation? existing
case law?


On point case Examine Key facts similar? no Formulate rule



Apply Overrule Interpret Apply Overrule Apply


Illustration 5 - 9


Courts will rule a law unconstitu- non-APA agency rule-making is reject the decision. In many other
tional only as a last resort. For ex- subject to some procedural require- agencies, decisions may be appealed
ample, where possible, courts will ments, they usually are more lenient to a body that determines whether
attribute a constitutional meaning to than APA requirements. the hearing officer made any errors
a law on the theory that legislatures of law. Most agency decisions are
intend laws to have constitutional To be valid, an agency regulation subject to judicial review, where the
meanings. Rather than rule a law must: court exercises its appellate jurisdic-
unconstitutional, a court will also at- tion to determine whether the
tempt to resolve a dispute on other, interpret, implement, make spe- agency erred as a matter of law.
non-constitutional grounds. cific or carry out the provisions of
enabling legislation, Sources of Law
ADMINISTRATIVE AGENCIES Most federal regulations are pub-
Federal, state and local administra- be promulgated according to rule- lished in the Code of Federal Regu-
tive agencies are governmental making procedures, and lations (C.F.R.), a multi-volume
authorities, other than courts or leg- paperbound set organized by subject
islatures, which administer and carry be constitutional. matter. The C.F.R. is organized into
out the laws enacted by the legisla- fifty titles. Each title covers a gen-
ture. Agencies are considered part Most administrative rule-making is eral subject matter, e.g., Title 20
of the Executive Branch of govern- subject to court review. The fed- contains Social Security regulations;
ment because their function is to eral and most state APAs provide Title 42 contains Medicaid regula-
carry out and administer the laws. that any interested party may tions. Regulations are initially pub-
challenge a rule on the grounds it lished in the Federal Register, which
Most agencies perform legislative does not conform to APA promul- is issued every business day.
and judicial functions. In their quasi- gation standards; e.g., a party may
legislative capacity, they promulgate file a case in court asking that a rule At least thirty states have a state
rules; in their quasi-judicial capac- be invalidated. However, most of- administrative code which contains
ity, they adjudicate disputes. Agen- ten agency rule-making procedures some of its agencies regulations.
cies are authorized to perform these are challenged in the context of an Almost all state or local agencies
functions only because a legislature individual case; e.g., a party raises maintain their regulations in loose-
has delegated the power to them a rules invalidity in response to an leaf manuals that should be available
through specific statutes called en- agencys attempt to apply the rule at the agency responsible for pro-
abling legislation. If regulations do to the partys situation. mulgating them. Some agencies
not carry out the provisions of en- publish guidelines or interpretive
abling legislation, they are invalid. Adjudicative Power memos that operate much like regu-
When an agency exercises its adju- lations. If these agencies will not
dicatory power, it acts as courts do give you access to these documents,
Rule-Making Power in resolving disputes; it determines research whether a Freedom of
The United States and many states facts and interprets and applies Information Act gives you access or
have enacted Administrative Pro- the law to those facts in order to contact your friendly legislator.
cedure Acts (APA) which govern render a decision. The first step
the manner in which agencies must in this process is usually a hearing Some agencies publish their deci-
exercise their rule-making power. presided over by an official; e.g. sions that may be cited as precedent
For example, like many state APAs, hearing officer, examiner or ALJ. in future administrative hearings.
the Federal APA provides that an This officer takes evidence, deter- These decisions usually can be found
agency must publish proposed no- mines facts, decides what law gov- at agency offices. If you have prob-
tices of rule-making, allow public erns the facts, and makes a deci- lems with access, follow the sug-
participation in rule-making, and pro- sion. Many hearing officers issue gested strategy for regulations.
cedures for interested parties to re- written decisions which contain their Even if agency decisions are not
quest the issuance, amendment or findings of fact and conclusions of regarded as officially precedent,
repeal of a rule. The federal APA law. reading them especially those de-
does not govern all federal agencies. cided by your local hearing officers
Unfortunately, many state agencies In some agencies, the hearing deci- provides useful information for
with which legal services clients deal sion is not final, but a recommenda- preparing your cases.
are non-APA agencies. Although tion to higher officials who adopt or


