How to Find & Understand the Law
Stephen Elias, Attorney
August 2012, 16th Edition
Legal research made simple!
If you're searching for information in a real or virtual law library as a paralegal, law student, legal assistant, journalist, or lay person, finding and accessing the laws that you need to read can be a challenge. Turn to Legal Research, which outlines a systematic method to find answers and get results.
In plain, readable English, Attorney Stephen Elias explains, with plenty of examples and instructions, how to:
- read and understand statues, regulations and cases
- evaluate cases for their value as precedent
- use all the basic tools of legal research
- practice what you've learned with "hands-on, feet-in" library exercises, as well as hypothetical research problems and solutions
This easy-to-use and understand book has been adopted as a text in many law schools and paralegal programs. This edition has been condensed to be more readable and includes an expanded discussion on the use of legal research tools on the web.
Until his death in late 2011, Stephen R. Elias was a practicing attorney, active Nolo author, and president of the National Bankruptcy Law Project. He was an important part of Nolo for more than 30 years, and was the author or coauthor of many Nolo books, including Bankruptcy for Small Business Owners. Other titles include Special Needs Trusts: Protect Your Child's Financial Future, How to File for Chapter 7 Bankruptcy, Chapter 13 Bankruptcy, and Legal Research: How to Find and Understand the Law. He was also one of the original authors of Nolo's bestselling WillMaker software. Steve held a law degree from Hastings College of Law and practiced law in California, New York, and Vermont before joining Nolo in 1980. He was featured in such major media as The New York Times, The Wall Street Journal, Newsweek, Good Morning America, 20/20, Money magazine, and more.
Table of Contents
Your Legal Research Companion
1. Understanding the Basics of the Law
- What Is the Law?
- Sources of Law
- State Versus Federal Law
- The Court System
2. Finding Legal Resources
- Where Legal Information Is Located
- Primary Sources and Secondary Sources
- Looking for Legal Resources on the Internet
- Legal Research Websites
3. Identifying Your Legal Issue
- How to Approach Your Research
- Step 1: Is the Issue Civil or Criminal?
- Step 2: Figuring Out the Area of Law You’re Researching
- Step 3: What Are the Resources That Will Help You Find What You Need?
- Step 4: Figure Out Your Legal Research Question
4. Finding and Using Secondary Sources
- Online Resources
- Self-Help Legal Books
- Legal Encyclopedias
- Form Books
- Practice Manuals
- Continuing Legal Education Publications
- Law Reviews and Other Legal Periodicals
- Specialized Loose-Leaf Materials
- Treatises and Monographs
- Restatements of the Law
5. Finding and Using Constitutions, Statutes, Regulations, and Ordinances
- Finding and Using Constitutions
- Finding Federal Statutes
- Finding State Statutes
- Understanding and Using Federal and State Statutes
- Finding and Using Regulations
- Finding and Using Procedural Statutes and Rules
- Finding and Using Local Laws or Ordinances
6. Finding Cases
- Using Citations to Find Cases
- Finding Cases on the Internet
- Finding Cases in the Law Library
- The Next Step
7. Using Case Law
- What Is a Case?
- How Cases Are Published
- How Cases Affect Later Disputes
8. Validating Your Research
- Making Sure It’s “Good Law”
- How to Shepardize a Case
- Shepardizing Statutes
- Using Shepard’s for Research
9. Organizing and Putting Your Legal Research to Use
- Organizing Your Research
- How to Write a Legal Memorandum
- Going to Court
- Finding and Working With a Lawyer
10. Research Hypothetical and Memorandum
- Research Problem: Alimony Hypothetical (West Virginia)
- How to Approach This Question
Topic-Specific Research Sites
Understanding the Basics of the Law
What Is the Law?......................................................................................................... 4
Sources of Law............................................................................................................. 5
Statutes: Legislative-Made Law....................................................................... 7
Common Law: Judicial Interpretation......................................................... 7
Administrative Regulations............................................................................ 10
Local Ordinances................................................................................................ 10
State Versus Federal Law...................................................................................... 10
Issues Covered by State Law.......................................................................... 11
Issues Covered by Federal Law.................................................................... 11
Issues Covered by Both State and Federal Law..................................... 12
The Court System..................................................................................................... 12
How Courts Are Structured............................................................................ 13
Federal Courts...................................................................................................... 15
State Courts........................................................................................................... 16
Trying to research the law can be a daunting task. After all, there’s a whole cadre of professionals trained in this very skill, right? While lawyers do go to court, a good portion of their time is actually spent in an office or library, finding, reading, interpreting, and explaining the law to their clients or to judges in written legal documents. Legal research is an important part of being a lawyer, and of course, clients pay a price for this service—often a very steep price.
