Law 60703: Legal Research 2 & 6

Christopher S. OByrne
cobyrne@nd.edu

Rm. 2309 Kresge Law Library

Class 1 Agenda
1. Instructors Introduction
2. Review Syllabus and Grading Policy
3. Introduction to Legal Research

-Primary and Secondary Authorities

-Federal and State Court Structure
-Mandatory v. Persuasive Precedent
______________
1. Adapted in part from King, Ogden, and Rees (2005).

Why learn Legal Research Skills?

"These law books behind me
don't just make the office
look good; they're filled with
useful legal tidbits."

Lionel Hutz (1991 1998)

Purpose of legal research:

1. Locate sources of primary authority
-Mandatory: authority the court should
follow
-Persuasive: authority the court may
follow
2. Locate secondary sources that explain the
primary authority

Legal Research is a process

The purpose of Law 60703 is to teach you that process !
Law Librarians see the process of research as the
point of the exercise; the students on the other hand,
are interested almost exclusively in the results of the
process-short-range answers, or at least the basic
legal proposition that they can use to manufacture an
answer to a discrete legal question.
Timothy P. Terrell, What Does and Does Not Happen in Law School to
Prepare Students to Practice Law: A View From Both Sides of the
Academic/Practice Dichotomy 83 Law Libr. J. 493, 499 (1991).

Sources of Law
Types

! Primary sources
! Secondary sources

Primary Sources
Definitions
! Laws themselves
! Statements or rules made
by persons or groups
empowered to declare law

PRIMARY SOURCES: Types

Const
Leg

Statutes

Jud

Exec

Cases

Admin
law

Statutes

Jud

Jud
Cases

Cases

Exec

Exec
Admin
Admin
law

STATE

Const
Const
Leg
Leg
Statutes

law

Secondary Sources
Definitions
! Commentaries about the
law
! Statements or opinions
made by persons or
groups without power to
promulgate law

Secondary sources
Statements or opinions made by
persons or groups without
power to promulgate law

----------------Examples
Examples ---------------GROUPS

SOURCES

Law profs
Law review students
Practicing attorneys
Legal publishing editors

Books (treatises)
Journal articles
Encyclopedias

Be sure to
distinguish between
the statements of
persons empowered
to declare what the
law is when acting
in their official
capacity
e.g., Opinion by
Justice Breyer
Associate Justice
Steven G. Breyer

and the statements,

or opinions, of such
individuals outside of
the course of their
official duties.

Private Citizen
Steven G. Breyer

Primary -- FEDERAL
! Constitution
! Statutes
! Cases
! Admin Law
Primary -- STATE
! Constitution
! Statutes
! Cases
! Admin Law
Secondary Sources
! Treatises
! Journals
! Encyclopedias
! Others

Typical 3-tiered Court System

Trial court
Intermediate court of appeals
Court of last resort

Court Structure
Overview
FEDERAL
Court(s) of last resort

STATE
Court(s) of last resort

Intermediatecourts
courts
Intermediate
appeals
ofofappeals

Intermediate courts
of appeals

Trial courts

Trial courts

Separate, parallel court systems

Trial Courts & Federal

District Courts
Each state has at least one. Some
have several.
Number determined by population
and geographic size of state

U.S. District Courts

N.D.
Iowa

D. Neb.

Each U.S. District

Court hears federal
cases from a federal
district .

S.D.
Iowa

W.D.
Mo.

E.D.
Mo.

A district
A
district may
may be
be all
all
or part
or
part of
of aa state.
state

Intermediate Courts
Federal Court of Appeals
Thirteen courts of appeals
Twelve cover a particular geographic
area
Court of Appeals for the Federal
Circuit
Nationwide jurisdiction in specific subjects
including patents, customs, and public
contracts

U.S. Courts of Appeals

9th

8th

WA

MN

OR

6th

7th

ND

MT

WI

1st
ME

MI

2d

SD

ID

10th
NE
NV

IA

IL

IN

NY

WY

CT

TN

MO

AZ

MA
RI

NH

KY

CA
UT

VT

OH

3d

PA

NJ

CO
KS

AR

4th
WV

OK

NM

MD

11th

AK

AL

5th

DE

VA
NC

GA

SC

MS
TX

LA

FL

9th

D.C. Circuit
Federal Circuit
Both circuits sit in D.C.
and generally hear
specialized cases.

