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Foundations of legal research and writing

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Summary Foundations of Legal Research and Writing

Foundations of Legal Research and Writing Fourth Edition

DELMAR CENGAGE Learning Options. Over 300 products in every area of the law: textbooks, online courses, CD-ROMs, reference books, companion websites, and more – helping you succeed in the classroom and on the job. Support. We offer unparalleled, practical support: robust instructor and student supplements to ensure the best learning experience, custom publishing to meet your unique needs, and other benefits such as Delmar Cengage Learning's Student Achievement Award. And our sales representatives are always ready to provide you with dependable service. Feedback. As always, we want to hear from you! Your feedback is our best resource for improving the quality of our products. Contact your sales representative or write us at the address below if you have any comments about our materials or if you have a product proposal. Accounting and Financials for the Law Office • Administrative Law • Alternative Dispute Resolution • Bankruptcy Business Organizations/Corporations • Careers and Employment • Civil Litigation and Procedure • CLA Exam Preparation • Computer Applications in the Law Office • Constitutional Law • Contract Law • Court Reporting Criminal Law and Procedure • Document Preparation • Elder Law • Employment Law • Environmental Law • Ethics Evidence Law • Family Law • Health Care Law • Immigration Law • Intellectual Property • Internships Interviewing and Investigation • Introduction to Law • Introduction to Paralegalism • Juvenile Law • Law Office Management • Law Office Procedures • Legal Nurse Consulting • Legal Research, Writing, and Analysis • Legal Terminology • Legal Transcription • Media and Entertainment Law • Medical Malpractice Law Product Liability • Real Estate Law • Reference Materials • Social Security • Sports Law • Torts and Personal Injury Law • Wills, Trusts, and Estate Administration • Workers' Compensation Law DELMAR CENGAGE Learning 5 Maxwell Drive Clifton Park, New York 12065-2919 For additional information, find us online at: www.delmar.cengage.com

Foundations of Legal Research and Writing Fourth Edition CAROL M. BAST MARGIE HAWKINS DELMAR CENGAGE LearningTM Australia • Brazil • Japan • Korea • Mexico • Singapore • Spain • United Kingdom • United States

Foundations of Legal Research and Writing, © 1998, 2002, 2006, 2010 Delmar, Cengage Learning Fourth Edition ALL RIGHTS RESERVED. No part of this work covered by the copyright Carol M. Bast and Margie Hawkins herein may be reproduced, transmitted, stored, or used in any form or by any means graphic, electronic, or mechanical, including but not limited to Vice President, Career and Professional Editorial: photocopying, recording, scanning, digitizing, taping, Web distribution, Dave Garza information networks, or information storage and retrieval systems, except Director of Learning Solutions: Sandy Clark as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without the prior written permission of the publisher. Senior Acquisitions Editor: Shelley Esposito Managing Editor: Larry Main For product information and technology assistance, contact us at Senior Product Manager: Melissa Riveglia Cengage Learning Customer & Sales Support, 1-800-354-9706 Editorial Assistant: Lyss Zaza For permission to use material from this text or product, Vice President, Career and Professional submit all requests online at www.cengage.com/permissions. Marketing: Jennifer McAvey Further permissions questions can be emailed to [email protected] Marketing Director: Deborah Yarnell Marketing Manager: Erin Brennan Library of Congress Control Number: 2009921209 Marketing Coordinator: Jonathan Sheehan ISBN-13: 978-1-4390-5558-8 Production Director: Wendy Troeger Production Manager: Mark Bernard ISBN-10: 1-4390-5558-0 Senior Content Project Manager: Betty Dickson Senior Art Director: Joy Kocsis Delmar 5 Maxwell Drive Senior Director of Product Management for Career, Clifton Park, NY 12065-2919 Professional, and Languages: Tom Smith USA Production Technology Analyst: Thomas Stover Cengage Learning is a leading provider of customized learning solutions with offi ce locations around the globe, including Singapore, the United Kingdom, Australia, Mexico, Brazil, and Japan. Locate your local offi ce at: international.cengage.com/region Cengage Learning products are represented in Canada by Nelson Education, Ltd. To learn more about Delmar, visit www.cengage.com/delmar Purchase any of our products at your local college store or at our preferred online store www.ichapters.com Notice to the Reader Publisher does not warrant or guarantee any of the products described herein or perform any independent analysis in connection with any of the product information contained herein. Pub- lisher does not assume, and expressly disclaims, any obligation to obtain and include information other than that provided to it by the manufacturer. The reader is expressly warned to consider and adopt all safety precautions that might be indicated by the activities described herein and to avoid all potential hazards. By following the instructions contained herein, the reader willingly assumes all risks in connection with such instructions. The reader is notifi ed that this text is an educational tool, not a practice book. Since the law in constant change, no rule or statement of law in this book should be relied upon for any service to any client. The reader should always refer to standard legal sources for the current rule or law. If legal advice or other expert assistance is required, the services of the appropriate professional should be sought. The publisher makes no representations or warranties of any kind, including but not limited to, the warranties of fi tness for particular purpose or merchantability, nor are any such representations implied with respect to the material set forth herein, and the publisher takes no responsibility with respect to such material. The publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or part, from the readers’ use of, or reliance upon, this material. Printed in Canada 1 2 3 4 5 6 7 12 11 10 09

