ResearchMethodologyHarvardLawSchool.docx

1、ResearchMethodologyHarvardLawSchoolResearch-Methodology-Harvard-Law-SchoolResearch Methodology: Explanation of TermsAnnotated code: A version of a code (a subject compilation of laws) which in addition to the language of the law also contains references to law review articles, other relevant regulat

2、ions or statutes, and, most importantly, summaries of cases which discuss or interpret the particular code section. The annotations are provided by the editors and are not a part of the official language of the code. United States Code Annotated, published by West, is an annotated version of the off

3、icial United States Code published by the federal government. Most annotated codes are statutory. There are very few annotated regulatory codes.Authority: Primary authority is the law-whether it is found in cases, statutes, regulations, or decisions of administrative bodies. Secondary authority are

4、sources which explain the law. These may be law review articles, scholarly treatises, bar journals, encyclopedias or practitioner books.Mandatory authority or mandatory precedent: Binding authority in the particular jurisdiction, which must be followed. Whether a statute or regulation is mandatory a

5、uthority may depend on the facts involved. Mandatory case law may also depend on the identical nature of the facts and legal issues involved as well as the level of the court which issued the opinion. A lower court is required to follow a higher courts ruling on an issue. A higher court is not requi

6、red to follow the ruling or reasoning of a lower court opinion, although that opinion may be persuasive authority.Persuasive authority: All authority which may be used to convince a court to apply the law in a certain direction. Elements to consider are the similarity of key facts and legal issues,

7、the reasoning of the court, and the authority of the issuing body. Decisions of high courts are more persuasive than decisions of lower courts. Arguments set forth in major law reviews are more persuasive than those set forth in bar journals.Blackletter law: This phrase refers to the basic standard

8、elements for a particular field of law, whether it is, for example, the standard elements for a contract or the technical definition of battery. Blackletter law is not recorded in any one place or research source, nor is blackletter a term you will find in most indices. Instead, you will need to res

9、earch the specific area of law to determine the standard elements. Secondary sources are your best source for these.Core legal theory: The core legal theory of your case theory encompasses both the key facts supporting your case and the various legal theories which you believe support your position.

10、 It is both the driving force behind the your conceptualization of the case and the art of making your point and finding the resources to support that position. Your core legal theory is the story you present which predisposes the finder of truth, be it a jury or a judge, to believe that an injustic

11、e has been done. It dictates the presentation of your case. It allows you to tie together the applicable legal rules with the emotional side of your case and the sense of justice.It is important to note the interaction between your core legal theory and your legal research. The activities you will u

12、ndertake during a research project from the time you receive the assignment until you complete your written product, will involve many steps. You will perform a preliminary analysis of the problem, conduct legal research, analyze the results of your research, develop a core legal theory, and use tha

13、t theory to apply the law you found in your research to the facts of your particular problem. Although you will go through several steps, this is not a linear process. A problem of any length or complexity will require you to evaluate and modify at several stages your analysis of the problem. Most l

14、ikely you will go through a circular process of analysis, research, and evaluation of your analysis followed by more research. Initial theories may have to be changed or even abandoned. Seemingly important facts may not in the final analysis prove to be important while others may determine whether p

15、articular legal principles are applicable. During the course of this process of analysis and research, you will develop the core legal theory of your case which in turn will guide you in the presentation of your final arguments.Legal dictionaries: A legal dictionary defines terms relevant to law. Wh

16、ile there are several dictionaries to choose from, Blacks Law Dictionary (KF156 .B53) and Ballentines Legal Dictionary and Thesaurus (KF156 .L95) are the two most popular. These are available in the Reference area of Langdell. Also, note that Blacks is available in Westlaw (database identifier is DI

17、). Which legal dictionary you use is a matter of personal preference. You may also find, however, that after the first few weeks of school, you have only isolated occasions to refer to one.Digests: Provide subject access to cases which are published chronologically in case reporters. Without digests

18、, there would be no efficient way of locating all the cases on a particular subject. Digests provide brief summaries of cases organized by subject. The West digest system is one major system which can serve to illustrate how a digest is structured.West has organized roughly 400 topics that the West

19、editors believe are the broad topics representing all issues in American case law. These topics range from abandoned property to mental health to zoning. An outline for each topic has been developed which breaks each subject down into its various elements. These may be only a few or may be several h

20、undred. Each of these elements or sub-topics is numbered. Editors at West read each case published, writing as many summaries of the various points of law as the editor deems necessary. Each of these summaries is then assigned a topic and key number according to the outline that has been developed.

21、A case may have only a few of these summaries or it may have several dozen. The summaries along with the topic and key number are published as headnotes with the case in a West reporter. The summaries are also published in the appropriate West digest along with all the other summaries for each parti

22、cular topic and key number.To locate cases using the digest system, you must use the appropriate topic and key number. If you do not know what topic and key number have been assigned to the area of law you are researching, you should use the digests Descriptive Word Index. As with any index to a res

23、earch tool, you must search using the words and synonyms that convey your factual or legal issue. For example, assume you wish to locate Massachusetts cases that address the issue of the liability of doctors for failure to disclose information to a patient. To locate the appropriate topic and key nu

24、mber, you would turn to the Descriptive Index for the Massachusetts Digest Second Series. You might look up several words or phrases in the Descriptive Word Index such as doctor, physician or disclosure. Each of these can eventually lead you to the topic and key number physicians & surgeons 15(8). Y

25、ou would now want to turn to the appropriate volume of the digest where you will fine listed under that topic and key number, summaries of the cases for that jurisdiction and time period which are about mental capacity to commit crimes. Although you will not want to guess which topic the West editor

26、s have assigned to your issue, once you know a relevant topic, you might wish to browse through its outline to determine if key numbers other than the one you have will help.If you already have a relevant case, which you might have found from a secondary source, the headnote at the beginning of the

27、case will give you the topic and key number.Digests can also provide you with the citations for known cases. If you know the name of the case, the Table of Cases will give you the citation. You should use the Defendant/Plaintiff if you only know the name of the defendant.A principal advantage of the

28、 West digest system is that it is uniform for all state and federal jurisdictions. Thus, a topic and key number mean the same thing for California appellate court cases as they do for the United States Supreme Court. In addition, you may use the topic and key number to search on Westlaw.Please note

29、that many digests cover specific time periods and do not cumulate information published in previous series. Thus, you may have to check the same topic and key number in several volumes in order to complete your research. As with all legal research, you must be sure to check any pocket parts and upda

30、ting pamphlets that are provided.Dispositive questions: Many legal research assignments present multiple questions: Do the actions involved constitute a harm to A for which he can recover? Can B be held liable? What are the damages? Has the statute of limitations run such that it is too late to comm

31、ence an action? Answer one question at a time to determine how the answer to that question might affect another question. You may find that the answer to one question might make another question mootEncyclopedias: Secondary sources which present background information for broad subjects. They do not

32、 present the critical analysis that you will find in scholarly treatises or law review articles. They are more rudimentary and as such present you with the blackletter law you may need as well as key references to primary sources which you may need if you are just beginning to research a problem wit

33、h no substantive knowledge of that area of law. Two major legal encyclopedia which are national in scope are Corpus Juris Secundum known as CJS (KF154 .C56) and American Jurisprudence 2d known as AmJur2d (KF154 .A42). Both of these are located in the Langdell Reading Room. You will also find legal encyclopedia for particular states such as New Yo