Gilbert Law Summary On Legal Re - Honigsberg, Peter

I
Legal Research, Writing & Analy sis
by
PETER JAN HONIGSBERG

University of San Francisco
EDITH HO
University of San Francisco
Twelfth Edition
Mat #41557538
II
The publisher is not engaged in rendering legal or other professional advice, and this
publication is not a substitute for the advice of an attorney. If y ou require legal or
other expert advice, y ou should seek the services of a competent attorney or other
professional.
Gilbert Law Summaries is a trademark registered in the U.S. Patent and Trademark
Office
© 2011 BARBRI, a Thomson Reuters business, and Peter Jan Honigsberg

© 2014 Peter Jan Honigsberg
West, West Academic Publishing, and West Academic are trademarks of West
Publishing Corporation, used under license.
Printed in the United States of America
ISBN: 978-0-314-29097-7
III
Summary of Contents
INTRODUCTION AND APPROACH
Chapter One: Definitions

A. Language of the Law
B. Some Specific Definitions
Chapter Two: Understanding Our Legal System

A. Court Systems
B. Precedent—Persuasive Authority
C. Things to Keep in Mind for Legal Research
Chapter Three: Cases

A. The Reporting System
B. Reporters of Federal Cases
C. Reporters of State Cases
D. Headnotes and Summaries
E. Other Case Reports
F. Citations and Case Finding
Chapter Four: Statutes, Constitutions, Legislative History, and Treaties

A. In General
B. Statutes
C. Constitutions
D. Legislative Intent—Legislative History
E. Treaties
Chapter Five: Secondary Sources

A. In General
B. Specific Secondary Sources
Chapter Six: Administrative Agencies—Looseleaf Materials

A. Introduction
B. Agency Action
C. Researching Agencies and Administrative Law
Chapter Seven: Keeping Up to Date—Using Shepard’s and KeyCite

A. Introduction
B. Updating Online—Shepard’s and KeyCite
C. Shepard’s Citations—Using the Books
D. Other Sources and Methods
Chapter Eight: Online Legal Research

A. Introduction
B. LexisNexis and Lexis Advance
C. Westlaw and WestlawNext
D. Governmental and Other Free Online Sources
E. Other Online Subscription Services
IV
Chapter Nine: Reading and Understanding a Case

A. Introduction to Case Analysis
B. Sample Brief
Chapter Ten: Searching Through Legal Sources

A. Introduction
B. Methodology
Chapter Eleven: Legal Writing and Analysis—Basic Guidelines

A. Essentials of Good Legal Writing and Analysis
B. Using an “IRAC” Approach to Legal Analysis
Chapter Twelve: Organizing the Fruits of Your Research

A. Using the Honigsberg Grid
Chapter Thirteen: Writing a Memorandum of Law

A. An Objective Piece
B. Sample Memorandum of Law
Chapter Fourteen: Writing a Memorandum of Points and Authorities or Brief

A. A Persuasive Piece
B. Sample Memoranda of Points and Authorities
Chapter Fifteen: Writing an Opinion or Client Letter

B. Sample Client Letter
Appendix A—Review of Resources
Addenda—Sample Pages
INDEX
V
Capsule Summary

1. In General
2. Statutory Language
1. Civil and Criminal
2. Substance and Procedure
3. Facts and Law
4. Common Law
5. Equity
Chapter Two: Understanding Our Legal System

A. Court Systems
1. In General
a. Original Jurisdiction
b. Trial Courts
c. Appellate Courts
d. Supreme or High Court
2. Federal Court System
a. Federal District Court
b. Federal Court of Appeals
c. United States Supreme Court
d. Special Federal Courts
3. State Court System
a. Trial Courts
b. Small Claims Court
c. Appellate Courts.
e. Reminder—Court Names Can Be Confusing
1. Stare Decisis
a. Illustration
b. Which Court Bound by Precedent
2. Persuasive Authority
1. In General
2. State and/or Federal Law?
3. Which Branch(es) of Government?

1. In General
2. Official and Unofficial Reports
3. National Reporter System
4. Citations
1. Supreme Court Decisions
a. United States Reports
b. Supreme Court Reporter
VI
c. United States Supreme Court Reports, Lawyers’

Edition
d. United States Law Week
e. Computerized Databases
f. Advance Sheets
2. Federal Appellate Court Decisions
a. Federal Reporter
b. Federal Appendix
c. Other Sources
3. Federal District Court Decisions
a. Federal Supplement
b. Other Sources
4. Specialty Court Decisions
5. Bankruptcy Decisions
6. Federal Rules
7. Other Special Subject Reporters
1. West Regional and State Reporters
2. Official Reports
3. Advance Sheets
1. West Headnotes and Key Number System
2. Official Reports’ Headnotes
1. Specialized Editions of Cases
1. Using Citations to Find a Case
2. Parallel Citations
3. Finding a Case Without a Citation
4. Now What?

A. In General
1. Introduction
B. Statutes
1. In General
2. Statutes and Codes
3. Federal Codes—Annotated and Unannotated
a. United States Code Annotated (“U.S.C.A.”)
b. United States Code Service (“U.S.C.S.”)
4. Supplementing the Federal Codes
a. Slip laws—United States Statutes at Large
b. United States Code—Congressional and
Administrative News
c. United States Code Service, Lawyers Edition,
Advance Sheets
d. Commerce Clearing House Congressional Index
e. LexisNexis and Westlaw
f. Internet Sources
g. Check with Your Congressmember
h. United States Statutes at Large
5. Federal Rules and Court Guidelines
6. Researching the Federal Codes
a. Online Method
b. Index Method
c. Topic Method
d. Popular Name Method
e. Cross-references
7. State Codes
8. Researching the State Codes
VII
9. Municipal Ordinances
10. Both Federal and State Law May Apply to Your Problem
11. Citing a Statute
a. Federal Statutes
b. State Statutes
C. Constitutions
1. In General
2. Researching the Federal Constitution
a. United States Code Annotated and United States
Code Service
b. Digests
3. Researching State Constitutions
1. In General
2. Sources of Federal Legislative History
a. Commerce Clearing House Congressional Index
b. Congressional Information Service (“CIS”)
c. Daily Report for Executives
d. United States Code—Congressional and
Administrative News
e. Congressional Record
f. Sources of Compiled Legislative Histories
3. Tracking Down the Materials
4. Sources of State Legislative History
E. Treaties
1. Sources of Information

A. In General
1. Introduction
1. Treatises
a. Updating Treatises
b. Hornbooks
c. Gilbert Law Summaries
2. Legal Encyclopedias
a. Corpus Juris Secundum (“C.J.S.”)
b. American Jurisprudence (“Am. Jur.”) 2d
c. State Ency clopedias
d. Martindale-Hubbell Law Digest
3. American Law Reports (“A.L.R.”)
4. Law Reviews and Periodicals
a. LegalTrac, Legal Resource Index and Current Law
Index
b. Index to Legal Periodicals
c. Other Indexes
5. Sources of Recent Scholarship
a. Social Science Research Network (“SSRN”)
b. Online Publications
c. Legal Blogs
6. Daily Law Journals
7. Digests
8. Looseleaf Materials
9. Continuing Legal Education Materials
10. Practice and Procedure Books
11. Form Books
12. Attorney General Opinions
13. Restatements
14. Uniform State Laws
VIII

A. Introduction
1. In General
2. Agency Powers
a. Formal Functions
B. Agency Action
1. Regulations
2. Adjudication
1. Introduction
2. Federal Materials
a. Code of Federal Regulations (“C.F.R.”)
b. Federal Register (“Fed. Reg.”)
(1) Reminder
c. Federal Agency Decisions
d. Looseleaf Services and Materials
(1) In General
(2) Commerce Clearing House
(a) Indexes
(3) Bureau of National Affairs
(4) Online Sources
(5) State Looseleafs
e. Other Sources of Administrative Agency
Information and Law
(1) Agency Publications
(2) United States Government Manual
(3) Federal Yellow Book; Congressional Yellow
Book
(4) Secondary Sources
(5) Shepard’s Citations
f. Presidential Documents
3. State Materials
a. Regulations
b. Decisions
c. State Agencies and Personnel
4. County and Municipal Agencies
Chapter Seven: Keeping Up to Date—Using Shepard’s and KeyCite

A. Introduction
1. Changing Body of Law
2. Updating Legal Materials
1. Using Online Citators
2. Online vs. Print Versions
3. Using Shepard’s on LexisNexis
4. Using KeyCite on Westlaw
1. Shepard’s Case Citations
a. Shepardizing a Case
(1) Supplements
b. Using Shepard’s Citations for Research
(1) Reminder
2. Shepard’s Statute Citations
3. Other Shepard’s Citations
a. Shepard’s United States Administrative Citations
b. Shepard’s Code of Federal Regulations Citations
c. Law Reviews
d. Specialty Editions
e. Popular Name Tables
IX
4. Updating Shepard’s
1. West’s Blue and White Books
2. Looseleaf Services
3. Websites and Phone Calls
4. State Updating Services

A. Introduction
1. Where to Start
2. Online Research Systems
1. Contents
a. Federal Sources
b. State Sources
c. International Sources
d. Other Sources
2. Searching
3. Keeping Current
4. Other Databases
1. Contents
2. Searching
3. Keeping Current
4. Other Databases
5. WestlawNext
1. In General
2. Findlaw
3. WashLaw Web
4. Legal Information Institute
5. THOMAS
6. GPO Federal Digital System
7. Guide to Law Online
8. NCCUSL
9. Google Scholar
10. Lexis Web
11. Public Library of Law
12. The Fastcase App
13. Explore the Internet
1. In General
2. Loislaw
3. Versus Law
4. HeinOnline
5. Bloomberg Law
6. Fastcase

1. In General
2. Briefing Cases
a. Suggested Format
b. Name and Citation (Including Year)
c. Court
d. Judicial History
e. Facts
f. Issue(s)
g. Holding(s)
h. Reasoning
i. Decision
j. Concurring Opinion(s)
k. Dissenting Opinion(s)
3. Reminder—Read Cases Thoroughly
B. Sample Brief
1. Example Case
2. Brief of Example Case

A. Introduction
1. Possible Next Steps for Research
2. Sourcebooks
3. Online Sources
B. Methodology
1. Choosing Keywords for Your Index or Online Search
a. Sample Problem
(1) People
(2) Subject Matter
(3) Legal Theory
(4) Remedy Sought
b. Some Pointers When Using an Index or
Conducting an Online Search
2. Using a Table of Contents
3. Using a Table of Cases
Chapter Eleven: Legal Writing and Analysis—Basic Guidelines

1. Introduction
2. Organization
3. Outlining
a. Comment
b. Outlining Process
4. Keep to the Essentials
5. Keep Sentences Short
6. Highlight Important Points
7. Keep the Reader in Mind
8. Write for an Uninformed Reader
9. Choose Simple, Straightforward Words
10. Use the Active Voice
11. Be Subtle
12. Keep to the Topic and Answer the Q uestion
1. “IRAC”
a. Issue (“I”)
b. Rule (“R”)
c. Application or Analy sis (“A”)
d. Conclusion (“C”)
2. IRAC Every Issue
3. Modification of IRAC Approach
4. Using IRAC to Outline
5. Example of Legal Analysis Using the IRAC Approach

1. The Honigsberg Grid
2. Sample Grid
XI

1. Memorandum of Law
2. Format

1. Memorandum of Points and Authorities or Brief
2. Format
a. Table of Contents
b. Table of Authorities
c. Jurisdiction
d. Questions Presented or Issues
e. Statement of the Case
f. Statement of Facts
g. Summary of Argument or Brief Answer
h. Argument Heading
i. Argument
j. Conclusion

1. An Opinion or Client Letter
2. Format
a. Introduction
b. Statement of Facts
c. Explanation of Law and Application to Facts
d. Conclusion/Recommendation
e. Closing
INDEX
XIII
Introduction and Approach
Times have changed. Until recently, the deans and administrators of law schools
generally believed that they did not need to train their students in practical lawy ering
skills. Law school curricula were designed to teach students the substantive law and
“how to think as a lawy er.” Students could learn the skills necessary for day -to-day
practice outside the classroom.
However, in the past decade, law school administrators have been reevaluating the
needs of law students and have begun instituting more practice-oriented programs.
The law faculties have come to realize that law schools have an obligation to
effectively instruct their students in basic lawy ering skills, including: (i) researching
and drafting objective writing pieces such as a memorandum of law or client letter;
(ii) researching and drafting persuasive writing pieces such as a memorandum of
points and authorities, brief in support of a motion, demand or negotiation letter, trial
brief, or appellate brief; and (iii) presenting an oral argument before a judge or jury.
In reassessing their law school curricula, many law faculties have upgraded their
legal research and legal writing classes by adding more serious writing exercises and
offering more oral presentation programs. Many of these courses are now given
equal unit weight with such basic building blocks as contracts and torts.
Law schools have also supplemented their basic research, writing, and analy sis
courses with more advanced practical classes such as those in client preparation and
counseling, mediation and negotiation, trial litigation, and appellate advocacy. Clinical
courses in family law, criminal law, environmental law, immigrant rights and refugee
law, and civil liberties and civil rights are offered in many schools. Many law
teachers have also adopted more creative teaching methods utilizing computers and
audiovisual tools.
This book was designed in recognition of the growing concern among law schools for
teaching legal research, writing, and analy sis skills. The first part of the book covers
the basic legal research skills. It focuses on how to research primary sources such as
cases, statutes, and regulations; on how legal ency clopedias, digests, looseleaf
materials, form books, law reviews, treatises, and other secondary sources are used;
and on how to Shepardize or Key Cite a case. Then it expands on the use of computers
and the Internet in researching both primary and secondary legal sources.
The writing and analy sis skills section begins with chapter XI. You will find chapters
discussing how to brief a case, how to use legal indexes and tables of contents most
efficiently in searching through legal sourcebooks, and how to organize the fruits of
y our research in a sy stemized way using the Honigsberg Grid. We have also
provided suggestions for writing a clear, well-presented paper—a paper that a grader,
lawy er, or judge would appreciate reading. Chapters XIII and XIV present formats
for analy tical and persuasive writing pieces and provide examples of each.
We trust that y ou will find this book a useful contribution to y our understanding and
development of basic legal research and legal writing skills.
XV
Legal Research, Writing & Analy sis
Twelfth Edition
1
Chapter One:
Definitions
CONTENTS
1. In General
When learning a new discipline, y ou must familiarize y ourself with its

particular terms, its jargon. Law is no exception. The profession has
created a set of words and phrases which frequently my stify the lay person
and the first-y ear law student. In this chapter we will explain a few of the
basic terms with which y ou must be familiar if y ou are going to do legal
research. Terms applicable to the material in this book will be defined in
context. For other legal terms, y ou can refer to various law dictionaries,
such as Black’s Law Dictionary, Gilbert Pocket Size Law Dictionary, or one
of several law dictionaries for lay persons. A multivolume set known as
Words and Phrases sets forth, more elaborately, various legal terms as
defined by the courts.
2. Statutory Language
If an unfamiliar word appears in a statute, be sure to check the statute itself.

Terms are often defined in the first part of a statute.
1. Civil and Criminal
Cases brought in court are either civil or criminal. If there is a possibility of

jail or imprisonment, the action is most likely criminal. (In certain situations,
however, people can be civilly jailed for refusing to answer questions
directed to them by a court or legislature. This is known as civil contempt.)
Criminal actions are brought by the state or the federal government against
someone. The set of statutes defining the crimes and penalties is
commonly known as the criminal or penal code. (A code is a collection of
statutes arranged by subject.)
Civil law covers actions between private parties, such as a suit against the
person who caused a car accident, or one corporation suing another for
stealing its trade secrets. The government may also be a party to a civil
suit. For example, the federal government may bring an antitrust action
against a large multinational corporation, or the state government may sue
a chemical company for polluting the rivers; a person may sue the federal
government for not releasing all the information required under the
Freedom of Information Act or sue the state for discharging her illegally
from her civil service job.
2. Substance and Procedure
If a landlord refuses to repair the falling plaster from the ceiling, he is

violating the substantive law. So is the doctor who refuses to release a
patient who say s she wishes to leave the hospital, or the storeowner who
“baits” by an advertisement and then “switches” by offering a more
expensive item when the customer is in the store. Substantive law is the law
that defines the rights and duties of people. It is “the law” as we usually
think of it. When we say someone “broke the law,” we are probably
thinking of substantive law.
If y ou want to sue a person, y ou must follow certain rules; y ou must bring

y our suit in a certain court, file certain papers, properly notify the other
party, and present y our evidence in court following certain standards. In
court, y ou and y our opponent may have rights to an attorney and a jury
trial. All these rules are procedural. Procedural law thus includes court
procedure and guarantees both plaintiff and defendant their rights to a fair
and proper hearing under the Constitution. All civil and criminal cases
include both procedural and substantive law.
3. Facts and Law
A case arises out of facts. Someone trips on a loose step in a building.

Another person buy s a car that turns out to be a “lemon.” A third person is
caught robbing a bank.
At trial, whether civil or criminal, both sides present their evidence, and the
jury (or judge in a nonjury trial) then determines the facts: what really
happened; who is telling the truth; is there enough evidence to substantiate
the wrongdoing? In civil cases y ou need a “preponderance of the
evidence” to win. To convict in criminal cases, the government must
present evidence “bey ond a reasonable doubt”—a higher degree of proof
than in civil cases.
The jury decides only the facts of the case. When it reaches its decision
(its “verdict”), the jury ’s job is done. The trial judge supervises the trial.
Throughout, she applies the appropriate principles of law to the conduct of
the trial, the presentation of the evidence, and the finding of the facts.
(Where the parties decide not to have a jury, the trial judge will also
determine the facts.)
When all the evidence has been presented, the judge will direct the jury on
the law applicable to the case. The judge’s directions are known as “jury
instructions.” For example, the defendant in a murder case may argue that
the killing was in self-defense. The judge will explain the law of self-
defense and then instruct the jury to decide whether the defendant was so
justified under the circumstances. The same procedure follows in a civil
case. For example, in a paternity case, the judge will decide what evidence
is admissible for the jury to consider in determining whether the defendant
is the father.
If one party is dissatisfied with the judgment in the trial court, she can
appeal. But the person appeals on “questions of law,” not questions of fact.
The appellant claims that the judge erred in apply ing certain points of law
during the trial. The appellant does not challenge the findings of the jury ;
she only asks the appeals court to review the trial judge’s application of the
law. (There appears to be an exception—although it, too, is actually a
question of law. An appeal can be brought on the ground that no jury could
have rationally reached the verdict this jury did; that is, there was not
enough evidence to support the verdict.)
Occasionally, a judge will not even allow a trial on the plaintiff ’s case. This
will happen when the judge decides that even if the plaintiff proved all the
claims he is making, there is no law to give him relief. For example, when
a family brought suit against a television station alleging that the violence
shown in a television movie caused some y ouths to attack their daughter in
a similar way, the court dismissed the case, say ing the family had no
“cause of action.” In that situation, the plaintiffs appealed the judge’s
refusal to try the case. If the appellate court had decided that there was law
to support the plaintiffs’ case, the plaintiffs would then have gone back to the
trial court to prove their case.
4. Common Law
“Common law” has two definitions. One refers to the law—the court
decisions and customs—of England at the time of the American
Revolution. When we became a nation, we adopted English common law,
including its parliamentary acts, and recognized it as part of our own
organic law. The other definition of common law is the collection of court
decisions—in contrast to statutory law, the acts passed by the legislatures.
5. Equity
Equity dates back to the old equity courts of England, which provided
remedies that were not available in the rigid common law courts. Equity
courts were considered the courts of fairness, of justness. In the United
States, courts of equity were integrated with the regular law courts. Judges
thus can provide remedies of both law and equity. When courts speak of
“equitable relief,” they are referring to such court remedies as injunctions
(stopping someone from doing, or requiring someone to do, some act),
equitable rescission of a contract (annulling a contract and returning the
parties to their positions before
they entered into the contract), and similar means of relief that were not
provided by the common law courts in England.
5
Chapter Two:
Understanding Our Legal Sy stem
CONTENTS
A. Court Systems
A. Court Systems
1. In General
The court sy stem, whether state or federal, follows a general pattern.

There is a trial court, an appellate or appeals court, and a supreme or high
court. (See chart, infra.)
a. Original Jurisdiction
Jurisdiction is the authority a court has over a case and the people
and property involved. The court that first hears the case has
“original” jurisdiction. This is usually the trial court. The courts
of appeal and supreme courts have mostly “appellate”
jurisdiction. Some states permit certain trial court judges (those
with the broadest jurisdiction in each county ) to hear appeals
from limited jurisdiction trial courts such as municipal or justice
courts. These judges then have both original and appellate
jurisdiction.
An appellate or supreme court may also have some original

jurisdiction. The Supreme Court of the United States, for
example, may directly hear cases between states. Thus, two
states arguing over a border dispute could go straight to the
United States Supreme Court for a decision, rather than filing
their claims in the federal trial court. (However, the Supreme
Court will probably first send the case to a referee for a finding
of fact.)
b. Trial Courts
The trial court determines the facts of the case. In a criminal

case this means determining whether the defendant is guilty. In a
civil case it means determining what actually happened between
the parties. After the facts are found by a jury or by the judge
acting alone, the judge applies the law to the facts. Usually the
parties decide whether to have a jury trial, although in certain
cases the right is not available.
c. Appellate Courts
The losing party in the trial court may appeal to the appellate
court. Occasionally, both parties will be dissatisfied with the
decision and both will appeal. For example, a jury in northern
California awarded a woman a multimillion-dollar verdict
against a law firm for sexual harassment. The judge reduced the
amount of the verdict. Both parties had the right to appeal: the
law firm for losing the case, the woman for having her jury -
awarded amount reduced.
Every one has the right to request one appeal (except perhaps in
small claims court; see infra, p. 10). The appeal is only on
questions of law, not of fact. The facts have been established in
the trial court, and the question for the appellate court is whether
the trial judge applied the proper legal principles to the
presentation of the evidence or to the facts found. For example,
did the trial judge give the proper jury instructions?
The supreme or high court is a higher appellate court. It reviews

the intermediate appellate court decision, again considering
whether the trial court applied the proper principles of law to the
case. In most instances, the supreme court can decide which
cases it wishes to hear. The court will usually limit itself to cases
involving important or newly developing principles of law, cases
involving the interpretation of the state or federal Constitution,
and cases resolving conflicts between different intermediate
appellate courts deciding similar issues differently. In some
states,
7
the supreme court may take an appeal directly from the trial
court, by passing the intermediate court. This usually occurs
when the case is significant, raising an important new question of
law.
In this part of the chapter, we will describe the federal court

sy stem and then explain some of the variations to be found in the
state court sy stems. You should have no difficulty understanding
y our own state court sy stem once y ou understand the basic
procedure each sy stem must follow.
2. Federal Court System
a. Federal District Court
The district court is the trial court in the federal court sy stem.
There is at least one district court in each state, several in the
more populous states. For example, New York has four district
courts: one for the southern district (which covers New York
City ), and one each for the eastern, northern, and western
districts of the state. California also has four district courts, while
Vermont and Utah each have only one. Puerto Rico also has a
district court.
More than one judge may sit on a federal district court. Nevada
has only one district court but has five district court judges. The
district court for the Northern District of California has more than
20 judges.
b. Federal Court of Appeals
The party who loses in the district court may appeal the decision
to the federal appellate court, the court of appeals. There are 13
federal courts of appeals. Each is responsible for hearing appeals
from the district courts under its jurisdiction. Necessarily, these
courts cross state lines (unlike the district courts). Thus, the Court
of Appeals for the First Circuit hears appeals from four New
England states plus Puerto Rico, while the Second Circuit Court
supervises New York, Connecticut, and Vermont. The Court of
Appeals for the District of Columbia Circuit takes cases from
only one district court—the federal district court in Washington,
D.C. Most of the government’s cases are brought in the Federal
Circuit, also located in Washington, D.C.
There are any where from six to 28 judges on a court of appeals

(some courts obviously have larger caseloads). The judges
usually divide into groups of three to hear appeals; if the entire
court or a substantial portion of it sits on the case, the case is
heard “en banc.” Often, a district court judge will sit with two
appeals judges to hear a case. The chief judge of the circuit
court assigns the judges to a case, usually one of the three judges
being from the same state as where the case originated.
A decision by the court of appeals is “precedent,” that is,

“binding” on all district courts in the circuit. But it is only
“persuasive” to district courts outside the circuit and to other
courts of appeal. (See infra, pp. 12–13.)
8
9
c. United States Supreme Court
The United States Supreme Court is the highest court in the

country, the “court of last resort.” Nine justices are on the Court.
(In proper judicial circles, those people on a supreme court—
whether a state supreme court or the United States Supreme
Court—are known as “justices,” while members of other courts
are “judges.”)
The Supreme Court must take certain cases, such as disputes

between states, but for the most part, it can pick and choose.
Usually, it will limit itself to important cases involving new or
developing principles of law—especially those involving the
United States Constitution—or to resolving conflicting decisions
made by two or more federal courts of appeals acting on similar
issues. The Court will also hear important issues raised by cases
on appeal from the highest court of a state if the interpretation of
the United States Constitution is concerned.
When the Court agrees to hear a case, it grants “certiorari.” If it

decides not to, it denies certiorari. Four justices must agree to
take the case in order for “cert.” (the accepted abbreviation) to
be granted.
Generally, all nine justices hear each case. A decision by the

Supreme Court on federal law is binding on all federal courts. A
decision on the United States Constitution affecting the rights and
duties of people in a state is precedent in all the states.
d. Special Federal Courts
The federal government has set up separate trial and appellate

courts to deal more effectively with special areas of the law.
These specialty courts include: Court of International Trade,
Court of Federal Claims, Court of Veterans Appeals, and Tax
Court.
3. State Court System
Most state court sy stems are similar to the federal sy stem. There is a trial
court, an appellate court, and a supreme or high court (although a dozen
states do not have intermediate appellate levels), and each state has its own,
often unique name for its courts. Also, most states have added trial courts
of limited jurisdiction. It is not necessary to discuss all the state courts here.
We will limit ourselves to a general outline and ask that y ou check for
y ourself what the court sy stem is in y our state. You need only check y our
state government’s website. You may also contact y our county clerk, the
clerk of y our local court, or y our local librarian. If y ou wish, y ou can look
it up in the state constitution under “courts” or “judiciary ” and then
examine y our state statutes for legislation that has created additional courts.
a. Trial Courts
The major trial courts in the states are variously named. For
example, they are called “superior courts” in California,
“supreme courts” in New York, “district courts” in Texas, and
“circuit courts” in Michigan. These courts generally handle civil
suits involving large amounts of money and criminal felonies.
Courts of limited jurisdiction—municipal, county, justice,

magistrate, and police courts—have been created to handle suits
involving small amounts of money and criminal misdemeanors.
Your state probably has one or more of these. To understand the
difference between major state trial courts and trial courts of
limited jurisdiction more clearly, consider California as an
example. In California, civil suits worth over $25,000 go to
superior court, as do all criminal felonies, juvenile proceedings,
and family law cases. Civil suits in amounts equal to or less than
$25,000, criminal misdemeanors, and arraignment of felonies
are heard in municipal court.
Specialty courts, such as New York’s Family Courts, New York

City ’s Civil Court and Criminal Court, and Michigan’s Probate
Court, have been created in several states.
10
b. Small Claims Court
Small claims courts are sometimes referred to as “people’s

courts” or “pro se courts,” and nearly every state has them.
“Small claims” means just that. There are jurisdictional limits on
the amount for which a person can sue. It is usually below
$5,000. No criminal cases are heard in these courts, just civil.
Nor are there jury trials.
The procedure in small claims courts is unique to our court

sy stem. Filing fees are low—no more than a few dollars—and no
formal papers, complaints, or answers are filed. The plaintiff and
defendant just present their own case before a judge. Hearsay
and other rules of evidence are not strictly adhered to, since
lay persons are often doing the talking. Most states permit
lawy ers, although a few states, like California, exclude them.
Cases are usually heard within a month of the time of filing the
claim, a considerable difference from the wait in city and
county courts, which often goes up to six months or more (in the
larger cities it can be up to three y ears).
States vary in the way appeals are handled from small claims
courts. Some allow only the defendant to appeal. Others permit
both plaintiff and defendant to do so. The appeal may be for an
entirely new trial in a regular state court, or it may be limited to
an appeal on the law. Several states provide that the defendant,
upon receiving notice of the suit, may request that the case be
transferred before trial to a regular state court. If the defendant
does not make this request, the case is heard in small claims
court, and neither party may appeal the decision.
c. Appellate Courts
Appeals from a state’s major trial courts go to the state’s court of

appeals. Names vary here too: Court of Criminal Appeals in
Texas, in New York the Appellate Division of the Supreme Court
(the Supreme Court being the major trial court), etc. The
appellate court will necessarily hear cases from several trial
courts.
Appeals from the trial courts of limited jurisdiction may go

directly to a state’s court of appeals or to a special appeals
division of the state’s major trial court. In California, for
example, superior court judges in their appellate division hear
appeals from small claims courts.
Just as in the federal sy stem, there may be several appellate

courts in the state. Each appellate court supervises the trial courts
in its jurisdiction, and its decisions are binding on these trial
courts.
In most states the high court is called the supreme court—

although in New York it is called the Court of Appeals, in
Massachusetts it is the Supreme Judicial Court, and in Texas the
Court of Criminal Appeals is the highest court for criminal
matters, while the Texas Supreme Court is for civil matters.
State supreme courts do not have to hear every appeal made to

them. Like the United States Supreme Court, they may, in large
part, pick and choose. A state supreme court will usually hear
cases that have a significant impact or that will resolve
conflicting decisions in the lower state courts. Most states have
five or seven justices on the high court, although the range is
from five in Delaware to nine in Texas. All justices sit on a case.
A decision of the state’s high court is binding on all courts of the
state.
e. Reminder—Court Names Can Be Confusing
Because of the variety of state court names, it may not be

apparent whether a state’s trial court, appellate court, or high
court is issuing the opinion. Since the importance and binding
effect of the opinion depends upon the court that issues it, be
certain to notice which level it is. This leads us into the next part
of this chapter—the concept of precedent.
11
12
1. Stare Decisis
One of the basic principles of Anglo-American law is stare decisis—that

courts should adhere to precedents set by earlier decisions. Although our
sy stem of judge-made law provides for some flexibility, the stare decisis
principle allows for an element of predictability in legal decisions.
a. Illustration
The following simple example serves to illustrate this: One day

Molly opens her bottle of soda to find a rat preserved in the
liquid. She faints from shock and in falling hits her head on a
chair, suffering a concussion. She later brings suit against the
soda company for her injuries. No one in her state has filed such
a “cause of action” before, and at trial the judge holds that there
is no law entitling her to bring the action. Molly appeals to her
state’s court of appeals, which agrees with the trial court’s
decision. Undaunted, she takes her appeal to the state supreme
court. The high court reverses the appeals court decision, holding
that Molly does have the right to sue the company.
The following week, Matthew, who lives in the same state as

Molly, finds a rat in his bottle of soda. He faints, hits his head on a
chair as he falls and suffers a concussion. Can he now sue for his
injuries? According to our legal concept of stare decisis, or
adherence to precedent, he can. His situation is identical to
Molly ’s and since they both live in the same state, the trial court
that hears Matthew’s complaint must follow the rule of law set
forth by the state supreme court in Molly ’s case.
Now what if Matthew had hurt his arm instead of his head in
falling? It would have become a different case from Molly ’s, but
would this difference matter? Could the trial court refuse to apply
the ruling in Molly ’s case to Matthew’s? What if he fainted but
hurt no part of his body in falling? Could he sue for the shock
itself?
What if Matthew had found a mouse instead of a rat in his bottle,

but still fainted and hit his head—would the case be different
then? What if the foreign substance in the bottle was a cockroach,
a silverfish, or a human hair, and instead of fainting he got food
poisoning? Does the principle established in Molly ’s case extend
to these situations? Or is Molly ’s case “distinguishable”?
Well, this is what the law is all about. The law is an attempt to
forge legal principles that can apply to certain factual situations
so that people who later come into these situations will be able to
“predict” how the courts will act. But the question remains: Does
a person’s case fall under one principle of law or another or
perhaps a third that has y et to be recognized by the court? (This is
why facts are so important to a case. A few changes in the facts
can make all the difference in the principle of law that will be
applied.)
Judges deal with these problems all the time. Weaving a thread of
consistency or even reasonability among similar cases is
certainly try ing, if not impossible. But our sy stem of law
demands that we try.
13
b. Which Court Bound by Precedent
In understanding precedent, y ou should also be aware of which

courts must follow other courts’ decisions on similar sets of facts.
Lower courts follow only the rulings of higher courts in their
jurisdictions. That is, the Texas Court of Appeals must follow
legal principles laid down by the Texas Supreme Court; the Texas
trial courts are bound by what the Texas Court of Appeals, the
Texas Court of Criminal Appeals, and the Texas Supreme Court
hold. But no Texas court is bound to follow a ruling of the Oregon
Supreme Court, another state jurisdiction.
The same is true for the federal courts. The federal district court
in Jackson, Mississippi, is bound to follow the rulings of the Court
of Appeals for the Fifth Circuit, the court supervising it. But it
need not take as precedent the rulings of the Sixth Circuit or any
other federal court of appeals. All federal courts, however,
whether district or circuit, must abide by the decisions of the
United States Supreme Court.
All state supreme courts, or for that matter any state court, must
follow a United States Supreme Court decision if the decision
involved the interpretation of the federal Constitution as it applies
to actions by the states.
Courts on the same judicial level—such as the 13 federal courts

of appeals—are not bound to follow each other’s decisions since
they are all on equal terms. Using our earlier example, if Molly ’s
case was in the Fifth Circuit and Matthew’s in the Sixth Circuit
(the cases having similar factual situations), the two courts could
decide the cases differently.
All courts are bound by their own earlier decisions, unless

reversed by a higher court or by themselves later on.
2. Persuasive Authority
Court decisions that are not precedent may be looked upon as “persuasive.”
Thus, if Molly lived in Louisiana and Matthew in New Mexico, the judges
in New Mexico, although not bound by the rulings of the Louisiana
Supreme Court, could consider the reasonings of the Louisiana court as
persuasive and accordingly reach the same conclusion. Similarly, a
decision by the Court of Appeals for the Fifth Circuit would also only be
persuasive as to the Sixth Circuit or any other federal court of appeals.
1. In General
Whenever y ou do legal research, keep in mind two things: (i) the division
between the federal government and the state governments; and (ii) the
separation of either government (state or federal) into its three lawmaking
branches (executive, legislative, and judicial). Problems in legal research
correspond to these concepts. Is it a state and/or federal law problem?
Which branch of government is involved in the problem? Is more than one
branch involved? We will conclude this chapter with a discussion of these
problems. (At times y ou will need to consider whether municipal or county
law is also involved. But in order to present a clear picture of the
state/federal distinction, we have decided to include municipal and county
ordinances and administrative acts as part of the state law, and not discuss
them separately.)
14
2. State and/or Federal Law?
If y ou are filing for divorce, y ou go to state court. If y ou are filing

bankruptcy, y ou go to federal court. If y ou are filing a discrimination suit,
y ou could go either to federal or to state court. Under the theory of
federalism, federal law takes precedence in settling some disputes, state
law in others. But in large gray areas, both governments have the authority
to legislate and exercise power. For example, many states have stronger
consumer protection laws than the federal government provides.
Obviously, if the researcher checks only federal law on consumer
protection, the research would be incomplete as to those states that have
enacted their own, stronger laws and regulations. On the other hand, if she
only examines the state law, the researcher might miss a provision of the
federal statute not adopted in the state legislation, but nonetheless applicable
(besides, she would also not be using the clout of the federal government
when attempting to remedy the matter). And, of course, if the researcher
checks state law in a state that has minimal legislation in this area and does
not think to inquire into federal law, she would wrongly conclude that there
is only minimal protection for a citizen of that state.
How, then, does one decide whether the issue is a matter of federal law or
state law, or both? Article I of the United States Constitution defines the
specific lawmaking powers of Congress, its exclusive domains. But section
8 of that Article gives Congress the power to make all laws “necessary and
proper” for carry ing out its powers. This Necessary and Proper Clause has
provided Congress with great flexibility in preparing and enacting
legislation not specifically mentioned in the Constitution. Thus, reading the
United States Constitution is usually not enough. The fact is that even
lawy ers and judges do not alway s know which areas are exclusively
federal concerns, which are exclusively state, and which may be legislated
in by both governments. So in doing research, if y ou want to be certain,
y ou will often have to check through both federal and state statutes.
Overlooking a law can be costly, and often someone’s rights or even life
may depend on it.
3. Which Branch(es) of Government?
The legislative branch is generally thought of as the branch that “makes the
law.” In large measure, this is true. But both the judicial and executive
branches can, and in fact do, make law. Your research will not be complete
if y ou inquire only into one branch of government and do not consider
whether the others may also be involved. Take an example:
A student wore a black armband to class to protest the Vietnam War. The
principal suspended the student from school until he would agree to remove
the armband. The student, claiming that his rights to free speech under the
First Amendment to the United States Constitution were being violated,
brought suit in court. Eventually, it reached the United States Supreme
Court, which held that “speech” is not limited to words and that the student’s
wearing of the armband was protected by the First Amendment. [Tinker v.
Des Moines Independent Community School District, 393 U.S. 503 (1969)]
Here, the Court did not just enforce the law or make a determination of the
rights of the parties; it also interpreted a particular provision and applied its
interpretation to the case. When a court interprets a statute or constitutional
provision—explaining what it “means”—it is making law. Its determination
or definition may be used by later courts dealing with similar situations.
(For example, in Texas v. Johnson, 491 U.S. 397 (1989), the Court followed
up on the Tinker principle by holding that flag burning was also protected
speech.)
Courts make laws in other way s too. They can declare a statute
unconstitutional—that is, the statute in question violates part of the state or
federal Constitution.
Another way courts make law is by basing a decision on legal principles

not found in any statutes, the Constitution, or earlier court decisions. The
“right of privacy,” for example, is nowhere mentioned in the United States
Constitution. Yet the United States Supreme Court, in a case involving the
use of contraceptive devices, interpreted the Constitution to include the right
of privacy as a constitutional right. [Griswold v. Connecticut, 381 U.S. 479
(1965).]
15
The executive/administrative branch of government can also make law.

