Introduction to Secondary Resources

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Types of Resources Primary Resources

Contain “the Law” Secondary Resources

Explain “the Law”

Legal Dictionaries Black’s Law Dictionary Ballentine’s Law Dictionary Words and Phrases

obit. 1. Archaic. A memorial service on the

anniversary of a person’s death. 2. A record or notice of a person’s death; an obituary.

obiter (ob-bid- r), adv. [Latin “by the way”]

Incidentally; in passing <the judge said, obiter, that a nominal sentence would be inappropriate>.

obiter dictum (ob-I-t r dik-t m). [Latin

“something said in passing”] A judicial comment made during the course of delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (though it may be considered persuasive). –Often shortened to dictum or, less commonly, obiter. Pl. obiter dicta. See DICTUM. Cf. HOLDING (1); RATIO DECIDENDI.

“Strictly speaking an ‘obiter dictum’ is a remark made or opinion expressed by a judge, in his decision upon a cause, ‘by the way’—that is incidentally or collaterally, and not directly upon the question before the court; or it is any statement of law enunciated by the judge or court merely by way of illustration, argument, analogy, or suggestion. . . . In the common speech of lawyers, all such extrajudicial expressions of legal opinion are referred to as ‘dicta,’ or ‘obiter dicta,’ these two terms being used interchangeably.” William M. Lile et al., Brief Making and the Use of Law Books 304 (3d ed. 1914).

OBITER DICTUM

C.A.Fed. 1996. “Dicta” is abbreviation for “obitur dicta”, the singular being “obitur dictum” or, more commonly, “dictum”; “dicta” are words of opinion entirely unnecessary for decision of case.—King v. Erickson, 89 F.3d 1575.—Courts 92.

C.A. 1 (Mass.) 1992. “Obiter dictum” are observations relevant, but not essential, to determination of legal questions then before the court.—Dedham Water Co., Inc. v. Cumberland Farms Dairy, Inc., 972 F.2d 453.—Courts 92.

Ill.App. 1 Dist. 1999. There are two types of dictum: “obiter dictum,” which refers to a remark or opinion uttered by the way, which is not binding authority or precedent, and “judicial dictum,” which refers to a portion of the decision that is deliberately passed upon by the court and is not essential to the disposition of the case; judicial dictum, unlike obiter dictum, is generally entitled to weight and should be followed unless found to be erroneous.—American Country Ins. Co. v. Cline, 722 N.E.2d 755, 309 Ill.App.3d 501.—Courts 92.

Ky. 1950. Language which is unnecessary to the decision is “obiter dictum:.—Works v. Winkle, 234 S.W.2d 312, 314 Ky. 91.—Courts 92.

Black’s Law Dictionary Words and Phrases

Secondary Resources Resources, other than commercial

outlines, which can help you understand the law

Restatements of the Law Attempts to simplify case law by

restating common principles on various issues

Copies of the Restatements are available on Reserve and on First Floor.

TABLE OF CONTENTS ____________ VOLUME 2

DIVISION TWO

NEGLIGENCE

Chapter 12

GENERAL PRINCIPLES

TOPIC 1. THE ELEMENTS OF A CAUSE OF ACTION FOR NEGLIGENCE

Section 281. Statement of the Elements of a Cause of Action for Negligence

TOPIC 2. THE STANDARD BY WHICH NEGLIGENCE IS DETERMINED

282. Negligence defined 283 Conduct of a reasonable man: the standard 283A. Children 283B. Mental deficiency 283C. Physical disability 284. Negligent conduct; act or failure to act

TOPIC 3. DETERMINATION OF STANDARD OF CONDUCT

285. How standard of conduct is determined

TITLE A. FUNCTION OF LEGISLATION

286. When standard of conduct defined by legislation or regulation will be adopted 287. Effect of provision for penalty 288. When standard of conduct defined by legislation or regulation will not be adopted 288A. Excused violations.

