The law is an ever-changing entity. Local, state and federal legislatures continually create new laws and amend old laws. The laws are also continually interpreted by courts. Even though an area of law might seem settled, a small nuance in a particular set of facts can create an entirely new subtopic or sub-area of law. If the legislature does not agree with a judicial interpretation, it may choose to amend the law to clarify points and/or to make its intentions clear. So, besides meeting with clients, formulating case strategy, appearing in court, and a variety of other tasks, a large part of the practice of law is actually finding the law.
Legal Research – Sources
Legal research sources are divided into two categories: primary and secondary. Primary sources are sources that have the force of law. These sources include statutes, rules, regulations, and case law. Secondary sources are sources that are mainly analysis and interpretation of the law by legal scholars. They may be persuasive authority, but do not have the force of law. These include law review and journal articles, legal encyclopedias, treatises, and law digests.
Statutes are found in bound volumes. Depending on the jurisdiction, they might be called “General Statutes”, “Consolidated Laws”, or something similar. Some jurisdictions organize their statutes by title, and the titles, when strung together, may not appear to be in any kind of order. Other jurisdictions organize their statutes by topic. For example, motor vehicle laws in Connecticut might be found in title 14, while in New York they will be found in “Motor Vehicle Law”.
If you’re unfamiliar with the jurisdiction, the index volume is invaluable. In most jurisdictions, each individual volume will not have its own index. Instead, an additional volume will be published, containing the complete index for the entire set of statutes. The index is similar to any index you have seen in the past in other contexts.
Another useful tool is the table of contents. Depending on the jurisdiction, there may be a master table of contents in the first volume of statutes, in each volume, or before each group of statutes. Tables of contents are helpful because if you are unfamiliar with a subject, you will be able to read the titles of all of the statutes, which may lead you to your answer. For example, the title to one statute may be: “Corporations – licensing”. The next statute may be entitled: “Partnerships – licensing”. If you were researching the licensing of partnerships, but your research only led you to licensing of corporations, reviewing the table of contents would have led you to your answer. If nothing else, you will gain familiarity with the way the statutes are organized. Be forewarned, however – the title of a specific statute may not exactly describe the law contained therein.
Likewise, rules and regulations are published in ways similar to statutes. An example of a renowned set of regulations is the Code of Federal Regulations (the citation is C.F.R.). Regulations are rules created by administrative agencies, both federal and state. The administrative agencies are charged with the administration of government functions.
Judicial decisions are found in volumes that are typically called “reporters”, which are usually organized by court or jurisdiction. For example, the highest level court will usually have its own reporter, typically called “[State] Supreme Court Reports,” the appellate level will usually have its own reporter, typically called “[State] Appellate Court Reports,” and, if they are actually reported, the trial level courts’ decisions will usually be in a separate reporter. Many states publish their own reporters.
In addition to reporters published by the states, most judicial decisions are also included in reporters published commercially. Regional reporters are published commercially and contain judicial decisions from certain groups of states. Every decision from the highest state court will be reported in a regional reporter, and most appellate, or mid-level, state court decisions will also be included. Trial court decisions are usually not included.
Judicial decisions from the New York State Court of Appeals can be found in the official New York reporter (the citation is N.Y.), the New York State commercial reporter (the citation is N.Y.S.), and the North Eastern regional (commercial) reporter (the citation is N.E.).
The North Eastern Reporter also contains judicial decisions from Illinois, Indiana, Massachusetts and Ohio. Judicial decisions from the Connecticut Supreme Court can be found in both the official Connecticut reporter (the citation is Conn.) and the Atlantic regional (commercial) reporter (the citation is A.). Other commercial reporters include the South Western reporter (S.W.), the Southern reporter (So.) and the Pacific Reporter (P.).
Regional reporters were created to reduce the number of different publications that a law library needed to house to be complete. One would not need the New York Reports, the Illinois Reports, and the Indiana Reports, for example; only the North Eastern Reporter is necessary to have the major decisions from all those states.
