Legal Research FAQ (part 2 of 2)
Subject: Legal Research FAQ (part 2 of 2)
Archive-name: law/research/part2
Version: 0.97
The Legal Research FAQ
=== ===== ======== ===
This document gives an overview of the standard resources and
tools used in conducting legal research on state and federal law in
the United States. It also provides an overview of the structure
of the various state and federal court systems, and describes the
primary legal sources (case reporters, statutory and regulatory
compilations) where the law _per se_ can be located. It is written
for laymen, not lawyers; no prior legal knowledge or research
experience is assumed.
The Legal Research FAQ is posted to misc.legal.moderated,
misc.legal, misc.legal.computing, news.answers, and misc.answers
around the 15th day of each month. Comments or suggestions are
welcome, and should be sent to eck@panix.com.
A current version of the FAQ may always be obtained via anonymous
ftp from rtfm.mit.edu in /pub/usenet/news.answers/law/research/part1
and part2. If you do not have ftp access, send a mail message to
mail-server@rtfm.mit.edu with the lines
send usenet/news.answers/law/research/part1
send usenet/news.answers/law/research/part2
in the body of the message.
Copyright 1994 Mark Eckenwiler. Permission is granted to
redistribute this article in its entirety for noncommercial use
provided that this copyright notice is not removed or altered. No
portion of this work may be sold, either by itself or as part of a
larger work, without the express written permission of the author;
this restriction covers all publication media, including (but not
limited to) CD-ROM.
The author is an attorney admitted to practice in the State of
New York and the Commonwealth of Massachusetts. Against his better
judgment, he continues to live and work in New York City. He is also
an amateur genealogist and would appreciate hearing from or about
anyone named Eckenwiler, Chmieletzski, Breazeale, or variants thereof.
Special thanks go to Terry Carroll, Mike Godwin, Michael
Froomkin, Lori Fox, Larry Kolodney, Simona Nass, and Brian Smith.
This FAQ (and its author) benefitted immensely from their helpful
insights and criticisms.
TABLE OF CONTENTS
[Part 2]
4. LEGAL RESEARCH: SOURCES AND METHODS
4.1 General Resources
4.1.1 United States Code Annotated & United States Code Service
4.1.2 Federal Practice Digest (FPD)
4.1.3 Shepard's Case Citations
4.1.4 Lexis and Westlaw
4.1.5 ALR, Am. Jur., and CJS ****** To be added
4.1.6 Black's Law Dictionary
4.2 Subject Area Resources
4.2.1 Constitutional Law
4.2.2 Evidence
4.2.3 Civil Procedure
4.2.4 Criminal Law
4.2.5 Torts
4.2.6 Contracts
4.2.7 Copyright
4.3 Putting It All Together
5. GENERAL PRECEPTS CONCERNING WEIGHT OF AUTHORITY
6. OTHER RESOURCES ON USENET
On the format of this FAQ:
Toplevel entries in the outline are flagged with an "=" at the
left margin; to page through the main topics one by one, search
repeatedly for "=".
The flag "**" preceding a term or the name of a resource
indicates that an extended explanation of that term/resource can be
found elsewhere in the FAQ.
----------------------------------------------------------------------
= 4. DOING LEGAL RESEARCH: SOURCES AND METHODS
4.1 General Resources
Legal research aids come in a variety of complementary and
interrelated forms. One of the few elements common to nearly all
such tools is the "pocket part," an update section usually tucked
inside the back cover of a volume. (Sometimes the update will be a
separate paperbound supplement instead.) When you use any of the
following tools for the first time, note the location and general
organization of the update section, and *use it*. Otherwise, your
research will miss the most recent (and most significant) law on the
issue.
4.1.1 United States Code Annotated & United States Code Service
(U.S.C.A., U.S.C.S.)
U.S.C.A. and U.S.C.S. are the two commercially produced
"annotated" versions of the **United States Code. This simply means
that these series provide not only the text of all federal statutes,
but also include helpful research cross-references. The discussion
below explains how to use U.S.C.A. -- published by West, and therefore
the more widely available of the two sets -- but is equally applicable
to U.S.C.S.
