b'\x0cSources of\nAmerican Law\nAn Introduction to Legal Research\nFifth Edition\n\nBeau Steenken\nInstructional Services Librarian & Professor of Legal Research\nUniversity of Kentucky J. David Rosenberg College of Law\n\nTina M. Brooks\n\nElectronic Services Librarian & Associate Professor of Legal Research\nUniversity of Kentucky J. David Rosenberg College of Law\n\nCALI eLangdell\xc2\xae Press 2021\n\n\x0cAbout the Authors\nBeau Steenken joined the Law Library Faculty at the University of\nKentucky in September 2010. As Instructional Services Librarian, he\nengaged in a revamp of the Legal Research curriculum as the UK College\nof Law shifted from an adjunct-model to a full-time faculty model of LRW\ninstruction. He teaches two to four sections of 1L Legal Research a year\nand also coordinates informal research instruction of various sorts. Before\ncoming to the University of Kentucky, he managed to collect a B.A., a\nJ.D., and an M.S.I.S. from the University of Texas, as well as an M.A. in\nhistory from Texas State University and an LL.M. in Public International\nlaw from the University of Nottingham, where he also took up archery.\n\nTina M. Brooks joined the Law Library Faculty at the University of\nKentucky in July 2011. As Electronic Services Librarian, she manages the\nUniversity of Kentucky Law Library\xe2\x80\x99s website and electronic resources and\nalso teaches two sections of the 1L Legal Research course. She received a\nB.A. in History and Spanish from the University of Northern Iowa in\n2005, a J.D. from the University of Nebraska College of Law in 2009, and\nan M.S. in Information Studies from the University of Texas School of\nInformation in 2011.\n\ni\n\n\x0cAbout eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a\nnonprofit organization with over 200 member US law schools, an\ninnovative force pushing legal education toward change for the better.\nThere are benefits to CALI membership for your school, firm, or\norganization. eLangdell\xc2\xae is our electronic press with a mission to publish\nmore open books for legal education.\nHow do we define "open?"\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and e-readers;\nas well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more lenient\ncopyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials for\nfree.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org. Show\nsupport for CALI by following us on Facebook and Twitter, and by telling\nyour friends and colleagues where you received your free book.\n\nii\n\n\x0cNotices & Permissions\nCALI gratefully acknowledges permission from the following individuals\nand organizations to reprint materials:\nFigure 2.3 Screenshot of a keyword search and case results in Lexis+TM.\nReprinted from LexisNexis with permission. Copyright 2021 LexisNexis.\nAll rights reserved.\nFigure 2.3.2 Screenshot and Screencast of filters in Westlaw Edge. \xc2\xa9\n2019 Thomson Reuters. Reprinted with the permission of Thomson\nReuters\nFigure 2.3.1 Screenshot and screencast of browsing content on Lexis+TM.\nReprinted from LexisNexis with permission. Copyright 2021 LexisNexis.\nAll rights reserved.\n\nFigure 2.3.3 Screenshot of Westlaw Answers. \xc2\xa9 2019 Thomson Reuters.\nReprinted with the permission of Thomson Reuters.\nFigure 3.4.1a: The table of contents for Chapter 10 of Title 18 of the\nUnited States Code Annotated, \xc2\xa9 2015 Thomson Reuters. Reprinted with\nthe permission of Thomson Reuters.\nFigure 3.4.1b: The table of contents for Title 18 of the United States Code\nAnnotated, \xc2\xa9 2015 Thomson Reuters. Reprinted with the permission of\nThomson Reuters.\nFigure 3.4.2: KY. REV. STAT. ANN. \xc2\xa7 411.070 (Lexis 2005) Reprinted\nfrom LexisNexis with permission. Copyright 2016 Matthew Bender &\nCompany, Inc., a LexisNexis company. All rights reserved.\nFigure 3.4.3.2: Excerpt from the 2016 General Index A-C of West\xe2\x80\x99s\nUnited States Code Annotated., \xc2\xa9 2016 Thomson Reuters. Reprinted with\nthe permission of Thomson Reuters.\nFigure 3.4.3.3: The 2014 U.S.C.A. Popular Names Table Entry for the\nReligious Freedom Restoration Act, \xc2\xa9 2014 Thomson Reuters. Reprinted\nwith the permission of Thomson Reuters.\nFigure 3.4.3.4: Sample Pocket-Part Entries from Michie\xe2\x80\x99s Kentucky\nRevised Statutes. KY. REV. STAT. ANN. \xc2\xa7 507.020, \xc2\xa7 507.030 (LexisNexis\nSupp. 2015). Reprinted from LexisNexis with permission. Copyright 2016\nMatthew Bender & Company, Inc., a LexisNexis company. All rights\nreserved.\n\niii\n\n\x0cFigure 3.4.4.1a: Screenshot and screencast of retrieving a statute by\ncitation on Westlaw Edge. \xc2\xa9 2021 Thomson Reuters. Reprinted with the\npermission of Thomson Reuters.\nFigure 3.4.4.1b: Screenshot and screencast of accessing a code section by\nbrowsing the table of contents on Westlaw Edge. \xc2\xa9 2021 Thomson\nReuters. Reprinted with the permission of Thomson Reuters.\nFigure 3.4.4.2: Screenshot and screencast of finding a statute by using an\nindex on Westlaw Edge. \xc2\xa9 2021 Thomson Reuters. Preprinted with the\npermission of Thomson Reuters.\nFigure 3.4.4.4a: Screenshot of a code section and annotations on\nLexis+TM. Reprinted from LexisNexis with permission. Copyright 2021\nLexisNexis. All rights reserved.\nFigure 3.4.4.4b: Screenshot and screencast of a code section and\nannotations on Westlaw Edge. \xc2\xa9 2021 Thomson Reuters. Reprinted with\nthe permission of Thomson Reuters.\nFigure 4.3.1: A Map of West\xe2\x80\x99s Regional Reporter System. Reprinted with\nthe permission of Thomson Reuters.\nFigure 4.3.3: A Case as it Appears in a West Reporter, 293 N.W.2d 317, \xc2\xa9\n1982 West Publishing Company. Reprinted with the permission of\nThomson Reuters.\nFigure 4.4.2a: Sample Entry from the Federal Practice Digest 5th, 3 F P D\n5th 554, \xc2\xa9 2013 Thomson Reuters. Reprinted with the permission of\nThomson Reuters.\nFigure 4.4.2b: An Excerpt of West\xe2\x80\x99s Outline of the Law as found in the\nFederal Practice Digest 5th, 3 F P D 5th 467, \xc2\xa9 2013 Thomson Reuters.\nReprinted with the permission of Thomson Reuters.\nFigure 4.4.3: Excerpt from West\xe2\x80\x99s Key Number Translation Table for\nConstitutional Law, 5 Ky D 2d 168. \xc2\xa9 2007 Thomson/West. Reprinted\nwith the permission of Thomson Reuters.\nFigure 4.5a: Screenshot and screencast of an anatomy of a case on\nWestlaw Edge. \xc2\xa9 2021 Thomson Reuters. Reprinted with the permission of\nThomson Reuters.\nFigure 4.5b: Screenshot and screencast of using the topic and keynumber\nsystem on Westlaw Edge. \xc2\xa9 2021 Thomson Reuters. Reprinted with the\npermission of Thomson Reuters.\n\niv\n\n\x0cFigure 6.3.2a Screenshot of accessing a case\xe2\x80\x99s subsequent treatment on\nWestlaw Edge. \xc2\xa9 2019 Thomson Reuters. Reprinted with the permission\nof Thomson Reuters.\nFigure 6.3.2b Screenshot of filters in a Shepard\xe2\x80\x99s Report on Lexis+TM.\nReprinted from LexisNexis with permission. Copyright 2021 LexisNexis.\nAll rights reserved.\nFigure 6.5 Screenshot and screencast of using a citator as a research tool\non Westlaw Edge. \xc2\xa9 2021 Thomson Reuters. Reprinted with the\npermission of Thomson Reuters.\nFigure 7.3.2 Screenshot and screencast of Field searching in cases in\nWestlaw Edge. \xc2\xa9 2019 Thomson Reuters. Reprinted with the permission\nof Thomson Reuters.\nFigure 7.4.1 Screenshot and screencast of browsing, filtering, and\nadvanced search operators in Lexis+TM. Reprinted from LexisNexis with\npermission. Copyright 2021 LexisNexis. All rights reserved.\nFigure 7.4.3a Screenshot and screencast of using key numbers as a\nsearch term in Westlaw Edge. \xc2\xa9 2019 Thomson Reuters. Reprinted with\nthe permission of Thomson Reuters.\nFigure 7.4.3b Screenshot of Headnote of Headnote 5 of Howes v. Fields,\n565 U.S. 499 (2012) in Lexis+TM and its associated Lexis Topics. Reprinted\nfrom LexisNexis with permission. Copyright 2021 LexisNexis. All rights\nreserved.\nFigure 8.3.1.1: Screenshot of Filters for Narrowing Sources in Lexis+TM.\nReprinted from LexisNexis with permission. Copyright 2021 LexisNexis.\nAll rights reserved.\nFigure 8.3.1.2: Screenshot and screencast of using Worldcat to find a\nTreatise. \xc2\xa9 2015 OCLC Online Computer Library Center, Inc. Used with\nOCLC\xe2\x80\x99s permission. Worldcat is a registered trademark/service mark of\nOCLC.\nFigure 8.3.3: Screenshot of using an electronic index on Westlaw Edge. \xc2\xa9\n2019 Thomson Reuters. Reprinted with the permission of Thomson\nReuters.\nFigure 8.3.6: Screenshot and screencast of HeinOnline for journal\nresearch. Used with permission of William S. Hein & Co., Inc.\n\nv\n\n\x0cThis is the first version of the fifth edition of this book, updated June,\n2021. Visit http://elangdell.cali.org for the latest version and for revision\nhistory.\nThis work by Beau Steenken and Tina Brooks is licensed and published by\nCALI eLangdell Press under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License.\nIn brief, the terms of that license are that you may copy, distribute, and\ndisplay this work, or make derivative works, so long as\n\xef\x82\xb7\n\nyou give CALI eLangdell Press and the author credit;\n\n\xef\x82\xb7\n\nyou do not use this work for commercial purposes; and\n\n\xef\x82\xb7\n\nyou distribute any works derived from this one under the same\nlicensing terms as this.\n\nSuggested attribution format for original work:\nBeau Steenken & Tina Brooks, Sources of American Law: an\nIntroduction to Legal Research, Fifth Edition, Published by CALI\neLangdell Press. Available under a Creative Commons BY-NC-SA 3.0.\nCALI and eLangdell\xc2\xae are trademarks protected by United States federal\nand common law and owned by The Center for Computer-Assisted Legal\nInstruction. The cover art design is a copyrighted work of CALI.\nPermission is granted to use the cover art in conjunction with using other\nparts of this book under its Creative Commons license.\nThis material does not contain nor is intended to be legal advice. Users\nseeking legal advice should consult with a licensed attorney in their\njurisdiction. The editors have endeavored to provide complete and accurate\ninformation in this book. However, CALI does not warrant that the\ninformation provided is complete and accurate. CALI disclaims all liability\nto any person for any loss caused by errors or omissions in this collection\nof information.\nVersion 1 Fifth Edition: Updated June 28, 2021\n\nvi\n\n\x0cTable of Contents\nAbout the Authors .............................................................................................. i\nAbout eLangdell Press ....................................................................................... ii\nNotices & Permissions ..................................................................................... iii\nTable of Contents ................................................................................................. vii\nPreface ................................................................................................................ xii\nThe United States Legal System ....................................................................... 1\n1.1 Learning Objectives for Chapter 1 ....................................................... 1\n1.2 Introduction to Researching the Law .................................................. 2\n1.3 Federalism................................................................................................. 3\n1.3.1 Origins of American Federalism ................................................... 4\n1.3.2 Impact of Federalism on Legal Research .................................... 6\n1.4 Separation of Powers and Sources of Law .......................................... 9\n1.4.1 Constitutions .................................................................................... 9\n1.4.2 Statutes ............................................................................................ 10\n1.4.3 Judicial Opinions ........................................................................... 11\n1.4.4 Administrative Regulations .......................................................... 13\n1.5 Hierarchy of Authority ......................................................................... 13\n1.5.1 Primary v. Secondary Authority .................................................. 14\n1.5.2 Mandatory v. Persuasive Authority............................................. 14\n1.5.3 Determining Weight of Authority .............................................. 15\n1.6 Concluding Exercises for Chapter 1 .................................................. 17\n1.6.1 Introductory Hierarchy of Authority Exercise ......................... 