Legal Research In the United States
From Wikipedia, the free encyclopedia
 |
This article is orphaned as few or no other articles link to it. Please help introduce links in articles on related topics. (December 2007) |
Contents |
[edit] What is Legal Research?
"Legal research is the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation."
From: J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 8th ed. (Foundation Press, 2002) p. 1.
This article focuses on the process of finding legal documents issued by courts, legislatures and other government entities in the United States. Finding legal information in the United States can be challenging. Many lawyers use electronic databases such as LexisNexis or Westlaw to access legal information. However, these resources may not be accessible to all. Special focus is given in this article to finding free legal materials on the Internet. As this article discusses a process, it is somewhat informal in tone.
The next section of this article provides necessary background for understanding the process of legal research. Concepts such as law, legal authority and jurisdiction are taught to law students during their first year in Law School. The process of legal research is then discussed, followed by discussion of the primary sources of law (cases, statutes, and regulations).
[edit] Background Concepts
[edit] What is the law?
Merriam-Webster's Dictionary of Law defines the law as "A rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority." In particular, it is the concept of authority that drives much of legal research. Whether searching in print or online, the challenges of legal research are usually
- selecting appropriate legal authorities,
- selecting appropriate search terms to find the legal rules in the resource that is being searched.
[edit] The concept of authority
There are many types of legal authority. However, the main distinction is between primary authority and secondary authority. Primary authority generally consists of case law, statutes, and regulations which are cited in legal documents. A secondary authority leads to and explains the primary authorities.
Because it is hard get an overview of how an area of law works by reading the cases, statutes, and regulations alone, a common research strategy is to use secondary sources to get a general overview, and then use the footnote references to cases, statutes, and regulations.
Another major distinction is between mandatory authority and persuasive authority. Mandatory authority is an authority that the court must follow. Persuasive authority is one which the court may optionally follow. Just because something is a primary authority (such as a case) does not mean that the court has to follow it. For example, a Pennsylvania court does not necessarily have to follow an Alabama decision. In this instance, the primary authority is a persuasive authority in the eyes of the Pennsylvania court. This is due to the concept of jurisdiction.
[edit] The concept of jurisdiction
Jurisdiction is the area in which a court or other government body is empowered to act. Jurisdiction is most commonly geographical but can be by subject. There is a jurisdiction for the United States federal government as well as for each of the fifty states. Within each of these jurisdictions, there are organs of the Judicial, Legislative, and Executive branch of government. These branches of government further subdivide. From a law librarian's view, each of these branches of government are the sources of law in the U.S. They produce books (or databases) where one can find the primary authorities associated with each of these entities.
[edit] Common law versus civil law
Much of United States law comes from the common law, or courts. This is in addition to any statutes and regulations which apply to a legal problem. While legislatures can pass statutes, it is up to the courts to interpret their meaning. Many countries operate under a civil law system, where statutes are the primary source of law.
How attorneys think about the common law differs from how they think about statutes. In the common law system, the basic assumption is if there is a case from the past which has facts and legal issues which are similar to the case currently before the court, the outcome of the past case should control the outcome of the present case. This concept is often referred to as precedent. A lawyer is often engaged in the task of finding a case that is "on point," or as close to his or her fact situation as possible.
This means that it is often quite difficult to determine what "the rule" is for any given legal issue. In many instances figuring out what the law is consists of comparing many different cases to the fact situation at hand. Rather than an absolute yes/no or true/false answer, the resolution may have to be considered on a strong/weak scale. How similar/dissimilar is one case (or fact situation) from another? One court may decide an issue one way, while another might go the other way. Does the precedent need to be abandoned altogether because of public policy reasons? Depending upon the issue involved, the case may eventually need to be decided by the U.S. Supreme Court. If the Supreme court declines to hear the case, then the highest court of the jurisdiction in which the case arose gets the last word.
[edit] The Process of Legal Research
Although this is a process oriented article, there is no one right way to do legal research. There are however practices that have proven to be more efficient and cost effective. There is an overall "game plan" that is taught in the first year of Law school. The details vary according to the textbook, but a general search strategy might be:
- frame the Issue (try to figure out what the case is about/ what legal issue or issues you will need to research)
- brainstorm search terms (think up synonyms - assisted suicide? right to die? euthanasia?