After each statute reprinted in U.S.C.A., you will find a
variety of headings for such subjects as law review articles, notes
to statutory revisions, cross-references to **C.F.R., and so on,
with relevant information under each. Most significantly, U.S.C.A.
provides a set of "annotations" on the statute: that is, brief
summaries of court decisions applying or construing the law in
question.
This annotation section after each statute generally begins with
an alphabetical index of the topics covered by the cases. Each topic
corresponds to a number, which tells you where to find case summaries
("squibs") on that topic.
The alphabetical index is followed by groups of squibs under
the numbered topic headings. Annotation topic number 1 is almost
invariably either "Constitutionality" [i.e., of the statute] or
"Generally" (collecting cases discussing the statute broadly).
There are two important things to keep in mind as you use
U.S.C.A. First, U.S.C.A. does not list every case that has ever
referred to the statute; it is only a selection, albeit usually a
helpful one that includes most or all major decisions. Second, you
should not rely on the case summaries as authority. Because the
squibs occasionally misstate a court's holding, it is essential that
you read the cases themselves.
As with other research tools, make certain to consult the pocket
part when using U.S.C.A. so you don't overlook revisions to the
statute or recent court decisions interpreting it.
One very useful feature of U.S.C.A. is the paperbound set of
subject index volumes located at the end. These volumes provide
pointers to all laws on any particular topic (Postal Employees,
Eavesdropping, or whatever).
Note that the equivalent of U.S.C.A. exists for most state law
compilations as well. Check with your law librarian for details.
Finally, U.S.C.A. is now available as a 2-disk CD-ROM.
4.1.2 Federal Practice Digest (FPD)
In section 2.2.1 above, you learned about the West
Publishing headnotes that precede nearly all reported cases. In
case you were wondering how to make use of those headnotes, the
answer is "use the Federal Practice Digest".
West has created a vast taxonomy of legal issues, referred
to as the "West key number system". A West reference has the
form
[subject] [key number]
where [subject] is a gross division like "Jurisdiction," "Venue,"
"Constitutional Law," or "Contracts." The key number, usually
of the form xx, xx.yy, or sometimes xx.yy(nn), corresponds to a
subdivision of the larger topic, such as "Freedom of speech:
prior restraint" or "Anticipatory repudiation of contract." The
volumes of FPD are organized alphabetically by subject; a list of
numbered subdivisions (with helpful short descriptions) appears
at the start of each major subject entry.
Whenever a case is published in a West reporter, West's
legal writers analyze the court's opinion and break it down into
main points. Each legal point -- e.g., "claims litigated once
may not be litigated again" -- is put into one of the pigeonholes
in West's overarching key-number system. These key numbers,
along with a summary of the case's conclusion or reasoning on
that sub-issue, are printed at the start of each case, numbered
sequentially from 1 to N. Within the case itself, bracketed
numbers (e.g., "[3]") are inserted into the opinion to indicate
which passages are summarized by which headnotes. Sometimes a
single passage will merit several headnotes, and will be preceded
by a bracketed range ("[5-7]").
So what's the point, you say? The point is that in the volumes
of FPD itself, West organizes *ALL* of the headnotes from every
reported decision according to these systematic groupings. Thus, if
your case has a headnote labeled "Perjury 36", you can open the FPD
"Perjury" volume to section 36 and read a summary of similar
decisions rendered in other courts. You can then locate the actual
opinions that seem useful, read them, and make a note of any *other*
key numbers in those cases that may be relevant. Repeat as
necessary.
This system is wonderful in principle. In practice, it depends
on the ability of West's employees to summarize cases correctly and
to do so using consistent key numbers -- an ability which is
obviously variable. A given proposition of law may be treated under
several nonconsecutive key numbers; indeed, it may be treated under
entirely different major subject headings. A good rule of thumb in
using FPD is that if you can't find what you need, try looking in a
different place. (This is also good advice even when you *do* find
what appears to be the answer.)
If you don't have a case to start from, you can use the FPD
subject index volumes (near the end of the set) to locate
potentially useful key numbers.
An extremely valuable feature of FPD is the Table of Cases
volumes (at the end), which list every reported federal decision.