Contents in Brief Preface ◆ xvii Introduction ◆ xxiii CHAPTER 1 Law and Sources of Law ◆ 1 CHAPTER 2 Legal Reasoning and Analysis ◆ 17 CHAPTER 3 Secondary Sources and Finding Tools ◆ 43 CHAPTER 4 T e Judicial Branch and Cases ◆ 99 CHAPTER 5 P rimary Sources: Constitutions, Statutes, Court Rules, and Administrative Law ◆ 131 CHAPTER 6 Citators ◆ 189 CHAPTER 7 O verview of the Research Process and Ethical Considerations ◆ 219 CHAPTER 8 Computer-Assisted Legal Research ◆ 239 CHAPTER 9 Introduction to Legal Writing ◆ 259 CHAPTER 10 Fundamentals of Writing ◆ 281 CHAPTER 11 T ransmittal Letter, Client Opinion Letter, and E-Mail Correspondence ◆ 293 CHAPTER 12 Pleadings ◆ 309 CHAPTER 13 Law Offi ce Memo ◆ 329 CHAPTER 14 Memorandum of Law ◆ 353 CHAPTER 15 Appellate Brief ◆ 373 APPENDICES APPENDIX A Search and Seizure ◆ 399 APPENDIX B Locating and Citing to Cases ◆ 401 APPENDIX C Rules for Quotations and Short-Form Citations ◆ 411 APPENDIX D Mechanical Errors ◆ 421 APPENDIX E Problems ◆ 435 v

vi C ONTENTS IN BRIEF APPENDIX F Internet Technology ◆ 441 APPENDIX G Legal Research Starting Points and Web Search Tools ◆ 447 APPENDIX H Federal Law Web Resources ◆ 451 APPENDIX I State and Municipal Government Law Web Resources ◆ 453 APPENDIX J International Law Web Resources ◆ 455 APPENDIX K Cases ◆ 457 APPENDIX L Wiretapping Statutes ◆ 559 APPENDIX M Background Information on Search and Seizure ◆ 569 Glossary ◆ 575 Index ◆ 587