The most important instances are when an administrative agency (whether
state or federal) issues rules and regulations to implement legislation, and
when it adjudicates and resolves disputes concerning parties regulated by
the agency. (See chapter VI.)
The President and the state governors can also issue executive orders and
proclamations which have the effect of lawmaking. Often, when Presidents
have sent troops to other countries (e.g., Vietnam, Panama, Kuwait, and
Haiti), these decisions were made and acted upon without any laws passed
by Congress, y et they greatly affected the lives of people in the United
States.
Executive decisions and administrative agency decisions and regulations
are often reviewed by the courts. If the regulations do not conform with the
intent of the statute, a person affected may challenge their legality in court.
There are, of course, other lawmaking powers belonging to each branch of

government, such as the President’s right to enter into treaties with the
consent of the Senate and the judiciary ’s right to issue rules to govern local
court practice. But our purpose here is not to give y ou a detailed lesson on
American civics. Rather, it is only to remind y ou that more than one
branch of government may be involved in the making of a law.
When researching, if y ou are unsure as to whether state and/or federal law

applies and which branch or branches are involved, check all possible
sources. It is usually wiser to err in overextending y our search than in
limiting it too severely.
17
Chapter Three:
Cases
CONTENTS
18
1. In General
After a federal or state appellate court or supreme court decides a case, it

usually issues a written opinion explaining the decision. (Trial courts may
also issue a written opinion, but usually only federal district courts do.) Our
sy stem of precedent depends upon these written opinions. In an attempt to
maintain the illusion of consistency, judges need to compare their
reasonings with those of other courts dealing with similar factual situations.
Lawy ers, too, in preparing their cases, need to know how other courts have
dealt with similar problems.
There are millions of reported cases and the number is climbing steeply
(as lawsuits increase). Because of this, many states and the federal
government no longer authorize the publication of every appellate decision.
California, for example, requires that only appellate cases establishing a
new rule of law or modify ing an existing rule of law be officially
published. However, West and various publishers of looseleaf services
publish many of those otherwise unpublished opinions. Also, the online
research services LexisNexis and Westlaw include many unpublished
decisions in their databases (see chapter VIII).
The first half of this chapter will outline the sy stem of reporting court
opinions and decisions; the second half will explain how y ou can actually
find a case.
2. Official and Unofficial Reports
A court opinion may be published by the government and/or by a private

commercial company (often West). If the government publishes the
opinion or authorizes its publication, it is called an official report; if
published by a private company without official authorization, the report is
unofficial. In actuality, there is little difference. It is the same opinion,
merely appearing in one text or another. Most of the opinions y ou will be
reading will appear in West’s National Reporter Sy stem.
3. National Reporter System
West publishes most of the opinions of the federal and state courts. Many of
its federal, regional, and state reporters make up the National Reporter
Sy stem. If y ou are reading this book in a library, as we suggest y ou do, y ou
should have no problem locating the various reporters in the West sy stem.
They all have the same jackets, differing only in the names of each. (See
chart, infra.) (People sometimes confuse the seven regional reporter
districts of West’s National Reporter Sy stem with the 13 circuits of the
federal courts of appeal. There is absolutely no connection between the
two. For a map describing the federal circuit courts, see the chart on page 8
or the inside of any recent Federal Reporter.)
The National Reporter Sy stem was started in the last quarter of the 1800s.
There are different beginning dates for the various regional reporters. For
cases decided prior to the inception of the Sy stem, pre-National Reporter
Sy stem state reports will have to be used.
19
20
4. Citations
Every reporter, whether official or unofficial, has an accepted

abbreviation or “citation.” The citation guides the researcher to the proper
volume. Citations are discussed more fully later in this book (see infra, p. 25
et seq.).
1. Supreme Court Decisions
Decisions of the United States Supreme Court appear in four different

reporters. United States Reports is the official reporter; the others are
unofficial.
a. United States Reports
Until the early 1800s, the official reports of the United States
Supreme Court were reported by various people, and the
reporter’s name was used in place of “U.S.” as the volume
reference. If y ou look at these early reports, y ou will see the
names Cranch, Peters, Black, and several others on the spines.
Volume one of Cranch is, for example, the same as volume five
of United States Reports.
b. Supreme Court Reporter
This reporter is part of West’s National Reporter Sy stem. The

Supreme Court Reporter began in the late 1800s and does not
include early Court decisions.
c. United States Supreme Court Reports, Lawyers’ Edition
This bound set of Supreme Court decisions is published by the

LexisNexis Group and includes all Supreme Court decisions
issued.
d. United States Law Week
Published by the Bloomberg Bureau of National Affairs, Inc.

(“Bloomberg BNA”), United States Law Week comes in three
volumes. One, “Supreme Court Today,” contains all the United
States Supreme Court decisions as well as other actions taken by
the Court, such as agreeing (granting certiorari) or refusing
(deny ing certiorari) to review cases appealed to it. There is also
an index and a table of cases appealed to and docketed with the
Court. The second volume, “Case Alert,” publishes a national
survey of current case law, and the third, Legal News, describes
important developments in the law.
e. Computerized Databases
Westlaw, LexisNexis, and a number of online sites include United

States Supreme Court decisions, as well as decisions from other
federal courts (see chapter VIII).
f. Advance Sheets
Since it usually is months before a decision is published in United

States Reports, Supreme Court Reporter, and United States
Supreme Court Reports, Lawyers’ Edition, “advance sheets” of
the cases are issued by the reporters every few weeks. Advance
sheets are nothing more than the cases issued in pamphlet form
prior to their publication in the bound volumes. Most advance
sheets follow the same pagination as will appear in the bound
volume, although the “slip opinions” issued by United States
Reports do not. The other federal reporters as well as many
21
state official reporters and West’s National Reporter Sy stem also

issue advance sheets for their cases.
2. Federal Appellate Court Decisions
a. Federal Reporter
Published decisions of the 13 federal courts of appeals appear in

West’s Federal Reporter. There is no official reporter published
by the federal courts. Advance sheets are issued to the Federal
Reporter.
b. Federal Appendix
This West reporter publishes unpublished decisions from some
circuits.
c. Other Sources
Federal appellate court decisions can also be found on Westlaw,

LexisNexis, and other commercial, as well as governmental,
websites (see chapter VIII). You can also check United States
Law Week, “Case Alert,” for digests of important recent cases.
Selected appellate court cases decided prior to 1880 are
published in Federal Cases.
3. Federal District Court Decisions
a. Federal Supplement
Federal district court cases are published in one edition: West’s

Federal Supplement. There is no official district court reporter.
Prior to 1933, federal district court opinions appeared in the
Federal Reporter (and prior to 1880 in Federal Cases). Advance
sheets to the Federal Supplement are issued by West. Note: The
Federal Supplement is a selective, rather than a comprehensive,
collection of federal district court cases.
Decisions of the United States Court of International Trade

(formerly the U.S. Customs Court) and special panels dealing
with railroad reorganization and multidistrict litigation are now
also included in the Federal Supplement.
b. Other Sources
District court decisions may be accessed through various online

sources (see chapter VIII). Also, check United States Law Week,
“Case Alert,” for summaries of the most important recent cases.
4. Specialty Court Decisions
The federal specialty courts, such as the Court of Federal Claims, the Tax
Court, the Court of International Trade, and the Court of Appeals for the
Federal Circuit, each publish their own decisions. West publishes the
Federal Claims Reporter for cases decided by the United States Court of
Federal Claims and the United States Court of Appeals for the Federal
Circuit. Several looseleaf publishers such as CCH and BNA publish tax,
labor and employ ment, and other federal appeals and district court cases in
select areas of the law. (See chapter VI for a description of looseleaf
services.)
5. Bankruptcy Decisions
West publishes the Bankruptcy Law Reporter. It includes cases from the
United States Bankruptcy Courts and cases in the federal district courts,
courts of appeals, and Supreme Court. Bankruptcy decisions are also
published in Collier Bankruptcy Cases (Matthew Bender & Co., Inc., a
member of LexisNexis Group) and in Bankruptcy Law Reports (CCH).
22
6. Federal Rules
West publishes an edition of district court cases that have interpreted

federal procedural rules, both civil and criminal. The series is called
Federal Rules Decisions. West also publishes, under the brand name
Lawy ers Cooperative Publishing, the Federal Rules Service, which reports
opinions relating to the Federal Rules of Civil Procedure.
7. Other Special Subject Reporters
West and other publishers publish reporters compiling federal decisions in

other special subject areas, such as Military Justice Reporter (West), Media
Law Reporter (BNA), and Labor Law Reporter (CCH). (See also
“Specialized Editions of Cases,” infra, p. 25.)
1. West Regional and State Reporters
West has divided the country into seven sections and publishes a regional
reporter for each. The reporters are North Eastern, Atlantic, South Eastern,
Southern, South Western, North Western, and Pacific. Although the
arrangement of states within these reporters is geographical, it does not
follow the pattern we usually think of when sectioning off the country. For
example, Kansas and Oklahoma are part of the Pacific Reporter, while
Kentucky and Tennessee are included in the South Western Reporter. (See
chart, supra, for a listing of states in each regional reporter.)
West also publishes some state reporters including California Reporter and
New York Supplement.
2. Official Reports
About one-half of the states publish their own court opinions in what are
known as official reports. Those states that do not publish rely on the
appropriate West regional reporter for the reporting of their decisions.
Many people tend to use West reporters whether or not their state publishes
its own official reports because the reporters are readily available and
because they “key into” West digests. (The West Key Number Sy stem is
discussed infra, p. 22.) Many states also make official decisions available
on the Internet (see chapter VIII).
3. Advance Sheets
Advance sheets of the most recent cases are issued by West in paper
supplements for its regional and state reporters. Most states also publish
advance sheets to their official state reports. (See also discussion of parallel
citations, infra, p. 26.)
1. West Headnotes and Key Number System
At the beginning of a case reported by West, y ou will find a summary of

the facts and the decision followed by “headnotes” setting forth the
principles of law stated in the case. These headnotes are written by editors
of the company so as to key into the West sy stem of law books.
Accompany ing each headnote is an illustrative key with a topic name and
number. West divides each topic (there are more than 400 major topics)
into key numbers, creating more than 800,000 individual units representing
specific legal concepts. It then takes every principle of law stated in a case
and includes it under one of these topics. Thus, someone who finds a
headnote relevant to his research can turn to any West digest,
23
look up the headnote topic and key number, and find a list of cases
presumably dealing with the same principles of law. The researcher saves
a certain amount of time by not needing to use the indexes in the digests.
(See chapter V for an illustration of digests and the key number sy stem.)
Unfortunately, people do not alway s use these headnotes for the purpose
designed. They sometimes rely on them for an understanding of the case.
Rather than read a decision to determine what a case said, the person will
read only the headnotes preceding the case. This can be disastrous. The
editors who wrote the headnotes do not discriminate between those
principles of law that are directly involved in reaching the decision and so
become precedent, and those that are merely advisory or helpful to the
judges in analy zing and discussing the case. The first set of principles are
holdings, the second set dicta. From the headnotes alone, y ou cannot tell
which principles of law are holdings, and which are dicta. You can only do
so by reading the case.
Why does West assign a key number to every principle of law stated in the
case? Why not just pick out the holdings (for these are really what finally
determine the importance of the case) and only key them into the sy stem?
One reason is that dicta, although not binding precedent, may be
“persuasive.” That is, the statement of law may still be helpful to y our
case. Although not the basis for a decision, dicta are better than nothing at
all. Also, dicta in one case may be a holding in another, and the key sy stem
will lead y ou to those other cases.
Another reason for including every principle of law is to minimize the

chance of error by a West editor who, in writing the headnotes, may have
erred in understanding the case. It happens. Lawy ers often argue over the
holding or meaning of a case, one or perhaps both attorney s
misunderstanding it. Moreover, it may not even be the editor’s fault. Judges
themselves at times do not comprehend what they are writing; certainly
few, if any, are masters of all the legal matters appearing before them. Nor
do judges alway s make themselves clearly understood.
So if y ou want to know what a case say s, read it. Do not rely on summaries
and headnotes to tell y ou. Decide for y ourself. After all, y ou are finally
responsible for deciding whether the case is important to y our problem. Do
not underestimate y our abilities.
2. Official Reports’ Headnotes
Official reports, state or federal, also publish summaries and headnotes.

These are usually written or supervised by judges or clerks of the court but
are not key ed into the West sy stem. (Occasionally, an official report will
have headnotes linked to a digest published by the same publisher.) More
importantly, these headnotes do not try to include every principle of law
stated in the case. The writers tend to stick more closely to those that are
directly related to the actual facts and decision of the case, but here too the
headnotes will include dicta. So with official reports, we also advise y ou to
read the entire decision and take nothing for granted.
24
25
1. Specialized Editions of Cases
Several companies publish cases in select areas of the law, grouping their
cases and material by subject matter (rather than by jurisdiction as West
usually does). CCH’s Trade Regulation Reporter and BNA’s Labor Relations
Reporter are examples. United States Law Week, mentioned earlier, is
another example. These reporters are part of what is known as “looseleaf
materials.” They include administrative agency decisions and state and/or
federal court decisions as well as legislative acts and agency regulations on
the subject.
1. Using Citations to Find a Case
A citation is a shorthand guide to the location of legal materials. A citation

or “cite” to a case would include the volume number, page number, name
of the reporter in which the case appears, and the y ear in which the case
was decided. If it is not obvious from the reporter citation what court the
case is in, y ou also need to mention it. Where the case appears in more
than one reporter, the case will have more than one cite to it. Citations to
cases alway s perch alongside the name of the case. For example:
Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), means
that the United States Supreme Court opinion in the case of Bush v. Gore
appears in volume 531 of United States Reports at page 98, in volume 121
of the Supreme Court Reporter at page 525, and in volume 148 of the
second edition (or series) of United States Supreme Court Reports, Lawyers’
Edition at page 388. The case was decided in 2000. There is no need to
mention the court since we know that these texts only report United States
Supreme Court cases.
Gannett Co. v. DePasquale, 43 N.Y.2d 370, 401 N.Y.S.2d 756, 372 N.E.2d
544 (1977), would be found in volume 43 of New York Reports, second
edition, at page 370; volume 401 of New York Supplement, second edition, at
page 756; and volume 372 of North Eastern Reporter, second edition, at
page 544. It is a 1977 decision. Again, no mention of the court is necessary
because New York Reports 2d (N.Y.2d) only reports cases from the state’s
highest court—the Court of Appeals.
Blue Cross & Blue Shield v. Sanders, 138 F.3d 1347 (11th Cir. 1998), needs
to include in the parenthetical that the case is from the Eleventh Circuit
since Federal Reporter 3d (F.3d) reports cases from all 13 circuits of the
federal courts of appeal.
Similarly, Princeton University Press v. Michigan Document Services, Inc.,

855 F. Supp. 905 (E.D. Mich. 1994), needs to include the particular district
court since Federal Supplement publishes decisions from all the federal
district courts in the country. “E.D.” refers to the Eastern District.
Each reporter has an accepted abbreviation. There are two proper sources
for citing any legal authority, the Association of Legal Writing Directors’
ALWD Citation Manual and The Bluebook: A Uniform System of Citation
(commonly known as the Bluebook). Both may be found in any law
library. A growing number of jurisdictions have moved into medium- or
vendor-neutral citations (i.e., citations by document and paragraph number
and not tied to a particular publisher). A few law schools use the University
of Chicago Manual of Legal Citation (the “Maroon” Book) instead of the
ALWD Citation Manual or the Bluebook. To avoid confusion and
misinterpretation, proper citations should alway s be used.
26
Reminder: If the case is recent and y ou are looking at the hard copy of the
reporter, y ou can look in the advance sheets of the named reporter.
Advance sheets generally follow the same pagination as the bound
volumes that will eventually replace them. However, if the case is recent,
it is now faster to check online research sy stems such as LexisNexis and
Westlaw, and legal newspapers. Your legal newspaper may have a digital
version that provides the advance sheets online. If y ou know the case name
and court jurisdiction but do not subscribe to Westlaw, Lexis or a legal
newspaper, y ou can also try using Google or some other similar search
engine to find the recent case (see p. 80).
2. Parallel Citations
Cases that are published in both official and unofficial reports will
necessarily have more than one citation. Usually there will be two, an
official and an unofficial. But there may be three—as is the situation with
United States Supreme Court cases appearing in United States Reports,
Supreme Court Reporter, and United States Supreme Court Reports,
Lawyers’ Edition. Many New York and California cases also appear in three
separate reporters. The official citation alway s appears first.
Citations to the same case appearing in different reporters are known as

“parallel citations.” Thus, 17 Cal. 3d 425, 551 P.2d 334, and 131 Cal. Rptr.
14 are parallel citations to the California Supreme Court case of Tarasoff v.
Regents of the University of California, appearing in California Reports
(third series), Pacific Reporter (second series), and California Reporter.
Generally, y ou should give all the citations to a case—the person reading

y our material may possibly have access only to one set of reporters. To
discover the parallel citation(s), y ou may use either Shepard’s Citations or
West’s National Reporter Blue Book (see chapter VII), or LexisNexis or
Westlaw.
3. Finding a Case Without a Citation
What if y ou only know the name of a case and not its citation; can y ou still
locate it? The best way to find cases when y ou do not have the citation is
by conducting a search in LexisNexis, Westlaw, or other Internet sources
(see chapter VIII). When y ou do not have access to online sources, y ou
can still find cases using the various digests and reporters described below.
You can locate a case if y ou know the jurisdiction. Just check the Table of
Cases in the digest for that jurisdiction. For example, a United States
Supreme Court case would be found by checking in the United States
Supreme Court Digest (published by West); a federal case would be in
West’s Federal Practice Digest series. If it is a state case, y ou can search in
the state digest or in the regional digest if there is one. Every digest also
contains a Defendant-Plaintiff Table, useful when y ou know only the
defendant’s name. (Digests are covered in chapter V.)
If the case is recent, y ou may have to check the table in the “pocket part”
or supplement in back of the digest and any supplemental advance sheets.
(Pocket parts and supplements keep the material up to date in most
secondary sources and in the codes.) If the case is too recent to appear in
the supplement, y ou will have to search the table of cases in the latest
issues of the advance sheets to the reporter in which y ou expect the case to
appear. For important federal and state court decisions and for all United
States Supreme Court decisions, y ou can try the two volumes of United
States Law Week, “Case Alert” or “Supreme Court Today.” Daily law
newspapers in major metropolitan areas also sometimes publish important
cases, either in the daily edition or in a weekly supplement. For example,
the Los Angeles Daily Journal publishes within a week after issuance the
full text of all California Supreme Court and Courts of Appeal cases, and
the decisions of the United States Supreme Court, the Bankruptcy Panel,
and the Ninth Circuit Court of Appeals. Again, it may be very helpful to
check online sources.
When looking for a case, y ou may often find two or more cases with the
same names. These could be the same case having gone through the
various stages of appeal—different citations would necessarily be given for
each court opinion. Or the names could refer to entirely different cases.
Knowing the y ear
27
may help y ou figure out which case is the one y ou are looking for.
Otherwise, y ou will just have to read the case to decide.
If y ou do not know the jurisdiction of the case, y ou may have trouble

locating it. If it is a well-known case, y ou can try Shepard’s Acts and Cases
by Popular Names, Federal and State (published by LexisNexis) (see
chapter VII). Otherwise y ou will have to check the tables of cases in the
various Decennial and General digests of the American Digest System (see
chapter V).
4. Now What?
Finding a case is generally not that difficult. The real problem is in knowing
which case to find. That is, which cases can be useful to y ou in working out
y our problem and how do y ou find them? Chapter V will review this in
detail. It will explain how to use secondary legal sources to find cases and
statutes and administrative regulations.
When y ou locate a case, how can y ou be certain it is important to y our

problem? What exactly is the case say ing? Understanding a case comes
largely with experience. Even lawy ers and judges often disagree on what
a case stands for. In chapter IX, we will analy ze a case. We will diagram
the different parts, outlining the points y ou should consider when reading it.
Nothing does it like experience, and chapter IX will give y ou a start.
29
Chapter Four:
Statutes, Constitutions, Legislative History, and Treaties
CONTENTS
A. In General
B. Statutes
C. Constitutions
E. Treaties
30
A. In General
1. Introduction
People often begin their research with a check through the statutes. Statutes
are the laws enacted by Congress or state legislatures. (Laws are also
enacted by municipal and county legislative bodies. These laws are
generally known as “ordinances” and are briefly mentioned later in this
chapter.)
If y ou find a statute that specifically deals with y our problem, y ou are well
on y our way. But a statute may mean one thing to one person and another
to a second person. Which interpretation should the judge adopt? Following
the recital of the statute are case annotations—short paragraphs (similar to
headnotes) on how courts have interpreted and applied the statute. Checking
these annotations and reading the cases to which they refer should help y ou
see how the statute might be applied to y our situation.
This chapter will begin with a discussion of researching statutes and their
annotations, followed by a similar description of state and federal
constitutions. We will conclude with legislative intent, that amorphous term
that attempts to collect together the thoughts of the representatives who
passed the law. Judges often use legislative intent and legislative history in
making their determinations on the interpretation of a statute.
B. Statutes
1. In General
The enactment of a statute, whether state or federal, follows a general

pattern. When a bill is introduced into Congress or a state legislature, it is
given a number. The number stay s with it throughout the legislative session
(either one or two y ears). If the bill is not enacted in the session, it dies. Its
sponsor, if still interested, must then reintroduce it in the next session, where
it will be assigned a new number. You can follow a bill’s movement by
keeping tabs on its number. The number of a bill is preceded by “S” or
“H,” depending upon whether the bill was introduced in the Senate or the
House of Representatives. Each state publishes recent bills and
congressional activity on the state legislature’s website, and federal
legislation is available online on THOMAS (see infra, p. 79).
A state bill becomes law when it is passed by the legislature and signed by
the governor; a federal bill becomes law when passed by Congress and
signed by the President. If the chief executive (governor or President)
vetoes the bill, it can still become law if two-thirds of the representatives
vote for its passage. If the chief executive neither signs nor vetoes the act,
most states and the federal government provide that the bill automatically
becomes law 10 day s after arriving at the chief executive’s desk.
Laws may be public or private. Most laws are public. A private act refers
to a specific person or small group, rather than to the general population.
For example, a bill granting citizenship to a particular person (who does not
qualify for citizenship under the normal procedure) is a private act.
2. Statutes and Codes
When acts are passed, they are published by the federal or state
government in chronological order. Federal laws so published are found in
the United States Statutes at Large, the official source of all laws enacted
by the government. State laws are found in each state’s edition of its session
laws, also the official source. But chronological order does not make for
efficient research. It would be a painstaking process to figure out what the
law is on a subject by searching in every y ear’s edition of
31
the Statutes at Large or the state’s session laws to see what, if any, laws
were passed that y ear concerning y our problem. Thus, editions known as
codes were developed.
Codes group together or “codify ” the laws under specific titles. Thus, the
laws on obtaining unemploy ment insurance would be in one section of the
codes, the laws on setting up nonprofit corporations in another section. Of
course some laws will apply to more than one subject, so y ou will need to
check in more than one place for a complete survey of the law affecting
y our problem.
3. Federal Codes—Annotated and Unannotated
The federal laws are codified in a government-published edition known as

United States Code. Most people, however, use the commercially
annotated editions, United States Code Annotated (published by Thomson
Reuters) and United States Code Service (published by Matthew Bender &
Company, Inc., a member of the LexisNexis Group). These annotated
editions publish citations to cases that have interpreted or applied a
particular act. This is important because one cannot alway s tell just by
reading a statute precisely what it means or to whom it applies. One word
or phrase can easily conjure up a wealth of possibilities. For example,
consider 42 U.S.C. section 1983:
§ 1983. Civil action for deprivation of rights. Every person who, under
color of any statute, ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper
proceeding for redress. For the purposes of this section, any Act of
Congress applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
This is a civil rights statute of basically only a few lines. Yet in West’s
United States Code Annotated, this statute—along with annotations
explaining, interpreting, and referring to it—fills up more than one whole
volume.
By checking to see how a statute has been interpreted through court

decisions, y ou will be able to gauge the actual meaning of the statute and
sense how it would apply to y our situation.
The annotations are written by editors of the publishing company. They are
sentences or short paragraphs similar to (and often the same as) the
headnotes to cases. The advice given earlier not to rely on headnotes to tell
y ou what the case held also applies to annotations. The annotations are
helpful only in leading y ou to the cases; they cannot accurately show y ou
how the statute was applied to the factual situation in the case. You must
read the case for that.
At times y ou will find an annotation to an opinion by the (state or federal)

attorney general, giving an interpretation of part or all of the law. These
opinions are only persuasive; they do not have the force of law that a
judge’s opinion has. Nevertheless, they are referred to as having some
authority on the matter and should be consulted.
You may also find references to law review articles or to other secondary
sources that have commented on the statute (see chapter V). You may
wish to check these too, especially when there are only a few cases in the
annotations.
There are two annotated federal codes:
a. United States Code Annotated (“U.S.C.A.”)
This multivolume West publication is organized by titles. Besides

annotations, it includes references to the history of a statute,
cross-references to related statutes and constitutional provisions,
and references to other West publications like digests and
ency clopedias for additional material. (See Addenda for sample
pages.) It also contains a section called Westlaw
32
Electronic Research that tells y ou the topic number to use to

search for cases. U.S.C.A. provides references to the Code of
Federal Regulations (“C.F.R.”). Because regulations adopted by a
federal agency to implement a statute have the force of law,
they need to be examined. (See chapter VI on administrative
law.) U.S.C.A. is available online through Westlaw and
WestlawNext (see infra, p. 78).
If the federal statutes are in hard copy, the publisher may be able
to only update annually in the pocket part to provide the amended
statutes. The advantage of the online version is that the publisher
can update more frequently to provide the current statute with
the revisions. (See sample from WestlawNext). The frequency
and method of the updates will vary depending on the federal or
state governmental entity. The online version usually provides
information to the lawy er on how current the statute is.
b. United States Code Service (“U.S.C.S.”)
Published by Matthew Bender & Company (a member of the

LexisNexis Group), this set, also organized by titles, was designed
to replace Federal Code Annotated (“F.C.A.”). U.S.C.S. provides
references to the history of a statute and cross-references to
related statutes and constitutional provisions just as United States
Code Annotated does. U.S.C.S. also is a rapid tool to lead y ou into
the C.F.R. U.S.C.S. serves LexisNexis Group publications in the
same way U.S.C.A. serves West publications—namely, to
provide references to appropriate sections of their sourcebooks.
U.S.C.S. is available online through LexisNexis (see infra, p. 76).
33
Reprinted with the permission of Thomson Reuters.
34
35
4. Supplementing the Federal Codes
United States Code Annotated and United States Code Service publish
y early pocket parts. The pocket parts revise the statutes that have
undergone legislative change during the past y ear, whether through
revision, deletion, or repeal. U.S.C.A. and U.S.C.S. also issue supplemental
pamphlets during the y ear to further update the material. United States
Code is supplemented by annual hardbound books, but they are not
published in a timely fashion.
Yearly supplements are often sufficient for research purposes. Many laws
do not take effect until the y ear following passage. But there will be times
when y ou will need to check on a law that was recently enacted, one that
has not y et been included in an annual supplement. How do y ou find it?
a. Slip laws—United States Statutes at Large
When a law is passed, it is published in its entirety and distributed

to various libraries. These slip laws are bound into United States
Statutes at Large volumes at the end of the congressional session.
b. United States Code—Congressional and Administrative News
Published by West, this prints the text of the new laws soon after
they are enacted. Monthly paper supplements with cumulative
indexes are first issued, and then they are bound at the end of the
y ear. United States Code—Congressional and Administrative
News also provides some legislative history of congressional acts.
c. United States Code Service, Lawyers Edition, Advance Sheets
This Matthew Bender & Company (a member of the LexisNexis

Group) publication also prints the text of enacted laws and of
regulations, proclamations, and executive orders, with a
cumulative index. In addition, Matthew Bender & Company
publishes U.S.C.S. Cumulative Later Case and Statutory Service.
This edition contains later case annotations and references to
legislative history.
d. Commerce Clearing House Congressional Index
If y ou need to know whether a certain bill has become law, this

weekly updated index is a current print source. This reporter,
published by CCH Incorporated, will tell y ou the status of the bill
—that is, what committees have considered it, and any changes it
has gone through.
e. LexisNexis and Westlaw
Both LexisNexis and Westlaw have online full text of pending

federal and state bills. Westlaw’s database is called “Bill
Tracking”; LexisNexis’s database is called “Legislative
Histories.” They have archival material as well.
f. Internet Sources
Federal and state legislative information is available from various

online sources; for example, for federal information, check
http://thomas.loc.gov. (See chapter VIII.)
36
37
38
16 U.S.C.A. § 3372
§ 3372. Prohibited acts
Currentness
(a) Offenses other than marking offenses
It is unlawful for any person—
(1) to import, export, transport, sell, receive, acquire, or purchase any fish
or wildlife or plant taken, possessed, transported, or sold in violation of any
law, treaty, or regulation of the United States or in violation of any Indian
tribal law;
(2) to import, export, transport, sell, receive, acquire, or purchase in

interstate or foreign commerce—
(A) any fish or wildlife taken, possessed, transported, or sold in

violation of any law or regulation of any State or in violation of
any foreign law;
(B) any plant—
(i) taken, possessed, transported, or sold in violation of

any law or regulation of any State, or any foreign law,
that protects plants or that regulates—
(I) the theft of plants;
(II) the taking of plants from a park,

forest reserve, or other officially
protected area;
(III) the taking of plants from an

officially designated area; or
(IV) the taking of plants without, or

contrary to, required authorization;
(ii) taken, possessed, transported, or sold without the

pay ment of appropriate roy alties, taxes, or stumpage
fees required for the plant by any law or regulation of
any State or any foreign law; or
39
(iii) taken, possessed, transported, or sold in violation of

any limitation under any law or regulation of any
State, or under any foreign law, governing the export or
transshipment of plants; or
(C) any prohibited wildlife species (subject to subsection (e) of

this section);
(3) within the special maritime and territorial jurisdiction of the United
States (as defined in section 7 of Title 18)—
(A) to possess any fish or wildlife taken, possessed, transported,

or sold in violation of any law or regulation of any State or in
violation of any foreign law or Indian tribal law, or
(B) to possess any plant—

(i) taken, possessed, transported, or sold in violation of
any law or regulation of any State, or any foreign law,
that protects plants or that regulates—
(I) the theft of plants;
(II) the taking of plants from a park,

forest reserve, or other officially
protected area;
(III) the taking of plants from an

officially designated area; or
(IV) the taking of plants without, or

contrary to, required authorization;
(ii) taken, possessed, transported, or sold without the

pay ment of appropriate roy alties, taxes, or stumpage
fees required for the plant by any law or regulation of
any State or any foreign law; or
(iii) taken, possessed, transported, or sold in violation of

any limitation under any law or regulation of any
State, or under any foreign law, governing the export or
transshipment of plants; or
(4) to attempt to commit any act described in paragraphs (1) through (3).
(b) Marking offenses
It is unlawful for any person to import, export, or transport in interstate commerce

any container or package containing any fish or wildlife unless the container or
package has previously been plainly marked, labeled, or tagged in accordance with
the regulations issued pursuant to paragraph (2) of section 3376(a) of this title.
40
[Remainder of Section Omitted]
CREDIT(S)
(Pub.L. 97–79, § 3, Nov. 16, 1981, 95 Stat. 1074; Pub.L. 100–653, Title I, § 101, Nov.
14, 1988, 102 Stat. 3825; Pub.L. 108–191, § 3(a), Dec. 19, 2003, 117 Stat. 2871;
Pub.L. 110–234, Title VIII, § 8204(b), May 22, 2008, 122 Stat. 1292; Pub.L. 110–246,
§ 4(a), Title VIII, § 8204(b), June 18, 2008, 122 Stat. 1664, 2053.)
Reprinted from WestlawNext with permission from Thomson Reuters.
41
g. Check with Your Congressmember
Often y ou can obtain copies of a bill from y our representative or

from the representative who sponsored the legislation. Contact
information for the House of Representatives is available at
http://www.house.gov, and for the Senate at http://www.senate.gov.
h. United States Statutes at Large
Statutes at Large is not a source for advance copies of bills, but

when y ou have to refer to the actual text of a law no longer in
effect or to an earlier edition of a now revised or amended act,
these bound volumes are a convenient source. (You could also
check the bound volumes of United States Code—Congressional
and Administrative News.) If y ou need to find a law that has not
been codified—such as, for example, a private law—y ou will
find it in Statutes at Large. Statutes at Large publishes all laws in
chronological order. Parallel tables of citations between the codes
and Statutes at Large are published in the annotated codes.
5. Federal Rules and Court Guidelines
The rules y ou must follow to bring or defend a federal action can be found
in both U.S.C.A. and U.S.C.S. The rules of civil procedure and appellate
procedure are in the volumes of title 28 of U.S.C.A. The rules of criminal
procedure are in U.S.C.A.’s title 18. U.S.C.S. publishes the rules in its Court
Rules volumes at the end of its series. Federal Local Court Rules (West)
publishes current local court rules of the individual courts of appeal and
district courts. Federal Court Guidelines (Aspen Publishers, a division of
Wolters Kluwer Law & Business, together with the Litigation Section of the
American Bar Association) publishes the rules of practice procedures, and
policies of district court judges, as well as biographical and contact
information for the judges. LexisNexis, Westlaw, and other Internet sources
also publish the federal rules online.
6. Researching the Federal Codes
Researching the annotated codes is similar to researching any legal

sourcebook. There is a descriptive word index, the preferred entry into the
texts, and a table of contents for people who are familiar with the material
and need only check topic headings.
a. Online Method
You can search codes in full text through LexisNexis, Westlaw,

and other Internet sources (see chapter VIII). Since finding the
appropriate statutes online can be difficult without knowing the
key search terms, it is often more efficient to begin y our search
by looking through a hard-copy index where descriptive words
overlap and other terms are suggested (see below).
b. Index Method
Both U.S.C.A. and U.S.C.S. have multivolumed indexes. They

are easy to use, although not alway s complete. As with any
index, there is alway s the possibility that the descriptive words
y ou have chosen may not be of any help (because the editors did
not think of them) or the words may lead y ou to some legislation
but not to the statute most directly on point. Another word or term
is needed for that, so check around a bit. Think of a number of
different entry words into the material before settling on a
statute. The most obvious word may not alway s lead y ou to the
best statute.
For example, if y our problem concerns the right to ride a bicy cle
on the sidewalk, look up specific words like bicy cle, but also
check more general terms like vehicles or motor vehicles. If
y our state has defined a bicy cle as a motor vehicle, the laws
regulating motor vehicles will apply and just looking up bicy cles
may be too limiting. Being imaginative will help y ou to be
thorough.
42
Our discussion of the index method of search in chapter X may
help y ou design the key words (people, subject, ty pe of legal
action) y ou need to locate the proper statute.
c. Topic Method
If y ou know specifically under which subject y our problem falls,

y ou can turn directly to the specific chapter of the code dealing
with it. Look up the topic in the table of contents and search
through the topical outline for precise references to y our subject.
For example, if y our problem concerns kidnappings—a criminal
law problem—y ou could turn to the Penal Code and ey e the
topical contents for kidnappings.
Most people prefer the index method to the topic method. Using
the topic method may limit y our search, causing y ou to overlook
other related areas and statutes.
d. Popular Name Method
If y ou are looking for a specific piece of legislation, for example

the Federal Equal Credit Opportunity Act, y ou can find it in the
codes. Just check the general index or look for a separate table or
index in the index volume. You can also obtain the statutory
citation to the act from Shepard’s Acts and Cases by Popular
Names, or in the Federal and State Table of Acts by Popular
Names or Short Titles in the state statute editions of Shepard’s
Citations. (See chapter VII.)
e. Cross-references
Following the recitation of the statute in the codes is a cross-

reference section. The cross-references are to related statutes
and constitutional provisions. You may want to check these other
references before y ou satisfy y ourself that y ou have found the
most appropriate statute.
7. State Codes
Each state has its own code—its own set of statutes. The format differs in
each state. Many states issue multivolume sets similar to United States
Code Annotated. (West publishes the codes of approximately 25 states in a
sty le similar to U.S.C.A., and LexisNexis Group issues the codes of
approximately 35 states and territories.) Several states have more than one
set. For example, California has one published by West, and one by
LexisNexis Group, known as Deering’s.
Each state also has a set of statutes chronologically arranged. These

volumes are known as session laws and are similar to the United States
Statutes at Large. Parallel tables between the state’s code and session laws
are alway s available in both sets.
Yearly supplements are published to most state codes. About half the states
have commercially published legislative and session law advance sheets
for current legislation. A few states publish their own slip laws. Check y our
state legislature’s website or call y our local state house or senate
representative for information on statute revisions and new legislation.
Also, check with y our local law library.
8. Researching the State Codes
The organization of state codes differs in each state. Some have broad
indexes similar to those of U.S.C.A. and U.S.C.S.; others have limited
indexes. A few independent companies publish indexes not connected with
any specific set of codes. LARMAC (published by Matthew Bender &
Company, a member of the Lexis-Nexis Group) in California is an
example of a one-volume index to state annotated codes, and it is easier to
use than either West’s or Deering’s code edition indexes.
43
States deal with similar subjects differently ; a key word in one index will
lead y ou nowhere in another. In researching state codes, be extremely
cautious. Be certain y ou have checked all the possibilities and thought of all
the key words. Do not rely solely on the first seemingly appropriate statute
y ou find.
State codes are also available, in vary ing formats, through state legislatures’
websites. Links for each state are available at http://thomas.loc.gov.
9. Municipal Ordinances
Ordinances are laws passed by cities. The legislative body is usually a city
council or board of supervisors. Ordinances are codified but unlike the
codes are usually not annotated. For cases interpreting an ordinance, y ou
need to check a state digest, the special ordinance section in Shepard’s State
Citations, or West’s Ordinance Law Annotations, or try conducting a search
using Internet sources (see chapter VIII).
A city charter is similar to a constitution (see infra, p. 44)—it sets out the
general powers of the city. It is published in the municipal code.
10. Both Federal and State Law May Apply to Your Problem
Where neither the federal government nor a state has exclusive jurisdiction
in an area, both governments may enact laws affecting the same subject.
For example, Minnesota and the United States each have an Environmental
Policy Act. The acts may overlap in part, but there will be differences.
The enforcement powers provided by one act may be stronger than those
provided by the other. If when doing research y ou only refer to one of the
statutes, y our work will be incomplete and likely misleading, so be careful
and take the time to check through the codes of both jurisdictions. (For
guidelines on whether the area of law is exclusively state or federal, see
chapter II.)
11. Citing a Statute
a. Federal Statutes
The Fair Housing Act of the Civil Rights Act of 1968 would be
cited as 42 U.S.C. § 3601 in the official code. In other words, the
Act can be found in title 42 of the United States Code at section
3601. If y ou are using the annotated codes (United States Code
Annotated or United States Code Service), y ou can cite this
statute as 42 U.S.C.A. § 3601 or 42 U.S.C.S. § 3601. Depending
on the ty pe of document in which y ou are citing the statute, it
may be appropriate to add a parenthetical after the code section
to indicate the source and y ear of the reporter; for example, a
citation to section 3601 in the 2006 edition of U.S.C.A. would be:
42 U.S.C.A. § 3601 (West 2006).
While statutes for the most part are cited to the United States
Code editions, occasionally y ou will see a citation to the Statutes
at Large. This happens if the statute has recently appeared and
has not y et been codified. Thus, 82 Stat. 81 is the citation to the
Fair Housing Act as it appears in volume 82 of the Statutes at
Large at page 81.
You may also see Pub. L. No. 90–284. This citation is to the Act’s
earliest appearance as a slip law. It is the 284th act to become
law in the Ninetieth Congress.
b. State Statutes
State statutes are generally cited in the same manner as federal

statutes, depending upon how the code is laid out. In California,
for example, a statute in the Civil Code would be cited as Cal. Civ.
Code § 1942.5. In a document where the full source citation is
required, add the text in which the statute appears and the
copy right date. Thus, for example, if West’s main volume is
cited, it would be Cal. Civ. Code § 1942.5 (West 1985), or (West
Supp. 2013) if the current pocket part is
44
cited. If the citation is to text in both the main volume and the
pocket part, the parenthetical should include reference to both,
for example, (West 1985 & Supp. 2013).
The session law would be cited as 1970 Cal. Stat. ch. 1280 § 5 p.
2316.
For a more detailed description of the citation of statutes and for

the proper abbreviations and citations for many states, see the
ALWD Citation Manual or the Bluebook, available at any law
library.
C. Constitutions
1. In General
A constitution sets out the general powers of government and the basic
rights and duties of the people. Statutes are enacted pursuant to the
framework set out in the constitution. Any federal act that conflicts with the
United States Constitution and any state act that conflicts with the state
constitution or the United States Constitution is invalid or “unconstitutional.”
The United States Supreme Court is the final arbiter on matters concerning
the United States Constitution; the highest court in each state is the final
arbiter on state constitutional interpretation.
Since constitutions write of broad matters in general terms, most of y our

every day research will not involve constitutional provisions. But y ou should
alway s keep the possibility in mind, since a constitution takes precedence
over a statute. If, for example, y ou were interested in the federal law on
jury trials in criminal cases, y ou would check both the federal statutes and
the Sixth Amendment to the United States Constitution from which the right
originated, as well as the accompany ing annotations.
2. Researching the Federal Constitution
a. United States Code Annotated and United States Code Service
Both U.S.C.A. and U.S.C.S. have separate indexes to the United

