Legal research is the process of identifying and retrieving information to support legal arguments and decisions. Finding relevant legal information can be challenging and may involve the use of electronic research tools as well as printed books and materials. However, many resources that are useful for legal research are fee-based, and many are not easily accessible.
Primary sources
Primary sources of law are the original sources of the law. Such sources include statutes, government regulations, case law and the text of the state and federal constitutions.
Judicial branch sources (Cases)
The Judicial branch is the court system. Each jurisdiction in the U.S.
judiciary
The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
(federal and the fifty states) has any number of
courts
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
, usually one of three types:
# a
trial court
A trial court or court of first instance is a court having original jurisdiction, in which trials take place. Appeals from the decisions of trial courts are usually made by higher courts with the power of appellate review (appellate courts). Mos ...
,
# an
appeals court
A court of appeals, also called a court of appeal, appellate court, appeal court, court of second instance or second instance court, is any court of law that is empowered to hear an appeal of a trial court or other lower tribunal. In much of ...
,
# a "
court of last resort
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
," often (but not always) known as a Supreme Court.
At the federal level, there is a
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
,
United States court of appeals
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* ''United'' (2003 film), a Norwegian film
* ''United'' (2011 film), a BBC Two f ...
, and a trial court, which is known as the
United States district court
The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
. The federal appellate courts are subdivided into numbered "circuits." Pennsylvania, for example, is in the jurisdiction of the
Third Circuit Court of Appeals
The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a federal court with appellate jurisdiction over the district courts for the following districts:
* District of Delaware
* District of New Jersey
* E ...
.
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, but U.S. Supreme Court decisions are final on both federal disputes and federal issues raised in state courts.
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.
Cases on the web can often be found via the website of the individual court. The
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
, for example, provides the text of recent opinions on its website. It is one of the best places to obtain new opinions. The
United States court of appeals
United may refer to:
Places
* United, Pennsylvania, an unincorporated community
* United, West Virginia, an unincorporated community
Arts and entertainment Films
* ''United'' (2003 film), a Norwegian film
* ''United'' (2011 film), a BBC Two f ...
and State courts can also be a source of free 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
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
(non-crime injuries to people). There are many types of torts, or
causes of Action
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...
, 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
The West American Digest System is a system of identifying points of law from reported cases and organizing them by topic and key number. The system was developed by West Publishing to organize the entire body of American law. This extensive taxon ...
.
The key to using legal indexes is to identify not only the key facts but the legal issues which are central to the case. Keyword searches in databases may also be a challenge, because people may describe legal concepts in varying ways. "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
citator In legal research, a citator is a citation index of legal resources, one of the best-known of which in the United States is Shepard's Citations. Given a reference of a legal decision, a citator allows the researcher to find newer documents which ...
s such as
Shepard's Citations
''Shepard's Citations'' is a citator used in United States legal research that provides a list of all the authorities citing a particular case, statute, or other legal authority. The verb ''Shepardizing'' (sometimes written lower-case) refers to ...
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.
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). The same form may be known by a different name in a different jurisdiction. 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
Docket may refer to:
* Docket (court), the official schedule of proceedings in lawsuits pending in a court of law.
*Agenda (meeting) or docket, a list of meeting activities in the order in which they are to be taken up
*Receipt
A receipt (a ...
records. Other types of documents may exist in databases which cannot be searched with search engines such as
Google
Google LLC () is an American multinational technology company focusing on search engine technology, online advertising, cloud computing, computer software, quantum computing, e-commerce, artificial intelligence, and consumer electronics. ...
. These
'invisible web' sources may take time to ferret out.
Legislative branch sources (Statutes)
Some jurisdictions provide copies of their statutes online while others do not. You can often find new, or "slip laws" on the web (arranged in chronological order), as well as the subject arrangement of the statutes, known as the codified version, or code. The official code for federal statutes, the ''
United States Code
In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
'' is usually one to two years out of date both in print and on the web. Legal Researchers often use the more timely, commercially published ''
United States Code Annotated'' (USCA) or the ''United States Code Service'' (USCS). The USCA is available on
Westlaw
Westlaw is an online legal research service and proprietary database for lawyers and legal professionals available in over 60 countries. Information resources on Westlaw include more than 40,000 databases of case law, state and federal statute ...
while the USCS is available on
Lexis. 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.
