As 1Ls, we are often guided on which study aids are good to use to help us prepare for some of the hardest exams we will ever have to take. Once we enter into 2L year, we are aware that study aids are helpful, but not always sure where to find them. I talked with a few friends, and we all are of the opinion that Evidence, during 2L year, is one of the courses in a study aid that could be most helpful. Evidence is such a dense and rule-intensive course. During the semester, we review and learn the rules separately, which is not so bad. However, when it is time for the final exam, we quickly realize we will have to be able to identify which rule applies to each problem and this is not always so easy.
Study Aids for Evidence are important for so many reasons. This area of law is important for litigators and transactional attorneys, and studying it gives us all practice for the bar.
Knowing this, I searched for several Evidence study aids and came across Acing Evidence by Aviva Orenstein. I worked with this guide to study for my upcoming final exam and can honestly say that my confidence greatly increased as a result. The “Acing Evidence” study aid has been extremely helpful for a few reasons:
Practice Problems: This study aid provides examples and practice at the end of every lesson. For example, the first chapter discusses Relevance, which is a big part of Evidence. At the end, there is a page titled “Illustrative Problems.” Here, you will find questions and answers to practice. The majority, if not all, Evidence professors will tell you that one of the best ways to get great at Evidence and prepare for exams is to practice.
Checklists: There are checklists for the majority of the rules. In Evidence, checklists are your absolute best friend. You can virtually get every question correct if you find/develop the correct check list for that rule and apply it to the question. Character is one of the best parts of Evidence to have a checklist for and Chapter 2 of the study aid provides this checklist. Try it out next time you are practicing evidence
Reminders: Another great aspect of this study aid is the Points to Remember after each chapter. This provides a quick highlight of the important parts of the chapter and sometimes acronyms to remember points about Evidence during an exam.
As far as study aids go, I give this one two thumbs up. If you need help finding a study aid for another course, don’t forget that the reference librarians are always here to assist. Good luck with exams!
For many law students, this semester marks the first time you will be taking a law school examination in-person, either because you are a finals novice altogether (welcome 1Ls!) or because you have been a faithful student of the Zoom School of Law. In either case, as you sit for your first in-person exam, here are four tips to prepare you.
Tip 1: Study on campus.
Carve out some time to study on campus before your exam date. Though it is often more comfortable and convenient to study at home, studying at least once in the same environment you will be taking the exam will help improve your overall performance.
Tip 2. Noise is inevitable.
You never realize just how loud someone can type until you’re an hour into an in-person final, reading the same multiple choice question for the third time in a row while the sound of tiny, tap-dancing mice fills the room. Typing, pencils scratching, chairs moving and creaking – these sounds can be distracting during an exam. Unfortunately, there really isn’t a way to avoid this one. The best tool you have is to mentally prepare yourself that noise will happen, and try not to be caught off guard by it.
Tip 3: Arrive an hour early.
The trek to your in-person final will likely be longer than that from your bed to your laptop. Thus, in addition to triple-checking the start time, plan to be at the COL at least an hour before your final exam begins. You will be grateful for the extra time if Atlanta traffic rears its ugly head or T-deck is inexplicably full. Plus, you will never regret reading through your outline one last time before the exam starts.
Tip 4: Think through what materials you can bring.
The days of sprawling notebooks on your kitchen table are over. In-person exams limit the space you have available to reference other sources, and your professor might further limit those resources. Review what is and is not allowed in your exam and plan accordingly.
Taking exams in person might seem daunting or even scary. Just remember – you are now one in a long line of law students who have taken in-person final examinations. Welcome to the club, and best of luck!
Welcome to another installmentof Agents of Invention, our series exploring the exciting world of patent agents by the law library’s own T.C. Deveau. T.C. has a PhD in Neuroscience and has worked as a patent agent for almost 7 years. He’s currently in the final year of GSU Law’s part-time program.
In order to represent clients in patent matters in front of the USPTO, one must be a registered agent with the USPTO – either as a patent agent or attorney. The primary mechanism by which one becomes registered is by passing the USPTO Registration Exam (also colloquially referred to as the “Patent Bar”). Those interested in patent practice may have heard of this exam, and this post will provide guidance on how to sign up to take the exam.
You may be thinking – what exactly does it mean to represent clients in front of the USPTO? Generally, this means submitting documents related to patent applications and communicating with the USPTO. A more detailed definition is provided by the USPTO in 37 C.F.R. 11.5(b) and 37 C.F.R. 11.5(b)(1) for those that are curious.
First, before one can sit to take the U.S.P.T.O. Registration, one must satisfy the eligibility requirements of the USPTO. To be eligible to sit for the exam, the USPTO requires: (1) good moral character; and (2) sufficient technical background and/or training to demonstrate technical expertise.
