The entire appeals court sitting together to hear a case; the court ruling as a whole.
Primary vs. Secondary Sources
Primary sources: a source of legal rules. Constitution, cases, administrative regulations, statutes.
Secondary sources: commentary/analysis on/of the law; not binding on courts. Law review, ALR, restatements, model laws.
Interactions among the three branches of government
Legislature, judiciary, and executive. The judiciary defers to statutes over common law; checks and balances.
Federal vs. state legal systems
Federal legal system addresses questions of federal law. State legal systems address questions of state law. Federal courts have primary jurisdiction in diversity cases and in questions of federal law. State courts are courts of first instance in others.
Dual, parallel systems exist at the federal and state levels, with powers delegated by the United States Constitution.
Federal law vs. state law
Dual court systems administer federal law and state law. On issues arising out of the constitution and federal statutes, federal courts have jurisdiction.
Federal courts (names, levels) and state courts (names, levels)
Federal High Court: Supreme Court of the United States.
Federal Intermediate Courts: eleven U.S. Court of Appeals for the [numeric] Circuit, the U.S. Court of Appeals for the District of Columbia Circuit, and the U.S. Court of Appeals for the Federal Circuit.
Federal Trial Courts: at least one in each state, termed the U.S. District Court for the [District] of [State].\
State courts include a court of last resort, an intermediate appellate court (optional), and trial courts.
Hierarchy of Legal Authority
Binding primary sources are favored over secondary sources and nonbinding primary sources. Primary sources (constitutions, statutes, regulations, and binding decisions of higher courts interpreting sources of law).
Nonbinding primary sources and secondary sources are persuasive based on geography and strength of authority.
Constitutions vs. statutes
Constitutions state broad principles of government (establishes a system of government) and defines the boundaries of authority granted to government.
Statutes address specific questions of how government should function.
Functions of statutes
Statutes provide a primary source of law that delegates authority and establishes legal norms.
Statutes vs. regulations
Statutes are enacted by legislatures and establish legal rules.
Regulations are enacted by administrative agencies and involve fleshing out statutes (enforce or implement statutes).
Relationship between statutes and cases
Statutes are created by legislatures and establish legal rules.
Cases interpret the meaning of those legal rules as applied to specific facts.
Case law includes any judicial decision.
Common law is a subset of case law and refers to only those areas of case law that developed in the absence of a statute.
State, regional, and federal reporters
SCOTUS: three reporters: Unites States Reports (U.S.); Supreme Court Reporter (S. Ct.) and United States Supreme Court Reports Lawyer’s Edition (L. Ed.; L.Ed. 2d)
U.S. Court of Appeals: Federal Reporter (F.; F.2d; F.3d) and Federal Appendix
U.S. District Courts: Federal Supplement (F. Supp.; F. Supp. 2d) and Federal Rules Decisions (F.R.D.)
State reporters (state court cases from regions)
- Atlantic Region States – Atlantic Reporter A.; A.2d. A.3d
- North Eastern Region States: North Eastern Reporter N.E. N.E. 2d
- South Easter Region States: South Eastern Reporter. S.E. or S.E.2d
- Southern Region States: Southern Reporter So. So.2d So. 3d.
- South Western Region States: South Western Reporter (S.W. S.W.2d or S.W.3d)
- North Western Region States: North Western Reporter (N.W. or N.W. 2d) WI!
- Pacific Region States: Pacific Reporter (P. P.2d. or P.3.d)
- Wisconsin Reports (Wis. or Wis. 2d)
Functions of a headnote
Summarizes different points of law – classified by topic and subtopic.
Westlaw v. Lexis headnotes
Major difference: Lexis uses actual language from the case (quotes) whereas Westlaw’s headnotes are written by editors (summarizes). You can shephardize just by headnote in Lexis.
Headnote number v. topic and keynumber
Each legal issue in a published opinion is identified, summarized in a headnote, and assigned a topic and key number in the West Key Number System.
Topic numbers: law is broken down into major topics (over 400, such as Civil Rights, Treaties).
