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Posts Tagged ‘legal research’

Health Care Law Research in the Limelight

May 21, 2012 2 comments

There are many ways to describe health law.  Health Law is comprised of not only the law of the delivery of health care and the financing of these systems, but also all areas of law that are intersected between law and health.  These areas of law include bioethics (e.g. the ethics of end-of-life decisions), criminal law (i.e. the role of the government protecting elders and children from mistreatment), medical malpractice (i.e. the deterrence method for civil liability for health provider negligence), and employment law (i.e. occupational health and safety and worker’s compensation standards).  You may find that there are individual categories that make up health law as a whole.  For many, health law is subdivided into laws governing health care law, public and population health law, bioethics, and global health law.  This overview is just a mere snapshot in the big picture of what is health law. For the purposes of this blog post, we’re going to focus on health care law.

Much of health care law focuses on legislative, executive, and judicial rules and regulations that govern the health care industry.  The intended audience of these laws include hospitals and hospital systems, public and private insurers, pharmaceutical and device manufacturers, and the individuals who treat patients.  You may be familiar with some of the subcategories that include fraud and abuse dealing with insurance claims, food and drug laws and regulations (FDA), medical malpractice, and heath care mergers and acquisitions. Health care law researchers must deal with a variety of legal sources.  These sources range from the traditional statutes and cases to more complex administrative materials, which includes rules, agency decisions, commentaries, manuals, and guidelines.

Health care law exists at both federal and state levels.  The ability to regulate health care institutions is a policing power left to the states, and must further health, safety and the general welfare.  Licensure or certification is the primary method chosen by state legislatures to regulate the health care industry and its facilities. That being said, the major height of authority behind health care regulation is the federal-state Medicaid program.  In other words, a state’s authority under the Medicaid program is subject to federal regulation, specifically the federal Department of Health and Human Services. In order to participate in the Medicaid program, a state must submit a state plan that meets federal standards under the federal statute, 42 U.S.C. § 1396(a). Each state subscribes to different approaches for regulating the health care institutions within their borders.  To research each state, a 50 state survey may be extremely helpful for you to compare the differing laws and regulations. BNA, LexisNexis and Westlaw allow for you to access various 50 state surveys by topic.

Here are a few short (2-3 minute) video tutorials on how to access 50-State Surveys on each of the above resources.  For this example, assume you are looking for a state-by-state comparison of power of attorney laws and regulations:

As already noted, states have the ability to regulate health care facilities under their policing power.  Conversely, the federal government’s power to regulate this industry is derived from its financing authority or from the constitutional Commerce Clause.  The federal government as a purchaser, under the federal health care programs of Medicare and Medicaid, regulates health care facilities through a certification program.  Thus, in order to receive payments under either one of the federally funded insurance programs, the health care facility must be certified and sign a provider agreement with the Health Care Financing Administration for Medicare and with the state’s Medicaid agency for Medicaid. In sum, because the federal government provides a significant amount of funding to these programs, they are given the power to regulate the receiving facilities quality of care.

The majority of health care federal statutes are contained within the following U.S.C. Titles:

To make life easier, Westlaw and LexisNexis have created specific databases that house these collections of Health Care Federal laws:

But a better tactic than merely going and searching through these various databases or large statutory schemes, try to start your research with a research guide.  The following guides outline the various topics and relevant statutes for issues addressed in health care law.

Still have questions?  Jot it down in a comment and we’ll see what we can do to help you find the answer!

Researching the Research Vocabulary: Everybody Researches

February 20, 2012 Leave a comment

Mastering legal research can be quite a daunting task.  Not only do you have to learn about new resources (not many people used A.L.R.s or U.S.S.C.A.N. before law school),  but, as a 1L, you do not know enough about the law itself to develop good searches (admit it, the first time you saw the word “estoppel” you thought it was a typo for stop, didn’t you)?   As you master both the research sources and the information in your substantive classes, the research process does become easier.  However, even as you conquer the books, databases, and the law itself, there may still be one small hitch in your smooth research plan – research vocabulary.  Not your search terms or the legal jargon, but those words, and occasionally symbols, that you notice throughout indexes and in footnotes, but do not quite comprehend.   In this post we we take a look at some  terms that often cause confusion.