Satisfying the moral character portion is generally straightforward for applicants, involving a “yes” or “no” checklist to statements regarding things such as felonies, disciplinary reprimands, federal debt, etc., similar to what one has to deal with on a law school application.
If the answer is “yes” to any of the questions on the application, then a detailed statement explaining the circumstances is required. A heightened standard (and application fee) for applicants who previously: (A) faced convictions; (B) were disciplined professionally; or (C) were denied for “Lack of Good Moral Character and Reputation” is required. If one falls into one of these categories then one is not automatically disqualified, but subject to review based on the information provided on a case-by-case basis.
Satisfying the second eligibility prong – technical background – can be a little confusing. There is no “one size fits all” educational or experiential model that demonstrates technical expertise, so the USPTO has several categories that it lumps its requirements into – Category A, Category B, and Category C.
CATEGORY A: Bachelor’s Degree, Master’s Degree or Doctor of Philosophy Degree in a Recognized Technical Subject.
The following subjects are currently “recognized technical subject” areas by the USPTO. If your major in college, Master’s degree, or Ph.D. was in any of these subjects, then submit an official transcript showing award of the degree. The technical subject areas have been expanded in the last few years, and even expanded to include graduate degrees. The following list is current as of 2022:
CATEGORY B: Bachelor’s Degree, Master’s Degree or Doctor of Philosophy Degree in Another Subject.
For people that have a degree in a subject that is not explicitly listed in Category A above (at the time I applied, Neuroscience was not a recognized subject area so my application was a category B application), the USPTO will still qualify it if your transcript demonstrates one of the following options:
Option 1: 24 semester hours in physics. Only physics courses for physics majors will be accepted.
Option 2: 32 semester hours in a combination consisting of the following: Eight semester hours in a combination of chemistry and physics, with at least one course including a lab, and 24 semester hours in biology, botany, microbiology, or molecular biology. Only courses for science or engineering majors will be accepted.
Option 3: 30 semester hours in chemistry. Only chemistry courses for chemistry majors will be accepted.
Option 4: 40 semester hours in a combination consisting of the following: Eight semester hours in a combination of chemistry, physics, and/or biology, with at least one course including a lab, and 32 semester hours of chemistry, physics, biology, botany, microbiology, molecular biology, or engineering.
Unfortunately for individuals trying to qualify under this category, there is a lot more paperwork involved. In addition to an official transcript showing conference of the degree, a course description from the institution in the same year the course was taken has to be provided, as well at is showing a grade for that class (only grades of C- or better are accepted).
This category is a catch-all, and the USPTO provides more options than those explicitly listed above. For example, the USPTO, on a case-by-case basis, will consider teaching experience, other training, etc. If trying to qualify under this category, get in touch with the USPTO and consult with someone about exactly what they’ll want to see so it can be furnished with the application.
CATEGORY C: Practical Engineering or Scientific Experience.
This category is reserved for individuals that do not qualify under Category A or Category B, but have received a bachelor’s degree and passed the Fundamentals of Engineering (FE) test. The official FE results and official bachelors transcript showing the award of a degree must be submitted to the USPTO to qualify under this category.
Additional information can be found in the General Eligibility Bulletin here.
Fill out and Submit the Application
Alright – so now that you’ve read all the fine print and determined that you are eligible and collected any and all relevant paperwork, it’s time to fill out and submit the application. This part is generally straightforward, and the application is no-nonsense, and will be similar to other applications that you have filled out before.
An example application can be found with the General Eligibility Requirements, and hey, because it’s the 21st century, can even be filled out and filed online with the USPTO here.
The exam will have to be submitted with an application fee along with all the relevant documentation. After submission, it will be reviewed by the USPTO and approved or rejected, generally within about 14 days. If approved, proceed to register, if not, get in touch with the USPTO and they can help you rectify any application defects.
Register to Take the Exam
Unfortunately, you can’t simply register to take the exam. As we discussed above, you have to be approved to take it by the USPTO after demonstrating your eligibility.
After receiving your approval letter, you proceed to the Prometric website here to register and take your exam. This isn’t a “offered twice a year” type exam, and there will be just about any time of year you can sign up and take it.
The only caveat to registering for the exam is, after approval, you only have a certain amount of time to register and take the exam. This time period may range from about 90 days or more. The USPTO does know that life happens, and this time period may be extendable. It is extendable with the payment of additional fees to the USPTO, and note that prometric may also want a rescheduling fee.
90 days is probably a suitable preparation period for most but this is something to keep in mind. It’s not worth filling out and submitting the application if you plan to take it a year later, for example.
Currently, Prometric is the vendor but this may be subject to change.
The Exam Itself
The Exam itself is 100 multiple choice questions broken up into two 50-question/three-hour chunks. Only 90 of these questions are graded and 10 may be experimental.
