Wednesday, March 5, 2008

The Language of Law

One of the greatest stumbling blocks for the American public in understanding the laws their representatives enact is that laws use words in a different manner than we do in common speech.

There are two kinds of language that are primarily used in law - one is "words" (just as we use in common speech) and the other is "terms" (which can be substantially different than we use in common speech).

"Words" are just that - words. They are presumed to be used in their ordinary manner and they are subject to the "plain meaning rule" when interpreting a statute. Their meaning must be sought through the common English dictionaries of the era in which the statute was written. In the absence of any clear contrary intent by the legislature, the meaning found in these dictionaries is the sole meaning that must be given to the word.

"Terms" are another matter. Terms appear no different, to the layperson, than words. The difference is that terms are not subject to the "plain meaning rule" because the legislature has provided its own definition for the term being used. Where the legislature has provided its own definition, the ordinary English dictionary must be thrown out the window; the definition given to the term by the legislature controls the meaning completely.

The meanings of terms can be identified by seeking out the "definitions" section applicable the text that you are reading. Unfortunately, this may not always be as straight forward a proposition as one might imagine.

Most codes provide a section that gives definitions that are generally applicable throughout the entire code, however any of the definitions given for the entire code are subject to be redefined in any given subtitle, chapter, section, subsection, or clause. Any time a term is redefined for a specific subtitle, chapter, section, subsection, or clause, that redefinition of the term takes precedent (within that subtitle, chapter, section, subsection, or clause) over the general definition provided for the entire code. Of course, to make matters more confusing, any time a term is redefined for use in a subtitle, chapter, section, subsection, or clause, it can be redefined again and again as you move from subtitle to chapter; chapter to chapter; chapter to section; section to section; section to clause, etc. In other words, you always have to be on your toes and make sure you know the definitions that apply to the exact text your reading!

Here is an example. 26 USC 7701 contains definitions that applicable for the entire Internal Revenue Code. Section 7701(a)(20) defined "employee":

For the purpose of applying the provisions of section 79 with respect to group-term life insurance purchased for employees, for the purpose of applying the provisions of sections 104, 105, and 106 with respect to accident and health insurance or accident and health plans, and for the purpose of applying the provisions of subtitle A with respect to contributions to or under a stock bonus, pension, profit-sharing, or annuity plan, and with respect to distributions under such a plan, or by a trust forming part of such a plan, and for purposes of applying section 125 with respect to cafeteria plans, the term ''employee'' shall include a full-time life insurance salesman who is considered an employee for the purpose of chapter 21, or in the case of services performed before January 1, 1951, who would be considered an employee if his services were performed during 1951.

The term is redefined for use in chapter 24 of the Code: (26 USC 3401(c))

For purposes of this chapter, the term ''employee'' includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term ''employee'' also includes an officer of a corporation.

As you can see the terms are defined very differently. The title-wide definition addresses insurance salesmen, while the definition for chapter 24 addresses only government workers under the direct or indirect authority of the federal government. [The corporation that is mentioned is a corporation wholly owned by the federal government.]

Words of Art

Although "Words of Art" are often placed (by the layperson) in the same category as "terms", they are not the same thing. Words of Art are words or phrases that are particular to specific technologies, sciences, arts, professions, etc., and generally do not have the same meaning, or any meaning at all, outside their own field. One example of this is the medical word, "orthopod". The word, "orthopod" is generally used within the medical community to indicate a person who has surgical training and experience in arthroscopy. Outside the medical field, "orthopod" has no meaning whatsoever. While "terms" are often used by politicians and lawyers to mask the true intentions or application of legislation from the general public (especially in tax law), Words of Art are a proper and necessary parts of effective communication in the legal arena.