If you have the name of a case -- say, _Hamaya v. McElroy_ -- you
can look it up in these volumes and find the citation. If you
only know the defendant's name, use the Defendant-Plaintiff
volumes (also at the end), which provide the same information
alphabetized by the name of the defendant.
A final word about the FPD series: There is more than one.
Because courts are constantly churning out opinions, West creates a
new set of FPD every 10-20 years. The current series, FPD 4th, covers
cases starting around 1987; its predecessor, FPD 3d, covers the period
from 1975 to roughly 1987. (Nobody ever uses the older sets, FPD 2d
and FPD, since the case law they summarize is ferociously out of
date.)
Note that West publishes the equivalent of FPD for state court
decisions as well. For each of the West regional reporters described
above, there is a corresponding Digest (e.g., Pacific Digest)
containing summaries of decisions rendered in that region. (Indeed,
the case law of a few large states such as New York and California is
summarized in special state digests, e.g., the current New York
Practice Digest 4th.) Note especially that West's key numbering
system is consistent, so a single topic/number combination
corresponds to the same legal issue in FPD and all the regional (and
state) digests.
4.1.3 Shepard's Case Citations
When you read a case, you'll generally see citations to
numerous older cases. But how do you find out if the case you're
looking at has itself been cited in later decisions, or possibly
reversed on appeal? By using Shepard's.
Shepard's is a multivolume, multiseries set of red books
whose sole purpose is to list every source (well, almost every)
that has ever cited any given case. The later sources listed in
Shepard's include federal and state court decisions, law review
articles, and **ALR. For court decisions, Shepard's frequently
indicates whether the later court agreed or disagreed with the
reasoning or conclusion of the first case.
To use Shepard's ("Shepardize a case"), locate the volumes of
Shepard's which cover the reporter in which your original case
appears. For example, if you want to see which courts have cited 797
F. Supp. 186, go to the volumes of Shepard's which cover the range of
F. Supp. that includes volume 797. (Since Shepard's is necessarily
updated all the time, you will probably have to consult 2 or 3 bound
volumes and another 2 or 3 paperback supplements; the cover of the
most recent paper supplement will indicate how many volumes there are
in the series.)
Once you have the volumes, open one to the page which
specifically covers 797 F. Supp. Now scan down the listings
until you locate the subheading "-- 186 --", which indicates the
start of listings for the case beginning on that page (i.e., 797
F. Supp. 186). You'll see a listing like the following. (Note:
this is not the actual Shepard's listing; it's a fictional
listing concocted for purposes of this FAQ.)
-- 186 --
a981F2d227
2
800FS 512
q793FS22
...
The listings are of the general form
[volume] [reporter] [page]
where the fields are optional. The
volume/reporter/page fields indicate the specific page where the
later source cites your case. Note that this is generally NOT
the first page of that case; instead, it almost always occurs in
the middle.
The treatment codes indicate how the later court regarded
the first court's reasoning. Common codes are a (affirmed by
appeals court), q (questioned), o (overruled), and s (later
decision in same case); a full list of the codes appears near the
front of each hardback Shepard's volume. Thus, the first
Shepard's entry above says that a Circuit Court of Appeals
affirmed the lower court decision, and that affirmance appears at
981 F.2d 227. Likewise, the third entry indicates that another
district court opinion questioned some portion of the first
court's reasoning; its skepticism can be found at 793 F. Supp.
22.
The headnote field, often omitted, indicates which specific
passage of the first case is being referred to. Shepard's uses
the West headnote system for this purpose: the number shown
corresponds to headnote N in the original case, which itself
points to a particular passage in that case. (Note that the West
headnote summary in case 1 may have nothing to do with the issue
for which case 1 is cited in case 2, as the West headnotes do not
(and cannot) summarize every issue in a case. Shepard's merely
uses the headnote divisions to make its cross-references to the
first case more specific, by defining more specifically the
section of text to which the second case refers.)
Thus, the second entry above tells us that on page 512 of
800 F. Supp., another district court cited case 1 for a
proposition that is stated (or implied) in the text corresponding
to note "[2]" in 797 F. Supp. 186.
Note that the Shepard's entries are organized according to
jurisdiction, with the highest authority in each listed first. A
full-length listing of a significant case will have entries for F.2d
and F. Supp. in all the Circuit Courts, and will likely be cited by
various state courts as well.
