Thursday, March 22, 2007

Legal Research on Internet Presentation



Legal Research on Internet
Presentation: Chandra Nath


The Legal research Blog: http://lawguide.blogspot.com/

 Basic Legal Citation
http://www.law.cornell.edu/citation/index.htm

Legal Research 101: http://lawguide.blogspot.com/2007_01_01_archive.html

 Start Your Research Here! http://www.west.net/%7Esmith/resources.htm

  • Virtual Law Library
  • Here, in one convenient location, is a collection of links to most of the primary sources of law that are available on line. With the exception of
    • Westlaw,
    • Lexis and
    • Shepard's citations,
  • all of these sources are free!

United States Supreme Court

United States Constitution

Federal Courts of Appeal

United States Code

Federal District Courts

Code of Federal Regulations

Calif. Supreme Court & Court of Appeal

Federal Rules of Civil Procedure

New York Court of Appeal

Federal Rules of Criminal Procedure

Westlaw

Federal Rules of Evidence

Lexis

Uniform Commercial Code

Shepard's® Citations

California Constitution

Official California Court Forms

California Codes

Calif. Attorney General Opinions

California Rules of Court

Municipal Codes

Los Angeles Superior Court


United States Supreme Court

http://www.west.net/%7Esmith/ussupreme.htm

Federal Courts of Appeal

http://www.findlaw.com/casecode/courts/index.html

Federal District Courts


http://www.findlaw.com/10fedgov/judicial/district_courts.html


California Supreme Court & Court of Appeals
http://www.lexisnexis.com/clients/CACourts/


Official California Court Forms

http://www.courtinfo.ca.gov/forms/

Calif. Attorney General Opinions

http://caag.state.ca.us/opinions/


United States Constitution

http://www.findlaw.com/casecode/constitution/

United States Code

http://www.law.cornell.edu/uscode/

Code of Federal Regulations

http://www.access.gpo.gov/nara/cfr/cfr-table-search.html

Federal Rules of Civil Procedure

http://www.law.cornell.edu/rules/frcp/index.html


Federal Rules of Criminal Procedure


http://www.law.cornell.edu/rules/frcrmp/

Federal Rules of Evidence


http://www.law.cornell.edu/rules/fre/index.html

Uniform Commercial Code


http://straylight.law.cornell.edu/ucc/ucc.table.html

California Constitution

http://www.leginfo.ca.gov/const-toc.html

California Codes

http://www.leginfo.ca.gov/calaw.html

California Rules of Court

http://www.courtinfo.ca.gov/rules/


Municipal Codes:
http://municipalcodes.lexisnexis.com/

Los Angels Superior Court
http://www.lasuperiorcourt.org/
Posted by at 2 comments:

