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Substance Checking, Example 4: The Work Lacks a Citation to a Statute
Scenario: the author states that in Tennessee, a noncompetition agreement with most healthcare providers will be reasonable if it lasts no more than two years or falls within specific geographic parameters.
Figure out the source: logic should tell you this is either from case law or a statute, but it makes sense to search statutes first, as a current, valid statute would be the most important authority.
Note: there’s no statute on general noncompetition agreements in Tennessee; that’s why one has to rely on case law in the above example.
Note: if one limited the inquiry to cases alone, it would be easy to miss a relevant statute and have an incorrect sense of the law. How? A case law search might find cases that were decided before the statute cited below came into effect and thus get an incorrect sense of the law.
Find the source: in addition to searching a Tennessee statutes database on Lexis, West or Bloomberg, it would be wise to search a good, current secondary source such as the Tennessee Practice Series for noncompetition agreement physician.
Both methods should lead to the Tennessee statute dealing with restrictions on health care provider practice, Tenn. Code Ann. § 63-1-148.
Confirm the substance: make sure the statute says what the author says it says: read the statutory language and make sure that the contents have been accurately represented by the author. This summary is incorrect as both the time and distance elements are required by this statute. The “or” should be replaced with “and.” Flag the change for the author or the journal editor.
Validate the statute:
Use KeyCite or Shepard’s to confirm that the statute has not been repealed by the legislature or deemed unconstitutional by a court; note any pending legislation that would impact the author’s statement or argument;
Consult notes of decision to confirm that the statute hasn’t been interpreted by a court in a way that conflicts with the author’s interpretation.