Category: Posts

CALI Codification

CALI Finding Statutes

CALI How to Research Federal Legislative History

1. CALI Codification 
   1. Citation:  To find to a statute you need to know both the TITLE and SECTION.  For example,  the citation 40 U.S.C. 951 provides you both the title (40) and the section (951) to the United States Code. However, Internal Revenue Code, sec. 325(b)(1) does not give you enough information.  You know the section (325(b)(1) but you do not know the title.  You will need to find out that the IRS title is Title 26 of the United States Code.   You have enough information with 32 USCS 8001.  You have the Title which is 32 and the section which is 8001.  You may wonder what is USCS.  It stands for United States Code Annotated which is the title for the Lexis Annotated Statutes.  USCA stands for the United States Code Annotated which is the title for Westlaw’s statutes.
   2. What is a code?  All the current laws grouped by topic.  Generally, the laws called statutes.
   3. What are session laws?  All of the laws passed in the  legislature in the same year arranged  in chronological order.  It is the text of the law as originally passed.  For example, you may hear attorneys refer to Title IX of the Education Amendments Act of 1972.  They are talking about a specific title in the session law, Education Amendments Act of 1972.  You can find Title IX of the Education Amendments Act of 1972 in 42 U.S.C. sections 1681-1688.  Generally, the session laws are called Acts.
2. CALI Finding the Statutes  
   1. Indexes are extremely useful in finding statutes.  You can find a separate index volumes in the print statutes and you can find them online in Westlaw Edge.  Here is the link to the Index for the Florida Statutes  copy  and paste  Then look at adoption.
      1. Westlaw – Index for Florida Statutes
      2. Many times when you use an index you will find the appropriate statute in a shorter period of time than when you either use a natural language search or a terms, connector, and expander search.
      3. You never know what terms will be used in a statute (homicide, murder, unlawful killing?) so looking in a subject index saves LOTS of time.
      4. The index often provides you a “road map” of the statutes in a specific area. You find all sections on a topic in one place
      5. Usually the best place to start statutory research!

3. How to Research Federal Legislative History 

1. Hearings before house or senate committees may include both        the transcripts of the oral testimony and the written testimony of the witnesses.

2.  Possible Legislative History Documents include bills, floor debates, hearing materials, and Committee Reports. The most important statements during debates are form the chairperson of the congressional committee that considered the bill and from the sponsor of the bill.

 

 

The  Google Scholar and Hein Online discussion forum questions were designed to allow you the opportunity to explore both sources using the same client scenario.  The process you used is similar to or the same process that you will use in your Research Guide.  The questions also allowed you to discuss with your colleagues the search process for both resources.

After using both Google Scholar and Hein Online, you may want to consider using one, both or neither in your Research Guide.

If you would like to discuss your approach to searching Google Scholar and Hein Online with me, please let me know.

 

 

KeyCite and Shepard’s  Yes, you can KeyCite and Shepardize law review/journal articles.  You can KeyCite and Shepardize many more resources than just cases.  Always look for the KeyCite bar and Shepard’s and Shepardize this Document.

Law Reviews are useful for researching emerging areas of Law.  Treatises, legal encyclopedias, and American Law Reports’ annotations are not known for being useful resources for researching emerging areas of law.

Treatises provide in-depth treatment of an area of law.  Legal encyclopedias, Restatements, and American Law Reports’ annotations are not known for providing an in-depth treatment of an area of law.

American Law Reports’ annotations organize cases by holdings and jurisdiction on narrow legal topics.

 

CALI American Law Reports
CALI Subject Specific Treatises 
CALI Internet Legal Resources – Free Sources

1)  American Law Reports (ALR)

At the beginning, West Publishing had decided that they would publish every case decision that they could get their hands on.  So that was their business model – the National Reporter System.  Lawyers Cooperative Publishing came along and they realized that they could not compete with West’s business model so they decided to publish an important case and to accompany it with an annotation that described on all other decisions on the same matter.  So the case is just a starting point for Lawyers Cooperative Publishing.  The important resource is the annotation itself.  You should cite the “important case” using the West citation – the National Reporter System citation. 

