Legal Research Class Notes 9/5/03


Case law – what is it?


·        It consists of published opinions of mostly appellate courts, but some trial courts too.

·        It includes opinions from both state and federal courts.


What’s the big deal?  There are more than 3,000,000 published opinions, with 100,000 added each year, and it’s getting worse!!!  We are now in the Federal Reporter 3rd edition, meaning they’ve gone through 999 volumes twice.  We’re filling up F.3d at five times the rate we filled up F.2d.  It’s because we’re a highly litigious society!


Not all decisions are created equal!  There are the 50 states, the 13 federal circuits, and the United States Supreme Court.  The Supreme Court is supreme.  The Supreme Court eats everyone.


The federal courts have the Supreme Court on top, with the Circuit Courts below, and finally the District Courts below that.


We’re in the 6th Circuit, Southern District of Ohio.


The Supreme Court is supreme on federal matters, but if we’re talking about a state matter, you can’t appeal it higher than the state Supreme Court.  In Ohio, the Supreme Court is called the Ohio Supreme Court.  In New York, the top court is called the Court of Appeals.


For example, Bush v. Gore: states usually govern election law.  The case was expedited and appealed up through the Florida court system, but then it was appealed on federal grounds to the United States Supreme Court.  Some people said the federal grounds were sort of made up.  Nevertheless, the Supreme Court granted cert and heard the case.


Note that Ohio is bound only by the rulings of the 6th Circuit and Southern District of Ohio, but not the rulings of the 4th Circuit, 5th Circuit, 7th Circuit, and so on.  All federal courts must follow Supreme Court precedent; all 6th Circuit courts must follow 6th Circuit precedent, and so on.


You can still refer to other circuits for “persuasive authority”, but my home circuit doesn’t have to follow what other circuits have said.


For example: Hopwood v. Texas and Grutter v. Bollinger are both affirmative action cases.  They both dealt with law school admissions.


The different circuits made their own decisions, and so depending on where you are in the United States, you had different rules.  Some people say that’s good, others say it’s no good.


In Grutter and Gratz, the Supreme Court granted cert and ruled on the cases.  They weren’t clean cut decisions, but basically the Supreme Court upheld Grutter and Gratz while overturning Hopwood.  What had previously been unconstitutional in the 5th Circuit is now constitutional.


Citation format


·        How are cases cited?

·        Check Rule 10.

·        Learn it yourself.

·        The parentheses are the trickiest part.

·        If you have questions about abbreviations, you will find them in the tables in the Bluebook.


Where case law is published


·        Reporters: These are compilations of opinions that are arranged in more or less chronological order.

·        These reporters may publish a single court, such as the Supreme Court; a single court system, such as the Federal Reporter; a single state (Oh. St.); or a number of states, such as the Northeastern Reporter.


The National Reporter System was started by West in the 1880s.


They run the regional reporters such as A.2d, N.E.2d, N.W.2d, P.3d, So.2d, S.E.2d, S.W.3d, N.Y.S.2d and Cal.Rptr.2d.


For federal courts, West puts out F.App. (unpublished decisions, relatively new), F.Supp.2d (District Courts), F.3d (Circuit Courts of Appeal, and S.Ct. (the Supreme Court).


F.App. came out in response to the availability of unpublished opinions on Lexis and Westlaw.


Is the F.App. authoritative?  You can talk about these decisions, but they don’t have the wait of published opinions.  Younger judges are more into this than older judges.  For example, the courts of the state of Ohio decided that unpublished opinions have exactly the same weight as a published opinion.


Sequence of Print Publication


·        Slip opinion – separate pagination with no index

·        Advance sheet – a few grouped cases which constitute an early release of a small part of the upcoming reporter.  Once you have this, you can cite to the cases in it.

·        Bound volume – the big Kahuna


Lexis and Westlaw


·        They caused the unpublished case revolution!

·        How do they cite themselves if it’s unpublished?

·        They have their own citation format that is similar to regular old citations, something like: 45 Lexis 685 or 12 Westlaw 394.


What are the advantages?


·        You get opinions immediately.

·        You have awesome search capabilities!


What about disadvantages?


·        They vary in age.  Lexis and Westlaw doesn’t have stuff from 50 years ago.  You need to look at bound stuff to look at older stuff.

·        There are heavy penalties for incorrect term usage.  Unless you get the terms right, you’re going to miss a lot of cases and statutes.  You must be relatively precise, as opposed to browsing through an index.

·        In the real world, stuff is expensive.  Both Lexis and Westlaw get you hooked so when you go out into the world you want to use their services.


When you work at a law firm, everything you do has a price, and the more expansive your search the more it will cost.


Rules of thumb on case selection


·        Decisions of higher courts within the same jurisdiction outweigh lower courts.

·        More recent decisions outweigh earlier decisions.

·        Published decisions may outweigh unpublished decisions in some jurisdictions.

·        Supreme Court rules everything around me.




What is a parallel citation?  It is a citation to an opinion reprinted in a regional reporter as well as another reporter.


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