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
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken. Legislative his ...
. Legislative history is used to find what is known as the "legislative intent," or purpose behind statutory language. Again, legislative history documents may be found both in print in law libraries and government documents libraries, as well as in online formats such as
Lexis and
Westlaw
Westlaw is an online legal research service and proprietary database for lawyers and legal professionals available in over 60 countries. Information resources on Westlaw include more than 40,000 databases of case law, state and federal statute ...
.
THOMAS
Thomas may refer to:
People
* List of people with given name Thomas
* Thomas (name)
* Thomas (surname)
* Saint Thomas (disambiguation)
* Thomas Aquinas (1225–1274) Italian Dominican friar, philosopher, and Doctor of the Church
* Thomas the A ...
the
Library of Congress
The Library of Congress (LOC) is the research library that officially serves the United States Congress and is the ''de facto'' national library of the United States. It is the oldest federal cultural institution in the country. The library is ...
legislative information service, provides the fulltext of proposed
bill
Bill(s) may refer to:
Common meanings
* Banknote, paper cash (especially in the United States)
* Bill (law), a proposed law put before a legislature
* Invoice, commercial document issued by a seller to a buyer
* Bill, a bird or animal's beak
Plac ...
s, 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. The Library of Congress provides access to legislative documents from 1774 through 1875 as part of its
American Memory
American Memory is an internet-based archive for public domain image resources, as well as audio, video, and archived Web content. Published by the Library of Congress, the archive launched on October 13, 1994, after $13 million was raised in ...
Project Century of Lawmaking for a New Nation'' digital library.
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
A government or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an administrati ...
, such as the
United States Environmental Protection Agency
The Environmental Protection Agency (EPA) is an independent executive agency of the United States federal government tasked with environmental protection matters. President Richard Nixon proposed the establishment of EPA on July 9, 1970; it be ...
. Agencies issue administrative
Regulations
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
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. Similar to statutes, regulations are often 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
The ''Federal Register'' (FR or sometimes Fed. Reg.) is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices. It is published every weekday, except on feder ...
, before they are published in subject order in the
Code of Federal Regulations
In the law of the United States, the ''Code of Federal Regulations'' (''CFR'') is the codification of the general and permanent regulations promulgated by the executive departments and agencies of the federal government of the United States. ...
.
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. The
United States Government Printing Office
The United States Government Publishing Office (USGPO or GPO; formerly the United States Government Printing Office) is an agency of the legislative branch of the United States Federal government. The office produces and distributes information ...
has an e-CFR pilot project is underway to provide a version of the CFR without having to refer to a separate publication for updates.
The foremost executive branch entity is, of course, the Office of
President of the United States
The president of the United States (POTUS) is the head of state and head of government of the United States of America. The president directs the executive branch of the federal government and is the commander-in-chief of the United Stat ...
. The
White House
The White House is the official residence and workplace of the president of the United States. It is located at 1600 Pennsylvania Avenue NW in Washington, D.C., and has been the residence of every U.S. president since John Adams in 1800. ...
has its own website. Presidential documents are published in the Federal Register and in
Title 3 of the Code of Federal Regulations CFR Title 3 – The President is one of 50 titles composing the United States Code of Federal Regulations (CFR) and contains the principal set of rules and regulations issued by federal agencies regarding the Executive Office of the President of t ...
(CFR). Presidential documents can also be accessed in the Weekly Compilation of Presidential Documents and the
Public Papers of the Presidents
The ''Public Papers of the Presidents'' contain the papers and speeches of the presidents of the United States that were issued by the White House Office of the Press Secretary. The series constitutes a special edition of the ''Federal Register''.
...
available in print and at the
United States Government Printing Office
The United States Government Publishing Office (USGPO or GPO; formerly the United States Government Printing Office) is an agency of the legislative branch of the United States Federal government. The office produces and distributes information ...
website.
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.