18\n1.6.2 Intermediate Hierarchy of Authority Exercise ......................... 19\n1.6.3 Advanced Hierarchy of Authority Exercise .............................. 20\n1.7 Recommended CALI Lessons for Further Practice ........................ 22\nIntroduction to Electronic Research ............................................................. 23\n2.1 Learning Objectives for Chapter 2 ..................................................... 23\n2.2 Introduction to Electronic Research .................................................. 23\n\nvii\n\n\x0c2.3 Basic Electronic Research Processes.................................................. 25\n2.3.1 Browsing ......................................................................................... 26\n2.3.2 Filtering ........................................................................................... 27\n2.3.3 Natural Language Searching ........................................................ 28\n2.3.4 Boolean Operators ........................................................................ 30\n2.4 Finding Aids ........................................................................................... 31\n2.5 Citing References................................................................................... 32\nConstitutions & Statutes ................................................................................. 34\n3.1 Learning Objectives for Chapter 3 ..................................................... 34\n3.2 Constitutions & Statutes ...................................................................... 35\n3.3 Life Cycle of a Statute ........................................................................... 36\n3.4 Using Codes ........................................................................................... 38\n3.4.1 Codes & Topical Organization.................................................... 38\n3.4.2 Annotations .................................................................................... 40\n3.4.3 Using Codes in Print ..................................................................... 42\n3.4.4 Using Codes Electronically .......................................................... 49\n3.5 Local Legislation .................................................................................... 55\n3.6 Interpreting Constitutions and Statutes ............................................. 56\n3.6.1 Constitutional History & Framers\xe2\x80\x99 Intent ................................. 56\n3.6.2 Legislative History & Legislative Intent ..................................... 58\n3.7 Concluding Exercises for Chapter 3 .................................................. 65\n3.7.1 Introductory Exercise on Code Research .................................. 65\n3.7.2 Intermediate Exercise on Code Research .................................. 66\n3.7.3 Advanced Exercise on Code Research....................................... 67\n3.8 Recommended CALI Lessons for Further Practice ........................ 68\nJudicial Opinions & Common Law ............................................................... 70\n4.1 Learning Objectives for Chapter 4 ..................................................... 70\n4.2 Judicial Opinions and the Common Law .......................................... 71\n4.3 Case Reporters ....................................................................................... 73\n4.3.1 Types of Reporters ........................................................................ 73\n\nviii\n\n\x0c4.3.2 Finding an Opinion in a Reporter............................................... 76\n4.3.3 Using a Reported Opinion ........................................................... 78\n4.3.4 Unreported Cases & Court Dockets .......................................... 80\n4.4 Digests ..................................................................................................... 82\n4.4.1 Types of Digests ............................................................................ 82\n4.4.2 Using Digests to Find Opinions ................................................. 84\n4.4.3 Updating Digests ........................................................................... 89\n4.5 Cases on the Legal Research Platforms ............................................. 92\n4.6 Concluding Exercises for Chapter 4 .................................................. 94\n4.6.1 Introductory Exercise on Case Research ................................... 94\n4.6.2 Intermediate Exercise on Case Research ................................... 95\n4.6.3 Advanced Exercise on Case Research........................................ 96\n4.7 Recommended CALI Lessons for Further Practice ........................ 97\nAdministrative Regulations ............................................................................. 98\n5.1 Learning Objectives for Chapter 5 ..................................................... 98\n5.2 Delegated Rule-Making Authority ...................................................... 99\n5.3 Researching Federal Regulations ...................................................... 100\n5.3.1 The C.F.R...................................................................................... 100\n5.3.2 The L.S.A. ..................................................................................... 104\n5.3.3 The F.R.......................................................................................... 106\n5.3.4 Federal Regulations Online ........................................................ 111\n5.3.5 Administrative Decisions & Guidance..................................... 111\n5.4 State Regulations ................................................................................. 113\n5.5 Concluding Exercises for Chapter 5 ................................................ 117\n5.5.1 Introductory Exercise on Researching Regulations ............... 117\n5.5.2 Intermediate Exercise on Researching Administrative\nGuidance................................................................................................. 118\n5.5.3 Advanced Exercise on Researching Regulations .................... 119\n5.6 Recommended CALI Lessons for Further Practice ...................... 120\n\nix\n\n\x0cUpdating Sources of Law .............................................................................. 122\n6.1 Learning Objectives for Chapter 6 ................................................... 122\n6.2\n\nIntroduction to Updating Sources of Law ............................... 123\n\n6.3\n\nSubsequent Treatment of Judicial Opinions............................ 123\n\n6.3.1\n\nHow Subsequent Treatment Affects Opinions .................. 124\n\n6.3.2\n\nHow to Determine Subsequent Treatment ......................... 125\n\n6.4\n\nSubsequent Treatment of Statutes and Regulations ............... 129\n\n6.5\n\nCitators as Research Tools ......................................................... 130\n\n6.6 Concluding Exercises for Chapter 6 ................................................ 132\n6.6.1 Introductory Exercise on Updating Sources of Law ............. 132\n6.6.2 Intermediate Exercise on Using Citators as Research Tools 133\n6.6.3 Advanced Exercise on Using Citators...................................... 134\n6.7 Recommended CALI Lessons for Further Practice ...................... 135\nAdvanced Electronic Research .................................................................... 136\n7.1 Learning Objectives for Chapter 6 ................................................... 136\n7.2 Importance of Efficient Electronic Research ................................. 136\n7.3 Advanced Searching ............................................................................ 137\n7.3.1 Search Operators ......................................................................... 137\n7.3.2 Field Searching ............................................................................. 140\n7.4 Combining Process for Efficiency.................................................... 142\n7.4.1 Browsing, filtering, and advanced search operators............... 143\n7.4.2 Advanced searching within citing references .......................... 144\n7.4.3 Advanced search operators with key numbers or Lexis Topic144\n7.5 Limitations to Electronic Research .................................................. 146\n7.6 Concluding Exercises for Chapter 5 ................................................ 148\n7.6.1 Introductory Exercise on Electronic Research ....................... 148\n7.6.2 Intermediate Exercise on Electronic Research ....................... 148\n7.6.3 Advanced Exercise on Electronic Research............................ 149\n7.7 Recommended CALI Lessons for Further Practice ...................... 151\n\nx\n\n\x0cSecondary Sources.......................................................................................... 152\n8.1 Learning Objectives for Chapter 8 ................................................... 152\n8.2 Overview of Legal Secondary Sources............................................. 153\n8.2.1 Common Types of Secondary Sources .................................... 153\n8.2.2 Uses of Secondary Sources ........................................................ 158\n8.3 Researching Secondary Sources ........................................................ 160\n8.3.1 Finding an Appropriate Secondary Source.............................. 161\n8.3.2 Using Secondary Sources in Print ............................................. 165\n8.3.3 Using Electronic Secondary Sources ........................................ 167\n8.3.4 Law Review & Journal Articles ................................................. 168\n8.4 Concluding Exercises for Chapter 8 ................................................ 171\n8.4.1 Introductory Exercise on Secondary Sources ......................... 171\n8.4.2 Intermediate Exercise on Secondary Sources ......................... 172\n8.4.3 Advanced Exercise on Secondary Sources .............................. 173\n8.5 Recommended CALI Lessons for Further Practice ...................... 174\nThe Research Process .................................................................................... 177\n9.1 Learning Objectives for Chapter 9 ................................................... 177\n9.2 Essential Steps of the Research Process .......................................... 178\n9.2.1 Familiarize Yourself with the Legal Problem .......................... 178\n9.2.2 Define the Scope of the Research............................................. 179\n9.2.3 Construct Search Queries ........................................................... 180\n9.2.4 Gather Primary Authorities ....................................................... 182\n9.2.5 Analyze and Update Primary Authorities ................................ 184\n9.2.6 Research and Writing as a Recursive Process ......................... 185\n9.3 Common Research Concerns ............................................................ 186\n9.3.1 When to Stop Researching ......................................................... 186\n9.3.2 Not Finding Enough Relevant Authorities ............................. 186\n9.3.3 Finding Too Many Relevant Authorities ................................. 187\n9.4 Concluding Remarks ........................................................................... 188\n9.5 Recommended CALI Lessons for Further Practice ...................... 188\n\nxi\n\n\x0cPreface\nAt its most basic definition the practice of law comprises conducting\nresearch to find relevant rules of law and then applying those rules to the\nspecific set of circumstances faced by a client. However, in American law,\nthe legal rules to be applied derive from myriad sources, complicating the\nprocess and making legal research different from other sorts of research.\nThis text introduces law students to the new kind of research required to\nstudy and to practice law. It seeks to demystify the art of legal research by\nfollowing a \xe2\x80\x9cSource and Process\xe2\x80\x9d approach. First, the text introduces\nstudents to the major sources of American law and describes the forms the\nvarious authorities take in both print and electronic form. After establishing\nthis base, the text proceeds to instruct students on advanced uses of\nelectronic tools. Finally, the text illustrates how the different pieces come\ntogether in the legal research process.\nThe text is intended to be used for introductory legal research courses for\nfirst year law students with little or no experience with legal sources or legal\nresearch. It is the authors\xe2\x80\x99 experience that beginning students better\nunderstand the role of each source of law in the U.S. system if it is\nintroduced on its own. Students also tend to focus more on efficient\nprocesses if the processes are introduced independently of sources of law.