Preparation and Study
The Registration Exam generally tests one on the laws, rules, regulations, and procedure of patent prosecution. These can range from to overcoming Examiner rejections, post-grant proceedings, and more mundane questions like “what can/can’t you fax into the USPTO?” Yes, you might be thinking it’s crazy for them to asking a question about fax in 2022, but, computers/computer systems are not infallible and there may be a time in practice where you have to actually snail mail and fax things into the USPTO. Some items the USPTO still won’t accept electronically either.
The Exam sources questions from the Manual of Patent Examining Procedure, the Code of Federal Regulations, and other sources, such as the Federal Register. The MPEP and CFR is where the overwhelming majority of questions will be coming from.
To prep and study for the exam, there are a variety of prep courses one can take. No, it’s not necessary to take a prep course, but, like the actual bar exam, you’re not going to find many practitioners out there that recommend a DIY “go at it yourself” approach. Most will say just suck it up and spend the money for the course and get to work.
There are a lot of advantages to prep courses too. One of the main ones is prep courses often have large proprietary question banks and computer software that emulates the display you will see on test day. This alone is worth the price of admission in my mind, because it tends to be an area where “practice makes perfect.” Prep courses also do the organizational work for you or organize the material in a readily digestible format and provide a study timeline.
GSU’s courses in Patent Law and Patent Drafting and Prosecution can be very valuable resources and help one prep for the exam as well. Definitely take them if you get the chance. These courses, however, are not a substitute for exam prep.
Please note no valuable consideration is provided by any outside source in writing the above advice; it is simply based on the author’s personal experience.
I’ve Taken the Exam – Now What?
After submitting your completed exam, you’ll immediately get a notification at the test center as to whether or not you passed. This is unofficial, and you should wait for the official USPTO communication to let you know, but I’ve not heard of anyone getting a pass at Prometric and an official notification or vice-versa.
This official notice from the USPTO generally comes 10-14 business days after the exam, but could be sooner or later. If you passed, congrats!
If you didn’t pass – not a big deal. It’s a tricky test with a low pass that is generally taken by very intelligent people. Not uncommon for people to have to take it more than once, especially people with technical backgrounds and no legal backgrounds. Hope back on the horse, re-apply (you don’t have to submit all the application addendums with the re-application), register to take it again, and get back to the books. You got this.
The Fine Print
Please keep in mind that the purpose of this blog post is a good faith effort to provide information relating to the exam. As anyone trying to be a patent agent or attorney should be aware, this blog post should be a guide, but should not be a substitute for doing your own due diligence. Please double check the official USPTO and Prometric guidelines before proceeding to apply for and take the exam.
Additional information regarding the USPTO Registration Exam can be found here:
Welcome to another installment of The Law From Here, our globe-trotting series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Divya Maharaj has considerable experience researching the law of another country–here, the Caribbean twin-island nation of Trinidad and Tobago. Divya has an LLB from the University of London and an LLM from Staffordshire University, in addition to being a recent graduate of GSU’s LLM program. In Trinidad and Tobago, she spent some time working under the nation’s former attorney general before working as an independent attorney. In today’s very special The Law From Here, Divya takes a look at some of the different ways that English Common Law and U.S. Way treat marriage.
George Bernard Shaw said, “England and America are two countries separated by the same language”. Before I immigrated to the US, I had very little idea about how extensive this “separation” is because it goes much beyond language and extends even to the sphere of the legal systems which originate from the same English Common Law (ECL). As a practitioner and student of law, the more comparative research I conducted in this sphere, the more I realized the extent of this “separation”. However, before going any further, here is a disclaimer. Although Trinidad and Tobago is my country of origin, the legal system there is almost entirely based on ECL, and in addition, I am an English-educated attorney and hence when it comes to law, England is my home country and hence the prologue.
Amongst the many major differences, one that I stumbled upon recently was in the domain of Family Law–more precisely in the unpleasant arena of Divorce Law. Divorce in England and Wales, and by extension in Trinidad and Tobago as well, is guided by the Matrimonial Causes Act (MCA) 1973 pt 1, s 1(2), wherein, divorce can only be considered when a marriage has irretrievably broken, which again is determined if one or more of the following facts are satisfied: (1) respondent committed adultery; (2) respondent’s behavior made living together impossible; (3) respondent deserted for at least a continuous two year period; (4) the parties had at least two years of continuous separation if they have consented to a decree of separation; or (5) the parties had at least five years of continuous separation if there was no decree of separation. Even with the last two clauses, the law there is mostly a fault-based one and the divorce petition statistics also show that a vast majority of the petitioners rely upon fault as the ground for divorce, adultery and unreasonable behavior being the most popular ones.
After researching the legal frameworks, I also proceeded towards gauging the relative experiences with the highly fault tilted, versus the highly no-fault tilted divorce law frameworks in these two jurisdictions; note that when it comes to the US, by “jurisdiction” I mean the overall US. It was quite interesting to see the prevalence of “grass in greener on the other side” sentiment on both sides.