Also, the American Law Reports is not a good place to look up similar statutes in various jurisdictions.  Many times law review articles discuss or list all similar statutes that pertain to the law review article and here is a link to a Research Guide by George Washington Law Library which provides link to a number of sources that contain various 50 State Surveys

https://law.gwu.libguides.com/states/statesurveys

You can,  however, find cases arranged by jurisdiction in an ALR annotation.  

2)  Subject Specific Treatises.   

One place to start looking for subject specific treatises is in the UM Law Library Research Guide titled – Subject Guide to Treatises and Looseleaf Services 

Here is the link –

https://www.law.miami.edu/iml/library/subject-guide-to-treatises-and-looseleaf-services

3)  Internet Legal Resources – Free Resources

Which types of information would you expect to be able to find on the internet?

a)  The opinion of a federal district court case that was decided last week.  Usually yes.    You should first look at the website for the appropriate district court.  For example, the Southern District of Florida’s website links to the Southern District of Florida’s cases on Govinfo.gov.  See link.  I am writing this post on July 1 and there is an Order signed on June 29th. Take a look at the information for the Southern District of Florida.   If all federal district courts 

https://www.govinfo.gov/app/search/%7B%22facets%22%3A%7B%7D%2C%22filterOrder%22%3A%5B%5D%2C%22facetToExpand%22%3A%22non_existing_facet%22%2C%22offset%22%3A0%2C%22pageSize%22%3A%2210%22%2C%22sortBy%22%3A%222%22%2C%22query%22%3A%22collection%3A(USCOURTS)%20%20AND%20content%3A(%5C%22United%20States%20District%20Court%20Southern%20District%20of%20Florida%5C%22)%22%2C%22historical%22%3Afalse%7D

b)  Headnotes summarizing the points of law in a case.  At this point, no. Designing a headnote scheme and producing headnotes is expensive so you will probably not find such a scheme and headnotes on the web. 

c)  A journal article from 1979.   Maybe.   With the advent of  the University and Law School Institutional / Scholarly Repositories it is more likely than it once was to find a 1979 law review article.  Many law schools have included in their repositories complete runs of their law review.  For example, in UM Law’s repository there is a full run of all of our law reviews.

https://repository.law.miami.edu/peer_review_list.html

d)  The Texas Constitution from the year that it joined the United States (1866).  Yes.  Libraries, state historical societies, and archives around the country are providing access to historical documents.  For example, for Texas, the University of Texas, Tarlton Law Library has the Texas Constitutions 1824-1876. http://tarlton.law.utexas.edu/constitutions/   

e)  Briefs filed in a recent, high profiled case.  Maybe.  If the case is a United States Supreme Court case, check first at SCOTUSBlog and the  United State Supreme Court’s website.  If the case is a circuit court case, check at the court’s website and also with academic law libraries in the circuit.  If an organization is involved, you may find the briefs posted on their website.  For example,  if the ACLU is involved, you may find the briefs at their website.  https://www.aclu.org/defending-our-rights/court-battles

f)  Cost-Effective Alternative Databases   You may find that as a member of  a state bar, you may have access to that state’s materials in either Fastcase or Casemaker or both as a membership benefit.  If you do have access, definitely learn to use these cost-effective alternatives.  Many times you can begin your research there and then move to other platforms including, Westlaw Edge and Lexis Advance, if necessary. 

I have not looked at Casemaker recently but Fastcase does have a type of “citator.”  According to their website, Fastcase has a unique feature, Bad Law Bot, which provides an innovative way to quickly determine when courts have commented negatively on a case.  Although it is not a traditional “editorial citator,” Bad Law Bot takes citation analysis to the next level by extracting the enormous wealth of negative information contained in citations.  Bad Law Bot uses algorithms to find the negative citation history of a case.  Bad Law Bot will place a red flag next to cases when it recognizes negative treatment of a case.  In successive iterations over time, Bad Law Bot has shown to be as good, and better, than traditional editorial citators – with more improvements made every day through machine learning.  https://www.fastcase.com/faq/ (authority check)

The Florida materials on Fastcase  is a membership benefit  of the Florida Bar.