\nThe organization of the text, therefore, deliberately introduces the U.S. legal\nsystem and electronic search techniques generally before moving on to the\nindividual sources of law. After introducing the individual sources of law,\nthe text covers updating the law, advanced search techniques, the use of\nsecondary sources, and the research process. The authors follow a similar\norganization in their own research courses but would like to emphasize that\nthey do so for pedagogical reasons specifically with 1Ls in mind.\n\nxii\n\n\x0cChapter 1\n\nThe United States Legal\nSystem\nThe simplest form of remedy for the uncertainty of\nthe regime of primary rules is the introduction of\nwhat we shall call a \xe2\x80\x98rule of recognition\xe2\x80\x99\xe2\x80\xa6 Wherever\nsuch a rule of recognition is accepted, both private\npersons and officials are provided with authoritative\ncriteria for identifying primary rules of obligation. \xe2\x80\x93\nH.L.A. Hart, The Concept of Law\nWe the people of the United States, in order to form\na more perfect union, establish justice, insure\ndomestic tranquility, provide for the common\ndefense, promote the general welfare, and secure the\nblessings of liberty to ourselves and our posterity, do\nordain and establish this Constitution for the United\nStates of America. \xe2\x80\x93 Preamble to the United States\nConstitution\n\n1.1 Learning Objectives for Chapter 1\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\n\xef\x82\xb7\n\nDescribe key features of the U.S. legal system including:\no\n\nFederalism,\n\no\n\nSeparation of Powers,\n\no\n\nSources of Law, and\n\no\n\nWeight & Hierarchy of Authority.\n\nAssess how the structure of the legal system frames research.\n\n\x0c1.2 Introduction to Researching the Law\nThe practice of law necessarily involves a significant amount of research. In\nfact, the average lawyer spends much of her work time researching. This\nmakes sense when one considers that American law as a field is too vast,\ntoo varied, and too detailed for any one lawyer to keep all of it solely by\nmemory. Furthermore, the law is a living thing; it tends to change over\ntime. Thus, in order to answer clients\xe2\x80\x99 legal questions, lawyers typically\nconduct research into the laws affecting their clients.\nSeveral things make legal research different from the types of research most\nlaw students performed prior to law school. First, rules of law tend to be\nboth highly detailed and highly nuanced, so legal research often includes\nacts of interpretation even at the research stage. Second, the rules of law\nderive from a myriad of sources, many of which may be unfamiliar to\nstudents. Furthermore, because legal research is so important to the practice\nof law, the publication of legal materials has long been a profitable field. As\npart of their long publishing history, legal sources developed their own\ninformation systems that predate modern publishing practices. As a result,\nthe organization of legal materials tends to differ from that of other\nmaterials. Finally, the process of legal research itself tends to be different. In\nother fields, researchers often investigate ideas in the abstract. In the law, a\nresearcher must always keep the specific facts of her particular client\xe2\x80\x99s\nsituation in mind, as a lawyer must always apply the results of her research\nto her client\xe2\x80\x99s problem.\nBecause legal research differs so substantially from other types of research,\nthe American Bar Association requires that law schools specifically instruct\nstudents in legal research.1 Typically, research instruction occurs in the\ncontext of a Legal Research & Writing (LRW) course. Schools teach legal\nresearch and writing together because the two activities (finding/applying\nthe law and then communicating the found application) intertwine.\nHowever, legal writing falls outside the scope of this text, which focuses on\nthe research portion of legal practice.\nThrowing students into the deep end by having them read cases without\nexplanation or context and then teasing understanding out of them via the\nSocratic Method remains the educational method of choice for most law\nclasses. This text will not follow that method. In fact, this text seeks to do\n\nAMERICAN BAR ASSOCIATION, 2020-2021 STANDARDS AND RULES OF\nPROCEDURE FOR APPROVAL OF LAW SCHOOLS, Standard 302(b) (2020).\n1\n\n2\n\n\x0cthe opposite, namely to provide enough explanation and context to\ndemystify the art of legal research. By knowing what each of the various\nsources of law is, and by knowing how the various types of authority\ninteract with each other, law students will avoid being overwhelmed by the\nlevel of detail and nuance inherent in the law and will be able to research\nthe law in a calm, efficient manner.\nThus, this text will introduce and explain the major sources of American\nlaw one at a time. As it does so, it will provide insight into how publishers\narrange the sources of law. Because legal publishers originally developed\ntheir methods of organization before the advent of electronics, each source\nof law will be initially introduced by referencing its print form (i.e. actual law\nbooks). Once students become familiar with the sources of law\xe2\x80\x94and so\nwill know for what they are looking when they research\xe2\x80\x94the text will\nproceed to explain the processes of modern legal research, which mostly\ninvolves computer-assisted research.\nBefore introducing the sources and processes involved in legal research,\nhowever, a few words must be said about the shape and peculiarities of the\nUnited States legal system. After all, it is the unique shape of our system\nthat gives rise to the different sources of law. Furthermore, lawyers conduct\nresearch to solve legal problems, and those problems play out in the legal\nsystem. You have to know the rules to play the game.\n\n1.3 Federalism\nThe United States of America employs a federal system of government. As\nanyone who follows American politics can tell you, federalism means\ndifferent things to different people. However, the legal definition of a\nfederal state is:\nA composite state in which the sovereignty of the\nentire state is divided between the central or federal\ngovernment and the local governments of the\nseveral constituent states; a union of states in which\nthe control of the external relations of all the\nmember states has been surrendered to a central\ngovernment so that the only state that exists for\ninternational purposes is the one formed by the\nunion.2\n\n2\n\nState, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n3\n\n\x0cThe key point to take away from the definition is that in a federal state two\nseparate governments share law-making power, or sovereignty, over the\nsame territory. Of course, federal states differ from one another in precisely\nhow the central and local governments share law-making power. To\nunderstand how the federal and state governments share sovereignty in the\nU.S., one must look to the historical development of federalism in America.\n\n1.3.1 Origins of American Federalism\nPrior to declaring independence from Great Britain in 1776, the territory\nthat became the initial United States of America existed as colonies, at first\nof England and later of Great Britain.3 Each of the colonies operated as an\nentity under its own charter as a governing document according to English\nlaw. The vast distances of America (especially compared to the relatively\nsmaller scale of England) combined with the slow speeds of pre-Industrial\nRevolution travel to leave each colony effectively governing itself for large\nportions of the 17th and 18th centuries.4\nWhen the British government attempted to reassert control over the\ncolonies in the latter half of the 18th century, the colonies revolted and\neventually won their independence.5 Because of their history of self-rule,\neach rebelling colony asserted its own sovereignty (thereby rejecting British\nsovereignty over America) both during and after the Revolution. However,\nin order to coordinate the war effort, each colony sent delegates to a\n\xe2\x80\x9cContinental Congress\xe2\x80\x9d during the Revolution and eventually adopted the\nArticles of Confederation6, which remained in force following British\nrecognition of American independence.\n\nEngland and Scotland became joined in a \xe2\x80\x9cpersonal union\xe2\x80\x9d upon the ascension\nof James VI of Scotland as James I of England. They did not officially merge into\nthe Kingdom of Great Britain until the Acts of Union of 1707: Union with\nScotland Act, 1706, 6 Ann, c.11 (Eng.); Union with England Act, 1707, c.7 (Scot.).\n3\n\n4See\n\ngenerally JACK P. GREENE, PURSUITS OF HAPPINESS: THE SOCIAL\nDEVELOPMENT OF EARLY MODERN BRITISH COLONIES AND THE FORMATION\nOF AMERICAN CULTURE (1988).\nFor the definitive account of how the increased assertion of central authority by\nthe British Parliament led to the American Independence Movement, see\nBERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN\nREVOLUTION (enl. ed. 1992).\n5\n\n6\n\nARTICLES OF CONFEDERATION OF 1781.\n\n4\n\n\x0cThe Articles of Confederation created the United States as a confederation,\nwhich resembles a federal state only with a weaker central government and\nmore independent local governments.7 Sadly, it turned out that a weak\ncentral government with strong state governments did not adequately\nadminister such a large swath of territory. In particular, the fledgling United\nStates struggled economically.8 Thus, less than a decade after ratifying the\nArticles of Confederation, the Founding Fathers reconvened to draft what\nbecame the U.S. Constitution.9\nHowever, even though the Founding Fathers acknowledged the need for a\nstronger central government, they remained wary of too strong a central\npower, as self-rule at the colony/state level had been the whole point of the\nRevolution.10 Therefore, while the Constitution creates a strong federal\ngovernment, it also specifically limits the application of federal law-making\nauthority to specific topical competencies.11 State governments, while\nsubject to federal supremacy in the specified competencies12, retain general\nsovereignty and so enjoy law-making authority over a wider range of\ntopics.13 Thus, the federal government possesses \xe2\x80\x9cenumerated powers,\xe2\x80\x9d or\nlaw-making powers specifically enumerated by the Constitution, while state\ngovernments possess \xe2\x80\x9creserved powers,\xe2\x80\x9d or law-making powers over\neverything else.14 Please see Figure 1.3.1 for a list of enumerated federal\ncompetencies.\n\n7\n\nConfederation, BLACK\xe2\x80\x99S LAW DICTIONARY 359 (11th ed. 2019).\n\nThe revolting colonies borrowed money heavily during the Revolution and so\nowed huge sums of money to a number of foreign powers, most notably the\nDutch.\n8\n\nFor a good legal discussion of the motivating factors behind the Constitution, see\nCALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE\nMEANING OF THE FOUNDERS\xe2\x80\x99 CONSTITUTION 15-60 (2005).\n9\n\n10\n\nSee id. at 100-127.\n\n11\n\nU.S. CONST. art. I, \xc2\xa7 8.\n\n12\n\nU.S. CONST. art. VI.\n\n13\n\nU.S. CONST. amend. X.\n\nPlease note that it is not always entirely clear whether something is enumerated\nor reserved, and in fact the definition of each has tended to change over time. For\npurposes of legal research, just be aware that you will tend to deal with more state\nlaw than federal but that federal law can trump state law on certain topics.\n14\n\n5\n\n\x0cEnumerated Federal Power\nConstitutional Origin(s) of Power\nTaxation (partially shared with\nart. I, \xc2\xa7 8, cl. 1; amend. XVI\nstates)\nBorrowing on Credit of U.S.\nart. I, \xc2\xa7 8, cl. 2\nRegulating Interstate Commerce,\nart. I, \xc2\xa7 8, cl. 3\nand Commerce with Foreign\nNations or Indian Tribes\nImmigration & Naturalization\nart. I, \xc2\xa7 8, cl. 4\nBankruptcy\nart. I, \xc2\xa7 8, cl. 4\nCoining & Regulating Value of\nart. I, \xc2\xa7 8, cl. 5\nMoney\nPunishing Counterfeiting\nart. I, \xc2\xa7 8, cl. 6\nThe Mail\nart. I, \xc2\xa7 8, cl. 7\nCopyright & Patents\nart. I, \xc2\xa7 8, cl. 8\nCreation of Federal Courts (other\nart. I, \xc2\xa7 8, cl. 9\nthan the U.S. Supreme Court)\nPunishing Piracy on the High Seas\nart. I, \xc2\xa7 8, cl. 10\n& Crimes Under International Law\nWar & Armed Forces\nart. I, \xc2\xa7 8, cl. 11-16\nCreating Laws for the District of\nart. I, \xc2\xa7 8, cl. 17\nColumbia\n\xe2\x80\x9cTo make all laws which shall be\nart. I, \xc2\xa7 8, cl. 18\nnecessary and proper for carrying\ninto execution the foregoing\npowers, and all other powers vested\nby this Constitution in the\ngovernment of the United States, or\nin any department of officer\nthereof.