HI
PJO 5/97 mapcir.fed

U.S. Supreme Court

8th Circuit
Court of Appeals

District
Court
(D. Minn.)

District
Court
(W.D. Mo.)

9th Circuit
Court of Appeals

District
Court
(E.D. Cal.)

District
Court
(D. Ore.)

Court Structure: States

Court of last
resort

Supreme Court
Court of Appeals
Court of Criminal Appeals

Intermediate
courts of
appeals

Courts of Appeals
Appellate Courts
District Court of Appeals

Trial courts

District Courts
Courts
District
Circuit Courts
Courts
Circuit
Superior Courts
Courts
Superior

Court Structure
State A
U.S. Supreme Court

State A
Supreme Court

Appellate
Court 1

Trial
Trial
Court
Court

Trial
Trial
Court
Court

Appellate
Court 2

Trial
Trial
Court
Court

Trial
Trial
Court
Court

Court Structure
State B
U.S. Supreme Court
State B
Supreme Court
Appellate
Court(s)

Trial
Court

Trial
Trial Trial
Court
CourtCourt

Trial
Trial Trial
Trial
Court
Court Court Court

Precedent and Stare Decisis

Precedent
A prior case which is close in fact
or legal principle to the case under
consideration.

Stare Decisis
The doctrine that precedents should
be followed.
Stare decisis gives fairness,
predictability, and stability to the
law.

Mandatory v. Persuasive
Authority
MANDATORY -- court
must follow ; offered
as directive
PERSUASIVE -- court
may (or may not) follow ;
offered as guidance

Mandatory Case Precedent

Definition

Holding (not dictum) in a prior case

that:
1. Has materially similar facts
2. Has not
not been
been overruled
overruled or
or
and
modified, and
modified,
3. Was decided by aa higher
higher court
court in
in
the same
same jurisdiction
jurisdiction.
the

High
court

Appeals
court

Trial
court

State
A

State
B

State
C

MANDATORY CASES

10

Mandatory and Persuasive

Case Precedent
The state court of last resort is the final
authority on state law matters. State court
of last resort opinions may only be
reviewed by the U.S. Supreme Court if
they violate federal law.
The U.S. Supreme Court is the only federal
court whose decisions on points of federal
law are mandatory on state courts.

Miller v. Schoene, 276 U.S. 272 (1928).

Plaintiff appeals decision of Supreme Court of
Appeals of Virginia enforcing Virginia Cedar
Rust Act (providing for destruction of trees to
prevent communication of disease)
Virginia Cedar Rust Act held not to violate
due process clause of Federal Constitution.
-Code Va.1924, 885-893; 14th Amendment

E. H. Schopler, Annotation, Duty of Federal Courts, Under Erie R. Co. v.

Tompkins, to Follow Decisions of State Courts as Regards Question of
Public Policy as to Recognition or Enforcement of Rights or Obligations
Arising in Another State, or Other Questions as to Conflict of Laws, 21
A.L.R.2d 247 (1952).
It is well settled that under the doctrine of Erie R. Co. v. Tompkins, and
subject to its limitations, the federal courts, when deciding questions of conflict
of laws in diversity of citizenship cases, must follow the rules prevailing in the
state in which they sit.
Typical of this kind of cases is the statement in Fleming v. Brown,150 F2d 801
(8th Cir. 1945) involving an action by parents for the death of the minor son in a
railroad accident in Kansas, where the court, citing the Erie said: It is wellsettled that this court must apply the law of the State of Kansas, the place of the
injury, in the determination of these issues.
Vrooman v. Beech Aircraft Corp,183 F2d 479 (10th
Cir. 1950) holding that in an action for injuries sustained
by a pilot in an airplane crash the law of Kansas, where
the airplane was manufactured, rather than the law of
Indiana, where the accident occurred, was controlling.

11

Confused ???
- See Wren chart
- Pay particular attention

to the Note on the

back!!!

Mandatory v. Persuasive: Grid

Mandatory

Persuasive

Primary -- FEDERAL

!
!
!
!

Constitution
Statutes
Cases
Admin Law

Primary -- STATE

!
!
!
!

Constitution
Statutes
Cases
Admin Law

w/i state
w/i state
w/i state

Secondary Sources

!
!
!
!