Key Number: Each of the topics is divided into individual units that represent a specific legal concept. Each of the narrowest concepts (approximately 100,000) has a unique number for identification.
Collects headnotes according to topic, subtopic and jurisdiction. Digests sets are organized by jurisdiction and by date.
Statutes - Plain Language Rule
Rule of statutory interpretation and the starting point for interpretation. Statutes are to be interpreted first by using the ordinary meaning of the language of the statute. If the words are clear and ambiguous, this is also the ending point. Counter-rule: if the plain language interpretation would lead to an absurd result.
Tools of statutory interpretation
Legislative history, parallel statutes, persuasive court interpretations, “the whole act” rule (look at the entire statute for context), look at preamble and purpose.
Canon of construction - Definition
The system of basic rules and maxims applied by a court to aid in its interpretation of statutes etc.
Canon of construction - Examples
- Ejusdem Generis: Where general words follow the enumeration of particular class of persons or things, the general words will be construed as applying only to things of the nature enumerated.
- Noscitur a Sociis: A word is known by the company it keeps. Meaning of the word must be consistent with the context of the word.
- Constructions that would lead to absurd or unreasonably harsh results are disfavored.
- In determining the ordinary meaning of a statute, effect must be given to all the words of the statute if possible, so that none will be void, superfluous, or redundant.
- Courts cannot insert into statutes terms or provisions which are obviously not there.
- “Expressio unius est exclusio alterius.” Where a constitution or statute specifies certain things, the designation of such things excludes all others.
- If terms are defined in a statute or act, that definition controls construction of those terms.
- Words used in one place in a statute usually have the same meaning in every other place in the statute.
- The words “may” or “should” as used in a statute are permissive. The words “shall” and “must” are mandatory (usually).
- Statutes should be reasonably construed, if possible, to avoid a constitutional conflict.
- If two statutes are irreconcilable, the later in date controls.
- If two statutes address the same subject, the more specific statute controls over the general statute.
- Statutes are not retroactive unless there is a clear intent for them to be retroactive indicated by the legislature.
An annotated code or statute contains the text of the law as well as different types of research references, such as case summaries or citations to secondary sources, legislative history, references to regulations promulgated under the law, or law review articles. An unannotated code contains only the text of the law.
When a law is enacted, it is assigned a sequential act number and printed in slip form (called a slip law). Slip Laws (separate document) are classified by a Public Law Number (Pub. L. No.)
After the legislative session ends, acts passed during that session are printed chronologically in the session laws.
In WI, the session laws are called the Laws of Wisconsin.
Federal: Statutes at Large.
Official vs. Unofficial Codes
Official codes are organized by subject area and each subject area is then subdivided into smaller units (a section is the smallest unit). Federal: United States Code (U.S.C).
WI: Codes contain all statutes currently in force in a jurisdiction at the time of publication and are arranged topically. In WI, the official code is the Wisconsin Statutes. The Wisconsin Statutes Annotated is an unofficial code.
Filtering online searches
You can filter your searches by jurisdiction, type of authority (secondary/primary), subject area, date. You can filter pre-search or post-search.
Boolean Searching & Connectors
Narrows the search up front, provides pre-search filtering. See Lexis and Westlaw cheat sheets. Some examples:
Proximity connectors (W/n; /p; near/n)
AND NOT; BUT NOT
! :E.g. Child! finds child, children, childish, childless…
*: When used as a suffix Bank* is the same as Bank! (banking, bank, banker, etc.)
?: replaces one character. E.g.: Lars?? finds Larson and Larsen
(….) Nesting - whatever is in (...) will be processed first and the results will be used to resolve remaining issues.
/p search terms must appear in same paragraph (hearsay/p utterance)
/s search terms must appear in the same sentence
/n the search terms must appear within n terms of each other (1-255)
Types and Uses of Secondary Sources
Commentary on or analysis of the law.
- Researching an unfamiliar or undeveloped area of the law
- Look for relevant nonbinding primary authority
- When an initial search yields either too much or too little information.