Wednesday, February 28, 2007

Assignment IRAC: Aguilar Analysis- Chandra Nath

Assignment  IRAC 


PARA 1 IRAC Assignment doc
Found at ebookbrowse.com
People v. Aguilar
Analysis by Chandra Nath
Issue Section of an IRAC
  1. Did the prosecutor rely  upon a legally incorrect theory ?(People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
  2. Was conviction under section 245, subdivision (a)(1) legal?
  3. Did the trial court committ reversible error by failing to sua sponte instruct under CALJIC No. 2.71 ?
  4. Did the prosecutor committ misconduct ?
  5. Was there insufficient evidence that Perez personally caused great bodily injury ?
  6. Was the jury  incorrectly instructed regarding the allegation that Perez personally inflicted great bodily injury?
  7. Should Perez's robbery sentence have been stayed?
  8. Whether the use of hands or feet constitutes the use of a deadly weapon under section 245, subdivision (a)(1) ?
  9. And if not, then whether the error requires reversal ?
  10. Should Aguilar's conviction be affirmed/reversed? 
  11. Should Perez's conviction be affirmed/reversed? 
(Note for self: The IRAC starts with a statement of the issue or question at hand. In the issue section of an IRAC it is important to state exactly what the question in law is. It is also equally important to stay away from including rules or analysis as it confuses the proper use of the methodology.)
Rules Section of an IRAC
  1. Statutes is construed to avoid  redundancies or absurdities.
  2. When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (27 Cal.3d at p. 69.)
  3. If the inadequacy of proof is purely factual [italics added], of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground
  4. Mistakes about the law, which required reversal, and mistakes {Page 50 Cal.App.4th 546} about the weight or factual import of the evidence: "That surely establishes a clear line ... and it happens to be a line that makes good sense.
  5. When,  jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.
  6. When jurors have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence
  7. General rules to apply in the absence of a basis in the record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule should not be followed.
(Note for self:  The rules section of an IRAC follows the statement of the issue at hand. The rule section of an IRAC is the statement of the rules pertinent in deciding the issue stated. Rules in a common law jurisdiction derive from court case precedent and statute. The information included in the rules section depends heavily on the specificity of the question at hand. If the question states a specific jurisdiction then it is proper to include rules specific to that jurisdiction. Another distinction often made in the rule section is a clear delineation of rules that are in holding and rules that are dicta. This helps make a correct legal analysis of the issue at hand. The rules section needs to be a legal summary of all the rules used in the analysis and is often written in a manner which paraphrases or otherwise analytically condenses information into applicable rules.)
Analysis Section of an IRAC
  1. Erroneous Legal Theory:  
    1. Both Perez and Aguilar seek reversal of their convictions under section 245, subdivision (a)(1). . They claim the prosecutor relied upon, and the jury was instructed on, a legally incorrect theory. In particular, appellants were charged with assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury.
    2. According to the prosecutor, the evidence showed the use of force likely to produce great bodily injury. 
    3. The prosecutor also claimed a deadly weapon was used because appellants' "hands" and "feet" were the equivalent of deadly weapons. 
    4. According to appellants, however, hands and feet cannot be considered "deadly weapons" under section 245, subdivision (a)(1).
  2. The prosecutor relied upon an erroneous legal theory and reversal is required under People v. Guiton, supra, 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1 [164 Cal.Rptr. 1, 609 P.2d 468].
  3. (1) whether the use of hands or feet constitutes the use of a deadly weapon under section 245, subdivision (a)(1); and if not, then (2) whether the error requires reversal under People v. Guiton.
  4. To determine whether the use of hands or feet constitutes the use of a deadly weapon, we must look to the words of the statute.
  5. We must "look to the language of the statute and 'accord words their usual, ordinary, and common sense meaning based on the language used and the evident purpose for which the statute was adopted.' " (People v. Catelli (1991) 227 Cal.App.3d 1434, 1448 [278 Cal.Rptr. 452], quoting In re Rojas (1979) 23 Cal.3d 152, 155 [151 Cal.Rptr. 649, 588 P.2d 789]; see also Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299]; Carlos v. Superior Court (1983) 35 Cal.3d 131, 145-147 [197 Cal.Rptr. 79, 672 P.2d 862].) {Page 50 Cal.App.4th 540}
  6. Section 245, subdivision (a)(1) provides, "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison ...."
  7. Section 245 punishes the use of a deadly weapon or instrument or force likely to produce great bodily injury. Under section 245, it is immaterial whether contact is actually made. (People v. Wingo (1975) 14 Cal.3d 169, 176 [121 Cal.Rptr. 97, 534 P.2d 1001].) as the court explained in People v. McCaffrey (1953) 118 Cal.App.2d 611 [258 P.2d 557]
  8. To make one guilty of violating section 245, evidence of an actual blow is not necessary; but it is requisite that proof be made of an attempt to beat another (1) with a deadly weapon or other instrument not ordinarily defined as a deadly weapon, or (2) by a means or with a force likely to produce great bodily injury." (Id. at p. 619.)
  9. It is well established that the use of hands alone may be sufficient to support a conviction under section 245, subdivision (a)(1) of assault by means of force likely to produce great bodily injury. (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066 [10 Cal.Rptr.2d 839]; In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161 [255 Cal.Rptr. 327]; People v. Wingo, supra, 14 Cal.3d at p. 176; People v. Chavez (1968) 268 Cal.App.2d 381, 384 [73 Cal.Rptr. 865];
  10. see also People v. Pullins (1950) 95 Cal.App.2d 902 [214 P.2d 436] [defendant's act of chewing victim's index finger until it was lacerated and the bone broken held to constitute an assault by means of force likely to produce great bodily injury].)
  11. Less clear is whether hands or feet can constitute a "deadly weapon or instrument other than a firearm" under section 245, subdivision (a)(1).
  12. In general, the term "deadly weapon or instrument" as used in section 245, subdivision (a)(1), has been defined as "any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury." (In re Jose R. (1982) 137 Cal.App.3d 269, 275-276 [186 Cal.Rptr. 898]; see also People v. White (1963) 212 Cal.App.2d 464, 465 [28 Cal.Rptr. 67].)
  13. Some objects, such as dirks and blackjacks, have been held to be deadly as a matter of law. (People v. Graham (1969) 71 Cal.2d 303, 327 [78 Cal.Rptr. 217, 455 P.2d 153].) With respect to these instrumentalities, "the ordinary use for which they are designed establishes their character as such." (Id. at p. 327; People v. Raleigh (1932) 128 Cal.App. 105, 108 [16 P.2d 752].)
  14. Other types of instruments, while not deadly per se, may, under the particular circumstances, be likely to produce death or great bodily injury. {Page 50 Cal.App.4th 541} 
  15. "In determining whether an object not inherently deadly or dangerous acquires this characteristic, the trier of fact may look to the nature of the weapon, the manner of its use, and all other factors that are relevant to this issue." (In re Jose R., supra, 137 Cal.App.3d at p. 276; People v. White, supra, 212 Cal.App.2d at p. 465; People v. Russell (1943) 59 Cal.App.2d 660, 665 [139 P.2d 661].)
  16. "Deadly weapon or instrument" has been defined to cover many different types of objects not considered to be inherently deadly. (Cf. People v. Nealis (1991) 232 Cal.App.3d Supp.1 [283 Cal.Rptr. 376].) Nealis listed examples such as 
      • (1) a straight pin embedded in an apple (In re Jose R., supra, 137 Cal.App.3d 269); 
      • (2) an automobile (People v. Claborn (1964) 224 Cal.App.2d 38 [36 Cal.Rptr. 132]); 
      • (3) a beer bottle (People v. Cordero (1949) 92 Cal.App.2d 196 [206 P.2d 665]); 
      • (4) a large rock (People v. White, supra, 212 Cal.App.2d 464); 
      • (5) a razor blade (People v. Richardson (1959) 176 Cal.App.2d 238 [1 Cal.Rptr. 306]); 
      • (6) a fingernail file (People v. Russell, supra, 59 Cal.App.2d 660); 
      • (7) an iron bar (People v. Lee (1937) 23 Cal.App.2d 168 [72 P.2d 572]); and a pillow (People v. Helms (1966) 242 Cal.App.2d 476 [51 Cal.Rptr. 484]).
  17. In Nealis, the issue was whether a dog could be considered a deadly weapon or instrument under section 245. The defendant told his Doberman, "Get her! Get her!" (People v. Nealis, supra, 232 Cal.App.3d at p. Supp. 3.) The dog then attacked the victim, biting and jumping on her. The issue in Nealis was whether, as a matter of law, a dog could ever be considered to be a "deadly weapon or instrument" under section 245. (232 Cal.App.3d at p. Supp. 4.). The court answered the question in the affirmative.
  18. Nealis held "depending upon the circumstances of each case, a dog trained to attack humans on command, or one without training that follows such a command, and which is of sufficient size and strength relative to its victim to inflict death or great bodily injury, may be considered a 'deadly weapon or instrument' within the meaning of section 245." (Id. at p. Supp. 6.)
  19. It is clear that hands or feet are not inherently deadly weapons. We must decide whether hands or feet may be considered to be deadly weapons in the circumstances of a particular case.
  20. Other states have considered related issues. Some courts have held that as a matter of law, body parts such as fists and teeth, cannot be considered to be deadly weapons. (See, e.g., Wilson v. State (1924) 162 Ark. 494 [258 S.W. 972, 33 A.L.R. 1182]; People v. Bias (1985) 131 Ill.App.3d 98 [86 Ill.Dec. 256, 475 N.E.2d 253]; State v. Calvin (1945) 209 La. 257 [24 So.2d 467]; Seiter v. State (Mo.App. 1986) 719 S.W.2d 141; State v. Gordon (1989) 161 {Page 50 Cal.App.4th 542} Ariz. 308 [778 P.2d 1204].) Other courts have reached the opposite result. (See e.g. Hollis v. State (Ala.App. 1982) 417 So.2d 617; Kirby v. State (1978) 145 Ga.App. 813 [245 S.E.2d 43]; State v. Born (1968) 280 Minn. 306 [159 N.W.2d 283, 33 A.L.R.3d 919]; see generally, Annot., Parts of the Human Body, Other Than Feet as Deadly or Dangerous Weapons for Purposes of Statutes Aggravating Offenses Such as Assault and Robbery (1981) 8 A.L.R.4th 1268.) These decisions are not particularly useful in resolving our issue because they are based upon criminal statutes which are worded differently than section 245, subdivision (a)(1).
  21. the wording of section 245, subdivision (a)(1) establishes that, as a matter of law, the term "deadly weapon or instrument" under section 245, subdivision (a)(1) does not include the use of feet or hands.
  22. the usual, ordinary, and common sense understanding of the phrase, as used in section 245, subdivision (a)(1), would encompass the use of feet or hands. 
  23. The usual, ordinary, and commonsense understanding of the term "deadly weapon or instrument," as used in section 245, subdivision (a)(1), would include only objects extrinsic to the body.
  24. defining "deadly weapon or instrument" to include feet and hands would make redundant the clause "force likely to produce great bodily injury."
  25. deadly weapons or instruments not inherently deadly are defined by their capability of producing great bodily injury. (People v. White, supra, 212 Cal.App.2d at p. 465.)
  26. Thus, if hands and feet can constitute deadly weapons, then it would appear that anything-inanimate or animate object or body parts such as hands, feet or teeth-could, in appropriate circumstances, be considered a "deadly weapon."
  27. If this were the case, there would be no need for the "force likely to produce great bodily injury" clause.
  28. Because the Legislature chose to include both clauses within section 245, subdivision (a)(1), it is reasonable to assume that the Legislature intended that there be a meaningful difference between each clause.
  29. the difference is that the clause "deadly weapon or instrument" was meant to apply only to weapons or instruments extrinsic to the body. Concluding otherwise would mean that the Legislature intended that the clause "force likely to produce great bodily injury" be subsumed with the "deadly weapon or instrument" clause. 
  30. It is a fundamental rule of statutory construction that statutes be construed to avoid such redundancies or absurdities. Our construction achieves this result.
  31. In People v. Davis (1996) 42 Cal.App.4th 806 [49 Cal.Rptr.2d 890], the Second District considered a similar issue. In Davis, the defendant had a prior conviction under section 245, subdivision (a)(1). The People proved the "prior" with the contents of the superior court file, which indicated that the defendant had pleaded guilty to the allegation that he "willfully and unlawfully [committed] an assault upon [the victim] with a deadly weapon, to wit, Hands, and by means of force likely to produce great bodily injury." (42 Cal.App.4th at p. 812.). Defense counsel argued that " 'hands ... did not constitute the use of a dangerous or deadly weapon' " under section 667, subdivision (a)(1) and 1192.7, subdivision (c)(23). The trial court disagreed. (42 Cal.App.4th at p. 812.)
  32. On appeal, the Davis court reversed. It found that "[t]he dangerous or deadly weapon must be an object or weapon extrinsic to the human body." (People v. Davis, supra, 42 Cal.App.4th at p. 814.) Davis noted that no court had decided whether the use of hands constituted a deadly weapon or instrument under section 245, subdivision (a)(1). Davis recognized that this was most likely so because section 245, subdivision (a)(1) alleged all aggravated assaults in one statute; i.e. it prohibits both assault with "a deadly weapon or instrument" or "by means of force likely to produce great bodily injury." Davis reasoned that there generally is no need to distinguish between the two clauses because all aggravated assaults are ultimately determined based on the force likely to be applied against a person. 
  33. Davis decided that the phrase "personal[] use[ of] a dangerous or deadly weapon" in section 1192.7, subdivision (c)(23), contemplates just that-"the use" of a weapon extrinsic to the body in committing the felony. The court relied upon a statutory interpretation of the words "use" and "weapon." The court also traced the language used within section 1192.7 to section 1203 and the Deadly Weapons Control Act and noted that "[n]o one would dispute the use of the word 'weapon' in Penal Code section 1203, or within the Deadly Weapons Control Act, necessarily involves the use of an implement or object extrinsic to the body." (People v. Davis, supra, 42 Cal.App.4th at p. 817.) The court also cited People v. Equarte (1986) 42 Cal.3d 456 [229 Cal.Rptr. 116, 722 P.2d 890] to support its reasoning.
  34. In People v. Dozie (1964) 224 Cal.App.2d 474 [36 Cal.Rptr. 728], the defendant was convicted of first degree robbery. On appeal, the defendant claimed there was insufficient evidence that the robbery was accomplished {Page 50 Cal.App.4th 544} by torture or by a person armed with a dangerous or deadly weapon. The People argued that the defendant's fist, used with sufficient force, could constitute a "dangerous or deadly weapon" for purposes of former section 211a. The court recognized that there were cases holding that a "shod foot," although not inherently a dangerous weapon, could be used as such to support a first degree robbery conviction. Dozie distinguished the armed robbery statute from section 245, noting that section 245 prohibits both assault with a deadly weapon or instrument and assault by means of force likely to produce great bodily injury. (People v. Dozie, supra, 224 Cal.App.2d 474.)
  35. The Dozie court decided the issue pivoted upon the phrase "armed with a deadly weapon." Finding that the phrase meant that "the user is furnished or equipped with such a weapon," the court then reasoned, "In a sense, all who possess normal appendages are furnished or equipped with fists." (224 Cal.App.2d at p. 476.) Dozie went on to conclude that "one equipped only with his naked hands or fists is not armed with a dangerous or deadly weapon within the meaning of ... section 211a." (Id. at p. 477.)
  36. People v. Graham, supra, 71 Cal.2d 303 found that a shod foot could constitute a deadly weapon under former section 211a. Graham does not affect the result here since it dealt only with former ection 211a, which required that the robbery be perpetrated by a person "armed with a dangerous or deadly weapon." Since we are construing section 245, subdivision (a)(1), and basing our conclusion on the fact that the Legislature chose to include two clauses within section 245, subdivision (a)(1), Graham does not affect this analysis.
  37. People v. Duke (1985) 174 Cal.App.3d 296 [219 Cal.Rptr. 873] recognized that the use of hands or feet generally results in a defendant being charged under the "force likely to produce great bodily injury" clause of section 245, subdivision (a)(1). Duke cited Witkin, stating that " 'the cases tend to bear out this assumption, for almost invariably they involve blows and physical injuries. If a deadly weapon is used to inflict them the charge can be assault with a deadly weapon [citation]. But if hands, fists or feet, etc., are the means employed, the charge will normally be assault with force likely to produce great bodily injury.' " (People v. Duke, supra, 174 Cal.App.3d at pp. 302-303; citing 1 Witkin, Cal. Crimes (1963) § 272, pp. 255-256.)
  38. These cases support our conclusion that hands and feet cannot, as matter of law, constitute deadly weapons under section 245, {Page 50 Cal.App.4th 545} subdivision (a)(1). More importantly, as a matter of statutory construction, defining deadly weapon to include the use of hands or feet, would make redundant the "force likely to produce great bodily injury" clause. Accordingly, we conclude that hands or feet are not deadly weapons under section 245, subdivision (a)(1).
  39. The prosecutor argued that appellants used a deadly weapon because "hands and feet can be deadly weapons, and you don't have to be a black belt in karate, ..." The prosecutor's argument in this case was improper.
  40. In People v. Green, supra, the California Supreme Court stated that "... when the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (27 Cal.3d at p. 69.) The court in Green added, "The same rule applies when the defect in the alternate theory is not legal but factual, i.e., when the reviewing court holds the evidence insufficient to support the conviction on that ground." (Id. at p. 70, italics added.)
  41. The California Supreme Court reconsidered Green in People v. Guiton, supra, 4 Cal.4th 1116. Guiton held that "[w]e thus conclude that the rule in Green, ... which we construe as applying only to cases of legal insufficiency ... survives .... If the inadequacy of proof is purely factual [italics added], of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground [(italics added)]. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute [(italics added)], ... the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (Id. at pp. 1128-1129, italics in original unless otherwise indicated.)
  42. In Guiton, the court relied upon Griffin v. United States (1991) 502 U.S. 46 [116 L.Ed.2d 371, 112 S.Ct. 466]. Guiton emphasized Griffin's distinction between mistakes about the law, which required reversal, and mistakes {Page 50 Cal.App.4th 546} about the weight or factual import of the evidence: "That surely establishes a clear line ... and it happens to be a line that makes good sense. Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence [citation]." (Griffin, supra, 502 U.S. at p. 59 [116 L.Ed.2d at pp. 382-383]; People v. Guiton, supra, 4 Cal.4th at p. 1125, first italics added.)
  43. The People relied on an improper legal theory-they argued the use of feet and hands constituted a deadly weapon. As we have decided above, feet or hands do not fall within the statutory definition of "deadly weapon or instrument" under section 245, subdivision (a)(1).
  44. Therefore, Guiton's general rule of reversal applies. However, Guiton stressed that the rules it adopted were "general rules to apply in the absence of a basis in the record supporting the opposite result. But the record may sometimes affirmatively indicate that the general rule should not be followed." (People v. Guiton, supra, 4 Cal.4th at p. 1129.) In this case, the record supports application of the general rule with respect to Aguilar but not with respect to Perez.
  45. Perez was convicted of the great bodily injury enhancement. Aguilar was not. Although the assault and great bodily injury enhancement punish separate things-assault punishes the attempt and the enhancement punishes the injury that actually occurred- hence  it is reasonable to conclude that because the jury found that Perez's conduct resulted in great bodily injury, they also would have found that Perez used force likely to produce great bodily injury pursuant to section 245, subdivision (a)(1). Thus, Guiton's rule of reversal should not apply to Perez.
  46. With respect to Aguilar, however, the jury found the great bodily injury enhancement not to be true. Accordingly,  the Guiton rule applies to Aguilar. In closing argument, the prosecutor emphasized the incorrect theories, specifically telling the jury that appellants used their hands and feet as deadly weapons. The jury was instructed that it could convict based upon the deadly weapon theory. It is impossible to tell whether the jury convicted Aguilar under section 245, subdivision (a)(1) based upon a finding that he used a deadly weapon or upon a finding that he {Page 50 Cal.App.4th 547} used force likely to produce great bodily injury. For these reasons, Guiton compels reversal of Aguilar's conviction under section 245, subdivision (a)(1). 
(Note for self:   The analysis section of an IRAC applies the rules developed in the rules section to the specific facts of the issue at hand. This section uses only the rules stated in the rules section of the IRAC and usually utilizes all the rules stated including exceptions as is required by the analysis. It is important in this section to apply the rules to the facts of the case and explain or argue why a particular rule applies or does not apply in the case presented. The analysis section is the most important section of an IRAC because it develops the answer to the issue at hand.)
Conclusion Section of an IRAC