Monday, March 3, 2008

Cleveland-Marshall College of Law

Constitutional Law Resource Guide

Constitutions and Background Materials
Treatises and Practice Guides
Study Aids
Searching SCHOLAR and OhioLINK
Journal Articles and Current Awareness Services
Aggregate Databases and Other Web Resources


Constitutional Law generally addresses principles of the law of the US Constitution in reference to the allocation of powers as well as individual rights and liberties. Key concerns include judicial review, federal jurisdiction, federal executive powers, federal legislative powers (particularly related to the commerce clause and fiscal powers), international affairs, powers of the states, due process, equal protection, freedom of expression, and freedom of religion. US Supreme Court cases are emphasized, because the US Supreme Court has a critical role in the interpretation of the Constitution. Constitutional Law study also concerns implementation and interpretation of state constitutions.

On April 24-25, 2003, Cleveland-Marshall College of Law held the conference "The Ohio Constitution -- Then and Now: An Examination of the Law and History of the Ohio Constitution on the Occasion of Its Bicentennial." The conference examined the history of constitution-making in Ohio, inquiring into the motives and ideologies of those who shaped the text, and differing approaches to state constitutional interpretation, emphasizing how Ohio's courts have construed that text, as well as focused on current issues under the Ohio Constitution, including school choice, tort reform, separation of powers, equal protection, and search and seizure. Conference proceedings were published in 51 Cleveland State Law Review 333-686 (2004).

If you are a student who's trying to pick a topic in constitutional law for a note or article, check out and review its Constitutional Law section. Also, consider reviewing current issues and hot topics on news Web sites such as American Lawyer Media's American Lawyer, Law.Com, National Law Journal, and New York Law Journal, as well as Lawyers Weekly.

Please contact the Law Library's Research Services librarians during their Research Services hours, or via email for help with locating or using any of the resources discussed in this guide.


Supreme Court of the United States
Includes docket, court rules, case handling guides, opinions (coverage begins in 2001), oral arguments (selected coverage begins in 2000), orders (coverage begins in 2000), and Supreme Court Journal (coverage begins in 1993).

Cornell University Law School Legal Information Institute's Supreme Court Collection
Searchable database of opinions, with full coverage from 1990 to the present, as well as 600 historical decisions. Also includes calendar, schedule of oral arguments, judicial biographies, court rules, and several links to other Web-based materials.

U.S. Courts: The Federal Judiciary
The Administrative Office of the US Courts provides links to all U.S. Circuit Courts of Appeals and District Courts, PACER (Public Access to Court Electronic Records) service center, and other federal court information.

Supreme Court of Ohio
Reporter of Decisions provides opinions issued since 1992.
Office of Public Information provides opinions and case summaries, oral argument summaries, news, and other materials.
Ohio Rules of Court (html and pdf versions).

LexisNexis Source Files:
Area of Law - By Topic: Constitutional Law: Cases: Federal & State Cases - Selected Constitutional Law Material
Includes US Supreme Court; US Court of Appeals; Federal District Courts; case law for all 50 states, District of Columbia, Puerto Rico, Virgin Islands and other US territories; as well as Military Appeals, Customs, Patents, Tax, Trade, Commerce, Veteran Appeals, and Bankruptcy specialty courts.
States Legal - U.S.: Combined States: Cases: By Area of Law: State Cases, Combined Courts - Selected Constitutional Law Material
States Legal - U.S.: Ohio: Cases: By Area of Law: OH Constitutional Cases Includes Supreme Court since 1821, Court of Appeals since 1913, and miscellaneous courts since 1894.