There was a time when it was virtually impossible for nonlawyers to access legal information themselves. Fortunately, particularly with the ease and availability of the Internet, that’s no longer the case. Today, many people find it easy to do their own legal research, whether to resolve a private dispute, understand and work with a legal professional, or assist in their own academic or professional development. Often, that research can start from the comfort of a home or office.
In this book, we’ll help you find the resources you need as you conduct your own legal research. But before we get started, we think it helps to have a basic understanding of how the law works. In this chapter, we’ll cover:
what “the law” is
understanding state versus federal law
sources of law, and
how U.S. courts are structured.
These basics will provide the framework for understanding how to conduct legal research, helping you frame your legal questions and find the answers you’re looking for.
What Is the Law?
Most of us don’t spend much time thinking about what “the law” means. The law doesn’t enter our daily lives in a recognizable way, and only becomes visible to us when we get a traffic ticket, are denied a government service, buy or sell a house, or dispute a bill. In the real world, “the law” is an amorphous set of rules that govern individual and group behavior. We don’t even know about many of these rules, or we understand them only generally. For example, you don’t need to see a written law to know that it’s a crime to steal or destroy someone else’s property. But the rules have force because if we break them, we can be held responsible by our legal system.
That being said, even if we understand what “the law” is, it doesn’t mean it always functions in a predictable way. After all, prosecutors choose whether to bring charges against defendants, so committing a crime doesn’t necessarily lead to prosecution. And while we may be entitled to a government service—a Social Security payment, for example—that doesn’t help much when the Social Security Administration denies a claim. The reality is, laws are applied by real people in the real world, so things don’t always play out as perfectly as they might look on paper.
This explains, in part, the legal profession. Different people have different understandings not only of factual events—for example, whether you or the other driver ran a stop sign—but different understandings about what the law means. It’s because of these different interpretations that people often end up in court.
Sources of Law
The “law” is not one body of complete works. Instead, it is several separate collections, one or more of which may apply to any given situation. Law includes:
The U.S. Constitution. This high-level document is comparatively short, but lays out some of the most important principles for how our legal system is structured, and what authority the various branches of government have to make new laws.
Federal statutes. As we’ll explain below, Congress frequently passes new laws that become statutes.
Federal cases. Federal courts decide cases about federal law, interpreting federal statutes and sometimes creating rules when needed. They also hear cases between two parties that are from different states.
Federal administrative regulations. Some agencies, like the Equal Employment Opportunity Commission, the Internal Revenue Service, and the Environmental Protection Agency, are created by the U.S. Congress and are part of and overseen by the executive branch. They issue regulations that explain and expand federal statutes, and are part of federal administrative law.
Sovereign Native American tribes have their own courts and laws. These essentially function outside the system we describe here, and are beyond the scope of this book.
State constitutions. Like the federal government, state governments have constitutions that form the basis of their legal structure.
State statutes. Like Congress, state legislatures pass statutes, which constitute state statutory law. While federal laws apply everywhere, these laws apply only within the state.
State cases. State courts decide cases about state law.
State administrative regulations. As at the federal level, agencies are created by state legislatures but overseen by state governors. They write regulations, which constitute state administrative law.
Local ordinances. Local governments pass ordinances that become police codes, building codes, planning codes, health codes, and so forth.