Restatement (Second) of Torts

TORTS, SECOND Ch.12

TOPIC 1. THE ELEMENTS OF A CAUSE OF ACTION FOR NEGLIGENCE

§ 281. Statement of the Elements of a Cause of Action for Negligence

The actor is liable for an invasion of an interest of another, if:

(a) the interest invaded is protected against unintentional invasion, and

(b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and

(c) the actor's conduct is a legal cause of the invasion, and

(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.

See Reporter's Notes

Comment:

a. Clauses (a) and (b) state the conditions necessary to make the actor's conduct negligent. Clauses (c) and (d) state the conditions which are necessary to make negligent conduct actionable.

Comment on Clause (a):

b. This clause states the requirement that the interest which is invaded must be one which is protected, not only against acts intended to invade it, but also against unintentional invasions. The extent to which particular interests are protected is considered in those Chapters which deal with the various interests, and no catalogue is

Text

Comments

Treatises and Hornbooks A treatise is an in-depth, scholarly

analysis of an area of law A hornbook is a condensed treatise

geared toward law students

TABLE OF CONTENTS

_________ Chapter 1

DEFINITION OF TERMS

§1:1. Contract §1:2. Promise §1:3. Agreement §1:4. Bargain §1:5. Express Contracts Including Contracts Inferred or Implied in Fact §1:6. Quasi Contracts; Contracts Implied in Law; Constructive Contracts §1:7. Formal Contracts—Introduction §1:8. --Contracts under Seal §1:9. --Recognizance §1:10. --Negotiable Instruments and Documents §1:11. --Letters of Credit §1:12. Real Contracts §1:13. --Account §1:14. --Detinue §1:15. --Debt §1:16. Informal, Simple or Parol Contracts §1:17. Bilateral and Unilateral Contracts §1:18. Bifactoral and Unifactoral Obligations §1:19. Executed and Executory Contracts §1:20. Void Bargains and Voidable Contracts §1.21. Unenforceable Contracts

Treatise: Williston on Contracts, 4th ed.

Chapter 1

DEFINITION OF TERMS . . . . §1:1. Contract

The Restatement (Second) of Contracts, like its predecessor, defines the term contract as a promise or set of promises for breach of which the law gives a remedy, or a performance of which the law in some way recognizes as a duty.1 Thus, it is clear that, although the word contract may, to one in business or a lay person, mean that writing that evidences a bargain or agreement,2 it is being used in a different sense in this treatise.

1. Restatement (Second of Contracts § 1 (1979); Restatement of Contracts § 1 (1932).

Federal: Stentor Electric Mfg. Co. v Klaxton Co. (1940, CA3 Del) 115 F2d 268, 47 USPQ 193, revd on other grounds 313 US 487, 85 L Ed 1477, 61 S Ct 1020, 49 USPQ 515.

United States v 85.11 Acres of Land (1965, ND Okla) 243 F Supp 423 (deed on conveyance was a contract between parties under definition.)

Ariz: Cook v Cook (1984) 142 Ariz 573, 691 P2d 664 (citing text).

Cal: Bundsen v Workers’ Comp. Appeals Bd. (1983, 1st Dist) 147 Cal App 3d 106, 195 Cal Rptr 10.

Ill: Bull v Mitchell (1983, 3d Dist) 114 Ill App 3d 177, 70 Ill Dec 138, 448 NE2d 1016.

Steinberg v Chicago Medical School (1976, 1st Dist) 41 Ill App 3d 804, 354 NE2d 586, modified 69 Ill 2d 320, 13 Ill Dec 699, 371 NE2d 634 (suit

by a prospective student against medical school for breach of contract created when school accepted student’s application fee).

Kan: Greiner v Greiner (1930) 131 Kan 760, 293 P 759.

Minn: Cederstrand v Lutheran Brotherhood (1962) 263 Minn 520, 117 NW2d 213 (quoting text).