The term “et seq.” tends to raise its incomprehensible head when you start researching statutes and code, although it may be used in other resources.  Its translation means “and following” and, when used when citing  statutes, it indicates that the information cited to refers to one or more sections after the code section cited, as in the above illustration where searching “Accounts” –” Carriers” sends the researcher to  Title 28 of  the U.S. Code and to section 2321 and the following sections, 2322, 2324, etc.

Other challenging terms appear when you begin searching in the various indexes, be they in  print or online.  You may encounter terms such as “this index,” “supra,” and “infra.”  Although these are intended to provide directional guidance, they can be as helpful as road signs in ancient Greek.   “This index” can be most confusing when used in a multi-volume index.  You might be looking up “Divorce,”  then the subheading “Alimony,” and you read “this index.”  This is an indication that you should go to the section/volume of the index containing words starting with “A” and look up the work alimony.  If you are using a print index this might require you to search in a different volume, but you will still be in the same index.

The words supra and infra ( meaning “see above” and “see below” respectively) are very similar to ante and post (“see before” and “see after”), and both pairs serve the same function; that is to direct the reader elsewhere within the index or document that they are reading.  Upon first encountering these word it may be a bit confusing, but supra  and infra appear frequently in law review footnotes and will soon become at least somewhat familiar.  If all this seems too much to keep track of, there is some good news for you.  Even the slow to change legal professions is beginning to modify its research vocabulary.  Instead of supras or antes, the  C.J.S. index has begun to use the clearer terms “before and after,”  while  the A.L.R. is using  “in this topic”  in place of “this index.”   Give it another decade or two and perhaps all legal publications will be equally clear.  Until them, don’t forget to research your research vocabulary.

Breaking Bad (Habits)

I sometimes think there’s a cottage industry of criticizing student research habits, but to solve a problem you have to diagnose it first. You can’t steer students right until you know where they’re going wrong. An article reporting how students do – or don’t do – research has been gaining a lot of attention in academic circles in the last few weeks. The study underlying the article examined research patterns among Illinois undergraduates, focusing not on how they say they do research, but on how they actually do the research. Anthropologists observed students while researching and discussed the research with them afterward. The results have alarmed many in library and information literacy circles. Why?

  • Students relied heavily on Google. This in itself isn’t a bad thing, necessarily, but they were also using Google poorly. Rather than restricting themselves to sections like Google Scholar or Google Books, they used the basic interface that searches everything. Even when they used scholarly resources, students used “google-like” searching rather than using the tools and techniques the databases require for good results.
  • Students didn’t select the right scholarly resources for their information need – using databases that don’t provide current articles when they were specifically looking for something current, for example.
  • Perhaps most alarmingly, students failed to seek assistance from professional researchers who are at their disposal: librarians.

You may be wondering why I mention this. After all: you’re not an undergrad and very few of you are from Illinois. But it’s probably the case that the research patterns observed in this study reflect your undergraduate experience to some degree, and we’re all products of our past. It’s also true that as a student at Wake Forest School of Law you have a leg up: you are not trapped by your past research habits!

You have access to an experienced and well-trained library staff. Your research professor is a great place to start, whether you need help with a topic you’re covering in class, or with some research you’re doing for another purpose. But you’re not limited to their help; ask for information about what you can check out, or what’s on reserve, from the staff at the Circulation Desk. Ask substantive research questions from a librarian, staff or student assistant at the Reference Desk. And know that – while you may never encounter them – there is a “hidden” staff called the Technical Services department. They’re the ones who make sure books are on the shelves and links in the catalog work.

You have access to the best research systems for legal research, and that goes beyond Lexis and Westlaw. Databases like BNA and CCH are tailored to areas of law represented by these publishers; they have secondary sources like treatises and “looseleafs” that don’t appear on Lexis and Westlaw. You also have access to specialized databases like ProQuest Congressional (great for legislative history), Treaties & International Agreements Online (just what it sounds like!), and RIA Checkpoint (fantastic for tax)… not to mention all the subject-specific resources available through the Z. Smith Reynolds Library! You have so much at your fingertips, and librarians can help you learn to use each of these, and more.