  1. The prosecutor relied  upon a legally incorrect theory. (People v. Guiton (1993) 4 Cal.4th 1116 [17 Cal.Rptr.2d 365, 847 P.2d 45].)
  2. The conviction under section 245, subdivision (a)(1) legal in Perez's case and illegal in Aguilar's case.
  3. T he trial court committ reversible error by failing to sua sponte instruct under CALJIC No. 2.71
  4. The prosecutor did not committ misconduct  but committed error of judgement.
  5. The great bodily injury allegations were found to be NOT  true. 
  6. The jury was  incorrectly instructed regarding the allegation that Perez personally inflicted great bodily injury.
  7. Perez's robbery sentence be not stayed.
  8. The use  hands or feet do NOT constitutes the use of a deadly weapon under section 245, subdivision (a)(1) 
  9. The error requires reversal.
  10. Aguilar's conviction be reversed. 
  11. Perez's conviction be affirmed..
(Note for self:  The conclusion section of an IRAC directly answers the question presented in the issue section of the IRAC. It is important for the methodology of the IRAC that the conclusion section of the IRAC not introduce any new rules or analysis. This section restates the issue and provides the final answer.)
Posted by at No comments:

Friday, January 26, 2007

Legal Research 101



Legal Research 101
Table of Contents
Google

 

Start Your Research Here!
U.S. Supreme Court 
U.S.Constitution 
Uniform Commercial Code
California Cases
California Codes
New York Court of Appeal
Law Dictionary
Westlaw
Lexis		 The Latest from Craig Smith's Blog

www.craigsmithsblog.com

Legal Research in a Nutshell

Sources of the Law

  Constitutions

  Legislative Enactments 

  Case Law

Finding the Law

Verifying Search Results

Citation of Authorities

Virtual Law Library

Legal Research Bibliography

This on line tutorial will take you through the basic steps of performing legal research, from identifying the sources of law to properly citing the authorities you find. There are links to the ever increasing number of free legal research tools available on the World Wide Web, as well as links to the major fee based services. The focus is on researching federal and California law.

If you're already adept at legal research methods and merely want a convenient place to start your on line research from, then go directly to the Virtual Law Library.

Legal and Factual Research on the Internet
a seminar presented by Genie Tyburski COURSE SECTIONS

Introduction

Finding the Law

Hypothetical Research

Information Quality

After Hours Practice

NAVIGATION

Home

Search This Web

Site Map

SPONSORS

The Virtual Chase

HSLC

Drexel University, College of Information Science & Technology



Tutorial
Contents
 

LESSONS
1. Introduction
2. Agency Web Sites
3. CFR
4. Federal Register
5. Agency Decisions

Definitions
Problem

Print Version

tutorials > admin law > home

Administrative Law Research

This tutorial will introduce you to the topic of administrative research. If you plan to work in a regulatory practice, the skills covered in this training session will be essential to your research. The structure of the tutorial is pretty simple. In the Introduction, you'll see the big picture of purpose, players and documents related to administrative law. Next, you'll take a quick look at a simple fact pattern we'll use to illustrate the dimensions explained in the Lessons. Each lesson focuses on a specific research dimension associated with administrative research and contains a research example. Finally, you'll connect to the accompanying problem which you'll complete online and in the Law Library.

  1. Introduction
  2. Agency Web Sites
  3. The Code of Federal Regulations
  4. The Federal Register
  5. Agency Decisions

Research Problem
Definitions
Print Version




Help With Legal Research

Federal Laws   State Laws

Learn About Statutes

• 

Definitions

• 

The Role of Statutes

• 

Should I Search Federal or State Statutes?

