As you probably know by now, I am teaching a section of Advanced Legal Research this semester. We recently covered case law and digests, which is when I noticed two problems that my students seemed to be experiencing without being aware of the issues.
First, my students do not appear to have been taught (or perhaps they just weren’t listening to) the art of case selection when forming their final arguments. I have been getting many arguments backed with trial level cases when appellate and Supreme Court opinions on the same topic are available. Additionally, the Federal Appendix has been making a frequent guest appearance in my students’ papers; while citeable, the students do not understand that there is a difference in precedential value with these cases.
Ten years ago, I was a 1L myself. I clearly remember discussing case selection with my legal research and writing professor, and I took the conversation to heart. It is now my turn to talk to my students about this important topic, but like many lawyers, I like to have something to back up my statements. Thankfully, I have a copy of Mark K. Osbeck’s book, Impeccable Research: A Concise Guide to Mastering Legal Research Skills, on my shelf. Chapter 5, Analyze and Organize Your Research Results, provides a decent explanation of final case selection.
The second problem that has arisen is selection of jurisdiction. How do you determine if an issue falls under state or federal law? One of my coworkers told me that he goes through the US Constitution and points out what areas of law the federal government can legislate upon and what is reserved for the states. This is a good basis, but as we all know, if Congress can link something to one of their powers, such as the Commerce Clause, the states are usually out of luck. Then we have the areas of law in which Federal and state law overlap. For instance, a student was recently kind enough to tell me that the Florida Constitution has increased protection against cruel and unusual punishment by changing the wording to cruel OR unusual punishment. This is where my students get lost.
I tried talking to my students about the issue, but I think that I confused them even more. When I took a look at my own jurisdiction evaluation system, I realized why. This is knowledge that I have picked up and filed away throughout my career. Thus, I currently function on the “I know it when I see it” jurisdiction test, and I am usually correct. But that doesn’t help my students because I am finding it hard to relate the cues that I pick up on to indicate jurisdiction.
Thus, I set out to find an article, chapter or book that discusses this issue. Alas, I have come up empty-handed. As far as I can tell, even my general fall backs of Mary Whisner’s and Shawn Nevers’ columns have avoided the topic except in the occasional cursory mention. I am currently at a loss, and am hoping that some readers may have some suggestions for me (and if this ever gets back to Mary or Shawn, I hope they will consider writing a column on this topic).
So please, speak up! How do you teach your students about jurisdiction selection?