SECONDARY SOURCES AND CASE FI NDI NG

FI FTH HOUR LEGAL RESEARCH PROGRAM

FALL 201 4




Constitutional Law Small Group
RFRA problem based on facts in Burwell v. Hobby Lobby, 573 U.S. __ (2014).
I.R.A.C.
Identify the legal issues in a factual situation this includes
capturing the relevant facts and determining the jurisdiction.

Is there a short answer or Rule that could be applied?

How is the rule Applied? Does the answer depend on the
jurisdiction? Are there gaps in the law?

Gather information, update information and reach Conclusions.

Major Premise Components
Factual
Illustrations
Issue Statement For Research
Research to determine what test, or tests, the court will
use to evaluate claims, and how likely plaintiff is to
prevail, in whole or in part.
Step 1: Draft an issue statement for research consisting
of keywords, terms and concepts that you will use to
locate materials and evaluate what you
5Ws Plus (Who, What, When, Where, Why, Legal
Theory, Jurisdiction, Procedural Posture)
Or
TAPP (Things, Actions, People, Places)
Terms and Concepts
- Employees at One-
Stop Shop (secular, non-
religious corporation)
- Women

- Contraceptive coverage mandate
- Religious exemption
- accommodation for religious
employers
- IUD, Plan B (morning after), Ella
week after), abortifacients
- Free
Exercise
Clause
- Religious
Freedom
Restoration
Act (RFFA)
Start with a Secondary Source to understand
facial challenges and leading cases
Treatises cover the leading cases. Search the Treatise Finder
or Morris (law library catalog).
Find an on-point ALR.
Use WLN, LA.
Law review articles provide context and recent analysis:
Using Google Scholar (confirm Settings / Library / Yale University
Library)
Using WLN or LA or Hein Online
Find materials produced by Advocacy Groups.
What types of organizations would be interested in the issue?
Womans Rights
Reproductive Rights
Healthcare Research Groups
Religious Freedom/Liberty Groups
Use site:www.XYZ.org search terms.
Identifying the legal issue and the rules

Is One-Stop substantially burdened by the government, and if so, can
the government demonstrate that the action/requirement is narrowly
tailored and the least restrictive.
Is One-Stop Protected Under RFRA and Free Exercise Clause of the
US Constitution?
Find Supreme Court case that apply a test to determine whether a
religious employer qualifies for a religious exemption or
accommodation to provide coverage for certain contraceptive drugs.
Finding and updating cases
Retrieve by citation or case name:
Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).

Headnote searching
Westlaw = Key Numbers: 92k826
Lexis Advanced = Shepardize this headnote / Activate Passages Legal Issues Trail

Take a relevant case, then conduct further searching with updating
through KeyCite or Shepards. Restrict by:
Jurisdiction
Headnotes
Document Type
Search terms

Boolean and Natural Language Searching if you feel the need for
even more cases!

Using Headnotes
Good Law? Use a Citator
1. Citator = Shepards (Lexis) / Keycite (Westlaw) / Bcite (BloombergLaw)

2. it lists authorities that cite an authority that you have already found. Using citators is the most
technical task -- and one of the most important -- in legal research. Kuntz, Process of Legal
Research (emphasis added).

3. a citator will indicate how citing cases viewed or used your cited case.
2 Part Analysis of your case:
1. Subsequent History / Direct History of the case in hand (cited case): what happened to
your case as it progressed
- Judgment Affirmed, Remanded, Pending
2. Treatment of the case in other courts: what did other courts say about your case
- Distinguished, Overruled, Criticized, Cited, Mentioned, Followed
- Pay attention to jurisdiction of other court and issue (headnote).

4. Using Citing Reference to locate additional authority. Filter list by
Jurisdiction
Headnotes
Date
Search Term






Using an annotated code
Free Exercise Clause, U.S. Const. Amend. 1
Look at the Notes of Decisions
Look to context and analysis for law review articles and ALR
annotations
Who has challenged this before Notes of Decisions and Citing
References. Read these cases for Supreme Court analysis and
citations.
Look up the First Amendment in an Annotated Code
Notes of Decisions:
Overbroad Regulations and Facially Invalid Regulations
cases are arranged by hierarchy.
Find and Analyze Leading Cases
Find leading cases in secondary sources.
Find leading cases using a full-text search (search string from issue statement and
key terms), headnotes, citators.
Read cases with similar facts (similar types plaintiffs/corporations); cases applying
the Free Exercise Clause and RFRA.
Who/what type of entity constitutes a religious employer
Under RFRA?
Does the Free Exercise Clause extend to plaintiffs?
What is the test the court applies to determine whether entities are exempt from the
contraceptive coverage mandate?
Test under RFRA
Make a list of key facts from that and the other cases found:
Did the the Free Exercise Clause and RFRA apply?
Did the court find a substantial burden and compelling government interest?
Other circumstances that are similar / dissimilar ?
Make notations of analysis of those decisions by the courts and on your own:
Distinguishing factors?
Courts reasoning?
Are the decisions good law (citate)
Read distinguishing cases (shepards/citing references), concurrences, dissents
How do I know when I am done researching?
You keep finding the same primary authority no
matter which research method you use or which
sources you consult.

When you don't have a definitive answer after
thorough research, and you keep turning up the
same citations no matter where or how you look,
that's a sign that there may not be a clear-cut
solution to the problem.

Your project deadline is fast-approaching.



What if you're not finding authorities that address
your research issue?
We usually tell students that if research hasn't yielded
any results after 30-45 minutes, it may be time to
reevaluate your research strategy or ask for more help.

Think comprehensively and creatively. Research broader
rules, analogous facts or doctrines, andor the law of other
jurisdictions.

Make sure you are: applying a variety of research
techniques, using both primary and secondary sources.
Keep a summary of the research steps that you took,
including the names of the sources that you searched
and the search queries that you used during online
searches



What if time is running out and you still have
intriguing leads to follow?
Quickly survey the major authorities bearing on your
issue and the major authorities to support them.
Prepare an interim outline that describes the
conclusions you've reached so far and your plan for
further research.
Consult with your Coker Fellow to make sure you are
on the right path.