Contents Table of Cases ◆ xv Application of Roe v. Wade to a Later Case ◆ 19 Preface ◆ xvii At Least Two Sides to Every Problem ◆ 20 Judicial Opinions ◆ 22 Acknowledgments ◆ xxi Majority Opinion ◆ 22 About the Authors ◆ xxii Plurality Opinion ◆ 22 Introduction ◆ xxiii Concurring Opinion ◆ 22 Dissenting Opinion ◆ 23 CHAPTER 1 Per Curiam Opinion ◆ 23 Law and Sources of Law 1 Court Membership ◆ 23 Introduction ◆ 1 Mandatory and Persuasive Authority ◆ 24 T e American System of Law ◆ 1 Obiter Dictum ◆ 25 Our Common Law Heritage ◆ 1 Judicial Restraint and Judicial Activism ◆ 26 Civil Law ◆ 2 Legal Analysis of Statutory Law ◆ 27 Federalism ◆ 3 Legislative Intent ◆ 27 T e Supremacy Clause ◆ 6 T e Plain Meaning Rule ◆ 27 Our Tripartite System ◆ 6 Limitations on the Plain Meaning Rule ◆ 28 Interplay Among the T ree Branches of Government Aids to Statutory Interpretation ◆ 29 in Lawmaking ◆ 8 Strict Construction ◆ 29 Interplay Between the Legislative and Judicial Branches ◆ 8 Legislative History ◆ 30 T e Chief Executive ◆ 9 A Caveat on Statutory Interpretation ◆ 31 T e Judicial Branch ◆ 10 Legal Analysis of Constitutional Law ◆ 31 Originalism ◆ 32 Administrative Agencies ◆ 11 Modernism ◆ 33 Sources of Law ◆ 12 Primary Sources and Secondary Sources ◆ 13 Historical and Contemporary Literalism ◆ 34 Citation to Legal Sources ◆ 14 Democratic Reinforcement ◆ 35 Legal Publishing ◆ 14 T e Interpretation Process ◆ 35 Summary ◆ 15 Reasoning by Analogy and Deductive Key Terms ◆ 16 Reasoning ◆ 35 Exercises ◆ 16 Jennifer Weiss Illustrative Fact Pattern ◆ 36 Cyberlaw Exercises ◆ 16 Legal Analysis ◆ 36 Discussion Points ◆ 16 Deductive Reasoning ◆ 37 Reasoning by Analogy ◆ 38 CHAPTER 2 Summary ◆ 40 Legal Reasoning and Analysis 17 Key Terms ◆ 40 Introduction ◆ 17 Exercises ◆ 41 Doctrine of Stare Decisis ◆ 18 Cyberlaw Exercises ◆ 41 Roe v. Wade and the Doctrine of Stare Decisis ◆ 19 Discussion Points ◆ 42 vii

viii C ONTENTS Trial Court ◆ 100 CHAPTER 3 Appellate Court ◆ 102 Secondary Sources and Finding Tools 43 Federal Courts ◆ 103 Introduction ◆ 43 State Courts ◆ 105 Encyclopedias ◆ 43 Reading Cases ◆ 107 Caveat on Use of Legal Encyclopedias ◆ 45 For Whom Are Judicial Opinions Written? ◆ 107 Excerpts from a Legal Encyclopedia ◆ 46 Attorneys and Judges Read Judicial Opinions ◆ 107 Use of Legal Encyclopedias ◆ 46 T e Eff ect of Setting Precedent ◆ 108 Citation to Legal Encyclopedias ◆ 54 T e Format for a Reported Decision ◆ 108 American Law Reports ◆ 54 Format Preceding the Opinion ◆ 108 T e Structure of an ALR Annotation ◆ 56 T e Citation ◆ 108 Use of American Law Reports ◆ 61 T e Caption ◆ 108 Citation to American Law Reports ◆ 61 T e Syllabus ◆ 118 Attorney General Opinions ◆ 62 Citations to Attorneys General Opinions ◆ 64 Headnotes ◆ 118 Restatements of the Law ◆ 64 Authorship of the Opinion[s] and Attorneys Citations to Restatements ◆ 65 for the Parties ◆ 118 Treatises ◆ 65 Format of the Opinion ◆ 119 Citation to a Treatise ◆ 67 T e Facts ◆ 119 Legal Dictionaries ◆ 67 Procedure ◆ 119 Legal Directories ◆ 71 T e Issue ◆ 120 Formbooks ◆ 72 T e Discussion ◆ 120 Looseleaf Services ◆ 72 T e Holding ◆ 120 Legal Periodicals ◆ 73 Finding the Law ◆ 120 Law School Law Reviews ◆ 73 Evaluating Cases ◆ 121 Bar Association Periodicals ◆ 73 Briefi ng a Case ◆ 122 Non-Student-Edited Journals ◆ 76 Case Brief Format ◆ 123 Legal Newspapers and Newsletters ◆ 76 Case Brief for Brendlin ◆ 124 Legal Periodical Indexes ◆ 76 Summary ◆ 125 Digests ◆ 76 Key Terms ◆ 125 West Key Number System ◆ 79 Cyberlaw Exercises ◆ 126 Relationship Between Digests and Reporters ◆ 79 Legal Research Assignment—Briefi ng Cases ◆ 126 Development of Digest Abstracts ◆ 79 Legal Research Assignment—Case Law ◆ 127 Digest Page Format ◆ 85 Discussion Points ◆ 129 Types of Digests ◆ 85 Finding Relevant Material in Digests ◆ 86 CHAPTER 5 Using Digests to Find Cases ◆ 87 Primary Sources: Constitutions, Statutes, Tables of Cases, Defendant-Plaintiff Tables, and Words Court Rules, and Administrative Law 131 and Phrases Index ◆ 88 Introduction ◆ 131 Summary ◆ 88 Constitutions ◆ 131 Key Terms ◆ 89 Locating Constitutions ◆ 132 Cyberlaw Exercises ◆ 89 Citations for Constitutions ◆ 133 Legal Research Assignment—Legal Encyclopedias ◆ 89 Initiation of Constitutional Amendments ◆ 133 Legal Research Assignment—American Law Reports ◆ 91 State Constitutionalism and the New Federalism ◆ 134 Legal Research Assignment—Digests ◆ 94 Discussion Points ◆ 98 Statutes ◆ 134 T e Legislative Branch ◆ 134 Congress ◆ 135 CHAPTER 4 State Legislatures ◆ 138 The Judicial Branch and Cases 99 Publication of Statutes ◆ 140 Introduction ◆ 99 T e Judicial Branch ◆ 99 Slip Law ◆ 140 Jurisdiction ◆ 100 Session Laws ◆ 141