In most cases, your legal research will probably touch on only two or three of these legal sources. For example, if you want to sue your automobile mechanic because he didn’t properly fix your brakes, causing an accident, this will probably be an area of state statutory and case law, but won’t require you to look at the federal Constitution or local ordinances. We’ll explain more about these sources of law below.
Both state constitutions and the federal Constitution are the founding documents that form the basis of authority for all other forms of law—that is, they tell the various branches of government what authority they have to create new law. As we’ll explain below, legislatures and judges create law, but that law cannot conflict with the constitution.
Statutes: Legislative-Made Law
What most of us tend to think of when we think of “the law” are the acts passed by our national and state legislatures. We may understand, for example, that Congress has decided that capital gains will currently be taxed at 15%, or that our state legislators have determined that it’s illegal to discriminate against someone in the workplace based on their sexual orientation.
Over the years, as acts are passed, they are written down and organized or “codified.” They create what are known, collectively, as statutes. Both federal and state statutes are usually grouped together by subject matter—for example, the California Family Code includes most of the laws that affect families that are facing divorce, legal separation, or child custody disputes, while Title 12 of the Connecticut code deals with state taxation. When it comes to legal research, this makes it much easier to find relevant materials. As new acts are passed, they either amend existing statutes or add new ones, and are incorporated into this subject-matter scheme.
We’ll discuss how to use and understand statutes in greater detail in Chapter 5.
Common Law: Judicial Interpretation
While statutes are a very important part of our law, they actually make up a very small part of it. That’s primarily because we don’t always agree on what the statutes, and other sources of law like the Constitution, mean. As a result, interpreting what these laws say is largely a responsibility of our court system. For example, in a child custody case, a law might say that custody should be determined with the “best interests” of the child in mind. The child’s mother may think that means living with her with occasional visits to the child’s father, whereas the father might feel the child should live part-time with each parent. On each side, the parties have a different interpretation of what the law means and how it protects them.
As a result, in many cases judges must look at what the law says, then try to determine what it means in light of the circumstances of the people before the court, the ones involved in the lawsuit. When they do, they may create a document explaining or summarizing their rationale, called an “opinion.” Judicial opinions form what is known as “common law” or “case law.” In essence, case law is a judge’s view of what the statute means when applied to the particular facts of the case before the court.
Common law is not written down in one place, like a statute, with a bright-line rule. Instead, you’ll find it in a judicial opinion or a series of opinions. Like statutes, these are grouped together, only not generally by subject matter—they’re grouped by date, in publications called “reports” or “reporters.”
Because common law is part of the law, judges have to consider not only what statutes say, but what judges before them have said on the same issue. In other words, court opinions serve as authority or “precedent,” that other judges are sometimes required to consider when deciding similar cases. Sometimes this is referred to as “binding” authority, because the judge in a subsequent case is bound to follow it.
As we’ll explain below, courts are arranged in a hierarchal system that means that not every judge has to consider the opinion of every other judge in the country each time a similar issue comes up. However, when they do have to rely on the interpretations of others, they turn to judicial opinions. When you’re researching a legal issue, you will have to learn how to read judicial opinions to gather the salient facts and law that apply to your issue. We’ll explain more about how to do that in Chapter 7.
What If a Judge Was Wrong?
The system of judicial precedent works great when judges correctly interpret the law. But what if they don’t—for example, what if judges decide, as they did many years ago, that it’s okay to segregate people based on their race? Is a judge bound to follow a law that is wrong?
Fortunately, the answer is no—but judges don’t deviate very often. Judges respect a legal principle called stare decisis—Latin for “let the decision stand.” Unless there is a very good reason to depart from current law, judges generally do not.
This does not mean that every judge’s decisions stand forever. Courts do recognize mistakes, take current social values and mores into account, and reject old case law. But the principle of stare decisis is a strong one. Judges are reluctant to discard well-established rules and take pains to explain a significant departure from precedent.