See also individual source files in these LexisNexis Library sections:
Area of Law - By Topic: Constitutional Law: Cases: Federal
Area of Law - By Topic: Constitutional Law: Cases: State
Federal Legal - U.S.: Combined Federal Court Cases
Federal Legal - U.S.: Supreme Court Cases & Materials
Federal Legal - U.S.: Circuit Court Cases - By Circuit
Federal Legal - U.S.: District Court Cases - By Circuit
Federal Legal - U.S.: District Court Cases - By State

Westlaw Databases:
U.S. Federal Materials: Cases & Judicial Materials: U.S. Supreme Court Cases (after 1944) (SCT)
[ Note that pre-1945 cases are in the SCT-OLD database.]
U.S. State Materials: Case Law: Multistate Cases Organized by Area of Practice: Civil Rights (MCIV-CS).
Cases concerning violations of individual rights and discrimination from state courts of all 50 states and District of Columbia. Coverage varies by state.
U.S. State Materials: Ohio: Cases: Case Law Organized by Practice Area or Topic: Civil Rights (OHCIV-CS)
Cases concerning violations of individual rights and discrimination from Ohio state courts. Coverage begins with 1821.

See also individual databases in these Westlaw Directory sections:
Topical Materials by Area of Practice: Constitutional Law: U.S. Federal Cases
U.S. Federal Materials: Cases & Judicial Materials: Judicial Materials: U.S. Supreme Court Databases
U.S. Federal Materials: Cases & Judicial Materials: Courts of Appeals Cases by Circuit
U.S. Federal Materials: Cases & Judicial Materials: District Court Cases Organized by Court of Appeals Circuits after 1944
U.S. Federal Materials: Cases & Judicial Materials: District Court Cases Organized by State and Territory - after 1944

See also Constitutional Law section of KeySearch.

Constitutions and Background Materials

U.S. Constitution
State Legal Materials - By State
[Both links via Cornell University Law School's Legal Information Institute. ]

A Century of Lawmaking For a New Nation: U.S. Congressional Documents and Debates
Includes materials from the Continental Congress and Constitutional Convention as well as Statutes, Documents, Congressional Journals, and Congressional Debates. [Provided by the Library of Congress American Memory Web site.]

The Federalist Papers
Eighty-five essays, written between October 1787 and May 1788, by Alexander Hamilton, John Jay, and James Madison. [Provided by the Library of Congress THOMAS Web site of federal legislative information.]

The Founders' Constitution
Web-based version, provided by the University of Chicago Press and Liberty Fund, of the multi-volume anthology edited by Philip B. Kurland and Ralph Lerner. Includes a wide assortment of documents, from the early 1600s to the 1830s, regarding constitutional government and the US Constitution, arranged by constitutional themes as well as by Articles and Clauses of the US Constitution and the Amendments.

FindLaw's Constitutional Law Center U.S. Constitution Materials
Analysis and annotations arranged by the US Constitution Articles and Amendments. Based on the Library of Congress Congressional Research Service 1992 document edited by Johnny H. Killian and George A. Costello, as well as the 1996 and 1998 supplements edited by Johnny H. Killian, George A. Costello, and Kenneth R. Thomas. Includes links to cited US Supreme Court cases.

Ohio Constitution
1851 Constitution with Amendments to 1999. [Provided by the Ohio General Assembly.]

Ohio Fundamental Documents
Includes 1787 Ordinance of the Northwest Territory, 1802 and 1851 Constitutions of the State of Ohio, and other historical materials. [Provided by the Ohio Historical Society.]

Treatises and Practice Guides

Selected significant treatises and practice guides in the Cleveland-Marshall College of Law Library collection which provide a foundation in issues of constitutional law include the following:

American Constitutional Law / Laurence H. Tribe. Foundation Press, c2000. KF4550 .T79 2000

American Constitutional Law / Louis Fisher. Carolina Academic Press, c2003. KF4549 .F57 2003

American Constitutional Law: Power and Politics / Gregg Ivers. Houghton Mifflin Co., c2001-2002. KF4549 .I94 2001

The Constitution and the Pride of Reason / Steven D. Smith. Oxford University Press, c1998. KF4552 .S63 1998

Constitutional Conflicts / Derrick A. Bell, Jr. Anderson Publishing Co., c1997. KF4550 .B44 1997

Constitutional Interpretation: Illusion and Reality / Jeffrey M. Shaman. Greenwood Press, c2001. KF4575 .S53 2001

Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review / Keith E. Whittington. University Press of Kansas, c1999. KF4550 .W475 1999

Constitutional Law / John E. Nowak and Ronald D. Rotunda. West Group, c2004. KF4550 .N6 2004

Constitutional Law / Geoffrey R. Stone, et al. Aspen Law & Business, c2001. KF4549 .C647 2001

Constitutional Law: Principles and Policies / Erwin Chemerinsky. Aspen Law & Business, c2002. KF4550 .C427 2002

Constitutional Structure and Purposes: Critical Commentary / Michael Conant. Greenwood Press, c2001. KF8748 .C56 2001

A Detailed Analysis of the Constitution / Edward Francis Cooke. Rowman & Littlefield Publishers, c2002. KF4550 .Z9 C676 2002

Encyclopedia of the American Constitution / Leonard W. Levy and Kenneth L. Karst, eds. Macmillan Reference USA, c2000. KF4548 .E53 2000

Heritage Guide to the Constitution / Edwin Meese III, David F. Forte, and Matthew Spalding, eds. Regnery Pub. and Heritage Foundation, c2005. KF4527 .H47 2005

Implementing the Constitution / Richard H. Fallon, Jr. Harvard University Press, c2001. KF8742 .F35 2001

The Inseparability of Law and Morality: the Constitution, Natural Law, and the Rule of Law / Ellis Washington. University Press of America, c2002. KF4552 .W37 2002

The New Constitutional Order / Mark Tushnet. Princeton University Press, c2003. KF4550 .T87 2003

Our Unsettled Constitution: a New Defense of Constitutionalism and Judicial Review / Louis Michael Seidman. Yale University Press, c2001. KF4550 .S38 2001

Power and Rights in US Constitutional Law / Thomas Lundmark. Oceana Publications, c2001. KF4550 .Z9 L86 2001

Researching Constitutional Law / Albert P. Melone. Waveland Press, c2000. KF241 .C66 M455 2000

Semblances of Sovereignty: the Constitution, the State, and American Citizenship / T. Alexander Aleinikoff. Harvard University Press, c2002. KF4552 .A43 2002

To Form a More Perfect Union: a New Economic Interpretation of the United States Constitution / Robert A. McGuire. Oxford University Press, c2003. KF4520 .M393 2003

Treatise on Constitutional Law: Substance and Procedure / Ronald D. Rotunda and John E. Nowak. West Group, c1999. KF4550 .R63 1999

The Unpredictable Constitution / Norman Dorsen, ed. New York University Press, c2002. KF4550 .A2 U57

The Ohio State Constitution: a Reference Guide / Steven H. Steinglass and Gino J. Scarselli. Praeger, c2004. KFO401 1851 .A6 S74 2004

Understanding State Constitutions / G. Alan Tarr. Princeton University Press, c1998. KF4550 .Z95 T37 1998

Study Aids

The American Constitution: Cases, Comments, Questions / Jesse H. Choper, et al. West Group, c2001. KF4549 .C654 2001

American Constitutional Law: Essays, Cases, and Comparative Notes / Donald P. Kommers and John E. Finn. West/Wadsworth, c1998. KF4550 .K65 1998

American Constitutional Law: Powers and Liberties / Calvin Massey. Aspen Law & Business, c2001. KF4549 .M318 2001

American Constitutional Law: Structure and Reconstruction: Cases, Notes, and Problems / Charles A. Shanor. West Group, c2001. KF4549 .S395 2001

The American Constitutional Order: History, Cases, and Philosophy / Douglas W. Kmier and Stephen B. Presser. Anderson Publishing Co., c1998. KF4549 .K55 1998