As a 1L, you’re given explicit and detailed instruction in research techniques that go far beyond Googling, and as upper level students you can get even more specific research instruction in areas like Tax and Administrative law, as well as a broad Advanced Legal Research class. You should walk out of any of these classes knowing how to think about research, how to select the right tools, and how to use tools to get the information you need. You should also have picked up some habits like keeping good notes to track your research.

If all of this is old news to you – congratulations! Keep up the good work. But if you’ve gotten this far with bad research habits, don’t worry. Research is a skill, and it takes practice. You can learn good habits. If you’re not sure where to start, you have to flail around! Ask for help – a quick email, call or stop by the library may be all it takes to get you off on the right track.

Dictionary Fun for the Word Nerd: Everybody Researches

August 8, 2011 Leave a comment

If you watch legal shows on television, you would think that lawyers spend their time either arguing with other lawyers in court or chasing after attractive co-workers in the office.  Even if you are only starting out in law school, you know better than this.  While there are certainly exciting and satisfying courtroom moments, the majority of your time, particularly as a new associate, is likely to be spent in writing, reviewing documents, and RESEARCHING.  Lawyers in big firms research, solo practitioners research, corporate counsel and law clerks research.  Because legal research is such a universal theme to the practice of law, The Demon’s Advocate will be featuring at least one post per month on new or unusual ways to conduct legal research, or about legal research materials.

This post takes a new look at a familiar resource, the dictionary.  While most of you are likely to have used the print and or online versions of Black’s Law Dictionary, there are some free online legal dictionaries worth your time, as well as some interesting non-legal  dictionaries to expand your mind and your research. This post will review some of the more traditional dictionary offerings, and a future post will describe some dictionary innovations.

Law.com’s offering, known as the  Real Life Dictionary of the Law bills itself as an easy-to-read and user-friendly “guide to legal terms.”  It is unquestionably versatile, allowing you not only to browse for the word or to run a search for it, but also providing the option to search definitions for your word.  This last feature proves helpful when you can remember the general areas of the law the word falls under or other similar concepts but cannot recall the word itself. (Take from someone who has passed the age of 40, this happens.)

Have you ever tried to explain a legal term to a family member or significant other without success? If so, next time you might want to try Nolo’s Plain-English Law Dictionary.  Nolo Press has been bringing the law to the non-lawyer for years via print “how to” legal books, and now via Nolo.com.  Whether you consider them famous or infamous for their DIY approach to the law, their dictionary is a useful look at legal terms for the non-professional audience.

The Free Dictionary does have a legal option, but the feature I most enjoy is that it not only provides a definition of the word you are searching, but also has an audio pronunciation of the word.  For example, if you are a politician, and want to use the work chutzpah, but are not sure how to pronounce it, you could type the word (or a near spelling and it will offer you options), and you will get both a definition and a graphic of a speaker to click in order to hear the pronunciation.  Depending on the word, you may have both a British and an American option for pronunciation.

If this sampler of dictionaries has not sated your interest, you might want to investigate the University of Washington Gallagher Law Library’s dictionary research guide.   The guide is written by law librarians,  so the focus is on law dictionaries, including those for foreign and international law and for specialized legal  fields.  However, recognizing that law does not exist in a vacuum, it also includes some of the most popular general dictionaries as well as some basic law guides and glossaries for those not in the legal profession.  If you use this guide, do be aware that, while you have access to all free linked material mentioned, the call numbers provided are for the Gallagher library and so may refer to books not available in the PCL or that are in a slightly different location.  If you have questions about any of the titles, please contact one  of the reference librarians, staff, or students, or check the PCL catalog for information specific to our library.

QR-Codes-At-A-Glance

Where the Law Librarians Are.

July 22, 2011 Leave a comment

While I doubt that it will ever become a hit movie, it could be a question that some of you might ask next week.  The answer is that many of our librarians will be in Philadelphia, at the annual Meeting and Conference of the American Association of Law Libraries.  You may comfort yourself with the knowledge that we will not be lounging on beaches, but instead will be attending meetings, programs, workshops, and roundtables in order to learn more about, technology useful to libraries, teaching,  social media, researching  specialized legal topic such as SEC and European Union law, and legal and library trends.  Those wanting to follow the PCL law librarians on Twitter can do so at #pclaall.  For those real fans of all things law library,  AALL has its own conference hashtag –  #aall11.