Hierarchy of Authority enacting jurisdiction, legislation has identical or substantially similar to
Authority is legislation, case law and no weight, not even as persuasive the law and facts of case it is ap-
other statements of the law that par- authority. For example, a West Vir- plied to AND decided by the
ties cite to an adjudicatory body to ginia statute has no weight in any same court or a higher court.
support their legal position and that other state; it must be followed only
an adjudicatory body uses to support in West Virginia. Case interpreting For example, the U.S. Ninth Cir-
its decision. An advocate cannot legislation, however, are persuasive cuit Court of Appeals must follow
present an argument, and a authority outside its enacting jurisdic- its own on point precedents and
decisionmaker cannot justify a de- tion. For example, assume that those of the United States Supreme
cision, without citation to some au- Michigan adopts a statute that is Court; all state trial courts must fol-
thority. fashioned after a West Virginia low all on point decision of its appel-
courts interpretation of the statute. late courts.
Authority is either primary or sec- The Michigan court need not follow
ondary. Primary authority is the West Virginia decisions, but it may. All case law that is not mandatory
law cases and legislation. Sec- is persuasive; it may sway a court
ondary authority consists of state- Legislation exists in a hierarchy; a because of its cogent reasoning, but
ments of the law contained in legal lesser law that conflicts or is in- a court need not follow it.
encyclopedias, textbooks, treatises, consistent with a superior law, is in-
or law review articles. valid. At the top of the legislation Decisions are persuasive when they
hierarchy is the U.S. Constitution. are:
In investigating the law, the advo- It contains the fundamental prin- 1.From coordinate courts of the
cate looks for the best possible au- ciples by which all laws are mea- same jurisdiction, e.g., a federal
thority to support the clients posi- sured. To be valid, all federal, state district court is not bound by the
tion. Not all authority is of the same and local laws must conform and be decision of another federal district
weight; therefore, the researcher consistent with the U.S. Constitution, court; or
must be familiar with the hierarchy i.e., they cannot violate constitutional
of authority. principles. Next in the hierarchy are 2.From courts of another state, e.g.,
statutes, treaties, and executive or- a decision from any court in Ohio is
Mandatory authority is law that ders, followed by agency regulations only persuasive in any other state;
must be followed, while persuasive and court rules. Each state has simi- or
authority may be disregarded. Sec- lar hierarchy which also includes lo-
ondary authority is never mandatory cal legislation. 3. Not on point; e.g., a federal
and at best, is persuasive. Hence a District Court is not bound by a U.S.
statement from a legal encyclope- A complex situation arises when Supreme Court decision that does
dia or law review article is never dealing with a federal-state program not have similar key facts or inter-
mandatory authority; an adjudicatory such as Medicaid. Because the state pret the identical law.
body is never bound to follow it, but receives federal monies, the state
may if it wishes. Practically, some laws that govern the program must Practically, some persuasive author-
secondary authority may be more be consistent with federal law. For ity may be more influential in cer-
persuasive than others. For ex- example, a state Medicaid regula- tain courts than authority that is theo-
ample, the opinion of an expert in tion must clarify, explain, implement retically of the same weight. For
contracts probably will be more per- its state enabling statute and be con- example, the Third Circuit Court of
suasive than a statement on con- sistent with federal agency regula- Appeals may respect Sixth Circuit
tracts from an encyclopedia. Check tions and its state and the federal decisions in employment discrimina-
with other advocates familiar with constitutions. If the regulation does tion matters more than the Ninth
the courts in your jurisdiction, to dis- comport with its enabling state stat- Circuit, but hold the Ninth Circuit in
cover how your courts rank second- ute, that statute also must be con- more esteem in Social Security
ary authority. sistent with federal law. cases. Likewise, Oklahoma courts
Case Law may be more convinced by Texas
Legislation Case law is mandatory and must be decisions on housing than California
Legislation is mandatory in the ju- followed when the precedent case decisions. As with secondary au-
risdiction where it was enacted, e.g., is directly on point its rules and thority, its important to find out how
federal legislation must be followed key facts are identical or substan- your courts rank persuasive au-
in the United States. Outside its tially similar to the law and facts are thority.


The hierarchy of authority is dia-
gramed in Illustration 5 - 10.