Neb: R.A.S., Inc. v Crowley (1984) 217 Neb 811, 351 NW2d 414.

ND: Mag Constr. Co. v. McLean County (1970, ND) 181 NW2d 718.

Ulledalen v United States Fire Ins. Co. (1946) 74 ND 589, 23 NW2d 856 (quoting text).

Ohio: Schenley v Kauth (1953, Summit Co) 96 Ohio App 345, 122 NE2d 189, motion overr.

Goodman v Royal Indem. Co. (1927, Cuyahoga Co) 24 Ohio App 357, 157 NE 311, motion overr (the definition avoids the ambiguous use of the

In-depthcoverage of topic with exhaustivecitations

TABLE OF CONTENTS

_________

CHAPTER 1. INTRODUCTION

1.1 What is a Contract? …………………………………………………………1 1.2 Contracts Distinguished From Executed Agreements……………………….3 1.3 Freedom of Contract………………………………………………………...4 1.4 The Philosophical Foundations of Contract Law……………………………6

(a) The Sovereignty of the Human Will and (b) the Sanctity of Promise……………………………………………………………...7

(c) Private Autonomy…………………………………………………...8 (d) Reliance……………………………………………………………...9 (e) Needs of Trade: Economic Analysis and Critical Legal Studies……9 (f) Synthesis……………………………………………………………10

1.5 Scope, Relevance and Adequacy of the Law of Contracts…………………13 1.6 Sources of Contract Law…………………………………………………...15 1.7 The UCC and the United Nations Convention……………………………...17 1.8 Classification of Contracts…………………………………………………..19 1.9 Formal and Informal Contracts……………………………………………..19 1.10 Enforceable, Void, Voidable and Unenforceable Contracts………………...20 1.11 Express and Implied Contracts—Quasi Contracts………………………….21

CHAPTER 2. OFFER AND ACCEPTANCE

A. INTENT TO CONTRACT

Hornbook: Calamari and Perillo, Law of Contracts, 4th ed.

Chapter 1

INTRODUCTION . . . . § 1.1 What is a Contract?

No entirely satisfactory definition of the term “contract” has ever been devised. The difficulty of definition arises from the diversity of the expressions of assent which may properly be denominated “contracts” and from various perspectives from which their formation and consequences may be viewed.

Every contract involves at least one promise which has legal consequences. The usual, but not the inevitable, legal consequence is that performance of the promise may be enforced in court by a money judgment, and sometimes by a decree for specific performance. The promissory element present in every contract is stressed in a widely quoted definition: “A contract is a promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.1 This, like similar definitions, is somewhat misleading. While it is true that a promise, express or implied, is a necessary element in every contract, frequently the promise is coupled with other elements such as physical acts, recitals of fact, and the immediate transfer of property interests. In ordinary usage the contract is not the promise

§1.1

1. 1 Williston, Contracts §1.1 (4th ed. Lord 1990) [hereinafter Williston]; Restatement,

Contracts § 1 (1932) [hereinafter Rs. 1st]. The definition is carried over into Restatement, Second, Contracts § 1 (1981).

Hornbooks provide the “Black Letter” law

with fewer citations

Example: Coverage of Offer and Acceptance Treatise: Williston on Contracts, 4th ed.

(23 volumes)-- 3 chapters; 1278 pages

Hornbook: Calamari and Perillo’s Law of Contracts, 4th ed.-- 1 chapter; 94 pages

Finding Treatises and Hornbooks

Some treatises are on Reserve Current hornbooks are on Reserve Most treatises and older hornbooks

are on the First Floor—search University of Iowa Libraries Catalog on InfoHawk for call numbers

Law Review Articles Good for emerging areas of law, in-

depth analysis of a case or a specialized legal topic

Law Reviews are alphabetically-arranged on the Second Floor

Search for relevant law review articles through Index to Legal Periodicals,Current Law Index (LegalTrac), or HeinOnline