CALI (Computer-Assisted Legal Instruction) Tutorials
Connect to the CALI Library of Lessons for a list of "Constitutional Law Lessons" and "Federal Courts Lessons" available to Cleveland-Marshall College of Law Students. You must register a personal password with CALI to use these CALI tutorials. [If you are a Cleveland-Marshall College of Law Student, and have not yet accessed CALI via our Law School subscription, Students click here .] The 4 CALI Constitutional Law Lessons cover Constitutional Placement of the Administrative Process; Federal Commerce Power and Other Restrictions on State Regulatory Power; Hearing Procedures Required by Due Process - The Basic Analysis; and Ripeness and Mootness. The 2 CALI Federal Courts Lessons cover the Eleventh Amendment and Federal Habeas Corpus.
The CALI Constitutional Law and Federal Courts Lessons are also highlighted on the Tutorials and Instructional Research Guides page of the Law Library Web site.

Cases and Materials on Constitutional Law / David Crump, Eugene Gressman, and David S. Day. Mathew Bender, c1998. KF4549 .C78 1998

Cases and Materials on Constitutional Law: Themes for the Constitution's Third Century / Daniel A. Farber, William N. Eskridge, Jr., and Philip P. Frickey. Thompson/West, c2003. KF4549 .F33 2003

A Companion to the United States Constitution and Its Amendments / John R. Vile. Praeger, c2001. KF4550 .V55 2001

Constitutional Analysis in a Nutshell / Thomas E. Baker and Jerre S. Williams. Thomson/West, c2003. KF4550 .Z9 W53 2003

Constitutional Law / Jerome A. Barron and C. Thomas Dienes. Thomson/West, c2003. KF4550 .B28 2003

Constitutional Law / Kathleen M. Sullivan and Gerald Gunther. Foundation Press, c2001. KF4549 .G85 2001

Constitutional Law / Norman Redlich, John Attanasio, and Joel K. Goldstein. LexisNexis, c2002. KF4549 .R4 2002

Constitutional Law: Cases and Materials / William Cohen and Jonathan D. Varat. Foundation Press, c2001. KF4549 .B3 2001

Constitutional Law: Cases, Comments, Questions / Jesse H. Choper, et al. West Group, c2001. KF4549 .C653 2001

Constitutional Law: Cases, History, and Dialogues / Donald E. Lively, et al. Anderson Publishing, c2000. KF4549 .C654 2000

Constitutional Law -- National Power and Federalism: Examples and Explanations / Christopher N. May and Allan Ides. Aspen, c2004. KF4550 .M29 2004

Constitutional Law: Structure and Rights in Our Federal System / Daan Braveman, William C. Banks, and Rodney A. Smolla. Lexis Publishing, c2000. KF4549 .B73 2000

Constitutional Law and Politics / David M. O'Brien. Norton, c2003. KF4541 .A7 O27 2003

Constitutional Law in a Nutshell / Jerome A. Barron and C. Thomas Dienes. Thomson/West Group, c2005. KF4550 .Z9 B35 2005

Great Cases in Constitutional Law / Robert P. George, ed. Princeton University Press, c2000. KF4549 .G68 2000

Modern Constitutional Law: Cases and Notes / Ronald D. Rotunda. West Group, c2000. KF4549 .R686 2000

Modern Constitutional Theory: a Reader / John H. Garvey and T. Alexander Aleinikoff, eds. West Group, c1999. KF4549 .M63 1999

Principles of Constitutional Law / John E. Nowak and Ronald D. Rotunda. Thomson/West, c2007. KF4550 .Z9 N69 2007

Understanding Constitutional Law / Norman Redlich, John Attanasio, and Joel K. Goldstein. LexisNexis, c2005. KF4550 .Z9.R43 2005