\xe2\x80\x9d\nFigure 1.3.1: Enumerated Powers of the Federal Government\n\n1.3.2 Impact of Federalism on Legal Research\nThe way in which American federalism splits sovereignty impacts legal\nresearch in a number of ways. First, for any given territorial point in the\nUnited States, a researcher may need to look at two completely different\nsets of laws, as both federal law and state law will apply throughout the\nsame territory. Sometimes a legal researcher will be able to tell at a glance\nwhether federal or state law will govern an issue, but at other times a\n\n6\n\n\x0clawyer may need to do initial research just to determine whether to apply\nfederal or state law (or both) to a client\xe2\x80\x99s problem. For example, federal\nlaw, generally governs copyright15, a fact familiar to most lawyers off the\ntops of their heads. However, the federal government\xe2\x80\x99s interstate\ncommerce power derives from broader language16, has expanded over\ntime17, and may affect areas of law typically reserved to the states. For\ninstance, states typically define and punish crimes, such as robbery,\ncommitted inside their boundaries.18 However, federal law also\ncriminalizes the robbery of banks, as the federal government insures banks\nthrough the F.D.I.C. under the commerce power.19 Thus, any given legal\nproblem may necessitate researching multiple sets of laws.\nOf course, American law comprises many more than two sets of laws.\nWhile there is only one federal government, each of the fifty states\nproduces its own set of laws. Even 51 is too small a number to describe\nthe sets of laws contributing to the U.S. legal system. The District of\nColumbia possesses its own laws, as do other Federal territories.\nFurthermore, American Indian tribes, as \xe2\x80\x9cDomestic Dependent Nations,\xe2\x80\x9d\nenjoy a limited form of sovereignty.20 While no legal problem will likely\ninvolve all possible sets of laws in the U.S., legal researchers should remain\naware of the existence of multiple sets. Because most of the sets of laws\npresent in the U.S. evolved from a common ancestor (namely, the laws of\nEngland), even if a jurisdiction\xe2\x80\x99s set of laws does not directly apply to a\nlegal problem, it may contain pieces that help a researcher interpret a\n\n15\n\nU.S. CONST. art I, \xc2\xa7 8, cl. 8.\n\n16\n\nU.S. CONST. art I, \xc2\xa7 8, cl. 3.\n\nSee, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); Wickard v. Filburn, 317\nU.S. 111 (1942).\n17\n\nSee, e.g., WASH. REV. CODE \xc2\xa7 9A.56.200 (through December 7, 2020), available at\nhttps://app.leg.wa.gov/RCW/default.aspx?cite=9A.56.200.\n18\n\n19\n\n18 U.S.C. \xc2\xa7 2113 (Legal Information Institute through Pub. L. No. 116-193).\n\nAmerican Indian law is outside the scope of this text. For a good introduction\nto the subject of American Indian sovereignty, see WILLIAM C. CANBY, JR.,\nAMERICAN INDIAN LAW IN A NUTSHELL (6th ed. 2015). For a list of federally\nrecognized tribes and contact information for their respective governments, see\nBUREAU OF INDIAN AFFAIRS, U.S. DEP\xe2\x80\x99T OF THE INTERIOR, TRIBAL LEADERS\nDIRECTORY (2021).\n20\n\n7\n\n\x0cdifferent jurisdiction\xe2\x80\x99s set that does apply.21 This concept will be revisited a\nbit later in the discussion on hierarchy of authority in section 1.5.\nFederalism impacts legal research not only by providing multiple sets of\nlaws for which researchers must account, but also by providing multiple\nforums for the settling of disputes about the applications of laws. In other\nwords, in addition to worrying about the possibility of multiple sets of\nlaws affecting their clients, lawyers need to be aware of the options\npresented by multiple, independent court systems operating over the same\ngeographic area. Sometimes a client may be advantaged by trying a case in\nfederal court as opposed to state court, or vice versa.\nThe matter becomes more complicated when one considers the fact that a\njurisdiction\xe2\x80\x99s court system does not necessarily always apply its own set of\nlaws. For each controversy that comes before it, a court will determine\nwhich jurisdiction\xe2\x80\x99s laws should apply. This is known as choice-of-law.22 A\nnumber of factors and guiding principles determine what set of laws a\ncourt should apply, but for purposes of legal research it is important to\nremember that federal courts, while largely interpreting federal law, also\nsometimes interpret and apply state law. Similarly, while a state\xe2\x80\x99s court\nsystem most typically interprets the state\xe2\x80\x99s own laws, it will sometimes\nneed to apply federal laws, or even the laws of another state.\nChoice-of-law matters to the legal researcher because some cases will\ninvolve applying bits of multiple sets of laws to the same facts. For\nexample, a criminal defendant facing prosecution under state law may raise\na federal constitutional defense. In such a case, the way the bits of law\ninteract with each other changes depending upon which court system tries\nthe case. Before we can cover more detail on the interaction between bits\nof law, however, we need to examine where those bits, or sources, of law\noriginate by looking at the other key feature of the U.S. Legal System:\nSeparation of Powers.\n\nThere are a few notable exceptions to the proposition that American law\nevolved from English Common Law. Louisiana\xe2\x80\x99s law derived from the French\ncivil law system. Also, a number of states, primarily in the American Southwest,\nfeature elements of Spanish property law, and are known as \xe2\x80\x9cCommunity\nProperty\xe2\x80\x9d states. Finally, rather obviously, American Indian legal systems did not\nevolve from English law.\n21\n\n22\n\nChoice of Law, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n8\n\n\x0c1.4 Separation of Powers and Sources of Law\nAt the same time that the Founders, in drafting the Constitution, limited\nthe central government to enumerated powers, they also broke the federal\ngovernment into three distinct branches. They did so in the hopes that the\nvarious branches would serve as checks and balances on each other and\nprevent the sort of tyranny that the former colonists rejected from the\nunified British government.23 This type of government structure is called\nSeparation of Powers, which is defined as:\nThe division of governmental authority into three\nbranches of government\xe2\x80\x94legislative, executive, and\njudicial\xe2\x80\x94each with specified duties on which neither\nof the other branches can encroach.24\n\nSubsequent to the creation of the federal government with the U.S.\nConstitution, each of the states in the United States adopted similar\nprovisions in their own constitutions. Indeed, every state government in the\nU.S. features Separation of Powers.\nAmerican government, therefore, features three distinct branches at both\nthe state and federal levels: the legislative branch, the judicial branch, and\nthe executive branch. In the process of governing, each of the branches\ncontributes rules to the body of law of its jurisdiction. The term \xe2\x80\x9csources of\nlaw\xe2\x80\x9d refers to the different forms the various rules take.25. The legislative\nbranch passes statutes, the judicial branch issues opinions, and the executive\nbranch drafts regulations. However, a constitution underpins each of the\nother sources and serves as the ultimate source of law.\n\n1.4.1 Constitutions\nScholars often describe the United States legal system as a legally positivist\nsystem. Legal positivism is a theory of jurisprudence that essentially states\nthat all law is human-made and is only valid in a state because people accept\n\nFor the classic account of the Constitutional Convention of 1787, when these\ndecisions were made, see CATHERINE DRINKER BOWEN, MIRACLE AT\nPHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO\nSEPTEMBER 1787 (1966).\n23\n\n24\n\nSeparation of Powers, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n25\n\nSource of Law, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n9\n\n\x0cthat it is.26 H. L. A. Hart, a twentieth century British legal philosopher,\nwrote perhaps the clearest articulation of legal positivism in his seminal\nwork, The Concept of Law, which was quoted at the beginning of this chapter.\nPart of Hart\xe2\x80\x99s theory of legal positivism involves a \xe2\x80\x9crule of recognition,\xe2\x80\x9d\nwhich alerts citizens of a jurisdiction to the validity of its laws.27\nFor a legal rule in the U.S. to be valid, it must have been created by a\nprocess described by the applicable constitution. Thus, in the United States,\nthe U.S. Constitution serves as the rule of recognition for the federal\ngovernment. Similarly, state constitutions serve as the rules of recognition\nfor their respective state governments. Under positivism, constitutions\nderive their authority from the will and acceptance of the people. Thus, for\nthe American legal researcher constitutions represent the ultimate source of\nlaw.\nOf course, our constitutions do flesh out the processes by which our\ngovernments may create other sources of law. We have already seen how\nconstitutions separate the various American governments into three distinct\nbranches. Logically enough, the constitutions also provide each branch a\nmethod by which it can create legal rules.\n\n1.4.2 Statutes\nUnder the American system of Separation of Powers as described by the\nvarious constitutions, the legislative branch creates laws in the form of\nstatutes. Generally, to create a law, a legislator will introduce a bill into\nwhatever legislative house she belongs; then once the bill receives an\naffirmative vote in each legislative house and the signature of the\njurisdiction\xe2\x80\x99s chief executive, it becomes an enacted law.28\nOn the federal level, the legislative branch, known as Congress, consists of\nthe House of Representatives and the Senate. Bills that pass both houses\nand are signed by the President become enacted and receive the\ndesignation \xe2\x80\x9cPublic Laws.\xe2\x80\x9d The Government Publishing Office (GPO)\npublishes all Public Laws of the United States in a multi-volume set called\n\n26\n\nLegal Positivism, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n27\n\nH. L. A. HART, THE CONCEPT OF LAW 94-110 (2d ed. 1994).\n\nThis process holds true for the federal legislature and all but one of the state\nlegislatures. Nebraska, the odd state out, features a unicameral legislature, so bills\nonly need pass one house in the Cornhusker State.\n28\n\n10\n\n\x0cthe Statutes at Large. The GPO also divides the Public Laws into their\nconstituent parts by topic and fits them into a topically-organized\npublication of all federal laws in force called the United States Code.\nState legislatures follow the same process as the federal legislature, but the\nnomenclature varies. For instance, in Kentucky the legislature is called the\nGeneral Assembly, which is comprised of the House of Representatives\nand the Senate. Bills that pass both houses become Acts, which\nresearchers can find in chronological order in the Kentucky Acts or in the\ntopically-organized Kentucky Revised Statutes. Meanwhile, bills that pass both\nhouses of the Texas Legislature become General Laws published in the\nTexas General Laws before being folded into one of a number of different\ncodes named for the topics they cover. Thus, while the processes resemble\neach other, each state may call its statutes by slightly different terms.29\nBecause constitutions charge the legislative branches they create with\ngeneral law-making (\xe2\x80\x9clegislative\xe2\x80\x9d actually means law-making30) ability31,\nstatutes represent laws in their most basic sense. As such, they are the next\nmost important source of law after constitutions and typically control legal\nproblems over other sources of law. Statutes will be covered in greater\ndetail in Chapter 3.\n\n1.4.3 Judicial Opinions\nAlthough a statute on point would typically control a given legal\ncontroversy, it is not always readily apparent how precisely a statute would\napply to a specific set of facts, or even whether it would cover the facts at\nall. This ambiguity occurs because generally legislatures write statutes in\nbroad, abstract terms in order for the statute to cover as many scenarios as\npossible. Thus, abstract statutes typically require interpretation in order to\napply them to specific controversies. Under Separation of Powers, the\njudicial branch takes on the role of the interpreter of laws.