If Congress disagrees with a court’s decision, however, it can usually pass a new law that contradicts it. (This isn’t true if the case interprets the Constitution, though, because Congress’s power to legislate can’t conflict with the Constitution.) For example, Lily Ledbetter sued her employer, claiming that it had discriminated against her by paying her less than her male peers. But the Supreme Court held that she had filed her suit too late, and upheld the trial court, which had thrown the case out. (Ledbetter v. Goodyear Tire & Rubber, 510 U.S. 618 (2007).) The Court decided Ledbetter hadn’t met the legal requirement to bring her claim within 180 days, because the decision to pay Ledbetter less had happened many years before. Ledbetter argued that each time she received a paycheck that was for less than her peers, it was a “continuing violation” of the law, so the 180 days started to run from the time she received her last paycheck. Even though the Supreme Court disagreed with Ledbetter, shortly thereafter Congress passed the Lily Ledbetter Fair Pay Act, taking Ledbetter’s side. Now, employees in Ledbetter’s shoes have the benefit of the act. Without it, courts would be required to treat those employees the same way the Supreme Court treated Ledbetter.
Both the federal and many state governments have administrative agencies that work in specific areas of law—for example, the U.S. Department of Labor oversees the wages and working conditions of the nation’s workers. These agencies are created by Congress, but are under the leadership of the executive branch—either the president or the governor. The agencies are given the authority to adopt regulations that specify how certain laws will be carried out. While Congress may pass laws that provide the framework for how the law is implemented, regulations often provide detail, frequently based on the experience and feedback from citizens who have questions about the law. For example, while the existence of a mileage reimbursement rate is part of federal law, the amount of that rate is set each year by the IRS.
Some areas of the law aren’t covered by either state or federal law, or at least they aren’t covered completely. In that case, local bodies like city councils or county boards have authority to regulate. You may have come across local ordinances if you have needed a building permit or have questioned zoning laws, for example. Often, these ordinances are enforced and regulated by the bodies that create them, and there are options to resolve disputes that don’t involve the court system—for example, appealing a decision by the local planning commission may involve a hearing before the commission, rather than going to court.
State Versus Federal Law
The law comes from more than one source. The primary sources are state law and federal law, though as we’ve explained, local bodies regulate some areas too.
Describing the difference between state and federal law could send us into a long-winded explanation of constitutional principles, but we’ll try and keep it simple. The main legal text that creates federal law is the U.S. Constitution. The Constitution lays out several specific areas that the federal government regulates fully, without state intervention—for example, maritime law. Then there are areas the federal government is allowed to regulate. And finally, the Constitution also says that if an area doesn’t fall within the areas regulated by the federal government, then only states have the power to regulate that area.
Of course, what falls within each realm has resulted in a lot of judicial interpretation and opinion, and there are many areas that are regulated by both state and federal law. The general principle, however, is that certain areas—federal taxes and immigration, for example—are governed solely by federal law, and lots of other areas the federal government doesn’t regulate—such as landlord-tenant law—are primarily regulated by the states.
Issues Covered by State Law
Each state has its own set of statutes, as well as common law. Most states have laws regulating the following areas: child custody, conservatorships, contracts, corporations, crimes (in most cases), divorce, durable powers of attorney for health care and financial management, guardianships, landlord-tenant relationships, licensing (businesses and professions), living wills, motor vehicles, partnerships, paternity, personal injuries, probate, property taxation, real estate, trusts, wills, workers’ compensation, and zoning. Except in rare cases (for example, the federal government regulates disclosure of lead-based paint hazards in residential rentals), these issues will not be covered by federal law.
Issues Covered by Federal Law
For most of our country’s history, federal law was limited to court interpretations of the U.S. Constitution and the Bill of Rights, as well as the topics that Congress is specifically authorized to address under the Constitution, such as the regulation of commerce and immigration. But as courts have interpreted the Constitution to allow the federal government to regulate more areas, federal law may control a broad range of social welfare, health, and environmental issues.
