Legal Research Strategy

MBEMax wiki article — paired with the Legal Research question set on mbemax.com.

One-line summary

Efficient legal research proceeds from secondary sources to primary authority, uses binding over persuasive, and always updates — the classic Issue → Secondary → Primary → Update → Synthesize workflow.

Mnemonic

I-S-P-U-S — Identify issue, Secondary sources, Primary authority (binding first), Update / validate, Synthesize.

Or remember it as a sandwich: two slices of I and S on the outside, with P and U inside.

The research pipeline

Step 1: Identify and frame the issue

• Parse the fact pattern into legal questions.
• Identify the jurisdiction, forum, procedural posture.
• List the TAPP — Thing (subject), Action (claim/defense), Person (party roles), Place (jurisdiction).

Step 2: Get oriented with secondary sources

• Treatises and hornbooks — e.g., Wright & Miller (federal civil practice), McCormick (evidence), Prosser & Keeton (torts), Williston (contracts).
• Encyclopedias — American Jurisprudence 2d (Am. Jur.), Corpus Juris Secundum (C.J.S.).
• Restatements — not primary authority but persuasive; sections cited in case law create quick entry points.
• Law review and bar-journal articles — for novel issues, policy arguments.
• ALR (American Law Reports) annotations — useful for splits of authority and surveys.
• Practice guides and form books — jurisdiction-specific.
• CLE materials — current bar-association expertise.

Step 3: Primary authority — binding first

Order of binding force:

1. Constitution (federal and state).
2. Statutes (federal, state, local) — read plain text; check definitional sections.
3. Regulations (federal — CFR; state — state admin codes).
4. Case law — binding vs. persuasive turns on court hierarchy and jurisdiction.
5. Court rules (FRCP, FRCrimP, FRE, state rules).
6. Executive orders.

Persuasive authority: out-of-jurisdiction cases, law review articles, Restatements, federal appellate decisions on state-law questions, scholarly commentary.

Step 4: Update

• Shepardize / KeyCite — check for subsequent history, negative citation treatment, superseding statutes, later amendments.
• Pocket parts / slip laws / advance sheets — check for very recent statutory changes.
• Regulatory sources — Federal Register for pending rules; state equivalents.
• Docket monitoring — for pending litigation that may alter the law.

Step 5: Synthesize and memorialize

• Outline the legal standard and competing approaches.
• Reconcile splits with prevailing-view + your-jurisdiction analysis.
• Document citations in proper format (Bluebook, ALWD, or state-specific).
• Save research trail for cite-checking.

Research databases and tools

• Westlaw — Key Number system, KeyCite, Secondary Sources, Analytical tools.
• LexisNexis — Shepard's, Lexis Answers, Practical Guidance.
• Bloomberg Law — dockets, news, analytics.
• Google Scholar — free case law; good for quick citation check; not a substitute for validation.
• Free state / federal sources — PACER, state bar websites, court websites.
• Specialty databases — Tax Analysts (BNA), EDGAR (securities), USPTO (patents), PACER (dockets).

NCBE loves to test

• Hierarchy of authority. Statutes trump cases on statutory interpretation; constitutional decisions trump statutory ones where conflict.
• Binding vs. persuasive. Binding = higher court in same jurisdiction on same legal issue. Persuasive = everything else. Federal courts bound by state SC on state-law questions.
• Restatements are persuasive. Not primary authority despite being widely cited.
• Update always. Every cited case must be validated — pending appeal, overruled, distinguished.
• Legislative history. Use cautiously — plain-text textualists minimize it; purposivists use it.
• Secondary first, primary second. Efficient research starts with an overview, then goes to primary.

Fast hypos

Hypo 1. You represent a California client with a contracts dispute. Where do you start? California statutes (Civil Code, Code of Civil Procedure); California Supreme Court and Court of Appeal cases; Rutter Practice Guide for orientation; Restatement if analogous.

Hypo 2. Your issue is governed by the UCC. How do you research? Your state's codification of UCC Article 2 (not the model text directly); Official Comments persuasive but not binding; Anderson or White & Summers treatise for orientation.

Hypo 3. A brief cites a 1995 Fifth Circuit case. How do you validate? Shepardize / KeyCite to confirm not overruled; check for negative citation treatment; check for later statutory amendments.

Hypo 4. You need regulatory analysis on environmental-law issue. CFR + Federal Register; relevant agency guidance and recent rulemakings; recent circuit court decisions.

Ethical considerations for MPRE

• Competence (Cal. R. Prof. Conduct 1.1 and counterparts) — requires adequate research. Duty of technological competence increasingly recognized.
• Candor to tribunal — disclose controlling adverse authority if not cited by opposing counsel.
• Supervising lawyer / non-lawyer — responsible for adequate research even when delegated.

Case anchors

• Rylands v. Fletcher, L.R. 3 H.L. 330 (1868) — classic foundational case students use in research walkthroughs; cited across torts.
• Erie Railroad v. Tompkins, 304 U.S. 64 (1938) — federal-vs-state research touchpoint for Erie issues.

See also

• Erie Doctrine
• Counseling (MPRE)
• Summary Judgment

Sources

Cal. R. Prof. Conduct 1.1 (Competence), 3.3 (Candor toward tribunal); The Bluebook: A Uniform System of Citation; ALWD Guide to Legal Citation; Erie Railroad v. Tompkins, 304 U.S. 64 (1938).