It’s open memo season at law schools across the country, a time when 1Ls are set free in the wilderness of the law library and the Internet, armed with little more than passwords for Westlaw and Lexis – and not enough time. If you’re facing this challenge, here are some tips for getting started.
Understand what jurisdiction you’re in.
More precisely, understand which jurisdiction’s law you should be researching. This may be an easy question; perhaps you’ve been told to research a claim under New York law, or perhaps you’re dealing with a federal statute as applied in the 7th Circuit. This can be a subtle question, however, if your assignment is set in federal court but involves a state law cause of action. If you have any doubt, ask.
Understand the difference between mandatory and persuasive authority.
Mandatory authority is binding in your jurisdiction. Lower courts must follow the rulings of superior courts in the same jurisdiction. If you’re dealing with a state law cause of action, decisions of that state’s appellate courts bind the state’s trial courts. If you’re dealing with a federal cause of action, decisions of a circuit court of appeals bind the district courts within the circuit. Trial court decisions – state or federal – are not binding on anyone; they’re persuasive. Similarly, opinions from one jurisdiction can be used persuasively in another jurisdiction.
Understand the difference between primary and secondary sources.
A primary source comes from a governmental body that has the authority to make law. These include Congress (federal statutes), state legislatures (state statutes), and courts (judicial opinions). Secondary sources come from private entities that collect, organize, or comment on the law. Secondary sources include legal encyclopedias, ALR, treatises, and law reviews. Primary sources are the law; secondary sources describe the law and/or help you find it. Do not cite a secondary source in your memo.
Start your research with secondary sources.
Many students ignore this advice, perhaps because “secondary” sounds less important or less valuable than “primary.” Don’t make this mistake. As a 1L, you have to admit you don’t know very much law. It is extremely likely that your open memo assignment will require you to research an unfamiliar topic. It might involve a federal statute, or a regulatory issue, or a tort or contracts claim you haven’t studied in class. A secondary source can provide valuable background information to help you understand the lay of the land. It’s true that most practicing attorneys don’t start with secondary sources, but they have something you don’t: expertise. Five years from now, if you’re an associate practicing employment discrimination law, you won’t have to start with a treatise to understand the prima facie case of disparate treatment under Title VII. You’ll be an expert. But today, you probably have no idea what that phrase means. A secondary source can tell you, quickly and accurately.
Find “one good case.”
In addition to explaining the basics of your issue, a secondary source can lead you to research gold: one good case. Like all legal materials, secondary sources contain citations to support their assertions. These citations can lead you efficiently to the primary sources you need.
A “good case” is one that articulates the applicable rule of law and applies it to facts analogous to yours. While the best case will be one that is mandatory authority in your jurisdiction, any case that contains the rule you’re looking for is “good.” Secondary sources commonly contain good cases because they often cite the most significant, fundamental case(s) in each area of law, and many collect cases from all U.S. jurisdictions.
Use the “good case” as a key. One case can unlock most of what you need, through several methods.
- Shepard’s/Key Cite. Maybe you found a good case from 1995. Use Shepard’s (Lexis), Key Cite (Westlaw), or similar updating methods to find more recent cases that cite your case for the relevant principle — preferably in your jurisdiction.
- Headnotes (West). Suppose your good case comes from the 9th Circuit, but you need law from the 2nd Identify the relevant headnotes in your good case and search for them in the 2nd Circuit, online or using a paper digest. Or maybe your good case is from the New Jersey Superior Court, but you need to research the same issue under Oregon law. No problem: search for the headnotes in Oregon.
- While Shepardizing looks forward in time from your case, disaggregation looks back by assessing the sources cited in your case. What authorities does your case rely on? Maybe you didn’t know there was a statute involved, or an underlying Supreme Court opinion, or a factually analogous case from another jurisdiction. Analyzing the sources in your good case will add to your understanding of the law.
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