One final note: there is a separate 3-volume subset of
Shepard's that lists Acts of Congress and important court decisions
by their popular names. These volumes serve the same purpose as the
Popular Names Table at the end of the **U.S.C.A. index. The
Shepard's list of cases is not even vaguely comprehensive, unlike
the Table of Cases at the end of **F.P.D., but it has three major
advantages:
a) it covers a full two centuries in one place (unlike
F.P.D., which is now in its 4th series, with separate Tables for
different time periods),
c) it covers state cases absent from F.P.D., and
b) it allows you to find cases by looking under "Congresional Veto
case" (answer: INS v. Chadha) or "Flag Burning cases" (answer:
Texas v. Johnson and U.S. v. Eichmann).
4.1.4 Lexis and Westlaw
Two companies, the ubiquitous West Publishing (Westlaw) and
Mead Data (Lexis), provide online facilities for legal researchers.
While the two systems have a variety of distinguishing features --
Westlaw is generally more up-to-date and includes its proprietary
key number headnotes in the cases, while Lexis is easier to use
overall, has more finely subdivided case libraries, and has better
international coverage -- the general usage principle is the same:
either system allows you to run Boolean keyword searches across a
variety of federal and state law databases.
Each service has recently added a "natural language" interface --
"WIN" on Westlaw, "Freestyle" on Lexis -- to take the mystery out of
framing a proper search query. While these search methods have some
advantages over pure Boolean searches -- for example, weighting the
documents in the "hit" list on the basis of [in]frequency of usage of
key search terms -- they are usually not a substitute for a rigorous
Boolean search. As a quick way to locate a few relevant cases on a
given topic, however, they are quite helpful.
Both services are extremely expensive, and require the
establishment of an account prior to use, unless you're fortunate
enough to have access through a university library. The cost is
prohibitive for most individuals; those who already have access can
consult their librarians or the provider itself.
One noteworthy feature of these services is that they make
available many more opinions than appear in the printed case
reporters. In addition, both services provide a function which
tells you whether a particular case is still good law. This
function -- AutoCite (Lexis) or InstaCite (Westlaw) -- lists any
subsequent case history (e.g., later appeals), as well as any other
case which overrules it or questions its reasoning. This is more
selective than Shepard's, which lists *all* other cases citing your
case; at the same time, it is broader because it lists any court
decision overruling your case, regardless of whether your case is
specifically mentioned in that later opinion. (A Supreme Court
decision, for example, may overrule scores of lower court cases
without listing them all.)
4.1.5 ALR, Am. Jur., and CJS
[to be added later]
4.1.6 Black's Law Dictionary
The most famous dictionary of legal terms and phrases is
Black's. Unfortunately, Black's is useful almost exclusively for
definitions of historical terms ("Lex Petronia" is my favorite, with
"enfeoffment" a close second). Black's definitions of contemporary
legal terms are often too vague to be of use, and even in those cases
where Black's provides a case quote, it's too frequently from an
obscure 1932 decision in Kentucky.
Moral: don't rely on Black's unless you're desperate or lazy, or
researching some point of purely historical interest.
4.2 Subject Area Resources
Special reference works and treatises simplify research in
several major areas of the law. In addition to the specialty works
listed below, you may also find so-called "hornbooks" helpful.
These are general reference works that provide an overview of a
particular subject, and are generally not as up-to-date as the
works listed below. While the name Hornbook Series belongs to one
publisher, there are usually several hornbooks in each area. Your
law librarian will be able to direct you to these, as well as to
the resources listed below.
4.2.1 Constitutional Law
The history and interpretation of the Constitution is, not
surprisingly, the subject of innumerable works. This FAQ cannot
begin to do justice to the available bibliography, and will not
attempt to do so.
For what it's worth, a widely available (and respected) overview
is Laurence Tribe's single-volume _American Constitutional Law (2d
ed.). Also useful, if less commonly available, is Rotunda and Nowak's
4-volume _Treatise on Constitutional Law: Substance and Procedure_ (2d
ed.). Both works provide extensive cross-reference to other secondary
sources, as well as discussions of hundreds of important Supreme Court
decisions.