AMERICAN JOURNAL OF CRIMINAL LAW

Published at The University of Texas School of Law

VOLUME 29 FALL 2001 NUMBER 1

ARTICLES A Primer on Legal Issues Surrounding the Extraterritorial Apprehension of Criminals Roberto Iraola…………………………………………………………………………..1 Should American Courts Listen to What Foreign Courts Hear?: The Confrontation and Hearsay Problems of Prior Testimony Taken Abroad in Criminal Proceedings Bryan A. Carey………………………………………………………………………...29

NOTE Battered Child Syndrome as a Sword and a Shield Kristi Baldwin…………………………………………………………………………59

CASENOTE United States v. Gatewood: Does the Three Strikes Statute Violate Due Process and Undermine the Presumption of Innocence? Rose A. Coonen………………………………………………………………………..83

CASE NOTE

United States v. Gatewood:1 Does the Three Strikes Statute2 Violate Due Process and Undermine the Presumption of Innocence?

Table of Contents

I. Introduction………………………………………………………………………83 II. Background………………………………………………………………………85 A. Background on Due Process………………………………………………...86 B. Background on Three Strikes Statute………………………………………..87 III. The Facts and Procedural History of Gatewood…………………………………90 IV. Developments in Due Process…………………………………………………...91 A. Essential Facts………………………………………………………………91 1. The Prosecutor's Burden of Proof at Trial………………………………92 2. The Prosecutor's Burden of Proof at Sentencing………………………...93 3. The Prosecutor's Burden of Proof on Essential Facts……………………96 B. Burdens of Proof on the Defendant and Reconciling Them With the Due Process Clause………………………………………………..98 1. The Clear and Convincing Burden of Proof on the Defendant………….98 2. The Preponderance of the Evidence Burden of Proof on the

1 184 F.3d 550 (6th Cir. 1999), vacated en banc, reh'g granted, 204 F.3d 680 (6th Cir. 1999), and

substituted opinion, 230 F.3d 186 (6th Cir. 2000). 2 18 U.S.C. §3559 (1994).

In depthcoverage

of one issue

Legal Encyclopedias Currently, there are two national

legal encyclopedias Corpus Juris Secundum (CJS) American Jurisprudence, 2d (AmJur2d)

Some states have their own legal encyclopedias

AMERICANJURISPRUDENCE

2d

DAMAGES

AMERICANJURISPRUDENCE

2d

DEAD BODIESTO

DECLARATORYJUDGMENTS

CORPUSJURIS

SECUNDUM

48

International Law

– Int Liq 364

CORPUSJURIS

SECUNDUM

48A

Int Liq 365 - Judges

CONVERSIONto

CORPORATIONS

THIRD EDITION

15TEXAS

JUR

COSTSto

COVENANTS,CONDITIONS,

ANDRESTRICTIONS

THIRD EDITION

16TEXAS

JUR

Legal Encyclopedias Multi-volume sets with General

Indexes Arranged alphabetically by subject Use for generalized introductions

to legal issues

CRIMINAL LAW

. . . . Scope of Topic: This article discusses the general principles of criminal law, including the

nature and elements of crimes, the capacity to commit a crime or to undergo trial, judgment and sentencing, participation in crime and the criminal responsibility of one person for acts of another, inchoate crimes of attempts and solicitation, defenses (including insanity, alibi, and former jeopardy), and the rights of persons suspected or accused of crimes. Although certain matters pertaining to criminal procedure are discussed in other articles, this article covers jurisdiction and venue in criminal cases, certain preliminary proceedings, interstate detainers, arraignment, pleas, nolle prosequi, dismissal and discontinuance, arrest of judgment, matters of judgment and sentencing, and arrangements known by such names as pretrial diversion or deferred prosecution, under which the usual steps of prosecution for a crime are deferred or held in abeyance pending completion by the accused of certain conditions. Punishment for crimes, and certain collateral consequences of conviction of a crime are also discussed.