Federal law generally controls agriculture, bankruptcy, copyright, crimes involving the movement of people or substances across state lines for illegal purposes, customs, federal tax, food and drug regulation, immigration, interstate commerce, maritime, Native Americans, patent, postal, Social Security, and trademark.
Issues Covered by Both State and Federal Law
A large number of legal areas now involve both state and federal law. Federal and state governments both are concerned about such topics as environmental law, consumer protection, and the enforcement of child support statutes; and the Constitution doesn’t limit who can do what.
This is primarily true because Congress is authorized by the Constitution to spend money for the general welfare, and it creates programs under which federal funds are offered to state governments under certain conditions. (Usually, states must meet the conditions and contribute financially too.) A good general rule is that if federal funds are involved, at least one element of federal law is involved.
When states participate in these programs, typically federal law gives some latitude in how the program is conducted, so states pass their own laws and regulations to govern the operation. Of course, courts interpret these statutes and regulations to create common law on the issue. So federal cost-sharing programs result in new state law, too.
Areas covered by both state and federal law include consumer protection, employment, environmental protection, health law, labor law, occupational safety, subsidized housing, transportation, unemployment insurance, veterans’ benefits, and welfare law. If you have a problem that is affected by both federal and state law, you may have to look to both state and federal law background resources to get a firm handle on your problem. We’ll explain more about how to do that in Chapter 4.
The Court System
As explained above, when drafting opinions that interpret the law, judges are bound by the opinions of other judges. But judges don’t have to follow every opinion that has gone before, interpreting that statute. Courts are arranged in a certain hierarchy, which makes judges bound by the decisions of only those higher up in the hierarchy.
How Courts Are Structured
Both state and federal courts are structured in a similar way. If you wish to bring a lawsuit, you will usually file a suit in the trial court. This may go by one of several different names—for example, the superior court, the municipal court, or in New York (confusingly enough), the supreme court. But the function of this first court is the same: Everything up to and including a trial will happen here. For the most part, trial courts do not issue opinions that other courts are required to follow.
After the trial court, the next level up is called the appellate court. If you reach a final resolution in the trial court—for example, the judge rules against you—and you believe the decision is wrong, you have the right to appeal the decision. In most instances, the role of the appellate court isn’t to start your trial over, hearing the evidence again. Instead, they look at what the trial court did and decide whether it made any mistakes applying the law to the facts. Appellate courts often issue opinions, and those opinions are binding on the trial courts below it within its state.
The highest court is usually called the supreme court—though not always (as explained, that’s the name for the trial court in New York). Also, some states have no intermediate appellate court, so appeals go straight to the supreme court of that state.
The supreme court is another appellate court—again, it will usually only decide whether the court below it correctly interpreted the law and applied it to the facts; it won’t gather new evidence or start things over. Except in certain kinds of cases—for example, death penalty cases—most supreme courts get to decide which cases they will hear. If you don’t agree with the decision made by the appellate court (again, except in certain cases that can come right from the trial court to the supreme court), you can ask the supreme court to hear your case, but they may refuse, in which case, the appellate court’s ruling stands.
There are all kinds of exceptions to this general structure. For example, in many states, claims under a certain amount are heard in small claims court, not the trial court. The trial court may act as the appellate court, and can review the entire case, like new. (This is called de novo review.) Or, if you are filing for bankruptcy and your creditors challenge it, that case will be handled in federal bankruptcy court. We won’t be able to point out every exception to you, so you may have to do some research to figure out the procedure in the court system you’re in. We’ll explain how to do that in Chapter 2.
Most Cases Don’t Go to Trial
Even though our court system is set up to take cases to trial, in the vast majority of disputes, this isn’t what happens. Here are some of the most common reasons why:
Charges are dropped. In criminal cases, prosecutors may decide not to pursue the case for several different reasons—they find new evidence that changes their minds, they do not think they have enough evidence to convince a jury, or they do not have the time or resources to deal with the case.
The parties reach an agreement. In criminal cases, this is called a “plea bargain.” The prosecutor and defendant may agree that the defendant will voluntarily plead guilty to a lesser crime with lesser penalties—for example, a misdemeanor theft charge instead of a felony. In civil suits, the parties may settle the case, perhaps with the defendant agreeing to pay something to the plaintiff, but less than was asked for.