Finally, note that much of constitutional law relates to
standards for criminal proceedings. Accordingly, the sources
mentioned in section 4.2.4 below contain informative discussions on
numerous constitutional topics (such as the fifth amendment, the ex
post facto clause, the double jeopardy clause, etc.).
4.2.2 Evidence
The admission and use of evidence in federal courts is governed
by the Federal Rules of Evidence (FRE or Fed. R. Evid. for short),
which can be found (among other places) in the appendix to Title 28,
**United States Code. The Rules deal with a variety of issues, such
as
- the general admissibility standard
- character testimony
- impeaching witnesses
- the hearsay rule and its exceptions
- authentication of writings
- privileges against testifying
- using copies or printouts instead of original documents/data files
Individual states have their own rules of evidence. Many of
these state codes vary from the federal rules, although the
federal Rules have proven increasingly influential as states
modernize their laws.
Anyone researching federal evidence law has a variety of
tools from which to choose. A broad-based (and therefore
inefficient) method of attack is to use **Federal Practice Digest
(3d, 4th), especially the key-number entries under the "Evidence"
heading. A better approach is to start with _Weinstein's Federal
Evidence_, a frequently updated treatise covering the Rules in
exhaustive detail (and providing extensive case citations). If
you know the Rule you need to research, you can go directly to
the Weinstein chapter with that number; otherwise, look up your
desired topic in the extensive index.
Other tools to supplement Weinstein are Moore's Federal
Practice (also with numbered chapters corresponding to the Rules)
and Wright & Miller, Federal Practice & Procedure (use the index
volumes to locate your topic). Once you have the number of the
Rule you're researching, you may also find the case annotations in
**U.S.C.A. (or **U.S.C.S.) helpful; consult the volumes at the end
of Title 28.
Finally, whenever using any of the above resources, DON'T
FORGET THE POCKET PART (or supplemental paperback volume).
4.2.3 Civil Procedure
"Civil procedure" is the massive body of law that covers, in
brief, who gets into court and how. Civil procedure governs the
kinds of disputes (and parties) that courts have jurisdiction over;
the manner in which parties file their claims with the court; the
types of motions a party may bring to obtain a ruling, and how those
motions should be brought; the entry of judgments; the degree to
which one court must obey another's orders and judgments; and so on.
In federal district courts, proceedings are controlled by the
Federal Rules of Civil Procedure (FRCP or Fed. R. Civ. P. for
short); the Circuit Courts adhere to the Federal Rules of Appellate
Procedure (FRAP or Fed. R. App. P.). Both sets of rules can be
found in the appendix to Title 28, **United States Code. In fact,
Title 28 contains most of the statutes on which FRCP relies. (A
separate set of rules controls criminal procedure.)
As with rules of evidence, state courts have their own rules
of procedure. These vary widely from state to state, and in some
cases are highly idiosyncratic. In New York, which has the
oldest continuously operating court system in the U.S., the Civil
Practice Law & Rules (CPLR) are notoriously complex.
Well-structured tools for researching federal civil
procedure include the following:
- Moore's Federal Practice (looseleaf binder multi-volume set; updates
are the yellow pages up front)
- Wright & Miller, Federal Practice & Procedure (hardbound series)
- Title 28, **U.S.C.A. (annotations to statutes & rules)
In addition, a researcher may also wish to consult **Federal
Practice Digest (3d & 4th), especially under the headings "Federal
Courts and Procedure" and "Judgments".
Finally, whenever using any of the above resources, DON'T
FORGET THE POCKET PART (or supplemental paperback volume).
4.2.4 Criminal Law
Federal criminal law is scattered across several titles of
the United States Code. The bulk of federal criminal law,
however, can be found in Title 18; in addition, some of the most
commonly invoked narcotics (and forfeiture) statutes are in Title
21.
Procedure in federal criminal trials is covered by the
Federal Rules of Criminal Procedure (Fed R Crim P or FRCrP),
which can be found at the end of Title 18, United States Code.
The most important set of criminal procedure rules at the state
or federal level, however, is the Bill of Rights. With the
advent of the "incorporation" doctrine in the 20th century --
whereby the Bill of Rights, formerly applicable only to the
federal government, was applied to the states through the 14th
amendment to the Constitution -- the 4th, 5th, 6th, and 8th
amendments have assumed increased significance in all criminal
trials.
