Find Legal Research
Find Legal Research
What is legal research?
"Legal research is the process of identifying and retrieving information necessary to support legal decision-making. In its broadest sense, legal research includes each step of a course of action that begins with an analysis of the facts of a problem and concludes with the application and communication of the results of the investigation."
From: J. Myron Jacobstein and Roy M. Mersky, Fundamentals of Legal Research, 8th ed. (Foundation Press, 2002) p. 1.
This article focuses on the process of finding legal documents issued by courts, legislatures and other government entities in the United States. Finding legal information in the United States can be challenging. Many lawyers use electronic databases such as LexisNexis or Westlaw to access legal information. However, these resources may not be accessible to all. Special focus is given in this article to finding free legal materials on the Internet. As this article discusses a process, it is somewhat informal in tone.
The next section of this article provides necessary background for understanding the process of legal research. Concepts such as law, legal authority and jurisdiction are taught to law students during their first year in Law School. The process of legal research is then discussed, followed by discussion of the primary sources of law (cases, statutes, and regulations).
Background Concepts
What is the law?
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. Whether searching in print or online, the challenges of legal research are usually
- selecting appropriate legal authorities,
- selecting appropriate search terms to find the legal rules in the resource that is being searched.
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 authority leads to and explains the primary authorities.
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 is to use secondary sources to get a general overview, and then use the footnote references to cases, statutes, and regulations.
Another major distinction is between 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. Just because something is a primary authority (such as a case) does not mean that the court has to follow it. For example, a Pennsylvania court does not necessarily have to follow an Alabama decision. In this instance, the primary authority is a persuasive authority in the eyes of the Pennsylvania court. This is due to 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 is most commonly geographical but can be by subject. There is a jurisdiction for the United States federal government 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 political divisions of government further subdivide. From a law librarian's view, each of these branches of government are the sources of law in the U.S. They produce books (or databases) where one can find the primary authorities associated with each of these entities.
Common law versus civil law
Much of United States law 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 operate under a civil law 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 stare decisis. A lawyer is often engaged in the task of finding precedent, for example, a case that is "on point," or as close to his or her fact situation as possible.
This means that it is often quite difficult to determine what "the rule" is for any given legal issue. 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? Depending upon the issue involved, the case may eventually need to be decided by the U.S. Supreme Court. If the Supreme court declines to hear the case, then the highest court of the jurisdiction in which the case arose gets the last word.
The process of legal research
Although this is a process oriented article, there is no one right way to do legal research. There are however practices that have proven to be more efficient and cost effective. There is an overall "game plan" that is taught in the first year of Law school. The details vary according to the textbook, but a general search strategy might be:
- 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 in-depth, 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 (cases, statutes, and regulations)
- 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 legal research textbooks below are good resources for finding out more about legal research and research strategies):
- 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).
- Amy E. Sloan. Basic Legal Research: Tools and Strategies . (3rd Ed., Aspen Publishers, 2006).
A very good search strategy is to find a legal research guide with a search engine such as Google before you leap. Your local library will probably have research guides on a wide variety of topics.
Judicial branch sources (Cases)
The Judicial branch is the court system. Each jurisdiction in the U.S. judiciary (federal and the fifty states) has any number of courts, usually one of three types:
- a trial court,
- an appeals court,
- 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.
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. Many consider these cases to be binding on all US courts as a practical matter. However, Cohen, Berring, and Olsen, in their book "Finding the Law," state:
"The Supreme Court is the court of last resort in any federal dispute and has the final word on federal issues raised in state courts. In most situation, however, it has discretion to decline to review lower court decisions and dis
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