Secondary sources are non-binding, we do not cite to them (in memos)
- Legal encyclopedias (e.g. American Jurisprudence Second Edition or Corpus Juris Secundum) – general overview of the law
- Treatises – narrower, topical focus.
- Legal periodicals (e.g. law review or journal), Articles written by legal scholars, Articles written by judges and practitioners, Student notes and comments
- American Law Reports (case summaries to provide an overview of the law on a topic).
- Restatements (restate common-law rules on a subject)
- Uniform Laws and Model Acts (e.g. UCC)
Provide a general overview of the law on a variety of topics. They do not provide analysis, simply report on the general state of the law.
Examples: American Jurisprudence Second Edition (Am. Jur. 2d) and Corpus Juris Secundum (C.J.S.)
Print pocket part – updates.
American Law Reports contains articles called Annotations which collect summaries of cases from a variety of jurisdictions to provide an overview of the law on a topic. More detailed than encyclopedias. Eight series.
Law Review v. Bar Journals
Law review: subjective, in-depth, scholarly articles. They are thorough, thoughtful treatments of a narrow legal issue.
Bar journals: short articles for practitioners. Not the same depth as a law review article
Narrower focus than encyclopedias. Treatises provide in-depth treatment of a single subject, look at history and trace development of law, and examine relationship to other areas of the law. Citations to primary and secondary authorities.
Restate the common-law rules on a subject, often looking to rules in a majority of U.S. jurisdictions. Sometimes also state emerging rules. Secondary source with substantial weight.
Facts that if proven by the defendant mitigate or eliminate the consequences of their unlawful conduct. In a Wisconsin criminal case, "some proof" is needed to introduce the defense which the prosecution must disprove beyond a reasonable doubt.
A trial that is presided over by a judge operating as the finder of law and finder of fact.
Holding vs. dicta
The holding is the rule of law that is established by the case whereas dicta is commentary by a court in its opinion that is not required to reach its holding.
WI Rule: from the perspective of the Court of Appeals, nothing the Wisconsin Supreme Court says can be considered dicta.
Standards of review
The amount of deference given to a lower court's prior ruling by a higher court on appeal. Generally, appellate courts will be deferential to determinations of fact that have been made by the lower court.
De novo review
Standard of review that involves a review of questions of both law and fact by the appellate court, notwithstanding any lower court rulings on issue of fact or law. When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous court to hear the case. An appellate court hearing a case de novo may refer to the lower court’s record to determine the facts, but will but rule on the evidence and matters of law without deferring to that court’s findings.
Reverse vs. overrule
Reversals are explicit invalidations of a lower court decision, whereas a court overrules itself when it invalidates a prior rule and establishes a new rule.
WI Rule: the Wisconsin Court of Appeals cannot overrule itself.
Published vs. unpublished cases
The court (judges) determines whether an opinion will be published (precedential) or unpublished (persuasive).
WI Rule: you cannot cite unpublished per curiam opinions, but you can cite to unpublished opinions written by a named judge in Wisconsin courts post-2009.
Precedent and stare decisis
"To stand by things decided."
Serves interests of fairness and predictability in the judicial system.
Binding versus persuasive sources
Courts are bound by their chain of appeal on questions of state and federal law. All other sources of law within its jurisdiction are binding authority on a court, though the court can interpret meaning of those sources.
Persuasive sources are decisions from outside their chain of appeal, sources of law outside the court's jurisdiction, and secondary sources.
Official or unofficial publishers of judicial opinions. For example:
Federal reporters provide information on federal cases.
U.S. or S. Ct. (Supreme Court), F.2d or F.3d (Circuit Courts), F. Supp (District Courts) for example.
Regional reporters provide state court cases from multiple states. N.W.2d, for example.
State reporters provide state cases in a specific state. Wis. 2d, WI App, for example.
The standardized heading of a legal instrument, such as a motion or a complaint, which sets forth the names of the parties in controversy, the name of the court, the docket number, and the name of the action. (quote from West's Encyclopedia)
A decision issued in the name of the entire court rather than under the name of a specific judge, or panel of judges.