\nThe judicial branch typically comprises several levels of courts, with a high\ncourt at the top, trial courts at the bottom, and one or more levels of\n\nFor a thorough list of what each state calls its statutes, see THE BLUEBOOK: A\nUNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass\xe2\x80\x99n et\nal. eds., 21st ed. 1st prtg. 2020).\n29\n\n30\n\nLegislative, BLACK\xe2\x80\x99S LAW DICTIONARY 1039 (11th ed. 2019).\n\n31\n\nSee, e.g., U.S. CONST. art. I, \xc2\xa7 1; R.I. CONST. art. VI \xc2\xa7 2.\n\n11\n\n\x0cintermediate appellate court in between, though the names of the various\ncourts vary by jurisdiction. At the federal level, the United States Supreme\nCourt acts as the high court, District Courts serve as the usual point of\nentry to the system, and Courts of Appeal (also sometimes called Circuit\nCourts) connect the two.32 Constitutional grants of judicial power generally\nextend to the respective court system as a whole.33\nCourts interpret the law by issuing judicial opinions, also referred to as\ncases. Although subservient to the statutes they interpret, judicial opinions\ncreate their own rules of law through the force of precedent.\nPrecedent works through the principle of stare decisis which is defined as:\nThe doctrine of precedent, under which a court must\nfollow earlier judicial decisions when the same points\narise again in litigation.34\n\nBasically, consistency benefits law, in that it allows those governed by the\nlaw to predict what they need to do to comply with the law. Following\nearlier decisions as precedents leads to greater consistency. If courts begin\ninterpreting a statute in a certain way, society benefits if they continue to\ninterpret the same statute in the same way.\nSometimes judicial opinions create legal rules through precedent even\nabsent a statute. This happens often when courts interpret constitutional\nsections. It also happens when courts apply legal rules that predate the\nwidespread use of statutes.35 The term \xe2\x80\x9ccommon law\xe2\x80\x9d refers to law made\nthrough judicial opinions rather than by statutes.36 Many common law rules\nremain in force in American law, particularly in the fields of Torts and\nProperty.\nThus, through the force of precedent, judicial opinions contribute legal\nrules to the various bodies of American law, both through statutory\nFor a state-by-state breakdown of state court systems, see THE BLUEBOOK: A\nUNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass\xe2\x80\x99n et\nal. eds., 21st ed. 1st prtg. 2020).\n32\n\n33\n\nSee, e.g., U.S. CONST. art. III, \xc2\xa7 1; MINN. CONST. art. VI \xc2\xa7 1.\n\n34\n\nStare Decisis, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\nThe concept of the statute slowly developed in England during the late Middle\nAges, but statutes did not achieve primacy until the 16 th Century. Furthermore,\nlegislatures tended to operate on strictly part-time schedules well into the 19th\ncentury.\n35\n\n36\n\nCommon Law, BLACK\xe2\x80\x99S LAW DICTIONARY 334 (11th ed. 2019).\n\n12\n\n\x0cinterpretation and common law. Indeed, many lawyers spend the majority\nof their research time on case research. Judicial opinions will be covered in\nmore depth in Chapter 4.\n\n1.4.4 Administrative Regulations\nThe final branch of government formed by constitutions mandating\nSeparation of Powers is the executive branch, which consists of a chief\nexecutive and various cabinet departments and agencies that report to the\nchief executive. At the federal level the President of the United States acts\nas the chief executive, and at the state level the Governor fills the same\nrole. A constitution usually charges the chief executive with enforcing or\nexecuting the laws of its jurisdiction.37\nOf course, chief executives do not personally enforce all the laws of their\njurisdictions. Instead, they rely on employees of the various executive\ndepartments and agencies for the enforcement of different areas of law.\nOften, an agency or department will need to provide specific rules in order\nto enforce a broad statute. Rules issued by agencies/departments take the\nform of administrative regulations. In modern times, legislatures actually\ndelegate regulation-making authority to executive branch agencies by\nstatute, giving regulations the force of law.\nWhile administrative regulations do contribute legal rules to the various\nsets of American laws, lawyers generally regard them as the weakest of the\nsources of law. Since regulatory authority comes via legislative delegation,\na legislature can remove the authority at any time. Administrative\nregulations will be discussed in more detail in Chapter 5.\n\n1.5 Hierarchy of Authority\nAs we have seen, American law comes from many sources. Not only does\neach branch of government create its own source of law, but each separate\njurisdiction within the U.S. possesses its own set of laws. As such,\nknowing how the different pieces of law interact with each other takes on\nhuge importance for legal researchers (especially if the different pieces of\nlaw in any way contradict each other, which is not an unusual occurrence).\n\n37\n\nSee, e.g., U.S. CONST. art. II, \xc2\xa7 3; PA CONST. art. IV \xc2\xa72 .\n\n13\n\n\x0cLawyers refer to individual sources of law as authorities and describe their\nrelationship to each other as the hierarchy of authority. As discussed\nabove, the standard hierarchy of authority starts with constitutions as the\nmost authoritative, and then proceeds in order of authoritativeness\nthrough statutes, judicial opinions, and administrative regulations.\nHowever, this simple hierarchy does not capture the nuance involved\nwhen dealing with authorities from multiple jurisdictions or authorities\nfrom one jurisdiction being applied by the courts of another. Furthermore,\nnot all judicial opinions carry equal weight. Some additional concepts are\ntherefore necessary to sort and rank authorities.\n\n1.5.1 Primary v. Secondary Authority\nLegal authority can be divided into two broad categories: primary authority\nand secondary authority. Collectively, this distinction is referred to as \xe2\x80\x9ctype\nof authority.\xe2\x80\x9d Primary authority refers to \xe2\x80\x9cauthority that issues directly\nfrom a law-making body.\xe2\x80\x9d38 Thus, the four sources of law discussed\npreviously make up primary authority.39 Secondary authority, therefore,\nrefers to \xe2\x80\x9cauthority that explains the law but does not itself establish it,\nsuch as a treatise, annotation, or law-review article.\xe2\x80\x9d40 While lawyers may\ncite secondary authorities, courts do not view secondary authorities as\npossessing as much persuasive weight as primary authorities possess. More\nwill be said on secondary authorities and their use in Chapter 8.\n\n1.5.2 Mandatory v. Persuasive Authority\nLegal authority can also be divided into mandatory (sometimes called\nbinding) authority and persuasive authority. Collectively, this distinction is\nreferred to as \xe2\x80\x9cweight of authority.\xe2\x80\x9d Mandatory authority refers to an\nauthority that a court considering a case must apply, while persuasive\nauthority refers to \xe2\x80\x9cauthority that carries some weight but is not binding\n\n38\n\nAuthority, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\nNote that in addition to the sources of law, government bodies often produce\nvarious amounts of documentation in the process of creating the sources\nthemselves. These supporting documents will be primary in nature but will not be\nlegally binding. Nonetheless, researchers will sometimes look at them to help\ninterpret the sources of law they relate to.\n39\n\n40\n\nAuthority, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n14\n\n\x0con a court.\xe2\x80\x9d41 Obviously, lawyers benefit from knowing whether a court\nmust apply an authority to a case or whether a court may choose not to\napply an authority. Therefore, being able to determine the relative weights\nof authority is a skill every legal researcher should aspire to acquire.\n\n1.5.3 Determining Weight of Authority\nDetermining the weight of authority for some sources of law can be quite\nstraightforward. If a jurisdiction\xe2\x80\x99s constitution applies to a set of facts\nbefore a court, then the constitution acts as mandatory authority. Similarly,\nif a statute from the jurisdiction in question relates to the facts in\ncontroversy, a court must apply it. The same holds true for regulations,\nthough they tend to apply to more narrowly defined sets of facts. In other\nwords, constitutions, statutes, and regulations tend to be either mandatory\nor irrelevant and are rarely used persuasively. Conversely, secondary\nauthority, since it is not actually law but merely interpretation, can never\nbe mandatory but only acts as persuasive authority. Thus, a determination\nof weight for many authorities will be quick and easy.\nThe weight of authority of judicial opinions, however, depends on several\nfactors. A lawyer must first consider choice of law. In order to be binding,\na precedent must apply the same jurisdiction\xe2\x80\x99s laws as would apply to the\ncontroversy at hand. However, choice of law alone does not determine\nweight of authority.\nSecond, the lawyer must consider venue, or the court where her\ncontroversy would be heard if it went to trial. In order to be mandatory, an\nearlier case must have been issued from the same court system as will be\nadjudicating the controversy to which a lawyer would like to apply the\nprecedent. Furthermore, the earlier case must be from a higher court, in a\ndirect line of appeal, from the current controversy\xe2\x80\x99s venue. As state court\nstructures vary, let us look at a hypothetical case in the federal court\nstructure as an example.\nAs discussed above, the federal court structure consists of trial level courts\n(District Courts), intermediate appellate courts (Courts of Appeals), and\nultimately, the United States Supreme Court. District Courts and Courts of\nAppeals are grouped into twelve geographic circuits (and one topical\ncircuit). If a lawyer loses a trial in a District Court, she may appeal to the\n\n41\n\nId.\n\n15\n\n\x0cCourt of Appeals for whichever geographic circuit contains the District\nCourt that tried her case. See Figure 1.5.3 for a list of which circuits\ncontain which districts.\n\nFederal Circuit\n\nCorresponding District Courts by\nState in which they Reside\nFirst Circuit\nME, NH, MA, RI, Puerto Rico\nSecond Circuit\nNY, VT, CT\nThird Circuit\nPA, NJ, DE, Virgin Islands\nFourth Circuit\nMD, VA, WV, NC, SC\nFifth Circuit\nTX, LA, MS\nSixth Circuit\nTN, KY, OH, MI\nSeventh Circuit\nIN, IL, WI\nEighth Circuit\nMN, IA, MO, AR, ND, SD, NE\nNinth Circuit\nCA, AZ, NV, ID, OR, WA, MT,\nAK, HI, Guam, Northern Mariana\nIslands\nTenth Circuit\nUT, WY, CO, NM, KS, OK\nEleventh Circuit*\nAL*, GA*, FL*\nD.C. Circuit\nD.C.\nThe Federal Circuit\ncertain appeals determined by\nsubject matter\nFigure 1.5.3: The Federal Judicial Circuits\n* The Eleventh Circuit split from the Fifth Circuit on\nOctober 1, 1981. Therefore, Fifth Circuit Court of Appeals\ndecisions prior to that date are binding upon District Courts\nin the Eleventh Circuit.\nIf a lawyer were trying a case applying federal law in the United States\nDistrict Court for the Eastern District of Kentucky, mandatory opinions\nwould include opinions from the Sixth Circuit Court of Appeals and the\nUnited States Supreme Court. Because cases from the Eastern District of\nKentucky may only be appealed to the Sixth Circuit Court of Appeals,\nopinions from other circuits\xe2\x80\x99 Courts of Appeals would merely be\npersuasive, even though those courts are higher courts. Similarly, if the\nsame lawyer were handling the appeal from the District case in the Sixth\nCircuit Court of Appeals, only Supreme Court cases would be mandatory,\n\n16\n\n\x0cas the Supreme Court is the only court higher than a Court of Appeals in\nthe federal system.\nTo complicate matters, however, an exception exists if the choice of law\nand venue do not match, i.e. a case in federal court involves state law, or a\ncase in state court is applying federal law or the law of another state as a\nchoice of law. Under these circumstances, the court applying a different\njurisdiction\xe2\x80\x99s laws will treat opinions from the high court of that\njurisdiction as mandatory. This is because each jurisdiction\xe2\x80\x99s high court\nacts as the final arbiter of its laws under constitutional principles of\nfederalism. For example, if the United States District Court for the\nEastern District of Kentucky hears a negligence case governed by\nKentucky state tort law, it will treat opinions from the Kentucky Supreme\nCourt as mandatory.