Legal Research | Section 2.2

Fundamentals of Legal Research by Adam J. McKee

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Doctrines and Operations

Recall that the United States is a common law country.  This means that, with a few exceptions, our legal traditions have their historical foundations in the common law of England.  Many of the peculiarities of common law doctrines arose in ancient times and have been maintained for hundreds of years.  The doctrine of stare decisis and the writ of habeas corpus are but two examples of such historical features that have been enshrined in our Constitution and legal system.

Stare Decisis

Stare decisis has been translated from the Latin to mean “to stand by things decided.”  Stare decisis is a Latin term referring to the doctrine of precedence.  The doctrine means that when a legal issue has already been brought before the court and a ruling has been issued, the court will follow that previous ruling in all new cases with similar facts.  It also means that lower courts are obligated to follow the rulings set forth by the higher courts above them within the same jurisdiction.  Many legal authors consider the doctrine as the foundational principle of common law.  It is the reliance on precedence that makes common law legal systems much different from those systems based on the old Roman law.  Under common law systems, the courts play a much larger role in lawmaking.

It is best to consider stare decisis as establishing two related doctrines.  The first is that lower courts must follow the decisions of higher courts within the same jurisdiction.  In this situation, the doctrine is mandatory.  The doctrine also dictates that appellate courts abide by their past decisions when deciding new cases.  This, however, is not mandatory.  While it is relatively rare, courts can alter precedent by writing new decisions.  When an appellate court does away with an old precedent in a new decisions, the obsolete case is said to have been overruled.

Writ of Habeas Corpus

The writ of habeas corpus is a command from the court ordering the warden (or other person holding a person in custody) to produce the prisoner and explain why he or she is being detained.  This ancient and honorable writ is enshrined in Article 1, Section 9 of the Constitution of the United States.  Such writs are of critical importance in the United States because prisoners often use them to attack prison sentences in federal court.  The rule is that the writ must be filed in a court with jurisdiction over the person doing the holding.

Holding v. Dictum

Under the doctrine of stare decisis, the holding (also known by the Latin legal phrase ratio decidendi) in a case governs how courts within the same jurisdiction will treat factually similar cases in the future.  It is important to understand that the holding in a case refers only to the specific legal issues litigated in the adversarial process.  It can usually be summed up in a single sentence.  Everything else in the court’s opinion is considered dicta.  This comes from the Latin legal phrase obiter dicta, which loosely translates as “said by the way.”  The importance of the distinction between holding and dictum is that only the holding in a case has binding legal authority.    The legal rationale for this distinction is that things “said by the way” were not part of the adversarial process, and it would thus be unfair to use them as legal doctrine.  Put another way, only issues argued before the court should have the force of law.  Dicta, however, can be a very strong persuasive authority.

Case Treatment

It is important to remember that case law is not static.  It is a body of law that changes with each subsequent court decision; sometimes the change is minor, such as when the court clarifies a point.  Sometimes it can be dramatic such as when a landmark case is overturned.  The following are some common treatments of prior cases by appellate courts.


When Shepardizing a case, this means “On appeal, reconsideration or rehearing, the citing case affirms or adheres to the case you are” Shepardizing.


When an appellate court overrules the decision of a lower court or its own previous decision, it has the effect of nullifying the case.  A case that has been overruled is no longer good law.  Once a case has been overruled, it can no longer be cited as legal precedent.  In legal research, any time case law is used, the researcher must ask the important question, “Is this case still good law?”  Luckily, legal researchers have finding tools known as citators to aid in answering this question.

Abrogated as stated in…

According to LexisNexis, “The citing concurring opinion notes that the case you are Shepardizing (TM) has been effectively, but not explicitly, overruled or departed from by an earlier decision.”

Certiorari Denied 

Certiorari, or “Cert.” as it is often abbreviated, means that the court refused to hear a discretionary case on appeal.  In effect, this is a neutral sort of treatment that upholds the decision of the lower court.