States Constitution. The Constitution itself is set off in separate
volumes in these codes. Following each provision are annotations
of court interpretations, just as y ou find with the statutes. Many, if
not most, of the decisions are from the United States Supreme
Court. These are important—be sure to check them.
b. Digests
The United States Supreme Court Digest (West) and the United
States Supreme Court Digest, Lawyers’ Edition (the LexisNexis
Group), as well as the Modern Federal Practice Digest, the
Federal Practice Digest 2d, the Federal Practice Digest 3d, the
Federal Practice Digest 4th, and the Federal Practice Digest 5th,
(all from West) are helpful in locating cases interpreting federal
constitutional provisions. (Digests are covered in chapter V.)
3. Researching State Constitutions
State constitutions may be found in their respective state code editions,

although some editions also publish the constitution in a separate unit. The
constitutions are usually separately indexed. Most state constitutions are
annotated, providing an important source for state high court decisions
interpreting the provisions. State or regional digests, local law reviews, and
state ency clopedias are also helpful sources for researching the
constitution. State constitutions are also made available through state
legislatures’ websites (see supra, p. 42).
45
1. In General
Since words are an imperfect medium, and people who draft legislation do
not alway s foresee all the problems the legislation as written might raise, it
is not uncommon to find people disagreeing on the interpretation of a
statute. For example, assume Congress had passed a law say ing that
gasoline can contain no more than 0.5 of a gram of lead in each gallon. An
oil company executive might interpret this to mean that the level of lead
can be as high as 0.549 grams per gallon, for when rounded off to the
nearest tenth, it is still 0.5. A consumer advocate concerned with the health
of children will, however, argue that the level may not be higher than
0.500. If a case concerning this issue arose in a court, the judge would have
to decide what Congress actually had intended when it adopted the law. The
judge might draw upon the “plain meaning rule” and interpret 0.5 as it is
generally understood. But more likely she would research the legislative
history of the Act. The ty pes of questions the judge will want answered will
be similar to the following:
a. When the bill was first introduced in the House or Senate, how did it
read?
b. Did the sponsor of the legislation make any comments on the choice of
one term of measurement or another?
c. When the bill was sent to a House or Senate committee for

consideration, did the committee’s report on the bill discuss the use of
particular terms of measurement?
d. Were any committee hearings held on the bill? Did the experts who
testified at the hearings comment on this point?
e. What revisions, amendments, or deletions did the bill go through? Did

any affect this particular wording?
f. What was said by the legislators on the floor of either chamber when
the bill was discussed?
g. Did a joint conference committee of House and Senate members

change the wording?
h. When he signed the bill, did the President comment on the purpose of
the bill as he understood it?
In determining congressional intent, the judge will give more weight to
some of these legislative sources than to others. The changes, revisions,
amendments, and deletions a bill goes through, whether made by the
committees reviewing it or voted upon on the floor of the House or Senate,
are helpful because they show the progression of legislative thought on the
bill. Committee reports that explain the purpose of the bill and that are
issued after the committee has seriously researched and considered the bill
are very important sources. Comments made by Congressmembers when
the bill is discussed on the floor of the chamber are not as useful. Since
each legislator has his own idea of what the bill should do, one cannot
really gauge what the entire Congress intended by these individual
comments.
Determining legislative intent is often like catching dandelion seeds floating

in the wind. It is not possible to assess one rounded voice of agreement
from 100 senators and 435 representatives. But by checking the various
congressional sources, the researcher gains important insights into the
concerns of the legislators as they considered the bill at its several stages
and how they compromised and resolved these concerns. These insights
are what make up legislative intent, and they are culled from researching
the legislative history of the Act.
46
2. Sources of Federal Legislative History
The Internet is a good place to start when looking for recent bills, reports,
and other legislative documents helpful in finding the legislative intent and
history of an Act. If y ou are unable to find the information online, y ou
should check an index. Unlike the indexes for statutes, digests, treatises, and
ency clopedias, which sit right alongside the material, indexes for legislative
history may be on microfilm or microfiche and are kept separately from
the source materials. The index will give y ou a bill’s number, which stay s
the same throughout the legislative session. With that number y ou can
follow a bill and its revised versions through committee reports, committee
hearings, chamber votes, and House-Senate conference committee
compromises to determine the sources y ou will need to inspect.
a. Commerce Clearing House Congressional Index
This looseleaf service indexes all bills introduced in the House

and Senate. It also cross-references companion bills (similar or
identical bills introduced in the other house at the same time to
speed up congressional consideration). The status of each bill
(that is, how far it has progressed) is indexed in the Status Table
and in the Current Status Table. Because CCH updates its material
weekly, it provides the most up-to-date information on current
bills.
b. Congressional Information Service (“CIS”)
This multivolume service (by ProQuest) is more than an index. It

includes an index, bibliographic data (e.g., Congress and session,
title of publication, dates of hearings), a description of the
particular document or publication’s subject matter and purpose,
and an abstract of the contents (e.g., articles, testimony ) with
reference to pages. These abstracts are excellent in providing
information on the various source materials available. Since
1984, CIS has published separate volumes with compiled
legislative histories. CIS produces the actual documents from
1970 to the present on microfiche.
The index volume to CIS contains a detailed subject and name

index as well as indexes to bills, committee reports, hearings, and
other documents. It is updated monthly, with a three-month
cumulative index issued each quarter. An annual cumulative
index and cumulative abstract volume is also published, with a
section containing the legislative histories of public laws passed
during the y ear. CIS also publishes four-y ear cumulations of the
index.
CIS makes all of its indexes, documents, etc., available online

through its subscription reference information service, ProQuest
Congressional, located at http://cisupa.proquest.com.
c. Daily Report for Executives
This looseleaf service published by BNA provides coverage of

legislative developments that are of interest to the business
community. It provides texts of important business-related bills
and committee reports. The report is also available on
LexisNexis and Westlaw.
d. United States Code—Congressional and Administrative News
This text is both a source of recently enacted laws and

regulations and an index to legislative histories. It does, however,
publish selected House and Senate committee reports and a table
of laws actually passed. It is updated monthly with a cumulative
index and cross-reference table. Bound volumes are issued each
y ear.
47
e. Congressional Record
A daily record of congressional activity, especially speeches and

debates made by the legislators on the floor of the chambers or
for insert into the record, is included in the Congressional Record.
A cumulative bound index is published twice a month. The
History of Bills Enacted Into Law is a tabular report included in
the annual bound volume of the Congressional Record. Note that
pagination in the unbound daily digests is different from that in
the bound volumes. The Congressional Record is also available
on LexisNexis and Westlaw, and recent y ears are available for
free at http://thomas.loc.gov and http://www.gpo.gov/fdsy s.
f. Sources of Compiled Legislative Histories
Occasionally, a publisher such as the Government Printing

Office or a commercial publisher, or a private group such as a
labor union or women’s group, or even a large law firm may
compile a legislative history on a major piece of legislation.
(Many of these are often incomplete.) If y ou are researching a
major piece of legislation, consult Sources of Compiled
Legislative Histories, available in HeinOnline’s United States
Supreme Court Library (see infra, p. 81).
3. Tracking Down the Materials
Once y ou have found the bill number and have checked the status tables to
determine the bill’s progression, y ou will need to locate the actual source
materials (unless y ou decide to depend upon Congressional Information
Service abstracts). The source materials will include:
(i) Each revised version of the bill;
(ii) House/Senate committee reports;

(iii) House/Senate committee hearings;
(iv) Speeches and comments made on the floor of the House/Senate;
(v) House/Senate conference committee reports; and
(vi) Other House/Senate documents and special reports and publications.
Most of these materials are available for recent bills on the Library of
Congress’s THOMAS website at http://thomas.loc.gov. Additionally, most
law libraries store many of these materials. Since each library has its own
sy stem of cataloging, y ou will need to check with the librarian. Many
major public libraries also subscribe to federal legislative materials.
Congressional Information Service will provide copies of all materials

covered in the CIS index to its subscribers through its microfiche library.
Your library may already have copies through this service, or y ou could
request that the library order them from CIS.
4. Sources of State Legislative History
Most states do not publish any thing more than the bills themselves. Your
best chance of getting some history of the bill is to check that state
legislature’s website. A list with each state’s website is available on
http://thomas.loc.gov. Also, y ou can find out who sponsored the legislation
—y our local representative should know—and see if the sponsoring
legislator can provide copies of the original bill, revised bills, and any other
documents.
Other sources y ou should check include state law revision commissions,

judicial councils, legislative counsels, senate and assembly journals, and
the Democratic and Republican caucuses.
Sometimes a new law will be preceded in the supplement by the legislative

counsel’s comment on what the provision intends to accomplish. Your
librarian will know whether there is an organization or company in the state
providing legislative information.
48
E. Treaties
1. Sources of Information
Treaties and international agreements from 1789 to 1950 can be found in
the Statutes at Large. For those from 1950 to the present, check United
States Treaties and Other International Agreements, the World Treaty Index,
and the Multilateral Treaties: Index and Current Status.
The most frequently used index is Treaties in Force. Published by the

Department of State, it lists the treaties and international agreements still in
force by subject and country. Treaties in Force is available through the
State Department’s website at http://www.state.gov.
The text of recent treaties can be accessed through http://thomas.loc.gov

and is made available by the Government Printing Office.
For other publications, indexes, and secondary sources interpreting treaties,

check the library catalog.
49
Chapter Five:
Secondary Sources
CONTENTS
A. In General
50
A. In General
1. Introduction
If y ou do not find a statute, or if y ou would rather begin with some general

information on the subject to help y ou conceptualize the problem, turn to a
secondary legal source. These sources not only give y ou an understanding
of the law, but also guide y ou to cases, statutes, and regulations in the area.
Depending upon what y ou are looking for, one particular source may be
better than another. A treatise on a specific area of state or federal law is an
excellent source. A good state ency clopedia may also be helpful. For new
and developing areas, law reviews and law journals best survey the field.
Practice and procedure books and form books help people draft documents
and prepare for legal proceedings. Digests provide lists of cases dealing,
whether in holding or dicta, with a particular point of law. Attorney general
opinions and the “Restatements” are further expert commentary.
This chapter discusses which source to use and when to use it. These
sources are available in hard copy but many are also available online.
These texts are a beginning; they can provide y ou with a fine
understanding of the problems and the law involved in y our situation. But
unless y ou are looking only for some general (although expert) discussion
of the law, y ou will still need to follow up by checking into the appropriate
cases, statutes, and regulations—the primary sources of the law.
1. Treatises
Treatises offer a thorough, in-depth analy sis of one area of the law. The
important cases and authorities are cited and discussed with usually expert
commentary. Whether y ou want just a quick summary of a point of law or
a detailed survey, a treatise—especially if limited to the law of y our state
—is an excellent source.
Treatises may be one volume, but most often they are multivolumed.
They may review a broad tract of law like contracts or torts, or just one
aspect of the law like landlord-tenant issues, insurance law, or medical
malpractice. They may be written to cover the entire country or just one
state. A local treatise will naturally be more precise and complete, being
fitted to y our state’s law. Examples of the various kinds of treatises are
included in the Appendix. Also be sure to check the library catalog under
the subject y ou are researching.
a. Updating Treatises
Most treatises are updated with supplements. When supplements

are provided, they usually come at regular intervals. Be certain
to examine the cases, statutes, and regulations cited as authority
in the text; the law may have changed.
b. Hornbooks
Hornbooks are treatises condensed into one volume. They are

generally prepared for law students.
c. Gilbert Law Summaries
The Gilbert Law Summaries, designed as study aids for law

students, provide a concise discussion of a particular area of law.
There are Gilbert summaries for most standard courses in
51
law school. Gilbert summaries are arranged in an outline format.

(For a complete listing of available Gilbert Law Summaries,
check http://www.gilbertlaw.com.)
2. Legal Encyclopedias
If y ou cannot find a treatise in y our subject area, y ou may want to turn to

an ency clopedia. A legal ency clopedia offers a general outline of the law,
whereas a treatise covers one area in detail.
A legal ency clopedia should never be used as the final arbiter of the law
(although courts will sometimes cite it). It provides a general introduction to
the material, which y ou can then use to follow up in the appropriate
primary authorities: the cases, statutes, and regulations. Search through the
indexes to ency clopedias just as y ou would search through any legal
secondary sourcebook.
There are two ency clopedias of American law and about 15 state
ency clopedias. If there is one in y our state, y ou would be wise to use it. A
national ency clopedia is often too general and is not designed to provide
complete citations to authorities in any one particular state. It does contain
federal law, but a search through the federal statutes or looseleaf materials
would be far more efficient.
a. Corpus Juris Secundum (“C.J.S.”)
Thomson Reuters publishes this ency clopedia, usually referred to

by its initials—C.J.S. It attempts to state the entire body of
American law, state and federal. There is a multivolume general
index, and each separate volume also has an index. A list defining
words and phrases is also included. West issues an annual
cumulative pocket supplement. Cross-references are given from
C.J.S. to topic and key numbers in West digests. (See Addenda for
sample pages.)
b. American Jurisprudence (“Am. Jur.”) 2d
Published by Thomson Reuters, Am. Jur. 2d is very similar to

C.J.S., but in addition to key ing to digests, it also key s to American
Law Reports (“A.L.R.”). It too has a multivolume index. The Am.
Jur. 2d New Topic Service Binder updates the set with a looseleaf
service covering new topics and changes. There are also annual
pocket supplements. (See Addenda for sample pages.)
c. State Encyclopedias
A list of state ency clopedias is included in the Appendix. Since

they are published by West or LexisNexis Group, they follow the
same general arrangements as the American law texts. They all
have y early supplements.
d. Martindale-Hubbell Law Digest

Part of the LexisNexis Group, Martindale-Hubbell publishes the
United States law digest volumes of this directory. The Digest
provides a summary of the law in each state. It may be a useful
source for quick reference into an unfamiliar area, but like any
other secondary text, it should not be relied upon exclusively. Use
it to lead y ou to primary sources. The Digest also includes
summaries (in English) of the laws of 80 countries. The complete
Digest is available online at http://www.martindale.com.
3. American Law Reports (“A.L.R.”)
Published by Thomson Reuters, and currently in its sixth series, A.L.R. is

different from the usual ency clopedia. It not only provides editorial
discussion on the topic of law, but also reports leading cases and
summarizes other important cases in the area and adds cross-references to
the West Key Number Sy stem.
The Index to Annotations includes a Table of Laws, Rules and Regulations,

and an Annotation History Table.
52
4. Law Reviews and Periodicals
If y our problem concerns a new area of the law or one going through
important change, y ou may have trouble finding a secondary source that
thoroughly examines it. Ency clopedias and treatises take a while to catch
up, and digests may bury an important case under an old established topic.
For current information, legal periodicals are the place to turn. Law
reviews, law journals, and other legal periodicals keep abreast of the most
recent developments of the law. They provide background and insight into
the problem, along with recent cases, statutes, and other primary authority.
Law reviews and journals are largely published by law schools. The
articles and notes are written by professors, attorney s, and students. Private
companies and associations may also publish legal journals and periodicals
(e.g., some of the American Bar Association sections publish their own
topical journals, such as The Tax Lawyer, published by the ABA Section of
Taxation). Recent articles from many law reviews and journals are
available in Westlaw and LexisNexis, making it easier to find articles by
using search terms in these services.
a. LegalTrac, Legal Resource Index and Current Law Index

Gale (a publishing arm of Cenage Learning) publishes LegalTrac
and the Legal Resource Index. These are index publications with
broad coverage, covering articles from legal magazines, legal
newspapers, government documents, bar association and
specialty journals, as well as law reviews and journals back to
1980.
The Current Law Index, published monthly by Gale, is the paper

edition of the Legal Resource Index. The Legal Resource Index is
available on LexisNexis and Westlaw. LegalTrac (part of Gale’s
InfoTrac database sy stem) is available online by subscription, but
many law schools subscribe to the service. Check y our school
library ’s website.
b. Index to Legal Periodicals
This separately published index, produced by The H.W. Wilson

Company, will lead y ou into most of the legal periodicals from
1981 to present, and law books published from 1993 to present.
The print version, called the Index to Legal Periodicals & Books,
is published with monthly index advance sheets and an annual
cumulative edition. The Index to Legal Periodicals Full Text is
available online to subscribers at http://hwwilsonweb.com and on
LexisNexis and Westlaw.
c. Other Indexes
You may wish to check the Current Index to Legal Periodicals, a

subscription service published in 50 weekly print issues by the
University of Washington Law Library with the most recent eight
weeks available on Westlaw. You might also try the Index to
Periodical Articles Related to Law (published by Glanville
Publishers, Inc.), available through HeinOnline (see infra, p. 81).
5. Sources of Recent Scholarship
The Internet has many alternative sources of recent scholarship and

commentary to aid in y our research. However, the ease of Internet
publishing is a double-edged sword for the researcher—information is
updated more frequently and is often free, but it might not be vetted in the
same manner as traditional publications. Still, several quality resources
exist to help y ou begin y our research.
a. Social Science Research Network (“SSRN”)
SSRN (http://www.ssrn.com) provides some of the most current

research and scholarship that may be available on a particular
topic, for free. SSRN’s Legal Scholarship Network allows users
53
to upload their legal research, working papers, and law review

articles to the SSRN website so they can be shared with other
scholars, lawy ers, and law students.
b. Online Publications
You should also be aware that some law journals (see supra, p.
52) are published only online. For instance, the Berkeley
Electronic Press (http://www.bepress.com) not only hosts articles
and working papers like SSRN, but it also publishes electronic law
journals on a variety of topics, which can be purchased by
subscription.
c. Legal Blogs
Legal blogs may provide the most up-to-date legal commentary

available. Thousands of law blogs (often referred to as “blawgs”)
are online, with many focusing on a specific area of the law or
on practice in a particular jurisdiction. They may be produced
by law professors or practitioners and can be hosted by a law
school or firm, but note that not all are written by experts. The
best use of a law blog is to check for recent developments in the
field y ou are researching. To find one, try the ABA Journal
Blawg Directory at http://www.abajournal.com/blawgs.
6. Daily Law Journals
Legal newspapers, usually known as daily law journals, are published in

major cities. They include the local court docket and calendar for state and
federal trials. These journals are also often a very fine source for
important federal, state, and local court decisions. Several of these
newspapers (like the Los Angeles Daily Journal) publish supplements of the
recent state and often federal appellate cases.
7. Digests
There is no discussion of the law in digests. Digests are simply collections
of principles of law derived from cases. If all y ou are looking for is a case
to back up y our point of law, y ou may want to use a digest. For a general
understanding of the law, use a treatise or ency clopedia; a digest will not
help y ou much.
All digests have descriptive word indexes. You can search through these
indexes in the same way y ou would search through any other legal
sourcebook index. You can also locate a digest topic through West’s Key
Number Sy stem.
No doubt y ou have noticed that above every headnote in a West Group

reporter is an illustrated key sandwiched between a topic name and
number. It would appear something like this:
If y ou look up this topic and key number in any West digest (most of the
digests are published by West), y ou will find a column of paragraph notes,
each note discussing similar principles of law on qualified privilege of
comment and criticism. In designing the digests, the editors have taken all
the headnotes to cases reported in the various West reporters and
rearranged them under topics and subtopics in the digests. All the
paragraph notes y ou see in a digest are nothing more than the headnotes
y ou see when y ou read a case in a West reporter.
When y ou examine the principles of law indexed in the digest, be sure to

look up the case from which it is taken. You need to know whether the
principle of law is a holding or dicta. (Remember that a holding is the point
of law on which the case is decided; dicta are other statements of law
made by the
54
court throughout its opinion.) If it is dicta (the most likely possibility since
West headnotes are in large part dicta), the case may not be much support
to y ou.
There are state digests (almost every state has one), four regional digests,
federal digests, Supreme Court digests, and an American digest. Because
of its immense volume of cases, the American Digest is published in
noncumulative 10-y ear editions (Decennials) and is supplemented with a
General Digest to cover the y ears from the last Decennial to the present. A
list of digests is included in the Appendix. Supplements are usually issued
every six weeks.
Each digest has a Table of Cases. Most also have a Defendant-Plaintiff

Table which indexes cases by the defendant’s name. (See the Addenda for
sample pages.)
8. Looseleaf Materials
Looseleaf materials are a wonderful source for information in certain

areas of the law. They bring together statutes, regulations, cases, and
commentary in a well-organized text. Most of the materials cover federal
law, but state looseleaf materials, covering a number of subjects, are also
collected and arranged in text. (See chapter VI for a survey of this
material.)
9. Continuing Legal Education Materials
Most states have programs and/or publications sponsored by the state bar,
an institute of continuing legal education, or a law school. These materials,
particularly on local law and practice, are especially useful. For example,
Continuing Education of the Bar (“CEB”) in California (http://ceb.com) is
highly respected for its courses and books. Practising Law Institute (“PLI”)
holds classes and provides materials throughout the country (for a list of
PLI programs and materials, check the PLI website at http://www.pli.edu).
For more resources, y ou may want to check the websites of the American
Law Institute (http://www.ali-cle.org), the American Bar Association
(http://www.aba-cle.org), and the Association for Continuing Legal
Education (http://www.aclea.org). Also contact y our state bar (many state
bar associations have websites; for links to several, check online at
http://www.americanbar.org) to see whether an institute of continuing legal
education or something of similar name exists in y our area.
10. Practice and Procedure Books
Sometimes y ou need to know procedural law. For example, how do y ou

take y our case to court? What rules of court must y ou follow? What papers
do y ou file when? The federal government and the states have codes of
civil and criminal procedure, setting out the rules y ou must follow to bring
or defend an action. Practice and procedure books explain the process.
They usually include the text of the statute, and follow it up with an
explanation of the law (similar to the discussion y ou find in a treatise or
ency clopedia). Annotations to cases and secondary sources are often
included.
See the Appendix for examples of federal practice and procedure books.
State bars and private companies often publish these kinds of books for local
use. CEB in California is an excellent resource (see http://ceb.com). PLI
publishes useful material for many subject areas such as intellectual
property, real estate, and tax law (see http://www.pli.edu).
11. Form Books
Form books supplement practice and procedure books. They include

samples of the various documents y ou may need to file in court with
references to the appropriate procedural statutes and rules. Form books that
publish examples of legal forms not filed in court, such as leases, wills, and
contracts, are also available. There are form books for federal and state
documents. (See the Appendix for examples.) CEB in California and other
publishers in other states provide excellent examples of forms used in the
local courts.
55
12. Attorney General Opinions
The attorney s general of the United States and the states write opinions
interpreting statutes and giving other legal analy sis. Usually, a state official
or a legislator has requested the opinion. The opinions are only persuasive,
but courts often follow them. You can find references to attorney general
opinions in the annotations to the codes. Most of the states and the federal
government publish the opinions. Both LexisNexis and Westlaw have
databases with federal and state attorney general opinions. Also, for the
United States Attorney General opinions and comments check the
Department of Justice website (http://www.justice.gov).
13. Restatements
Expert lawy ers and law professors have gotten together to set a standard on
what the law is or should be in a particular field. Courts confronted by a
problem in a certain area can turn to these “Restatements” of the law for
expert opinion, since the Restatements attempt to codify case law in areas
where common law, rather than statutory law, predominates. Restatements
are only persuasive authority, but they are respected and followed by
many courts. Comments by the authors and annotations to cases and other
secondary authority are included with each proposed rule of law.
Restatements are published by the American Law Institute (“ALI”). They

are not available in every field—y ou need to check a library ’s catalog or
the ALI website (http://www.ali.org) for y our subject. Another ALI
publication, Case Citations to the Restatement of the Law (formerly
Restatement in the Courts), indicates where state courts have adopted
portions of the Restatements as the substantive law of the state.
Restatements are available on LexisNexis and Westlaw.
14. Uniform State Laws
The National Conference of Commissioners on Uniform State Laws

(“NCCUSL,” also known as the Uniform Law Commission) promotes
uniform legislation to reduce the problems that arise when each state has its
own distinct statutory law. The ALI publishes model statutes as well. In
some areas, these efforts have been highly successful (e.g., every state has
adopted the Uniform Commercial Code). However, sometimes only a few
states may adopt a proposed uniform law.
The NCCUSL website (http://www.nccusl.org) is an excellent source for the

text of uniform laws, status on the NCCUSL’s drafting projects, and
information on the states that have adopted the uniform laws. Additionally,
West began publishing an annotated set of uniform laws in 1968. It is called
Uniform Laws Annotated. It includes lists of the states that have adopted
particular laws and notes any changes in the model legislation made by the
adopting states. The text of uniform acts is also available on LexisNexis and
Westlaw. Remember, a uniform law is not in effect until it has actually been
adopted by the legislature of a particular state.
57
Chapter Six:
Administrative Agencies—Looseleaf Materials
CONTENTS
A. Introduction
B. Agency Action
58
A. Introduction
1. In General
Law is not only made by the legislative, judicial, and executive branches
of government; administrative agencies are play ing an increasingly large
role. Your life is far more directly affected by federal, state, and local
agencies than by the three main branches of government. The food y ou
eat, the transportation y ou take, the apartment y ou rent, the house y ou
build, the shop y ou own, the wages y ou earn, the utilities y ou use, the
professional licenses y ou hold, the schools y ou attend, the bills y ou pay, the
radio and television y ou listen to and watch, the Internet y ou log on to, and
the compensation y ou receive when injured or unemploy ed are all
regulated by agencies. Legislation may have empowered these agencies,
but it is not the legislators with whom y ou deal—it is the agencies
established by them.
It makes no difference what the agency calls itself—Federal

Communications Commission, National Labor Relations Board, Internal
Revenue Service, Occupational Safety and Health Administration,
Environmental Protection Agency, Office of Consumer Affairs, Division
of Public Safety, Metropolitan Transit Authority —federal, state, or local,
they are all agencies.
2. Agency Powers
An administrative agency owes its existence to the legislation that either

creates it or provides for the executive to establish it. (Occasionally, a state
agency may derive its powers from the state constitution. Such an agency
is often more powerful than one created by the legislature. An example is
the Public Utilities Commission in California, which regulates not only all
the utilities but also public transportation in the state.) The agency is
delegated certain powers by the legislature. Not every agency has the
same powers, but all do one or more of the following: issue orders, license,
draft rules and regulations, hear and decide disputes (adjudication),
negotiate settlements, investigate for possible violations of law, and
prosecute the violators. Agency actions and decisions are usually
reviewable in court (judicial review).
a. Formal Functions
Agency action is largely informal. Rulemaking and adjudication

are the two main formal functions of administrative agencies.
Formal actions are publicly recorded.
B. Agency Action
1. Regulations
Agencies draft regulations to carry out the intent of the legislation. As

experts in the area, the agency personnel can best establish the procedure
to be followed by parties affected by the statute and can be on the alert for
violations. Regulations have the full force of law. Violating a regulation is as
much a breaking of the law as is violating a statute.
Often before a regulation is issued, especially when the regulation is of

important public interest, the agency will hold hearings on the proposed
regulation. Interested groups and persons will attend to voice their opinions
and concerns. The proposed regulation may then be revised—or not put
into effect at all—as a result of the hearing.
59
2. Adjudication
Agencies also decide disputes. For example, if y ou are denied

unemploy ment insurance, y ou can appeal to an administrative law judge.
This person is hired by the agency, but is paid to be impartial. In most
states, if y ou lose y ou can take y our case to the State Unemploy ment
Insurance Board. Only after the Board has heard and ruled on y our claim
can y ou file in court. Since many people win at the administrative level,
the overburdened court can be spared even further litigation. Besides, the
agency is more likely to know the law and mechanics of y our problem
than a court which hears hundreds of different ty pes of cases.
Adjudicative hearings in administrative agencies are less formal than in

court. Lawy ers are not alway s necessary, and in certain areas where
lawy ers can make no money because the client is poor—as in welfare and
unemploy ment insurance cases—y ou rarely see them. People here handle
cases themselves, or a paralegal or legal assistant who knows the field (and
is often paid by legal aid) may represent them. You need not be a lawy er
to argue before many administrative agencies.
The rules of evidence are usually relaxed in these hearings. Hearsay

(evidence not from the personal knowledge of the witness but from what he
has heard another say ) is often admissible. There are no jury trials.
Most agencies have two levels of appeal, although several have three. In
most instances y ou must “exhaust y our administrative remedies”—that is,
maneuver through the various levels of appeal—before y ou can take y our
case to court. Judicial review of an administrative case is usually limited to
questions of law. The facts are not retried. (Occasionally, when a
constitutional or fundamental right is involved, a court will exercise the
power of “independent judgment” and conduct its own review of the
evidence.) In reviewing the administrative decision, the judge may
consider such questions as: Was there substantial evidence to support the
administrative law judge’s findings, or did the judge abuse her discretion?
1. Introduction
We will begin with an examination of federal agency resource materials,

because they are the most available and the most completely indexed.
State and local resource materials, which are often much more limited in
access, will be discussed afterwards.
When y our research involves agencies, remember to check their rules and
regulations, administrative decisions, orders and opinions, internal
procedures, and files. Much of this information is available online. (Your
access to federal government agency records is clearly set out in the
Freedom of Information Act [5 U.S.C. § 552]. Many states have
comparable legislation, sometimes known as a government records act.)
If y ou are interested in generally knowing more on the law of agencies,
look for an administrative law treatise. Administrative Law by Davis and
Pierce (published by Aspen Law & Business) is the best known, but there
are several others.
60
2. Federal Materials
a. Code of Federal Regulations (“C.F.R.”)
This 50-title softcover edition codifies the regulations issued by

federal agencies. It is organized by agency and is similar in titles
to those of the United States Code (which codifies federal
statutes). Presidential executive orders appear in title 3 of the
C.F.R.
The index and finding-aids volume includes an explanation of

how to use these books. The index can be researched in the same
manner as any other legal sourcebook index. However, y ou may
want to use the Congressional Information Service (“CIS”) Index
to the Code of Federal Regulations. It is more thorough.
Parallel tables connecting the regulations to the federal statutes

that provide the basis for the regulations follow the index. There
is also a table of contents (a list of C.F.R. titles, chapters,
subchapters, and parts) and an alphabetical list of agencies
appearing in C.F.R. Each title of C.F.R. also has its own index.
The C.F.R. is revised y early, on a staggered basis, with quarterly

updates. There is also a monthly List of C.F.R Sections Affected,
listing changes to the current C.F.R. It is updated quarterly. (For
the most recent changes, y ou will have to look into another
publication, the Federal Register, see below.) The C.F.R. is also
available on LexisNexis, Westlaw, and online at
http://www.gpo.gov/fdsy s.
b. Federal Register (“Fed. Reg.”)
This series is to the Code of Federal Regulations what the Statutes

at Large is to the United States Code. The Federal Register
publishes all the federal regulations in chronological order.
Though y ou can find the particular regulations for a particular
subject or agency immeasurably faster in C.F.R. than in Fed.
Reg., the Federal Register serves a very useful purpose. It is
published daily and so will include the very latest changes in the
regulations. Check its C.F.R. Parts Affected. The list is arranged
under the C.F.R. numbering sy stem (by title and section of
C.F.R.). The Federal Register is also available on LexisNexis,
Westlaw, and at http://www.gpo. gov/fdsy s.
(1) Reminder
Be sure to check carefully the effective date of the

regulations. Regulations are often issued (publication
dates) before they are to become law (effective
dates). If y ou are unsure whether the regulations have
gone into effect, call the agency.
The supplements to the United States Code

Congressional and Administrative News Service or the
United States Code Service also include listings of
recently issued regulations, but they are not as up to
date as the Federal Register.
Besides keeping the Code of Federal Regulations up to

date, the Federal Register publishes proposed agency
rules and regulations, giving interested parties and the
public a chance to comment before they are put into
effect. It also prints presidential documents.
c. Federal Agency Decisions
Both the government and several commercial companies publish

the decisions of federal agencies. The official government
volumes are often inadequately indexed and published late, but
the commercial editions are excellent sources. The commercial
sets are included in the general term “looseleaf services,”
discussed next.
61
d. Looseleaf Services and Materials
In most of y our research, y ou have had to examine several

sources—statutes, regulations, reporters, treatises, ency clopedias,
digests, law reviews—before y ou could be certain y ou had found
the proper primary material. For much of federal administrative
law, this process has been greatly eased. Many publishers have
collected statutes, regulations, agency decisions, and court
decisions and arranged them by subject. Thus, if y ou have a
question on federal labor law, housing law, or tax law, y ou may
need only to check the appropriate looseleaf edition on that topic.
Looseleaf services are just that—looseleaf binders of materials.