• 

How to Find a Statute

• 

How to Read a Statute

• 

How to Make Sure a Statute Is Up to Date

• 

When Do I Need to Consult a Local Ordinance?

• 

Where Can I Find the Text of Local Ordinances?

• 

The Role of Court Cases in Understanding Statutes

• 

Finding a U.S. Supreme Court Case

Posted by at No comments:

Links for US Legal Research




▼

▼

About THOMAS

THOMAS was launched in January of 1995, at the inception of the 104th Congress. The leadership of the 104th Congress directed the Library of Congress to make federal legislative information freely available to the public. Since that time THOMAS has expanded the scope of its offerings to include the features and content listed below.

Note created January 26, 2007
About THOMAS (Library of Congress) - thomas.loc.gov/...

▼

US Federal Laws | US State Laws

Introductory Materials - Historical documents and background information on the U.S. courts and government.

US Federal Laws

Codes, Statutes and Regulations

Case Law
Note created January 26, 2007
FindLaw: Cases and Codes - www.findlaw.com/...

▼
I.

Note created January 26, 2007
FindLaw: Legal Subjects - www.findlaw.com/...

▼
Empty note
Note created January 26, 2007
Case citation - Wikipedia, the free encyclopedia - en.wikipedia.org/...

▼
Empty note
Note created January 26, 2007
Google Scholar - scholar.google.com

▼

American Law Reports

From Wikipedia, the free encyclopedia

In American law, the American Law Reports are a resource used by American lawyers to find a variety of sources relating to specific legal rules, doctrines, or principles. It is an important tool for legal research.

Each ALR volume contains several annotations. An annotation is an article that summarizes the evolution of a very specific legal concept in a concise and precise fashion. The article will either be preceded by the full text of an important relevant case, or in later series, contain a reference to the text of the case, which is reproduced at the end of the volume.

The article will contain a wide variety of relevant citations to cases from throughout the United States and secondary sources like law review articles. The range and number of citations is always strongly representative but not always guaranteed to be completely comprehensive.

Although similar in tone to the articles in legal encyclopedias, ALR annotations are different in that they are not organized alphabetically, and they tend to drill more deeply into a specific legal principle or doctrine, while, in contrast, encyclopedia articles aim for the big picture. In addition, ALR articles are careful to provide cases on both sides of the legal issue and provide listings of cases according to the jurisdiction. Since articles are published in the order the leading cases were decided, there are various finding aids, such as the ALR Index,[1] and West's ALR Digest[2] (which now follows the classification system of the West American Digest System) to help one find an annotation on a particular topic, or the reader may use the references in American Jurisprudence to a find a more in-depth discussion in ALR. ALR articles may also be searched on Westlaw.

ALR has been published in several series (the current series is ALR6th) and there are series of ALR Fed (which focuses on federal law). ALR3d through ALR6th and ALR Fed are updated by pocket part supplements (the first series has a citation service, and ALR2d a Later Case Service). Annotations may be superseded by a later annotation in which the editor reanalyzes the law in light of recent developments.

Note created January 26, 2007
American Law Reports - Wikipedia, the free encyclopedia - en.wikipedia.org/...

▼

Corpus Juris Secundum

From Wikipedia, the free encyclopedia

The Corpus Juris Secundum (C.J.S.) is an encyclopedia of U.S. law (see Secondary authority). Its full title is Corpus Juris Secundum: Complete Restatement Of The Entire American Law As Developed By All Reported Cases (1936- ) It contains an alphabetical arrangement of legal topics as developed by U.S. federal and state cases (1658-date).

The CJS is an authoritative 20th century American legal encyclopedia that provides a clear statement of each area of law including areas of the law that are evolving and provides footnoted citations to case law and other primary sources of law. Named after the 6th century Corpus Juris Civilis of Emperor Justinian I of the Byzantine Empire, the first codification of Roman law and civil law. (The name Corpus Juris literally means "body of the law"; Secundum denotes the second edition of the encyclopedia, which was originally issued as Corpus Juris by the American Law Book Company.)

The CJS is published by Thomson West, part of the Thomson Legal & Regulatory division of The Thomson Corporation. It is updated with annual supplements to reflect modern developments in the law. Entire volumes are revised and reissued periodically as the supplements become large enough. It is also on Westlaw.

Note created January 26, 2007
Corpus Juris Secundum - Wikipedia, the free encyclopedia - en.wikipedia.org/...

▼

A Research Guide to the Federal Register
and the Code of Federal Regulations

By Richard J. McKinney
Assistant Law Librarian, Federal Reserve Board
Last revised in September, 2006

Originally published by the Law Librarian's Society of Washington, D.C., Inc.
as an article in the Fall, 2002 issue of Law Library Lights, Vol. 46, No. 1

[History of FR] [History of CFR] [Contents/Org] [Electronic Sources]
[Finding Older Issues] [Citations & ID#s] [Indexing] [LSA] [Notes] [Guide in PDF]

7



Electronic Sources of the Federal Register and CFR

There are a number of electronic sources to the Federal Register and the CFR. GPO Access, for instance, maintains the Federal Register from 1994 forward with portable document format (PDF) copies from 1995 forward, and it has annual CFR issues with PDF copies from 1997 forward. The GPO Access Federal Register and CFR sites are both searchable and browseable. LexisNexis and Westlaw also have the Federal Register online from July 1 of 1980, with citation retrieval capability and with all pages noted in versions after 1992. Lexis has the CFR editions back to 1981 and Westlaw has them back to 1984. They both have citation retrieval capability for sections in the current CFR. Dialog has the Federal Register from 1985 forward, CQ.com has it from 1990 forward and GalleryWatch.com and LoisLaw.com have it from 1999 forward.

There are also a number of new electronic products on federal regulations. For instance, in January, 2003, the Bush Administration launched a new citizen friendly Web site called "Regulations.gov." The site tries to encourage electronic comments on proposed regulations from ordinary citizens by presenting a simple way to search, link and submit comments to agency proposed regulations that are still open for comment.

GPO Access has a new "Electronic Code of Federal Regulations (e-CFR)" service under development which gives you CFR sections in their current form with any recent amendments from the Federal Register already incorporated.26 The e-CFR service is updated daily and also allows you to separately view appendices and supplements to CFR parts, instead of having them tacked together onto the concluding final section of a part of the CFR. Other similar electronic CFR updating services include LexisNexis, Westlaw, LoisLaw.com, TheLawNet.net, and VersusLaw.net. Portions of the CFR are also available from other commercial vendors in selected subject areas.

The William S. Hein & Co., Inc., has recently optically scaned nearly all issues of the Federal Register (within one or two months of the present) placing them on its Hein OnLine service.27

"Public Inspection List"

Finding Older Issues of the Federal Register and CFR

The Federal Register has been published daily each federal working day28 since 1936 on newspaper quality paper. Only the earliest issues, from March 14, 1936 to June 1, 1938, were republished on better quality paper and repaginated in a bound form much like the bound form of the Congressional Record. A few libraries hold the entire Federal Register set in paper form and continue to bind the daily editions like other periodicals,29 but most have discarded their paper copies in favor of microfilm or microfiche. The annual Federal Register Index, is generally retained by libraries having microform copies. Federal depository libraries, academic law libraries, and Federal agency libraries are all good sources for finding older issues of the Federal Register and the Code of Federal Regulations, but they may not have complete sets. Searching for the titles on OCLC may help you locate libraries that have the years and titles that you are interested in obtaining.

The William S. Hein & Co., Inc. and LexisNexis Academic and Library Solutions (LNALS, formerly known as CIS - the Congressional Information Service) both sell microfiche copies of the Federal Register from 1936 to the present. With the Hein subscription comes a hard copy of the annual Federal Register Index (albeit somewhat reduced in size). LNALS also sells the annual CFR (or its annual supplements) in microfiche from 1938 to the present. In addition, as noted above, Hein OnLine has recently made available, by optical scan method, close to the entire Federal Register series in electronic format (see above). This is a searchable database and the company is currently updating that series and beginning to digitize past editions of the CFR as well.

Citations, ID Numbers, and the Unified Agenda

In its own documents, the Office of the Federal Register (OFR) cites to the Federal Register by employing the volume number, the publication abbreviation "FR", and the beginning page number on which the document or the regulation within the document begins, as well as the date of publication. An example would be "67 FR 49264, July 30, 2002." The Bluebook30 uses more detail, including the name of the regulation, the volume number, the abbreviation "Fed. Reg.", as well as the publication date and where the document is to be codified, as in "National Coastal Wetlands Conservation Grant Program, 67 Fed. Reg. 49264 (July 30, 2002) (to be codified at 50 C.F.R. pt. 84)." You can obtain a document by citation method on either Lexis or Westlaw by simply using an FR cite method without reference to a date or codified cite as in "67 FR 49264."