PRIMARY Secondary
(Law) (Non-law)

Never mandatory; some-

times persuasive

MANDATORY Persuasive
(Must be followed) (May be followed)

Legislation Legislation

All in force in the None, but cases interpreting

jurisdiction, roughly similar laws may be persuasive
in this order:

U.S. Constitution
Federal Statutes/Treaties
Federal Regulations
State Constitution
State Statutes
State Regulations

Case Law Case Law

On Point On Point

and and

from from

1. Same Court 1. Coordinate Courts in the

Same jurisdiction;

or or
2. Higher court 2. Another state
in the same jurisdiction

Not on point, but persuasive reasoning

Illustration 5 - 10


Relationship between Case and researchers. The strategy you pretative policy memos that the
Law and Legislation select depends primarily on your fa- agency relies on.
Case law and legislation differ in miliarity with the law that governs
their origin and literary and textual the problem and the research mate- If you have not located any cases
form. Courts make case law in the rials available. These basic strate- thus far or to find more cases,
process of deciding particular dis- gies are diagramed on Illustration shepardize the legislation and use
putes, while legislative bodies enact 5 - 11. case digests. Shepardize all cases
general laws to govern future con- to make sure cases are good law
duct. Case law is found in case re- The first approach directs you to and to find other court opinions
ports; legislation is found in volumes begin research with Narrative which have discussed the case.
called Acts, Resolves, or Stat- Sources. This strategy is useful if
utes. Case law is textually flexible you are unfamiliar with the area you A second strategy is to begin by
because the rule of law it establishes are researching, because narrative examining sources of legislation.
may be stated several different sources give an overview of the law. This approach is useful when you
ways. Legislation is textually rigid This overview helps you identify are familiar with a legal area and you
because its precise wording is the terminology, any agencies involved, have a citation to pertinent legisla-
exclusive statement of the rule. some of the issues and any primary tion. After you have analyzed the
authority which governs the problem. legislation, you then would read all
Legislation governs most areas regu- pertinent cases as discussed in the
lated by law, although courts con- Once you have a general understand- first strategy. Finally, you might
tinue to make law where legislation ing of the area, you should go to leg- check certain narrative sources to
is silent, e.g., the law of torts is pri- islation, checking the citations found collect primary authority, e.g.,
marily judge-made. Legislation is in the narrative sources. Be sure to looseleaf service or identify any re-
superior to common law and if a leg- check all forms of pertinent legisla- cent trends in the law, e.g., legal
islature enacts a law that abrogates tion, e.g., if a problem is governed periodicals or treatises.
a common law rule, the legislation by regulations, also check the en-
prevails. For example, suppose a abling statute. When you have a case that is di-
court establishes the rule that un- rectly on point, you might follow the
married partners promises to sup- If narrative sources did not refer to third strategy which is to begin with
port their partners are enforceable. any legislation, check sources of leg- that case. You should use this
If the legislature enacts a law that islation anyway unless youre sure method only if common law governs
provides that these promises are the problem is governed solely by the problem or you have already
unenforceable, the common law rule common law. After reading and analyzed any governing legislation.
is abrogated and superseded by the identifying the elements in the gov- As in the second strategy, you should
legislation. erning legislation, check the annota- check narrative sources, e.g., to
tions for cases that interpret the ele- identify trends in case law.
Courts are not powerless, however, ments at issue. If no cases inter-
when faced with legislation, since pret the legislation, you should com-
they are charged with interpreting pile a legislative history. Many texts
the meaning of legislation. Given the on legal research will describe how
ambiguous wording of much en- to compile a legislative history.
acted law, court have numerous op- Check the card catalog in a law li-
portunities to shape the meaning of brary to find these sources.

legislation. The power to determine
a laws constitutionality also in- Taking all pertinent case citations,
creases the court influence on the locate and read each case. Never
legislative process. cite a case that you have not read
and analyzed. Finding administra-
DEVELOPING RESEARCH tive hearing decisions that may be
STRATEGIES cited as precedent is more difficult.
Where to begin research is a com- Check with the agency or an expert,
mon difficulty shared by many ad- experienced advocate in your office
vocates. As many different re- or a state or national back-up cen-
search strategies exist as law books ter, to locate any decisions or inter-


Whatever your research starting
point, you will use legal indexes and
SOME RESEARCH STRATEGIES tables of content to gain access to
the information in most legal resource
materials. Legal research experts
have devised systematic ways for
breaking a problem into words and
NARRATIVE SOURCES phrases that are looked up in tables
(Overview and Authority) and indexes. Perhaps the most thor-
ough is William Statskys cartwheel
Legal Services Practice Manuals approach1 discussed below.
Clearinghouse Review
Suppose your problem involves a
START Encyclopedias

wedding. Using the descriptive word

Legal Periodicals t
index and table of contents in any
Hornbooks law book, you look up wedding.
Treatises Suppose you dont find wedding
Looseleaf Services in either an index or table or its ref-
erences dont lead to relevant ma-
Go To terial. Using the CARTWHEEL,
t you think of as many different
phrasings and contexts of the word
LEGISLATION wedding as possible.
(Read and Analyze)
broader closely
Annotated Codes/Pocket Parts words related
agencies words
CFR/Federal Register
START State Administrative Codes/Manuals