It is important to note that some states do not publish their own reporters. Because publication is very costly, many states rely on the commercial reporters to publish their decisions.
There are many other reporters that also contain various judicial decisions. The United States Reports contains decisions from the United States Supreme Court. The Supreme Court Reporter and the Lawyer’s Edition Reporter, both commercially published, also contain decisions from the highest court in the country. Decisions from the United States Courts of Appeals are contained in the Federal Reporter. Decisions from the United States District Courts are contained in the Federal Supplement. While most decisions from these courts are published in these reporters, not all decisions are selected for publication.
Another useful feature of commercially published reporters is that they will often contain editorial notes about each case. Usually, cases will be prefaced with a short paragraph containing the brief facts of the case and the holding. These introductory paragraphs are helpful in that they allow one to know what the case is about without reading the entire case. As such, the relevance of the case, or lack thereof, is easily determined.
In addition to the introductory paragraph (sometimes called the syllabus), cases contained in commercially published reporters will also be prefaced by headnotes. A series of headnotes looks like a series of outlines, each followed by a statement of law. For example:
Sports Utility Vehicles
Manufacturers of sports utility vehicles are negligent if they fail to provide adequate anti-rollover mechanisms.
The number to the left of the topic, in our example , is the number of the headnote. To quickly find the section of the decision that contains the statement of law, simply find the paragraph that begins with the headnote number. Reading the headnotes and using them properly can save a great deal of time, as you may not have to read the entire case to determine whether it’s on point or relevant to your research.
The number of secondary sources is all but limitless. Every source that is not primary is, by default, secondary. The purposes of secondary sources are twofold: one, they offer explanations or interpretations of particular areas of the law; two, their usage is a good way to find primary authority. Secondary sources are not binding on the courts (i.e., they are only persuasive authority) – but they often offer good, persuasive reasoning on which a court may rely.
One may cite secondary sources in legal memoranda and briefs, but a court will not be swayed simply because, for example, Prosser and Keeton (two well respected scholars on tort law) have offered the opinion that parents should not be responsible for the torts of their children. Secondary sources are useful when there is an uncertainty in the law – for example, when the trial courts of one jurisdiction have differing opinions on a particular subject (called a “split of opinion” or “split of authority”). They are also useful for citing general trends in the law, whether national or local.
Although every secondary source cannot be detailed here, some major secondary sources are described below.
Legal encyclopedias offer excellent overviews of various legal topics. For example, if you aren’t sure what a secured transaction is, or you are not sure of the difference between a condominium and cooperative housing, a legal encyclopedia will give you a solid, basic understanding. It will also provide you with citations to other authorities that may be useful.
To research a particular issue within one jurisdiction, a good place to start is the jurisdiction’s own legal encyclopedia. If the jurisdiction does not have its own legal encyclopedia, or you want more of a national overview, turn to the two general encyclopedias, American Jurisprudence 2d and Corpus Juris Secundum.
Treatises are also useful tools if you are unfamiliar with a particular legal topic. In a way, a treatise is like an extended legal encyclopedia that addresses only one area of law. For example, one of the primary treatises on tort law is that of Prosser and Keeton on the Law of Torts. For contracts, many attorneys refer to Williston on Contracts. Some treatises are general and discuss national treatment of legal areas; others focus specifically on a particular jurisdiction. All, however, include citations to primary authority.
Restatements offer general rules pertaining to particular areas of law. They are written like statutes, but they are not controlling law unless a jurisdiction has adopted them. Written by groups of experts in specific legal areas, restatements are written on a variety of topics, including torts, contracts, product liability, and property. Restatements are very useful because they offer a basic understanding of relevant principals, and contain extensive annotations, that are divided by jurisdiction.