Citations to the Code of Federal Regulations in the Federal Register are cited with the title number, the abbreviation CFR, the word "part" or the symbol "§" for section, and the number of the part or section, as in "12 CFR part 220" or "12 CFR §220.1." The Bluebook citation method is similar to the above, but it requires you to use periods in "C.F.R." and the issue year of the C.F.R title as well, as in 12 C.F.R. pt. 220 (1999). By just using a simple CFR part or section citation, a current (or near current) CFR document can be obtained on Westlaw and Lexis as in "12 CFR 220.1." CFR titles have chapters corresponding to different agencies or bureaus. For instance, 12 C.F.R. Ch. II corresponds to regulations published by the Federal Reserve Board. Material below a CFR section is referred to as a paragraph or paragraphs, as in 12 CFR 220.1(b)(2).

Although 44 USC §1510(e) states that the documents in the CFR are only "prima facie evidence" of the text of the documents in the Federal Register, courts regularly accept CFR cites without reference to FR citations from which a rule was taken. Indeed, according to 44 USC §1507 documents in the Federal Register themselves have only a "rebuttable presumption" that they are duly issued, prescribed and promulgated and are true copies of the originals approved by a regulatory agency. But it does not appear that discrepancies between the original documents, the Federal Register documents, and CFR documents have ever been litigated. In part, this may be because Federal regulatory agencies can and regularly do make technical corrections to their regulations published in the Federal Register. However, the Office of the Federal Register will not certify the accuracy of a particular regulation in the CFR and thus for safety sake, it "may" be advisable for litigants to note the FR citation history to sections in the CFR pertinent to the litigation. This may be especially important if there is a question about the regulation because only the documents published in the Federal Register, and not the CFR, is there any accompanying explanation to a proposed or finalized rule. In some sections of the CFR it may be hard to trace its FR citation history and you may need to perform an online search or search the annual index or List of CFR Sections Affected (see below).

Besides citations, there are several identification numbers to Federal Register documents. These include the agency docket number found at the beginning of the regulation (the same number is used for the proposed and final rule) or the Federal Register document number found at the end of the regulation (unique for each document published, including notices). The Web version of the Federal Register on GPO Access uses the unique FR Document number for its URLs as well as one that utilizes the date.

Another identification number to some regulations is the RIN or regulation identification number found at the top of the document right underneath the agency docket number. RIN numbers are assigned to descriptions/status reports of agency regulations under development and published twice a year in the Federal Register during April and October pursuant to the Regulatory Flexibility Act and Executive Order 12866. GPO Access does not include this semi-annual publication in its online version of the Federal Register, but places it separately in its multi-database search facility under the term Unified Agenda.

Indexing to the Federal Register and CFR

Since its inception in 1936, the Federal Register has always been accompanied by an annual Federal Register Index. The Index is organized by agency (or subsidiary agency) and then within the agency index there are three groups -- rules and regulations, proposed rules, and notices, which is then broken down into alphabetically arranged subjects. Within the main index are scattered subjects referring you to the appropriate agency or agencies dealing with those particular subjects. Cites in the Index are to page numbers only, but in the back of the publication there is table with corresponding dates. A cumulative monthly issue is also published, with the final January-December issue of each year becoming the annual index. Readers must be cautious in assuming that the annual index for a particular agency is complete. From 1984-1998 the Congressional Information Service (CIS - now called LexisNexis Academic and Library Solutions) published a more detailed annual index entitled CIS Federal Register Index.

The Office of the Federal Register also prepares and publishes an annual CFR Index and Finding Aids. The "Index" portion of the publication is organized by detailed subjects with references to CFR parts. The "Findings Aids" portion is divided into four sections including the following titles: "List of Agency-Prepared Indexes Appearing in Individual CFR Volumes;" "Parallel Table of Authorities and Rules;" "List of CFR Titles, Chapters, Subchapters, and Parts;" and "Alphabetical List of Agencies Appearing in the CFR." Particularly helpful is the parallel authorities section, which provides CFR cites to regulations from various legal authorities that are organized by U.S.C. section, U.S. statute page number, Presidential proclamation number, and Executive order number. From 1949 to 1963 a specialized index was published in the back of each book of the CFR, which sometimes covered one or multiple titles of the CFR, and since 1975 a few agencies (see list in the Index) have prepared an agency index that is published along with their regulations in the CFR.

The Index and Finding Aids is also reproduced annually as part of the United States Code Service: Lawyer's Edition published by Lexis Publishing, and a more detailed Index to the Code of Federal Regulations is published quarterly by LexisNexis Academic and Library Solutions.31

Another related index is Shepard's Code of Federal Regulations Citations. Published by Lexis Publishing and organized by CFR section, it includes citations to judicial interpretations and treatments of regulations in federal courts since about 1949. It also cites to state court decisions and law reviews since 1977 and provides related cites to ALR annotations as well. Reference notes to sections in both the United States Code Service and the United States Code Annotated also cite to related CFR sections. However, it is important to note that authorities cited in sections of the CFR itself are often to broad policies and laws that may or may not appear in any index or reference note.

List of CFR Sections Affected

Finally, no article on the Federal Register and CFR would be complete without making reference to the List of CFR Sections Affected (LSA).32 Begun in 1950 by being placed in the cumulative pocket supplements to the 1949 edition of the CFR, the LSA is organized by CFR title and part and contains page references to the annual Federal Register volumes that publish changes to final and proposed rules in the CFR. The changes referenced include final and proposed amendments, revocations, or newly established regulations published in the Federal Register. The LSA makes it easier for researchers to track the development and ascertain the currency of particular regulations. This kind of regulatory history tracking is more difficult for early documents published in the Federal Register before 1949, as those did not note what were the corresponding CFR citations. Before 1964 LSA was simply called List of Sections Affected and contained little information on how a CFR was affected. Since 1964 LSA has provided section-by-section information on how CFR parts were affected. However, LSA provides minimal details on proposed rules (and IRS final rules), and just notes that a certain part is affected.

Beginning in 1963, monthly and annual issues of the LSA were published instead of being inserted into cumulative pocket supplements. The cumulative January-December issue of the LSA would then be designated as the annual issue for the volume. In 1972 the titles of the CFR began to be published with staggered effective dates and after that time certain monthly issues of the LSA would be designated as the annual issue for certain titles of the CFR (December issue for Titles 1-16, March issue for Titles 17-27, June issue for Titles 28-41, and September issue for Titles 42-50). Subscribers are instructed to save the four annual LSA issues and sometimes other months as well.

Four compilations of the LSA have been published by the Government Printing Office encompassing the years 1949 to 1963, 1964 to 1972 (2 vols.), 1973 to 1985 (4 vols.), and 1986 to 2000 (4 vols). The volumes are organized by CFR title and then by year within each title. Only finalized rules to CFR sections are included, which note the actions taken and the corresponding page numbers in the Federal Register. The 1986-2000 LSA compilation is available electronically on GPO Access.

LSA is also available on GPO Access from 1997 to the present.33 and GPO Access now as an prototype electronic service, called e-CFR, that actually updates the regulatory text on a daily basis. Similar electronic updated text services are available commercially (see above). Some libraries continue to retain all four of the LSA's that complete a year's cumulative listings. Other libraries now rely on the multi-volume LSA as well as the LSA on GPO Access, the annual Federal Register Index, and electronic searching of the Federal Register.

In the "Readers Aids" section of each issue of the daily Federal Register there is a cumulative list of CFR parts affected that month. A current cumulative list for the month can be found in the most recent issue of the Federal Register and earlier monthly cumulative lists can be found on the last day of the month that a Federal Register was issued. Thus it is possible to determine the currency of a CFR part by reviewing the annual CFR together with the most recent monthly LSA supplemented by the most recent Federal Register.

A final caution in conducting research using the LSA is to note that parts to the CFR which have been rescinded by a Federal agency may be reused by an agency at a latter time for any newly established regulation on a totally different subject matter. Also , certain CFR titles have been reassigned or removed, including titles 2, 6, 10, 11, 34, 40, 44, and 48.

Concluding Statement

Although not perfect, the Federal Register and the CFR appear to have met their original purpose of providing the public with a comprehensive publication vehicle for all the regulations issued by Federal agencies and the President. The Federal Register, faithfully prepared and published every workday since 193628, and the annual Code of Federal Regulations which it supplements, are considered to be the core documents of the Executive Branch of the U.S. Government, and as such have become indispensable to the Government's operations and to it's communication to the public which it serves.