Ohio Board of Bar Examiners, Outline of Subjects Tested on Essay Portion of Ohio Bar Examination (Columbus, OH: Supreme Court of Ohio 1984- ). KFO76 .Z9 O8546. Outlines the subjects tested on the essay portion of the Ohio Bar Examination in order to provide a guide to bar examiners in drafting the essay questions. The "Constitutional Law" section in the November 2002 edition provides citation to legal authorities in constitutional law as a convenience to the bar examiners. It includes outlines for Federal Judicial Power, Federal Legislative Power, Federal Executive Power, Federal Regulatory Power, State Power in Areas of Federal Authority, Intergovernmental Relations, State or Governmental Action, Privileges and Immunities of National Citizenship, Substantive Due Process, The Takings Clause, The Contract Clause, Procedural Due Process, Equal Protection, Congressional Enforcement of 13th, 14th, and 15th Amendments, Freedom of Speech in General, Freedom of Association, Freedom of the Press, Corporate Speech, Commercial Speech, Solicitation, Unprotected Expression, Time, Place and Manner Regulation, Freedom of Religion, and Petition for Redress.

State Constitutional Law in a Nutshell / Thomas C. Marks, Jr. and John F. Cooper. Thomson/West, c2003. KF4550 .Z95 M28 2003

Searching SCHOLAR and OhioLINK

SCHOLAR is the electronic catalog for Cleveland State University's Law Library and University Library. CSU also participates in the state-wide consortia OhioLINK, which provides access to a state-wide central catalog and numerous research databases. For treatises and other materials, search the SCHOLAR and OhioLINK catalogs with the subject headings Constitutional Law; Constitutional Law - United States; Constitutional Law - Ohio. See also the 40+ Constitutional Law Related Subject Headings.

Journal Articles and Current Awareness Services

See the Finding Articles in Law Reviews, Journals and Other Legal Periodicals guide for an explanation of the legal periodical indexes and databases available to Cleveland-Marshall College of Law students and the CSU community. That guide covers print and electronic indexes, as well as electronic full-text journals. In particular, note OhioLINK's Electronic Journal Center and its Social Sciences - Politics, Political Science, and Law subject cluster.

Selected specialty journals and current awareness materials concerning Constitutional Law in the Cleveland-Marshall College of Law Library collection include:

Cato Supreme Court Review. Cato Institute Center for Constitutional Studies. K3 .A76

Constitutional Commentary. University of Minnesota Law School. K3 .O528 & Electronic

Criminal Procedure and the Constitution. West Publishing Co. KF9618 .C74

Hastings Constitutional Law Quarterly. University of California Hastings College of Law. K8 .A764 & Electronic

Preview of United States Supreme Court Cases. American Bar Association Public Education Division. KF4547.8 .P7

Seton Hall Constitutional Law Journal. Seton Hall University School of Law. K3 .O665

The Supreme Court Review. University of Chicago Press. K23 .U6 & Electronic

Supreme Court Watch. Norton. KF4541 .A7 O272

University of Pennsylvania Journal of Constitutional Law. University of Pennsylvania Law School. K25 .N687 & Electronic

State Constitutional Law Bulletin. National Association of Attorneys General. K23 .T3773

Aggregate Databases and Other Web Resources

Cornell Law School's Legal Information Institute: Law about: Constitutional Law

FindLaw: Practice Areas: Constitutional Law

International Association of Constitutional Law

Jurist: Legal Research: Law Guides: Constitutional Law

LexisONE: Legal Web Site Directory: Practice Areas: Constitutional Law

LexisNexis: Area of Law - By Topic: Constitutional Law
Includes federal and state cases, statutes and legislative materials, administrative materials and regulations, law reviews and journals, treatises and analytical materials, general news and information, legal news, legal reference materials, general news and information, and public records. - Legal Research - Topic Index - Constitutional Law

OhioLINK Research Databases: Law and Legislation
Includes LexisNexis Academic (particularly "News" and "Medical" groups), PAIS International, Papers First, Proceedings First, Social Sciences Citation Index.

The Virtual Chase - Legal Research Guide - Legal Subjects - First Amendment Law

Westlaw: Topical Materials by Area of Practice: Constitutional Law
Includes federal and state cases, US Constitution, federal and state statutes and legislation, treatises, law reviews and journals, newsletters, directories, and notable trials.


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