CONTENTS ix Statutory Code ◆ 142 Step T ree: Check Each Shepard’s Volume Identifi ed ◆ 204 Statutes Passed as an “Act” ◆ 143 Keycite ◆ 207 Annotated Code ◆ 143 Using Keycite for Cases ◆ 207 Statutory Research ◆ 144 Using Keycite for Statutes ◆ 215 Legislative History ◆ 145 Summary ◆ 215 Key Terms ◆ 216 Sample Pages of Wiretapping and Eavesdropping Cyberlaw Exercises ◆ 216 Statutes ◆ 145 Legal Research Assignment—Citators ◆ 216 Sample Pages of Wiretapping and Eavesdropping Discussion Points ◆ 218 Statutes ◆ 147 Citations for Statutes ◆ 159 Local Law ◆ 160 CHAPTER 7 Court Rules ◆ 160 Overview of the Research Process and Ethical Sample Page of Court Rules ◆ 161 Considerations 219 Researching Court Rules ◆ 163 Introduction ◆ 219 Locating Court Rules ◆ 163 George Peak Illustrative Fact Pattern ◆ 219 Local Court Rules ◆ 164 T e Eight Steps of Legal Research ◆ 220 Preliminary Considerations ◆ 221 Citations for Court Rules ◆ 164 Getting Organized ◆ 221 Administrative Law ◆ 165 Jurisdiction ◆ 224 Publication of Administrative Regulations ◆ 166 Currency ◆ 224 Sample Pages of Administrative Law ◆ 166 T ree Basic Approaches to Legal Research ◆ 224 Sample Pages of LSA and Federal Register ◆ 170 Overview Approach: Learning about the General Citations for Administrative Law ◆ 170 Topic ◆ 224 Summary ◆ 180 Topic Approach: Learning about the General Topic ◆ 224 Key Terms ◆ 180 Known Primary Source Approach: Starting from Cyberlaw Exercises ◆ 181 a Primary Source You Have ◆ 225 Legal Research Assignment—Constitutions ◆ 181 Legal Research Assignment—Statutes ◆ 182 Step One: Gathering Information ◆ 225 Legal Research Assignment—Court Rules ◆ 184 Step Two: Identifying Key Terms ◆ 226 Legal Research Assignment—Administrative Law ◆ 186 Identifi cation of Key Terms: Parties, Places, Acts Discussion Points ◆ 187 or Omissions, Defense, and Relief ◆ 226 Identifi cation of Key Terms: T ings, Acts, Persons, and Places ◆ 227 CHAPTER 6 Parties or Persons ◆ 227 Citators 189 Place ◆ 227 Introduction ◆ 189 Note on Computer-Assisted Citators ◆ 189 Objects or T ings ◆ 227 Citators ◆ 190 Acts or Omissions Forming the Basis of the Action Shepardizing Procedure ◆ 192 or Issue ◆ 227 Getting Organized ◆ 192 Defense ◆ 227 Step One: Locate the Correct Set of Shepard’s and Be Relief ◆ 227 Ready to Record the Results ◆ 192 Key Terms ◆ 227 Step Two: Determine which Shepard’s Volume to Use ◆ 194 Identifi cation of Key Terms by Using Indexes Step T ree: Check Each Shepard’s Volume Identifi ed ◆ 194 and Tables of Contents: T e Cartwheel ◆ 228 Abbreviations ◆ 194 Step T ree: Learn More About the Area of Law You are Shepardizing ◆ 198 Researching through Second Authority ◆ 229 Step Four: Locating Primary Authority ◆ 230 Case Names Citator ◆ 202 Step Five: Locating Other Primary Authority ◆ 231 Statutes ◆ 203 Step Six: Reviewing Found Sources and Updating ◆ 233 Shepardizing Statutes ◆ 203 Step Seven: Deciding Whether You are Finished Step One: Locate the Correct Set of Shepard’s and be with Your Research ◆ 234 Ready to Record the Results ◆ 203 Step Eight: Evaluate What You Have Found Step Two: Determine which Shepard’s Volumes and Determine the Answer to Your Research to Use ◆ 204 Question ◆ 234