You have access to Fastcase while in law school through the Subscription Databases.  

g)  Credibility of Websites   You were asked if three websites were either credible, not credible, or maybe credible.

One was congress.gov which is clearly credible. 

Another was whitehouse.net with an image of a green whitehouse and  no .gov in the URL which was clearly not credible.

The third one was cloninginformation.org.  All you saw was the image of the landing page of the website.  From the landing page, the  website was not clearly either credible or not credible.  It was a maybe.  To make a determination, you would have needed to explore the entire website and also to have verified the information on the website.

Return to Top ↑

I hope that this was an enlightening discussion.

One take away should be that how you formulate that the search really matters.

Another take away should be that even if you find some cases that are in the in the ball park, you need to keep searching – that is to say, to re rework you search query – and see what other cases are out there for you to discover.

You might also consider browsing the Headnotes of one or more of the best cases you found and see if any of the Headnotes deal with your issue.  If so, consider doing a  Topic and Key Number search to find more good cases.

And, of course, you can KeyCite or Shepardize your findings to see if your case(s) has been cited in other cases.

If you would like a quick review, here is a link to a Georgetown Tutorial on Finding Cases: Citations and Topics – http://guides.ll.georgetown.edu/case_law_tutorial/3

And, a note, about the tutorial.  For demonstration purposes, the natural language search and the terms and connectors and expanders search found the same case.  That is not necessarily going to happen every time!

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And, one more item.  I want to mention PACER – Public Access to Court Electronic Records – https://pacer.uscourts.gov/

“The Public Access to Court Electronic Records (PACER) service provides electronic public access to federal court records. PACER provides the public with instantaneous access to more than 1 billion documents filed at all federal courts.”  From the website.

You can find in PACER federal docket information and the filed documents in most cases.  It is not entirely free.  The website has been recently redesigned.  Here is a link to Bob Amborgi’s post.

For First Time in Decade, PACER Website Gets Major Update

Assessment Tool

There are four questions and answers that I would like to review.

1.   On Lexis Advance, when running a terms and connectors search, you must enclose phrases such as “summary judgment” or “res ipsa loquitur” in quotation marks since spaces between words are interpreted as ORs.
   1. The answer is FALSE.  
   2. However, you would need to use the quotation marks  in Westlaw Edge because spaces between words are interpreted as the word OR in terms and connectors searcheds.
   3. https://legal.thomsonreuters.com/content/dam/ewp-m/documents/legal/en/pdf/quick-reference-guides/tr906479-how-to-search-with-boolean-terms-and-connectors.pdf
2. The order of the operation is the same for both Westlaw and Lexis Advance.
   1. The answer is TRUE.
   2. The terms and connectors operate in this order:
      1. Parentheses
      2. OR
      3. Proximity Connectors
      4. AND
      5. NOT
3.  You want to retrieve all documents for a pedestrian who is blind, sightless, or has a vision impairment (impairment of vision, vision is impaired, etc.)
   1. blind! OR sightless OR vision /5 impair! /s pedestrian
   2. Is this search correctly formatted?
   3. NO, not correctly formatted.
   4. This is the correct formatting:
      1. blind! OR sightless OR (vision /5 impair!) /s pedestrian.

4. You want to retrieve documents about a dog or canine or German Shepherd biting or scratching.

   1. dog OR canine OR “german shepherd” /S bite OR scratch

   2. Is this search correctly formatted?
   3. The answer is NO.
   4. The search is not correctly formatted.  The verbs should be truncated.
   5. This is a the search formatted correctly.
      1. dog OR canine OR “german shepard” /s bit! OR scratch!
   6. bit! would include bit, bite, bites, bitten, biting
   7. scratch! would include scratch, scratching, scratches

Please send let me know if you would like to discuss further.  swise@law.miami.edu

Institute for Historical Review:

One of the methods of evaluation of the website would be to look at the media articles.   A number of the articles were not what I expected to see on a website that has the term Institute in its title.  I was also did not expect to see that the Executive Director was banned to enter Britain. and that the Yale Daily News dropped an ad from the Institute for Historical Review.