In conclusion, I can only say that this ongoing research has broadened my knowledge horizon and made me realize that I definitely need to undertake more of these exploratory comparative research initiatives. All of the sudden, I see Hamlet appearing in front of my sleepy eyes and say: “There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.” So, yes, my research will continue!
Welcome to another installment of The Law From Here, our globe-trotting series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Mariana Griffiths has considerable experience researching the law of another country–here, Venezuela. In Venezuela, Mariana worked as a legal coordinator. Currently, she works as corporate legal supervisor at UPS while she finishes up her LLM degree at GSU. In today’s The Law From Here, she offers her insights into legal research in the Venezuelan legal system, and how it compares (so far) to researching the law in the United States.
I received my law degree in Caracas, Venezuela at the Universidad Metropolitana or Metropolitan University at the age of 23 years old after finishing high school. In Venezuela it is not required: (1) to pursue an undergraduate degree before applying and start law school; (2) take a bar to practice law. As soon as you receive your law degree in Venezuela, you are licensed to practice nationwide if you register yourself with the Institute of Lawyers and obtain the registration number (which is equivalent to a bar number). However, there is no such requirement of passing the bar in the state where the attorney intends to practice law.
Venezuela’s legal system is governed by civil law, which is a codified system, meaning that the law is written and organized in codes for each area of the law. Venezuela is a centralized federalism in reality, but constitutionally it is a “Democratic and Social State of Law and Justice which holds as superior values of its legal order an actions those of life, liberty, justice equality solidarity, democracy, social responsibility and, in general the preeminence of human rights, ethics and political pluralism,” Constitución de la República Bolivariana de Venezuela [VE][Constitution]Feb. 19, 2009, Title I, art. 2
Even though case law is not usually considered a fundamental source of law in Venezuela’s legal system, judicial decisions have become more important in many areas. In particular, there are important decisions regarding public matters such as use of public land, eminent domain (called ‘expropriations’), and infrastructure. The most important cases are the ones decided by the Supreme Court of Justice, which is Venezuela’s equivalent of the Supreme Court of the United States, although there are quite a few differences in composition and operation. The Supreme Court of Justice’s decisions are more likely to be published and create precedents for specific legal issues. However, although that court’s decisions are the most prominent, for case law research, there is no strict rule of hierarchy.
The Constitution in Venezuela is the supreme law of the land, and in the hierarchy of the laws, it is at the same tier as international treaties and agreements. Below, there are the codes and laws enacted by the Legislative Power and the Law Decrees issued by the President, which can be related to any matter, at any time, without any restriction, whether there is a national emergency or not. These decrees often include modifications to current law, which makes practicing law in Venezuela very challenging. It is important to note that in the last twenty years, the numbers of decrees has increased considerably as a way to escape the legislative process. These decrees usually strike down one or more segments of the law in question, as an amendment, which means the attorneys must research different decrees and other sources in order to discern the valid statutory law. Perhaps an analogy can explain it better—it is akin to ‘shepardizing’ case law in the United States.
Before endeavoring to contrast the common law and civil law systems of the U.S. and Venezuela, respectively, it is important to note that both systems have evolved with society’s technological and legal changes. Civil law countries have been relying on case law and using precedent to maintain uniformity in the judicial system, which helps to limit frivolous lawsuits and provides a reference for practicing litigant attorneys. And common law countries use precedent to identify potential areas of the law where statutory law is needed for the same reasons, and for the efficiency of the judicial system.
In Venezuela, like in the United States, there is a separation of powers. However, this is a similarity with a distinction, since Venezuela’s government has five branches: legislative, executive, judicial, citizen and electoral. This separation of powers of five branches is included in an amendment to the Venezuelan Constitution. In contrast, the United State maintains the classic separation of powers with three branches, characterized by the element of check and balances.
The interaction and relationship between federal and state law is also quite different. In Venezuela, even though each state is autonomous, the codified law apply to all the states. Not all the states even have written constitutions or different laws. States do issue ordinances (at the level of administrative agencies) for local matters such as traffic, business licenses and use of the land, but they do not occupy the same legal space as the federal law. In some ways, this is a simpler system than what we find with the overlapping systems of federal and state law that characterize the United States.
As you might expect, these differences add up, and legal research in Venezuela is pretty different. First, you need to know that, when researching the law in Venezuela, you won’t likely find all of the key primary sources in any one single place, like you do in the U.S. when using Westlaw of Lexis. There is a company called Microjuris that provides some resources for legal research similar to what you might see on those platforms, but it is less complete and less sophisticated. More importantly, Microjuris is not always up-to-date and has an outdated design that, personally, I do not find be user-friendly.