Federal Aspects: This article covers various federal constitutional rights of persons suspected or accused of crimes, including the rights of persons in custody of law enforcement officials, the right to a speedy and public trial, the right to trial by jury, the privilege against self-incrimination, the right to compulsory process, the right to the confrontation of witnesses, the prohibition against double jeopardy, the right to assistance of counsel, and rights to due process and equal protection of the laws in the context of criminal proceedings. . . . .

Treated Elsewhere: Antitrust statutes, enforcement of, see 54 Am Jur 2d, Monopolies, Restraints of Trade,

Am Jur. 2d

Each topicbegins witha discussionof what is

included in the topicand whatis coveredelsewhere.

Outline

Volume 21

PART ONE

GENERAL PRINCIPLES

I. INTRODUCTION [§§1-33]

A. IN GENERAL [§§1-5] B. APPLICATION AND EFFECT OF COMMON LAW [§§6-10] C. DECLARATION AND PUNISHMENT OF OFFENSES AS LEGISLATIVE FUNCTION [§§11-

18] D. CLASSIFICATION OF OFFENSES; IDENTITY AND MERGER [§§19-29] E. PARTICULAR ACTS OR OMISSIONS AS PUNISHABLE OFFENSES [§§30-33]

. . . .

PART ONE

GENERAL PRINCIPLES

I. INTRODUCTION

A. IN GENERAL

§ 1. Generally; definitions and distinctions § 2. --Distinction between crime and tort § 3. Elements and requisites of crime or criminal act § 4. --Commission of prohibited act § 5. --Imposition of penalty or punishment

B. APPLICATION AND EFFECT OF COMMON LAW

§ 6. Generally

BroadOutline

DetailedOutline

Next comes two outlines of the topic

PART ONE

GENERAL PRINCIPLES

I. INTRODUCTION [§§1-33]

A. IN GENERAL [§§1-5]

§ 1. Generally; definitions and distinctions

A crime is generally defined as an act committed, or omitted,1 in violation of a public law forbidding or commanding it.2 A crime is said to be an offense against the sovereignty,3 a wrong which the government deems injurious not only to the victim but to the public at large,4 and which it punishes through a judicial proceeding in the government’s name.5 In fact, it is not even necessary for any person to have been directly harmed in order for conduct to constitute a crime.6

1. As to crimes of omission, generally, see §32.

2. Schick v. U.S., 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904); U.S. v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591; Commonwealth v. Smith, 266 Pa. 511, 109 A. 786, 9 A.L.R. 922 (1920); State v. Watkins, 259 S.C. 185, 191 S.E.2d 135 (1972), judgment vacated on other grounds, 413 U.S. 905, 93 S.Ct. 3053, 37 L.Ed.2d 1016 (1973)

3. State v. Ziliak, 464 N.E.2d 929 (Ind. Ct. App. 1st Dist. 1984) (further noting that while the state can be the victim of a crime, it cannot commit a crime); State ex rel. Keefe v. Schmiege, 251 Wis. 79, 28 N.W.2d 345, 174 A.L.R. 1338 (1947)

4. In re Dray, 61 Ohio Misc. 2d 417, 579 N.E.2d 788 (Ct. Cl. 1989).

5. State v. Camp, 71 Wash.2d 620, 430 P.2d 187 (1967); Patterson v. Natural Premium Mut. Life Ins. Co., 100 Wis. 118, 75 N.W. 980 (1898).

An act, to be criminal, must involve the violation of a public law or a wrong which, because grossly immoral and vicious, affects the public injuriously. People ex rel. Perkins v. Moss, 187 N.Y. 410, 80 N.E. 383 (1907).

6. Beldotti v. Com., 41 Mass. App. Ct. 185, 669 N.E.2d 222 (1996), review denied, 423 Mass. 1109, 672 N.E.2d 538 (1996).

General Discussion

Cites toAuthority

Text of Criminal Law §1

Review of Secondary Resources Restatements cover general principles of

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