- determine jurisdiction and time frame (do you have a lot of time to research this? Usually not. You may have to make due with a quick and dirty resource instead of an in-depth, ever so scholarly one)
- decide which format to use (print or electronic- this often just depends on what you have access to)
- locate, read, and update secondary sources
- locate read and update primary authority (cases, statutes, and regulations)
- lookup rules of procedure, ethics, non-legal and other materials if needed
- repeat the above steps, as needed, depending on your search results.
Adapted from The Process of Legal Research by Christina L. Kunz et.al
The legal research textbooks below are good resources for finding out more about legal research and research strategies. Most of the titles offered have an abbreviated citation format with no date (look for the latest revision):
- Berring, Robert C. and Elizabeth A. Edinger. Finding the Law. (West Group).
- Roy M. Mersky and Donald J. Dunn. Fundamentals of Legal Research. (Foundation Press).
- Morris L. Cohen & Kent C. Olson, Legal Research in a Nutshell. (Thomson West).
- Morris L. Cohen, Robert C. Berring, and Kent C. Olson, How to find the law. (West Publishing, 1989).
- Elias, Stephen and Susan Levinkind. Legal Research: How to Find and Understand the Law.
(Nolo Press).
- Christina L. Kunz et.al, The Process of Legal Research. (Aspen Law & Business).
- Amy E. Sloan, Basic Legal Research: Tools and Strategies. (Aspen Law
& Business).
A very good search strategy is to find a research guide before you leap. Your local library will probably have research guides on a wide variety of topics. LLRX.com and Lexnotes.com provide a wide variety of legal research guides and resources. The Zimmerman Guide provides a handful of good places to start in both print and electronic format for a wide variety of legal topics.
[edit] Judicial branch sources (Cases)
The Judicial branch is the court system. Each jurisdiction in the U.S. judiciary (federal and the fifty states) has any number of courts, usually one of three types:
- a trial court,
- an appeals court,
- a "court of last resort," often (but not always) known as a Supreme Court.
On the federal level, there is a Supreme Court of the United States, United States court of appeals, and a trial court, which is known as the United States district court. The federal appellate courts are subdivided into numbered "circuits." Pennsylvania, for example, is in the jurisdiction of the Third Circuit Court of Appeals.
In general, the decisions of a higher court in a court system may be considered "binding" on the lower courts in that court system. The decisions of the Supreme court of a particular state are binding on the courts within that state. However, the decisions of a Pennsylvania state court may or may not be followed by a federal court in the Third Circuit, which includes Pennsylvania. The status of United States Supreme court opinions is complex. Many consider these cases to be binding on all US courts as a practical matter. However, Cohen, Berring, and Olsen, in their book "Finding the Law," state:
"The Supreme Court is the court of last resort in any federal dispute and has the final word on federal issues raised in state courts. In most situation, however, it has discretion to decline to review lower court decisions and disposes of most matters by denying petitions for certiorare or dismissing appeals. Only a small percentage of the cases appealed to the Supreme Court are accepted for consideration."
From: Morris L. Cohen, Robert C. Berring, and Kent C. Olson, How to find the law. (West Publishing, 1989) p. 26.
Only a small percentage of court decisions are officially published in a print court reporter. The most published decisions are issued by the United States Supreme court. State trial courts produce the lowest percentage of published cases. Some courts provide copies of their decisions free on the web while others do not. Even if they are on the web they seldom go back before 1994, when the web first became popular. The only exception is with U.S. Supreme Court opinions.
The Supreme Court of the United States provides the text of recent opinions on its website. It is one of the best places to obtain new opinions. Supreme court opinions can also be found at the Cornell Law School Legal Information Institute, Findlaw, LexisOne,
The websites for the federal courts can be found at the Federal Court Locator, and the Administrative Office of the U.S. Courts. Lexisone and the Cornell Law School Legal Information Institute allows searching all of the federal courts at the same time. However, Lexisone only allows free searching for the last five years and the court sites accessible via Cornell typically go back to the mid nineties.
There are several websites which provide links to state court websites, such as Findlaw and LexisOne. The Cornell Law School Legal information institute is also a good resource for finding US state court websites. Cornell is a member of a world Legal Information Institute movement whose aim is to provide free access to legal information.
