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How do I conduct legal research?

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Intro to Legal Research

  • The goal of legal research is to find primary authority (case, statute, regulation) to support a legal argument.
  • These materials are found in specialized resources, such as specialized databases, reporters, etc.
  • Legal research is not easy, and it may be time consuming, especially for students below law-school level. This doesn't mean it's impossible, only that it may take time, patience, and practice.
  • To navigate the site, click on the tabs.

 

Secondary sources are publications that describe, comment on, or analyze the law, while primary sources are publications that contain the actual text of the law. 

Examples of secondary sources:

  • Legal dictionaries and encyclopedias
    • They work like all dictionaries and encyclopedias. Often they are included in services such as Westlaw.
  • Law reviews/journals
    • They contain legal scholarship created by the academic legal community. 
    • They are run by law students
    • Article essays (called "lead articles") are written by law professors and other legal scholars.
    • Student written articles (called "notes" or "comments")
    • Both types of articles usually contain footnotes citing primary and secondary sources.
    • The footnotes are essential to researches seeking relevant primary authority
  • American Law Reports (ALR)
    • Secondary source; a combination of a legal encyclopedia and a case reporter
    • Articles are called annotations; these articles provide comprehensive coverage of very specific narrow topics
    • ALR annotations contain citations to primary sources and also to law review articles
    • Annotations for topics covered also provide a review of the current state of the law
    • ALR annotations, while very useful, are not considered authoritative sources of the law (think of them as reference materials)
    • Easiest way to search ALR is by using Westlaw
  • Restatements
    • Secondary resource published by The American Law Institute (ALI).  
    • They cover a variety of fields, and they restate the common law rules as they have developed over time in the majority of U.S. jurisdictions.  
    • They also include commentary, hypotheticals, and case summaries
    • They carry substantial weight as persuasive authority
    • Divided into chapters and subdivided into numbered sections statement of the black letter law
    • comment (comprehensive explanation)
    • illustrations (demonstrate application in hypothetical situations
    • reporter's note (contains historical development of the section and includes case law references)
    • Restatement volumes in PDF format can be found in HeinOnline
  • Treatises
    • Comprehensive publication on a single topic, usually written by a law professor, judge, or expert legal practitioner.
    • No single standard format. Some are monographs, others come in multivolume sets. Some are updated yearly with pocket parts (supplements), others are loose-leaf binders that are updated more frequently.
    • Most treatises don't contain the word "Treatise" in the title, so a law librarian should be consulted when in doubt.  
    • Treatises collect detailed information on a single legal issue.
    • They contain extensive references and citations to primary authority
    • They contain analysis of the topic and commentary on the law related to the topic, so they can save a lot of time
    • Treatises are only found in print.
  • Cases are opinions written by judges that resolve disputed legal
  • Researching cases is important because of stare decisis (precedent).
    • Reviewing cases from a court will help determine how that court or another court will rule given a similar situation.
  • In the U.S. legal system, the only published cases are those from intermediate appellate courts and from supreme courts.
  • Trial court decisions are not published.
  • Reporters (books that contain judicial opinions from a selection of case law decided by courts) publish cases in chronological order
  • There are two different kinds of reporters: official (published by a government entity), and unofficial (published by commercial publishers such as West or Lexis)
  • To find a case in a reporter, a citation is used
  • Citations include the name of the case, the volume number of the reporter containing the case, the abbreviation of the reporter, the first page of the case, and the year of the decision.
    • Example: Roe v. Wade, 410 U.S. 113 (1973)
  • To find this case, you would go to volume 410 of the United States Reports (this is the official reporter of the U.S. Supreme Court), and then to page 113.
  • To find the case online or in a legal database, search by citation
  • There may be multiple citations of a case when the case is reported in multiple reporters.

