Ch04

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RESEARCHING THE LAW Chapter 4

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Transcript of Ch04

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RESEARCHING THE LAW

Chapter 4

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Why is it important to know how to research the law? Criminal justice professionals are

expected to know the law and when it changes

There are many resources you can use to stay current with the law

Researching the law enables you to find answers to legal questions and to understand the judicial system

Keeping current with the law makes you a more credible professional

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Popular Literature

Information about the law is written for the layperson in popular literature

It does not go in depth that professional or scholarly literature does Time, Newsweek, Readers Digest

Most of these sources are sociological and do not report the actual law

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Professional Literature

Written for the practitioner in a given field

For Criminal Justice, would include: The Police Chief FBI Law Enforcement Bulletin Corrections Today UCLA Law Review The Journal of Municipal Government and NCJA Justice Bulletin

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Professional Literature

These periodicals are to keep readers current on the ever changing constitutional law

Contain articles on newly enacted laws and their effect on the CJ System

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Scholarly Journals

Written for people interested in theory, research and statistical analysis Justice Quarterly-the official publication of

the Academy of Criminal Justice

All of these sources are considered secondary sources Actual cases and the opinions handed down

are primary sources

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Primary Sources

Presents the raw data or the original information Include the U.S. Constitution Constitutions of the 50 states Statutes of the U.S. Congress Statutes of the 50 state legislatures Appellate court decisions of the federal and

state courts

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Secondary Sources

Involves selecting, evaluating, analyzing and synthesizing data or information

It is usually easier to understand than primary information Legal periodicals- record and critique the

activities of legislators and judges and discuss current case law Law school publications, bar associations

publications and special subject and interest publications

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Secondary Sources

Treatises/ Texts- is a comprehensive document on a legal subject. Go into specific subject depth

Legal Encyclopedias- narratives arranged alphabetically by subject with supporting footnotes General law, local or state law, and special subject Corpus Juris Secondum American Jurisprudence Guide to American Law

Legal Dictionaries- define words in their legal sense Ballentine’s Law Dictionary, Black’s Law Dictionary

Other Sources of Information

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Reading Legal Citations

A legal citation is a standardized way of referring to a specific element in the law

There are three basic parts A volume number An abbreviation for the title A page or section number Usually followed by the date

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Reading Legal Citations

U.S. Supreme Court case: Horton v California, 496 U.S. 128 (1990) Volume 496 of the United States Reports,

page 128, decided in 1990 Miranda v Arizona, 384 U.S. 436 (1966)

Volume 384 of the United States Reports, page 436, decided in 1966

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Reading Legal Citations

Case citation is important because it shows the student exactly where to find an important point

Lets the reader know if the case is relevant to the problem they are researching

The citation will also point out if it is an appellate case

Sometimes there are additional citations that show where a case may be found in commercial reporting services String cites

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Case Law

Court decisions are recorded as opinions Describe what the dispute was about States what the court decided and why The opinion may be written by one member of the

court or many Concurring opinions – an opinion written by a Justice

who agrees with the holding, gives additional or different reasons for voting with the majority

Dissenting opinions – written by a Justice who disagrees with the holding and voted against the majority

Some landmark cases have eight or nine opinions National Reporter System - Publishes regional sets of

cases as well as sets for specific states

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Reading Case Law

A legal opinion usually contains A description of the facts A statement of the legal issues presented The relevant rules of law The holding The policies and reasons that support the

holdin

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Reading Case Law

Caption- title of the case (U.S. v Smith), (Land v Smith)

Holding- the rule of law applied to the particular facts of the case and the actual decision

Affirm- Agree with a lower court’s decision Reverse- Overturn the decision of the lower

court Remand- return the case to the lower court

for further action

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How to read Case Law

1. Must be able to think in reverse Opinion provides the end result of the deliberations,

isolate what the dispute involved, what the trial court decided, how it proceeded and what happened on appeal

2. Untangle the interplay of the basic components of a judicial decision

Each affects the others in a process that goes back and forth and around in what may appear to be circles

3. Drawing inferences - Not all elements of the judicial opinion may be included

Infer them from the decisions made

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Briefing a Case

To outline the case in a summary (brief) Contain:

Case name and citation Summary of key facts Legal issues involved Court’s decision Reason for that decision and Any separate opinions or dissents

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Briefing a Case

Opinions also provide judges with an opportunity to express thoughts on issues that are not essential to the court’s decision

Dicta Statements by a court that do not deal with

the main issue of the case Additional discussion Not binding on future courts

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Shepardizing

Shepardizing a case involves using Shepard’s Citations reference that tracks cases so legal

researchers can easily determine whether the original holding has been changed through any appeals

Criminal justice practitioners will not have to do this

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Example of Shepard’s Citing List

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Computerized Legal Research Thanks to the Internet, researching the law is

accessible to everyone Findlaw, LexisNexis, American Bar Association, U.S.

Supreme Court, etc. Information Literacy

The ability to effectively identify an issue, narrow that issue, access appropriate online sites, separate fact from fiction and present the findings professionally

To evaluate the reliability of information on the Internet, consider the credibility of the source and the currency of the information

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What’s Next?

The online discussion group is a new development

There are electronic bulletin boards and virtual discussion groups covering law and criminal justice issues

Blogs are a way to get a variety of perspectives on an issue

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Researching a Law of Interest Step 1 – Identify the issue you want to research Step 2 – Identify some research terms or phrases

that might be used to reference your topic Step 3 – Choose the resources to conduct the

research Step 4 – Decide how to access the resources Step 5 – Access your sources and search using the

terms you have identified Step 6 – Interpret the results Step 7 – See how other courts are interpreting the

law