\nOf course, even if a lawyer determines an opinion only serves as\npersuasive authority, she may still choose to use it, particularly if it features\nfacts similar to her controversy. Furthermore, some cases may be more\npersuasive than others. Generally speaking, opinions coming from higher\ncourts are more highly persuasive. Also, cases from the court system of the\njurisdiction whose law has been selected as the choice of law tend to be\nbetter than cases from other court systems. In the abstract, more recent\ncases tend to be favored over older cases, as the more recent cases will be\npresumed to have been aware of the earlier cases and to have incorporated\nthem into the more recent holding. Finally, although they are not binding\nbecause they may technically be overturned, earlier cases from the same\ncourt hearing the current controversy would be a higher level of persuasive\nauthority as courts generally try to avoid overturning their earlier decisions.\nAlthough not always an easy task, the evaluation of the hierarchy of\nauthority for a given legal problem is an essential skill for legal researchers\nto determine what research paths to pursue. Furthermore, a legal\nresearcher needs to be able to recognize the various sources of law that\ncreate the rules that govern the problem being researched. For these\nreasons, legal researchers should keep the structures of the U.S. Legal\nSystem firmly in mind as they research.\n\n1.6 Concluding Exercises for Chapter 1\nTry your hand at putting legal authorities into hierarchical order! For each\nof the following fact patterns, put the authorities listed into order from the\nmost authoritative to the least authoritative. Draw a line at the point above\n\n17\n\n\x0cwhich all authorities are mandatory and below which all authorities are\npersuasive.\n\n1.6.1 Introductory Hierarchy of Authority Exercise\nYou represent Old Tobias Tobacco Company. Recently, a start-up\n\xe2\x80\x9cguerrilla marketing\xe2\x80\x9d firm operating on Old Tobias\xe2\x80\x99s behalf may have\ninadvertently violated federal law. Apparently, the guerrillas started a\ncampaign whereby they were encouraging Facebook users to change their\nprofile pictures to an Old Tobias print ad from the 1950s, an ad which runs\nafoul of current laws, and now the feds are preparing to file suit in the\nMiddle District of North Carolina (where Old Tobias is headquartered). As\na result, you did a little research into the matter. Please rank the authorities\nyou found according to weight and hierarchy of authority:\nFDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). [United\nStates Supreme Court Case]\nRobert J. Baehr, A New Wave of Paternalistic Tobacco Regulation, 95 Iowa L.\nRev. 1663 (2010). [Scholarly Article About Tobacco Regulation]\n15 U.S.C. \xc2\xa7 1335 (2012). [Federal Statute]\nR.J. Reynolds Tobacco Co. v. Seattle-King County Dept. of Health, 473 F. Supp. 2d\n1105 (W.D. Wash. 2007). [Federal District Court Case]\nR.J. Reynolds v. Phillip Morris, 199 F. Supp. 2d 362 (M.D.N.C. 2002). [Federal\nDistrict Court Case]\nLorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). [United States Supreme\nCourt Case]\nConsolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2001). [Federal Court\nof Appeals Case]\nBrown & Williamson v. FDA, 153 F.3d 155 (4th Cir. 1998). [Federal Court of\nAppeals Case]\n\n18\n\n\x0c1.6.2 Intermediate Hierarchy of Authority Exercise\nDear Associates:\nWe are representing Ronny Jotten in an upcoming drug possession case in\nFayette County Circuit Court in Lexington, KY. Jotten is a graduate\nstudent living in university housing. He has his own bedroom but shares a\nkitchen and common room with three other students. On the morning of\nAugust 23rd, Lexington police officers, while looking for Vic Sydney, a\nknown acquaintance of Jotten, entered Jotten\xe2\x80\x99s suite without a warrant.\nThe police limited themselves to the common areas and did not enter a\nbedroom. All residents were away from the flat at the time. However, Mac\nShane, an undergraduate living next door to Jotten, entered the flat\nlooking for Jotten. The police, who in the meantime had found a rather\nlarge bag of marijuana in between some couch cushions, asked Shane if he\nknew whose it was. Shane, inebriated at the time and wanting to deflect\nattention away from that fact, replied that the marijuana was \xe2\x80\x9cRonny\xe2\x80\x99s\xe2\x80\x9d\nbefore waltzing out the door. The police subsequently arrested Jotten.\nI\xe2\x80\x99m pretty sure that what the police did was an unlawful search under\nfederal law, but I\xe2\x80\x99m going to need to prove that Jotten had a reasonable\nexpectation of privacy in the common area (as opposed to dorm room) of\nhis suite. Here are some authorities on the matter. Please put the following\nmaterials into hierarchical order. Please draw a line between binding and\npersuasive authority. Thanks. As a reminder, we\xe2\x80\x99re arguing federal law in\nstate court.\nRegards,\nMs. Partner\n\nUnited States v. Villegas, 495 F.3d 761 (7th Cir. 2007)\nKatz v. United States, 389 U.S. 347 (1967)\nAdams v. Commonwealth, 931 S.W.2d 465 (Ky. Ct. App. 1996)\nMinnesota v. Olson, 495 U.S. 91 (1990)\nBlades v. Commonwealth, 339 S.W.3d 450 (Ky. 2011)\nU.S. Const. amend. IV\n8 Ky. Prac. Crim. Prac. & Proc. \xc2\xa7 18:11 (part of the Kentucky Practice legal\nencyclopedia set)\n\n19\n\n\x0cUnited States v. Carriger, 541 F.2d 545 (6th Cir. 1976)\nCity of Athens v. Wolf, 313 N.E.2d 405 (Ohio 1974)\n\n1.6.3 Advanced Hierarchy of Authority Exercise\nYou are a staff attorney for Heaven\xe2\x80\x99s Doorkeepers, a non-profit legal aid\norganization devoted to defending death penalty cases in the state of\nTexas. Your most recent case is that of J.W. Harding, who has been\ncharged with capital murder under Tex. Penal Code ANN. \xc2\xa7 19.03 (West\n2011). The charges stem from an incident in which Mr. Harding broke\ninto a barn on The Freewheelin\xe2\x80\x99 Ranch owned by one Robert Dillon. Mr.\nHarding proceeded to steal roughly a dozen cattle from the barn. As he\nwas looking for some kind of way out of there, Mr. Harding, driving the\nsmall herd of cattle, encountered Mr. Dillon approaching on foot along\nHighway 61. Mr. Harding prompted the cattle to stampede in an attempt\nto escape, and the herd trampled Mr. Dillon to death. To make matters\nworse for Mr. Harding, Mr. Dillon\xe2\x80\x99s next of kin, his son Jacob, is suing\nMr. Harding for wrongful death. Jacob Dillon resides in Nashville, TN, in\na condo with a great view of the skyline. As such, he is suing Mr. Harding\nin federal court on diversity jurisdiction.\nSince Heaven\xe2\x80\x99s Doorkeepers is representing Mr. Harding anyway, your\nsupervising attorney has decided to help with the wrongful death suit as\nwell. She is assigning you to explore each of the following legal issues:\ncapital murder as a matter of state law in Texas courts, cruel and unusual\npunishment as a matter of federal law applied in Texas state courts, and\nwrongful death civil actions as a matter of Texas state law as applied in\nfederal courts. Please put the following sources into hierarchical order for\neach issue. Label each source as mandatory or persuasive.\nBear in mind that Texas has two Supreme Courts, the Texas\nSupreme Court (Tex.) handles civil cases, and the Texas Court of\nCriminal Appeals (Tex. Crim. App.) deals with criminal cases.\n\nCapital Murder (state law) in Texas\nYoung v. Commonwealth, 50 S.W.3d 435 (Ky. 2001)\nTex. Penal Code ANN. \xc2\xa7 19.03 (West 2011)\nTexas v. Cobb, 532 U.S. 162 (2001)\n\n20\n\n\x0cPatrick S. Metze, Death and Texas: The Unevolved Model of Decency, 90 Neb. L.\nRev. 240 (2011)\nBible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005)\nKennedy v. State, 338 S.W.3d 84 (Tex. App. 2011)\nParedes v. Thaler, 617 F.3d 315 (5th Cir. 2010)\nDevoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011)\nCruel and Unusual Punishment (Federal Issue in Texas state courts)\nLawrence Rosenthal, Originalism in Practice, 87 Ind. L. J. 1183 (2012)\nGonzalez v. State, 353 S.W.3d 826 (Tex. Crim. App. 2011)\nStringer v. Black, 503 U.S. 222 (1992)\nU.S. v. Fogg, 666 F.3d. 13 (1st Cir. 2011)\nGarcia v. Texas, 131 S.Ct. 2866 (U.S. 2011)\nTurpin v. Commonwealth, 350 S.W.3d 444 (Ky. 2011)\nSama v. Hannigan, 669 F.3d 585 (5th Cir. 2012)\nU.S. Const. amend. VIII\n\nWrongful Death Civil Action (Texas state law in Federal Court, specifically\nin the M.D. Tenn.)\nRuiz v. Guerra, 293 S.W.3d 706 (Tex. App. 2009)\nWichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)\nWackman v. Rubsamen, 602 F.3d 391 (5th Cir. 2010)\nAustin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005)\nTex. Civ. Prac. & Rem. Code Ann. \xc2\xa7 71.002 (West 2011)\nFry v. Lamb Rental Tools, Inc., 275 F. Supp. 283 (W.D. La. 1967)\nDetroit Crude Oil v. Grable, 94 F. 73 (6th Cir. 1899)\nBunt v. Sierra Butte Gold Min. Co., 138 U.S. 483 (1891)\n\n21\n\n\x0c1.7 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on the legal system of the United States touch upon\nmaterial covered in this chapter. They would be a great place to start for\nstudents looking for further practice on the concepts introduced in this\nchapter!\n\n1.7.1 \xe2\x80\x9cWhere Does Law Come From?\xe2\x80\x9d\nSummary: an overview of the branches of the U.S.\ngovernment and how they make law\nURL: http://www.cali.org/lesson/1072\n\n1.7.2 \xe2\x80\x9cLegal Research 101: The Tools of the Trade\xe2\x80\x9d\nSummary: an introduction to basic resources for\nresearching the law\nURL: http://www.cali.org/lesson/568\n\n1.7.3 \xe2\x80\x9cDecision Point: State or Federal?\xe2\x80\x9d\nSummary: a series of exercises designed to help\nresearchers recognize whether to look to federal or\nstate law\nURL: https://cali.org/lesson/574\n\n22\n\n\x0cChapter 2\n\nIntroduction to Electronic\nResearch\nI think it\xe2\x80\x99s fair to say that personal computers have\nbecome the most empowering tool we\xe2\x80\x99ve ever\ncreated. They\xe2\x80\x99re tools of communication, they\xe2\x80\x99re\ntools of creativity, and they can be shaped by their\nuser. \xe2\x80\x93 Bill Gates\n\nNote: Some of the images presented in this chapter and subsequent\nchapters are from video screencasts of the processes described in the\ntext. Readers are encouraged to watch the screencasts to see the\ntechniques in use. Screencasts may be accessed by clicking on the\nURL provided in each image\xe2\x80\x99s caption.\n\n2.1 Learning Objectives for Chapter 2\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nExplore the basic organization of legal platforms.\n\n\xef\x82\xb7\n\nIdentify the basic processes of online research: searching,\nbrowsing, and limiting results through filters.\n\n\xef\x82\xb7\n\nDescribe how an index and a table of contents differ.\n\n2.2 Introduction to Electronic Research\nAt its core, the practice of law consists of locating relevant legal\nauthorities, applying the authorities to your client\xe2\x80\x99s facts, and then\ncommunicating the predicted result of the application. To accomplish this,\nlegal researchers need to be familiar with the most efficient ways of finding\nthe relevant legal authorities. Today, that is often accomplished using\nonline legal research platforms.\nResearchers should keep in mind that computers did not achieve\nprominence until roughly a hundred years after the professionalization of\n\n23\n\n\x0cthe practice of law. As a result, major legal publishers originally created\ntheir publications and accompanying tools in a strictly paper-based world.\nWhen these publishers began to make their publications available\nelectronically, search capabilities were rudimentary compared to what we\nare used to today, and so the same tools that existed in print were \xe2\x80\x93 and\ncontinue to be - reproduced electronically. Search capabilities and new\nelectronic tools continue to be developed, so an efficient legal researcher\nshould be proficient not only in search but also in the additional\nfunctionality available on legal research platforms.\nThe current legal research platform business features various market\nsegments. At the top end of the market lie full-service legal platforms such\nas Westlaw Edge and Lexis+ that contain primary authorities, secondary\nauthorities, and a variety of tools beyond search to help a researcher locate\nrelevant materials. More recently, Bloomberg L.P. (an electronic resource\npublisher focusing on news and finance) has branched into the legal\ninformation market and now offers Bloomberg Law as a third full-service\nlegal research platform. A key feature of these full-service platforms,\nbeyond their breadth of coverage and proprietary search algorithms,\nremains the inclusion of human-created value-added content to support\nbasic computer processing. Value added content, such as headnotes in\njudicial opinions and annotations to statutes, will be addressed in\nsubsequent chapters.