Ordinances and Codes antonyms synonyms

Court Rules

Go To related
long narrower procedural
t shots terms
(Read and Analyze) 1.Identify all the major
words from the facts of the
Case Reports clients problem. Most of

START Advance Sheets these facts can be obtained


t Administrative Hearing Decisions from the intake memorandum

written following the initial
interview with the client.
Place each word or
Go To Go To
small set of words in the
t center of the CARTWHEEL.
DIGESTS SHEPARDS 2.In the index and table of
(To find similar cases) (To Update Cases) contents, look up all of these
llustration 5 - 11
3.Identify the broader
categories of these major


words. steps of the CARTWHEEL to the when to stop. How do you know
word wedding, here are some of whether youve found everything
4.In the index and table of the words and phrases that would you should? Rest assured that no
contents, look up all of these be checked in the index and table of bells will ring. Although experience
broader categories. contents of every law book that you helps, youll never be sure youve
examine: found everything. To help minimize
5.Identify the narrower this anxiety, at the point when you
categories of these words. BROADER WORDS: celebration, think you should stop:
ceremony, rite, ritual, formality, fes-
6.In the index and table of tivity, etc. 1.Make sure the law you cite is valid;
contents, look up all of these always shepardize.
narrower categories.
7.Identify all of the NARROWER WORDS: civil wed- 2.Look at the authority you
synonyms of these words. ding, church wedding, golden wed- have cited with the critical
ding, proxy wedding, sham wedding, eye of an opponent, a
8.In the index and table of shot-gun marriage, etc. supervisor or teacher. Are
contents, look up all of these your interpretations of the
synonyms. SYNONYMS: marriage, nuptial, law supportable? Have you
etc. quoted accurately? Did you
9.Identify all of the omit important law that
antonyms of these words. ANTONYMS: Alienation, annul- should have been mentioned?
ment, divorce, separation, etc.
10.In the index and table of Being reasonably certain about
contents, look up all of these CLOSELY RELATED WORDS: where to start and end research does
antonyms. matrimony, marital, domestic, hus- no good if you dont have access to
band, wife, bride, anniversary, cus- proper research materials. A major
11.Identify all closely related tom, children, blood test, pre-mari- difficulty that many legal services
words. tal, spouse, relationship, family, home advocates face in doing research is
consummation, cohabitation, sexual finding a comprehensive law library.
12.In the index and table of relations, betrothal, minister, wed- Your office library may be insuffi-
contents, look up all of these lock, oath, contract, name change, cient. Sometimes youll have to use
closely related words. domicile, residence, etc. investigation and advocacy skills and
ingenuity to locate and get access
13.Identify all procedural PROCEDURAL TERMS: action, to a decent library. Fellow legal ser-
terms related to these words. suit, statute of limitations, liability, vices workers, advocates in private
14.In the index and table of court, complaint, discovery, defense, practice, judges, friends, business
contents, look up all of these petition, jurisdiction, etc. acquaintances, and legislators are
procedural terms. some of the people that might help
AGENCIES: Bureau of Vital Sta- you in this task.
15. Identify all agencies, if tistics, County Clerk, License Bu-
any, which might have some reau, Secretary of State, Justice of Some places you might check are:
connection to these words. the Peace, etc. law and paralegal schools, state and
county libraries, court libraries, pri-
16.In the index and table of LONG SHOTS: dowry, common vate law firms, bar association librar-
contents, look up all of these law, single, blood relationship, fraud, ies, administrative agencies, other
agencies. religion, license, illegitimate, remar- public interest law firms and librar-
riage, antenuptial, alimony, bigamy, ies of corporations or associations,
17.Identify all long shots. pregnancy, gifts, chastity, community e.g., insurance companies, unions.
property, impotence, incest, virgin- Some of these sources may even
18.In the index and table of ity, support, custody, consent, allow you access to Lexis and
contents, look up all of these paternity, etc. Westlaw.
long shots.
Developing a research strategy not Finally, here are some guidelines to
If we were to apply these eighteen only involves where to begin, but


keep in mind when you do legal re- problem.
8.Update all law you rely on.
1.Enjoy it. Legal research is Outdated law is bad law, worse
exciting and challenging, like than no law at all.
hunting for treasure or
solving a mystery.