Far and away the most useful and comprehensive treatises on
various criminal law subjects are W. LaFave's blue-bound
multi-volume sets in West's Criminal Practice Series:
Search and Seizure
Criminal Law
Criminal Procedure (co-author J. Israel)
LaFave's books provide useful historical background, summaries of
significant case law (including recent developments), and comment
on unresolved questions or conflicts likely to pose the thorniest
problems in actual practice.
Other resources:
- Wright & Miller, Federal Practice & Procedure (criminal vols.)
- Titles 18 & 21, **U.S.C.A. (annotations to statutes & rules)
A diligent researcher may also wish to consult **Federal
Practice Digest (3d & 4th), especially under the subject headings
"Criminal Law" and "Constitutional Law".
Finally, the Model Penal Code -- a model codification of
criminal law principles and definitions drafted by the American Law
Institute -- has proven influential in many jurisdictions.
4.2.5 Torts
A tort is a "civil wrong." Common types of tort include
libel, assault, battery (all "intentional torts"), and the
garden-variety "negligence tort". Because the roots of tort law
lie in the common law, and because tort law is strictly a
creature of state law in the U.S., there are innumerable types of
torts, often defined differently from state to state. (In fact, tort
law varies widely from state to state; it is seldom safe to assume
that one state's law will hold true elsewhere.)
A good overview of tort law is the renowned Prosser on
Torts, currently edited by Robert Keeton. The _Restatement (Second)
of Torts_, an influential codification of common tort principles, is
also helpful.
4.2.6 Contracts
The law of contract, with its roots deep in the common law, has
inspired a number of exhaustive treatises, as well as sundry other
resources. The two most authoritative (and voluminous) works are the
multivolume sets _Corbin on Contracts_ and Williston's _Law of
Contracts_. The answer to nearly any question on contract law can be
found in either of these. If your library is more modest, a good
sourcebook in a pinch is the more readable, compact, and modern
_Farnsworth on Contracts_.
In addition, an important source of law are Articles 1 & 2 of
the Uniform Commercial Code, a model code of contract law that has
been adopted (sometimes with minor modifications) by most states.
Likewise influential is the American Law Institute's _Restatement
(Second) of Contracts_, a summary of commonly accepted principles of
contract law.
4.2.7 Copyright
The best sources for information on copyright law are the
treatise _Nimmer on Copyright_, and a large number of publications
available from the Copyright Office. These sources, and others, are
covered in detail in part 5 of Terry Carroll's exhaustive and
authoritative Copyright FAQ, regularly posted to misc.legal,
misc.answers, and assorted other newsgroups. In addition to
providing pointers to sources, Terry's FAQ explains U.S. copyright
law in detail, describing its relation to international law and
answering specific common questions about copyright doctrine.
Terry's FAQ is available for anonymous FTP from rtfm.mit.edu, in
/pub/usenet/news.answers/law/Copyright-FAQ (files part1 - part6).
4.3 Putting It All Together
So you need to investigate a legal topic using all of these
tools. How do you put them together effectively?
First, if there's a treatise or hornbook on your subject,
look there first. Half the time, the source will give you a
clearcut answer, and save you the agony of reinventing the wheel
and doing all the case/statute research yourself. (But make SURE
you look in the pocket part -- this can't be stressed enough.)
Suppose the issue is more complex, and you want to delve
deeper. Note the cases, statutes, and rules mentioned in the
treatise, and go look them up. (Of course, you can begin the
research process here if you start off with a citation to some
case, statute, or rule.) For each one of these, you have several
routes for locating additional materials:
a) Your case etc. will likely cite other cases etc. which are
themselves relevant. Repeat the recursive process for these
sources.
b) If your new source is a case, Shepardize it for later-decided
cases citing it. Look especially for later cases where the
Shepard's listing includes a headnote number that corresponds to
the important textual passage in your case.
c) If your new source is a case, note which headnotes (in front
of the opinion) seem to address the issue you're interested in.
You can then go to **Federal Practice Digest 3d & 4th (FPD),
which contains summaries ("squibs") of other cases under that
same heading/key-number combination. (For state law research,
you would use the relevant state digest instead, e.g., NY Digest
3d & 4th.)