Notes:

1. See generally Griswold, E.N. Government in ignorance of the law; a plea for better publication of executive legislation. 48 Harv. L. Rev. 198-215 (1934).
2. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
3. Act of July 26, 1935; ch. 417, 49 Stat. 500-503, (current version at 44 §§U.S.C. 1501-1511 (2000)).
4. 44 U.S.C. §1505.
5. Act of June 11, 1946, ch. 324, §4, 60 Stat. 237, 239 (current version at 5 U.S.C. 553 (2000)).
6. 37 Fed. Reg. 23602 (Nov. 4, 1972) (codified at 1 C.F.R. pts. 1-22).
7. 41 Fed. Reg. 56624 (Dec. 29, 1976) (codified at 1 C.F.R. §18.12).
8. Act of June 19, 1937, ch. 369, 50 Stat. 304-305.
9. Similar subject categories and title numbers between the CFR and the USC include titles 1, 3, 5, 7, 8, 12, 15, 19, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 33, 38, 39, 41, 42, 43, 46, 47, and 49.
10. Jablonski, Sandra. The Federal Register and the Code of Federal Regulations, p. 1. Draft paper prepared for an LLSDC Legislative SIS presentation on February 29, 1996 (published on the LLSDC Web site at http://www.llsdc.org/sis/legislative/fr-cfr-1996.pdf).
11. Id., p. 2.
12. The Division of the Federal Register was renamed the Office of the Federal Register on February 6, 1959.
13. For past discussions on the proper way to publish the CFR see Factor, Modernizing federal regulations publications, 21 Fed. B. J. 219 (1961); Eberhart, A modern approach to making federal regulations available, 22 Fed. B. J. 32 (1962); and Federal register and the Code of federal regulations - a reappraisal, 80 Harv. L. Rev. 439 (1966).
14. From May 1, 1971 to February 19, 1982, a highlights section preceded the daily table of contents section. Currently a section on "CFR Parts Affected in this Issue" follows the table of contents section and the "Reader Aids" section in the back includes customer service and electronic information, pages covered during the month, CFR parts affected during the month, a list of rules going into effect during the month, a list of comments due during the next week, a list of new public laws, and a notice on how to receive information about new public laws electronically. A good overview of the Federal Register can be found in the OFR publication, The federal register: what it is and how to use it; last revised in 1992.
15. 1 C.F.R. §18.2.
16. See publishing schedule at 1 C.F.R. §17.2.
17. 5 U.S.C. §553(d) and 1 C.F.R. §18.17.
18. The Administrative Procedure Act (1946) was amended by the Freedom of Information Act (FOIA, Pub. L. No. 89-487, July 4, 1966, 80 Stat. 250) with an effective date of July 4, 1967. However, on September 6, 1966, Title 5 of the U.S. Code was codified into positive law by Pub. L. No. 89-554 without the FOIA amendments. Consequently on June 5, 1967 Pub. L. No. 90-23 was enacted to codify the Freedom of Information Act as section 552 of Title 5 of the U.S. Code. Note that unlike some codifications, which utilize unused sections of the U.S. Code, sections 501-559 of Title 5, which was assigned to the Administrative Procedure Act, had been assigned to unrelated subjects before the Title was codified into positive law.
19. 5 U.S.C. §552(a)(1).
20. 5 U.S.C. §552(b)(1) & (2). Between 1965 and 1988 secret federal regulations, known as the the Code of Emergency Federal Regulations, were promulgated to be triggered automatically in the event of a national emergency. These regulations are available by written request to the Office of the Federal Register. They are also available from the William S. Hein Co. (http://www.wshein.com).
21. 5 U.S.C. §553(b).
22. Office of the Federal Register, Document Drafting Handbook, Oct. 1998 revision, available electronically at http://www.archives.gov/federal-register/write/handbook/. See particularly sections 1.1, 2.1, and 3.1.
23. Id., sec. 2.1.
24. For discussion of these issues see the Spring 2002 (v. 54, No. 2) issue of Administrative Law Review; particularly noteworthy is the article by William Funk, When is a "rule" a regulation? Marking a clear line between nonlegislative rules and legislative rules, 54 Admin. L. Rev. 639-671 (2002).
25. See Codification of Presidential Proclamations and Executive Orders (1945-1989) and Executive Orders Disposition Tables (1937 to Present).
26. See http://www.gpoaccess.gov/ecfr/.
27. As of June 2005 HeinOnLine (http://www.HeinOnLine.org/) has made available the Federal Register from 1936 through 2000 (vols. 1 - 65).
28. From 1936 through 1972 publication of the Federal Register occurred on the day after it was prepared, including Saturdays, but not Sundays and Mondays or the day after federal holidays. Since 1973 publication has occurred Mondays through Fridays, but not on holidays. The pages in the annual volumes have gradually increased from some 3,000 pages in the 1930's to some 75,000 pages today (see Annual Federal Register Pages Published).
29. Libraries with a complete set and known by the author to bind the paper edition of the Federal Register include Office of the Federal Register Library, the Department of Interior Library, and the Law Library of Congress.
30. The bluebook: a uniform system of citation, seventeenth edition, 2000, p. 96, Harvard Law Review Association.
31. See http://www.lexisnexis.com/academic/3cis/cise/IndexCodeFederalRegulations.htm.
32. Before 1964 the LSA was just called "List of Sections Affected"
33. See http://www.access.gpo.gov/nara/lsa/browslsa.html.

[Return to Top] - [Research Guide in PDF]


▼
On-line municipal codes are organized alphabetically by state. To access an E-Code, choose one of the municipality names below and see how easy they are to search and navigate!

▼

How Our Laws Are Made

Revised and Updated by Charles W. Johnson
Parliamentarian, United States House of Representatives
Presented by Mr. Ney
June 30, 2003

View complete document (204 K)

Table of Contents

Foreword
I. Introduction
II. The Congress
III. Sources of Legislation
IV. Forms of Congressional Action

V. Introduction and Referral to Committee
VI. Consideration by Committee

VII. Reported Bills

VIII. Legislative Oversight by Standing Committees
IX. Calendars

X. Obtaining Consideration of Measures

XI. Consideration and Debate

Back to Top

XII. Congressional Budget Process
XIII. Engrossment and Message to Senate
XIV. Senate Action

XV. Final Action on Amended Bill

XVI. Bill Originating in Senate
XVII. Enrollment
XVIII. Presidential Action

XIX. Publication

Appendix

Back to Top

Note created January 26, 2007
How Our Laws Are Made - THOMAS (Library of Congress) - thomas.loc.gov/...

▼

Core Documents of U.S. Democracy

To provide American citizens direct online access to the basic Federal Government documents that define our democratic society, a core group of current and historical Government publications is being made available for free, permanent, public access via GPO Access. These titles contain information which is vital to the democratic process and critical to an informed electorate. They support the public's right to know about the essential activities of their Government. Immediate, online access to authenticated versions of these Core Documents of Democracy increases in importance as Americans grow ever more dependent on remote electronic access to basic information resources -- both past and present. To suggest a Core Doc, contact us.

Cornerstone Documents | Congressional | Presidential
Judicial | Regulatory | Demographic | Economic | Miscellaneous

Cornerstone Documents

Congressional

Presidential

Judicial

Regulatory

Demographic

Economic

Miscellaneous

Note created January 26, 2007
Core Documents of U.S. Democracy - www.gpoaccess.gov/...

▼
Empty note
Note created January 26, 2007
Lawyer, Lawyers, Attorney, Attorneys, Law, Legal Information - FindLaw - www.findlaw.com

▼





Note created January 26, 2007
Library - University of Virginia School of Law - www.law.virginia.edu/...

▼
Note created January 26, 2007
Library - University of Virginia School of Law - www.law.virginia.edu/...

▼



Note created January 26, 2007
Library - University of Virginia School of Law - www.law.virginia.edu/...

▼

Legal research

From Wikipedia, the free encyclopedia


The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please improve this article or discuss the issue on the talk page.
This article or section is not written in the formal tone expected of an encyclopedia article.
Please improve it or discuss changes on the talk page. See Wikipedia's guide to writing better articles for suggestions.

This article or section is in need of attention from an expert on the subject.
WikiProject Law or the Law Portal may be able to help recruit one.
If a more appropriate WikiProject or portal exists, please adjust this template accordingly.

Contents

[hide]

[edit] What is legal research?

"Legal research is the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation."

This article focuses on the process of finding legal documents issued by courts, legislatures and other government entities in the United States. Finding legal information in the United States can be challenging. Many lawyers use electronic databases such as LexisNexis, FindUSLaw, Loislaw or Westlaw to access legal information. However, these resources may not be accessible to all. Special focus is given in this article to finding free legal materials on the Internet. As this article discusses a process, it is somewhat informal in tone.

The next section of this entry provides necessary background for understanding the process of legal research. Concepts such as law, legal authority and jurisdiction are taught to law students during their first year in Law School. The process of legal research is then discussed, followed by discussion of the primary sources of law (cases, statutes, and regulations).

[edit] Background concepts

[edit] What is the law?

Merriam-Webster's Dictionary of Law defines the law as "A rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority." In particular, it is the concept of authority that drives much of legal research. Whether searching in print or online, the challenges of legal research are usually:

  1. selecting appropriate legal authorities, and
  2. selecting appropriate search terms to find the legal rules in the resource that is being searched.

[edit] Authority: Primary versus secondary

There are many types of legal authority. However, the main distinction is between primary authority and secondary authority. Primary authority generally consists of the verbatim texts of constitutions, case law, statutes, treaties, regulations and similar materials cited in legal documents. A secondary authority leads to and explains the primary authorities.