Second, the number of executive decrees which modify the codified law is enormous. Sometimes, in one month, there are more than twenty! That means it is important that means you be up-to-date, which you can ensure by checking the Gazette Official published by the Supreme Court of Justice (the “Tribunal Supremo de Justicia”). Generally, it is a large file; the good news is that it is available online.
Third, because it is a codified law system, legal professionals base their research on the civil codes as primary sources. To support their arguments for a legal memo or for a case in litigation, the use of jurisprudence to supplement the civil codes is critical. There are reputable and well-known authors for each subject, often former judges or academic teacher.
These differences in their countries’ legal systems have a big impact on the way that attorneys research the law in Venezuela and the United States. Although case law is less prominent in Venezuelan law, the added wrinkle of ensuring your research of decrees is up-to-date adds to the challenge of researching Venezuelan, as does the unavailability of a comprehensive or user-friendly service for doing legal research online.
by T.C. Deveau, Intellectual Property Correspondent & Law Library GRA
Welcome to the first installmentof Agents of Invention, our new series exploring the exciting world of patent agents by the law library’s own T.C. Deveau. T.C. has a PhD in Neuroscience and has worked as a patent agent for almost 7 years. He’s currently in the final year of GSU Law’s part-time program.
Imagine helping entrepreneurs ensure that they actually own the exciting inventions that they’ve dedicated so many hours to creating. Imagine collaborating with attorneys and scientists in an environment that where your technical background can make an enormous difference. Imagine a career that helps prepare you for a sophisticated area of legal practice, but doesn’t require a J.D.
If this scenario sounds appealing, have you ever considered becoming a patent agent? A patent agent is someone with a science or engineering degree (i.e., bachelors, masters, Ph.D.) who writes and prosecutes patents on behalf of inventors.Often, these patent agents/prosecutors work at law firms, but they can also work for other organizations, or even for themselves.
Patent agents have taken and passed the U.S. Patent and Trademark Office Registration Exam (the “Patent Bar”), which allows them to represent clients (inventors, companies, or other organizations such as universities) in front of the USPTO. Patent agents can submit patent documentation to the Office and participate in the substantive examination of patents. Basically, patent agents can help clients with anything relating to obtaining a patent from the USPTO.
“Anything relating to…” sounds really broad, but it generally consists of the following:
Consulting with the client about their invention;
Working with them to determine a filing strategy that best fits your client’s interest (and budget);
Assisting with preparation and filing of the application;
Working with USPTO Examiners to get the application allowed; and
Working with the USPTO on procedural issues so that the patent is ready for publication and issuance.
For a given client, you may take a patent from start to finish in this manner, for others, you may only work on certain pieces of the puzzle.
While patent agent work is largely U.S.-centric, it’s important to keep in mind that the United States is not the only jurisdiction where intellectual property rights may be relevant or meaningful for a given client. Patent agent duties often include, coordinating patent application efforts not only in the U.S., but in foreign jurisdictions as well, such as Europe, China, and Japan. This involves working with attorneys or agents in other countries to further your client’s interest in these jurisdictions.
At law firms in particular, the duties of a patent agent often overlap significantly with those of patent attorneys involved in patent prosecution, although an agent’s duties are more limited in scope. While agents can help clients obtain patents, they cannot be involved in matters that involve giving legal opinions. Aspects of the field that follow grant of a patent, including patent invalidity, infringement, and licensing, must be handled by attorneys. When clients have questions like “what can I do with my patent after it is has been issued?” or “I think our competitor is infringing our patent, can you investigate it?,” it’s time to get an attorney involved.
Whether you’re interested in becoming a patent agent (remember, no J.D. required) or a patent attorney, GSU provides great opportunities to students looking to break into the field of patent prosecution. GSU provides many courses tailored to patent law, both from a doctrinal and a practical experiential perspective.
It is common for patent agents in and around Atlanta to enroll in the part-time J.D. program at GSU and take the next steps towards becoming an attorney. The part-time program provides a lot of flexibility for those looking to further their careers, and firms in the area even provide incentives to patent agents for going to law school (such as tuition reimbursement). While at GSU Law, students can further immerse themselves in the world of intellectual property beyond patents. GSU offers classes covering related topics like copyright, trademark, trade secrets, and contract drafting, all of which are quite helpful in becoming a well-rounded IP attorney.
Some of you reading this may be thinking, “but I’m already in law school—why do I care about patent agents?” Well, it’s not uncommon for students at GSU to take the Patent Bar, skipping the agent position entirely. Indeed, many students find GSU Law coursework—classes like Patent Law and Patent Drafting & Prosecution—to be a huge help in their Patent Bar prep (look for coverage of this in a future post).
Today, I’ve given you an overview of the patent agent position, discussing what it involves and discussing some of the requirements of the field. Stay tuned for our next installment of Agents of Innovation, where I’ll describe a thrilling “day in the life” of a patent agent.
