X hits on this document

PDF document

Columbia Human Rights Law Review - page 7 / 27





7 / 27



Ch. 2

useless) if a higher court believes a lower court made an incorrect decision, or if the legislature passes a law that invalidates a court’s decision. It is therefore very important to make sure the precedent you have found is still good law (i.e., has not been overruled).

Precedents from other jurisdictions are valuable but are not controlling (so your judge is not obligated to follow the precedent case). A case from another jurisdiction sets out the law in that court, but not necessarily for your court. Still, the reasoning in the case might persuade your judge, especially if no court in your jurisdiction has ruled on the legal issue. For instance, if most courts in other states have decided an issue in the same way, those out-of-state decisions can still provide a suggestion for how your state should decide the issue.

Chapter 6 of the JLM, “An Introduction to Legal Documents,” will discuss the legal papers you need to provide to a court. These documents are very important; they should be written clearly and persuasively, and should have no errors. Before you write any papers, however, you will need to figure out your most compelling or convincing arguments and find cases to support those arguments. Finding precedent cases is an extremely important part of your research because those cases will reveal which arguments were successful with other courts, and which arguments were not. Cases from higher precedent courts, and cases that are very similar to yours, carry the greatest weight and will help your case the most. You should search for similar cases not only in your jurisdiction but also in other jurisdictions (even though cases from your own jurisdiction will be much more persuasive). You will also need to distinguish any precedent cases that do not support your argument, as discussed above. Finally, you should also consider public policy reasons why a court should rule in your favor. Public policy reasons are arguments that a court should find in your favor because the resulting decision will be good for society as a whole, not just for you.

  • C.

    Legal Research: How to Find and Support Legal Arguments

    • 1.

      Sources for Legal Research

There are three categories of resources in your law library. The first category is “primary sources.” Primary sources include the documents that make up the “law”: constitutions, legislation, and case law (court decisions). Primary sources also include law created by “delegated authority,” such as executive orders, regulations, and the rulings of administrative tribunals. Since legislative bodies such as the U.S. Congress cannot regulate the details of every law, other government bodies (such as administrative agencies) fill in the details of generally worded statutes, usually by creating regulations. Courts base their decisions on all of these primary sources of law.

The second category of resources found in a law library is “secondary sources.” These are not themselves law, but books and articles that discuss and comment on the law. This commentary can help you understand the law and help you to find relevant primary sources. Secondary sources include textbooks, treatises, form books, dictionaries, periodical literature such as law journals, and manuals like the JLM. While courts prefer primary sources, sometimes you can use a secondary source, such as a law review article or a treatise, if you cannot find any applicable cases or statutes. These sources can be useful in persuading a court to rule a certain way. However, you should not use a manual such as the JLM as authority for the court— you should use the JLM to help you find law which you can then use to persuade the court.

The third category of resources found in a law library is search books. Search books are library tools that help you to find primary and secondary sources of authority. They include digests of court decisions, citators (such as Shepard’s), and annotated statute books. These search tools can help you find cases to make strong arguments, and are discussed in more detail in the remainder of this Chapter.

2. Methods of Legal Research

Your goal in researching a legal question should be to find relevant primary sources. Your prison library will contain research tools that will help you find these primary sources, in addition to the sources themselves. Although you will need to find different sources for each case, the research process will be similar. This process has seven basic steps:

  • (1)

    Analyze the problem;

  • (2)

    Get an overview of the subject matter;

  • (3)

    Find relevant legislation;

  • (4)

    Find relevant cases;

  • (5)

    Check other sources;

Document info
Document views95
Page views95
Page last viewedSat Jan 21 00:25:28 UTC 2017