They are usually updated weekly or monthly. CCH, BNA, and
West together publish over 200 editions of federal (and some
state) topics. (See the Appendix for some examples.) An
excellent source on looseleaf services is Legal Looseleafs in Print
(Infosources Publishing). It is an annual listing, by title, of
looseleaf services, with indexes by publisher and by subject.
(1) In General
Each looseleaf service has its unique, sometimes

idiosy ncratic, approach to the material. Be sure to read
the instructions carefully.
Also, be sure to read the decisions themselves; the

annotations may be misleading since y ou cannot tell
from them whether the principle of law stated is a
holding or dictum.
The texts of the decisions are often published by the

company in separate bound volumes, with recent cases
appearing in looseleaf supplements. The volumes will
include both agency decisions and court decisions.
(You can alway s look to West’s Federal Supplement and
Federal Reporter for federal court cases. But
occasionally looseleaf services will pick up unpublished
federal cases and publish them.)
(2) Commerce Clearing House
Each CCH edition opens with a page or two on how to

use this particular set (known as a reporter). As they
say, when every thing else fails, read the instructions.
You will save y ourself lots of time if y ou first check
how these particular volumes are organized and how
CCH has channeled the material into various sections.
Note: Most CCH materials are cited to the paragraph
number located at the bottom of the page, rather than to
the page number at the top.
(a) Indexes
Each CCH series has a Topical Index and

some have a Rapid Finder Index. The Rapid
Finder Index is similar to a table of contents.
Unless y ou know the material well, y ou
should begin with the Topical Index. It is
thorough, with lots of subheadings, and can
be used in the same way y ou would use any
other legal sourcebook index. The references
in the index are to paragraph numbers rather
than to page numbers. (The page numbers
are there mainly to help the person filing the
new material and removing the outdated
pages.)
Each set also has a Table of Cases (for use

when y ou have the name of a case) and
Finding Devices (to use when y ou have the
number of a statute, regulation, or agency
ruling).
62
(3) Bureau of National Affairs
Although BNA materials cover the same ty pes of

information as CCH, BNA sometimes organizes them
differently. Often, separate pamphlets are issued and
filed consecutively. There is no removal of earlier
outdated material and substitution of new. The older
material is eventually stored in special binders leaving
only the more current on the shelf. Cumulative tables
and indexes are necessarily included with each edition.
All looseleaf services provide additional material

where necessary, such as an index to appropriate
articles, a legislative status chart, a court docket,
definitions, abbreviations, and forms. The smaller
companies that publish looseleaf materials do so in a
design similar to that of the major services.
(4) Online Sources
Several looseleaf reporters are now published online as

well as in text. For example, both CCH and BNA
provide online subscription services. Forms with
instructions and many examples are also being made
available.
(5) State Looseleafs
State looseleafs are published for many areas of law.

The organization is often similar to federal looseleafs.
Be sure to read the How to Use introductory section to
each reporter.
e. Other Sources of Administrative Agency Information and Law
(1) Agency Publications
Several agencies issue pamphlets describing the

agency, its operations, and structure. These are for the
public. You might also see if y ou can obtain internal
agency handbooks and memoranda for employ ees. An
agency ’s pamphlets and other information may be
available on the agency ’s website, so that is often a
good place to start.
(2) United States Government Manual
This Federal Register publication gives lots of

information on each branch of government. Every
agency is described—its history, authorizing legislation,
personnel, and functions. It is available through
http://www.gpo.gov/fdsy s.
(3) Federal Yellow Book; Congressional Yellow Book
Leadership Directories, Inc. publishes these two

directories of federal departments, agencies, and
employ ees, and members of Congress, their
committees, and aides. Both books are kept up to date
and are usually more accurate than the government
manual.
(4) Secondary Sources
Do not forget to check in the library ’s catalog for

treatises on the law, LegalTrac or the Legal Resource
Index (both carry identical material) and the Index to
Legal Periodicals for law review articles on new and
developing issues, and of course federal digests and
ency clopedias. Also, see whether any attorney general
opinions may help y ou in interpreting a statute or
regulation.
63
(5) Shepard’s Citations
Shepard’s United States Administrative Citations

(published by LexisNexis Group) for approximately a
dozen agencies is discussed in chapter VII. There are
also Shepard’s for various federal subjects such as
labor, tax, and copy right.
f. Presidential Documents
Proclamations and Executive Orders can be found in the Federal

Register, title 3 of the Code of Federal Regulations, the United
States Code Congressional and Administrative News (Thomson
Reuters), the United States Code Service (Matthew Bender &
Company, a member of the LexisNexis Group), and the Weekly
Compilation of Presidential Documents (Federal Register).
3. State Materials
a. Regulations
Many states publish their own regulations. Check with y our

librarian. Note that when the states that publish regulations
provide an index, it is often inadequate.
The agency itself may be the best source of the regulations. If

y ou have trouble obtaining the regulations from the agency,
check to see if y our state has a government records act that
guarantees public access to most government files. But even
where y our state does not have such an act, regulations should
alway s be publicly accessible.
States may also publish a state manual, county memoranda on

new laws and regulations, and weekly supplements on the latest
changes. The library may have some of these or check y our
state’s website. But since much of this is internal matter, y our best
source is someone who works in the agency and has access to the
regulations.
LexisNexis and Westlaw also have many state administrative

codes online.
Do not forget to check whether CCH, BNA, West, or some other

company has published a state looseleaf edition on the subject.
b. Decisions
The state agencies should have a library of past decisions,

indexed by subject. Ask to see them—they are public
documents.
c. State Agencies and Personnel
Your state, the bar association, or a continuing education program

may publish a directory to state and county agencies and
personnel.
4. County and Municipal Agencies
Probably y our best chance of seeing the regulations issued by local

agencies is to go directly to the agency and ask to see them. The agency
should have a copy of its own rules and regulations. Larger cities may also
have their own administrative code. Again, a good place to start is the local
agency ’s website, if it has one.
65
Chapter Seven:
Keeping Up to Date—Using Shepard’s and Key Cite
CONTENTS
A. Introduction
66
A. Introduction
1. Changing Body of Law
Law is alway s changing. Courts issue opinions establishing new legal

principles, legislatures enact new statutes, and administrative agencies
adopt new regulations. Of course, the changes usually are not dramatic,
nor does every thing change at once. Law would certainly lose its
continuity and precedent building blocks if it seesawed or swung in wide
arcs every day. But even slight movement will have its impact. Imagine
basing y our legal arguments on a point of law no longer recognized as
valid. The embarrassment does not come any where near the possible
disastrous consequences it may have for y our client.
2. Updating Legal Materials
To keep on top of developments, companies issue advance sheets and

supplements to cases, statutes, digests, treatises, and ency clopedias, and
new pages for old in looseleaf services. However, the quickest and most
effective way to update y our material is electronically, either through
Shepard’s on LexisNexis or Key Cite on Westlaw. (See chapter VIII for
more discussion on LexisNexis and Westlaw.) Although it is not up to date,
y ou can also manually update using Shepard’s Citations in print form (see
below). Shepard’s Citations (published by Shepard’s, a member of the
LexisNexis Group) are usually thick red volumes often found together in
one section of the library, although they may be shelved separately
alongside the state statutes or reporters. Shepard’s volumes also appear on
LexisNexis, but not Westlaw.
1. Using Online Citators
LexisNexis and Westlaw provide electronic citator verification sy stems.

Westlaw (and WestlawNext) offers Key Cite and LexisNexis (and
LexisAdvance) offers Shepard’s. Both LexisNexis and Westlaw cite to the
subsequent and prior history of y our case. They also refer to cases that
make negative reference to y our case (e.g., a case that criticizes y our
case) and whether a case has been superseded by a statute. Essentially,
they tell y ou whether y our case is still good law—and they can update
daily, sometimes within 30 minutes. In addition, Shepard’s and Key Cite
provide citations to secondary materials that mention the case. Key Cite is
also integrated with the West’s Key Number Sy stem to track legal issues.
LexisNexis also offers LEXCITE, which finds sources that reference a
particular citation.
2. Online vs. Print Versions
Because the time lag on the print version of Shepard’s is quite long—usually
a month—y ou should use the online version of Shepard’s on LexisNexis and
Key Cite on Westlaw whenever possible and take advantage of their
relatively short lag time of 24 hours. However, these services can be in
error or incomplete; thus it is advisable to check more than one. The
increasing cost of purchasing the print copies has made the online citators
sometimes the most economical, most reliable, and fastest way to check
the status of a case or statute. However, there may be times when y ou are
unable to get online to use Shepard’s or Key Cite. For instance, y ou don’t
have y our computer, y ou don’t have Internet access, or there is a power
outage. While online citators are the easiest (and most current) way s to
check the
67
status of the law, it is sometimes useful to know how to Shepardize using the
books if the online citators are not available.
3. Using Shepard’s on LexisNexis

When y ou access a case in LexisNexis, a sy mbol will likely appear near
the case name alerting y ou to the status of the law of y our case (not all
cases will have sy mbols). If a red octagon appears, this stop sign is warning
y ou that there has been negative treatment of y our case—for example,
y our entire case, or a portion of it, may have been overruled or reversed.
A y ellow triangle indicates possible negative treatment which may impact
y our case—for example, the decision might be highly criticized by other
courts. A green diamond means y our case has been treated favorably.
Other signals in LexisNexis may indicate that y our case has been cited, but
either the citation is neutral, or it is purely an analy sis of y our case (for
example, a law review article may cite or discuss the case). You can click
on any of the signals to see a list of the sources citing to y our case.
4. Using KeyCite on Westlaw
Westlaw’s citations research service, Key Cite, provides status flags next to
the case or statute y ou are viewing to indicate that there is history available
on y our case or statute. A red status flag indicates that y our case or statute
is no longer good law, either in whole or in part. A y ellow status flag
indicates that y our case has received some negative treatment. A blue “H”
lets y ou know that there is some history on y our case, but it is not
necessarily negative; and a green “C” indicates that y our case has been
cited.
As in LexisNexis, y ou can click on the status flags to see the sources citing
to y our case or statute. The history display ed, and each citing case, will
have one to four stars (which Westlaw calls “depth of treatment stars”)
next to it indicating the extent to which y our case is discussed—one star
means that y our case is merely mentioned in brief, while four stars means
that y our case is examined in an extended discussion within the citing case.
In the newest version of Westlaw (see infra, p. 78), WestlawNext has

replaced the stars with green bars that serve a similar purpose in indicating
the depth of treatment discussed in the case. The Key Cite depth of
treatment bars indicate the extent that the authority or related document
discusses the cited case.
68
69
1. Shepard’s Case Citations
Because many more cases are decided each week than statutes are
enacted or regulations adopted, Shepard’s Citations is most frequently used
with cases. Is the case y ou are researching still recognized as good law?
Did a higher court reverse or modify the decision? Have courts followed
the principles of law established in the case or did they establish new or
different principles? Before y ou can safely cite a case as authority, y ou
need to know how later courts have treated it. Finding out is simple. Just
check the appropriate Shepard’s volume, look up the case, and run down the
notations below its citation.
There are Shepard’s Citations for all reported decisions—official and

unofficial. Shepard’s United States Citations, for Supreme Court cases,
includes sections for United States Reports, Supreme Court Reporter, and
United States Supreme Court Reports, Lawyers’ Edition. Shepard’s Federal
Citations includes Federal Reporter, Federal Supplement, Federal Claims
cases, and Federal Rules Decisions.
There are also Shepard’s Citations for various states (e.g., Shepard’s
Minnesota Citations), and Shepard’s Citations for each of the seven regional
reporters in West’s National Reporter Sy stem (e.g., Shepard’s Northwestern
Citations). (See Addenda for sample pages.)
a. Shepardizing a Case
Let’s use the case of Crawford v. Board of Education, 17 Cal. 3d

280, 130 Cal. Rptr. 724, 551 P.2d 28 (1976), a California Supreme
Court case, as an example. We can Shepardize it in any one of
three separate series: Shepard’s California Citations, Shepard’s
California Reporter Citations, and Shepard’s Pacific Reporter
Citations.
Shepard’s California Citations includes separate citation sections

for California Reports (the official reporter), California Reporter,
and California cases appearing in Pacific Reporter. Shepard’s
California Reporter Citations Shepardizes only California Reporter
citations.
70
Shepard’s Pacific Reporter Citations Shepardizes only Pacific

Reporter citations (California Supreme Court cases included).
This duplication and overlapping of Shepard’s volumes is useful
since firms that subscribe to only one of these sets can still
Shepardize the case.
There are a few differences in using one of these sets or another.

Shepard’s California Reporter Citations and Shepard’s Pacific
Reporter Citations include citations to cases in other states that
cite the case y ou are Shepardizing; Shepard’s California Citations
does not. However, Shepard’s California Citations, unlike the other
two series, includes citations to legal periodicals and opinions of
the attorney general.
When y ou Shepardize, y ou must check through each bound

volume and paper supplement of the series. The volumes are not
cumulative. Since Crawford was decided in 1976, y ou need to
check the bound volume and the paper supplements. Very recent
cases appear only in supplements. Be certain y ou are using the
correct volume. The cover of the latest paper supplement tells
y ou which volumes the library should have.
We will use 17 Cal. 3d 280, the California Reports citation, to

Shepardize Crawford. If y ou are reading this book in a library,
please follow along. We begin by finding the latest bound volume
of Shepard’s California Citations and turn to California Supreme
Court Reports 3d, volume 17. (The top of each page gives the
name and volume number of the reports y ou are using.) The
dark printed numbers in the text refer to the page of the reporter
in which the case begins. We are looking for 280. Under 280 we
find a column of citations (see below for examples of some of
the citations we will find; we have skipped some of the citations
found in Shepard’s so we can illustrate different kinds of
citations). Each citation refers to a legal authority (usually
another case) that has cited Crawford. Shepard’s calls the main
case (Crawford is our example) the “cited material,” and the
citations referring to it the “citing material.”
— 280 —
(130CaR724)
(551P2d28)
#s 46CA3d872
s 458US527
***
cc 113CA3d633
***
17C3d312
f 17C3d1314
d 17C3d316
f 17C3d6326
j 18C3d674
***
24CLA595
Let’s examine some of the citing material to Crawford. The first

two citations are in parentheses. You should recognize them as
parallel citations (see supra, p. 26), the citations to this case in
California Reporter and Pacific Reporter. Parallel citations appear
only in the first volume in which the case is Shepardized.
The next two citations have a lowercase “s” beside them. These
citations are to the case at various stages of litigation (i.e., the
history of the case). The first “s” citation means that this is a
citation to the same case in a lower court—the California Court
of Appeals—before it came up to the California Supreme Court.
The following “s” citation refers to the case’s appeal to the United
States Supreme Court. Note that the first of these two citations has
a “#” sy mbol before the lowercase “s”—this “#” sy mbol
indicates that the citing case’s value as precedent is
71
questionable (for example, because the case is up for review in a

higher court, or the court has ordered the case depublished); y ou
should do more research before citing to this particular case as
authority.
The next citation in our illustration is preceded by “cc.” The “cc”

means that this is a connected case; that is, the case is different
from the case cited but arises out of the same subject matter or
involves the same parties.
Except for the last citation in our illustration, the remaining citing
material can be generally explained as citations to cases that
have made reference to Crawford. A lowercase letter preceding
the citation (like an “f,” “d,” or “j” here) will tell y ou something
more about the reference. For example, “f” would mean that the
case is following a principle of law set forth in Crawford, while
“d” means that the case is distinguishing itself in law or fact from
Crawford. The letter “j” refers to Crawford’s being cited in a
dissenting opinion. The citations given here include the page
number that has the reference to Crawford, rather than the page
number on which the case begins.
An Abbreviations-Analy sis chart, explaining each letter

abbreviation, appears in the front of every Shepard’s volume.
The chart separates those abbreviations that refer to the history
of a cited case (for example, whether it was “r” reversed or “m”
modified on appeal to a higher court) and those that refer to the
treatment of a cited case (for example, whether other cases “f”
follow its principles or “c” criticize them).
The last citation in our illustration is to a law review that mentions

Crawford, the U.C.L.A. Law Review. An Abbreviations-Reports
chart explaining the abbreviations used in the citations is also in
the front of each Shepard’s volume. You would be wise to consult
this chart since Shepard’s does not alway s follow the accepted
abbreviations for reporters and other sources.
Several of the citations in the citing material to Crawford include

a small superior number to the left of the page number. For
example, the seventh citation in our illustration contains a
superior number 1. This number refers to the principle of law
stated in headnote 1 to Crawford. (In chapter III, we discussed
headnotes, indicating that many more principles of law are stated
in the headnotes than the court actually rules upon.)
If y ou are only concerned with a principle of law stated in a
certain headnote, whether dicta or holding, y ou need only check
those citations in the citing material that have the same superior
number. Shepard’s editors will only include the headnote number
when the reference made to the principle stated in the headnote
is clear. Thus, sometimes the superior number is more helpful as
an elimination device of those principles in the case with which
y ou are not concerned, rather than as an exact finding device. Be
wary when using superior numbers to narrow y our search.
Editors who wrote the headnotes may have misread the case, or
the judge who cited the case as authority may have erred in
understanding the problem. Also, a case may imply more than it
say s—it may, for example, overrule an earlier case by
implication—and an editor needing to keep a conservative
interpretation will not be able to provide an appropriate notation
to signal this situation. When in doubt, read the citing case to be
sure it does or does not concern y our problem.
For further help on how to use Shepard’s Citations, check the

illustrative case in the front of any bound volume.
(1) Supplements
Remember, y our Shepardizing is not complete until

y ou have checked through the y ellow, red, and/or blue
paper supplements to bring y ou up to date. (See infra, p.
74.)
72
b. Using Shepard’s Citations for Research
Shepard’s includes in its citing material every case that cites,

whether in holding or dicta, the cited case. The company makes
no editorial judgment. Since many of the citations will be taken
from dicta, many of the citing cases in Shepard’s will be only
peripherally (if at all) concerned with the principle of law in
y our case. Thus, it is usually a waste of time to use Shepard’s in a
search for additional cases dealing with a precise point of law
with which y ou are concerned.
Moreover, since Shepard’s only includes citations to cases that

refer to the earlier or cited case, if another case similar to the
cited case does not mention the cited case in its opinion, y ou will
not find the other case by using Shepard’s. For example, if a
judge is considering a problem similar to the one in Crawford but
does not know of the Crawford decision, he will not refer to
Crawford in his opinion. So in Shepardizing Crawford, y ou will not
come upon this other case. This is not an unusual situation. Judges
often miss an important case because the opposing lawy ers did
not include the case in their briefs and the judge relied on their
work instead of personally researching the problem. Or perhaps
the other case moved through the courts at around the same time
as y our case and so there was no record of the other decision at
the time the decision in y our case was rendered.
Shepard’s is best suited for, and should only be used in,

determining the history of a case and its later treatment by other
cases. Digests, treatises, ency clopedias, looseleaf services, law
reviews, and online sources should be used when y ou are looking
for cases and authorities on a particular point of law.
(1) Reminder
After y ou have Shepardized y our own material and

determined that it is still recognized as good law, check
y our opponent’s citations. You will be surprised to see
how frequently people do not Shepardize their
authorities carefully.
2. Shepard’s Statute Citations
Shepard’s publishes Citations to state and federal statutes. The history of an

act and the congressional or legislative actions that affect the act are
indicated by letter abbreviations. An addition or amendment to the law, the
repeal of all or part of the law, or a new provision superseding the law are
all clearly marked. Court interpretation of a statute, including declaring it
constitutional or unconstitutional, is also indicated in the citing material.
Complete tables of abbreviations (Abbreviations-Analy sis and
Abbreviations-Reports) are in front of each of the volumes.
Shepard’s Federal Statutes Citations for federal law and separate state
citators for state law include not only codified and uncodified statutes, but
also constitutions and court rules. Shepard’s Federal Statutes Citations
Shepardizes the United States Constitution, the United States Code,
uncodified statutes in United States Statutes at Large, treaties, sentencing
guidelines, and federal court rules. Shepard’s Citations for various states
(e.g., Shepard’s California Citations) include sections for state cases that cite
the United States Constitution, the United States Code, and federal court
rules, as well as sections for Shepardizing the state constitution, the state
codes, the state uncodified session laws, and state court rules. There is also
a table of State Acts by Popular Name or Short Titles, and a section
Shepardizing city charters and ordinances. (Another helpful series,
published by West and entitled Ordinance Law Annotations, organizes the
material topically to simplify y our search.) In the larger states, Shepard’s
publishes a separate statute edition; smaller states combine case and statute
citations in one volume. (See the Addenda for sample pages.) Shepard’s
Citations, Statute Editions, are on LexisNexis for all state and federal
statutes.
73
3. Other Shepard’s Citations
a. Shepard’s United States Administrative Citations
This edition of Shepard’s Shepardizes board, commission, and

court decisions of approximately 20 federal administrative
agencies. Included are Treasury Decisions, Federal
Communications Commission Reports, Federal Trade
Commission Decisions, Securities and Exchange Commission
Decisions and Reports, and Opinions of the Attorney s General.
b. Shepard’s Code of Federal Regulations Citations
This edition covers C.F.R., Presidential proclamations, executive

orders, and reorganization plans.
c. Law Reviews
Shepard’s Law Review Citations lists most state and federal court
decisions, as well as other law reviews that cite the article in the
law review being Shepardized. Shepard’s Federal Law Citations in
Selected Law Reviews contains references from selected major
law reviews to federal decisions and statutes.
Shepard’s Federal Citations and the various Shepard’s Citations

for various states also include articles from certain law reviews
in their citing material.
d. Specialty Editions
Shepard’s publishes a number of editions for particular areas of

the law. Here are some of the specialty editions:
(1) Shepard’s Labor Law Citations;
(2) Shepard’s Bankruptcy Citations;
(3) Shepard’s Intellectual Property Law Citations;
(4) Shepard’s Professional and Judicial Conduct Citations;
(5) Shepard’s Federal OSHA Citations;
(6) Shepard’s Criminal Justice Citations;
(7) Shepard’s Military Justice Citations;
(8) Shepard’s Restatement of the Law Citations;
(9) Shepard’s Federal Tax Citations;
(10) Shepard’s Federal Energy Law Citations;
(11) Shepard’s Immigration and Naturalization Citations;
(12) Shepard’s Labor Arbitration Citations;
(13) Shepard’s Uniform Commercial Code Citations; and
(14) Shepard’s Federal Circuit Table Citations.
e. Popular Name Tables
What if y ou wanted to read the several federal Watergate cases

or the South Dakota Dance Hall Act, but did not know the names
of the cases or the citation to the statute? How would y ou find
them? One way is to look them up in Shepard’s Acts and Cases by
Popular Names. This set covers both state and federal law.
74
You can also find popular case names in the Decennial Digest
and in the United States Supreme Court Digest (both published by
West) and popular named statutes in most of the annotated state
and federal statutes and in Shepard’s state statute editions, under
Table of Acts by Popular Names or Short Titles.
4. Updating Shepard’s
Shepard’s Citations supplements its bound volumes with a y ellow-covered

intermediate paper supplement, quarterly red paper-covered cumulative
supplements, and blue-covered advance sheets. (Some Shepard’s editions
do not issue the blue advance sheets.) You can also check LexisNexis in
updating Shepard’s. Shepard’s online coordinates all of the volumes,
providing a list of all citing cases and case names. Because the LexisNexis
Group owns Shepard’s, Shepard’s appears only on LexisNexis.
When researching through Shepard’s, be sure to check if there is more than

one bound volume in the series y ou are using. The red bound volumes may
not be cumulative; y ou need to check through each one that includes y our
cited material. To be certain y ou have researched through the complete
set, check the covers of the y ellow, red, and blue supplements. They detail
the bound volumes and supplements that make up that particular series.
1. West’s Blue and White Books
West publishes the National Reporter Blue Book. It provides parallel cites to
state and national reporters. West also publishes “Blue and White Books”
for various states (e.g., California Blue and White Book) which cross-
reference parallel citations in official and unofficial reports. These books
are often found alongside the reporters of the jurisdiction.
2. Looseleaf Services
Since many looseleaf services are revised weekly (see chapter VI), they
are frequently a useful source for the latest cases, statutes, and regulations.
But looseleaf materials are not available in every field, and where they are
they may not be as complete as Shepard’s in including all citing material
(although what the editors leave out is usually not very important).
3. Websites and Phone Calls
If a case on which y ou are rely ing is now on appeal (Westlaw, LexisNexis,

and other electronic services tell y ou whether a case is being appealed),
y ou can call the appellate court or check the court’s website and find out
whether a decision has been reached. The National Center for State Courts
maintains a list of state court websites at http://www.ncsc.org. For federal
appellate court information, use the Court Locator at
http://www.uscourts.gov.
Also, if y ou are tracking a federal case through appeal, Public Access to

Electronic Records (“PACER”; http://www.pacer.gov) allows y ou to search
federal filings and docket information electronically. Registration is free,
but PACER charges per page retrieved in each search. However, fees of
less than $15 per quarter are waived, and some law libraries maintain
PACER accounts for public use.
4. State Updating Services
Several states have updating services for their case and statutory materials.
You can check in the library ’s catalog or with y our librarian.
75
Chapter Eight:
Online Legal Research
CONTENTS
A. Introduction
76
A. Introduction
1. Where to Start
Law schools, law firms, and county and bar association libraries research
the law online. Computers can speed up y our search of the law, but unless
y ou use the proper key words—as in traditional legal research—they will
not be very helpful. Consequently, y ou should know something about the
subject y ou are researching before y ou begin using a computer research
sy stem. If the subject is unfamiliar to y ou, begin with an ency clopedia or a
treatise to obtain an overview of the area. Many such secondary sources
are also available through the online research sy stems discussed below.
2. Online Research Systems
The two computerized legal research sy stems in widest use are LexisNexis
and Westlaw. LexisNexis is owned by Reed Elsevier. Westlaw is a product
of Thomson Reuters. Both sy stems also provide access to certain nonlegal
materials. Many governmental institutions now provide online information
and access to official documents, often in PDF (“Portable Document
Format,” accessible through free software from Adobe.com). Because
Westlaw, LexisNexis, and other online sources are updated daily, they often
provide a faster retrieval of current material than do many hard-copy
sources.
1. Contents
LexisNexis is organized into more than 15,000 databases, called “discrete

sources,” which consist of materials from specific jurisdictions or
particular fields of law.
a. Federal Sources
The federal sources contain the text of the United States Code
and legislative history and materials, as well as the Federal
Register and Code of Federal Regulations. Federal sources also
contain United States Supreme Court briefs and decisions; federal
circuit and district court decisions (including unpublished
decisions); and federal court rules.
b. State Sources
State sources include case law (including unreported decisions),

court rules, state codes and constitutions, and administrative
decisions from each state, the District of Columbia, Puerto Rico,
and the Virgin Islands.
c. International Sources
International sources include legal materials from Asia/Pacific

Rim, Europe, Latin America, Mideast/Africa, etc., as well as
sources on International Law and International Trade.
d. Other Sources
Secondary and other resource sources include law reviews, news

services, CCH materials, and a full range of Matthew Bender
reference materials. LexisNexis also organizes materials into
“practice areas” including, for example, antitrust, estate
planning, corporate mergers and acquisitions, family law,
intellectual property, and real estate, allowing y ou to access
numerous tools and information related to that practice area
from one location within LexisNexis.
77
2. Searching
To conduct a LexisNexis search on Lexis.com, which is the traditional

search engine platform, y ou can use either their “natural language” (plain
English) method or their “terms and connectors” sy stem. In the latter
sy stem, y ou must first select words that y ou think would appear in y our
problem. You then connect them with modifiers, like “AND,” “OR,” and
“W/N” (“N” equals any number of words appearing within a certain
proximity ). For example, if y ou were interested in finding cases where a
labor dispute has occurred, y ou might use the terms “Labor AND
Dispute.” LexisNexis would then find all cases in its database containing the
key words. However, such a search would miss cases where a court did not
use these terms. On the other hand, because these words appear frequently
in cases, y our search could be too broad. It is thus important in a computer
search, as in any legal research search, to try several other terms as well.
In our example, we might add words like strike, lockout, employ er, and
union, and use the modifiers to obtain different combinations.
When a proper search request has been formulated, y ou then ask the
sy stem to display the cases it has found. In the LexisNexis sy stem, the
most recent cases appear first. The screen will begin by display ing the
segment of the case that contains the words y ou selected. You may then
request that more of the text be shown, or simply request the computer to
go on to the next case.
After the search is completed, the screen will indicate the number of cases
containing y our operative words. If there seem to be too many or too few
results, y ou may decide to reformulate y our command by either
broadening or narrowing y our list of key words and changing y our
connecting terms.
LexisNexis may also be used as a citator. It provides access to LEXCITE

and Shepard’s Citation Service.
LexisNexis now has Lexis Advance, its next generation of search engine
interface, to make the research experience an easier one (similar to
WestlawNext, see infra, p. 78). It allows the researcher to insert a search
request more similar to “natural language” rather than construct a terms
and connectors search. However, a researcher can use terms and
connectors if he or she wants to make a more precise search. LexisNexis is
encouraging its subscription customers to shift to Lexis Advance as the
preferable method of research since it is becoming the dominant search
platform for LexisNexis. Additionally, Lexis Web pulls content from
selected Internet sources and is available for free online at
http://www.lexisweb.com. (For a detailed discussion, see infra, p. 80).
3. Keeping Current
Once y ou have conducted and saved a search in LexisNexis, y ou can use

the Alert feature to receive updated results of that search either monthly,
biweekly, weekly, or daily. The Alert feature automatically sends the
search results to y ou (e.g., by e-mail) as LexisNexis databases are
updated.
4. Other Databases
LexisNexis and Westlaw provide a wealth of legal and nonlegal materials

online. For example, y ou can find cases, statutes, administrative
regulations, bills, committee reports, citations, and decisions of a particular
judge or involving a particular party, as well as newspapers, magazines,
medical reports, and wire services. Check the continually revised catalogs
of each company to see what they cover in their libraries and databases.
78
1. Contents
Westlaw provides full-text coverage of reported cases from the appellate

courts of all states plus the District of Columbia. Other available state
materials include statutes and administrative material. Westlaw also
contains sy nopses and headnotes from the West Reporter Sy stem.
The federal material available from Westlaw includes: full text of the
United States Code; decisions from the United States Supreme Court
(available within 30 minutes after issuance), circuit courts of appeals, and
district courts—all cases from each court’s inception; as well as United
States Tax and Bankruptcy Courts, Military Courts, Court of Claims, and
federal administrative decisions. Westlaw also has an
International/Worldwide Directory which includes access to legal materials
from various regions throughout the world (for example, legislation, case
law, and regulations from the European Union).
In addition, Westlaw provides databases containing material of special
interest, such as in the areas of securities, labor, bankruptcy,
communications, antitrust and business regulation, government contracts,
federal tax, and intellectual property. The text of Black’s Law Dictionary is
also included on Westlaw. Also, as with LexisNexis, Westlaw accesses state
codes and certain “unreported” state and federal decisions that although
issued by the courts are not published in the reporters.
2. Searching
Requests to Westlaw Classic may be made by using Westlaw’s “natural

language” (plain English) language sy stem or by using a
connector/modifier sy stem similar to LexisNexis, although Westlaw uses
“terms and connectors” such as “/p” (words that appear in the same
paragraph) or “/s” (words that appear in the same sentence). You may also
search Westlaw by key numbers (as found in West digests, headnotes, case
reports, and Corpus Juris Secundum). Cases are usually display ed on the
Westlaw screen in reverse chronology, although they could also be
display ed in descending order of probable importance (based upon
frequency of appearance of key words). Westlaw’s citator service is
Key Cite.
3. Keeping Current
WestClip allows y ou to keep updated on specific legal news. You set up the
search terms, the database y ou would like searched, and how often y ou
would like to be updated, and WestClip automatically delivers the
information to y ou (e.g., via e-mail) as Westlaw’s news databases are
updated. Key Cite Alert enables y ou to stay abreast of the status of cases,
statutes, and administrative materials. When Westlaw’s citator service,
Key Cite, is updated, the results are automatically forwarded to y ou.
4. Other Databases
(See supra, p. 77.)
5. WestlawNext
Westlaw has introduced WestlawNext as a new option for researching. The

changes are intended to provide an easier research experience, similar to
Google searching, by allowing the user to search without using terms and
connectors or isolating databases. Users may still use terms and connectors
if they wish. Other enhanced features allow users to create folders to
organize their research, highlight language, and make notes. Both
WestlawNext and the classic format are currently available to Westlaw
subscribers but it is expected that WestlawNext will evolve into the
dominant search platform
79
for Westlaw because of its enhanced features that make research easier. In
addition to the website, WestlawNext is also available to subscribers as a
mobile application.
1. In General
Much of the material found in LexisNexis, Westlaw, and other online

subscription services can be found on governmental websites and through
free online services. Examples include:
2. Findlaw
Findlaw (http://www.findlaw.com), an independent division of Thomson

Reuters, is a good place to begin. It will direct y ou to legal subjects, legal
blogs, law school information, professional development, legal
organizations, law firms, as well as cases, codes, federal and state
government materials, foreign resources, and legal practice materials.
3. WashLaw Web
The Washburn University website also is a good place to start. WashLaw

Web (http://www.washlaw.edu) provides numerous links to state and federal
reference information available on the Internet, including court and
government news, journals, directories, legal research, and general
reference.
4. Legal Information Institute
A product of Cornell Law School, Legal Information Institute

(http://www.law.cornell.edu) offers access to the United States Code, the
United States Constitution, the Code of Federal Regulations, the Federal
Rules of Evidence, Criminal, and Civil Procedure, the Uniform
Commercial Code, and United States Supreme Court and federal circuit
courts of appeals decisions, as well as recent decisions of courts of special
jurisdiction (Armed Forces, Tax Court, etc.). It also offers recent opinions
of the New York Court of Appeals and a community -built legal dictionary
called Wex.
5. THOMAS
THOMAS (http://thomas.loc.gov) is a Library of Congress service, offering

legislation (bill status and text, and public laws), the Congressional Record,
and committee information. THOMAS also provides congressional contact
information and voting records, as well as links to the websites of other
legislative agencies.
6. GPO Federal Digital System
The U.S. Government Printing Office (“GPO”) provides access to official

government documents and publications from all three branches of the
federal government and regulatory agencies. GPO’s Federal Digital
Sy stem (“FDsy s”) is online at http://www.gpo.gov/fdsy s. FDsy s replaced
the “GPO Access” sy stem in spring 2011.
7. Guide to Law Online
The Law Library of Congress and the Global Legal Research Center
provide an excellent international legal resource, the Guide to Law Online
(http://www.loc.gov/law/guide). It provides access to sources
80
of global information, including constitutions, statutes, and case law from

the world’s nations, as well as multinational and international sources.
8. NCCUSL
The National Conference of Commissioners on Uniform State Laws

(“NCCUSL”) website (http://www.nccusl.org) contains the text of uniform
and model state laws drafted by NCCUSL, as well as summaries of the
uniform laws and listings of the states that adopt them in whole or in part.
9. Google Scholar
Google has created a limited free database of court opinions, books, and
journals (http://scholar.google.com). The growing database contains court
opinions for state appellate courts and supreme courts since 1950; federal
trial, appellate, tax, and bankruptcy courts since 1923; and the United States
Supreme Court since 1791. Google Scholar also allows y ou to search by
court to help y ou limit y our search. It does not provide all of the same
research features found in commercial search engines such as LexisNexis
and Westlaw. It also has a limited citatory feature to identify subsequent
cases that have come down after the issuance of y our case. It does not
evaluate the treatment that those courts have given to the case or whether
y our case is still good law.
10. Lexis Web
LexisNexis has introduced a free search engine that pulls results from
select Internet sources that have been validated by LexisNexis
(http://www.lexisweb.com). The web content is augmented with
recommended links to subscription LexisNexis content. As with search
engines such as Google, terms and connectors are not required. However,
the search scope may be limited by practice area and jurisdiction, and the
results may be filtered by source, file ty pe, etc.
11. Public Library of Law
Fastcase (see infra, p. 81) has created the Public Library of Law
(“PLOL”), a legal web portal available at http://www.plol.org. The site
hosts recent state and federal case law, which can be searched in plain
English or with “terms and connectors” like LexisNexis. Free registration is
required to access the full text of recent cases, but the site makes older
cases available only through a paid Fastcase subscription. PLOL’s portal
also links to court rules, statutes, regulations, legal forms, and more.
12. The Fastcase App
Fastcase (see infra, p. 81) provides its federal and state case law and
statutory libraries by subscription. It has free downloadable applications for
Apple devices such as iPhone and iPad (http://www.fastcase.com/ipad) and
Android devices (http://www.fastcase.com/android) such as smartphones
and tablets.
13. Explore the Internet
Throughout this book, we have referred to websites providing alternative

sources of legal information. In addition, the Library of Congress website
(http://www.loc.gov) provides links to many federal, state, local, and
foreign legal resources on the Internet. The links are organized by source
and by topic. Also visit the U.S. Government’s official web portal at
http://www.usa.gov for information and links to government department and
agency websites.
81
1. In General
A number of companies have entered the legal field providing online legal
materials through their websites—some by paid subscription, some free (as
those on pp. 79–80, supra). Examples of subscription or paid services
include the following:
2. Loislaw
Loislaw (http://www.loislaw.com), a Wolters Kluwer company, offers

LoislawConnect, which requires paid access to cases, statutes, constitutions,
court rules, etc., for all 50 states and the District of Columbia, as well as
treatises and legal forms. LoislawConnect also has federal circuit court and
district court databases, and a Bankruptcy Court collection.
3. Versus Law
The Versus Law website (http://www.versuslaw.com), available by

subscription, includes court opinions from the United States Supreme Court,
all federal circuit courts of appeals, federal district courts, all state
appellate courts, and Native American tribal courts. Versus Law also
includes the federal code and Code of Federal Regulations.
4. HeinOnline
HeinOnline (http://heinonline.org) contains dozens of libraries, including the