Digests are not primary sources, but they are one of the fastest ways to find primary authority in a particular jurisdiction. Digests contain numerous citations to judicial decisions about particular topics and subtopics. They are organized alphabetically by topic. They also include an "index" volume, a "words and phrases" volume (where you may look up particular words that may lead you to a particular topic), and extensive tables of contents. Every topic has its own table of contents, which is helpful if you’re unsure of the exact subtopic on which you should focus.
If you know the topic that you need to research, flip to the table of contents and read each subtopic until you find the area pertinent to your issue. Each subtopic is assigned a number, like a chapter number (e.g. 100.100, below). Simply find the chapter number in the subsequent pages in the topic and read the citations. Each citation is accompanied by a very brief (usually one sentence) synopsis of the holding of the decision. Many states have their own digests, and regional digests also exist. Following is an example of what a section in a digest might look like:
100.100 - Generally.
Conn. 1973. Duty is an element of negligence. Paul v. Peters, 120 Conn. 234, 214 A.2d 498.N.Y. 1992. One must owe a duty to be negligent. Andrews v. Michaels, 230 N.Y. 234, 543N.Y.S.2d 498, 487 N.E.2d 438.
100.200 - Motor vehicles Conn. 1985. All motorists owe a duty of care to all persons occupying a municipal road. Jack v. Johnson, 235 Conn. 258, 973 A.2d 864.
If you’re completely unfamiliar with a topic, but you at least know which topic you want to research, reviewing all of the citations (a) will give you an overview of the jurisdiction’s treatment of the topic, and (b) may lead you to the information you need.
American Law Reports contains lengthy articles on particular legal topics, some of which are narrower than others. Commonly referred to as "ALR", these articles often offer a view of the national treatment of a topic and include extensive annotations. The annotations are usually divided by jurisdiction, subtopics are cross-referenced, and most articles contain references to other ALR articles that are either related or may be of interest.
Law review articles, bar journal articles, and other legal periodicals can be helpful, but it should be noted that they often contain opinions about a statute, a judicial decision, or some other development in the law. While these opinions can be quite persuasive, they should be used with discrimination. These types of articles can offer excellent historical research into a particular area.
Almost every legal article, judicial decision, book, treatise or encyclopedia contains citations to other legal authorities. To fully utilize these sources, and to know how to locate a particular legal source within a publication, you must know how to decipher legal citations.
Most citations to statutes, encyclopedias, digests and treatises will look like this:
123 XXX § 456 (2003).
- 123 is the volume number.
- XXX is the abbreviation of the source.
- § means “section”.
- 456 is the section number.
- (2003) is the year of publication or year the decision was issued.
Citations to judicial decisions will look like this:
Smith v. Jones, 123 XXX. 456, 789 (3rd Cir. 1953).
- 123 is the volume number.
- XXX. is abbreviation of the reporter.
- 456 is the page number on which the decision begins.
- 789 is the page number on which the quoted or referenced language is found – this is also referred to as the pinpoint cite.
- (3rd Cir. 1953) is the court that the case was decided in and the year the decision was issued.
A book that has been deemed essential is The Bluebook: A Uniform System of Citation (commonly referred to as the “Bluebook”). Many law schools require their students to learn citation formats set out in the Bluebook, and many law journals, reviews and other periodicals require their citations to conform to the Bluebook’s formats. Almost every citation you could ever need is contained in the Bluebook, and it is commonly and often referred to by attorneys and paralegals to decipher uncommon references.
Because the law is constantly evolving, checking your cited judicial decisions is absolutely essential. The importance of this practice cannot be overstated. Also referred to as “cite-checking”, this is a process through which you can determine whether the cases that you wish to cite are still good law. "Good law" refers to law that is still operative, i.e., has not been rendered overridden or overruled by other judicial decisions or legislation.
There are a variety of ways to determine whether a particular citation is still good law. The most popular way is through a series of books called Shepard’s. Organized by publication, Shepard’s books contain almost every citation, and are usually kept in the same general area in a law library as the publication in which your decision is reported.