Make a note of the cases whose squibs look useful, and set them
aside to be looked up later. When you get to them, you'll repeat
steps a) and b) above; in addition, these new cases may include
helpful discussions under a different West heading/key-number,
in which case you'll recursively repeat step c).
d) If your source is a federal statute or rule (e.g., FRCP, FRE),
consult the appropriate volume of **U.S.C.A. containing that
rule. You'll find more case squibs relating to various aspects
of the statute/rule. Consult those cases, and repeat steps a)-d)
with them and the significant sources they discuss.
Suppose you didn't start this process by looking in a
treatise, or with a particular case in hand; rather, you think
there's general caselaw out there. Using the keyword index
volumes at the end of FPD (or your state digest), look up terms
that describe your issue. The index will generally provide you
with a list of heading/key-number pairs, which you can then use
starting with step c) above.
Or suppose you think there's a federal (or state) statute
that addresses the subject. You'd go to the paperback index
volumes of **U.S.C.A. (or your annotated state code) and look
under whatever seem like the appropriate headings. For instance,
to find the wiretap statutes, you'd look under "wiretap" or
"eavesdropping" to start. Once you locate the relevant statute,
proceed to step d) above.
Obviously, this recursive process could go on forever, since
every case, rule, and statute ultimately leads to every other
case etc. in the seamless web of the law. Use your judgment and
cull accordingly as your research progresses. New cases are more
persuasive than old ones; appeals court (and especially Supreme
Court) opinions are more important than district court decisions;
if you're before a particular district court, cases from that
court (and the courts directly above it) are the most
influential.
A useful guide to developing research strategies (and carrying
them out) is _The Legal Research Manual: A Game Plan For Legal
Research and Analysis_, by Christopher G. Wren and Jill Robinson Wren,
available at many law-oriented bookstores.
= 5. GENERAL PRECEPTS CONCERNING WEIGHT OF AUTHORITY
It's not enough simply to be able to point to words in a book
that say what you want to prove. Different sources have varying
degrees of persuasiveness, and certain kinds of beside-the-point
remarks may have little weight, even in Supreme Court opinions.
A spectrum of significant authority, from weightiest to least
important, is as follows: court opinions; statutes and codified rules;
regulations; model codes; scholarly treatises; survey works (e.g., CJS
& Am. Jur.); and dictionaries.
Within each category above, there are (naturally) still finer
gradations. Appellate court opinions carry more weight than lower
court decisions; on questions of federal law, federal court cases
carry more authority than state cases, and vice versa on questions of
state law. Similarly, when a federal law and a state law conflict,
the federal law controls (under the Constitution's Supremacy Clause).
It is a common error to assume that everything in a judicial
opinion carries the full weight of that court's authority. An opinion
is nothing more than a court's decision resolving a *particular*
dispute between 2 (or more) parties on the basis of the specific facts
presented. Accordingly, the most significant part (or parts) of an
opinion are those where the court answers directly the questions
placed before it. (In Supreme Court opinions, the Court frequently
identifies these questions early on with a phrase like "The question
placed before us is whether or not . . . .") This answer (or answers)
on the main legal issues in a case is called the "holding"; in other
words, the holding is the proposition for which the case should be
cited.
Opinions often contain what are called "dicta," remarks or
conclusions not necessary to deciding the case before the court.
(Judges include such comments, often in footnotes, either to note the
existence of an interesting legal issue not fully presented in the
case, or to suggest how the court might analyze such an issue in the
future.) Dicta are not binding on lower courts (as is the holding in
a case), and should not be relied on as conclusive statements of the
law.
The distinction between holding and dictum is important because
of a bedrock principle in American law known as "stare decisis". That
phrase -- Latin for "to stand on matters decided" -- simply signifies
that a court should, whenever possible, adhere to its own precedents
(and to those of higher courts). (This rule promotes consistency in
decisionmaking, which in turn allows individuals and businesses to
structure their affairs in reliance on the belief that the law will be
the same tomorrow as it is today.) In this context, a prior "holding"
is precedent to be respected; dictum, by contrast, is not binding.