STATUTES

  • Laws written and enacted by the legislative branch of government.
  • Most new laws are created through statutes, so most legal research projects are started by looking at a statute rather than at cases

 

  • At the federal level, each statute is published in three versions.
    • 1st Version
      • The statute is enacted as a slip law, which is the statute by itself on a single sheet or in pamphlet form.
      • When a slip law is published, it will be assigned a Public Law Number to identify it(for example, PL 116-74)
      • The PL has two parts:
        • The first number is the number of the Congress that passed the law (116 = 116th Congress)
        • The second number refers to the chronological order in which the law was passed (74 = the 74th law passed in the 116th Congress)
      • Slip laws are available in print or onlie through the congress.gov website.
    • 2nd version
      • The statute is published as a session law. These are the slip laws bound chronologically by congressional session (each Congress lasts 2 years and is divided into two sessions)
      • The official U.S. government compilation of federal session laws is called The Statutes at Large
      • Researching using slip or session laws is difficult because neither are arranged by subject. Additionally, statutes cover several subjects, and the subject you're looking for may not be apparent from the title of the statute. A health care act, for example, may include tax provisions.
      • Each time a statute is amended, a separate public law is passed, so it may be necessary to read through several slip laws to find the latest version. This is solved by using the 3rd version of the statute, which is published in a code.
    •  3rd version
      • A code arranges statutes by topic instead of chronologically, it indexes statutes to make subject search easier, and incorporates any amendments or repealed language, so the version of the statute is always the latest.

CODES

  • Official Codes
    • The official codification of federal statutes is the United States Code (U.S.C.)
    • The U.S.C. is organized into 53 subject Titles
    • Each title represents a major subject area (for example, Transportation)
    • The U.S.C. is published in full every six years
    • Cumulative bound supplements are issued each year in between to keep the publication up to date.
    • Publication may lag and libraries may not receive code sets for years. Also, the code doesn't contain any explanatory materials that may clarify the statutory language, so it's more effective for researchers to use an unofficial code.
  • Unofficial Codes
    • An unofficial code is published commercially for the purposes of legal research.
    • Unofficial codes include references (called "annotations") to primary and secondary sources that relate to each code section, and are updated much more frequently than the U.S.C.
    • The two unofficial code version of the U.S.C.
      • United States Code Annotated (U.S.C.A., published by West) and
      • The United States Code Service (U.S.C.S., published by Lexis)
    • Both sets include the entire code plus additional materials
    • All of the contents are annotated with references to case law and secondary sources that interpret the statutory language, and they have cross references to related regulations
    • These codes are available online through Westlaw and Lexis.

Administrative law

  • The body of primary law created by adminstrative agencies (part of the executive branch) of the U.S. government
  • Administrative law consists of
    • Rules and regulations that govern activities (similar to statutes)
    • Orders and decisions from administrative courts that are created to resolve disputes that arise under rules and regulations (similar to case opinions)
    • Presidential Proclamations and Executive Orders.
  • Congress gives agencies the power to create administrative law through enabling statutes, which create agencies and specify their powers.  
  • When researching administrative law, it's often helpful to begin by reviewing the enabling statute in order to better understand the agency's purpose and scope of activities.  
  • Agencies are limited to the powers delegated to them through their enabling statutes; however, courts will usually give agencies wide latitude in carrying out their mission and will defer to the agency unless it acted in an "arbitrary and capricious" manner.
  • The United States Government Manual lists every U.S. administrative agency and its functions, as well as citations to the enabling statute for each agency.
  • The Manual also contains a subject index to help locate agencies that regulate a particular area of law.
  • Once you have the citation to the enabling statute, you can look it up in an annotated code volume to find the legislation itself, as well as references to relevant primary and secondary source materials.

 

Finding Regulations

  • Administrative agencies create regulations (also known as rules) that function like legislation.  Regulations are published both chronologically and by subject.  
  • To find regulations in chronological order, use the Federal Register
  • The Federal Register is also available in HeinOnline, Westlaw, and Lexis
  • Researching regulations in a chronologically arranged publication is pretty much impossible.
  • To conduct subject research you will need to use the Code of Federal Regulations (CFR), available for free  or through HeinOnline, Lexis, and Westlaw.
  • The CFR is divided into "Titles" that group material on the same subject in the same place so that, for example, all of the transportation regulations are together. These titles don't always match their U.S.C. counterparts
  • CFR Titles are broken down into "Parts" (major subdivisions), and then Parts are subdivided into sections.
  • Using an index is the best way to access the CFR. Regulatory language is often highly technical and scientific, and without knowing the precise terms used by the agency, finding rules through keyword searching can be very challenging.
  • Westlaw provides an online index with its CFR materials