 Did I mention that this position also allows you to call yourself a ‘prosecutor’? The ‘patent prosecution’ process refers to the process of applying for and pursuing patents.
Welcome to the first installment of The Law From Here, our globe-trotting new series that gives you a chance to get to know GSU Law’s LLM students. Like many of our LLM students, Alceu Mauricio Junior has a distinctive background that features ample experience practicing law in another country–here, Brazil. However, even amongst this rarified group, Mauricio stands out because he is an experienced judge with several postgraduate degrees. In today’s The Law From Here, he offers his insights into legal research in the Brazilian system, and how it compares to the United States.
Having worked as a judge in Brazil for more than twenty years, I enrolled in the LL.M. Program at Georgia State University (GSU) in 2021. I thought the GSU LL.M. Program would be interesting not only because it opens a door to apply for the Bar Exam in some U.S. jurisdictions, but also because it would widen my perspective on how to view, study, and apply the law, either here in the U.S. or in Brazil.
Alceu Mauricio Junior
While studying the law in a common law country and in a different language, it is almost impossible not to set the mind in a mode of comparison. The whole learning process is triggered by focusing on what is similar and different, and how I would express a legal concept in English versus Portuguese (my native language). My goal in this post is sharing my comparative perspective on legal research, presenting a picture of what Brazilian and U.S. lawyers could expect while researching the law in a country with a different legal tradition
Contextualizing the Brazilian Legal System
Lawyers, being pragmatic professionals, naturally want to draft persuasive arguments and accurately predict outcomes in legal disputes. To do so, they need to find and select the most important authorities, in other words, the authorities that are most likely to guide judges’ and government officials’ decisions. As Brazil and the United States are on different sides of the civil law/common law spectrum, one could expect significant differences in how practitioners research the law in those countries.
The Brazilian legal system follows the civil law tradition, while also adopting some common law doctrines. Brazil has a written Constitution, which is the supreme law of the land. The Constitution establishes separation of powers, federalism, and fundamental rights. It addresses several fields of law and has an extensive Bill of Rights. Though Brazil is a federation of relatively autonomous states, as in the United States, Brazilian law is centralized at the federal level. Congress has the exclusive power to legislate about contracts, family, crime, torts, trade, corporations, energy, and many other topics. Constitutional law and statutory law are the basis of the Brazilian legal system.
Case law plays a crucial role in legal reasoning and analysis in Brazil, and recent developments have adopted the stare decisis doctrine for some judicial decisions. However, even though precedent in Brazil may consolidate interpretations of the law, they do not create law, as courts must base their decisions on constitutional or statutory law. Nonetheless, courts have the power of judicial review and may invalidate unconstitutional statutes. Most case law has only persuasive authority, but judges follow decisions from higher courts as a common practice.
Brazil has federal and state courts and specialized independent court systems, such as labor, electoral, and military courts. At the top of the judicial system, the Federal Supreme Court (Supremo Tribunal Federal or STF) can hear appeals on constitutional matters, and has original jurisdiction over “direct actions,” challenging the constitutionality of statutes. There is also the Higher Court of Justice (Superior Tribunal de Justiça or STJ), which hears final appeals on the interpretation of federal statutory law.
Facade of the Federal Supreme Court. Photo: Dorivan Marinho/SCO/STF
Comparing Legal Research in Brazil and the U.S.
In some respects, researching the law in Brazil and the U.S is similar. When facing a new topic, lawyers first look at secondary sources and then continuously narrow their research looking at applicable codified law and case law. However, two main differences set apart legal research in the U.S. and Brazil: the use of electronic research tools and the relative weight of primary and secondary authority in legal reasoning.
A. Research Tools
In Brazil, practitioners do not have access to comprehensive legal research products such as Lexis+ or Westlaw Edge. Some paid legal research services offer access to databases of primary and secondary authorities, newsletters, and alerts on new statutory or case law. Examples of those services are Plataforma Forum and Revista dos Tribunais Online. As a judge in federal court, I have access to CAJU, a service provided by the Federal Justice Council with subscription to most of Brazilian legal databases of secondary authority, but like many other practitioners, I would mostly research secondary authority in treatises, which are the basis of legal education in Brazil.
In the U.S., after researching a treatises, I would use Lexis or Westlaw to access statutory and case law. In Brazil, I would access the Legislation Portal at the President’s Office website. At this portal, one can research the Constitution, the various codes, federal statutory law, and regulations. Unlike the United States, Brazil does not have a single code encompassing all federal statutory law. Brazil has eighteen different codes, one for each area of law, and thousands of non-codified statutes. Brazilian students devote a reasonable time in law school learning about the different codes and statutes that may apply in a specific area of law. After graduation, a good lawyer will follow the Legislation Portal’s daily newsletter. The Legislation Portal does not generally provide cross-references between statutes. The statutes are organized chronologically and not by area of law, as in the U.S Code. On the other hand, a lawyer can search the Portal using keywords. The Portal displays the legislation on pages searchable on the internet. All legislation on the Portal is up to date, and every document has references to modifying statutes or amendments.