2.Thrive on the laws

9.Use the authority that will
best persuade the
decisionmaker to decide in
ambiguity. The library is not your clients favor.
a repository of answers, but
a storehouse of ambiguities 10.Practice. Practice.
waiting to be clarified and Practice. Like other skills,
manipulated on behalf of a research is only learned and ASSIGNMENT
client. developed through practice.
Since knowing the law equals 1.True/False Courts make law.
3.Be patient. Research can an ability to find it, research
be frustrating; the frustration skills are among the most 2.True/False Most bills intro-
becomes more manageable important advocacy skills to duced into the legislature become
with practice. develop. law.
4.Be curious and Summary 3.True/False Appellate courts
adventuresome. Figure out This chapter has presented some usually do not hear evidence.
how to use law books youve basic information that will help you
never used before. Not only analyze and research the law in
4.True/False The federal
are there plenty of how to do the process of solving client
legal research books, but problems. We pointed out that in district court exercises
many research tools contain a order to analyze the law, you must appellate jurisdiction over
section entitled How to Use be able to find it, and to select the appeals from many federal
This Book. pertinent law, you must be able to administrative agencies.
analyze it.
5.Be flexible. Sometimes 5.True/False Most trial courts
you dont know what youre We discussed how legislation and write opinions.
looking for until you find it. case law are created, the primary
Be receptive to different sources where they can be found, 6.In arguing to a judge about the
perceptions or approaches to and their relationship to one meaning of enacted law, it would
a problem that are revealed another. We emphasized that be important to cite the following:
during research. analyzing enacted law involves a) its legislative history
6.Ask questions. Almost analyzing either case law that b) its plain meaning
everyone who does research - interprets it or its legislative c) court opinions that interpreted it
-colleagues, lawyers, parale history. We also described the d) what the advocate thinks
gal, librariansis willing to hierarchy of authority, emphasizing e) all but (d)
share research techniques or the importance of supporting your
approaches to a problem in clients position with the authority
7.True/False A state court could
his or her substantive area of that is most persuasive to the
expertise. Get to know the decisionmaker in a case. declare a person bankrupt.
people in the national and
state support centers. Finally, we described some basic 8.True/False Almost every case
strategies in researching the law can be appealed to the U.S.
7.Read and analyze every and how to overcome such Supreme Court.
case and piece of legislation problems as when to stop re-
you cite. Always look for searching and finding an adequate 9.In a case of first
case law which interprets the law library. impression, where there is no
legislation that governs your governing legislation or court


decisions which have c) an on point decision from a
considered the circumstances California intermediate appellate
presented in the case, the court
court will consider public
policy questions and rely on: d) a) and c)

a) social utility e) all of the above

b) ethics
c) general 16.The federal district court
standards of justice sitting in the eastern district
d) customs of California must follow the
e) business practices on point decisions of the:
f) all of the above (check all that apply)
10. In deciding a dispute the court a) U.S. Supreme Court
will first: b) the DC Circuit
a) Determine whether legislation c) the southern district of Califor-
governs the dispute nia
b) Consider what would be the d) the 9th Circuit
best public policy e) none of the above
c) Look for cases that had similar
facts 17.True/False A Florida on
d) a) and c) point supreme court decision
e) all of the above could be persuasive authority
to a Oklahoma court.
11.True/False A court can
determine a statute to be invalid. 18.True/False An Ohio
court opinion interpreting a
12.True/False Courts often rule statute with identical
laws unconstitutional. wording to a Nebraska
statute could be persuasive
13.In attacking an authority to a Nebraska
administrative agency court.
regulation, advocates can
argue that the regulation is: 19.True/False Legislation
a) inconsistent with a state law is superior to court decisions.
b) inconsistent with a federal law
c) unconstitutional 20.True/False Advocates
e) a) and c) in an administrative hearing
f) all of the above brief should try to find court
opinions which support their
14.True/False Most interpretation of agency
administrative agency regulations.
hearing decisions are subject
to judicial review. Statsky, William P., Introduc-
tion to Paralegalism, Perspectives,
15.If you are arguing an Problems and Skills, West Publish-
unemployment insurance ing, Second Edition, pp. 495 - 498.
case in California, the best
authority to cite would be:

a) an on point decision from the
California Supreme Court

b) an on point decision from the

Alabama Supreme Court