The first incarnation of a published court decision, published on its own, which will eventually be incorporated into an advance sheet and later into a reporter.
Paperback booklet which is the intermediate stage between a slip opinion and the final, bound reporter. Somewhat obsolete given the proliferation of online publishers.
CLE or Practice Materials
Continuing Legal Education - consists of professional education for attorneys that takes place after their initial admission to the bar.
Uniform and Model Laws
Proposed statutes that can be enacted by legislatures; secondary sources whose provisions don't take on the force of law unless they are enacted by the legislature; e.g. UCC and Model Penal Code
Citators (Shepard's, KeyCite)
Citators help you determine whether an authority is still good law. They also help you locate additional authorities that pertain to your research question as you can see whether the authority has been cited elsewhere. Shepard's is the best known citator available in Lexis. KeyCite is Westlaw's citator. Citators use symbols which indicate the type of treatment the original case has received from the citing cases. KeyCite organizes citing sources by depth of treatment v. Shepard's which organizes by jurisdiction.
Purposes of Citation to Authority
It allows a writer to refer to legal authorities with sufficient precision and generality that others can follow the references.
Basic Citation Forms (Federal and Wisconsin cases and statutes)
Federal: US Supreme Court
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
Federal: United States Court of Appeals
Abramson v. William Patterson Coll., 260 F.3d 265 (3d Cir. 2001).
Federal: United States District Courts
Donovan v. City of Milwaukee, 845 F. Supp. 1312 (E.D. Wis. 1992).
U.S. Const. art. I, § 9.
42 U.S.C. § 1983 (2012).
Wisconsin before 2000: Wisconsin Supreme Court
Kellner v. Christian, 197 Wis. 2d 183, 539 N.W.2d 685 (1995).
Wisconsin before 2000: Wisconsin Court of Appeals
Jones v. Poole, 217 Wis. 2d 116, 579 N.W.2d 739 (Ct. App. 1998).
Wisconsin after 2000: Wisconsin Supreme Court
Kitten v. State Dep't of Workforce Dev., 2002 WI 54, 252 Wis. 2d 561, 644 N.W.2d 649.
Wisconsin after 2000: Wisconsin Court of Appeals
Kitten v. State Dep't of Workforce Dev., 2001 WI App 218, 247 Wis. 2d 661, 634 N.W.2d 583.
Wis. Stat. § 21.36(2) (2015-16)
Short Citation Forms (Federal and Wisconsin)
Federal: Corley, 273 F.3d at 435.
Wisconsin before 2000: Lathan, 30 Wis. 2d at 148.
Wisconsin after 2000: Kitten, 247 Wis. 2d 661, ¶ 6.
Id. (use and formate for federal and Wisconsin)
Federal: Id. (for the same page number as the previous cite) or
Id. at [pg. #]. (for a different page in the same source).
Wisconsin: Id. (for the same page number as the previous cite) or
Id. at [pg. #]. (for a different page in the same source before 2000). or
Id. [¶ #]. (for a different paragraph in the same source after 2000)
Parallel citations are used when the same case is printed in two or more different reporters. In other words, a parallel citation references location information for more that one source of a case. (e.g. Wis. 2d and N.W.2d)
A specific reference to the precise page where a quotation or legal proposition appears.
Public Domain Citations in Wisconsin
The Wisconsin Supreme Court adopted a new format for citation of Supreme Court and published Court of Appeals decisions effective January 1, 2000. The new format consists of: 1) the parties' names, 2) year of decision, 3) the abbreviated name of the court issuing the decision, and 4) a sequential number assigned by the Clerk of Courts' office. The public domain citation is an additional citation format, not a substitute. Therefore, the first time a case with a public domain citation is mentioned in a document, all three citation formats must be used in the following order: the public domain cite, the Wisconsin Reports cite and the North Western Reporter cite. Since the year is noted at the beginning, there is no need to include it in parentheses at the end of the citation.
When the verb is passive, the subject undergoes the action rather than doing it. For example, "The matter will be taken forward by Jack" v. "Jack will take the matter forward."