Law Journal Library, the Federal Register Library, the Treaties and
Agreements Library, and the United States Supreme Court Library.
Although it is available only by subscription, many law schools subscribe to
it, thus making it available through the school’s website. All HeinOnline
libraries are image-based and fully searchable, and exact page images are
provided.
5. Bloomberg Law
Bloomberg Law (http://www.bloomberglaw.com) is an online research

sy stem available by paid subscription. It integrates legal research with
Bloomberg’s established database of financial information. Bloomberg
Law’s services include a proprietary law digest, law reports, and an online
citator verification sy stem (see supra, p. 66).
6. Fastcase
Fastcase (http://www.fastcase.com) is an online research sy stem available

to individuals, law schools, and law firms, and offered by several bar
associations as a free member benefit. Fastcase’s paid subscription
database includes cases, statutes, regulations, news, and legal forms, and
integrates the PACER sy stem for federal docket searches (see supra, p.
74). Fastcase also provides a free mobile application that allows users to
research cases and statutes without a subscription (see supra, p. 80).
83
Chapter Nine:
Reading and Understanding a Case
CONTENTS
B. Sample Brief
84
1. In General
Finding a case is only the beginning. The real problem and the place where
most people find themselves sty mied is in reading and understanding the
case they have found. What are the highlights of the decision—the most
important points? What were the facts, what issues did the court consider,
and how did it resolve these issues? In law school, the method of separating
the wheat from the chaff of a decision is called “briefing” a case.
2. Briefing Cases
As the word implies, a brief is a concise outline of the court decision. (This
term “brief” should not be confused with a “brief” filed by an attorney in a
court. A brief in the latter context is a forceful presentation of the issues and
law involved in the client’s case. It is designed to persuade the court to
decide in the client’s favor.) Briefing a case helps y ou organize y our
thoughts and determine what the court is actually say ing. Because many
court opinions are long-winded and often shrouded in legal terms, briefing
is a more difficult skill than first imagined. It is not surprising to find that
many law students and even lawy ers will misread cases and jumble their
analy sis of the law on the subject under investigation. Without this skill, y ou
will never be very effective in doing legal research and writing.
There are several times when y ou should brief a case. The first and most
important is to help y ou understand what is going on. It is to this concern
that we have written this chapter.
In doing research, a good brief will cut down y our time measurably. You
will not have to go back to read the case again because y ou cannot
remember what it said and y our notes are all jumbled. It will also make it
simpler for y ou to be well organized in preparing y our own case in court or
at an administrative hearing.
Remember, a brief is just that. It is designed to give the reader an insight

into the basic points of the case—no more. If the reader is interested in
knowing more, she can alway s look up the case.
Following our discussion on briefing a case, we reprint an actual decision of

the United States Supreme Court. In the hope that y ou will first try to brief
this case y ourself, we will conclude the chapter with a brief of the case.
a. Suggested Format
This is the outline we will use in briefing a case:
(1) Name and citation;
(2) Court;
(3) Judicial history ;
(4) Facts;
(5) Issue(s);
(6) Holding(s);
(7) Reasoning;
(8) Decision;
(9) Concurring opinion(s); and
(10) Dissenting opinion(s).
85
To help illustrate the writing of a brief, we will work with a simple

set of facts from a fictitious case:
Lafcadio Hearn’s landlord, Knut Hamsun, has not repaired the

broken toilet in Hearn’s apartment. Hearn decides not to pay rent
until Hamsun fixes it. Ten day s after the rent is due and unpaid,
Hamsun sues to evict Hearn in the state’s trial court. In court,
Hearn argues that he should not have to pay rent when the place
is uninhabitable. The trial judge rules in favor of Hamsun, say ing
that although he may sy mpathize with Hearn, there is no state
statute allowing this kind of rent withholding. Hearn appeals to the
state court of appeals, which agrees with the trial court. Hearn
now appeals to the state supreme court. (For an actual decision
dealing with a similar set of facts and law, see Green v. Superior
Court, 10 Cal. 3d 616, 517 P.2d 1168, 111 Cal. Rptr. 704 (1974).)
b. Name and Citation (Including Year)
The name of a case is usually two names separated by the

abbreviation “v.,” which stands for “versus.” The name of our
case is Hamsun v. Hearn. The case name is either underlined or
in italics. First names are not used unless they are part of an
organization’s full name or title (e.g., Joe Roth Fund v. San
Francisco Gazette). It is not necessary to add the names of other
plaintiffs and defendants involved in the case, nor even to use the
Latin phrase et al. to indicate their existence. The name of the
case is only a means of identification. If someone is interested in
the other parties to the case, he can look it up.
Give all the citations—official and unofficial, the official

appearing first. (Citations are discussed supra, pp. 25–26.) The
y ear of the decision follows the citations. Be sure to include it; it
makes a difference whether the case was decided in 1959 or
2001.
c. Court
Alway s note the court that rendered the decision. Because there
is a hierarchy in our court sy stem, a decision by one court may
be more important than a decision by another. To understand the
full effect of the decision—that is, its precedential value—it is
necessary to know whether the highest court, an appellate court,
or a trial court issued it. Be sure to give the precise name of the
court to avoid any confusion. In our example, we are in the state
supreme court.
d. Judicial History
The judicial history (often referred to as the “procedural
posture”) of a case is the history prior to where the case is now. It
considers questions such as: What was the plaintiff asking for
when he first brought the case; that is, what “judicial relief” did
he want? (Sometimes, the defendant may not only defend the
action but also bring his own lawsuit or claim against the plaintiff
in the same action. The defendant’s affirmative suit against the
plaintiff is called a “counterclaim” or a “cross-complaint,”
depending on the jurisdiction.) What happened to the case in the
lower court(s)—what decision(s) were made on the rights of the
parties?
A judicial history of our example would read: Plaintiff-landlord

brought action to evict defendant-tenant for nonpay ment of rent
and to recover the rent due. Trial court ruled in favor of plaintiff,
as did court of appeals. Defendant appealed to the state supreme
court.
e. Facts
We cannot overemphasize the importance of facts. Every thing

else is determined by them. Had the facts been different—even
slightly —the issues, the holdings, the reasonings, and the decision
would likely have been different.
86
In reading a case, pay close attention to the presentation of the

facts: Which facts does the court consider important, and which
does the court pass over? The seed of the decision lies in the
facts.
Read the case through. Often y ou cannot tell which facts the
court considered essential to the decision until y ou have read the
entire case. Then, in briefing, y ou will be able to glean the most
important points so that y ou will not find y ourself overwriting.
No matter how long and detailed the facts are in a case, y ou can
usually filter them down to a few sentences. People who begin
writing briefs usually write too many facts. Remember, a brief is
only an outline; someone who is interested in every detail can
alway s go and read the case.
The facts of our case would be: Landlord did not repair a broken
toilet in tenant’s apartment. The tenant claimed the place was
uninhabitable and refused to pay rent until the landlord made the
repairs.
As y ou gain experience in reading cases, y ou will see how

judges play around with a set of facts, manipulating them to
reach a desired decision. They will try to make the plaintiff or
defendant an object of sy mpathy, depending on whom they think
should win. Often one judge on an appellate court will emphasize
one fact while another judge will emphasize another. Basing their
decisions “on the facts,” the two judges will then reach different
conclusions.
Judges also play around with facts when looking at earlier,

possibly precedent-setting cases. If a judge agrees with a
decision of an earlier case, she will often say that the facts of the
earlier case are similar to the facts in the present case, and hence
will reach a similar decision. If the judge disagrees with the
earlier decision, she may “distinguish” the earlier case “on its
facts” and conclude that the earlier decision would not apply in
the present case. The judge will then decide her case differently.
The clever attorney will thus present the facts of his case in a
way to be as similar as possible to those of an earlier decided
case in which the outcome is the same as that which the attorney
wishes to reach now.
f. Issue(s)
The issue is the principle of law the court is considering. It is

strictly determined by the facts of the case. If the facts were
different, the issue would likely be different.
The issue is presented as a question of law. It may be written in

terms of the particular facts of the case, or in general terms. In
our example, the issue in specific terms would read: Can the
tenant withhold his rent until the landlord repairs the toilet? In
general terms it might read: Can a tenant withhold his rent until
the landlord brings the place up to a habitable condition?
The problem with writing an issue in general terms is that it may

reach too far. For example, in our case what is habitability ? Does
a broken stove mean the place is uninhabitable? What about a
broken shelf or broken drawer? Because cases are interpreted in
different way s by different lawy ers and judges, a general issue
has much more chance of being inaccurate or misleading.
Nevertheless, because law needs to establish precedent, a

decision must necessarily y ield a principle of law somewhat
larger than a statement just to the particular facts of the case. But
the question is, how much larger? It differs with each decision—
how broad or narrow the judges try to make it—and with how
judges in later cases interpret the decision by expanding or
constricting it.
You should begin by constructing issues in terms of the specific

facts. This will give y ou a clear understanding of the case. It will
be easier later for y ou to expand the specific issue into a general
one, without overextending the principle, once y ou have grasped
the import and direction of the case.
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There may be more than one issue in a case. Rarely are there
more than two or three. A court can usually make its decision and
dispose of the case after deciding one or two points of law raised
by the issues. Other issues raised by the parties need not then be
considered. In briefing a case, only give the issues that are
actually decided by the court and are necessary to the decision.
Remember, as we noted in chapter III, the headnotes to the case
refer to many more principles of law than are actually raised by
the issues in the case and decided by the court.
g. Holding(s)
A holding answers the question and settles the principle of law

raised by an issue. There is a holding for each issue. Holdings,
like issues, may be written in general or specific terms. Here,
too, we suggest y ou begin with a specific holding, one in terms of
the particular facts of the case. Then, when y ou have a good
understanding of the decision, y ou can expand the holding to a
more general one, being careful not to overbroaden it. A general
holding has more value since it covers more than y our specific
fact situation. However, later courts, dealing with similar
situations, will determine precisely how broad or narrow the
range of the holding should be.
The specific holding in our case would be: The tenant can
withhold his rent until the landlord repairs the toilet. In general
terms it might read: A tenant can raise the defense of “warranty
of habitability ” and withhold his rent until the landlord makes the
necessary repairs to bring the place up to a habitable condition.
Since most courts can decide a case by resolving only one or a

few issues, y ou will rarely find a case with more than two or
three necessary holdings. When a court discusses additional
incidental points of law, points not necessary to the decision, it is
reciting “dicta.” A principle of law stated in dicta is not binding
precedent on later courts—only a holding is.
If y ou are having trouble determining the holdings in the case, do

not rely on what the headnotes to the case say. Most of the
principles in the headnotes are dicta. Instead go back to y our
issues. Remember, y our holdings must answer the questions of
law raised by y our issues. There are only as many holdings as
there are issues, and there are only as many sets of issues and
holdings as are needed to dispose of the case.
h. Reasoning
A judge must give reasons for the holding. She must show that the
holding was arrived at thoughtfully and logically and that it is
consistent with earlier cases. Our sy stem of law is based on these
premises. Even judges who from the first know which way they
will decide a case understand that explanations must be given to
support their decision.
In our example, the reasonings would include:
(i) The old law requiring tenants to pay rent regardless of the
condition of the place dates back to an agricultural era where
leases were for land, the house being merely “incidental.” The
farmer could usually make the necessary repairs. Today, leases
are largely for urban dwellings, and the tenant lacks the skills or
finances to make the sophisticated repairs.
(ii) In other consumer contracts, the law recognizes implied

warranties and the rights of the consumer to enforce them.
(iii) Because of the scarcity of low-rent housing, tenants have
little bargaining power to negotiate for proper maintenance and
repairs.
Depending on the complexity and the importance of a case, two

to four reasons are usually sufficient to support a holding.
Remember, y ou need to give reasons for each holding in y our
brief.
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i. Decision
The word “decision” is often loosely used interchangeably with

“opinion” or “case,” e.g., “the decision held that ….” But we will
give it a narrower, more defined interpretation in our brief
outline: The decision disposes of the case. It tells which party
prevails. If the case is in a trial court, the judge will grant
judgment in favor of the plaintiff or defendant. If the case is in a
higher court, the decision will affirm (agree with) the lower court
ruling, reverse (disagree), modify (agree in part, disagree in
part), vacate (annul), or remand (return) it for further
proceedings or a new trial. The precise words are usually found
at the very end of the case. Note the difference between a
holding, which establishes a principle of law, and a decision,
which is concerned with the outcome and the parties.
In our example, the decision would read “reversed and

remanded.” That is, the supreme court reversed the decision of
the court of appeals and remanded the case back to the trial court
for a new trial based on the law as established in this case.
j. Concurring Opinion(s)
The court opinion we just briefed is the majority opinion. It is the

one with which a clear majority of the judges are in accord. But
it is not alway s the only opinion y ou will see in a case. Often y ou
will find judges who agree on the outcome of the case—the
decision—but who disagree on the principle of law—the holding
—that should be applied in reaching that decision. One or two
judges may, for example, wish to narrow or broaden the extent
of the holding. Or, the judges may agree on the holding but
disagree on the reasons for the holding. These judges who
disagree with the holdings or reasonings, but agree with the
decision, may write concurring opinions explaining their
differences.
There will be times when y ou will find a case with no absolute

majority opinion. That is, a majority of the members of the
court cannot agree on the same holding. For example, in the
United States Supreme Court case of Regents of the University of
California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750
(1978), four of the members of the Court agreed on one point
and four members agreed on another. The ninth member, Justice
Powell, voted with one set of four on one issue and with the other
group on the other.
Another example would be where a seven-judge court may

have four judges who agree on the decision, but only three can
agree on a holding, while the fourth would have a narrower
holding.
In these kinds of cases, each opinion will be given more concern

than a concurring opinion in a case in which there is a clear
majority opinion.
The extent of noting a concurring opinion in y our brief depends

upon its importance in the case. Where there is a clear majority
opinion (the usual case), examine the concurring opinion for any
additional insight it may give to the problem. If the opinion is
written by a learned, well-respected judge, it may merit more
attention.
Where there is no absolute majority opinion, each opinion should

be considered. (Where more judges join in one opinion than in
any other, but there is no “majority ” opinion, the lead opinion is
called the plurality opinion.) Of course, where a concurring
opinion discusses a point of law with which y ou are particularly
concerned, y ou should note it. Usually, two or three sentences
are sufficient to summarize a concurring opinion.
k. Dissenting Opinion(s)
A dissenting opinion is one that disagrees with the decision, and

necessarily also with the holding, reached by a majority of the
members of the court. For example, the majority decision may
be to affirm a lower court ruling, while the dissenting judge(s)
would reverse it.
89
Although the law is determined by majority decisions, minority

opinions serve an important purpose. Often they add to the
understanding of the problem and expose the holes or weaknesses
in the majority ’s position. In themselves, they may influence
future courts or the legislature to change the law. Dissenting
opinions may be ahead of their time or may tread behind.
Of course, higher courts will at times reverse lower court

decisions; thus a dissenting lower court judge may find herself
vindicated later on.
Just as with a concurring opinion, in noting a dissent in y our brief,

y ou need only indicate the points of disagreement and any other
information that would further y our understanding of the case. If
the dissent is by a well-respected judge or if y ou are concerned
with the matter (perhaps agreeing with the dissent), y ou may
wish to discuss the opinion in more detail. Usually two or three
sentences will do.
3. Reminder—Read Cases Thoroughly
Before y ou begin briefing a case, read it all the way through. Get a feel for
it. See how the court presents the facts and resolves the issues. If y ou are
unsure as to what is happening, read it again. If, after the second time, y ou
are still uncertain as to what the court is say ing, the problem may be with
the way the opinion is written rather than with any failing on y our part.
People often have trouble expressing themselves in print, and judges are no
exception. Do not ever simply rely on the headnotes or the summary of a
case.
B. Sample Brief
1. Example Case
On the next several pages, we have reprinted an entire decision of the

United States Supreme Court. Read the case through. Then prepare a brief
for it using the recommended outline (see supra, p. 85 et seq.). After y ou
have written y our brief, compare it to the brief that follows the case.
Remember: There is no magic way to write a brief. People’s briefs are as
different as people’s use of words. As long as y our brief is well-organized
and covers the main points of the case, y ou have done well. The following
example is only to help y ou see whether y ou have gleaned the proper
points. Your brief does not have to be precisely the same.
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2. Brief of Example Case
Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977) [We
have included all three reporter citations, although the case we are
reporting only provides its own United States Reports citation. The other
citations can be obtained by using LexisNexis, Westlaw or WestlawNext, or
Shepard’s Citations.]
Court: United States Supreme Court, opinion by Marshall, J.
Judicial History: North Carolina prison inmates sued in federal district

court, claiming that the state’s failure to provide them with legal research
facilities denied them access to the courts in violation of the Fourteenth
Amendment. The district court granted the inmates’ motion for summary
judgment, ordering the state to set up a legal research assistance program.
A library plan was proposed by North Carolina and approved by the court,
with the court holding in addition that the state did not also have to provide
legal advisors. The court of appeals affirmed in all but one respect (which
was not raised here). The state petitioned for review. The Supreme Court
granted certiorari.
Facts: At the time the prisoners filed these claims in district court, there
was only one severely inadequate state prison library. No other legal
assistance was available to these inmates who wished to prepare and file
federal habeas corpus and civil rights actions.
Issue: Must states protect the rights of prisoners to have access to the courts
by providing them with law libraries or alternative legal assistance?
Holding: States must provide prisoners with an adequate legal assistance

program, i.e., law libraries or legally trained persons.
Reasoning: Prisoners have a constitutional right of access to the courts.

Access must be adequate, effective, and meaningful to prevent claimed
violations of fundamental constitutional rights.
It is crucial that prisoners file proper procedural claims, since the court
may pass on the complaint’s sufficiency before allowing in forma pauperis
and may dismiss the case if it considers the complaint frivolous. Moreover,
without a library, a prisoner will be unable to rebut the state’s arguments.
The right to legal assistance is especially important here, where civil rights
and habeas corpus actions based on constitutional violations are concerned.
They frequently raise previously unlitigated issues.
Decision: Affirmed.
Concurring Opinion—Powell: The Court’s holding makes no implication as

to the constitutionally required scope of review of prisoners’ claims in state
or federal court.
Dissenting Opinion—Burger: Since there is no federal constitutional right

to attack state convictions collaterally in federal court, there is no basis on
which a federal court may require states to fund prison law libraries.
Dissenting Opinion—Stewart: Meaningful access to courts is seldom

advanced by making law libraries available to prisoners.
Dissenting Opinion—Rehnquist: There is no constitutional right of access

to federal courts to attack state court convictions. Prisoners have all had
direct appeal through the state court sy stem.
105
Chapter Ten:
Searching Through Legal Sources
CONTENTS
A. Introduction
B. Methodology
106
A. Introduction
1. Possible Next Steps for Research
Your next steps in researching will depend on how much y ou know about
y our topic. If y ou know very little about y our topic, y ou may want to
jumpstart y our research by first consulting a secondary source (see
chapter V), such as a legal ency clopedia, treatise, or law review article, to
get a general overview of the topic. You can do this either online or by
using the books. Many secondary sources are now available online. If y ou
do not find any secondary sources on y our topic, y ou may then have to
turn to the statute and case indexes to help y ou find relevant authorities.
2. Sourcebooks
Have y ou ever wondered how an index is written? Probably not. However,

a good indexer—one with organization, imagination, and insight—can make
the difference between an inadequate index and one that successfully
foresees how people will be using it and the key words they will be
considering.
All legal sourcebooks have indexes. They also have tables of contents.
Some include a table of cases. But it is the index that in the end determines
whether y ou will be efficient in finding the appropriate material. This
chapter will describe way s of searching through legal sourcebooks,
whether codes, treatises, ency clopedias, digests, looseleaf materials, or
indexes to legal periodicals. We will begin with a search through an index
and follow up with an examination of tables of contents and tables of cases.
3. Online Sources
Online legal sources like LexisNexis (or Lexis Advance) and Westlaw (or
WestlawNext) do not use indexes. Rather, they contain databases which
y ou can easily search by ty ping words in the source’s search function.
LexisNexis or Westlaw will then display the results of the key word search
for y ou. (See chapter VIII.)
B. Methodology
1. Choosing Keywords for Your Index or Online Search
a. Sample Problem
Roby n is a long-distance runner. While she is meditatively

running through Michael’s fields, Michael’s friendly and loveable
dog, Drifter, rushes up to greet her. Roby n’s trance is broken. In
her surprise, she trips over a rock and breaks her leg. Roby n has
to pay $1,500 for medical treatment. Can she collect this amount
from Michael?
In considering this problem, or any problem, y ou need to find the

words or terms that will lead y ou to the proper textual material of
the sourcebook y ou are using. To help y ou do this, y ou may wish
to use the following chart. Note that the topics to the left of the
chart need not be the only ones. If y ou think of another listing that
can help y ou locate material, by all means use it.
(1) People
What kinds of people are involved? Do they fit into a

larger named group—like infants, nutritionists, debtors,
or tenants?
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(2) Subject Matter
What things and places are involved? What groups do

these things or places fall into? For example:
automobile—vehicles, apartment—housing, redwood
tree—forest.
(3) Legal Theory
What kind of legal action is it and/or what kind of legal

defense can be raised? Filling in this box may be a bit
difficult at first since y ou may have to know some law
to find an appropriate term. But commonly known
terms like breach of contract, negligence,
misdemeanor, nuisance, or libel may often be enough
to start.
(4) Remedy Sought
What does the person bringing the lawsuit want? A

wage attachment, an eviction, a divorce, a name
change, money damages for an injury, an injunction to
halt a nuisance?
As in the “legal theory ” topic, y ou may have some

difficulty filling in appropriate words. But y ou need not
worry. Usually, the “people” and “subject” topics will
provide y ou with a sufficient number of key words to
get y ou started. Your search will uncover additional
words and perhaps even some legal terms.
109
b. Some Pointers When Using an Index or Conducting an Online Search
(1) You probably will not need all the words y ou enter into y our
chart. Some words are obviously better than others. But the more
words y ou think of, the more likely it is that y ou will hit upon
those that are best suited to lead y ou directly to the textual
material.
(2) Look up both general and specific terms in the index.

General terms in indexes will often be followed with specific
subheadings that can help y ou pinpoint y our sources. Similarly, to
conduct an online search, use both general and specific terms in
various combinations, and note whether the online service
requires y ou to use specific search terms and connectors or
supports plain English searches (see chapter VIII).
(3) Alway s check out several of y our words—do not stop with
the first one just because it leads y ou somewhere. Appropriate
textual material, cases, and statutes can often be indexed in
several places, and the first section y ou find—although helpful—
may not be all there is. It may even mislead y ou.
(4) When y ou find that the words y ou are looking up are cross-
referencing each other and/or overlapping on references to the
material in the text, y ou know y our search through the index has
been thorough.
(5) If y ou are having trouble thinking of words and sy nony ms

for y our chart, try using a dictionary or a thesaurus. The
dictionary need not be a law dictionary, since many of the words
are nonlegal. Online research sy stems like LexisNexis and
Westlaw may suggest similar terms when y ou search.
(6) Alway s check through supplementary indexes (those

separate pamphlets or inserts in the back of the main texts) to be
certain that y ou have located the most recent material.
2. Using a Table of Contents

If y ou are familiar with a subject, y ou may decide to approach the
material through the table of contents. Turn to the broad topic in the table
and scan the subtopics to find y our area of interest.
The problem with using the table of contents is that y ou may overlook other
important related and developing areas not arranged under the topic. For
example, the right to refuse a measles vaccination for y our child may be
discussed in both the health and safety and the constitutional law sections of
the text. Even someone familiar with the area may forget to check one
section or the other. A detailed index, with its many cross-references,
reduces the chances of this happening.
3. Using a Table of Cases
Many legal sourcebooks have tables of cases. If y ou know of a case

dealing with the subject matter in which y ou are interested, y ou can look it
up in the table and be directed to that section of the text that mentions the
case. If y ou only know the defendant’s name, y ou can use the Defendant-
Plaintiff Tables that often accompany the tables of cases.
Finding a section does not guarantee that y ou will be helped. Cases are
often cited for several distinct points of law. The table may refer y ou to a
section covering a point other than y ours. And where y ou are directed to
an appropriate section of the text, y ou may be missing other sections that
have nothing to do with the case but are equally or more important. So
when using a table of cases, take a few minutes to check the index as well.
You may be surprised at all the additional references it will provide y ou.
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Chapter Eleven:
Legal Writing and Analy sis—Basic Guidelines
CONTENTS
112
1. Introduction
In all professional areas, and perhaps especially in law, people can be so

involved with using professional jargon in their writing that they pay more
attention to terms than to meaning. A knowledge of terms is certainly
helpful, but it is never a substitute for clear and precise writing habits.
This chapter will help y ou improve y our writing and analy sis skills. It is not
designed to teach y ou a new way of writing, nor is it designed to show y ou
how to use words properly. If y ou are worried about y our grammar or the
proper use of words (e.g., “effect” or “affect”), check Strunk and White,
The Elements of Style. By being aware of the following basic guidelines,
y ou can make an appreciable difference in the way y ou communicate on
paper.
2. Organization
The secret to good writing is organization. There are two kinds of

organization: organizing y our raw material (research) and organizing y our
ideas into a document. We discuss organizing y our research in chapter XII.
To organize y our thoughts and ideas, try outlining.
3. Outlining
Good writing is a result of good thinking. Fuzzy writing means fuzzy

thinking. Unless y ou have thought it through before y ou begin writing, y our
writing will likely be more fuzzy than clear.
Many people think as they write. They work on the assumption that they
will “revise” their draft afterwards. After all, how difficult will it be to just
move a few paragraphs around on the computer? The problem is that
people often find themselves revising their draft over and over again. And
in many situations, no matter how many drafts y ou work through, y ou can
never really transform a poorly written document into a well-written one.
So finally, with time pressing, y ou just accept what y ou have and move on.
If y ou identify with this experience, y ou might want to try outlining the

problem before y ou begin writing. No matter how much y ou hated it in
school, outlining is really quite simple, and once y ou become comfortable
with it, y ou’ll be amazed at how easy it is. Just think and outline first; then
write. You’ll see the difference.
a. Comment
Sometimes people complain that outlining takes too much time.

But how long does it take to do draft after draft after draft? Often,
if y ou think it through carefully before y ou begin, y our first draft
will be y our only draft, with only minor corrections required.
You will ultimately save y ourself time.
b. Outlining Process
Begin by articulating the overall problem and the relevant issues.

Identify the issues in terms of the facts. The more fact specific
y our issues are, the better. Remember, y ou are try ing to solve
someone’s problem. If y ou cannot clearly identify the issues,
y ou cannot competently write about them.
113
Consider using a separate sheet of paper for each issue. Then,

identify any subissues under each issue. For each issue and
subissue:
(i) Identify the various rules of law that speak to each issue and
subissue. If the law can be broken down into elements, identify
the elements. Using key words, jot down the applicable rules of
law and any elements that must be met.
(ii) Identify the important facts of the problem that speak to each
issue and subissue. Using key words, jot down these facts beneath
the relevant rule of law or element.
(iii) Looking at each issue and subissue, understand how the rule
of law applies to the facts and how the facts will meet (or not
meet) any required elements. Keep y our focus on the
relationship of the law to the facts and on how the integration of
law and facts will ultimately solve the problem.
(iv) Jot down key words that can help y ou distinguish cases and
other authorities that go against y our position.
(v) Draw your conclusion on each issue and subissue.
Perhaps y ou have noticed that the above outlining process

basically uses an “IRAC” model (see infra, pp. 116–118). There
are other approaches to outlining, but using IRAC is a simple
process to get y ou started. Remember, for each issue, create a
separate IRAC outline. The more organized y ou are in y our
thoughts, the more y our writing will flow.
4. Keep to the Essentials
People sometimes get carried away with what they are try ing to say and
cannot stop writing. They make their point in three different way s for fear
that if it is said any fewer times, the reader will miss it. Yet there are more
effective way s to catch a reader’s attention. In fact, repetition often creates
the opposite effect by insulting the reader’s intelligence.
If y ou are worried that the reader may miss the point, highlight it. Perhaps
y ou can give it a heading or make it a topic sentence to introduce the
paragraph. If necessary, underline it. Whatever y ou do, make the point and
go on.
5. Keep Sentences Short
Although William Faulkner managed to work with long sentences and

paragraphs, most writers cannot. People who write long sentences usually
do so, not because they are try ing to convey images and a sense of time as
Faulkner did, but because they do not know how and when to stop.
Keep y our sentences to one thought each. It is much easier to read a short
sentence with one thought than a long sentence with several thoughts (some
of which may not even be connected). Breaking up a long sentence with
several semicolons does not substitute for short sentences. Naturally,
however, y ou do want to mix up the size of y our sentences so y ou do not
end up with a choppy presentation.
6. Highlight Important Points
A reader is much more likely to finish reading y our paper if y ou break it up

into issues or sections. Use headings to direct the reader to particular parts
of a memorandum. But, on the other hand, do not overdo it. Too many
short sections and subsections can cause a paper to lose its continuity.
7. Keep the Reader in Mind
You are writing for a particular reader. You may be taking an exam,
writing a memorandum of law for an attorney, or writing a memorandum
of points and authorities for a trial judge. The paper may be on
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the same subject in all three cases, but the writing will be different. Keep in
mind the purpose of y our writing and y our audience.
8. Write for an Uninformed Reader
Your writing will probably be more intact and logically presented if y ou

assume that the reader is not familiar with the subject. Even if she is, y ou
are less likely to skip over essential elements if y ou assume otherwise.
Also, y ou never know who else may read y our document. Along these
lines, often people are so eager to get into the “sophisticated” areas of the
law and show how much they know that they miss the foundation from
which to develop. Just because the reader may know the elements of a
contract does not mean that y ou should not include them when
demonstrating that the client had a contract. If y ou leave out a fundamental
point (or any issue for that matter), the reader can easily conclude (with
some justification) that y ou did not know of it or did not realize its
relevance, regardless of how “obvious” the point was.
9. Choose Simple, Straightforward Words
The main purpose of writing is to get y our point across with no

misunderstanding on the part of the reader. A simple phrase or term
understood by nearly every one will often be more effective than a
sentence filled with legal jargon and six-sy llable words. While y ou will
sometimes have to use legal terms, they should be used only when
necessary. Unnecessary legal terms and legal mumbo jumbo (such as
“hereby ” and “heretofore”) give y our paper the appearance of being
pretentious, and cause the reader to wonder whether y ou really know what
y ou are talking about or are merely hiding behind legal phrasing.
10. Use the Active Voice
Generally, the active voice uses fewer words and is more effective than
the passive voice in keeping the reader’s attention. (For example, “The
defendant harassed the plaintiff” is preferable to “The plaintiff was
harassed by the defendant.”) Take a look at y our writing. Change passive
voice sentences to the active voice. Note the difference.
11. Be Subtle
Your work will be far more impressive and convincing if y ou allow the
reader to reach y our conclusion along with y ou through a series of logical
steps. Give the reader a chance for reflection. Phrases such as “It is
obvious that” or “Any one can see” often insult the reader, especially if she
thinks the issue is more complex than y ou make it appear. Give y our reader
the opportunity to agree with y ou rather than forcing her to agree.
12. Keep to the Topic and Answer the Q uestion
Examination questions and legal memoranda usually call for a discussion

of particular legal issues. For example, if y ou are dealing with a question
on the kinds of damages that are legally available, discuss the legal aspect
of each kind separately, and do not bring in a lot of interesting but uncalled-
for information on evidence necessary to support the various damages
(unless also asked).
Too often, people talk around a question because they cannot really answer
it. As often, they do know the answer but are so proud of how much else
they know that they go on and on and on. In either case, y ou are not
providing a clear, direct response to the question. If y ou write an outline or
use a chart or grid before y ou begin, y ou probably will have a clearer idea
of what is being asked and what information is necessary to answer it.
115
1. “IRAC”
If y ou are just learning legal analy sis or are having trouble understanding
the process, y ou may want to consider using an “IRAC” approach. Since
the law is important only as it applies to a particular factual situation, good
legal analy sis requires that y ou show how the law interweaves with the
facts of y our problem. An “IRAC” approach will help y ou analy ze a
situation in terms of the facts.
a. Issue (“I”)
Begin by lay ing out the issue. This lets the reader see what the
problem is. The issue should be stated in terms of the facts of the
situation.
b. Rule (“R”)
After lay ing out the issue, set out the rule that applies to the issue.
Rules can come from statutes, cases, or any other appropriate
authority. If there is a statute on point, begin with it. If y ou take a
rule from a case, be sure to also give a few facts of the case so
that the reader can see the case’s direct relevance to y our
situation. You should also include the reasoning behind the rule.
This will help y ou in apply ing the rule later on (see “Application”
below) because y ou can show whether the reasoning will hold up
when applied to y our fact situation.
c. Application or Analysis (“A”)
This is the crucial part of your legal analysis. After y ou have set
out the rule, y ou need to show the reader how the rule applies to
y our situation. If the rule comes from a statute, discuss whether
y our facts meet the elements of the statute or otherwise fit within
the statute. If the rule comes from a case, y ou need to compare
and contrast the facts of the case with y our facts and see whether
the reasoning behind the rule in the case is appropriate here in
y our situation. If y ou need to distinguish any cases from y our
position, distinguish them on their facts or their reasoning, or use
public policy to argue that the court should not follow them.
Apply ing the law to the facts may seem very easy to do; it may
even seem “obvious.” Yet people often have trouble making the
connections between the law and the facts of a particular
situation. People tend to leave out essential facts by assuming that
the reader can see where the writer is going. Yet good legal
analy sis requires that y ou discuss all specific facts and
interweave them with the rule and reasoning y ou are apply ing.
Only then can the reader truly see how the law fits into y our
situation. Do not assume that the reader can figure it out.
If y ou find that y ou do not have all the facts y ou need to

complete y our analy sis, point this out. Then discuss what the
analy sis would be if the facts were one way or the other.
Consider all possibilities.
d. Conclusion (“C”)
In y our conclusion, tie y our points together. Show the reader

where the application of the law to the facts has taken y ou.
116
2. IRAC Every Issue
The IRAC approach should be used for each issue in your problem. Thus, if
y ou were writing a memorandum of law (see chapter XIII) that involved
three issues, y ou would follow the IRAC process in discussing each issue.
Each authority in each issue would be applied in an IRAC-ty pe approach
(including authorities that y ou distinguish as inapplicable).
Note that the IRAC approach is useful in exam writing and in writing all
kinds of legal analy sis documents like memoranda, points and authorities,
and briefs. The approach is the same: IRAC all issues.
3. Modification of IRAC Approach
Legal writers use many variations to the IRAC approach. For example,
some people add an extra “R” to IRAC (they use “IRRAC”) to remind
them to include the reasoning (after the rule) of any case in their analy sis.
As y ou do more legal writing, y ou will probably find y ourself modify ing
y our approach as well. But the IRAC process is a firm foundation on which
to build.
4. Using IRAC to Outline

If y ou are one of those people who resists outlining or who finds it difficult
to outline, try using an IRAC format to structure y our outline. You can then
write y our document right from y our outline.
5. Example of Legal Analysis Using the IRAC Approach
Consider the following example of the IRAC approach. Note: In writing

y our analy sis, y ou do not need to use the words “Issue,” “Rule,”
“Application,” and “Conclusion.” These words are used here to show y ou
how the process works.
(Issue:) Can two gay men who live together enter into an enforceable
agreement where one man shares his income and the other man does the
domestic chores?
(Rule:) In Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr.
815 (1976), a woman who had lived with a man for seven y ears claimed
that they had entered into a contract whereby he would support her and
give her half of all his earnings if she would be his homemaker and do the
domestic chores around the house. They were not married. 18 Cal. 3d at
666.
After the man split up with the woman, he refused to pay her any part of
the income that he had earned while they had lived together. He claimed
that even if there had been a contract, it was illegal because it was
meretricious (i.e., the contract was for sexual services). Id. at 668.
The court held that a contract to share earnings in exchange for domestic
services was not illegal. Id. at 670. It reasoned that people who live together
and engage in sex are just as capable of contracting as any other people.
Id. at 674. This was not just a contract for sexual services. The court also
felt that with so many people living together today, it would be
unreasonable to void these kinds of contracts. Id. at 683.
(Application:) Although our fact situation is different in that it involves two

gay men as compared to a heterosexual couple, the reasoning behind
Marvin would also seem to apply here. Since homosexuality is legal, the
two men should be able to contract to share their earnings in exchange for
doing domestic chores just as the couple in Marvin did. Here too, it is not
just a contract for sexual services.
However, it could be argued that our situation is distinguishable from that in

Marvin because the Marvin court was interested in promoting heterosexual
relationships, and that gay relationships may not be entitled to the same
consideration. The breadth of the Marvin opinion, however, seems to
encompass all kinds of relationships and does not draw a distinction
between heterosexual and other relationships.
(Conclusion:) Thus, it seems likely that the two men would be able to enter
into an enforceable agreement just as the couple in Marvin did.
117
Chapter Twelve:
Organizing the Fruits of Your Research
CONTENTS
118
1. The Honigsberg Grid
Finding all the appropriate authorities relevant to y our case is not all there is
to effective legal research. You need to organize the fruits of y our research
—the cases, statutes, regulations, and other authorities—in a coherent,
easy -to-review manner. The more efficiently y ou organize, the sooner
y ou will be able to begin writing.
One method found to be very helpful in organizing legal material is the

Honigsberg Grid. This grid provides y ou with an immediate guide to, and
comparison of, the cases and other authorities y ou have found. It will help
y ou quickly see how each case deals with a particular issue and principle
of law and allow y ou to make immediate comparisons among the several
cases y ou have researched.
2. Sample Grid
* Identify by name at the top of y our grid each issue y ou intend to include.
Inside each square indicate how the case or other authority treats the
particular issue. Think in terms of keywords and use abbreviations. Also,
include the page number of the case where the subject is discussed. For
example, if the Sanchez case discusses y our Issue #1 on page 830 of the
reporter, y ou would write in the appropriate box a few key words reflecting
what Sanchez say s about Issue #1, along with page number 830.
119
After y ou have filled in the squares, y ou will be able to see at a glance

which issues are discussed in which cases and how the cases size up with
each other. You can then write y our memorandum or brief working right
off the grid.
121
Chapter Thirteen:
Writing a Memorandum of Law
CONTENTS
122
1. Memorandum of Law
A memorandum of law is designed to provide a “neutral” or “balanced”

approach to the law. It is an analy tical document often written for a
partner, senior associate, or single practitioner by an associate or law clerk.
The attorney receiving the memo then uses it in preparing a case. The
memo may be written in preparation for a meeting with the client, for
negotiating with a party, or for a settlement conference. Thus, the writer
needs to provide a clear presentation of the strengths and weaknesses of
both sides. With all the information, the attorney can then plan a proper
approach and strategy.
A memorandum of law is not, however, an entirely “objective” document.