Secondary sources
Legal reference books and journal articles are available at some public libraries and at law school libraries. In
law libraries
A law library is a special library used by law students, lawyers, judges and their law clerks, historians and other scholars of legal history in order to research the law. Law libraries are also used by people who draft or advocate for ne ...
books known as "legal treatises" are available that summarize the law on specific subjects. Law school libraries also hold
legal encyclopedia
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
s, such as
Corpus Juris Secundum
''Corpus Juris Secundum'' (''CJS''; Latin for 'Second Body of the Law')Legal Research and Writing for Paralegals, Published by Wolters Kluwer and written by Deborah E. Bouchoux is an encyclopedia of United States law at the federal and state levels ...
or
American Jurisprudence
''American Jurisprudence'' (second edition is cited as Am. Jur. 2d) is an encyclopedia of the United States law, published by West. It was originated by Lawyers Cooperative Publishing, which was subsequently acquired by the Thomson Corporation. The ...
and resources such as
American Law Reports. Many major legal research materials may be found online, through both free services, such as
Law Library Resource Xchange
Law Library Resource Xchange is a free monthly e-journal, founded in 1996, owned, edited and published by a solo law/business librarian, researcher, and expert knowledge strategist. Content is written by the editor, as well as law librarians, att ...
,
PACER (law), and
Google Scholar
Google Scholar is a freely accessible web search engine that indexes the full text or metadata of scholarly literature across an array of publishing formats and disciplines. Released in beta in November 2004, the Google Scholar index includes p ...
, and commercial services for
Computer-assisted legal research Computer-assisted legal research (CALR) or computer-based legal research is a mode of legal research that uses databases of court opinions, statutes, court documents, and secondary material. Electronic databases make large bodies of case law easily ...
.
Law dictionaries
A law dictionary (also known as legal dictionary) is a dictionary that is designed and compiled to give information about terms used in the field of law.
Types
Distinctions are made among various types of law dictionaries.
Differentiating facto ...
can be found in many libraries, at free online dictionaries, and from online commercial services.
Many
law review
A law review or law journal is a scholarly journal or publication that focuses on legal issues. A law review is a type of legal periodical. Law reviews are a source of research, imbedded with analyzed and referenced legal topics; they also pro ...
s, other legal journals and magazines, and legal newspapers place content on the web. Not all law journals provide their text on the web, and some content may be placed behind a paywall.
Legal citation
Legal citation
Legal citation is the practice of crediting and referring to authoritative documents and sources. The most common sources of authority cited are court decisions (cases), statutes, regulations, government documents, treaties, and scholarly writin ...
s direct readers to the source of information cited within a legal document.
When conducting legal research, part of the challenge is to figure out how to cite to items, or how to decipher a legal citation encountered in a primary or secondary source. The
vendor neutral citation movement has developed to try to make citations more broadly understandable without specific reference to a particular guide to legal citation. However, it is important to use citations that will be understood by the audience for the legal research project.
See also
*
Legal treatise
A legal treatise is a scholarly legal publication containing all the law relating to a particular area, such as criminal law or trusts and estates. There is no fixed usage on what books qualify as a "legal treatise", with the term being used broad ...
*
Law dictionary
A law dictionary (also known as legal dictionary) is a dictionary that is designed and compiled to give information about terms used in the field of law.
Types
Distinctions are made among various types of law dictionaries.
Differentiating fact ...
*
Law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
*
Natural law
Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacte ...
References
Further reading
*Frans Leeuw, Hans Schmeets, ''Empirical Legal Research: A Guidance Book for Lawyers, Legislators and Regulators'', Edward Elgar Pub 2016.
* Robert C. Berring and Elizabeth A. Edinger. ''Finding the Law''. (12th Ed., West Group Publishing, 2005).
* Roy M. Mersky and Donald J. Dunn. ''Fundamentals of Legal Research''. (Foundation Press, 2002).
*
Morris L. Cohen and Kent C. Olson. ''Legal Research in a Nutshell''. (9th Ed., Thomson West, 2007).
* Morris L. Cohen, Robert C. Berring, and Kent C. Olson. ''How to Find the Law''. (West Publishing Company, 1989).
* Stephen Elias and Susan Levinkind. ''Legal Research: How to Find and Understand the Law''. (14th Ed., Nolo Press, 2007).
* Christina L. Kunz et al. ''The Process of Legal Research''. (7th Ed., Aspen Publishers, 2007).
* Mark K. Osbeck. ''Impeccable Research: a Concise Guide to Mastering Legal Research Skills''. (Thomson West 2010).
* Amy E. Sloan. ''Basic Legal Research: Tools and Strategies''. (3rd Ed., Aspen Publishers, 2006).
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