According to LexisNexis, “The citing opinion disagrees with the reasoning/result of the case you are Shepardizing™, although the citing court may not have the authority to materially affect its precedential value.”


According to LexisNexis, “The citing case differs from the case you are Shepardizing™, either involving dissimilar facts or requiring a different application of the law.”


According to LexisNexis, ” In case law, the citing opinion restricts the application of the case you are Shepardizing™, finding its reasoning applies only in specific, limited circumstances. For statutes, regulations or administrative rulings, the citing reference refuses to extend the statute, regulation or order you are Shepardizing™.”


This phrase means that an appeals court has returned the remainder of the judgment to the lower court for further proceedings.


When a case is reconsidered by the court, the new case replaces the old case as valid precedent.


This means that a higher court has annulled or canceled all or part of a lower court’s judgment.  That part of the lower court decision being vacated should no longer be considered good law.


To hear a case, a court must have jurisdiction.  In many criminal justice applications of the word jurisdiction, the term simply means the geographic area where an agency or agency (such as a police officer) has lawful authority.  The term’s meaning is more complex at law.  When the term is used in reference to courts, it is often referring to what is known as subject matter jurisdiction.  Also, a court must have jurisdiction over the person.  Jurisdiction over the person can generally be regarded as custody; that is, forcing the individual to appear before the court.

Geographic jurisdiction is a concern in court matters.  The rule is that a court cannot hear a matter that occurred outside of the geographic boundary of the court’s authority.  Today, these geographical boundaries are often greatly expanded by statute.  When it comes to courts, geographical jurisdiction is linked to subject matter jurisdiction.  For example, a Louisiana court could not try a person for a criminal offense committed in Arkansas; the Louisiana court lacks subject matter jurisdiction over an Arkansas crime.  When a matter does go to trial, the geographical location of the trial is known as venue.   Changing courts in the same jurisdiction will usually not raise questions of proper venue.  In criminal matters, the proper venue is the county where the crime took place (in state matters) or the district where the crime took place (in federal matters).

It is possible to hold a trial in a different venue, but only at the request of the accused.  The state cannot lawfully change venue.   A change of venue is accomplished by the defense making a motion to do so.  The court will only grant such a request if it is determined that the accused cannot possibly receive a fair trial in the original venue.

Federal v. State

If an act is a violation of federal law, it will be tried in federal courts.  If an act is a violation of state law, it will be tried in that state.  If an act violates both state and federal law, it can be tried in both.  However, states do not have the right to prosecute someone for an act that violates federal law.

When it comes to appeals, state courts have the final say in problems that are strictly a matter of state law.  If a federal issue is involved, such as a violation of federal constitutional rights, then the federal courts can become involved.

Advisory Opinions

Courts do not have a right to issue advisory opinions.  An advisory opinion is an opinion on a legal question based on abstract or hypothetical circumstances.  Courts will only issue opinions that are derived through the adversarial process.  Attorney generals, on the other hand, can issue advisory opinions.  These are regarded as good law unless superseded by a court decision or legislative action.

Effects of Judicial Decisions

Under the system of law in the United States, a person has no guarantee of a perfect trial.  The only guarantee is that it be substantially correct.  A miscarriage of justice occurs only if, based on the entire record, the appellate court concludes that it is probable that a result more favorable to the defendant would have been reached if an error had not occurred.   Errors at the trial level that prevent the defendant from presenting his or her side of the case are normally reversible.  This is logical since there is no way to know if an absent defense resulted in a miscarriage of justice.  When an appellate court reverses the decision of a lower court, the case is returned to the lower court for further consideration.  Members of the courtroom workgroup must decide whether to begin the trial again or to dismiss it.  Cases sent back to the trial level for further proceedings are said to have been remanded.  In some instances, such as when it has been determined that the trial court lacked jurisdiction in the case, will not result in a remand.  In rare instances, the appellate court will completely dismiss the case.

Modification History

File Created:  08/08/2018

Last Modified:  06/13/2019

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

Open Education Resource--Quality Master Source License



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