A noun that could be expresses a verb. For example, "supervision" is a nominalization of the verb "supervise." They make it difficult for a reader to find the action.
Common Grammar and Punctuation Errors
Oxford comma = good
I think these will be mostly "spot the grammatical/punctuation error" in this sentence.
A subset of caselaw which refers only to areas of caselaw that developed in the absence of statute.
The Power of Judicial Review
If a court determines a rule does not meet constitutional requirements, it can invalidate the rule. Otherwise, however, the court must apply the rule to the case before it.
NOTE: Cases can also be an independent source of legal rules.
The Rule of Law
The law applies to everyone equally. Yet, not everyone lives under the same law. Different laws for different states/federal circuits. We govern based on rules, not personal opinions. These rules may require or prohibit certain types of conduct. They may establish standards for resolving disputes or accomplishing tasks.
A form of subject-matter jurisdiction in civil procedure in which a United States district court in the federal judiciary has the power to hear a civil case when the amount in controversy exceeds $75,000 and where the persons that are parties are "diverse" in citizenship, which generally indicates that they are citizens of different states or non-U.S. citizens.
Trial Court Name (Wisconsin)
Trial Court Name (Federal)
District Court (ex. United States District Court for the Western District of Wisconsin)
Intermediate Appeals Court Names (Wisconsin)
Wisconsin Court of Appeals
NOTE: Four Districts, but there is only ONE court.
Milwaukee (District I)
Waukesha (District II)
Wausau (District III)
Madison (District IV)
Intermediate Appeals Court Names (Federal)
United States Court of Appeals (ex. United States Court of Appeals for the Seventh Circuit)
Co-equal/Sister Courts vs. Unified Court of Appeals
Federal system is co-equal. Courts may rule differently on the same topic.
Wisconsin system is unified. The four districts make up one court. The Wisconsin Court of Appeals cannot overrule itself.
High Court Name (Wisconsin)
Wisconsin Supreme Court
High Court Name (Federal)
Supreme Court of the United States
Appeal by Right vs. Discretionary Review
Some court systems guarantee one appeal. Others allow courts discretionary review. One submits a Petition for Writ of Certiorari. Court may then decide to grant the petition for certiorari.
Case of First Impression
A case in which a question of interpretation of law is presented which has never arisen before in any reported case. Sometimes, it is only of first impression in the particular state or jurisdiction, so decisions from other states or the federal courts may be examined as a guideline.
CONSIDER: Is ever really a case of first impression? By analogizing to related cases, we can resolve a new set of facts.
Plaintiff v. Defendant
Plaintiff: One who brings a case against another in a court of law. The State in a criminal case. Someone seeking a change in the status quo.
Defendant: The accused. Seeking to keep things as they were before trial.
Appellant vs. Appellee
Appellant: One who applies to a higher court for a reversal of the decision of a lower court.
Appellee: The respondent in a case appealed to a higher court.
Petitioner vs. Respondent
Petitioner: The person who lost at the previous level. One who applies to a higher court for a reversal of the decision of a lower court.
Respondent: The person who won at the previous level.
Stages of a Civil Case
Scheduling Conference and Order
Pretrial Conference and Order
Trial (original jurisdiction)
Alternative Dispute Resolution
Motions: Defintion and Examples
A procedural device for decision. A request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the movant, or may simply be the moving party. The party opposing the motion is the nonmovant or nonmoving party.
Examples of motions: Motion to dismiss, for summary judgement, for directed verdict, for judgement notwithstanding the verdict, for a new trial, to set aside judgement.
Main Functions of Each Court Level
Trial Court: Questions of fact and questions of law are answered.
Appellate Court: Errors of Law are corrected if needed. Fact finding is generally left to the lower court.
Supreme Court: Also questions of Law. The final word.
Basis for Federal Court Jurisdiction
Federal Question: (Plaintiff has alleged a violation of: the United States Constitution; federal law; or a treaty to which the United States is a party)
If the United States is a party to the lawsuit
Jurisdiction (Definition and Types)
Definition: A court's power to decide a case or issue a decree.
Types: Subject matter, geographic, personal