Here is a link to a Reuters article and to the explanation from the Yale Daily News.

1)  Reuters article about banning Mark Weber from Britain  https://www.reuters.com/article/us-britain-politics-holocaust/britain-bans-entry-to-prominent-us-holocaust-denier-idUSKBN1F623Z

2) Explanation from the Yale Daily News about the https://yaledailynews.com/blog/2019/09/24/editors-note-13/

After reading both of these articles, I knew that the website was not to be trusted.

Another technique is to read articles on the website posted by the Institute’s staff.  Mark Weber is the Executive Director of the Institute.  He has written a number of the articles posted on the website.   I took a look at Mr.  Weber’s article on Biden at http://ihr.org/other/biden_jewish_role  The article began as if Mr Weber was going to summarize a speech Biden gave in 2013.  However, Mr. Weber began a sentence stating that  “Biden might also have mentioned……” which gave me pause.  I also noticed that the author cited to his own article without mentioning it in the text of the article.  At that point,  I realized then I needed to know more about the Institute and turned to  Wikipedia for a quick read. After my quick read, I knew again that the Institute for Historical Review’s website was not to be trusted.

CALI Introduction to Search Logic & Strategies

There are  number of reasons why it is important to learn terms and connectors searching.  One is that it focuses your attention on the search query – you need to think what terms to use for your search, how near they should be to each other, and where you want to see terms in the case, law review article, treatise, etc.

For example, if you want to retrieve documents about a dog or canine or German Shepherd biting or scratching a suspect.

Which is the source more likely to find a case on point?

1.  dog  AND bite AND suspect
2. (dog OR canine OR “german shepherd” /S bit! OR scratch!) /P suspect

Think about the first search – you are requiring Westlaw Edge and Lexis Advance to retrieve cases that have the terms Dog, Bite and Suspect to be anywhere in the case.  Dog could be on page one, Bite on page 25, and Suspect on page 30.  The cases you are looking for may not be at the top of the results list.

And the second search – you are requiring Dog, Canine or “German Shepard” to be in the same sentence as Bite or Biting or Bitten or Scratch and that sentence to be in  the same paragraph as Suspect.  Much more promising.

You still may need to adjust your search to find the best cases but you definitely will be further along with the second search.

And, remember that you also have the ability to filter the results and to search within the search.

And, of course, before your search,  you need to decide what resources you are going to use.

Remember that searching is an process.  It is an iterative process. You may want to keep  notes on which searches worked and which did not. And, keep notes on filtering, etc.

For the Research Guide, you must provide the search(es) that return the best results.  Best search(es) for best results.

You also need to consider the type of materials you are searching.  Your search queries for cases may be different that your search queries for law review articles since the terms the author use and the placement with in the materials may be different.  And you may decide for statutes that you will use a natural language search rather than a terms and connectors search since statutes are written very differently than cases.

The searches that most of us use for “Google”  or “Bing” or any  other  search engine rarely will suffice in a complex, legal database.

CALI Evaluating Websites

Additional information on Domain Names:

.org started out for non-profit organizations but now it is used for both non-profit and for-profit entities.  Entities using .org is very diverse, including cultural institutions, associations, sports teams, religious, and civic organizations, open-source software projects, schools, environmental initiatives, social, and fraternal organizations, health organizations, legal services, as well as clubs, and community-volunteer groups. Some cities also use .org.

.com started out for commercial entities but it now it is used for general purposes, including state agencies.  For  example, https://www.freshfromflorida.com/ is the URL for the Florida Department of Agriculture and Consumer Services.

Hello,

Here is the results from the  Evaluating Authority Exercise. 

