Legal research
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Introduction
Finding legal information in the United States can be difficult and/or confusing for the layperson. Electronic databases such as LexisNexis or Westlaw may only be accessible for those who can afford it. Even with access to these databases, those without legal training may find them to be overwhelming. This article aims to shed some light on the legal research process well as recommend places on the internet where the layperson can get access to free legal resources. First, however, some background information is in order.
What is the law?
Most people think that the law is just about rules. However a broader definition of law is needed to fully understand the legal research process. 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. The main problem areas of the legal research task usually revolve around 1) selecting legal authorities, and 2) selecting the right search terms to find the legal rules in the resource that is being searched. This is true, by the way, of both print and online research.
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 source leads to and explains the primary authorities (often by way of copius footnote references). 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 for someone who is new to legal research is to use secondary sources to get a general overview, and then use the footnote references to get to the cases, statutes, and regulations that they need.
Another major distinction is between what is called 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. This is where things get murky for most people. A court wants to see citations to cases, statutes, and regulations. However, just because something is a primary authority (such as a case) does not mean that the court has to follow it.
For example, if you are in a Pennsylvania court and you find a case that looks like it may be useful which was decided by an ALABAMA court, the Pennsylvania court does not necessarily have to follow the Alabama decision. In this instance, the primary authority is a persuasive authority in the eyes of the Pennsylvania court. The reason why this is so has to do with the concept of jurisdiction.
The concept of jurisdiction
Jurisdiction is the area in which a court or other government body is empowered to act. Jurisdiction can be either geographical (most common) or by subject. There is a jurisdiction for the federal government of the United States 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. This is not meant to be a Civics page, so just know that from the point of view of the law librarian each of these branches of government are the sources of law in the US. They produce books (or databases) where you can find the primary authorities associated with each of these entities.
Common law versus civil law
There are different aspects of the law too, which make the going more difficult when it comes to legal research. For example, much of our law in the U.S. 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 however operate under a civil law (legal 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.
For the layperson, this means that it is often quite difficult to determine what "the rule" is. 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? Think of racial segregation in the United States, for example. The case may eventually need to be decided by the U.S. Supreme Court. However, if the Supreme court declines to hear the case (which it does the majority of the time), then the highest court of the jurisdiction in which the case arose gets the last word.
Judicial branch sources
The Judicial branch is the court system. Each jurisdiction in the US judiciary (federal and the fifty states) has any number of courts, usually one of three types: 1) a trial court, 2) an appeals court, and 3) 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.
The decisions of the federal US Supreme court are "binding" on all of the courts in the United States. The decisions of the Supreme court of a particular state are binding on the courts within that state, and so on. 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.
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 US Supreme Court opinions. A series of FOIA requests by groups such as theTaxpayer Assets Project has obtained access to these decisions back to the beginning of their run.
The Wired Magazine article Who Owns the Law? explains some of the reasons for this patchwork of availability. If you are interested in such information access issues, try the works of Lawrence Lessig as well as the Washington Offices of the American Library Association and the American Association of Law Libraries.
The websites for the federal courts can be found at the Federal Court Locator, and the Administrative Office of the US Courts. Lexisone and the Cornell Law School Legal Information Institute allow you to search 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. TheCornell Law School Legal Information Instituteis also a good resource for finding state court websites.
Once you have found a case, you 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." Because cases cite to related cases, you can also use citators to find cases which are on the same topic. A common research strategy is to use "one good case" to find related cases. A trip to Shepard's can help you to find a case that was decided at a later point in time, which cites back to your case. The booklet How to Shepardize can help you to handle a print Shepards set in your library.
Seems straightforward enough, but laypeople can get tripped up by the fact that there are two types of thinking that are involved in finding cases. Law students are taught in law school to compare fact situations in making legal arguments (a kind of "bottom up" type of thinking). However, to find the cases to compare, they have to deal with various classification systems (kind of a "top down" thinking). The major classification system for finding law cases is the West American Digest System.
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. Other major areas of law include contracts, property, criminal law, civil procedure and Constitutional law.
Matching your thinking to the mind of the person who wrote the index can be a trying task, particularly if you are 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.
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.
You 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.
Legislative branch sources
A statute is passed by elected bodies. There is legislation for the federal jurisdiction as well as for each of the states. There is a "life cycle" to the publication of statutes which is helpful to understand how to find them. Statutes start their "lives" as a "slip law" which can be found in print or, increasingly, on the web. In print, statutes are next published in chronological order as a "session law." Paperback "advance sheets" with these session laws are found in many libraries before the hardbound session law volumes are published. Finally, the statute is arranged in subject order in books called CODES.
Some 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 sourcebookhas a lot of good information about state and federal legislation. See its list of state legislative websites and phone numbers. State statutes can also be found at the Cornell Lawschool Legal Information Institute.
