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Resources for Research Assistants

Substance Check, Example 3: Work Lacks a Case Citation

Scenario: the following sentence appears in the article that you are checking, with no accompanying citation:

"Tennessee courts will enforce noncompetition agreements if they survive a reasonableness analysis that looks at the presence or absence of consideration; the threat to the employer if there were no agreement; the economic burden on the employee; the effect on the public interest; and whether or not any time or geographic limitations are greater than what is needed to protect the employer’s legitimate business interests."

  1. Need for a citation: the author needs to cite the strongest authority possible for the proposition that Tennessee courts will act in this way.
  2. Figure out the source: the sentence suggests that this is dictated by Tennessee case law.
    1. The simplest method would be to run a search in a full-text Tennessee case law database, such as those available on Lexis Advance, Westlaw or Bloomberg Law.  Sample natural language search: enforceability noncompetition agreement reasonable. Once you find a relevant case, the headnotes can lead you to other cases that discuss similar issues.
    2. Choose the most authoritative case(s). In this instance, since it is a matter of state law, a case from the Tennessee Supreme Court would be most authoritative, followed by a decision from the Tennessee Court of Appeals; trial court decisions are never binding on anyone except the parties, so they only should be cited as persuasive authority and in instances where stronger authority does not exist.
    3. Note: if the concept of authority is confusing to you, see Chapter 1 of Amy Sloan’s Basic Legal Research: Tools & Strategies, 5th ed. (Aspen, 2012).
    4. A good recent TN Supreme Court case: Murfreesboro Med. Clinic, P.A. v. Udom, 166 S.W.3d 674, 678 (Tenn. 2005); the “landmark” case that subsequent cases and secondary sources cite to: Allright Auto Parks, Inc. v. Berry, 219 Tenn. 280, 285-86, 409 S.W.2d 361, 363 (1966).
  3. Confirm the substance: make sure the cases say what the author says they say: on the pages cited, these cases do indeed describe a reasonableness analysis that has been accurately summarized by the author. Flag any problems for the author or journal editor.
  4. Validate: make sure the cases are still “good law.”
    1. Check the KeyCite or Shepard’s signals to ensure that the cases have not been overruled or seriously questioned with regard to the proposition for which they are being cited. Flag any problematic cases for the author or journal editor.
    2. Confirm the state of the law by looking at multiple cases and respected secondary sources. Why secondary sources?
      1. To confirm the author’s interpretation of the law: imagine that the legislature passed a statute to counteract a court’s holding. KeyCite or Shepard’s wouldn’t catch this, at least not in an obvious way, but a good, current secondary source would; and
      2. To confirm that the language used belongs to the author (it’s easy but problematic to copy another author’s description of the state of the law--be sure that any statement of primary law is in your/your author’s own words or that it properly references the other author’s interpretation).