It is perhaps obvious that "stare decisis" is not an ironclad
rule. Many famous Supreme Court decisions -- notably _Brown v. Board
of Education_ -- even overrule prior cases. It should be understood,
however, that such deviations are the exception and not the rule. For
a fuller discussion from the Supreme Court itself on the value of
stare decisis, see _Planned Parenthood v. Casey_, 112 S. Ct. 2791
(1992) (declining to overrule _Roe v. Wade_).
Note also that a single appellate case in a reporter may include
several different opinions. These can be divided into three basic
categories: majority opinions, concurrences, and dissents. Only the
majority opinion constitutes binding law; concurrences and dissents,
while they may contain discussions useful to later courts (and
researchers) interested in the issues involved, have no legal effect.
Sometimes a judge may concur and dissent in a single opinion.
Such opinions are usually labelled "concurring in part and dissenting
in part" at the beginning. This happens when the judge agrees with
some or all of the majority's conclusions, but disagrees strongly with
at least one portion of the analysis.
On courts with more than 3 members -- such as the Supreme Courts
of the United States and the various states, certain intermediate
state courts (such as New York's Appellate Division), and the federal
Circuit Courts when sitting **en banc -- there is also the phenomenon
of the "plurality" opinion. A plurality exists when the largest
voting bloc does not constitute a majority (e.g., 4 Justices on the
U.S. Supreme Court). Plurality opinions are generally strongly
persuasive as statements of the law, but are not binding authority;
at the U.S. Supreme Court, for example, it is common for plurality
opinions to be adopted as law by a majority of the court in a similar
case a few years later.
One last point closely tied to the phenomenon of plurality
opinions: It is essential to bear in mind that an appellate court
has one overriding function -- to affirm or reverse the decision of
the lower court. Courts exist to resolve specific, concrete disputes
(see the discussion re "dicta" above); thus, it is the "judgment" of
the court (AFFIRMED or REVERSED, or sometimes VACATED) that is most
important.
It is possible for a court -- say, the Supreme Court -- to
affirm or reverse without reaching majority agreement on why a
particular outcome is appropriate. When a Justice (or judge)
"concurs in the judgment," s/he is agreeing with the outcome reached
by the majority (or plurality), but with little or none of their
reasoning.
For example, consider Prisoner X's appeal (on Fourth and Fifth
Amendment grounds) from a Circuit Court decision affirming his
conviction. Four Justices might conclude that Prisoner X should be
freed because his Fifth Amendment rights were violated at trial; if
another Justice disagrees with that reasoning, but finds that X's
Fourth Amendment claim justifies voiding the conviction, then five
Justices have agreed on the "judgment," and the conviction is
reversed. Because there was no majority agreement, however, the case
does not furnish binding precedent on the constitutional issues
raised.
= 6. OTHER RESOURCES ON USENET
This FAQ is only one of several regular Usenet publications
that address various legal issues. Other valuable sources of
information include:
- Copyright FAQ by Terry Carroll (see 4.2.7 above)
- misc.invest FAQ (discussion of such topics as the "wash sale" rule
and the Uniform Gift to Minors Act)
- misc.consumers FAQ (extensive information on the Fair Credit
Billing Act)
- Social Security Number FAQ by Chris Hibbert (posted to misc.legal
and elsewhere)
- "The Legal List, Law-Related Resources on the Internet and Elsewhere"
by Erik J. Heels, available via anonymous FTP from ftp.midnight.com
(137.103.210.2) as pub/LegalList/legallist.txt
Finally, two services sponsored by Cornell University merit special
mention. To automatically receive an e-mailed copy of each new
Supreme Court opinion within a day or two of release, send a message
to listserv@fatty.law.cornell.edu containing the line
subscribe liibulletin (Your Name), (Address), (Phone)
in the body of the message. You will be added to the mailing list,
and will receive additional information on other commands, including
how to unsubscribe.
Cornell also offers a mail server providing copies of Supreme
Court opinions. To obtain the text of an opinion, send email to
liideliver@fatty.law.cornell.edu containing one or more lines of the
form
request XX-YYYY
where XX-YYYY is the docket number of the case. The syllabus sent by
liibulletin always includes the docket number for that case.
[end of FAQ]