Legal Research Sources
Legal research sources are divided into two categories: primary and secondary. Primary sources include statutes, rules, regulations, and case law. Secondary sources are much more diverse and include law review and journal articles, legal encyclopedias, treatises, and law digests. Primary sources are not necessarily binding – it depends on which jurisdiction your case is pending in. You learned about mandatory and persuasive authority in the chapter about the judicial structure in the United States. Mandatory authority is binding on the court, but persuasive authority is not binding. All primary sources are not mandatory authority, i.e., all primary sources are not necessarily binding. For example, judicial decisions are primary sources, but they may only be persuasive authority, depending on the jurisdiction. No secondary sources are mandatory authority – they are all only persuasive authority.
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 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. For example:
Mary wants to determine what agency in her state is in charge of licensing for corporations. Not knowing which statute is applicable to her question, she pulls out the index volume and looks up the topic “corporations” in the index. Under the heading “corporations”, she scans the subtopics for those applicable. She considers all subtopics, including “licensing”, “registration”, “agency”, “enforcement”, or similar subtopics, as some jurisdictions may call the process “licensing”, while others call it “registration.”
That’s why it is important to cover all your bases and be creative. When you find a subtopic that you think may be pertinent to your research, look at the statute cited, find the section in the bound volumes (you will probably have to look in a volume separate from the index) and read the statute. If it doesn’t absolutely answer your question, you may want to look at other statutes before and after, as they might discuss similar subjects.
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 lead 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. For example
The United States Congress has determined that the country is in need of legislation concerning the securities industry. Within the new legislation, Congress authorizes the executive branch to create the Securities and Exchange Commission (“SEC”), which is charged with the regulation of the securities industry. Congress has also enacted legislation concerning the securities industry. It is up to the SEC to enforce such laws as created by Congress. Congress has also allowed the SEC to create its own regulations to enforce such legislation. For example, if Congress passed a law prohibiting insider trading, the SEC might write regulations defining insider trading and providing ways to enforce the Congressional prohibition.
There are numerous agencies at both the federal and state level. Each state also has its own set of administrative agencies, which create their own regulations. State regulations are binding only on the state in which the agency is located. Federal regulations are effective nationally. Some states may have their own regulations that are more stringent than the federal regulations, in which case, the state’s regulations will control. Statutes are created by the legislature; regulations are created by administrative agencies.
Before an agency's regulations go into effect, the agency must notify the public that a new rule is pending. At the federal level, the agency will publish a “Notice of Proposed Rulemaking”. These notices will inform the public about the new rule pending, the reasons that the new rule, or amendment to an existing rule, has been proposed, and how the public may submit comments. Following is a sample notice put out by the FCC:
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket No. 02-60; FCC 03-288]
Rural Health Care Support Mechanism
Wednesday, December 24, 2003
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
SUMMARY: In this document, the Commission seeks comment on modifications to the definition of "rural area" for the rural health care support mechanism, whether additional modifications to our rules are appropriate to facilitate the provision of support to mobile rural health clinics for satellite services, and additional outreach efforts and measures to streamline further the application process.
DATES: Comments are due on or before February 23, 2004. Reply comments are due on or before April 7, 2004. Written comments on the proposed information collection(s) must be submitted by the public, Office of Management and Budget (OMB), and other interested parties on or before February 23, 2004.
After the agency has gone through the proper procedures that it must before it creates a new rule, or amends an old one, it will publish a “Notice of Final Rulemaking”. All of these publications, at the federal level, are contained in the Federal Register. For example:
RULES and REGULATIONS
DEPARTMENT OF COMMERCE
Bureau of the Census
15 CFR Parts 50 and 80
[Docket Number 010828220-3161-02]
Amendments to Age Search Procedures
Friday, July 18, 2003
AGENCY: Bureau of the Census, Department of Commerce.
ACTION: Notice of final rulemaking.
SUMMARY: The Bureau of the Census (Census Bureau) is issuing this final rule to clarify and revise the general information requirements pertaining to its Age Search Program. The Census Bureau is making these clarifications to ensure that there are no misunderstandings about the program requirements as a result of ambiguous language. The intent of the Census Bureau in taking these actions is to clarify and revise processing requirements and legal restrictions.
EFFECTIVE DATE: August 18, 2003.
68 Fed. Reg. 42585 (July 18, 2003).When the new regulation is codified, it is included in the Code of Federal Regulations.
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 a 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. For example, 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.) and the Southern reporter (So.). These and other reporters will be included in the later subchapter concerning legal citation. 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 paragraphs 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, essentially, endless. Every source that is not primary is, by default, secondary. The purposes of secondary sources are twofold: one, they offer an explanation or understanding of a particular section of the law; two, they, ideally, are 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 condominium and cooperative housing, a legal encyclopedia will give you solid, basic understanding. It will also provide you with citations to primary authority 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. For example:
Susan and Sarah are opposing counsel in an action for slander. While at a party, the defendant told her friend that the plaintiff illegally smokes marijuana. The defendant, represented by Susan, has asserted the defense that because the defendant did not make the statement to more than one person, he cannot be liable. The plaintiff, represented by Sarah, argues that the defendant only needed to make the statement to one person to be liable. Both Susan and Sarah recognize that there is a split of opinion in the jurisdiction, state, and throughout the nation. The judge, noting the split, asks Susan to explain how the two most common legal encyclopedias describe the difference of opinion throughout the country.
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 divided by jurisdictions.
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 table 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, the 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 discriminately. These types of articles can offer excellent historical research into a particular area.
A note about using legal research sources: As stated earlier, the law is a constantly evolving entity that could, theoretically, vary from day to day, week to week, month to month, or year to year, rendering certain publications obsolete. To remedy this situation and keep the researcher apprised of current developments in the law, publishers will publish something called a “pocket part”, which supplements a particular volume of a publication. Pocket parts are found in the back of volumes, and they are inserted into a pocket within the volume – thus, they are called “pocket parts”.
Instead of publishing an entirely new volume every time law is created, amended, clarified, explained, distinguished or described, publishers will issue a cumulative supplement that, by placement in the pocket, becomes part of the volume. When a new pocket part is received, the old pocket part is discarded. It is crucial to always check the pocket part for any updated law, and always make sure that the pocket part is a current pocket part. When the size of a pocket part becomes too large to include within the back of a volume, the publisher will publish a soft cover cumulative volume that will be shelved next to the original volume.
Some publishers also choose to publish additional supplements every year – sort of a year-in-review – that condenses all of the pocket parts issued in one year into one supplement.