In print, to find the cases, legal researchers use indexes of various types. Classification systems provide index terms. For example, there may be a category of law, torts (non-crime injuries to people). There are many types of torts, or causes of Action, such as slander. These causes of actions have various elements which must be proved to establish a claim (there may also be various defenses). The general category, the cause of action and the various elements of the cause of action and defenses may all be index terms. The major classification for finding law cases is the West American Digest System.
Matching your thinking to the mind of the person who wrote the index can be a trying task, particularly to those not generally familiar with the basic legal subject areas. The key to using legal indexes is to identify not only the key facts but the legal issues which are central to the case. "Issue spotting" is a skill that lawyers hone in law school and throughout their careers as they gain experience. For the layperson, reading secondary sources, such as books and journal articles, can help.
Once a case has been found, legal researchers must make sure that it has not been overturned by a higher court. Lawyers use citators such as Shepard's citations to make sure that their case is still "good law." This process is often known as Shepardizing after the name of the service. Citators track resources, written at a later point in time, which cite back to a particular case. Because cases cite to related cases, citators can be used to find cases which are on the same topic. A common research strategy is to use "one good case" to find related cases. The booklet How to Shepardize is helpful.
Some courts provide court rules and forms free on the web while others do not. One of the largest collections of links to court rules and forms on the web can be found at LLRX.com. Legal forms can be some of the hardest documents to find because one person may call a form by one name while another person knows it by an entirely different name (neither of which may be the actual, official name of the form). Law libraries often have many sets of formbooks to search.
Legal researchers may also need the briefs and other background materials connected with a case, which are included in docket records. See the Virtual Chase for a guide to court documents as well as many other legal research guides. Other types of documents may exist in databases which cannot be searched with search engines such as Google. These 'invisible web' sources may take time to ferret out.
A Wired Magazine article Who Owns the Law? explains some of the reasons for this patchwork of availability. The works of Lawrence Lessig as well as the Washington Offices of the American Library Association and the American Association of Law Libraries are useful resources for those interested in information access issues.
[edit] Legislative branch sources (Statutes)
AS ome jurisdictions provide copies of their statutes online while others do not. You will have the most luck finding the new slip laws on the web. Far fewer provide their codes. Again, Findlaw and LexisOne can help there. The Law Librarians' Society of Washington, D.C. (LLSDC) Legislative sourcebookUnited States Code online. The official code is usually one to two years out of date. The print United States Code is one to two years out of date as well. Most lawyers use the more timely, commercially published United States Code Annotated (USCA) or the United States Code Service (USCS). They are called 'annotated codes' because they include summaries of cases which interpret the meaning of the statute. They may also include references to journal articles, legal encyclopedias and other research materials so it is good to look in an annotated code either in print or on Lexis/Westlaw as soon as you know there is a statute involved in your research problem.
In addition to the text of the current law itself, legal researchers may also have to research the background documents connected with the statute, which is known as Legislative history. Again the LLSDC guide, Federal Legislative History Research is one of the best guides on the topic. Thomas the Library of Congress legislative information service, provides the fulltext of proposed bills, bill status information (did it become a public law? who sponsored it? what committee was it referred to?), the text of debates from the Congressional Record, the full text of committee reports and other legislative information. See the guide How Our Laws are Made to see a listing of the potential documents which could be produced at each step of the lawmaking process. The Library of Congress provides access to legislative documents from 1774 through 1875 as part of its Century of Lawmaking for a New Nation digital library.
[edit] Executive branch sources (Regulations)
A legislature usually has neither the time nor the expertise to administer all of the details of a particular statute. It may, for example, pass a statute mandating clean water. However, it delegates the authority to actually implement the statute to a Government agency, such as the Environmental Protection Agency (EPA). Agencies issue administrative Regulations to implement the details of the "enabling legislation" that gave the agency authority to act.
The challenge with the executive branch is to track down the rules and regulations of federal and state administrative agencies. Luckily administrative regulations have a "life cycle" that is very similar to that of statutes. Regulations start out as an agency document, which many agencies now post on the web. They are then published in chronological order in registers, and finally are published in subject order in codes.
Federal regulations, for example, are first printed in the Federal Register, before they turn up in subject order in the Code of Federal Regulations. See the LLSDC Research Guide to the Federal Register and the Code of Federal Regulations.