The writer should not concede victory, even if “objectively ” the law
appears bleak. Remember that y ou have a client whom y ou are try ing to
help. Nor should the writer mislead the reader into thinking that victory is at
hand. You can never be certain how a court will rule. The favored
approach is to present the law in the best light with judicious references to
pitfalls and other concerns.
2. Format
The following outline is a general format used by many law firms.
To:
From:
Re: (Includes the name of the client and a short phrase reflecting the
subject.)
Date:
Q uestions Presented or Issues: Issues or questions of law should be stated

in terms of the essential facts. Review the discussion of issues (supra, p. 87)
if y ou are unsure as to how to draft an issue.
Statement of Facts: If y ou are assigned a memorandum of law by

someone in y our office, y ou probably will be given the client’s file. Inside
will be an interview sheet detailing what the client told the interviewer (or
perhaps y ou were the interviewer) about the legal problem of the client.
The client’s view of the situation is basically y our set of facts, although
perhaps some witnesses also have been interviewed, and some relevant
documents may have been obtained. The opposing party will probably
disagree on what happened, but that information will not come out until
later, as the case moves along. For now, all y ou can do is use what y ou feel
are the legally significant facts (the facts on which the issues should turn),
background facts, and any emotional facts that may be of use later when
writing a memorandum or brief to a judge (see chapter XIV). Base y our
memorandum upon them. You would be wise, though, to comment in y our
discussion on how the law may vary in its application should certain facts
be found to be otherwise.
Brief Answer or Evaluation: An evaluation is somewhat like a holding. It

responds to the issue. But evaluations are opinions determined by y ou,
whereas holdings are principles of law determined by the court. A brief
answer allows the person reading y our memorandum to obtain an
immediate picture of the problem involved and how y ou propose to solve
it. The reader can then read y our discussion to see if y ou have approached
the problem reasonably and researched the material thoroughly.
Since there are usually two sides to a legal problem, y our evaluation will
probably not be written in absolute, certain terms. Rather, it will be an
educated judgment of the issue(s) involved and the resolution of the
issue(s). If y ou think the opposing party has a stronger case than y ou do,
say so, but indicate his weaknesses and y our strengths. The discussion will
examine how y ou might deal with this imbalance.
123
Discussion: Your discussion should be a well-thought-out, organized
presentation on how y ou reached y our evaluation(s). Examine each issue
separately. What law supports y our side, and what law supports the other
party ? Where the law seems unclear, point out the inconsistencies.
Remember, this is not an advocacy piece. A memorandum of law is an
analy tical examination of the subject. The reader cannot intelligently
decide how to handle the case unless she is given a complete, panoramic
view of the law.
Discuss the important cases, statutes, and regulations. Show how they apply
to the facts of the problem. Thus, when y ou state an important rule from a
case, give a few pertinent facts of the case and compare the facts to y our
situation. Then discuss the reasoning behind the rule to show its applicability
to y our facts. (See chapter XI on using the “IRAC” approach.) Only quote
or paraphrase pertinent parts from statutes, cases, and other authorities—be
careful about overdoing it.
Be sure to distinguish cases and other authorities that go against y our

position. You can distinguish a case on its facts, its reasoning, or its policy.
Support any statement y ou make with legal authority. Do not just give y our
opinion. Whenever possible, cite to a primary authority —a case, statute, or
regulation—rather than to a secondary source. Treatises, law reviews,
ency clopedias, and other commentary should be cited as supplemental to
the primary authority and should be cited alone only when no primary
authority is available. Of course, y ou can (and should) alway s discuss
secondary sources when they contribute further insight into the problem.
Also, make sure that y ou have thoroughly read each case and other
authority y ou cite. Do not rely on annotations and notes without reading the
sources from which they came.
Do not forget to update y our cases through a citator such as Shepard’s or

Key Cite (see chapter VII), and check the latest supplements to the codes.
Conclusion: (This is optional; it is similar to y our evaluation, although

possibly more detailed.)
Signature.
124
125
(This memorandum of law was written and edited by members of the Legal Research,
Writing and Analysis Program at the University of San Francisco School of Law.
Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, Rochelle Wirshup,
and Jean Allen.)
MEMORANDUM OF LAW
TO: Senior Partner
FROM: Research Associate
RE: General and Limited Jurisdiction: Clark v. Continental Southern
DATE: October 25, 2001
Q UESTIONS PRESENTED
I. Can California assert general jurisdiction over Continental Southern when

its sole contact with the forum is its membership in Continental Trailway s, a
national transportation association?
II. Under a three-pronged test, can California assert limited jurisdiction over
Continental Southern when its sole contact with the forum is its membership in
Continental Trailway s, and plaintiff ’s injuries occurred in an out-of-state bus
accident?
A. Do Continental Trailway s’s California ticket sales and

advertisements constitute sufficient forum-related activity ?
B. Does plaintiff ’s personal injury cause of action have a substantial

connection to Continental Trailway s’s ticket sales and advertising in
California, when the ticket sales and advertising are Continental
Southern’s sole contacts in the forum?
C. Does California’s interest in assuming jurisdiction over Continental

Southern outweigh the inconvenience of the parties in litigating in the
forum?
STATEMENT OF FACTS
Plaintiff Thora Clark (“Clark”) is suing Continental Southern (“Southern”) in

California for personal injuries she sustained in a bus accident in Louisiana on
December 27, 2000. Southern is a licensed common carrier and a Mississippi
corporation with its principal offices in Jackson, Mississippi. Southern is one of
approximately 50 members of Continental Trailway s (“Trailway s”), an
association whose members receive the benefits of national advertising under
the banner “Trailway s” and the coordination of advertising, ticket sales, and
scheduling nationwide, including in California. Southern has no direct contacts
with California except through its association with Trailway s. Southern has no
offices, employ ees, or designated agent for service of process in California.
Trailway s coordinates the use of Southern’s equipment by other association
members throughout the United States. Southern’s service area is in Mississippi
and Louisiana. When Southern’s equipment passes outside of its service area,
control of the equipment passes to the association member using it. Southern’s
buses occasionally enter California under the control of other association
members.
Plaintiff Clark, an 80-y ear-old California resident, purchased a Trailway s bus

ticket on December 24, 2000, in San Francisco from Western Trailway s
(“Western”), a California corporation and Trailway s member, for passage from
San Francisco to Florida. On December 26, 2000, in San Francisco, Clark
boarded a bus owned by Southern but controlled by Western for her trip to
Florida. Clark claims to have heard grinding noises in the front of the bus while
still in California, and she reported the sounds to various drivers. In Louisiana,
the left front wheel of the bus malfunctioned. The bus left the road and rolled
onto its side. At
126
that time, one of Southern’s drivers was driving the bus. Clark was injured and
taken to a local hospital. All of the evidence relating to the accident, including the
bus, its driver, ey ewitnesses, emergency personnel, and maintenance and
medical records, are in Louisiana and Mississippi.
BRIEF ANSWERS
I. A court may exercise general jurisdiction over a defendant corporation

when defendant’s contacts with the forum are sufficiently substantial,
continuous, and sy stematic. California cannot assert general jurisdiction over
Southern because Southern’s sole contact with the forum is its membership in
Trailway s, a national transportation association present in the forum. This
contact is not sufficiently substantial for the purposes of exercising general
jurisdiction.
II. California courts use a three-pronged test to determine whether California

can exercise limited jurisdiction over a defendant corporation. Although
California might be a convenient forum for the 80-y ear-old plaintiff, Southern
does not engage in sufficient forum-related activity, and there is an inadequate
nexus between plaintiff ’s cause of action and Southern’s contacts with California.
A. The first prong of the limited jurisdiction test is the character of

defendant’s activity in the forum. Southern’s only forum-related
contact is through its membership in Trailway s, which provides ticket
sales and advertising in California for its members. Such contact is too
indirect to justify limited jurisdiction.
B. The second prong of the limited jurisdiction test is the presence of

a substantial connection between plaintiff ’s cause of action and
defendant’s contacts with the forum. Plaintiff ’s personal injury cause
of action, arising out of an accident on a Southern bus in Louisiana, has
no connection to Southern’s contacts with California through its
membership in Trailway s.
C. Under the third prong of the limited jurisdiction test, the court
balances the convenience of the parties in litigating in California
against the interest of the state in assuming jurisdiction. Although
plaintiff resides in California, her injuries arose outside of the state. In
addition, all evidence and witnesses are outside of the state. Although
California may have a minimal interest in hearing plaintiff ’s action,
the inconvenience of the parties in litigating in California outweighs
that interest and weighs against the exercise of limited jurisdiction.
DISCUSSION
I. The Exercise of General Jurisdiction over Southern
The exercise of general jurisdiction over a defendant is the most sweeping

exercise of jurisdiction under the law. California’s broadly framed
jurisdiction statute states: “A court of this state may exercise jurisdiction on
any basis not inconsistent with the Constitution of this state or of the United
States.” Cal. Civ. Proc. Code § 410.10 (West 1973). [Cal. Civ. Proc. Code
Ann. § 410.10 (West 1973).] * In Cornelison v. Chaney, 16 Cal. 3d 143, 147,
545 P.2d 264, 266, 127 Cal. Rptr. 352, 354 (1976) (citations omitted),
[Cornelison v. Chaney, 16 Cal. 3d 143, 147 (1976) (citations omitted)], the
California Supreme Court stated that where a defendant’s in-state activities
are “extensive … continuous and sy stematic,” California may assert
general jurisdiction over the defendant for any cause of action, even one
unrelated to the defendant’s in-state activity. Conversely, the occasional
presence of a defendant in the forum to conduct business is not necessarily
sufficient to establish general jurisdiction over all causes of action, whether
or not related to the forum contacts.
In Cornelison, the defendant, a Nebraska resident, was a truck driver. He

made approximately 20 trips into California each y ear to deliver and pick
up cargo. The cause of action was the result of a
127
collision in Nevada between a vehicle driven by a California resident and

the defendant’s truck on its way to California with a delivery. Cornelison, 16
Cal. 3d at 146–47, 545 P.2d at 265–66, 127 Cal. Rptr. at 353–54. [Cornelison,
16 Cal. 3d at 146–47.] The Cornelison court found these contacts with
California insufficient for the assertion of general jurisdiction. Id. at 148,
545 P.2d at 267, 127 Cal. Rptr. at 355. [Id. at 148.]
The Cornelison court relied in part on Perkins v. Benguet Mining Co., 342
U.S. 437 (1952); In Perkins, the president of a Philippine corporation sought
refuge in Ohio during World War II. The president had an office in his
home in Ohio and several corporate bank accounts in the state. He also held
meetings of the board of directors in Ohio. 342 U.S. at 447–48. The Perkins
court found these activities to be sufficiently substantial, continuous, and
sy stematic to hold the Philippine corporation subject to Ohio jurisdiction in
an action unrelated to the corporation’s forum-related activities. Id. at 447–
49. The Court found that the corporation was actually present in Ohio via
the president’s residence, office, and general business operations. Id. at
447–48.
Southern’s contacts fall short of those in Cornelison. In Cornelison, the court

did not permit general jurisdiction even though the defendant, and the
equipment under his control, entered California as many as 20 times per
y ear. Southern has never sent any employ ee to California to conduct
business on behalf of the corporation. Southern’s facts also fall short of
those in Perkins. Southern has no office, personnel, or bank accounts in
California. Southern’s sole contact with California is as a member of
Trailway s. Southern is therefore not present in California in the Perkins
sense.
In light of Cornelison and Perkins, Southern’s contacts with California

through its membership in Trailway s are not sufficiently substantial,
continuous, and sy stematic for the exercise of general jurisdiction over
Southern.
II. The Exercise of Limited Jurisdiction over Southern
Where the defendant’s in-state activities are less pervasive, a court will not
assert general jurisdiction. A court may, however, find limited (or specific)
jurisdiction where a cause of action has a direct nexus to defendant’s
forum-related activities. Cornelison, 16 Cal. 3d at 147–48, 545 P.2d at 266–
67, 127 Cal. Rptr. at 354. [Cornelison, 16 Cal. 3d at 147–48.] The Cornelison
court established a three-pronged test to determine whether a court may
exercise limited jurisdiction: “[A] the character of defendant’s activity in
the forum, [B] whether the cause of action arises out of or has a substantial
connection with that activity, and [C] … the convenience of the parties and
the interests of the state in assuming jurisdiction.” Id. at 148, 545 P.2d at
267, 127 Cal. Rptr. at 354–55. [Id. at 148.]
A. Defendant’s Forum-Related Activity
Southern’s only contacts with California are through Trailway s.

Therefore, an analy sis of limited jurisdiction focuses on
Trailway s’s two activities on behalf of Southern: California ticket
sales and California advertising.
1. Ticket Sales
Ticket sales alone are insufficient to establish limited

jurisdiction. Kenny v. Alaska Airlines, Inc., 132 F. Supp.
838, 852 (S.D. Cal. 1955). In Kenny, a California
resident and stockholder in Alaska Airlines sued to
enforce certain corporate proprietary rights. In
granting the motion to quash service of summons for
lack of personal jurisdiction, the court noted that Alaska
Airlines was incorporated in Alaska, maintained its
principal offices in Seattle, and flew in Alaska,
Washington, Oregon, and Canada. Alaska Airlines had
no employ ees in California. Its only contacts with this
forum were ticket sales through various California
ticket agents and connecting air carriers. At that time,
none of its flights entered California airspace. Kenny,
132 F. Supp. at 841–42.
128
The Kenny court stated that such ticket sales were

insufficient to find jurisdiction. Id. at 852. The court
noted that to find otherwise would subject every
common carrier involved in national transportation to
the jurisdiction of the California courts, a prospect the
court found to violate notions of “fair play and
substantial justice.” Id. at 853 (citations omitted).
Other jurisdictions have also confronted this issue. In

Pike v. New England Greyhound Lines, Inc., 93 F. Supp.
669 (D. Mass. 1950), the court held similarly on facts
nearly identical to those of Southern. Interstate, the
defendant bus line in Pike, was a member of the
Grey hound association. The Grey hound membership
services closely parallel those provided here by
Trailway s. The Boston office of the Grey hound
associate sold transcontinental tickets that routed
passengers through Interstate’s territory. Interstate
maintained no offices or employ ees in the forum.
Pike, 93 F. Supp. at 670. The Pike court held that “[t]he
selling of tickets over the lines of a foreign [bus]
corporation by agents of other corporations, does not,
standing alone, constitute the doing of business by the
foreign corporation within the state of sale of the
tickets.” Id. at 671.
The ticket sale activity found insufficient in Kenny was

more substantial than that here. Unlike Alaska Airlines,
neither Southern nor Western sells tickets in California
for exclusive travel in Southern’s territory. The
transcontinental tickets sold in California involve
Southern merely as one of many interconnecting
carriers. Therefore, if Alaska Airlines’s ticket sale
activities were insufficient for purposes of jurisdiction,
a court is likely to find such sale activities by others
indirectly for Southern even less sufficient.
Southern’s contacts with California are nearly identical
to those deemed inadequate in Pike. Just as the forum
contacts of the defendants in Pike consisted merely of
their membership in the Grey hound association and the
forum-related benefits that membership provided,
Southern’s sole contacts with California are through its
membership in Trailway s and receipt of similar
benefits.
As a result of Kenny and Pike, it is unlikely that the

mere sale of tickets in the forum is sufficient for an
assertion of limited jurisdiction over Southern.
2. Advertising in the Forum
California case law also establishes that advertising

services to promote the sale of those services in the
forum state is insufficient for limited jurisdiction. In
Pike, the court stated: “If the fact of such [ticket] sales
is not sufficient to bring [defendant] within the court’s
jurisdiction, it adds no substantial element that [the
association] also advertises that fact, or provides such
incidental services as furnishing timetables for use by
the purchasers of the tickets.” 93 F. Supp. at 671.
Circus Circus Hotels, Inc. v. Superior Court, 120 Cal.

App. 3d 546, 174 Cal. Rptr. 885 (1981) [Circus Circus
Hotels, Inc. v. Super. Ct. of Cal., 120 Cal. App. 3d 546,
174 Cal. Rptr. 885 (4th Dist. 1981)], further illustrates
that promotion of ticket sales through advertising in the
forum is insufficient for jurisdiction. In Circus Circus, a
California citizen sued Circus Circus Hotels, a Nevada
corporation, for a theft of property while plaintiff was
a guest in defendant’s Nevada hotel. Circus Circus
moved to quash service of process based on an alleged
lack of personal jurisdiction. The hotel’s only contacts
with California were the advertising of its Nevada
services in California and the maintenance of an “800”
telephone number for hotel reservations. Circus Circus,
120 Cal. App. 3d at 551, 174 Cal. Rptr. at 887. [Circus
Circus, 120 Cal. App. 3d at 551.] The Circus Circus
court found that these activities could not support an
assertion of jurisdiction. Id. at 567, 174 Cal. Rptr. at
897. [Id. at 567.]
Trailway s advertised in California on behalf of

Southern to promote ticket sales in the
129
forum. Unlike the defendant in Circus Circus, Southern

did not directly advertise its service in California; it did
so indirectly through Trailway s. Since the direct
advertising activities in Circus Circus were insufficient
to support an exercise of jurisdiction, Southern’s
indirect advertising through Trailway s is likely to be
even more inadequate.
Southern’s ticket sales and advertising activities do not

satisfy the first prong of the Cornelison test.
B. Nexus Between the Cause of Action and the Forum Contacts
The second prong of the Cornelison test requires a nexus or

substantial connection between plaintiff ’s cause of action and
defendant’s forum-related activity. Cornelison, 16 Cal. 3d at 148,
545 P.2d at 267, 127 Cal. Rptr. at 354–55. [Cornelison, 16 Cal. 3d
at 148.] The Kenny court focused on whether the court could
assert jurisdiction where there was no relationship between the
stockholder’s fraud cause of action concerning proprietary rights
in Alaska Airlines and the airline’s in-state ticket sales through
agents and connecting carriers. The court held that the necessary
nexus between the cause of action and those contacts was
missing. Kenny, 132 F. Supp. at 852–54.
Based on Kenny, there is no nexus between a bus accident on a

Louisiana highway and Southern’s membership in an association
that advertises and sells tickets in California and elsewhere. The
only conceivable connection between the alleged negligent acts
of Southern in Louisiana and Southern’s contacts with California is
that plaintiff started her journey in California and allegedly
heard grinding noises while in the state. Under Kenny, such a
relationship is too weak to establish jurisdiction under the second
prong of the Cornelison test because plaintiff ’s injuries, which
arose in Louisiana, are too attenuated from Southern’s indirect
advertisement and sale of tickets in California through Trailway s.
C. Balancing of Parties’ Convenience and Interests of the State
The third prong of the Cornelison test is the balance between the
convenience of the parties in litigating in the forum and the
interests of the state in asserting jurisdiction. Cornelison, 16 Cal.
3d at 148, 545 P.2d at 267, 127 Cal. Rptr. at 354–55. [Cornelison,
16 Cal. 3d at 148.] California would be an extremely
inconvenient forum for all parties except for Clark. Clark is an
80-y ear-old California resident who would find it inconvenient to
litigate her action in Louisiana. Except for Clark, however, no
other party resides in California. All relevant evidence is in
Louisiana and Mississippi: the bus and its maintenance records,
emergency and hospital personnel and records, and
ey ewitnesses to the accident. Although California may have a
minimal interest in maintaining the action in California because
the plaintiff is a California resident, the relative inconvenience of
the parties as to appearing in California weighs against the
exercise of jurisdiction in the forum. When combined with the
indirect presence of Southern in the forum and the lack of a
nexus between the accident and Southern’s California activities,
the court is likely to decline to exercise limited jurisdiction over
Southern.
CONCLUSION [OPTIONAL]
_________________________
Research Associate
__________________________
* In this memorandum, the first citation is in proper Bluebook form; the second one
(in brackets) is in proper ALWD form. Note that for some citations, there is no
difference between the Bluebook and ALWD forms, and thus only one citation is used.
131
Chapter Fourteen:
Writing a Memorandum of Points and Authorities or Brief
CONTENTS
132
1. Memorandum of Points and Authorities or Brief
A memorandum of points and authorities (also known as a brief in support

of a motion), a trial brief, and an appellate brief are persuasive adversary
documents. They are designed to convince a judge (or hearing officer in
an administrative hearing) to decide the law in y our favor. Emphasis is on
y our strong points. Little mention is made of y our weak points. Your
opponent’s strengths must be neutralized if not entirely undermined. Yet
y ou do not want to appear overzealous. The impression y ou give should be
one of fairness and reasonableness. The reader wants to be persuaded, but
she will not be if y ou appear unreasonable and arrogant.
2. Format
A memorandum of points and authorities, brief in support of a motion, trial

brief, or appellate brief is more formal than a memorandum of law. Courts
sometimes require that such documents be written in certain formats.
Generally, a format for these documents would appear similar to the
following:
a. Table of Contents
b. Table of Authorities
Separate lists are made for statutes, constitutional provisions,

regulations, cases, and texts, with references to pages on which
these authorities appear.
Note: A table of contents and a table of authorities are often not
included in a memorandum of points and authorities unless the
memorandum is over a certain page length. Trial briefs are
more likely to include these tables. Appellate briefs usually
include them.
c. Jurisdiction
(This usually appears in federal cases.)
d. Q uestions Presented or Issues
These questions are not presented in the same way as they would
appear in a memorandum of law. Since the purpose of an
adversary piece is to persuade, y ou should phrase y our questions
in a way that engenders sy mpathy toward y our client and guides
the reader to the result y ou want. But, just as in a memo of law,
y our issues should be stated in terms of the facts.
e. Statement of the Case
A statement of the case provides the reader with the legal basis
for the suit, the remedies requested, and a review of the
important court proceedings up to the present.
f. Statement of Facts
Many judges say that the most important part of a persuasive

document is the facts. They feel that they often know the law, but
need to understand the situation. Thus, y our statement of facts
should keep the reader’s interest and place y our client in the best
light. It should “tell a story.” Although the facts must be complete
and accurate, they need not be neutral. The same facts can be
presented in different way s so as to make a party appear
sy mpathetic or disagreeable.
Since this is a persuasive writing, y ou should present the facts

most favorable to y ou, while other facts should be de-
emphasized. Talk up the positives and play down the negatives.
Show justice
133
is on y our side. Thus, along with y our legally significant facts
(the facts on which the issues turn) and y our background facts,
y ou should also include emotional facts. Emotional facts can be
very effective in persuading the judge to adopt y our position. If
there is a legally significant fact that goes against y ou, try to
neutralize it by minimizing it, placing it alongside a fact that
strongly supports y our position, or bury ing it in the middle of a
paragraph. Be sure, however, to include the damaging legally
significant fact to show y our credibility. Often facts are related
chronologically, but if another approach seems more sensible
and effective, use it. Alway s begin y our statement of facts with
facts that make y our client look good.
If y ou are writing a memorandum of points and authorities or a

trial brief, the facts have not y et been established by a court and,
therefore, y ou have more flexibility in choosing which facts to
include and emphasize. After y ou write the argument (see
below), y ou will probably revise the statement of facts to
emphasize those facts that y ou used to support y our arguments
and to deemphasize those that appear damaging. But be sure that
y our statement of facts includes all the facts y ou discuss in y our
argument section.
g. Summary of Argument or Brief Answer
A summary of the argument or brief answer is designed to

provide the reader with a quick review of the points and
arguments that y ou will be making. It is usually written in terms
of the facts of the problem. It essentially has the same purpose as
a brief answer in a memo of law, and like the brief answer, it is
prepared after y ou have written y our argument. The summary
of the argument or brief answer is sometimes omitted.
h. Argument Heading
An argument is prefaced by a heading or “point” written in

capital letters. The heading should be written as a complete
sentence and should be stated in terms of the facts of y our case.
In effect, it answers y our question presented. A point heading is
basically a statement of the principle of law that y ou want the
court to adopt for the facts of the situation. It should also include a
reason in support of the principle. (Headings to each argument
also appear in the table of contents, if y ou write one.)
134
135
i. Argument
The argument in a memorandum of points and authorities or a

brief is very different from the discussion in a memorandum of
law. You are try ing to persuade the judge to agree with y our
position. The argument is not an analy tical, balanced review of
the law, but rather a convincing, well-thought-out, logical
demonstration of y our position and an attack on y our opponent’s
position.
You should begin with good, sound analy sis supporting y our
position. Be sure to explain clearly how a case or other authority
applies to y our fact situation. If it is a case, give a few facts of
the case and discuss the rule from the case, the reasoning behind
the rule, and whether the facts of y our situation fit within the rule.
(See chapter XI on using the “IRAC” approach.)
Organize y our paper by arguments (similar to y our organizing a

memo of law by issues). Be sure to write an argument for each
issue presented. Begin each argument with y our best authority.
Convince the judge of the correctness of y our position early on,
and do not dispose of y our opponent’s arguments until y ou have
made y our own argument. And do not overlook important policy
arguments.
When y ou dispose of y our opponent’s case, do so with grace. For

example, recognize the validity of y our opponent’s position in
some situations, but note its inapplicability here. Overcome weak
points or authorities favoring y our opponent by distinguishing
cases on their facts or by appealing to logic, public policy, and
fairness. In making y our arguments, do not distort the facts or
law—although, of course, people can differ over interpretation.
Also, when writing an appellate brief, do not spend a lot of time

criticizing the trial court’s opinion. Your opponent is the opposing
party, not the trial court.
Finally, when making y our argument, get to the point. The reader
is eager to move on.
j. Conclusion
In most memoranda of points and authorities and briefs, the

conclusion is just a short request for relief. Your actual
conclusion has already appeared in the “Brief Answer” or
“Summary of the Argument” section.
The following sample memoranda take opposing positions on the same case. Note
how the attorney s use essentially the same facts and law but rework them to favor
their positions. Note also how the formats are slightly different—reflecting the fact
that attorney s will differ on formats for memoranda and briefs.
SAMPLE MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT

OF MOTION
(This memorandum of points and authorities was written and edited by members of the
Legal Research, Writing and Analysis Program at the University of San Francisco
School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, and
Rochelle Wirshup.)
136
JENNA SMYTHE, State Bar #345678
PILLSBURY, CROCKER, MILLS & KRAFT
A Professional Corporation
200 Montgomery
San Francisco, California 94118
Telephone: (415) 555–1234
Attorney s for Defendant
CONTINENTAL SOUTHERN
Can plaintiff, Thora Clark, establish that the court may assert either general or
limited jurisdiction over defendant Continental Southern in California?
A. Does Continental Southern’s membership in Continental Trailway s, a

national association present in California, fail to represent activity of such a
substantial, continuous, and sy stematic nature that California may decline to
assert general jurisdiction over Continental Southern?
B. Is the exercise of limited jurisdiction over Continental Southern improper

where the suit is based on an out-of-state bus accident and Continental Southern’s
only California contact consists of membership in Continental Trailway s, a
national association present in the forum?
1. Are Continental Trailway s’s ticket sales and advertising in California

on behalf of Continental Southern insufficient contacts to constitute
forum-related activity ?
137
2. Is there an insufficient nexus between plaintiff ’s personal injury and

breach of contract causes of action and Continental Southern’s indirect
contacts with California arising from ticket sales and advertising?
3. Does the balance between the parties’ inconvenience in litigating in

California and California’s minimal interest in hearing the action weigh
against asserting limited jurisdiction against Continental Southern?
STATEMENT OF THE CASE
Defendant Continental Southern, Inc. (“Southern”), along with defendants

Continental Trailway s (“Continental”) and Western Trailway s (“Western”), was
served with a summons and complaint in this action on November 6, 2001,
seeking damages for negligence and breach of contract resulting from a
Louisiana bus accident. Southern, a Mississippi corporation, does business
exclusively in Mississippi and the contiguous states of Louisiana and Alabama.
Southern moves to quash service of summons on the ground that California has
no basis for personal jurisdiction over Southern.
STATEMENT OF THE FACTS

Plaintiff, Thora Clark (“Clark”), purchased a Trailway s bus ticket in San
Francisco from Western, a California corporation, for bus passage from San
Francisco to Florida. That journey took the bus in which Clark was traveling
through Louisiana, part of the territory where Southern conducts its business. On
December 27, 2000, while traveling through Louisiana, the left front wheel of
the bus malfunctioned, resulting in the bus leaving the road and rolling onto its
side.
At the time of this accident, Clark was a passenger on the bus, which was owned
by Southern and was being driven by one of its drivers through territory in
which it is a licensed carrier. As a result, all of the evidence relating to the
accident, including the bus, its driver, ey ewitnesses, emergency personnel, and
maintenance and medical records are located in Louisiana and Mississippi.
Southern is a Mississippi corporation with its principal offices in Jackson,

Mississippi. It is a licensed common carrier and operates bus service throughout
Mississippi and in parts of Louisiana and Alabama. It is one of approximately 50
members of Continental, an association whose members share in both the
benefits of national advertising under the banner “Trailway s” and the
coordination of tariffs and schedules for transcontinental travel. Except through
this association, Southern has no contacts whatsoever with California. It
maintains no offices or employ ees there and has no designated agent for service
of process.
ARGUMENT
PLAINTIFF CANNOT ESTABLISH THAT THE COURT MAY ASSERT

GENERAL OR LIMITED JURISDICTION OVER DEFENDANT IN
CALIFORNIA.
The notions of “fair play and substantial justice” demand that California decline
to assert either general or limited jurisdiction over Southern. California Civil
Procedure Code section 410.10 (West 1973) states: “A court of this state may
exercise jurisdiction on any basis not inconsistent with the Constitution of this
state or of the United States.” The California Supreme Court has held that section
410.10 “manifests an intent to exercise the broadest possible jurisdiction, limited
only by constitutional considerations.” Sibley v. Superior Court, 16 Cal. 3d 442,
445, 546 P.2d 322, 324, 128 Cal. Rptr. 34, 36 (1976). [Sibley v. Super. Ct. of Cal.,
16 Cal. 3d 442, 445 (1976).] *
In a line of cases commencing with International Shoe Co. v. Washington, 326

U.S. 310, 316 (1945), the United States Supreme Court has held that in order to
assert jurisdiction, the defendant corporation need only “have certain minimum
contacts … such that the maintenance of the suit does not offend ‘traditional
notions of fair play and substantial justice.’ ” (Citations omitted.) The California
Supreme Court applied these principles in Cornelison v. Chaney, 16 Cal. 3d 143,
545 P.2d 264, 127 Cal. Rptr. 352 (1976).
138
[Cornelison v. Chaney, 16 Cal. 3d 143 (1976).] In Cornelison, the court

differentiated between two distinct classes of circumstances under which
California may assert jurisdiction over a foreign corporation. Where the
defendant’s in-state activities appear to be extensive, continuous, and sy stematic,
California may assert general jurisdiction over the defendant for any cause of
action—even a cause unrelated to the defendant’s in-state activity. Cornelison, 16
Cal. 3d at 147, 545 P.2d at 266, 127 Cal. Rptr. at 354. [Cornelison, 16 Cal. 3d at
147.] Where the defendant’s in-state activities are less pervasive, California
courts cannot assert general jurisdiction. Id., 545 P.2d at 266, 127 Cal. Rptr. at
354. [Id.] However, a court may establish limited jurisdiction over a particular
cause of action where there is a direct nexus between that cause of action and
the defendant’s forum-related activities. Id. at 147–48, 545 P.2d at 266, 127 Cal.
Rptr. at 354. [Id. at 147–48.] “Thus, as the relationship of the defendant with the
state seeking to exercise jurisdiction over him grows more tenuous, the scope of
jurisdiction also retracts, and fairness is assured by limiting the circumstances
under which the plaintiff can compel him to appear and defend.” Id. at 148, 545
P.2d at 266, 127 Cal. Rptr. at 354 (footnote omitted). [Id. at 148 (footnote
omitted).]
A. The State Cannot Justify an Exercise of General Jurisdiction over

Southern Because the Forum-Related Contact, Consisting of Mere
Membership in an Association Present in the Forum, Is Not Substantial,
Continuous, and Systematic.
To establish general jurisdiction under the first of the two jurisdictional standards
set out in Cornelison, the court must establish that Southern’s forum-related
activities are “ ‘extensive or wide ranging’ ” or “ ‘substantial … continuous, and
sy stematic.’ ” 16 Cal. 3d at 147, 545 P.2d at 266, 127 Cal. Rptr. at 354 (quoting
Buckeye Boiler Co. v. Superior Court, 71 Cal. 2d 893, 898–99, 458 P.2d 57, 62, 80
Cal. Rptr. 113, 118 (1969), and Perkins v. Benguet Mining Co., 342 U.S. 437,
447–48 (1952), respectively ). [16 Cal. 3d at 147 (quoting Buckeye Boiler Co. v.
Super. Ct. of Cal., 71 Cal. 2d 893, 898–99 (1969), and Perkins v. Benguet Mining
Co., 342 U.S. 437, 447–48 (1952), respectively ).]
The United States Supreme Court applied this test in Perkins. There, the United
States Supreme Court found appropriate the exercise of general jurisdiction over
a Philippine mining corporation where its president sought refuge in Ohio during
the World War II occupation of the Philippines. While in Ohio, the corporate
president maintained an office in his home and several corporate accounts in
Ohio banks, and performed other acts in the discharge of his duties as general
manager. He also held several meetings of the corporate board of directors in
Ohio. Perkins, 342 U.S. at 447–48.
The Perkins Court found these activities to be sufficiently substantial, continuous,

and sy stematic to hold the Philippine corporation subject to Ohio jurisdiction in a
matter unrelated to its forum-related activities. Id. at 447–49. The basis for this
holding rested on the fact that the defendant corporation was actually present in
Ohio. Id. at 449. The president’s residence, the corporate office, and general
business operations were present there. Id. at 448.
Southern’s meager contacts with California fall far short of those considered
necessary to the holding in Perkins. Southern maintains no office, personnel, or
bank accounts in California and, therefore, is not present in the Perkins sense.
Southern’s sole contact with California is through the benefits it derives as a
member of the Trailway s association—a membership shared with
approximately 50 other common carriers.
Even the occasional presence of the defendant in the forum for purposes of
conducting business is not sufficient to establish general jurisdiction over all
causes of action related or unrelated to the forum contacts. In Cornelison, the
defendant was a truck driver and a resident of Nebraska. The defendant made
approximately 20 trips into California each y ear to deliver and pick up cargo.
The cause of action was the result of a collision in Nevada between a vehicle
driven by a California resident and the defendant’s truck on its way to California
with a delivery. Cornelison, 16 Cal. 3d at 146–47, 545 P.2d at 266, 127 Cal. Rptr.
at 352–54. [16 Cal. 3d at 146.] The Cornelison court found these contacts with
California to be insufficient for the assertion of general jurisdiction. Id. at 148,
545 P.2d at 267, 127 Cal. Rptr. at 355. [Id. at 148.]
Southern’s contacts fall short of those in Cornelison, where the court did not
permit general jurisdiction even though the defendant and equipment under his
control entered California as many as 20 times per
139
y ear. In contrast, Southern has never sent any employ ee to California to conduct
business on behalf of the corporation, and Southern exercises no control over its
equipment used in transnational service bey ond the territory where it conducts
its regular business—Mississippi, Louisiana, and Alabama.
In light of the holdings in Cornelison and Perkins, Southern’s tenuous and indirect
contacts with California through its membership in the Trailway s association are
insufficiently substantial, continuous, and sy stematic to permit the exercise of
general California jurisdiction over Southern. Therefore, limited jurisdiction, the
second jurisdictional standard defined by Cornelison, is the only alternate basis
for the court’s exercise of jurisdiction. This ground also must fail.
B. Because the Necessary Nexus Is Missing Between the Out-of-State Bus

Accident upon Which this Action Is Based and Southern’s Indirect Forum
Contacts Through the Trailways Association, California Cannot Exercise
Limited Jurisdiction.
Where the relationship between the defendant and the forum is tenuous rather
than substantial, and general jurisdiction is therefore unjustified, the court must
apply a three-pronged test to determine whether California may exercise
limited jurisdiction. Cornelison, 16 Cal. 3d at 148, 545 P.2d at 266–67, 127 Cal.
Rptr. at 354–55. [Cornelison, 16 Cal. 3d at 148.] “The crucial inquiry concerns
[1] the character of defendant’s activity in the forum, [2] whether the cause of
action arises out of or has a substantial connection with that activity, and [3] …
the balancing of the convenience of the parties and the interests of the state in
assuming jurisdiction.” Id. at 148, 545 P.2d at 266–67, 127 Cal. Rptr. at 355
(citations omitted). [Id. at 148 (citations omitted).] Here, the plaintiff cannot
satisfy any of the three prongs.
1. Defendant’s Ticket Sales and Advertising Do Not Amount to