After collecting information on the secondary sources and narrowing the applicable statutory law, a practitioner’s next step is usually researching case law. Once again, this step would be much simpler in the U.S. using Lexis or Westlaw. In Brazil, lawyers usually research case law using court’s individual websites, which offer handy and reliable free tools for researching case law, but not in a comprehensive, unified portal. In my practice, I would generally start at the Supreme Federal Court’s and Higher Court of Justice’s webpages for two primary reasons. First, in Brazil, federal and constitutional laws are often controlling. The Brazilian Constitution is extensive and has provisions related to several fields of law. So, even topics such as patent law or family law often come before the Supreme Court. Second, the higher courts in Brazil do not have discretionary certiorari procedures. Thus, the Brazilian higher courts receive and decide hundreds of cases every year, and there is a considerable chance of finding precedent helping my reasoning.
The courts’ websites offer handy and reliable free tools for researching case law. The Supreme Federal Court (STF), for instance, offers a search engine on which a lawyer can research cases using keywords. A case on that database may have specific references to secondary authority, codified law, and precedents cited in the opinion. However, different than Lexis or Westlaw, there is no yellow or red flags to show a case may have been overruled or received a negative treatment in a subsequent decision.
B. Legal Culture and the Weight of Authority
The second structural difference researching the law in the U.S. and Brazil is the relative weight of primary and secondary authority in legal reasoning. In the U.S., the framework of stare decisis lays a considerable weight on binding precedent. Precedent is also essential in Brazil, and some judicial decisions are binding authority. However, there is no general principle of stare decisis, and judicial decisions are binding only in particular instances, mostly related to Federal Supreme Court’s decisions on constitutional matters. Most of precedent in Brazil has mere persuasive value. Precedent from the Supreme Federal Court or the Higher Court of Justice has a powerful, persuasive force. A decision from an appellate court in the trial court’s jurisdiction also has a relevant persuasive power, but it is not necessarily more persuasive than a decision from a different appellate court. For instance, when I draft a decision in my court, I will research case law from the appellate court in my circuit. However, if the only on-point decision from my circuit is an old one, I could as well use a newer decision from a different circuit that better reflects the current law.
Higher Court of Justice (STJ) –Plenary of the 1st Section – Judgment Session. Photo: Sandra Fado, CC BY-ND
In addition, secondary sources may play a much more significant role in legal reasoning in Brazil than they would in the U.S. Treatises and law review articles do not have the same force as on-point precedent. However, they may have a similar if not greater persuasive appeal than judicial decisions that do not cover facts resembling the disputed case. This trend comes from the Brazilian legal culture and its civil law origin. While courts in the U.S. put a distinct value on legal certainty (which lays the foundation for the stare decisis doctrine), Brazilian courts tend to see justice in individual cases as a higher value. In practical terms, Brazilian courts are more willing to find distinguishing factors from precedent if they think justice would be better served, even at the expense of law’s predictability. Thus, when researching the law in Brazil, secondary sources play a role that goes beyond helping a lawyer find a roadmap for statutory and case law.
My experience researching the law in the U.S. is still ripening, so drawing conclusions would be premature at this point. This post’s goal was to give lawyers from Brazil and the U.S. an idea of what they could expect while researching the law in a country with a different legal tradition. Legal research’s purpose does not change when we cross borders. Lawyers and courts need to find authoritative sources to support their arguments and assessments. However, how lawyers and courts research the law may vary from country to country. I noticed two main differences between researching the law in Brazil and the U.S. First, while legal researching in the U.S. predominantly relies on comprehensive paid research tools, in Brazil, research tools mainly used are free, official, non-integrated, online resources. Second, while stare decisis is a core, general principle of U.S. law, giving precedent the spotlight in legal reasoning and researching, precedent and secondary authorities may have similar weight in Brazil when there is no binding, on-point decision.
A question that remains open is whether those differences are independent. Maybe the comprehensive legal tools one can use in the U.S. only reflect a difference of technology and economic capacities, but maybe they exist primarily because the U.S. legal culture demands a precise analysis of precedent that is not required in Brazil. I would be only guessing trying to answer this question, but if I had to guess, I would put my money on legal culture being the most critical factor shaping differences in legal research.
[i] Alceu Mauricio Junior has been a Federal Judge in Brazil since 2001 and is currently an LL.M. candidate at Georgia State University College of Law. He holds a Ph.D. in constitutional law and has a master’s degree in public law. LinkedIn.