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Foundations of legal research and writing.

The fourth edition of Foundations of Legal Research and Writing gives equal weight to research and writing making it a perfect resource to be used for both legal research and legal writing classes. An entire chapter providing a detailed explanation of legal reasoning and analysis has been added. Each of the research chapters ends with legal research assignments, allowing the professor to cut down on preparation time. Cyberlaw exercises are...

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The fourth edition of Foundations of Legal Research and Writing gives equal weight to research and writing making it a perfect resource to be used for both legal research and legal writing classes. An entire chapter providing a detailed explanation of legal reasoning and analysis has been added. Each of the research chapters ends with legal research assignments, allowing the professor to cut down on preparation time. Cyberlaw exercises are included at the end of most of the chapters, requiring students to perform computer-assisted legal research.

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This exciting textbook introduces the basic tenets and methodologies of empirical legal research. Explaining how to initiate and conduct empirical research projects, how to evaluate the methods used and how to analyze and engage with the results, Kees van den Bos provides a vibrant and reliable primer for students and practitioners looking to engage actively in legal research.

Empirical Legal Research by Frans L. Leeuw; R. Jennissen; Hans Schmeets (2016)

Empirical Legal Research describes how to investigate the roles of legislation, regulation, legal policies and other legal arrangements at play in society. It is invaluable as a guide to legal scholars, practitioners and students on how to do empirical legal research, covering history, methods, evidence, growth of knowledge and links with normativity. This multidisciplinary approach combines insights and approaches from different social sciences, evaluation studies, Big Data analytics and empirically informed ethics.

An introduction to empirical legal research by Lee Epstein & Andrew D. Martin (2014)

An Introduction to Empirical Legal Research introduces that methodology in a legal context, explaining how empirical analysis can inform legal arguments; how lawyers can set about framing empirical questions, conducting empirical research, analyzing data, and presenting or evaluating the results. The fundamentals of understanding quantitative and qualitative data, statistical models, and the structure of empirical arguments are explained in a way accessible to lawyers with or without formal training in statistics.

Research methods for law by Mike McConville and Wing Hong Chui (editors) (2017)

This text introduces undergraduates and postgraduate students to available methods of research - legalistic, empirical, comparative, and theoretical - drawing on actual research projects as examples.

Foundations of Legal Research

Course description.

Foundations of Legal Research is a one-credit practical skills course that builds on basic research skills learned in the first year Legal Writing program and emphasizes legal research as an integrated part of the practice of law. The course will integrate traditional print resources with online database resources and “free” Internet resources, with emphasis on locating resources efficiently and cost-effectively.

Course Offerings 2024-2025

Course offerings 2023-2024, course offerings 2022-2023.