Intelligence Law School - Course 1: Lesson 2.4.1 Basic Three-Step Legal Research Process [HTML-Only]


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LESSON 2: PRIMARY LEGAL AUTHORITY IN THE FEDERAL SYSTEM


2.4 Judicial Decisions


2.4.1 Basic Three-Step Legal Research Process


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Annotated Lecture Transcript

2.4.1 Basic Three-Step Legal Research Process

2.4.1.1 Step 1: Start with the Blackletter Text of the Primary Legal Authority

So the 3 blackletter sources of primary legal authority are:

1)      The Constitution;

2)     Statutes; and

3)     Administrative regulations.

 

These 3 blackletter sources should always be your starting place when learning or researching the law.

That’s how judges operate and so should you.

 

Whenever you’re presented with a legal problem in practice, your first step should be finding and studying the blackletter text of the primary legal authority governing the subject matter you’re dealing with.

Once you’ve read the text of the law, you should have a solid understanding of what the law generally requires.

 

2.4.1.2 Step 2: Research Relevant Judicial Decisions

The problem is that the text of primary authority is often ambiguous.

This is why the second step in your research process will be to research judicial decisions.

After you’ve read the blackletter law, you’ll have to research all applicable case law deciding legal issues relevant to your topic.

Even if you think the blackletter text of the law seems clear on its face as to how it should apply in the real world, you’ll still need to research all the applicable case law to make sure.

 

2.4.1.3 Step 3: Research Secondary Authority to Flesh out Your Understanding of the Relevant Law

The third and final step in your basic research project will be to flesh out your understanding of the law with secondary sources.

The reason law is considered to be such a complicated topic is because there is an endless supply of nuances that shape how judges apply blackletter legal rules to actual disputes in the real world.

It’s always a good idea to study a few secondary sources just to make sure there aren’t any hidden exceptions or nuanced interpretations that judges have added to the plaintext of the statute to avoid injustice when applying the law to resolve legal disputes between litigants.[1]

 

The problem is that reading every single one of the thousands of judicial opinions decided on any given legal topic would take even the toughest lawyer several lifetimes to finish.

That’s why God invented secondary sources.[2]

Treatises, ALR Annotations, Hornbooks, Restatements, and countless other outlines provide an excellent way to get a condensed summary of the law quickly.

Over the years, law professors and lawyers have spent countless hours producing a summary of almost every legal question imaginable.

And they usually have condensed it down into a concise explanation you can read in a few minutes.

Secondary sources don’t represent law in their own right, so you won’t cite to them very often in official legal documents, but they’re a great reference tool for when you’re home alone studying.

 

Still, despite the usefulness of secondary sources, the only interpretations of a law that represent primary legal authority are judicial decisions.

That’s what you’ll cite to in official legal documents or any briefs you submit to courts.

You can cite to secondary sources occasionally, but do so sparingly.

 

Footnotes

[1] These nuances develop because skilled lawyers craft brilliant rationales for modifying the application of legal rules whenever a modification is in the interests of their client. When the case law seems to be against your client, your best approach is to distinguish any adverse precedent from the facts or legal questions presented in your unique situation. Stare decisis is a flexible policy rather than a concrete obstacle that bars the evolution of legal norms. While courts will always lean toward upholding binding precedent that appears to be on point, there is almost always room for a lawyer to argue that the adverse precedent in question shouldn’t apply to his or her case based on the factual differences between the present and past disputes. See generally 5 Am Jur 2d Appellate Review § 560.

[2] It was either God or Blackstone who invented the hornbook. There was insufficient source material to determine one way or the other. The ALI notwithstanding, there is also a strong case for Moses as the true inventer of the Restatement, at least for those who consider the Ten Commandments to be a blackletter codification of devine law.

 


© 2012 David Alan Jordan. All rights reserved.