The court may rule on a “dispositive motion.” To avoid wasting court time and resources, parties can ask the judge to issue a ruling or order before the case goes to trial. Some of these rulings have the effective of ending the case, and those decisions can be appealed. We’ll explain more about dispositive motions in Chapter 9.
If you have a lawsuit that involves a federal issue or is otherwise within the court’s jurisdiction—meaning it covers an area that federal courts are allowed to hear—you may file it in the federal trial court, called the U.S. District Court. You can’t file your lawsuit in any district court, however—as we’ll explain in Chapter 9, there are rules to prevent you from showing up at a Nebraska courthouse if you and the defendant both live in Oregon, and the incident that resulted in a lawsuit took place in Oregon. There is at least one district court in every state, but often more, breaking the state into regions. District courts don’t usually issue “published” opinions (opinions that are considered binding on other courts), though other courts may take these decisions into account.
Above the district court is the appellate court, called the circuit court in the federal system. There are 13 circuits, divided by area of the country. Most of the circuits are numbered, except for the DC Circuit and the Federal Circuit. The First through Eleventh Circuits all cover specific parts of the United States, while the DC and Federal Circuits are based in Washington DC. The DC Circuit hears appeals from cases in the District of Columbia, while the Federal Circuit deals with nationwide claims based on particular areas of law including international trade, government contracts, patents, trademarks, certain money claims against the United States government, federal personnel, and veterans’ benefits.
The decisions of the circuit courts are binding on all the district courts that are part of that circuit, but not on other circuit courts or the district courts in those other circuits. For example, the Fifth Circuit includes Texas, Louisiana, and Mississippi. If the Fifth Circuit issues a ruling, it will bind all district courts in those three states; however, it will not be binding on the Eleventh Circuit. The Eleventh Circuit may consider it “persuasive,” meaning they may find the logic compelling and may consider it to craft their own decisions. But they are not bound to do so.
Want to find the federal court where you live? Visit www.uscourts.gov/court_locator.aspx to see both the district and circuit courts.
At the very top of the hierarchy in federal court system is the U.S. Supreme Court. Most of us have heard of the Supreme Court, and maybe even some of the major cases that have come out of it, like Roe v. Wade, Brown v. Board of Education, and Bush v. Gore. The Supreme Court is made up of nine members who are appointed for an unlimited term by the president of the United States. As appointees who don’t have to worry about reelection, the Supreme Court is supposed to be less politically biased than the legislature or president.
Except for “appeals of right”—those situations in which parties have an automatic right to Supreme Court review—the Court chooses which cases it will hear. Very frequently, the Court will choose cases involving conflicting opinions in the circuit courts. So if the Ninth Circuit says it’s okay to do something and the First Circuit says it isn’t, the Supreme Court may issue a rule that will bind both. All federal courts must follow the Supreme Court’s decision.
Most state court systems follow a similar structure to the federal system. Usually, the only state court opinions that are published are those issued by appellate courts, including the state’s supreme court.
It’s important to recognize that state court opinions don’t generally bind federal courts, and vice versa. This makes sense. For the most part, federal courts are dealing with federal law issues, and state courts are dealing with issues related to state laws. So neither judicial system tells the other how to interpret its own laws.
But this gets tricky when state or federal court systems must interpret each other’s laws. This happens, for example, when both state and federal issues are part of a single lawsuit. Let’s say you believe your employer discriminated against you based on your race. You might file a lawsuit alleging that the employer violated federal and state anti-discrimination laws. But it wouldn’t make sense to have two different cases, in two different courts, with two different judges. So you are permitted to bring both claims in one place.
If you choose state court, the state court will have to apply federal law to decide whether your rights under federal law have been violated. If there’s an issue of federal law that the judge must interpret, the judge will turn to federal law to find the answer, not state law. In that case, the judge is bound by federal law.