\nThe legal research platform market also features budget model legal\nplatforms, such as Casemaker and Fastcase. Generally speaking, the\nbudget models rely on search algorithms to a much greater extent and\ninclude little or no human-generated content or tools. While these\nservices come with a significantly lower price tag than the full-service\nproviders, they require more effort and attention from researchers using\nthem.\nIn between the top end of the market and the budget models, many\npublishers offer niche services. For example, Thomson Reuters, the\ncompany that produces Westlaw Edge, also produces Checkpoint, an\nelectronic research platform devoted to tax law research. ProQuest\xe2\x80\x99s\nLegislative Insight provides legislative history documents in digital form.\nNiche electronic legal research platforms vary in the amount of humangenerated features they employ.\nDespite the proliferation of various types of electronic research platforms,\nthey tend to interact with information in similar ways regardless of specific\n\n24\n\n\x0cprogramming. In this chapter, we will introduce some of the basic\nelectronic processes and tools available on many legal research platforms\nbefore speaking about them in relation to specific types of primary\nauthorities in Chapters 3, 4, and 5. For demonstration purposes, we will\nfocus on Westlaw Edge and Lexis+ as they are commonly used research\nplatforms in legal practice and law schools.\n\n2.3 Basic Electronic Research Processes\nMost researchers today possess extensive experience with the Internet.\nSearching, browsing, and filtering42 are actions that many of us use daily to\nnavigate around the wealth of information the Internet has placed at our\nfingertips. These same basic actions will be used for electronic legal\nresearch.\nThis is not to say, however, that the novice researcher already knows how\nto use electronic resources to research the law effectively. Law is a complex\nsystem that encompasses a wide variety of authorities, and so understanding\nwhat authorities the search engine is presenting to you and how they relate\nto your legal problem is critical. The selection and evaluation of\nappropriate resources for a given problem is sometimes referred to as\n\xe2\x80\x9cinformation literacy.\xe2\x80\x9d The subsequent chapters of this book will elaborate\non the types of authorities you will encounter on legal research platforms\nand advise you how to evaluate and utilize them in your research. Keep in\nmind that it may take several years of experience before a researcher\nachieves full literacy in the variety of sources that make up the field and is\nable to identify quickly the most relevant sources to a research problem.\nLaw involves the interpretation of the meaning of words. Computers\xe2\x80\x99\nability to interpret human language is improving rapidly but still requires the\nresearcher to think carefully about the terminology she is employing and\noften to use tools beyond search that aid in the sorting of information.\nWhile the basic processes used for recreational Internet-surfing will be the\nsame as those that are used for legal research, a greater level of precision\nand efficiency must be employed for the latter lest one be inundated by\nirrelevant results. For instance, simply typing common law marriage into\nLexis+\xe2\x80\x99s search bar returns over 8,000 cases.\n\n\xe2\x80\x9cFiltering\xe2\x80\x9d is sometimes also referred to as \xe2\x80\x9climiting\xe2\x80\x9d or \xe2\x80\x9cselecting facets.\xe2\x80\x9d For\npurposes of consistency, this text will use the term \xe2\x80\x9cfiltering.\xe2\x80\x9d\n42\n\n25\n\n\x0cFigure 2.3 A screenshot of a simple keyword search in\nLexis+TM brings back thousands of search results. Reprinted\nfrom LexisNexis with permission. Copyright 2021\nLexisNexis. All rights reserved.\n\nToo many results can be just as bad for a legal researcher as too few. Not\nonly will she not have time to read through all the results, but they may not\nall be relevant to her problem. It\xe2\x80\x99s just as problematic for a researcher to\ncite authorities that do not apply to the facts at hand as it is to fail to cite\nkey authorities that do apply. For these reasons, it is of paramount\nimportance that law students work to become precise, efficient researchers.\n\n2.3.1 Browsing\nIn electronic research, browsing refers to the process of navigating through\na website\xe2\x80\x99s inherent organization to narrow in on the information the\nresearcher is seeking. Legal research platforms are typically organized\naccording to the concepts discussed in Chapter 1: type of authority,\njurisdiction, as well as by legal topic. However, platforms may employ\nslightly different terminology. For example, Lexis+ allows researchers to\nbrowse by Content types, which allows users to select types of authority like\nstatutes or secondary sources. It also uses the term Practice Area rather\nthan topic. See the video in Figure 2.3.1 for further explanation of how\nLexis+ is organized. Westlaw Edge and other legal research platforms are\ngenerally organized along similar lines.\n\n26\n\n\x0cFigure 2.3.1 Browsing on Lexis+TM. Click here for\nscreencast: https://youtu.be/9sRAqzp55hE. Reprinted\nfrom LexisNexis with permission. Copyright 2021\nLexisNexis. All rights reserved.\n\n2.3.2 Filtering\nFiltering is a process by which electronic researchers focus on some search\nresults while excluding others. Information providers assign descriptive\ninformation to individual documents which allow researchers to narrow in\non the specific information they are looking for. For example, online\nretailer Amazon has filters that allow customers to find exactly what they\nare looking for among a multitude of results. So, if one wanted to buy\nsandals from Amazon, one could search for \xe2\x80\x9csandals\xe2\x80\x9d and then filter the\nresults by brand, size, color, and even average customer review, which are\nall pieces of metadata collected by Amazon and applied to each individual\nproduct entry.\nFiltering may be the most flexible of the electronic information gathering\nprocesses. It can be performed pre-search or post-search. Legal research\nplatforms generally build a number of useful filters into their platforms.\nCommonly used filters include type of authority (statute, case, secondary\nsource, etc.), jurisdiction, date, and topic (as assigned by editors working for\nthe information provider). Researchers typically find available filters listed\nin a box to the left of delivered search results.\n\n27\n\n\x0cFigure 2.3.2 Filtering in Westlaw Edge. Click here for\nscreencast: https://youtu.be/8JL44vzt2GY\n\n2.3.3 Natural Language Searching\nIn daily life we tend to retrieve much of our information on the Internet by\nsearching. Even the name of the most widely used search engine is now\nsynonymous with the term \xe2\x80\x9clooking stuff up on the internet\xe2\x80\x9d.43 At its core,\nsearching is a simple process that consists of typing terms into a search bar\nand then scanning through the results. For example, if I wanted to find out\nhow to add page numbers to a document, I might search for \xe2\x80\x9cpage\nnumbers\xe2\x80\x9d or use a phrase including more contextual information such as\n\xe2\x80\x9cpage numbers in Word 2016\xe2\x80\x9d or even ask a question: \xe2\x80\x9cHow do I add page\nnumbers in Word 2016?\xe2\x80\x9d The search engine then uses an algorithm to scan\nwebsites and return results likely to give me the information I need.\nThis type of search is referred to as a natural language search or a keyword\nsearch. The researcher is largely relying on the site\xe2\x80\x99s search algorithm to\nretrieve information. When search algorithms were first created, they did\nnot actually comprehend the information that was contained in each search\nresult. They were simply counting terms and other types of data on the\nsearch results to rank them on the results page. Today, many sites utilize\n\n43\n\nFor example: \xe2\x80\x9cLet me Google that for you.\xe2\x80\x9d\n\n28\n\n\x0cmore sophisticated search algorithms which now employ types of artificial\nintelligence that can relate search terms with synonyms or even concepts.\nThe current generation of legal research platforms default to a natural\nlanguage search, mostly as a response to the rise of Google, and employ\nartificial intelligence in their search algorithms. While it is possible to use a\nnatural language search as a starting point for legal research, it is still best\nsuited for relatively simple legal questions. Even then, it usually returns a\nrelatively large number of results that will require a researcher with good\ninformation literacy skills to be able to recognize which results are most\nuseful. For example, the search pictured in Figure 2.3.3 seeks an answer to\nthe question of whether Vermont recognizes common law marriages, a\nrelatively straight-forward yes-or-no question, and the artificial intelligence\ntool in Westlaw Edge called Westlaw Answers has defaulted to other\nstates.44 The search has also returned 94 cases, amongst other types of\ndocuments. So, while the algorithm (which Westlaw Edge tailored\nspecifically for legal research) does present authority to answer the yes or\nno question, it also presents a lot of information that does not answer the\nquestion. It is up to the researcher to determine which of the results\nprovide proper legal authority to answer the question. Thus, natural\nlanguage searching is not always the most efficient way to research complex\nissues of law, or at least not in isolation.\n\nHowever, AI algorithms can learn quickly. We had originally used Kentucky\nfor this example, and Westlaw Answers was providing us with the same Maine\nand New Mexico responses. Two weeks later, after running variations of this\nsearch several times for Kentucky and other states, Westlaw Answers was\nproviding us with the correct answer for Kentucky. However, it had also\nsometimes stopped returning an answers box at all if the question was posed\nusing slightly different language.\n44\n\n29\n\n\x0cFigure 2.3.3 Screenshot of Westlaw Answers. Westlaw\nEdge uses artificial intelligence for its Answers feature, but it\ndoes not always provide the necessary information.\n\n2.3.4 Boolean Operators\nThe creators of full-service legal information platforms (and indeed many\ncreators of search engines generally) include in their products tools that\nenable legal researchers to take greater control of the search in order to\nachieve more precise results. Programmers call these tools \xe2\x80\x9coperators\xe2\x80\x9d\nbecause they operate upon the basic search function to modify the\nalgorithm used. Researchers can usually find a list of available operators\nthrough an \xe2\x80\x9cadvanced search\xe2\x80\x9d interface. The idea behind these operators is\nnot to rely on the search algorithm but to essentially override it by asking\nfor very specific results.\nThe basic operators supported by many search engines, including those on\nlegal research platforms, are called Boolean operators: AND, OR, and\nNOT.45 The use of the AND operator between two keywords tells the\nsearch engine that you want both keywords in all your search results, which\n\nThe form the operators take may differ by platform; see Chapter 7 for a chart\nof search operators on used on Lexis+ and Westlaw Edge.\n45\n\n30\n\n\x0cmeans that the search engine won\xe2\x80\x99t bring back any result with only one of\nthe keywords. For example, if you wanted to be sure to find search results\nmentioning the terms custody and the term divorce, using custody AND\ndivorce would force the search engine to pay attention to both terms and it\nwould eliminate any document that doesn\xe2\x80\x99t contain both words. The\noperator has effectively limited your search, which is often what you are\naiming for in research. The more search results you have, the more time\nyou will spend evaluating the results.\nNOT operates by excluding terms. It tells the search engine to ignore any\nresult with a particular keyword. So, if you were doing research on Apple\nthe company and you are getting search results on apple the fruit, you might\nuse the NOT operator to exclude any search result using the term fruit:\nApple NOT fruit. This operator again works to limit a search; however, it\ncan be easy to over-exclude results, so it must be used cautiously.