Treatises
Journals
Encyclopedias
Others
= ALWAYS

12

Mandatory v. Persuasive: Grid

Mandatory

Persuasive

Primary -- FEDERAL

!
!
!
!

Constitution
Statutes
Cases
Admin Law

Primary -- STATE

!
!
!
!

Constitution
Statutes
Cases
Admin Law

w/i state
w/i state

* w/i state *

Secondary Sources
! Treatises
! Journals
! Encyclopedias
! Others
= ALWAYS

* = SITUATIONAL

How to determine if a case

is a mandatory authority
1. Locate relevant authorities:
-Whose law: state or federal or both?
2. Which court is being asked to decide?

U .S . S u p r e m e
8 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( D . M in n . )

D is tr i c t
C o u rt
( W .D . M o .)

C o u rt

9 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( E .D . C a l .)

D is tr ic t
C o u rt
(D . O re .)

Court Structure and Case Authority

You are appearing before the 8th Circuit Court of Appeals.
Are the cases from the courts listed below mandatory or
persuasive authority?

U.S. Supreme Court

13

U .S . S u p r e m e
8 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( D . M in n . )

D is tr i c t
C o u rt
( W .D . M o .)

C o u rt

9 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( E .D . C a l .)

D is tr ic t
C o u rt
(D . O re .)

Court Structure and Case Authority

You are appearing before the 8th Circuit Court of Appeals.
Are the cases from the courts listed below mandatory or
persuasive authority?

U.S. District Court (W.D. Mo.)

U .S . S u p r e m e
8 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( D . M in n . )

D is tr i c t
C o u rt
( W .D . M o .)

C o u rt

9 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( E .D . C a l .)

D is tr ic t
C o u rt
(D . O re .)

Court Structure and Case Authority

You are appearing before the 8th Circuit Court of Appeals.
Are the cases from the courts listed below mandatory or
persuasive authority?

9th Circuit Court of Appeals

U .S . S u p r e m e
8 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( D . M in n . )

D is tr i c t
C o u rt
( W .D . M o .)

C o u rt

9 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( E .D . C a l .)

D is tr ic t
C o u rt
(D . O re .)

Court Structure and Case Authority

You are appearing before the U.S. District Court (D. Ore.).
Are the cases from the courts listed below mandatory or
persuasive authority?

U.S. Supreme Court

14

U .S . S u p r e m e
8 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( D . M in n . )

D is tr i c t
C o u rt
( W .D . M o .)

C o u rt

9 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( E .D . C a l .)

D is tr ic t
C o u rt
(D . O re .)

Court Structure and Case Authority

You are appearing before the U.S. District Court (D. Ore.).
Are the cases from the courts listed below mandatory or
persuasive authority?

9th Circuit Court of Appeals

U .S . S u p r e m e
8 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( D . M in n . )

D is tr i c t
C o u rt
( W .D . M o .)

C o u rt

9 th C irc u it
C o u rt o f A p p e a ls

D is tr i c t
C o u rt
( E .D . C a l .)

D is tr ic t
C o u rt
(D . O re .)

Court Structure and Case Authority

You are appearing before the U.S. District Court (D. Ore.).
Are the cases from the courts listed below mandatory or
persuasive authority?

U.S. District Court (D. Ore.) (earlier decision)

Mandatory and Persuasive

Case Precedent
Historically, vertical stare decisis has
been viewed as obligation, while horizontal
stare decisis has been viewed as policy.
-- 2002 Utah L. Rev. 53, 58

15

C o u rt S tru c tu re
S ta te A
U .S . S u p re m e C o u rt

S ta te A
S u p re m e C o u rt

A p p e lla te
C o u rt 2

A p p e l la t e
C o u rt 1

T r ia l
C o u rt

T r ia l
C o u rt

T r ia l
C o u rt

T r ia l
C o u rt

Court Structure and Case Authority

You are appearing in State A before a trial court under the
jurisdiction of Appellate Court 2.
Are the cases from the courts listed below mandatory or
persuasive authority?