Because obtaining an understanding of a particular area of law by reading the cases, statutes, and regulations alone may be difficult, a common research tactic is to begin by using secondary sources to get a general overview, and then to use the secondary authority footnote references to guide the researcher to the texts of cases, statutes, and regulations.

[edit] Authority: Mandatory versus persuasive

Another major distinction is between mandatory authority and persuasive authority.

Mandatory authority is an authority that the court must follow. For a trial court, an example of mandatory authority would be a prior court decision by an appeals court that normally hears appeals from that particular trial court. For example, because decisions of the United States District Court for the Western District of Louisiana are appealable to the United States Court of Appeals for the Fifth Circuit, a prior decision by the Fifth Circuit court is mandatory authority for the District Court in the Western District of Louisiana. If the District Court in Louisiana does not follow a prior decision of the Fifth Circuit Court, the District Court decision may be overturned if a party appeals that court's decision to the Fifth Circuit.

Persuasive authority is one which the court may optionally follow. The fact that a particular text is a primary authority (such as a case) does not mean that the court must follow it. For example, the United States District Court for the Western District of Louisiana is not required to follow a decision of the United States Court of Appeals for the Ninth Circuit, even though the Ninth Circuit court is technically a "higher" court than the District Court in Louisiana. Decisions of the District Court in Louisiana are reviewable only by the Fifth Circuit Court, not by the Ninth Circuit Court, as noted above. Thus, decisions of the Ninth Circuit Court are only persuasive, not mandatory, for the Western District of Louisiana.

Similarly, a Pennsylvania state court is not required to follow a decision of any Alabama state court. In this instance, the primary authority from Alabama is only a persuasive authority in the eyes of the Pennsylvania court. This is a fundamental aspect of the concept of jurisdiction.

[edit] The concept of jurisdiction

Jurisdiction is the area in which a court or other government body is empowered to act. Jurisdiction is most commonly geographical but can be by subject, including bankruptcy and patent. There is a jurisdiction for the United States federal government as well as for each of the fifty states. Within each of these jurisdictions, there are organs of the Judicial, Legislative, and Executive branch of government. These branches of government further subdivide. From a law librarian's view, each of these branches of government are the sources of law in the U.S. They produce books (or databases) where one can find the primary authorities associated with each of these entities.

[edit] Common law versus civil law

Much of United States law comes from the common law, or courts. While legislatures can pass statutes and executive branch agencies and departments may issue administrative regulations, the courts interpret the meanings of the various pronouncements. By contrast, many countries operate under a civil law system, where statutes are the primary source of law.

How attorneys think about the common law differs from how they think about statutes. In the common law system, the basic assumption is that if there is a case from the past having facts and legal issues similar to those in the case currently before the court, the outcome of the past case should control the outcome of the present case. This concept is often referred to as precedent. A lawyer is often engaged in the task of finding a case that is "on point," or as close to his or her fact situation as possible.

This means that it is often quite difficult to determine what "the rule" is for any given legal issue. In many instances figuring out what the law is consists of comparing many different cases to the fact situation at hand. Rather than an absolute yes/no or true/false answer, the resolution may have to be considered on a strong/weak scale. How similar/dissimilar is one case (or fact situation) from another? One court may decide an issue one way, while another might go the other way. Does the precedent need to be abandoned altogether because of public policy reasons? Depending upon the issue involved, the case may eventually need to be decided by the U.S. Supreme Court. If, as is usually the case, the Supreme Court declines to hear the matter, then the highest court of the jurisdiction in which the case arose has had the last word.

[edit] The process of legal research

Although this is a process oriented article, there is no one right way to do legal research. There are however practices that have proven to be more efficient and cost effective. There is an overall "game plan" that is taught in the first year of Law school. The details vary according to the textbook, but a general search strategy might be:

  • frame the issue (try to figure out what the case is about/ what legal issue or issues you will need to research)
  • brainstorm search terms (think up synonyms - assisted suicide? right to die? euthanasia?)
  • determine jurisdiction and time frame (do you have a lot of time to research this? Usually not. You may have to make do with a quick and dirty resource instead of an in-depth, ever so scholarly one)
  • decide which format to use (print or electronic- this often just depends on what you have access to)
  • locate, read, and update secondary sources
  • locate read and update primary authority (cases, statutes, and regulations)
  • lookup rules of procedure, ethics, non-legal and other materials if needed
  • repeat the above steps, as needed, depending on your search results.

Adapted from The Process of Legal Research by Christina L. Kunz et.al

The legal research textbooks below are good resources for finding out more about legal research and research strategies. Most of the titles offered have an abbreviated citation format with no date (look for the latest revision):

  • Berring, Robert C. and Elizabeth A. Edinger. Finding the Law.(West Group).
  • Roy M. Mersky and Donald J. Dunn. Fundamentals of Legal Research. (Foundation Press).
  • Morris L. Cohen & Kent C. Olson, Legal Research in a Nutshell. (Thomson West).
  • Morris L. Cohen, Robert C. Berring, and Kent C. Olson, How to find the law. (West Publishing, 1989).
  • Elias, Stephen and Susan Levinkind. Legal Research: How to Find and Understand the Law. (Nolo Press).
  • Christina L. Kunz et.al, The Process of Legal Research. (Aspen Law & Business).
  • Amy E. Sloan, Basic Legal Research: Tools and Strategies. (Aspen Law & Business).

A very good search strategy is to find a research guide before you leap. Your local library will probably have research guides on a wide variety of topics. LLRX.com and Lexnotes.com provide a wide variety of legal research guides and resources. The Zimmerman Guide provides a handful of good places to start in both print and electronic format for a wide variety of legal topics.

[edit] Judicial branch sources (cases)

The Judicial branch is the court system. Each jurisdiction in the U.S. judiciary (federal and the fifty states) has any number of courts, usually one of three types:

  1. a trial court,
  2. an appeals court,
  3. a "court of last resort," often (but not always) known as a Supreme Court.

On the federal level, there is a Supreme Court of the United States, a United States court of appeals for each of several geographic areas called "circuits", and trial courts, known as the United States district courts. The circuits for the federal appellate courts are numbered and each circuit generally covers several states. Pennsylvania, for example, is in the jurisdiction of the Third Circuit Court of Appeals.

In general, the decisions of a higher court in a court system may be considered "binding" on the lower courts in that court system. The decisions of the Supreme court of a particular state are binding on the courts within that state. However, the decisions of a Pennsylvania state court may or may not be followed by a federal court in the Third Circuit, which includes Pennsylvania. The status of United States Supreme court opinions is complex. Many consider these cases to be binding on all US courts as a practical matter. However, Cohen, Berring, and Olsen, in their book "Finding the Law," state:

"The Supreme Court is the court of last resort in any federal dispute and has the final word on federal issues raised in state courts. In most situation, however, it has discretion to decline to review lower court decisions and disposes of most matters by denying petitions for certiorare or dismissing appeals. Only a small percentage of the cases appealed to the Supreme Court are accepted for consideration."

From: Morris L. Cohen, Robert C. Berring, and Kent C. Olson, How to find the law. (West Publishing, 1989) p. 26.

Only a small percentage of court decisions are officially published in a print court reporter. The most published decisions are issued by the United States Supreme Court. State trial courts produce the lowest percentage of published cases. Some courts provide copies of their decisions free on the web while others do not. Even if the decisions are on the web they seldom go back before 1994, when the web became more popular. The only exception is with U.S. Supreme Court opinions.

The Supreme Court of the United States provides the text of recent opinions on its website. It is one of the best places to obtain new opinions. Supreme court opinions can also be found at the Cornell Law School Legal Information Institute, Findlaw, LexisOne,

The websites for the federal courts can be found at the Federal Court Locator, and the Administrative Office of the U.S. Courts. Lexisone and the Cornell Law School Legal Information Institute allows searching all of the federal courts at the same time. However, Lexisone only allows free searching for the last five years and the court sites accessible via Cornell typically go back to the mid nineties.

There are several websites which provide links to state court websites, such as Findlaw, Loislaw and LexisOne. The Cornell Law School Legal information institute is also a good resource for finding US state court websites. Cornell is a member of a world Free Access to Law Movement movement whose aim is to provide free access to legal information.

In print, to find the cases, legal researchers use indexes of various types. Classification systems provide index terms. For example, there may be a category of law, torts (non-crime injuries to people). There are many types of torts, or causes of Action, such as slander. These causes of actions have various elements which must be proved to establish a claim (there may also be various defenses). The general category, the cause of action and the various elements of the cause of action and defenses may all be index terms. The major classification for finding law cases is the West American Digest System.

Matching your thinking to the mind of the person who wrote the index can be a trying task, particularly to those not generally familiar with the basic legal subject areas. The key to using legal indexes is to identify not only the key facts but the legal issues which are central to the case. "Issue spotting" is a skill that lawyers hone in law school and throughout their careers as they gain experience. For the layperson, reading secondary sources, such as books and journal articles, can help.