The results are also available on the tab on TWEN titled Blog which is located beneath CALI LessonLinks.

Here were the instructions for the Evaluating Authority Exercise:

Please rank the resources based on their RELATIVE AUTHORITY. 

[Note: You are not ranking them based on when you would use them in the research process but rather on their strength as an authoritative resource.]

*********************************************************************************

The Commerce Clause of the United States Constitution is the most authoritative.  It is ranked # 1.  All 13 class participants ranked the Commerce Clause as the most authoritative resource on the list.

The next source with the next highest number of points (11) and thus ranked by the class as the second most authoritative resource was a federal trial case with citations to the Federal Supplement and the Florida Law Weekly.

There was a tie for the classes’ third most authoritative source at 5 points each.  Both American Jurisprudence 2nd and the Rotunda and Nowak, Treatise on Constitutional Law, Substance and Procedure received 5 points each.

The fourth most authoritative resource according to the class with 5 points was Florida Jurisprudence 2d.

The fifth most authoritative resource according to the class was another tie with 3 points each.  The tie was between the Bittker and Denning treatise titled Bittker on Regulation of Interstate and Foreign Commerce and Bradford’s Hastings Constitutional Law Quarterly article.

The sixth most authoritative resource according to the class with 5 points was the Bittker and Denning treatise also ranked number five (above) in a tie.

The seventh most authoritative resource according to the class was Dan Coenen’s Iowa Law Review article with 4 points.

The eighth most authoritative resource according to the class was Bradford’s Hastings Constitutional Law Quarterly article with 5 points.

The ninth most authoritative resource according to the class was Mitchell’s Tulane Environmental Law Journal article with 5 points.

The tenth most authoritative resource according to the class was Coenen’s Turning Point study aid with 3 points.

The eleventh most authoritative resource according to the class was Linda Greenhouse’s article in the New York Times with 5 points.

The  twelfth most authoritative resource according to the class was an United States Supreme Court case available on QuizLaw with 5 points.

The least authoritative resource from this list according to the class was the United States Supreme Court case available on QuizLaw with 4 points.

*************************************************************************************

Discussion:

You, I am sure have noticed that there was unanimity in the first choice which was a given and 11 our of 13 agreed on the second ranked authoritative resource, the federal district court case with a citation to the Federal Supplement. 

After that, the highest number of agreement was 6 out of 13.

There was also some unanimity at the bottom with both Wikipedia and QuizLaw receiving very low authoritative rankings.

Neither American Jurisprudence 2d nor Florida Jurisprudence 2d should have ranked  highly as authoritative sources.  They are great research tools usually used early in the research process but not they are not authoritative sources.

Also, Coenen’s title Constitutional: The Commerce Clause is a title in the study aid Turning Point Series.  It is certainly useful but it is not an authoritative source.  One would not want to cite it to a court, include in a law firm memo, etc.

The treatises written by Nowak and Rotunda and  Bittker and Denning are definitely authoritative resources.  Nowak, Rotunda, and Bittker are all very respected.  Denning collaborated with Bittker and then published the second edition as the sole author and is also respected.  However, the most critical part of the equation is the content of the treatise.  Is it on point for the legal issue being considered?

The law review articles written by Mank and Coenen, can also be authoritative.  How “authoritative” may depend upon how well known the authors are and the publisher of the law reviews.  However, the article itself, again, is the most critical piece of the equation.  Is it on point for the legal issue being considered?

Mitchell wrote a Note in the Tulane Environmental Law Journal.  The designation Note indicates that the author is a law student.  A student author may not be considered as authoritative as a lawyer or a professor.  However, the article itself is the most critical piece of the equation.  Is it on point for the legal issue being considered?

One of the items was an article in the NYT by Linda Greenhouse.  She was the United States Supreme Court reporter for the NYT for years.   She is very well respected. But a NYT’s article is not usually considered an authoritative piece that one would cite to a court, etc.  However, if the article brings out important points that are not available in more authoritative resource,  then citing it might make sense.

Please let me know your comments and questions.

Bye.

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