“Forum-Related Activity.”
Southern’s only contacts with California are through its membership in

Continental, which both promotes Trailway s as a national bus sy stem and
facilitates the sale of Southern’s tickets as part of that sy stem. Therefore, any
jurisdictional analy sis of limited jurisdiction in this matter must be based on
Continental’s activities in California on behalf of Southern in terms of ticket sales
and advertising of passage on Southern’s line.
The only court apply ing California law to a common carrier in a situation
similar to the case at bar is Kenny v. Alaska Airlines Inc., 132 F. Supp. 838 (S.D.
Cal. 1955). In Kenny, a California resident and stockholder in Alaska Airlines
filed an action in the Southern District of California to enforce certain corporate
proprietary rights. The plaintiff requested both an accounting and the
nullification of certain stock issues. Kenny, 132 F. Supp. at 840–41.
In granting the motion to quash service of process for lack of personal

jurisdiction, the court noted that Alaska Airlines was incorporated in Alaska,
maintained its principal offices in Seattle, Washington, and engaged in airline
service in Alaska, Washington, Oregon, and Canada. Id. at 841. Alaska Airlines
had no employ ees in California. Its only contacts with California were ticket
sales through various California ticket agencies and connecting air carriers.
None of its flights entered California airspace. Id. at 841–42.
The Kenny court reasoned that to find jurisdiction under these circumstances
“would present a policy problem of such magnitude that we believe the
California courts would hold that such ticket sale activities did not constitute doing
business.” Id. at 852. The court noted that if it found jurisdiction, it would subject
every common carrier within the vast, interconnected network of national
transportation to the jurisdiction of the California courts—a prospect the court
found to violate the notions of “fair play and substantial justice.” Id. at 853.
The ticket sales activities found insufficient in Kenny were more substantial than
those in the case at bar. Unlike Alaska Airlines, neither Southern nor Western
sells tickets in California for exclusive travel in Southern’s territory. The
transcontinental tickets sold in California that involve Southern treat Southern
merely as one of many interconnecting carriers. Therefore, if the Kenny court
found Alaska Airlines’s ticket sale activities in California insufficient for purposes
of jurisdiction, this court should find such sales
140
activities in California by others indirectly on behalf of Southern even less

sufficient.
While California case law directly on point is scarce, other jurisdictions have
confronted this issue. In Pike v. New England Greyhound Lines, Inc., 93 F. Supp.
669 (D. Mass. 1950), the district court dealt with a relationship between the
defendant and the forum that was not only close to that facing this court; it was
nearly identical. Interstate, the defendant bus line in Pike, was a member of the
Grey hound association. The membership services of the Grey hound association
as described in Pike closely parallel those provided by the Trailway s
association. The office of the Boston Grey hound associate sold transcontinental
tickets that routed passengers through Interstate’s territory. Interstate maintained
no offices or employ ees in Massachusetts. Pike, 93 F. Supp. at 670.
The Pike court held that “[t]he ‘selling of tickets good over the lines of a foreign
[bus] corporation by agents of other corporations, does not, standing alone,
constitute the doing of business by the foreign corporation within the state of sale
of the tickets.’ ” Id. at 671. In addition, the Pike court stated, “If the fact of such
[ticket] sales is not sufficient to bring Interstate within the court’s jurisdiction, it
adds no substantial element that Central also advertises that fact, or provides
such incidental services as furnishing timetables for use by the purchasers of the
tickets.” 93 F. Supp. at 671.
In a fashion similar to that of the Massachusetts court in Pike, the New York
court in Napelbaum v. Atlantic Greyhound Corp., 171 F. Supp. 547 (S.D.N.Y.
1958), granted Atlantic Grey hound’s motion to dismiss for lack of personal
jurisdiction. The suit in Napelbaum stemmed from a collision in Tennessee
between the New York plaintiff ’s vehicle and a bus operated by the foreign
defendant. Napelbaum, 171 F. Supp. at 548. The assertion of jurisdiction in
Napelbaum was based on approximately the same relationship to the forum as
had been stated in Pike. Again, the sales of defendant’s tickets in New York were
considered insufficient to justify an exercise of jurisdiction. Id. at 549–50.
In the case at bar, the quality of Southern’s contacts with California are nearly
identical to those deemed inadequate in Pike and Napelbaum. Just as the forum
contacts of the defendants in Napelbaum and Pike consisted merely of their
membership in the Grey hound association and the forum-related benefits that
membership provided, Southern’s sole contacts with California are through its
membership in the Trailway s association. As noted earlier, the membership
benefits of the Grey hound and Trailway s associations are nearly identical in
every relevant way. As a result, we urge this court to join the courts in Pike,
Kenny, and Napelbaum in finding the mere sale of tickets insufficient for an
assertion of limited jurisdiction.
As to the issue of advertising, Continental advertises in California on behalf of all

50 association members including Southern. This advertising is inextricably wed
to the sale of tickets over Southern’s line since such sales cannot exist without
promotional activity. Just as ticket sales are insufficient to satisfy the first prong
of the test for limited jurisdiction, so is the promotion of those sales insufficient.
California has expressly found the mere advertising of one’s services in the state
insufficient for an assertion of limited jurisdiction. In Circus Circus Hotels, Inc.
v. Superior Court, 120 Cal. App. 3d 546, 174 Cal. Rptr. 885 (1981) [Circus Circus
Hotels, Inc. v. Super. Ct. of Cal., 120 Cal. App. 3d 546 (4th Dist. 1981)] *, a
California citizen brought a negligence action in a California court against Circus
Circus Hotels, a Nevada corporation, stemming from a theft of plaintiff ’s
property while plaintiff was a guest in defendant’s Nevada hotel. Circus Circus
moved to quash service of process based on a lack of personal jurisdiction.
Circus Circus’s only contacts with California were through the advertising of its
Nevada services in various California publications and the maintenance of an
“800” telephone number for placing hotel reservations. Circus Circus, 120 Cal.
App. 3d at 551, 174 Cal. Rptr. at 887. [Circus Circus, 120 Cal. App. 3d at 551.]
The Circus Circus court found that these activities could not support an assertion
of jurisdiction. Id. at 567, 174 Cal. Rptr. at 897. [Id. at 567]
141
Just as the defendants in Circus Circus and Pike, Southern sought to advertise its
service in California indirectly through the Trailway s association. Unlike Circus
Circus: (1) there was no direct advertising of Southern’s service in California,
and (2) Southern maintained no direct connection between the results of the
advertising done on its behalf and the sale of a ticket over an “800” line.
Therefore, if the direct advertising activities in Circus Circus were insufficient to
support an exercise of jurisdiction, then the indirect advertising on behalf of
Southern was even less sufficient.
Neither the sale of tickets in California for connecting carriers outside the forum,
nor the in-state advertising of those connecting services, represent acts of the
quality considered adequate by Cornelison to satisfy the first prong of the test
for limited jurisdiction. Therefore, the defendant’s motion to quash service of
summons should be granted.
2. The Nexus Between the Causes of Action and Southern’s Forum

Contacts Is Insufficient to Establish Jurisdiction.
The Kenny court focused sharply on whether California could assert jurisdiction
where there was absolutely no relationship between the stockholder’s action
concerning proprietary rights in Alaska Airlines and the airline’s in-state ticket
sales through agents and connecting carriers. The court held that the necessary
nexus between the cause and those contacts was missing. Kenny, 132 F. Supp. at
852–54.
Just as there was no nexus between the cause and defendant’s forum-related acts
in Kenny, there is no nexus between an accident on a Louisiana highway
resulting from the alleged negligent maintenance and operation of a bus in
Louisiana and Southern’s membership in an association that advertises and sells
tickets in California and throughout the nation. The only conceivable connection
between the alleged negligent acts of Southern in Louisiana and its contacts with
California is that Clark happened to be traveling away from California’s border.
Such a relationship is far too thin a thread upon which to hang jurisdiction.
The analy sis of the Ninth Circuit in Shute v. Carnival Cruise Lines, 897 F.2d 377,
379 (9th Cir. 1990), rev’d on other grounds, Carnival Cruise Lines, Inc. v. Shute,
499 U.S. 585 (1991), is not dispositive of the nexus issue under the circumstances
before this court. The Shute court stated that a “but for” test applies in the Ninth
Circuit in determining whether a cause of action arises out of forum-related
activities. Shute, 897 F.2d at 381. There, “but for” the advertising of Carnival in
the forum, the plaintiffs would not have been on the cruise in international
waters, where Ms. Shute was injured. Id. at 385.
However, the defendant’s forum-related activities in Shute far exceeded

Southern’s mere membership in an association, since it included direct
advertising of its services and the holding of periodic travel agent seminars
within the forum. Southern’s so-called forum-related activities consist of nothing
more than its membership in the association—it did no direct advertising of its
service in California. The limits of due process are surely exceeded by an
assertion that mere membership in an association renders a citizen amenable to
suit in every jurisdiction where that association carries out its functions.
Therefore, based on Kenny, the plaintiff fails to satisfy the second prong of the
Cornelison test.
3. In the Balancing of Parties’ Convenience and the Interest of the

State, Limited Jurisdiction Is Not Warranted.
In discussing the third prong of the test for limited jurisdiction, Cornelison states
some of the factors that may be employ ed in the analy sis: (1) the availability of
evidence and the relative burdens of trial in one place rather than another, (2)
the state’s interest in providing a forum, (3) ease of access to the alternative
forum, (4) avoiding a multiplicity of suits with attendant conflicting
adjudications, and (5) the extent to which the cause of action arose out of
forum-related activities. Cornelison, 16 Cal. 3d at 151, 545 P.2d at 268, 127 Cal.
Rptr. at 356. [Cornelison, 16 Cal. 3d at 151.]
Under the circumstances of this case, the factor weighing most strongly against
the assertion of jurisdiction is the relative burden on the defense and prosecution.
California would be an extremely inconvenient forum since, with the exception
of the plaintiff ’s testimony, all relevant evidence relating to the cause of action is
142
located in Louisiana and Mississippi. The bus upon which Clark was riding is
located in Louisiana. All of the emergency and hospital personnel, as well as the
ey ewitnesses to the accident, are residents of Louisiana and may be brought to
California only at great inconvenience.
The strength of this factor, when combined with the lack of any nexus between
the accident and Southern’s California activities, throws the balance of the
convenience between the parties strongly in favor of a denial of jurisdiction.
Since the plaintiff has failed to meet all three elements of the three-pronged test
for limited jurisdiction, the court is justified in refusing to assert limited
jurisdiction over Southern.
CONCLUSION
It would offend the notions of fair play and substantial justice to assert either
limited or general jurisdiction over Southern based on the tenuous nature of
Southern’s contacts with California. Southern’s forum-related activities were
neither substantial, continuous, and sy stematic nor related to the plaintiff ’s cause
of action.
For the above-stated reasons, the court should grant the defendant’s Motion to
Quash Service of Summons, and Continental Southern should be dismissed as a
defendant in this action.
[Note: No references are made within this memorandum to supporting declarations
or other documents that would establish the factual representations made.]
143
SAMPLE MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION

TO MOTION
This memorandum of points and authorities was written and edited by members of the
Legal Research, Writing and Analysis Program at the University of San Francisco
School of Law. Special thanks to Stuart Sutton, Cristina Morris, Ellyn Moscowitz, and
Rochelle Wirshup.
THELMA HAYDEN, State Bar #789102
HAYDEN, MARKS & PRENTICE
A Professional Corporation
1000 Mercury Street, Suite 200
San Francisco, California 94118
Telephone: (415) 555–6789
Attorney s for Plaintiff
THORA CLARK
INTRODUCTION
Plaintiff, Thora Clark, is suing Continental Southern (“Southern”) for damages

arising out of a bus accident on December 27, 2000, in Louisiana. Ms. Clark is a
California resident and is suing Southern, a Mississippi corporation, in California.
Southern has moved to quash service of the summons on the grounds that Thora
Clark cannot establish that California has personal jurisdiction over Southern.
144
Thora Clark opposes Southern’s motion to quash service of summons on the

grounds that Southern has maintained contacts with California of such a nature
that the court may exercise either general or limited personal jurisdiction.
I. Does Continental Southern’s advertising of its bus service in California,

selling its tickets in California, and sending its buses into California represent
activities sufficiently substantial, continuous, and sy stematic to justify
California’s exercise of general jurisdiction over Continental Southern?
II. Are (1) Continental Southern’s contacts with California, (2) the nexus
between plaintiff ’s injuries and the California contract for passage on
Continental Southern’s bus, and (3) the balance of the parties’ convenience
against the state’s interest sufficient to support California’s exercise of limited
jurisdiction over Continental Southern?
STATEMENT OF FACTS
Plaintiff Thora Clark, a California resident, is an 80-y ear-old widow. She

suffered a totally debilitating hip injury when a Trailway s bus, owned and
maintained by Southern, rolled over after its left front wheel collapsed on a
Louisiana highway. As a result of the injuries suffered, Thora Clark was
hospitalized in Louisiana for four months before being transferred to California
for therapy. At this time, Thora Clark manages to walk with great difficulty and
pain. She will never fully recover from the hip injury.
In planning a trip from San Francisco to Tampa, Florida, Thora Clark read
defendant Continental Trailway s’s (“Continental”) advertisements in Conde
Naste Traveler, Travel & Leisure (both national publications), and the Travel
section of the San Francisco Examiner. These ads touted Trailway s as the
“[n]ational bus sy stem of choice.” After confirming that she would ride a single
coach throughout the transcontinental journey, Thora Clark purchased a
Trailway s ticket from Western Continental (“Western”) at Western’s office in the
San Francisco Trans-Bay Terminal. When she purchased her ticket, Thora Clark
believed she would be riding on a single coach owned and operated by a single
national entity —Trailway s. She was unaware that each of the ticket coupons
disclaimed responsibility for injuries suffered by Ms. Clark outside the territory
of operation of the carrier designated on the coupon.
On December 27, 2000, Thora Clark, along with 13 other California residents,
boarded a Trailway s bus at the Trans-Bay Terminal—a bus owned by Southern.
Within an hour of leaving the terminal and while still in California, Ms. Clark
heard a slight but continuous grinding sound coming from the front of the bus.
She informed the Western driver of the noise as well as other drivers at the
change of shifts. All of these drivers assured Ms. Clark that such noises were
normal. About an hour after the coach entered Southern’s territory, and a
Southern driver took over driving the bus, the left front wheel of the coach
collapsed, causing it to swerve off the road and tip over on its side. Every
passenger on the bus suffered serious injuries.
In the absence of discovery, Thora Clark tentatively accepts as generally

accurate the statement of the relationship among Southern, Continental, Western,
and the Trailway s “association” as set forth in Southern’s Points and Authorities.
However, Thora Clark takes issue with Southern’s implied assertion that it is not
“doing business” in California.
ARGUMENT
I.
SOUTHERN’S “SOLICITATION PLUS” CONTACTS WITH THE

FORUM ARE OF SUCH A SUBSTANTIAL, CONTINUOUS, AND
SYSTEMATIC NATURE THAT CALIFORNIA SHOULD EXERCISE
GENERAL JURISDICTION.
Southern accurately states the general outline of the distinctions to be drawn

between circumstances giving rise to a state’s power to assert general as opposed
to limited jurisdiction. Southern then launches into a litany of cases which, it
asserts, hold that advertising taken alone and in-state ticket sales taken alone do
not
145
represent acts justify ing an exercise of jurisdiction by a California court.

However, there are two problems with such an analy sis: First, individual classes
of contacts with the forum cannot be taken alone; they must be viewed in the
aggregate. Second, Southern’s contacts extend far bey ond mere solicitation and
the sale of Southern’s tickets. Southern sends equipment onto the highway s of
California and sy stematically enters into contracts with California residents to
provide common carrier services outside the forum.
In Circus Circus Hotels, Inc. v. Superior Court, 120 Cal. App. 3d 546, 174 Cal.
Rptr. 885 (1981) [Circus Circus Hotels, Inc. v. Super. Ct. of Cal., 120 Cal. App. 3d
546 (4th Dist. 1981)], the court held that advertising in California publications
and the maintenance of an “800” telephone number, taken alone, are
insufficient for an assertion of jurisdiction. However, the Circus Circus court
was very careful to distinguish the facts before it from those cases where the
“residents of the forum state entered into contractual relationships with the
soliciting parties.” Circus Circus, 120 Cal. App. 3d at 567, 174 Cal. Rptr. at 897.
[120 Cal. App. 3d at 567.] In situations where a party is involved in “solicitation
plus contracting,” a court would find that the party is doing business in the
forum. Id., 174 Cal. Rptr. at 897. [Id.] Had the California resident in Circus
Circus entered into a contractual relationship in California with the Nevada
defendant, the Circus Circus decision would have been markedly different.
Acts consisting of “solicitation plus” exist in the case at bar. When Thora Clark
purchased her ticket at the San Francisco Trans-Bay Terminal, she entered into a
binding contract for the services of a group of common carriers—one of which
was Southern. Pursuant to that contract, Ms. Clark paid a fee, a portion of which
represented Southern’s compensation for services it was then bound to provide.
While the number of such contracts between Southern and forum residents is as
y et unknown, it is reasonable to assume that their number is high, since every
California resident traveling on Trailway s to Louisiana, Mississippi, Alabama, or
Florida must travel on Southern’s line. Thus, the substantial, continuous, and
sy stematic solicitation of bus services, when combined with California contracts
with Southern for service performed outside the forum, provides the necessary
contacts for the assertion of general jurisdiction.
Like Circus Circus, other courts have viewed “solicitation plus” adequate for the
exercise of jurisdiction. While Napelbaum v. Atlantic Greyhound Corp., 171 F.
Supp. 547 (S.D.N.Y. 1958), appears to reach a position contrary to that urged by
Thora Clark, such is not the case. In Napelbaum, the New York plaintiff ’s vehicle
collided with a bus owned by a Virginia corporation on a road in Tennessee.
Napelbaum, 171 F. Supp. at 548. While deny ing jurisdiction, the court stated in
dicta: “This Court wishes to point out that its decision would be quite different if
plaintiff had been a passenger on defendant’s bus through the purchase of a ticket
in New York. In such a case, this Court has no doubt that it could properly
exercise its jurisdiction.” Id. at 550 (citation omitted). What the Napelbaum court
described in dicta is the exact set of facts at bar. We may conclude from this
statement that had it been faced with the facts before this Court, the court in
Napelbaum would have exercised jurisdiction. Therefore, Southern’s reliance on
Napelbaum is without merit.
In support of its decision, Napelbaum relies on Scholnik v. National Airlines, Inc.,

219 F.2d 115 (6th Cir. 1955). In Scholnik, an Ohio airline passenger commenced
an action in Ohio for an injury received in Florida on the defendant’s plane. The
court held the following factors relevant in the lease agreement: (1) the
defendant airline (National) maintained no office in and scheduled no flights into
Ohio, (2) a resident airline (Capital) sold tickets in Ohio covering passage over
defendant’s lines outside of Ohio, (3) the resident airline leased defendant’s
planes and crews in Ohio, and (4) the two airlines advertised their cooperative
service as a through flight between Ohio and Florida. Scholnik, 219 F.2d at 116.
“[T]he net overall effect of the numerous provisions of the Lease is not to create
the relation of lessor and lessee, but rather the relation of participants in a joint
enterprise ….” Id. at 118. As Scholnik states, “In such activities, agency clearly
exists.” Id. at 119.
The lease agreement in Scholnik is comparable to the association agreement

bonding Southern, Western, and the other Trailway s members into a single
national bus sy stem—all “participants in a joint enterprise.” Like the airlines in
Scholnik, the Trailway s members coordinate their interconnecting service,
tariffs, and
146
schedules, and advertise their enterprise as a singular service under the banner
of Trailway s. Like the airlines in Scholnik, Western sells tickets incorporating the
services of Southern through its territory and collects pay ment for that service;
Like the airlines in Scholnik, Western is acting for Southern and with authority
from Southern to so act. Therefore, like the court in Scholnik, this court should
exercise jurisdiction over Southern.
Kenny v. Alaska Airlines Inc., 132 F. Supp. 838 (S.D. Cal. 1955), the only
California case involving in personam jurisdiction over a nonresident common
carrier, is of no assistance to Southern. Kenny is distinguishable from the case at
bar since, as Southern notes, none of Alaska Airlines’s flights entered California
airspace. Kenny, 132 F. Supp. at 841. In sharp contrast, Southern sends its
equipment into California—equipment that takes advantage of California
highway s, thus availing itself of the laws intended to govern their use.
As a result of the substantial, continuous, and sy stematic activity of Southern in
California as a member of a joint enterprise with Western and Continental,
California may assert general jurisdiction over Southern.
II.
THE TORTIOUS INJURIES SUFFERED BY THORA CLARK ARE

DIRECTLY RELATED TO THE CONTRACT FOR SOUTHERN’S
SERVICES IN CALIFORNIA, THUS JUSTIFYING THE EXERCISE
OF LIMITED JURISDICTION.
Should this court determine that Southern’s contacts with California are not
sufficiently substantial, continuous, and sy stematic to justify an exercise of
general jurisdiction, the court should exercise limited jurisdiction under the
three-pronged test of Cornelison v. Chaney, 16 Cal. 3d 143, 148, 545 P.2d 264,
266–67, 127 Cal. Rptr. 352, 354–55 (1976). [Cornelison v. Chaney, 16 Cal. 3d
143, 148 (1976).] That test requires (1) an inquiry into the character of
defendant’s forum-related activity, (2) a determination of whether there is a
nexus between the cause of action and those activities, and (3) a “balancing of
the convenience of the parties and the interests of the state.” Cornelison, 16 Cal.
3d at 148, 545 P.2d at 266–67, 127 Cal. Rptr. at 354–55. [Cornelison, 16 Cal. 3d at
148.]
In the above discussion, Thora Clark has established the first prong of the test by
demonstrating that the quality of Southern’s contacts with the forum represent
purposeful activities aimed at California consumers. In the remainder of this
analy sis, Thora Clark will demonstrate that the necessary nexus exists between
Southern’s forum-related activities and the cause of action, and that a balancing
of the convenience of the parties and the interests of the state justify the
exercise of jurisdiction.
A. The Second Prong of the Cornelison Test Is Satisfied Because There Is a

Nexus Between Southern’s California Contacts and the Cause of Action.
In Cornelison, the Nebraska defendant was a truck driver who made

approximately 20 delivery trips into California each y ear. While near the
California-Nevada border on a trip to deliver goods in California, the defendant’s
vehicle was involved in a collision with a vehicle driven by a California resident.
Cornelison, 16 Cal. 3d at 146, 545 P.2d at 266, 127 Cal. Rptr. at 353–54.
[Cornelison, 16 Cal. 3d at 146.] While the Cornelison court found these forum-
related contacts insufficient to exercise general jurisdiction, it did exercise
limited jurisdiction. Id. at 149, 545 P.2d at 267, 127 Cal. Rptr. at 355. [Id. at 149.]
In examining the nexus between the cause of action and the defendant’s contacts
with California, the court stated:
He was not only bringing goods into California for a local manufacturer,
but he intended to receive merchandise here for delivery elsewhere. The
accident arose out of the driving of the truck, the very activity which was
the essential basis of defendant’s contacts with this state. These factors
demonstrate, in our view, a substantial nexus between plaintiff ’s cause of
action and defendant’s activities in California.
Id., 545 P.2d at 267–68, 127 Cal. Rptr. at 355–56. [Id.] As discussed in Argument
I, above, Southern entered into a contract in California with Thora Clark. That
contract placed on Southern a common carrier’s
147
duty to exercise the utmost care and vigilance in providing the plaintiff with safe
transportation. Southern’s negligent conduct resulting in the Louisiana accident
represents a direct failure to abide by its obligations under the contract. Just as
the Cornelison court found an appropriate nexus between the careless driving of
a truck outside the forum and the defendant’s driving activity within the forum,
this court should find a similar bond between a contract entered in this state and
its breach in Louisiana.
Southern’s sole support for its assertion of lack of the necessary nexus between
the cause and the forum contacts is Kenny, in which a California stockholder
brought suit against Alaska Airlines for matters relating to a proprietary interest
in the airline. Plaintiff agrees that Kenny stands for the proposition that the
necessary nexus is missing where jurisdiction is sought over a stockholder’s
derivative suit and the only forum contacts consist of the advertising and sale of
airline tickets. However, the facts of Kenny and those of the case at bar are
markedly different. As established above, there is a direct relationship between
Southern’s in-state contracting for bus services and a breach of its obligations
under such contracts. Thus, Kenny is inapposite and Southern’s reliance upon it is
misplaced.
The situation addressed by the Ninth Circuit in Shute v. Carnival Cruise Lines,
897 F.2d 377 (9th Cir. 1990), rev’d on other grounds, Carnival Cruise Lines, Inc.
v. Shute, 499 U.S. 585 (1991), is much more in keeping with the facts before this
court than those presented by Kenny. In Shute, the court applied a “but for” test
in determining whether a cause of action arises out of forum-related activities.
Shute, 897 F.2d at 385. The court rejected the rule urged by Carnival that slip-
and-fall claims cannot arise out of solicitation activities. Id. at 383. In upholding
the exercise of limited jurisdiction, the court reasoned that “but for” the forum
advertising, the Shutes would not have been on the ship—the parties would not
have been “within tortious ‘striking distance’ of one another.” Id. at 385. In like
fashion, “but for” the advertising of Trailway s in forum media, Thora Clark
would not have been on that bus in the middle of Louisiana and would not have
been injured.
In its points and authorities, defendant attempts to characterize its forum

advertising as “indirect” while characterizing that in Shute as “direct.” Such a
subterfuge cannot withstand analy sis. The thrust of the Shute decision rests
firmly on whether solicitation occurred. Nothing in the Shute opinion leads to the
conclusion that the analy sis would have been any different had the advertising at
issue been done by some third party under its own name (but for the benefit of
Carnival) rather than in Carnival’s own name. Whether direct or indirect,
Southern engaged in, and profited from, the solicitation of California citizens.
Therefore, Thora Clark has established both the existence of Southern’s contacts
with California and the direct nexus between those contacts and the injury
suffered. All that remains is to affirmatively establish that the balancing of party
conveniences and the interests of California demand the exercise of jurisdiction
over Southern.
B. The Balancing of Parties’ Convenience and the State’s Interest Satisfies

the Third Prong and Establishes that California Has Jurisdiction.
Southern correctly states that among the factors to be considered in the

determination of this prong of the Cornelison test are the following: (1) the
relative availability of evidence and the burden on defense and prosecution
between California and the alternative forum, (2) the state’s interest in providing
a forum, (3) the ease of access to that alternative forum, (4) the avoidance of a
multiplicity of suits and conflicting adjudications, and (5) the extent to which the
cause of action arose out of defendant’s local activities. Cornelison, 16 Cal. 3d at
151, 545 P.2d at 268, 127 Cal. Rptr. at 356. [Cornelison, 16 Cal. 3d at 151.]
In its points and authorities, Southern focuses primarily on the first and fifth of
these factors. As to the first factor, while it is true that the phy sical evidence as
well as many of the witnesses are in Louisiana, it is equally true that records
concerning the plaintiff ’s ongoing treatment are located in California, as are
witnesses—five of the 13 California residents who boarded the bus in San
Francisco. And, of course, this court must also consider the plaintiff ’s advancing
age and her poor phy sical condition. Therefore, the first factor’s balancing of
party conveniences tips decidedly in Thora Clark’s favor.
148
As to the fifth factor, Thora Clark established in the discussion above that there is
a strong connection between the cause and Southern’s forum-related activities.
Thus, the assertion that a nexus is missing is without merit.
Southern is strangely silent concerning California’s interest in providing a forum

for its citizens, factor two. Southern sent the bus on which Thora Clark and 13
other California residents were riding onto the highway s of this state. While
here, that bus enjoy ed the protection of the laws of this state in the same manner
as all other vehicles on California highway s. The grinding sound of the damaged
wheel of the bus became apparent while still within California. Because of
California’s strong interest in the safety of its citizens traveling by common
carrier on its highway s, California is an appropriate forum for the trial of the
issues in this case.
Finally, under factor four, this court may consider whether a failure to exercise
jurisdiction will subject Thora Clark to a multiplicity of suits and conflicting
adjudications. Thora Clark has joined three defendants in this action—
Continental, Western, and Southern. As a California corporation, Western is
amenable to suit in California. In like fashion, service of process on Continental
has been achieved through service on its designated California agent. Only
Southern protests the exercise of California jurisdiction. However, to the extent
that Southern denies any connection with this forum, so may Western deny any
connection to either Louisiana or Mississippi. As a result, the failure to exercise
jurisdiction over Southern will expose Thora Clark to a multiplicity of suits and
potentially conflicting adjudications—a suit against Western and Continental in
California and another against Southern in Louisiana or Mississippi.
Based on the above analy sis of the three-pronged Cornelison test, Thora Clark
has established the right of this Court to exercise limited jurisdiction over
Southern for purposes of adjudicating a cause directly related to its forum-
related activities.
CONCLUSION
For the above reasons, the plaintiff, Thora Clark, respectfully requests that this
court deny Southern’s motion to quash service of summons and exercise either
general or limited jurisdiction over it.
[Note: No references are made within this memorandum to supporting declarations
or other documents which would establish the factual representations made.]
__________________________
difference between the Bluebook and ALWD forms, and thus only one citation is
used.
difference between the Bluebook and ALWD forms, and thus only one citation is
used.
149
Chapter Fifteen:
Writing an Opinion or Client Letter
CONTENTS
150
1. An Opinion or Client Letter
Often, attorney s will provide informal opinions to their clients over the
phone, in conference calls, or in person. However, there are times when
attorney s will write opinion letters to their clients. The purpose of a client or
opinion letter is to inform and advise the client about the case. The letter
may respond to a particular concern raised by the client, or it may be a
more general assessment of the situation. The letter may offer strategy as
well as an opinion on the law.
The client letter is an objective document. Thus, y ou need to provide a

balanced presentation of both sides of the problem. Then, based on y our
knowledge of the law, explain what y ou suppose the likely outcome will be.
Be realistic.
2. Format
The tone of a client letter is very important. Since it is written to a

lay person (unless y our client is an attorney ), y our tone will be more
informal than it would be if y ou were writing the same information to a
supervising attorney. You do not need to cite any legal authorities in y our
letter, although sometimes attorney s will cite relevant statutes. If y ou have
an attorney for a client, or perhaps a client who likes to research the law,
y ou may want to refer to cases and other authorities as well.
a. Introduction
You should begin y our client letter with a short introduction. The
introduction would indicate that y ou are writing to keep the client
abreast of the case, or that y ou are writing in response to a
question or concern raised by the client. You can also set out the
issue or issues that y ou will respond to or analy ze in this letter.
b. Statement of Facts
You should follow up the introduction with a short statement of

the facts of y our client’s situation. This guarantees that y ou and
the client are on the same wavelength when she reads y our letter.
It also indicates that it is these facts and no others to which y ou
are responding.
c. Explanation of Law and Application to Facts
You then proceed with an explanation of the relevant law and its
application to the particular facts of the client’s case. Your
analy sis should proceed in the same order in which y ou set out
y our issues above (i.e., issue by issue). The legal analy sis
process of apply ing the law to the facts is the same as that in
other objective documents. (See chapters XI and XIII.)
d. Conclusion/Recommendation
If y ou are drawing a conclusion about the law, be sure that it is

objective. The client can only make an informed decision if she
is given a fair assessment of the situation. If an important fact is
missing, be sure to point it out and consider alternative
conclusions based on the missing fact.
If y ou are making a recommendation about strategy, be sure to

leave room for the client to make the final decision. As an
attorney, y ou may wish to counsel y our client on the position y ou
think that she should take, but the ultimate decision on which way
to go (for example, whether to settle a case or proceed to trial, or
how much money to accept or pay in settlement) is up to the
client. Be careful that y ou do not impose y our own judgment on
the client.
151
e. Closing
Your closing should be short and friendly.
The following is a mock client letter designed solely to show y ou what a client letter
might look like. It is not intended to be an accurate statement of the law.
Dear Ms. Monroe:
You have asked me to comment on whether the landlord may retain y our $600
“cleaning fee” which y ou paid to him on February 1, 2008, when y ou moved
into apartment number 11 at 30 Norma Rae Lane in San Francisco. My
understanding is that he is refusing to return it although y ou moved out on
February 1, 2011, and have left the place in immaculate condition. His
argument is that only “deposits” are returned, not “fees.”
Under a state statute (Civil Code section 1234), landlords must return cleaning
fees as well as cleaning deposits within two weeks after the tenant moves out of
the apartment. A landlord cannot refuse to return the money by labeling it as a
“fee.” A landlord can only keep whatever he can prove he needs to clean the
apartment.
From y our description, y ou left the premises in immaculate condition. Thus,

y ou are entitled to receive y our $600 back. Since y ou moved out more than two
weeks ago, the landlord should have returned the money by now.
A recent case dealt with a similar situation. In that case, the landlord claimed
that he did not need to return a “lease key fee” after the tenant moved out. The
court held that the landlord could not show any justification for retaining the
lease key fee. The tenant had returned the key and had never made a duplicate
of it. Thus, the landlord could not argue that he had to expend money to either
replace the key or the lock.
Although the facts are somewhat different in y our situation, the rationale behind
that case and y ours is the same. Landlords cannot retain deposits or fees unless
they can prove some justification. From the facts y ou have given me, it does not
appear that the landlord has any justification for withholding y our cleaning fee.
He does not need to clean the apartment or repair any damage. In fact, it sounds
as if y ou left the apartment in even better condition than when y ou moved in.
By the way, the statute I mentioned also allows a court to award up to $200 in
punitive damages (which are damages designed to punish or use as an example)
when the landlord does not return the deposit or fee within the two-week period.
So y ou might even receive more than the return of y our fee if y ou have to go to
court on this matter.
Please let me know whether there is any thing else I can do for y ou.
Respectfully,
Attorney
153
THE BASIC PRIMARY SOURCES
FEDERAL:
Statutes
United States Code
United States Code Annotated (“U.S.C.A.”) (West)
United States Code Service (“U.S.C.S.”) (Michie/LexisNexis Group)
United States Statutes at Large
Cases
United States Reports (Official)
Supreme Court Reporter (West)
United States Supreme Court Reports, Lawy ers’ Edition (LexisNexis Group)
Federal Reporter (West)
Federal Supplement (West)
Administrative
Code of Federal Regulations (“C.F.R.”)
Federal Register (“Fed. Reg.”)
STATE:
Statutes
State codes (e.g., Deering’s Annotated California Codes, McKinney ’s Consolidated

Laws of New York Annotated)
State session laws
Cases
Official state reports
West’s National Reporter Sy stem—Regional reporters (e.g., West’s Pacific Reporter)

and state reporters (e.g., California Reporter and New York Supplement)
Administrative
State administrative codes
154
SECONDARY SOURCES
Selected Treatises
Williston, Contracts
Corbin, Contracts
Powell, Real Property
Davis and Pierce, Administrative Law
Collier, Bankruptcy
Gordon & Mailman, Immigration Law and Procedure
Anderson American Law of Zoning
Hazard & Hodes, Law of Lawy ering
Grad, Environmental Law
Selected Hornbooks
Prosser & Keeton, Torts
Calamari & Perillo, Contracts
Farnsworth, Contracts
Davis and Pierce, Administrative Law
LaFave & Scott, Criminal Law
LaFave, Israel & King, Criminal Procedure

Henn & Alexander, Corporations
Rodgers, Environmental Law
Wright, Federal Courts
McCormick, Evidence
Bogert, Trusts
You will often hear a treatise or hornbook referred to as follows: (the author’s name) on
(the subject), e.g., Corbin on Contracts.
Encyclopedias
National
Corpus Juris Secundum (“C.J.S.”)
American Jurisprudence 2d (“Am. Jur. 2d”)
State
Witkin’s Summary of California Law 10th
California Jurisprudence 3d
Florida Jurisprudence 2d
Michigan Law and Practice
New York Jurisprudence 2d
Strong’s North Carolina Index 4th
Ohio Jurisprudence 3d
155
Summary of Pennsy lvania Jurisprudence 2d
Texas Jurisprudence 3d
and others
Selected Practice and Procedure and Form Books

Federal
Moore’s Federal Practice
Federal Practice and Procedure, Wright & Miller
West’s Federal Forms
Federal Procedural Forms, Lawy ers’ Edition
Bender’s Forms of Discovery
Bender’s Federal Practice Manual
General
Am. Jur. Legal Forms 2d
Am. Jur. Pleading and Practice Forms
West Legal Forms (West)
California
Continuing Education of the Bar (“CEB”) publications (http://ceb.com)
California Procedure 5th, Witkin
California Civil Procedure Before Trial (CEB)
California Forms of Pleading and Practice (Matthew Bender & Co., Inc./LexisNexis
Group)
West’s California Code Forms series with Commentaries
California Legal Forms: Transaction Guide (Matthew Bender & Co., Inc./LexisNexis
Group)
New York
Carmody -Wait 2d: New York Practice with Forms (Lawy ers Cooperative)
New York Practice 3d, Siegel (West)
McKinney ’s New York Civil Practice Law and Rules (West)