State A Supreme Court

C o u rt S tru c tu re
C o uSr tta St et r Au c t u r e
S ta te A
U .S . S u p re m e C o u rt
U .S . S u p re m e C o u rt
S ta te A
S u p r eSmt aet eC A
o u rt
S u p re m e C o u rt
A p p e lla te
A op up retl l2a t e
C
C o u rt 2

A p p e l la t e
A op up retl l1a t e
C
C o u rt 1
T r ia l
C oT ur irat l
C o u rt

T r ia l
C oT ur irat l
C o u rt

T r ia l
C oT ur irat l
C o u rt

T r ia l
C oT ur irat l
C o u rt

Court Structure and Case Authority

You are appearing in State A before a trial court under the
jurisdiction of Appellate Court 2.
Are the cases from the courts listed below mandatory or
persuasive authority?

State B Supreme Court

C o u rt S tru c tu re
S ta te A
U .S . S u p re m e C o u rt

S ta te A
S u p re m e C o u rt

A p p e lla te
C o u rt 2

A p p e l la t e
C o u rt 1

T r ia l
C o u rt

T r ia l
C o u rt

T r ia l
C o u rt

T r ia l
C o u rt

Court Structure and Case Authority

You are appearing in State A before a trial court under the
jurisdiction of Appellate Court 2.
Are the cases from the courts listed below mandatory or
persuasive authority?

U.S. Supreme Court

16

C o u rt S tru c tu re
S ta te A
U .S . S u p re m e C o u rt

S ta te A
S u p re m e C o u rt

A p p e lla te
C o u rt 2

A p p e l la t e
C o u rt 1

T r ia l
C o u rt

T r ia l
C o u rt

T r ia l
C o u rt

T r ia l
C o u rt

Court Structure and Case Authority

You are appearing in State A before a trial court under the
jurisdiction of Appellate Court 2.
Are the cases from the courts listed below mandatory or
persuasive authority?

State A Appellate Court 1

N o te : U . S . S u p r e m e C o u r t c a s e s a r e t h e o n ly fe d e r a l d e c is io n s
m a n d a to ry o n s ta te c o u rts .
U .S .
S up rem e C o u rt

S ta te B
S up rem e C o u rt

8 th C ir c u it
C o u rt o f A p p e a ls

A p p e lla t e
C o u rt(s )
T Tr irai al l TTrri iaall TTrriiaall TTrri iaal l
CC
o ouur rt t CCoouu rr tt CC o
u rrtt C
C oouur rt t
ou

i st rt ri icct t
D i sDt irsi ct rt i c t
DDi s
C o u rt
C o u rt
C( D
o u. r tM(D.
r t o(W.
. Do .u M
. ) D. Mo.)
i n Minn.)
n .) (W C

S TATE

FE D E R AL

Court Structure and Case Authority

You are appearing in State B before a trial court. The case requires
an interpretation of federal law (State B is in the 8th Cir).
Are the cases from the courts listed below mandatory or
persuasive authority?

8th Circuit Court of Appeals

N o te : S ta te c o u r t d e c is io n s in t e r p re tin g s t a te la w a re m a n d a to r y
s t a r t i n g p o in t f o r f e d e r a l c o u r t s i n t e r p r e t in g s t a t e l a w .
U .S .
S u p r e m e C o u rt

S ta te B
S u p re m e C o u rt

8 t h C ir c u it
C o u rt o f A p p e a ls

A p p e lla t e
C o u rt(s )
T Tr irai al l TTrri iaall TTrriiaall TTrri iaal l
CC
o ouur rt t CCoouu rr tt CC o uu rrtt C
C oouur rt t

STATE

D iDs it sr itcr ti c t
DD ii ss tt rr iicc tt
C o u rt
C o u rt
( WC .oDu.r tM(W.
o D.
. ) Mo.)
(CDo. u rMt (D.
i n nMinn.)
.)

FEDERAL

Court Structure and Case Authority

You are appearing before the 8th Circuit Court of Appeals.
The case requires an interpretation of State B state law.
What is the authority of a case from State B Supreme Court?
What is the twist on this situation?

17

For Friday, Sept. 4

Assessment #1 due by class time
-Submit Assessment #1 on Sakai
-Drop Library Tour off in the box in Chris office
(Rm. 2309), slide it under the door, or turn in at the
start of class on Friday, Sept. 4

Stop by Chris office (or email cobyrne@nd.edu)

-questions
-problems
-more court structure and case authority practice

18