For all of you 1Ls, I am sure you are busy studying for your Criminal Law final. When I took it, the world was turning upside down as COVID-19 had just hit and our classes were going entirely online. Luckily, I had a lot of time on my hands for studying, since there was little else to do in the world. During my Finals prep, I found Examples & Explanations for Criminal Law to be very helpful.
This study aid is immediately useful for its easy-to-understand definitions for key criminal law terms. It does an especially good job of distinguishing the many closely-related terms and concepts studied in the course, such as first-degree murder, second-degree murder, felony murder, and manslaughter. It also explains the often-confusing distinctions between the differing approaches to defining crimes like these, including thorough coverage of the Model Penal Code.
Like others in the E&E series, this study aid also includes a variety of illustrative practice problems, each coupled with a thorough explanation of its answer. This format helps you to become more familiar with applying the law to a variety of hypotheticals. The practice problems in the Criminal Law E&E were also shorter than others I’ve encountered, which makes them easier to incorporate into your study routine. You are able to practice issue-spotting and analysis without being forced to read through a hypo that drags on for multiple pages. While it is important to do full-length practice problems and write out full answers, the shorter hypos in this study aid are a great resource for quick analysis, and a good way to quickly see whether you are on the right track.
Whether you just need to brush up on some key concepts or run through some questions in an exam-like format, Examples & Explanations for Criminal Law is a good choice. You can find the most up-to-date version of this study aid in print. We also have the previous edition available online through the Aspen Learning Library, where it can be used in your browser, or with the associated app.
By Ross Crowell, Law Library Sports Law Correspondent
As the men’s NCAA Tournament just wrapped up with Kansas taking down North Carolina in the National Championship, one interesting legal issue that often arises around the tournament is the NCAA’s trademark on the term “March Madness”.
The NCAA has “aggressively protected” its trademarked marketing programs, including “March Madness”. The first time the phrase was first used as a reference to the NCAA Tournament was in 1982 by announcer Brent Musberger. The NCAA attempted to trademark the term in the 1990s, but the term was already trademarked by the Illinois High School Association, which previously purchased the term’s trademark rights from a Chicago television company.
The Illinois High School Association ended up suing an NCAA licensee to enjoin it from the use of the term. However, the NCAA won, as the Seventh Circuit found that “March Madness” had become a dual-use term, as it could reference both the Illinois High School Association and NCAA basketball tournaments. While both associations used the term for a period of time, the NCAA ended up buying out the Illinois High School Association’s ownership of the trademark.
Along with “March Madness”, there are several other basketball tournament terms that the NCAA has trademark protection over, such as “Elite Eight”, “Final Four”, “68 Teams, One Dream”, “March Mayhem”, “March to the Madness”, “Road to the Final Four”, “Selection Sunday”, “The Big Dance”, and even “Read to the Final Four”, among many other terms. Thus, the use of the term “March Madness” or any of these other NCAA trademarked terms requires NCAA approval.
As the NCAA has trademark rights to this term, that means the term cannot be used as a catchphrase by anyone else, even in an unrelated industry. For example, a local country club could not promote a golf tournament under the name “March Madness”, despite the event being completely unrelated to the NCAA basketball tournament.
While it is impossible for the NCAA to find every commercial use of the term in violation of its trademark protection, the NCAA often sends cease-and-desist letters to owners of bars, restaurants, and other companies that are using the trademark without a license.
The NCAA strictly enforces potential trademark infringements in order to maintain the rights to their trademarks. If the NCAA does not enforce protection of their trademarked terms, they could lose the rights to their protected use of the terms. For example, the terms “thermos”, “yo-yo”, “laundromat”, and “hacky sack” were once trademarked, but became revoked once the terms became generic due to not being protected by the terms’ owners.
Thus, while the NCAA may appear aggressive for vigorously protecting the use of “March Madness” and other trademarked terms, they police the use of the term in order to maintain their trademark privileges. The NCAA likely does not want “March Madness” to become a generic term, so it must enforce the use of the term, even if the use by other parties does not impact the NCAA’s business interests.
The biggest shift relates to increased importance of streaming rights. Amazon has shaken things up being a new player in this business, as they now have the exclusive rights to stream 15 Thursday Night Football games for the 2022 season on Amazon Prime.
In addition to current broadcasters, some big-name former players are also in consideration for these roles. Recently retired 7-time Super Bowl champion Tom Brady reportedly will be contacted by Amazon and Fox to gauge his interest in broadcasting. Drew Brees, who led the New Orleans Saints to a Super Bowl, was on television last season for NBC and could be poached by one of the competing networks.
However, Brees only has one year of experience on television and Brady has not broadcasted any games, as he retired just over a month ago. As these contracts for broadcasters rival what the top players in the NFL are paid, it is a bit of a risk to hire someone with inexperience. However, the names of Brees and Brady likely will draw in many fans that would want to tune in to their broadcasts. The networks will have to carefully weigh these various considerations when negotiating these complex employment contracts.