Because of this "publication pattern" in order to find out if there has been a change with respect to a particular regulation a print CFR user has to go through a two step process of checking 1) the List of Sections Affected (LSA) and 2) the latest issue of the Federal Register for the current month. An online CFR user need only consult the website for the List of Sections Affected online. An e-CFR pilot project is underway to provide a version of the CFR without having to refer to a separate publication for updates.
Go to Regulations.gov to comment on proposed federal rules and regulations.
State administrative codes and registers are tracked by the National Association of Secretaries of State.
The foremost executive branch entity is, of course, the Office of the President. The Whitehouse has its own website. Presidential documents are published in the Weekly Compilation of Presidential Documentsand the Public Papers of the Presidents.
The United States Government Printing Office publishes the federal regulations and presidential documents mentioned above, in addition to many other federal information sources. If you want to find documents posted directly on agency websites, the official portal for U.S. government information is Firstgov.
The relationship between statutes and regulations means that one can usually never consider just a regulation alone. This intertwined grouping of regulations, statutes, and cases is often best deciphered using secondary sources such as books and journal articles.
[edit] Secondary sources
Books and journal articles are available at at your school or public library. See the "Getting Help" section, below, for information on finding libraries. In law libraries books are known as "legal treatises." You can also find legal encyclopedias, such as Corpus Juris Secundum, and resources such as American Law Reports in a law library.
Although it is suggested to look first to secondary sources for general background explanation, free authoritative secondary sources are even scarcer on the web than the primary sources listed above. Merriam-Webster's Dictionary of Law is available on Findlaw. All law libraries and many general libraries have a copy of Black's Law Dictionary.
The University Law Review Project allows you to search the fulltext of law journals on the web. Not all law journals provide their text on the web, however. Another way to track down law reviews is to use the website which tracks the most frequently cited law journals (just click the submit button to see the list of all journals). You might also try a general scholarly search engine, such as Google Scholar.
[edit] Citing to Legal Documents
Another challenge is figuring out how to cite to items, or how to decipher a legal citation once you have encountered one in a primary or secondary source. Good advice and sources can be found in the Wikipedia Court citation article. The main problem with online cases is that they may or may not have the official print pagination required by the major legal citation systems. The vendor neutral citation movement has made some inroads here, so there are provisions for citing to "web sources." However, it is by far easier to work with the official cites.
[edit] Major Online Legal Research Portals
Findlaw and LexisOne are two of the best free/low cost legal research portals. Findlaw is sponsored by Thomson West (the owner of the Westlaw database) while Lexisone is sponsored by the owner of the LexisNexis service. Each site has a free registration option (although only Lexis' is mandatory). Signing up for MYFINDLAWprovides you with a customizable portal to legal news, legal research resources, as well as up to 10 of your favorite websites.
There are several other portals and information sources you may want to try, such as Lexnotes, the Cornell Legal Information Institute, and Villanova Legal Express.
A great overview of the federal jurisdiction and its related legal documents can be found in A Guide to the U.S. Federal Legal System, Web-Based Publicly Accessible Sources.
What people often want are documents connected with a "hot" case or issue that has been extensively reported in the news media. Good sources for current issues are Findlaw legal news (see featured documents), Yahoo Full Coverage, Library of Congress Bills in the News, and University of Michigan Documents in the News. You can also do a web search for organizations that might be tracking the issue.
[edit] Getting help
You can find listings of various types of libraries at Libweb and Libraryspot. Yahoo has a list of public law libraries. Try a web search for county "law library" (your county). County law libraries are usually open to the public. Also, Findlaw has a list of law schools through which you can find the web pages for their law libraries. However, not all law school libraries are open to the public so call ahead for their access policies. There are a few free online reference service websites. Check to see if your local library has one.
In general, you can do a web search for ask a law librarian (your state). Some services are open to the public while others are not. The Library of Congress has an ask the librarian service for many subject areas, including law. If you are in California, try their Ask Now service. The Internet Public Library has a general "ask the librarian" service. The Government Information Online website allows you to get live chat help from a government reference librarian. For those who are more phone-oriented, the Consumer Information Center's National Contact Center at (800) 333-4636 will refer you to someone at a government agency who can answer your question about Federal programs, benefits or services. A layperson may also want to seek a referral to a low cost lawyer or legal aid organization.