West’s McKinney ’s Forms
New York Forms, Legal and Business (Lawy ers Cooperative)
Bender’s Forms for the Civil Practice, New York (Matthew Bender & Co.,
Inc./LexisNexis Group)
Bender’s Forms of Pleading, New York
Bender’s Forms for the Consolidated Laws of New York
Digests
United States Supreme Court Digest
Digest of United States Supreme Court Reports, Lawy ers’ Edition
West’s Federal Practice Digests 2d, 3d, 4th, and 5th
United States Federal Claims Digest
156
West’s Atlantic Digest
West’s North Western Digest
West’s South Eastern Digest
West’s Pacific Digest
American Digest Sy stem (Ten Decennials plus General Digests)
Selected Looseleaf Services and Materials
Commerce Clearing House (“CCH”)
Labor Relations with Labor Law Reports
Employ ment Safety and Health Guide
Unemploy ment Insurance Reporter
Medicare and Medicaid Guide
Consumer Product Safety Guide

Consumer Credit Guide
Bankruptcy Law Reporter
Energy Management and Federal Energy Guidelines
Nuclear Regulatory Reports
Standard Federal Tax Reporter
State Tax Reporters
Congressional Index
Trade Regulation Reporter
Bureau of National Affairs (“BNA”)
ABA/BNA Lawy ers’ Manual on Professional Conduct
Environment Reporter
Occupational Safety and Health Reporter
Product Safety and Liability Reporter
Labor Relations Reporter
Criminal Law Reporter
Family Law Reporter
Patent, Trademark & Copy right Journal
United States Law Week
Media Law Reporter
Online Sources
LexisNexis (http://www.lexis.com)
Westlaw (http://www.westlaw.com)
WestlawNext (http://next.westlaw.com)
Fastcase (http://www.fastcase.com)
157
Versus Law (http://www.versuslaw.com)
Loislaw (estore.loislaw.com)
Bloomberg Law (http://www.bloomberglaw.com)
HeinOnline (http://heinonline.org)
Findlaw (http://www.findlaw.com)
WashLaw Web (http://www.washlaw.edu)
Legal Information Institute (http://www.law.cornell.edu)
THOMAS (http://thomas.loc.gov)
GPO Federal Digital Sy stem (“FDsy s”) (http://www.gpo.gov/fdsy s)
Guide to Law Online (http://www.loc.gov/law/help/guide.php)
National Conference of Commissioners on Uniform State Laws (“NCCUSL”)

(http://www.uniformlaws.org)
Lexis Web (http://www.lexisweb.com)
Google Scholar (http://scholar.google.com)
Public Library of Law (http://www.plol.org)
Social Science Research Network (“SSRN”) (http://www.ssrn.com)
Berkeley Electronic Press (http://www.bepress.com)
ABA Journal’s Blawg (legal blog) Directory (http://www.abajournal.com/blawgs)
Public Access to Electronic Records (“PACER”) (http://www.pacer.gov)
United States Courts (http://www.uscourts.gov)
National Center for State Courts (http://www.ncsc.org)
United States Department of State (http://www.state.gov)

United States Department of Justice (http://www.justice.gov)
USA.gov (http://www.usa.gov)
Other Useful Sources
ALI-ABA publications (http://www.ali-cle.org)
ACLEA publications (http://www.aclea.org)
Practising Law Institute (“PLI”) publications (http://www.pli.edu)
American Law Reports (“A.L.R.”)
Martindale-Hubbell Law Digest (http://www.martindale.com)
Index to Legal Periodicals
Pimsleur’s Checklists of Basic American Legal Publications
Daily Legal Newspapers
Shepard’s Citations
West’s Blue and White Books
The Bluebook: A Uniform Sy stem of Citation (“The Bluebook”)
ALWD Citation Manual: A Professional Sy stem of Citation
158
Black’s Law Dictionary
Gilbert Pocket Size Law Dictionary
Words and Phrases
The Gilbert Law Summaries series

159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175
176
177
178
Reprinted with the permission of LexisNexis.
179
Index
ABBREVIATIONS
See ALWD Citation Manual; Bluebook; Uniform System of Citation, A
ABSTRACTS OF LEGISLATIVE HISTORIES, 47
ADJUDICATION
See Administrative agencies
ADMINISTRATIVE AGENCIES
adjudication, 59
agency action, 58–59
appeals, 59
as “lawmakers,” 14–15
county and municipal regulations, 63
decisions reported, 25, 60
federal, research of
agency publications, 60, 62
Code of Federal Regulations, 60
Congressional Yellow Book, 62
Federal Register, 60
Federal Yellow Book, 62
generally, 59
importance of effective date, 60
legislative history, 46–47
looseleaf materials, 25, 61–62
See also Looseleaf services
presidential documents, 60, 63
proposed rules and regulations, 60
regulations, 60–62
secondary sources, 62
Shepard’s Citations, 63
United States Government Manual, 62
formal vs. informal functions, 58, 58
municipal regulations, 63
powers of, 58
regulations as law, 58
Shepardizing, 63, 73–74
See also Shepard’s Citations
state, research of
decisions, 63
local directories, 63
looseleaf materials, 25, 62
regulations, 63
treatises regarding, 59, 62
ADMINISTRATIVE LAWMAKING, 14–15

See also Administrative agencies
ADVANCE SHEETS
federal cases, 20–21
federal statutes, 35, 43
in research, 25–27
online slip opinions, 76, 78
state cases, 22
state statutes, 42
updating Shepard’s, 74
ALI-ABA, 54
See also Continuing legal education
ALWD CITATION MANUAL, 25–26, 43–44

AMERICAN DIGEST (DECENNIALS), 26–27, 53–54
AMERICAN JURISPRUDENCE 2D (“AM. JUR. 2D”), 51
AMERICAN LAW REPORTS (“A.L.R.”), 51
ANNOTATED CODES
See Codes
ANNOTATIONS
constitutions, 44
federal codes, 31–32, 43
state codes, 42–43
APPEALS
federal courts, 7
from agency decisions, 59
generally, 6
questions of law only, 3, 6–7
right to, 6
special federal courts, 9
state courts, 10
supreme or high court, 6–7, 9
updating research during, 74
APPELLATE BRIEF, 132–148
APPELLATE COURT
See Appeals
APPLICABLE LAW
branches of government as “lawmakers,” 14–15
generally, 13
state and/or federal law, 14
ATLANTIC REPORTER, 22
ASSOCIATION FOR CONTINUING LEGAL EDUCATION, 54

ATTORNEY GENERAL OPINIONS

annotations to, 31
as secondary source, 55
BANKRUPTCY DECISIONS, 21
BANKRUPTCY LAW REPORTER, 21
BILLS, LEGISLATIVE
enactment of, 30
history of, 45–47
research of, 35–41
BACK’S LAW DICTIONARY, 2, 78
BLOOMBERG LAW, 81
BLUE AND WHITE BOOKS (WEST), 74
BLUEBOOK, 25–26, 43–44
BRIEF, APPELLATE OR TRIAL, 132–148

See also Legal writing and analy sis
180
“BRIEFING” A CASE
aid to understanding, 84
example—Bounds v. Smith, 89–103
for effective research and writing, 84
format of brief, 84–89
concurring opinion, 88
court rendering decision, 85
decision, as opposed to holding, 88
dicta, 87
dissenting opinion, 88–89
facts, importance of, 85–86
holding of case, 87
issues, 86–87
judicial history, 85
name and citation, 85
reasoning of holding, 87
necessity of thorough reading, 89
BURDENS OF PROOF, 3
BUREAU OF NATIONAL AFFAIRS (“BNA”)

organization of, 62
specialized editions of cases, 25
CALIFORNIA REPORTER, 22
CASE ALERT, 20–21, 26–27
CASE ANALYSIS, 84
CASE BRIEFS
See “Briefing” a case
CASE REPORTS
See also Citations; Federal reporters; State case reports
advance sheets, 20–22
bankruptcy courts, 21
federal reporters, 20–22
headnotes, 23
key number sy stem (West), 22–23
National Reporter Sy stem, 18
official and unofficial reports, 18, 22–23
reporting sy stem, in general, 18
slip opinions, 20–21
specialized editions, 25
specialty courts, 21
state and regional reporters, 22
Supreme Court cases, 20–21
unpublished decisions, 21
CASES, FINDING
See also Citations; Online research; Secondary research sources
advance sheets, 25–27. See also Advance sheets
by popular names, 26–27
citations, use of, 25–26
defendant-plaintiff tables, 53–54
digests, 53–54
ency clopedias, 51
LexisNexis, 76–77
parallel citations, 26
table of cases, 109
Westlaw, 77–78
without citations, 26–27
CERTIORARI, 9
CITATIONS
abbreviations, 20, 25–26
ALWD Citation Manual, 25–26, 43–44
“Bluebook,” 25–26, 43–44
computers, use of, 25–27. See also Online research
digests, use of, 26–27. See also Digests
explanation of, 20, 25–26
federal statutes, 43
finding cases with, 25–26
finding cases without, 26–27
“Maroon Book,” 25–26
parallel, 26
placement of, 25–26
pocket parts, 26–27
Shepardizing cases, 69–72
Shepardizing statutes, 72
Shepard’s, use of, 26, 72. See also Shepard’s Citations
slip laws, 43
state statutes, 43–44
CITATOR SYSTEMS
See also Key Cite; LEXCITE; Online research; Shepard’s Citations
Blue and White Books (West), 74
other sources, 74
CIVIL ACTIONS, DEFINED, 2–3
CIVIL CONTEMPT, 2
CLIENT LETTER, 150–151

CODE OF FEDERAL REGULATIONS (“C.F.R.”)

Federal Register, as supplement to, 60
List of C.F.R. Sections Affected, 60
presidential documents in, 60, 63
quick references to, 31–32
Shepard’s Citations to, 73
source of administrative regulations, 60
Versus Law, 81
CODES
See also Statutes
Code of Federal Regulations, 31–32, 60
codification explained, 30–31
federal, 31–42
annotated, 31–32
annual supplements, 35
private laws, 41
recent laws, 35–41
slip laws, 35
unannotated, 31
uncodified, 41
municipal ordinances, 43
researching of federal, 41–43
citing, 43
cross-references, 42
index method, 41–42
online method, 41
popular name method, 42
topic method, 42
state codes, 42–44
citing, 43–44
researching, 42–43
Uniform Laws Annotated as secondary source, 54
United States Code Annotated (U.S.C.A.), 31–32
United States Code Service (U.S.C.S.), 32
COMMERCE CLEARING HOUSE (“CCH”), 25, 35

organization of, 61
COMMON LAW, DEFINED, 3
COMPUTER RESEARCH
See Online research
181
CONCURRING OPINION, 88
See also “Briefing” a case
CONGRESSIONAL INDEX (CCH)

current status of bills, 35
index of all introduced bills, 46
CONGRESSIONAL INFORMATION SERVICE (“CIS”), 46–47, 60
CONGRESSIONAL RECORD, 47, 79
CONGRESSIONAL YELLOW BOOK, 62
CONSTITUTIONS
generally, 44
state constitutions, 44
state, research of, 44
United States Constitution, research of, 44
CONTINUING LEGAL EDUCATION

form books, 54
practice and procedure books, 54
publications generally, 50, 54
CORPUS JURIS SECUNDUM (“C.J.S.”), 51
COURT OF FEDERAL CLAIMS, 9
COURT OF INTERNATIONAL TRADE, 9
COURT OF VETERANS’ APPEALS, 9
COURTS
federal, 7–9, 20–22
courts of appeal, 7
decisions reported, 21
district courts, 7
special courts, 9
decisions reported, 21–22
United States Supreme Court, 9
decisions reported, 20–21
generally, 6–7
appellate courts, 6
appellate jurisdiction, 6
original jurisdiction, 6
supreme or high courts, 6-7
trial courts, 6
state, 9–10, 22
appellate courts, 10
importance of court level, 10
small claims courts, 10
supreme or high court, 10
trial courts, 9
CRIMINAL ACTIONS, DEFINED, 2
burden of proof standard, 3
CROSS-REFERENCES
See also Blue and White Books (West)
American Law Reports, 51
federal codes, 42
CURRENT INDEX TO LEGAL PERIODICALS, 52
CURRENT LAW INDEX, 52
DAILY LAW JOURNALS, 53
DAILY REPORT FOR EXECUTIVES (BNA)

federal legislative histories, source of, 46
DECENNIALS—AMERICAN DIGEST SYSTEM, 53–54

popular case names in, 26–27, 73–74
DECISIONS REPORTED
See Case reports; Courts; Federal reporters
DEFENDANT-PLAINTIFF TABLES
indexes, 53–54
table of cases, 109
DICTA VS. HOLDINGS

cases, 22–23, 87
digests, 53
headnotes, 22–23, 87
persuasive, 22–23
DICTIONARIES, LEGAL, 2, 79
DIGESTS
American Digest System (Decennials), 26–27, 53–54, 73–74
case search without citation, 26–27
constitutional research, 44
Federal Practice Digest series, 26–27, 44
General Digest, supplement to Decennials, 53–54
generally, 53–54
key number sy stem as aid, 22–23
popular name tables, 73–74
United States Supreme Court Digest, 22–23, 44, 73–74
United States Supreme Court Digest, Lawyers’ Edition, 44
when to use, 53–54
DISSENTING OPINION, 88–89

DISTRICT COURTS
See Courts
ELEMENTS OF STYLE, THE (STRUNK AND WHITE), 112
EN BANC DECISION, 7
ENCYCLOPEDIAS, LEGAL, 51
See also Secondary research sources
American Jurisprudence 2d, 51
American law, 51
Corpus Juris Secundum, 51
generally, 51
publications similar to
Martindale-Hubbell Law Digest, 51
state law, 51
EQ UITY, DEFINED, 3–4
EXECUTIVE “LAWMAKING,” 14–15

presidential orders, 60, 63
United States Code Service—Lawy ers Edition, 35
FACTS
as distinguished from law, 3
in briefs, 85–86
jury ’s role in determining, 3
FASTCASE, 80, 81
FEDERAL APPENDIX, 21
FEDERAL CASES, 20–22. See also Administrative agencies; Case reports; Online
research
182
FEDERAL CASES, 21
FEDERAL COURT GUIDELINES, 41
FEDERAL COURTS, 7–9

See also Courts
FEDERAL LAW OVERLAPPING STATE LAW, 14
FEDERAL PRACTICE DIGEST SERIES, 26–27, 44
FEDERAL PROCEDURAL RULES

See Federal Rules
FEDERAL REGISTER, 60, 63

agency rules and regulations in, 60
presidential documents in, 63
FEDERAL REPORTER, 21, 25–26
FEDERAL REPORTERS
See also Looseleaf services; Online research
appellate court decisions, 21
computer databases, 20, 21
Federal Appendix, 21
Federal Reporter, 21
bankruptcy court decisions, 21
Bankruptcy Law Reports (CCH), 21
Bankruptcy Law Reporter, 21
district court decisions
Federal Reporter, prior to 1933, 21
Federal Supplement, after 1933, 21
other sources, 21
federal procedural rules, interpretation of
Federal Rules Decisions and Federal Rules Service, 22
special subject reporters, 21, 22, 25
specialty court decisions, 21, 22
Supreme Court decisions
advance sheets, 20
computer databases, 20
Supreme Court Reporter, 20
United States Law Week, 20
United States Reports, 20
United States Supreme Court Reports—Lawyers’ Edition, 20
FEDERAL RULES
appellate procedure, 41
civil procedure, 41
Federal Rules Decisions, 22
Federal Rules Service, 22
local court rules, 41
FEDERAL STATUTES
See Codes; Online research; Statutes
FEDERAL SUPPLEMENT, 21, 25–26
FEDERAL YELLOW BOOK, 62
FEDERALISM RE CHOICE OF LAW, 14
FINDLAW, 79
FORM BOOKS, 54
FREEDOM OF INFORMATION ACT, 59
GILBERT LAW SUMMARIES, 50–51
GILBERT POCKET SIZE LAW DICTIONARY, 2
GPO ACCESS
See GPO Federal Digital Sy stem
GPO FEDERAL DIGITAL SYSTEM, 79
GRAMMAR AID
Elements of Style, The (Strunk and White), 112
GUIDE TO LAW ONLINE, 79–80
H
HARVARD BLUEBOOK
See Bluebook
HEADNOTES
as dicta, 53–54
in official reports, 23
key numbers, 22–23
use of in Shepard’s, 69–71
HEARINGS, ADMINISTRATIVE, 59
HEINONLINE, 47, 52, 81
HOLDINGS
as precedent, not dicta, 22–23, 87
explained, 87
HONIGSBERG GRID, 119
HORNBOOKS, 50
INDEX TO LEGAL PERIODICALS, 52
INDEX TO PERIODICAL ARTICLES RELATED TO LAW, 52
INDEXES
for legislative history, 46
importance of, 106
sample index search, 106–109
legal theory, 106
people, 106
pointers for using an index, 109
remedy sought, 106
subject matter, 106
to administrative law, 46, 60, 61, 62
to American Jurisprudence 2d, 51
to American Law Reports, 51
to Code of Federal Regulations, 60
to constitutions, 44
to digests, 53–54
to law reviews and periodicals, 52, 62
to research federal laws, 41
to state codes, 42–43
treaty research, 48
INTERNET RESEARCH
See Online research
“IRAC” METHOD OF ORGANIZING, 112–113, 115–116

ISSUES EXPLAINED, 86–87

JUDGE’S ROLE IN TRIAL, 3
JUDICIAL HISTORY OF CASE, 85
JUDICIAL “LAWMAKING,” 14–15
183
JURISDICTION OF COURTS
appellate, 6
federal, 43
original, 6
state, 43
JURY INSTRUCTIONS, DEFINED, 3

JURY ROLE IN DETERMINING FACTS, 3
KEY NUMBER, WEST SYSTEM

in A.L.R., 51
in C.J.S., 51
in digests, 53–54
use of, 22–23
KEYCITE, 66–67, 78
LABOR LAW REPORTER (CCH), 22
LABOR RELATIONS REPORTER (BNA), 25

LAW, AS DISTINGUISHED FROM FACTS, 3
LAW DICTIONARIES, 2, 79
LAW REVIEWS AND PERIODICALS

indexes to, 52
online law journals, 53
references to, 31
Shepard’s Citations to, 69
when to use, 52
LEGAL ANALYSIS
See “Briefing” a case; Legal writing and analy sis
LEGAL BLOGS, 53, 79
LEGAL RESEARCH
See Research
LEGAL RESOURCE INDEX, 52, 62
LEGAL WRITING AND ANALYSIS

active voice, 114
answering the questions, 114
avoiding legal jargon, 114
avoiding repetition, 113
client letter, 150
format, 150
purpose, 150
extraneous issues, avoidance of, 114
generally, 112
Honigsberg Grid for organization, 118
important points—highlight, 113
“IRAC” approach, 115–116
memorandum of law, 122–124
format, 122–124
sample, 122–124
memorandum of points and authorities or trial brief, 132–148
format, 132
persuasive argument, 132
opinion letter. See Client letter
organizing material and ideas, 112
outlining, 112–113
“IRAC” model, 112–113
process of outlining, 112–113
reader, consideration of, 113–114
short sentences, 113
word choice, 113–114
LEGALTRAC, 52, 62
LEGISLATIVE HISTORIES
compiled histories, 47
congressional intent, 45
federal, sources of
Congressional Index (CCH), 46
Congressional Information Service, 46
Congressional Record, 47
Daily Report for Executives (BNA), 46
indexes, use of, 46
other sources, 47
United States Code—Congressional and Administrative News,
46
United States Code Service Cumulative Later Case and
Statutory Service, 35
interpretation of statutes, aid to, 45
research of, 46–47
state, sources of, 47
LEGISLATIVE INTENT
See Legislative histories
LEXCITE, 66, 77
LEXIS ADVANCE, 77
LEXIS WEB, 77, 80
LEXISNEXIS
See also Online research
Acts and Cases by Popular Names (Shepard’s), 26–27, 72
as a research source, 20, 76
case without a cite, 26–27
citator sy stem, 66–67, 77
code research, 41–43, 55
contents, 76
Federal Register, 60, 76
Federal Rules, 41
Index to Legal Periodicals, 52
Legal Resource Index, 52
legislative bills, federal and state, 35, 46
LEXCITE, 66, 77
Lexis Advance, 77
Lexis Web, 77, 80
LexisONE, 81
nonlegal databases, 77
organization of, 76
search methods, 77
Shepard’s Citations, 66–67, 74
updating citations, 74
state administrative codes, 63
state codes, 42–43, 55
subscription services, 79, 81
uniform state laws, 55
LOISLAW, 81
LOOSELEAF SERVICES
Am. Jur. 2d New Topic Service Binder, 51
as updating source, 74
Bureau of National Affairs, 25, 62
administrative research, 62
case research, 25
organization of, 62
Commerce Clearing House, 61
indexes, 61
Congressional Yellow Book, 62
description of, 61
Federal Yellow Book, 62
generally, 61, 74
importance of instructions, 61
Labor Relations Reporter (BNA), 25
184
Legal Looseleafs in Print, 61

online publication by, 62
secondary source, 54
specialized editions, 25
state editions, 54, 62
Trade Regulation Reporter (CCH), 25
United States Law Week (BNA), 20, 25
MAROON BOOK, 25–26
MARTINDALE-HUBBELL LAW DIGEST, 51
MEDIA LAW REPORTER, 22
MEMORANDUM OF LAW, 122–124

MEMORANDUM OF POINTS AND AUTHORITIES, 132–148

MILITARY JUSTICE REPORTER, 22
MOBILE APPLICATIONS, 78–80
MODERN FEDERAL PRACTICE DIGEST, 44

MULTILATERAL TREATIES: INDEX AND CURRENT STATUS, 48
MUNICIPAL AND COUNTY RESEARCH

ordinances, 43
rules and regulations, 63
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE

LAWS (“NCCUSL”), 55, 80
NATIONAL REPORTER SYSTEM (WEST)

Blue Book, 74
citations, 20
generally, 18
key number sy stem, 22–23
NEW YORK SUPPLEMENT, 22
NORTH EASTERN REPORTER, 22
NORTH WESTERN REPORTER, 22
OFFICIAL CASE REPORTS, 18, 22

headnotes to, 23
ONLINE RESEARCH
See also LexisNexis; Westlaw
administrative law research, 25, 60, 62–63, 73, 78–79
Black’s Law Dictionary, 78
Bloomberg Law, 81
case research without citation, 26–27
citator sy stems
Bloomberg Law, 81
federal and state statute citations, 72
Key Cite, 66–67, 78, 122–124
Shepard’s Citations, 66–67, 74
Code of Federal Regulations, 60, 76, 79, 81
codes, state and federal, 41–42, 76, 78
Congressional Record, 47, 79
electronic law journals, 53
Fastcase, 80–81
federal codes, 41, 76, 78–81
federal court decisions, 21, 76, 78–81
Federal Register, 60, 76, 81
Federal Rules, 41, 79
federal sources (LexisNexis), 76
Findlaw, 79
Google Scholar, 80
governmental sources, 30, 42–43, 48, 74, 79–80
GPO Federal Digital Sy stem, 79
Guide to Law Online, 79–80
HeinOnline, 47, 52, 81
international sources, 76, 78, 89–80
Key Cite, 66–67, 78
law reviews and periodicals indexes, 52
legal blogs, 53, 79
Legal Information Institute, 79
legal organizations, 79
legislative information, 35–41, 47, 77, 79, 80
LEXCITE, 66, 77
Lexis Web, 80
Library of Congress, 79–80
Loislaw, 81
looseleaf services, 46, 47, 62
mobile applications, 78–80
NCCUSL, 80. See also National Conference of Commissioners on Uniform State
Laws
New York Court of Appeals decisions, 79
ordinances, 43
PACER, 74, 81
pending legislation, 35, 79
ProQuest Congressional, 46
Public Library of Law, 80
reference information, 79–81
research sy stems, 76–81
Shepard’s Citations, 66–67, 72–73
specialized federal libraries, 76, 78–79
SSRN, 52–53
state administrative codes, 63, 76, 78–79
state court decisions, 76, 79, 81
state sources (LexisNexis), 76
Supreme Court briefs, 76
THOMAS, 79
treaties and agreements, 48, 81
United States Code, 76, 78–79
United States Constitution, 79
unreported decisions, 76, 78
updating with, 66–67, 74
Versus Law, 81
WashLaw Web, 79
OPINION LETTER, 150–151
OPINIONS, ATTORNEY GENERAL

annotations to, 31
as secondary source, 55
OPINIONS, COURT, 18
ORDINANCES, MUNICIPAL, 43
ORIGINAL JURISDICTION, 6
OUTLINE OF A CASE BRIEF, 84–89

PACER
See Public Access to Electronic Records
185
PACIFIC REPORTER, 22
PARALLEL CITATIONS, 26, 74

See also Shepard’s Citations
PENAL CODE, DEFINED, 2
PERIODICALS, 52
See also Law reviews and periodicals; Secondary research sources
“PERSUASIVE” AUTHORITY, 13
dicta as, 22–23
in memorandum or trial brief, 84, 132–148
POCKET PARTS, 26–27, 35
POPULAR NAME TABLES, IN SHEPARD’S, 26–27, 42, 72
PRACTICE AND PROCEDURE BOOKS, 54
PRACTISING LAW INSTITUTE (“PLI”), 54

PRECEDENT
application of, 12–13
contrasted with “persuasive” authority, 13
courts bound by, 12–13, 87
explained, 12–13
federal court of appeals decisions as, 7
holdings vs. dicta as, 22–23
stare decisis, principle of, 12–13
state supreme court decisions as, 10
United States Supreme Court decisions as, 9
written opinions, necessity for, 18
PRESIDENTIAL DOCUMENTS, 60, 63
PRESIDENTIAL “LAWMAKING,” 14–15
PRIVATE LAW, DEFINED, 30
PROCEDURAL LAW
See also Federal Rules
defined, 2
interpretation of federal, 22
PROQUEST CONGRESSIONAL, 46
PUBLIC ACCESS TO ELECTRONIC RECORDS (“PACER”), 74, 81
PUBLIC LAW, DEFINED, 30
PUBLIC LIBRARY OF LAW, 80
Q UESTIONS OF LAW, APPEALABLE, 3, 6
REASONING OF HOLDING, 87
REGIONAL REPORTERS, 18, 22
REGULATIONS, ADMINISTRATIVE
See also Administrative agencies; Online research
county and municipal, 63
federal, 60–62
generally, 58–59, 62–63
state, 62
REPORTERS
See Case reports; Federal reporters; State case reports
RESEARCH
administrative law, 58–63
applicable law, determination of, 12–15, 43
branches of government, 14–15
cases, 18–27
computerized. See Online research
constitutions, 44
federal laws, 30–42
generally, 13, 106
indexes as tool, 109
legislative histories, 45–47
municipal ordinances, 43
overlapping laws, 43
popular name tables, 26–27, 42, 73–74
presidential documents, 60, 63
secondary sources, 50–55
state laws, 42–43
table of cases, use of, 109
table of contents, use of, 109
treaties, 48
updating
See also Citator sy stems
Blue and White Books (West), 74
cases on appeal, 74
looseleaf services, 74
online, 66
Shepard’s, 72, 74
state services, 74
RESTATEMENT IN THE COURTS, 55
RESTATEMENTS, 55
RULEMAKING OF AGENCIES, 58
SECONDARY RESEARCH SOURCES

attorney general opinions, 55
daily law journals, 53
digests
key number sy stem, 22–23, 53–54
when to use, 53–54
ency clopedias
American Jurisprudence 2d, 51
Corpus Juris Secundum, 51
generally, 51
Martindale-Hubbell Law Digest, 51
state, 51
form books, 54
generally, 50
in administrative research, 62
law reviews and periodicals
changing or new law, 52–53
Current Law Index, 52
other indexes, 52
looseleaf materials, 54
practice and procedure books, 54
Restatements, 55
treatises
generally, 50
Gilbert Law Summaries, 50–51
hornbooks, 50
supplements, 50
Uniform Laws Annotated, 80
186
SHEPARD’S ACTS AND CASES BY POPULAR NAMES, FEDERAL AND STATE

finding case without citation, 26–27
statute research, 42
SHEPARD’S CITATIONS
See also Key Cite; LEXCITE
abbreviations explained, 69–71
administrative citations, 63, 73
as research tool, 67, 72
cases, 69
electronic updating, advantages of, 66
federal regulations, 73
generally, 66
instructions for use of, 69–72, 74
law reviews, 73
municipal laws, 43
popular name tables, 73–74
regional, 69
specialty areas of law, 73
state, 69
statutes, 72
supplements, 71, 74
updating, 71, 74
SHEPARD’S CODE OF FEDERAL REGULATIONS CITATIONS, 73
SHEPARD’S FEDERAL AND STATE ACTS AND CASES BY POPULAR NAMES,

26–27, 42, 73–74
SHEPARD’S FEDERAL CITATIONS, 69
SHEPARD’S LAW REVIEW CITATIONS, 73
SHEPARD’S ORDINANCE LAW CITATIONS, 43
SHEPARD’S STATUTE CITATIONS, 72
SHEPARD’S UNITED STATES ADMINISTRATIVE CITATIONS, 63, 73
SHEPARD’S UNITED STATES CITATIONS, 69
SLIP LAWS
citation of, 43
federal, 35, 43
state, 42
SLIP OPINIONS
See Advance sheets
SMALL CLAIMS COURT, 10

SOCIAL SCIENCE RESEARCH NETWORK (“SSRN”), 52–53
SOUTH EASTERN REPORTER, 22
SOUTH WESTERN REPORTER, 22
SOUTHERN REPORTER, 22
SPECIALTY COURTS, 9, 21
SSRN
See Social Science Research Network
STARE DECISIS PRINCIPLE, 12–13

See also Precedent
STATE CASE REPORTS

advance sheets, 22
official reports, 22
regional reporters, 22
state reporters—California, New York, 22
STATE COURTS
See Courts
STATE LAW OVERLAPPING FEDERAL LAW, 14
STATUTES
See also Codes; Online research citation of federal, 43
citation of state, 43–44
importance to research, 30
legislative history and related statutes, 31–41
number assigned to bill, 30
ordinances, 43
recent laws, 35–41
Shepardizing, 72, 74
slip laws, 35, 42–43
state session laws, uncodified, 30–31, 42
status of bills—CCH Congressional Index, 35
Statutes at Large—uncodified federal laws, 30–31, 41
STATUTES AT LARGE, UNITED STATES, 30–31, 35, 41, 48
STATUTORY LANGUAGE, 2
SUBSTANTIVE LAW, DEFINED, 2
SUPREME COURT
See Appeals; Courts; United States Supreme Court
SUPREME COURT REPORTER, 20, 25–27
SUPREME COURT REPORTERS, 20–21

See also Federal reporters
TABLE OF CASES
in digests, 53–54
use in research, 109
TABLE OF CONTENTS
use as research tool, 109
TAX COURT, UNITED STATES, 9
TAX LAWYER, 52
THOMAS, 30, 35, 42–43, 47–48, 79
TRADE REGULATION REPORTER (CCH), 25

TREATIES, 48, 81
TREATIES IN FORCE, 48
TREATISES, 50–51, 62
See also Secondary research sources
TRIAL BRIEF, 132–148

TRIAL COURTS
federal, 7
generally, 6
state, 9
UNIFORM LAW COMMISSION

See National Conference of Commissioners on Uniform State Laws
UNIFORM LAWS ANNOTATED, 80
UNIFORM SYSTEM OF CITATION, A, 25–26, 43–44
UNITED STATES CODE, 31, 35

supplements, 35
187
UNITED STATES CODE ANNOTATED (“U.S.C.A.”)

federal laws, 31–32
pocket parts, 35
United States Constitution, 44
UNITED STATES CODE—CONGRESSIONAL AND ADMINISTRATIVE NEWS

federal legislative histories, source of, 46
recent laws in, 35
UNITED STATES CODE SERVICE (“U.S.C.S.”)

federal laws, annotated, 32
pocket parts, 35
United States Constitution, annotated, 44
UNITED STATES CODE SERVICE CUMULATIVE LATER CASE AND STATUTORY

SERVICE, 35
UNITED STATES CODE SERVICE—LAWYERS EDITION

advance sheets, 35
UNITED STATES CONSTITUTION

research of, 44
UNITED STATES COURT OF INTERNATIONAL TRADE

reported in Federal Supplement, 21
UNITED STATES GOVERNMENT MANUAL, 62
UNITED STATES LAW WEEK, 20, 25–27

See also Case Alert; Looseleaf services
UNITED STATES REPORTS, 20, 25–27
UNITED STATES STATUTES AT LARGE

treaties prior to 1950, 48
uncodified federal laws, 30–31, 41
UNITED STATES SUPREME COURT

briefs in (LexisNexis), 76
decisions as precedent, 9
decisions reported, 20–21. See also Federal reporters; Online research
jurisdiction of, 9
UNITED STATES SUPREME COURT REPORTS—LAWYERS’ EDITION, 20, 25–27
UNITED STATES TREATIES AND OTHER INTERNATIONAL AGREEMENTS, 48
UNIVERSITY OF CHICAGO MANUAL OF LEGAL CITATION, 25–26
UNOFFICIAL CASE REPORTS, 18
UPDATING MATERIALS
during appeal, 74
Key Cite, 66–67, 78, 122–124
LEXCITE, 66, 77
looseleaf services, 74. See also Looseleaf services
other sources, 74
pocket parts, 26–27
Shepard’s Citations, 69–74
state materials, 74
VERSUS LAW, 81
WXYZ
WEST
Blue and White Books, 74
National Reporter Blue Book, 26
national reporter sy stem
generally, 18
key number sy stem, 22–23
WESTCLIP, 78
WESTLAW
as research source, 20, 76, 78–79
as updating source, 66–67, 78
case without a cite, 26–27
citator sy stem
Key Cite, 66–67, 78, 122–124
code research, 41
contents, 78
court decisions, 20, 21
Daily Report for Executives, 46
Federal Register, 60, 76
Federal Rules, 41
Legal Resource Index, 52
legislative bills, federal and state, 35
organization of, 78
search methods, 78
Shepard’s Citations, 66, 69, 72–74
updating citations, 74
uniform state laws, 55
WESTLAWNEXT, 78–79
See also Westlaw
WEX, 79
WORDS AND PHRASES, 2
WORLD TREATY INDEX, 48

Table of Contents
Title Page
Copy right Page
Summary of Contents
Chapter Two: Understanding Our Legal Sy stem
A. Court Sy stems
A. The Reporting Sy stem
A. In General
B. Statutes
C. Constitutions
E. Treaties
A. In General
A. Introduction
B. Agency Action
Chapter Seven: Keeping Up to Date—Using Shepard’s and Key Cite
A. Introduction
B. Updating Online—Shepard’s and Key Cite
A. Introduction
A. Introduction to Case Analy sis
B. Sample Brief
A. Introduction
B. Methodology
Chapter Eleven: Legal Writing and Analy sis—Basic Guidelines
A. Essentials of Good Legal Writing and Analy sis
B. Using an “IRAC” Approach to Legal Analy sis
INDEX

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I

Legal Research, Writing & Analy sis

PETER JAN HONIGSBERG

© 2011 BARBRI, a Thomson Reuters business, and Peter Jan Honigsberg

Printed in the United States of America

INTRODUCTION AND APPROACH

Chapter One: Definitions

Chapter Two: Understanding Our Legal System

Chapter Three: Cases

Chapter Four: Statutes, Constitutions, Legislative History, and Treaties

Chapter Five: Secondary Sources

Chapter Six: Administrative Agencies—Looseleaf Materials

Chapter Seven: Keeping Up to Date—Using Shepard’s and KeyCite

Chapter Eight: Online Legal Research

Chapter Nine: Reading and Understanding a Case

Chapter Ten: Searching Through Legal Sources

Chapter Eleven: Legal Writing and Analysis—Basic Guidelines

Chapter Twelve: Organizing the Fruits of Your Research

Chapter Thirteen: Writing a Memorandum of Law

Chapter Fourteen: Writing a Memorandum of Points and Authorities or Brief

Chapter Fifteen: Writing an Opinion or Client Letter

Appendix A—Review of Resources

INTRODUCTION AND APPROACH

Chapter One: Definitions

Chapter Two: Understanding Our Legal System

Chapter Three: Cases

c. United States Supreme Court Reports, Lawyers’

Chapter Four: Statutes, Constitutions, Legislative History, and Treaties

Chapter Five: Secondary Sources

Chapter Six: Administrative Agencies—Looseleaf Materials

Chapter Seven: Keeping Up to Date—Using Shepard’s and KeyCite

Chapter Eight: Online Legal Research

Chapter Nine: Reading and Understanding a Case

Chapter Ten: Searching Through Legal Sources

Chapter Eleven: Legal Writing and Analysis—Basic Guidelines

Chapter Twelve: Organizing the Fruits of Your Research

Chapter Thirteen: Writing a Memorandum of Law

Chapter Fourteen: Writing a Memorandum of Points and Authorities or Brief

Chapter Fifteen: Writing an Opinion or Client Letter

Appendix A—Review of Resources

A. Language of the Law

B. Some Specific Definitions

A. Language of the Law

When learning a new discipline, y ou must familiarize y ourself with its

If an unfamiliar word appears in a statute, be sure to check the statute itself.

B. Some Specific Definitions

1. Civil and Criminal

Cases brought in court are either civil or criminal. If there is a possibility of

2. Substance and Procedure

If a landlord refuses to repair the falling plaster from the ceiling, he is

If y ou want to sue a person, y ou must follow certain rules; y ou must bring

3. Facts and Law

A case arises out of facts. Someone trips on a loose step in a building.

Understanding Our Legal Sy stem

C. Things to Keep in Mind for Legal Research

The court sy stem, whether state or federal, follows a general pattern.

An appellate or supreme court may also have some original

The trial court determines the facts of the case. In a criminal

d. Supreme or High Court