The meeting officially begins with an opening reception on the evening of  Saturday the 23rd but a number of pre-meeting workshops are offered for all or part of Saturday.   Attendees are not limited to both public a private academic law libraries but will include law firm  librarians, as well as law librarians  from county and court law libraries.  There are special meetings for each type of library as well as for different library specialties such as computers services, patron services teaching and cataloging.  There are also groups and activities for new librarians, middles managers and directors as well as for many special interests.  The meeting concludes for most with a Tuesday evening reception, although there will be some additional meetings and vendor activities on Wednesday, when most tired librarians will be heading home.

Not lounging on the beach.

Attending meetings & programs.

For anyone flying to conferences, or who are just taking that end of summer vacation, make sure you know what is and is not legal to do on a plane.  If you were planning on playfully pelting you flight attendant with the tiny bags of free (at least for now) peanuts and pretzels, be warned; that is “interference with a flight crew,” and your sky-high high jinks could result in your being “greeted” by the FBI upon landing.  For other rules of the sky that your flight attendant may not have delivered along with the oxygen mask instructions, visit law.com’s funny yet informative blog series “Things You Can’t Do On A Plane.”

NCBA, ABA, A.K.A, ROTFL, or LOL… BNA?

With all the new acronyms out there, have you heard of the BNA?  If not, BNA is a company that publishes a multitude of legal materials. And here is more information about them.

BNA-At-A-Glance: “BNA is the largest independent information provider with a network of thousands of reporters, correspondents, and leading practitioners. Since 1929, BNA has been providing professionals with intelligent reporting, expert insights, commentary, and practical guidance.” (More about BNA’s history and governance)

What makes BNA unique?  Instead of pulling together information from various news sources, BNA utilizes their own professionals for the sources of their information.   BNA compiles and publishes all original content.

Where to get started?  If you are looking to quickly discern the new, potentially influential, court decisions that are handed down each week at the federal level, look at the United States Law Week.  The lawyers and editors employed for BNA filter through hundreds and thousands of federal and state court and administrative cases and select those important cases that “establish new precedents, address new statutes, contribute to emerging legal doctrines, tackle current controversies, or further splits in the Circuits.” U.S. Law Week is just one of the 80+ BNA titles to which we subscribe.

What are circuit splits? The Circuit Splits are one of the Key Features of U.S. Law Week, and provides a description of  new legal issues where circuits have ruled differently on points of law.  For example, schools and discinplinary action is one of the recent issues where circuits are split.  The issue is whether or not schools are “allowed to punish vulgar student speech on the internet?”  According to Layshock v. Hermitage School District and J.S. v. Blue Mountain School District, “the Third Circuit says derogatory profiles about their principals posted on MySpace by two students were protected by the First Amendment[, whereas, t]he Second Circuit, faced with different facts, however, has allowed a school to punish vulgar internet speech by a student.”  See 79 U.S.L.W. 2739 for more information.

As a side note, each BNA newsletter has special features, such as insights from practicing attorneys and subject matter experts.  These features are also a good place to get published if you’re interested in a particular subject.  Since BNA is wholly written by staff writers, they are always accepting submissions to be published.

For example, here is a snippet from the latest issue of U.S. Law Week:

  • Attorneys—Fees Apointed Lawyer Has Takings Claim for Fair Fees  “Services rendered by a court-appointed attorney in representing an indigent criminal defense client qualify as “property” subject to the Fifth Amendment’s Takings Clause, the South Carolina Supreme Court ruled June 21….”
The lawyer-editors at BNA make finding cases and articles easy through their intricate finding tools, which allows you to find relevant materials quickly by looking up your keywords in the index.  You’ll see the subject headings at the beginning of the case summaries, if you sign up for bi-weekly email updates.  Now, I’m not one for a ton of email updates, but this newsletter gets my recommendation.  It is extremely helpful in staying up-to-date with what is happening in the courts, but it does not overload your inbox to the point of unsubscribing agitation.