Oddly enough, there is no "up to the minute" version of the federal United States Code online. The official code is usually one to two years out of date. By the way, if you actually dropped by a law library and looked for the print United States Code, you would find that it 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.
The United States Constitution is available atGPO Access.
In addition to the text of the current law itself, you may also have to research the background documents conntected 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 fulltext 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.
In this category, the hardest items to find often come from local government. You may need to track down municipal codes or local ordinances. The General Code Corporation publishes municipal codes for several, but not all, states. You can also try Govspot's local government linksto find the website for your local government. They may link to their local laws.
Executive branch sources
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 US government information is Firstgov.
The relationship between statutes and regulations means that you usually never consider just a regulation alone. You will probably have to look at the related legislation and any cases that interpret the statute and regulation. This interwined grouping of regulations, statutes, and cases is often best deciphered using secondary sources such as books and journal articles.
Secondary sources
Of course, you should always look for books and journal articles at your school or public library. See the #Getting Help section, below, for information on finding libraries. By the way, in "law library land" books are known as "legal treatises." You can find legal encyclopedias, such as Corpus Juris Secundum, and resources such as American Law Reports in a law library.
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. 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.
How do I cite to it?
Another challenge is figuring out how to cite to the items once you have them, 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.
What's out there?
Being aware of what's out there is half the battle of finding authoritative legal information on the web. Findlaw and LexisOne have already been mentioned. These are two of the best free/low cost legal research portals, so it should not come as a surprise that they are sponsored by the two main legal research database vendors, Lexis and Westlaw. 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 are several other portals and information sources you may want to try, such as Lexnotes, the Cornell Legal Information Institute, and Villanova Legal Express.
For general background reading one of the best sources for the layperson is a pamphlet by the American Association of Law Libraries (AALL)called How to Research a Legal Problem- A Guide for non-lawyers. Nolo Press publishes a lot of law for the layman titles, including Legal Research: How to Find and Understand the Law.
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, such as the Terri Schiavo case. 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, such as the ACLU, for example.
General search tips
Sometimes people get so caught up in the fact that they are searching for laws that they leave their general search skills at the door of the law library. Often the information you need may be in a secondary source such as a legal dictionary, legal encyclopedia or journal article index/database. You have probably used all of these resources at one time or another - just not the law versions. If you do encounter an unfamiliar source in the law library, the first thing you should ask yourself is "what is it like?" Can I use it the same way I use a dictionary, an encyclopedia (the index refers to a volume in the main set), or a yellow pages?
Also, remember that no matter what the topic, no matter what the format (print or electronic), there are only two ways of searching for anything. You either 1) have some information about the item you are searching (known item search) or 2) are looking for a topic in general but don't have a particular item in mind (subject search). Most print and electronic sources will have features that support both of these methods of searching.
This becomes particularly important when looking at print law books, because in addition to the traditional index and table of contents, they may have tables of cases, tables of statutes, and other listings which will tell you whether a particular item is discussed. Don't overlook those types of timesavers.
Another general research practice to keep in mind is that when searching, you will probably be doing one of two things: 1) doing a broader search or 2) doing a more narrow search. Usually it works better to try a broad search in secondary sources before narrowing your search down to a more specific primary source, such as an annotated code. Targeting a specific jurisdiction works well. If you are in a Pennsylvania court, look in legal encyclopedias, books, etc. which are specifically targeted to Pennsylvania.
When searching databases, the smaller the database the better. If you are doing a subject search in a database you can broaden your search by using fewer search terms, using a broader category as a search term (animal instead of bird, for example), using an OR search for several synonyms ("assisted suicide" OR euthanasia), or searching a larger database (all cases rather than Pennsylvania cases, for example). Doing an AND search using more search terms generally narrows the search.
Research strategy
There is no one right way to do legal research. There are however practices that have proven to be more efficient and cost effective. Some have been mentioned previously in this article such as: use secondary sources if you are unfamiliar with the area of law and use "one good case" to lead to other primary and secondary sources. In addition to these rules of thumb. There is an overall "game plan" that is taught in the first year of Law school. The details vary according to the textbook, but it generally goes something like this:
- 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 indepth, 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
- 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 books below are good resources for finding out more about legal research and research strategies:
- The Process of Legal Research by Christina L. Kunz et.al
- Legal Research in a Nutshell by Morris L. Cohen et.al
- Basic Legal Research: Tools and Strategies by Amy E. Sloan
- Legal Research: How to Find & Understand the Law by Stephen Elias
- Finding the Law : An Abridged Edition of How to Find the Law by Robert C. Berring et.al
- Fundamentals of Legal Research by Roy M. Mersky and Donald J. Dunn
- Law of the Super Searchers, by T.R. Halvorson, sheds light on the search techniques used by law librarians and other top legal researchers.
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 the best places to start in both print and electronic format for a wide variety of legal topics.
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.
Source
The original version of this article resides at http://vls.law.villanova.edu/staff/yjones/layman.htm.