Once a case has been found, legal researchers must make sure that it has not been overturned by a higher court. Lawyers use citators such as Loislaw's "GlobalCite" or Shepard's citations to make sure that their case is still "good law." This process is often known as Shepardizing after the name of the service. Citators track resources, written at a later point in time, which cite back to a particular case. Because cases cite to related cases, citators can be used to find cases which are on the same topic. A common research strategy is to use "one good case" to find related cases.

Some courts provide court rules and forms free on the web while others do not. One of the largest collections of links to court rules and forms on the web can be found at LLRX.com. Legal forms can be some of the hardest documents to find because one person may call a form by one name while another person knows it by an entirely different name (neither of which may be the actual, official name of the form). Law libraries often have many sets of formbooks to search.

Legal researchers may also need the briefs and other background materials connected with a case, which are included in docket records. See the Virtual Chase for a guide to court documents as well as many other legal research guides. Other types of documents may exist in databases which cannot be searched with search engines such as Google. These 'invisible web' resources are also quite valuable.

The works of Lawrence Lessig as well as the Washington Offices of the American Library Association and the American Association of Law Libraries are useful resources for those interested in information access issues.

[edit] Legislative branch sources (statutes)

A statute is passed by elected bodies. There is legislation for the federal jurisdiction as well as for each of the states. There is a "life cycle" to the publication of statutes which is helpful to understand how to find them. Statutes start their "lives" as a "slip law" which can be found in print or, increasingly, on the web. In print, groups of statutes are next published together in book form in chronological order as "session laws." Paperback "advance sheets" with these session laws are found in many libraries before the hardbound session law volumes are published. Finally, the statutes are arranged and grouped in subject order in books called Codes.

Some jurisdictions provide copies of their statutes online while others do not. You will have the most luck finding the new slip laws on the web. Far fewer provide their codes. Again, Loislaw ,Findlaw and LexisOne can help there. The Law Librarians' Society of Washington, D.C. (LLSDC) Legislative sourcebook has a lot of good information about state and federal legislation. See its list of state legislative websites and phone numbers. State statutes can also be found at the Cornell Lawschool Legal Information Institute.

There is no "up to the minute" version of the federal United States Code online. The official code is usually one to two years out of date. The print United States Code is one to two years out of date as well. Most lawyers use the more timely, commercially published United States Code Annotated (USCA) or the United States Code Service (USCS). They are called 'annotated codes' because they include summaries of cases which interpret the meaning of the statute. They may also include references to journal articles, legal encyclopedias and other research materials so it is good to look in an annotated code either in print or on Lexis/Westlaw as soon as you know there is a statute involved in your research problem.

"Founding Documents," such as the Declaration of Independence, the United States Constitution, and the Federalist Papers are available at the United States Government Printing Office (GPO) website (see their Core Documents of U.S. Democracy).

In addition to the text of the current law itself, legal researchers may also have to research the background documents connected with the statute, which is known as Legislative history. Again the LLSDC guide, Federal Legislative History Research is one of the best guides on the topic. Thomas the Library of Congress legislative information service, provides the fulltext of proposed bills, bill status information (did it become a public law? who sponsored it? what committee was it referred to?), the text of debates from the Congressional Record, the full text of committee reports and other legislative information. See the guide How Our Laws are Made to see a listing of the potential documents which could be produced at each step of the lawmaking process. The Library of Congress provides access to legislative documents from 1774 through 1875 as part of its Century of Lawmaking for a New Nation digital library.

In this category, the hardest items to find often come from local government, such as municipal codes or local ordinances. The General Code Corporation publishes municipal codes for several, but not all, states. You can also try Govspot's local government links to find the website for your local government. They may link to their local laws.

[edit] Executive branch sources (regulations)

A legislature usually has neither the time nor the expertise to administer all of the details of a particular statute. It may, for example, pass a statute mandating clean water. However, it delegates the authority to actually implement the statute to a Government agency, such as the Environmental Protection Agency (EPA). Agencies issue administrative Regulations to implement the details of the "enabling legislation" that gave the agency authority to act.

The challenge with the executive branch is to track down the rules and regulations of federal and state administrative agencies. Luckily administrative regulations have a "life cycle" that is very similar to that of statutes. Regulations start out as an agency document, which many agencies now post on the web. They are then published in chronological order in registers, and finally are published in subject order in codes.

Federal regulations, for example, are first printed in the Federal Register, before they turn up in subject order in the Code of Federal Regulations. See the LLSDC Research Guide to the Federal Register and the Code of Federal Regulations.

Because of this "publication pattern" in order to find out if there has been a change with respect to a particular regulation a print CFR user has to go through a two step process of checking 1) the List of Sections Affected (LSA) and 2) the latest issue of the Federal Register for the current month. An online CFR user need only consult the website for the List of Sections Affected online. An e-CFR pilot project is underway to provide a version of the CFR without having to refer to a separate publication for updates.

Go to Regulations.gov to comment on proposed federal rules and regulations.

State administrative codes and registers are tracked by the National Association of Secretaries of State.

The foremost executive branch entity is, of course, the Office of the President. The Whitehouse has its own website. Presidential documents are published in the Weekly Compilation of Presidential Documentsand the Public Papers of the Presidents.

The United States Government Printing Office publishes the federal regulations and presidential documents mentioned above, in addition to many other federal information sources. If you want to find documents posted directly on agency websites, the official portal for U.S. government information is Firstgov.

The relationship between statutes and regulations means that one can usually never consider just a regulation alone. This intertwined grouping of regulations, statutes, and cases is often best deciphered using secondary sources such as books and journal articles.

[edit] Secondary sources

Books and journal articles are available at your school or public library. See the "Getting Help" section, below, for information on finding libraries. In law libraries books are known as "legal treatises." You can also find legal encyclopedias, such as Corpus Juris Secundum, and resources such as American Law Reports in a law library.

Although it is suggested to look first to secondary sources for general background explanation, free authoritative secondary sources are even scarcer on the web than the primary sources listed above. Merriam-Webster's Dictionary of Law is available on Findlaw. All law libraries and many general libraries have a copy of Black's Law Dictionary.

The University Law Review Project allows you to search the fulltext of law journals on the web. Not all law journals provide their text on the web, however. Another way to track down law reviews is to use the website which tracks the most frequently cited law journals (just click the submit button to see the list of all journals). You might also try a general scholarly search engine, such as Google Scholar.

[edit] Citing to legal documents

An often challenging element of legal research are the rules on how to create and decipher legal citations (see e.g., case citation). This is particularly acute for online resources, which routinely omit the official print pagination required by the major legal citation systems. The vendor neutral citation movement has made some inroads here, including provisions for citing to "web sources." However, current practices still favor using official cites.

[edit] Major online legal research portals

The examples and perspective in this article or section may not represent a worldwide view of the subject.
Please improve this article or discuss the issue on the talk page.

Findlaw and LexisOne are two low cost legal research portals. Loislaw a division of Wolters Kluwer has however made some headway in recent years into the former duopoly. Findlaw is sponsored by Thomson West (the owner of the Westlaw database) while Lexisone is sponsored by the owner of the LexisNexis service. Each site has a free registration option (although only Lexis' is mandatory). Signing up for MYFINDLAWprovides users with a customizable portal to legal news, legal research resources, as well as up to 10 of your favorite websites.

There are several other portals and information sources you may want to try, such as Lexnotes, the Cornell Legal Information Institute, Villanova Legal Express. and the Law School Lizard. An excellent state by state resource of legal links and information is Rominger Legal. Employment law resources are available at FindUSLaw.

An overview of the federal jurisdiction and its related legal documents can be found in A Guide to the U.S. Federal Legal System, Web-Based Publicly Accessible Sources.

What people often want are documents connected with a "hot" case or issue that has been extensively reported in the news media. Good sources for current issues are Findlaw legal news (see featured documents), Yahoo Full Coverage, Library of Congress Bills in the News, and University of Michigan Documents in the News. You can also do a web search for organizations that might be tracking the issue.

[edit] Getting help

You can find listings of various types of libraries at Libweb and Libraryspot. Yahoo has a list of public law libraries. Try a web search for county "law library" (your county). County law libraries are usually open to the public. Also, Findlaw has a list of law schools through which you can find the web pages for their law libraries. However, not all law school libraries are open to the public so call ahead for their access policies. There are a few free online reference service websites. Check to see if your local library has one.

In general, you can do a web search for ask a law librarian (your state). Some services are open to the public while others are not. The Library of Congress has an ask the librarian service for many subject areas, including law. If you are in California, try their Ask Now service. The Internet Public Library has a general "ask the librarian" service. The Government Information Online website allows you to get live chat help from a government reference librarian. For those who are more phone-oriented, the Consumer Information Center's National Contact Center at (800) 333-4636 will refer you to someone at a government agency who can answer your question about Federal programs, benefits or services. A layperson may also want to seek a referral to a low cost lawyer or legal aid organization.

[edit] Source

The original version of this article resides at http://vls.law.villanova.edu/staff/yjones/layman.htm.

[edit] External links

Note created January 26, 2007
Legal research - Wikipedia, the free encyclopedia - en.wikipedia.org/...
Posted by at No comments:
Labels:
Subscribe to: Posts (Atom)