\nOR, on the other hand, can be used to broaden a search. A typical use of\nOR is when the search algorithm is not returning results containing all the\nsynonyms that you want. If you are searching for legal authorities\npertaining to boat ownership, you might use the search ship OR boat.\nThese search operators can be used in combination, and there are many,\nmany more of them that are available to you on research platforms. We\nwill talk about more search operators and how to use them in combination\nwith other research tools in Chapter 7.\n\n2.4 Finding Aids\nThe term \xe2\x80\x9cfinding aid\xe2\x80\x9d is employed by some researchers to refer to tools\nthat allowed a researcher to utilize a specific publication or set of\ninformation. Two types of finding aids that originated in print can also\noften be found in an electronic environment: the table of contents and the\nindex. For example, most legal researchers have utilized a print textbook\nfor a college or high school class, and many of these textbooks contain\nthose two finding aids common to non-fiction publications.\nA table of contents is generally located at the front of a publication and lays\nout the physical organization of the book, starting at page 1 and listing the\norganization to the end of the book. The physical organization of the book\nis often topical. An introductory biology textbook might have chapters on\nAnimals and Plants and Genetics. Those chapters are likely divided, just as\nthis book is, into more specific sub-topics in sections.\n\n31\n\n\x0cAn index is generally located at the back of a publication and is organized\nalphabetically by more specific topics than a table of contents. Under each\ntopic, subtopics will be specified, along with the page numbers where you\ncan find mentions of those subtopics in the textbook. Humans create\nindexes, and so they will generally include both terms of art46 and more\ncolloquial language so that novices can use it as an entry point. An index\ncan help you find specific topics mentioned in multiple places in a book. In\na biology textbook, it might help you locate every page on which evolution\nis discussed and, more specifically, pages that discuss the evolution of cell\nstructures. Before full-text searching, indexes were the best option for\nlocating all pages of a book discussing a specific topic.\nBecause many legal publications were initially created in print, these finding\naids are often still useful either instead of or in conjunction with electronic\nprocesses. Most statutes relating to murder are probably located in the\nsame chapter of a statutory code. If the statutes use the term homicide\ninstead of murder, you could still probably look up murder in the index and\nget to the right statutes. That doesn\xe2\x80\x99t change just because statutes are now\navailable online. If a table of contents exists for a legal publication in print\nform, it is probably also available in its electronic form. Indexes are not as\ncommonly available, but still exist for some sources on some platforms.\nFurther discussion of finding aids will be discussed in subsequent chapters\nin relation to specific authorities.\n\n2.5 Citing References\nWhen conducting research, it is often useful to know what\ndocuments discuss a relevant document that you have already found.\nFor example, if you have an article published in 2010 discussing\nmedical malpractice in California, it might be useful to see a list of\ndocuments published after 2010 that cite or refer to your 2010 article\nto see how the area of law evolved. Such a tool goes by various\nnames like \xe2\x80\x9cciting references\xe2\x80\x9d or \xe2\x80\x9ccitator,\xe2\x80\x9d but most legal research\nplatforms have it available for some types of authorities. Further\ndiscussion of citing references and their value in legal research will\n\n\xe2\x80\x9cA word or phrase having a specific, precise meaning in a given specialty, apart\nfrom its general meaning in ordinary contexts.\xe2\x80\x9d Term of Art, BLACK\xe2\x80\x99S LAW\nDICTIONARY (11th ed. 2019).\n46\n\n32\n\n\x0coccur in Chapter 6 and 7. In the meantime, Chapters 3-5 will focus\non the individual sources of law that researchers will discover on\nthese legal research platforms.\n\n33\n\n\x0cChapter 3\n\nConstitutions & Statutes\nThus, the particular phraseology of the Constitution\nof the United States confirms and strengthens the\nprinciple, supposed to be essential to all written\nConstitutions, that a law repugnant to the\nConstitution is void, and that courts, as well as other\ndepartments, are bound by that instrument. \xe2\x80\x93 John\nMarshall, Marbury v. Madison, 5 U.S. 137, 180 (1803)\nAll those courts before mentioned are in use, and\nexercised as Law at this day, concerning the Sheriffes\nLaw dayes and Leets, and the offices of High\nConstables, pettie-Constables, and Tithingmen;\nhowbeit, with some further additions by Statute\nlaws\xe2\x80\xa6 - Francis Bacon, The Elements of the Common\nLaws of England\n\n3.1 Learning Objectives for Chapter 3\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nCompare the different stages in a statute\xe2\x80\x99s life-cycle.\n\n\xef\x82\xb7\n\nEvaluate the properties of a code:\n\n\xef\x82\xb7\n\n\xef\x82\xb7\n\no\n\ncode organization\n\no\n\ncurrency\n\no\n\ncode annotations\n\nUse finding aids to find specific statutes in print and online:\no\n\nby citation\n\no\n\nby topic using the index\n\no\n\nby popular name\n\nRecognize the various types of document comprising a statute\xe2\x80\x99s\nlegislative history and evaluate how useful each type would be for\ndetermining legislative intent.\n\n34\n\n\x0c3.2 Constitutions & Statutes\nAs discussed in Chapter 1, constitutions act as the highest source of law in\nthe United States legal system. No other law can be valid if it conflicts with\na constitutional provision. As such, finding applicable constitutional\nsections takes on dire importance for legal researchers. Fortunately,\nconstitutions tend to be short. Furthermore, because of their importance,\nmost experienced lawyers will know whether or not a constitutional issue\nwill likely apply without needing to do an overly large amount of research.\nBecause of these factors, and because jurisdictions tend to publish their\nconstitutions in the same place as their statutes, we will cover constitutions\nand statutes together.\nConstitutionally-valid statutes act as the second highest source of law at\nboth the federal and state levels. An applicable statute will control a given\nlegal problem over case-made legal rules. This has been the case in the\nAnglo legal tradition since the late Middle Ages, as the quote from Francis\nBacon at the beginning of this chapter suggests. However, the full primacy\nof statutes did not occur until the Tudor period in the Sixteenth Century.47\nIn fact, at that time England underwent the Reformation and split from the\nRoman Catholic Church by statute.48 As the development of statutory\nauthority occurred before the founding of the North American colonies,\nstatutes have always enjoyed primacy (subject to written constitutions, an\nAmerican innovation) in the U.S. legal system.\nThis is not to say that statutes have always taken the same form. American\npolitical and legal institutions have evolved over time. However, we will not\ncover the complete history of statutory forms since what matters to most\nresearchers is finding and understanding relevant statutes in their current\nforms. To understand the different forms statutes currently take, however,\nwe must first turn our attention to the life-cycle of a statute.\n\nFor an account of how Henry VIII and his secretary Thomas Cromwell\nmodernized English political and legal institutions, see generally G. R. ELTON, THE\nTUDOR REVOLUTION IN GOVERNMENT; ADMINISTRATIVE CHANGES IN THE\nREIGN OF HENRY VIII (1953).\n47\n\n48\n\nEcclesiastical Appeals Act, 1532, 24 Henry 8, c. 12 (Eng.).\n\n35\n\n\x0c3.3 Life Cycle of a Statute\nStatutes, of course, come from legislatures. When a legislator wants to\ncreate a new statute, he introduces a bill into whichever house he belongs.\nUpon introduction, each bill receives a number beginning with a\ndesignation of its house of origin. For example, at the federal level, bills\nintroduced into the House of Representatives begin with the letters H.R.,\nwhile bills introduced in the Senate begin with the letter S. State\nlegislatures follow similar schemes. Bill numbering starts over each\nlegislative session, so researchers need to be aware of which session of a\nlegislature considered a bill. However, bills are not yet statutes, and many\nnever become so.\nUpon passing both houses of a legislature,49 a bill is signed by the\nexecutive (barring a veto) and becomes a statute. Different jurisdictions\ncall their statutes by different names, but Acts or Laws are the most\ncommonly used terms. At the federal level, passed bills become known as\nPublic Laws.50 Public Laws receive a unique number, beginning with the\nnumber of the Congressional session in which the law was passed. The\nGovernment Publishing Office then immediately publishes each Public\nLaw as a pamphlet or slip law. Slip laws, due to their quick publication,\neffectively give the public notice of new laws. However, because each slip\nlaw contains only one statute in isolation, they are not terribly useful for\nlegal research purposes. In fact, many states do not bother to issue slip\nlaws.\nAt the conclusion of each legislative session, the printer for the legislature\ngathers all statutes passed during the session,, also known as \xe2\x80\x9csession\nlaws\xe2\x80\x9d, and publishes them in chronological order as part of a multi-volume\nset. At the federal level, the set is called the Statutes at Large. Different\nstates call their session laws different things. For instance Kentucky calls\nits session laws the Kentucky Acts, while Ohio calls its the Ohio Laws.51\nBecause these collections of session laws feature chronological\norganization, a legal researcher pursuing a specific topic will not find them\n\n49\n\nExcept, of course, in unicameral Nebraska.\n\nFor a complete list of what each state calls its statutes, see THE BLUEBOOK: A\nUNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass\xe2\x80\x99n et\nal. eds., 21st ed. 1st prtg. 2020).\n50\n\nFor a complete list of what each state calls its session laws, see THE BLUEBOOK:\nA UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass\xe2\x80\x99n\net al. eds., 21st ed. 1st prtg. 2020).\n51\n\n36\n\n\x0cterribly useful. However, if a researcher has already found a specific statute\nand wishes to see earlier versions of that statute, session laws become a\nvaluable resource, as we will see in section 3.4.3.4.\n\nFigure 3.3: Life Cycle of a Generic Statute\n\nFinally, after initial publication, statutes undergo codification, which is:\nThe process of compiling, arranging, and\nsystematizing the laws of a given jurisdiction, or of a\ndiscrete branch of the law, into an ordered code.52\n\nThe process of codification thus results in a topically-organized code of\nstatutes in force. The federal government appropriately titles its code The\nUnited States Code (U.S.C.). Naturally, as befits the U.S. federal system,\nstate codes vary in name.53 Note that when a new statute makes changes to\nthe existing statutory code, language is added or removed to the code as\nnecessary to incorporate those changes. Thus, codes constantly change,\nwhile session laws serve as repositories of historical laws. Because most\nlegal research involves investigating legal issues that apply to facts, rather\nthan beginning with a specific statute, codes tend to be the statutory\n\n52\n\nCodification, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019)..\n\nFor a complete list of what each state calls its code, see THE BLUEBOOK: A\nUNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass\xe2\x80\x99n et\nal. eds., 21st ed. 1st prtg. 2020).\n53\n\n37\n\n\x0csource researchers use most often. A jurisdiction\xe2\x80\x99s code also typically\nincludes its constitution at the front, so constitutional research would also\nbe conducted with a code.\n\n3.4 Using Codes\nLawyers conduct the bulk of their statute research using the codified\nversions of statutes (also known as statutory codes) because they contain\nthe statutes currently in force. Legal researchers therefore need the ability\nto use codes efficiently. Because codes and their finding aids developed\nduring the pre-computer era, we will introduce their use in print format.\nOf course, electronic legal publishers include codes on their research\nplatforms, but rather than reinvent the wheel, the electronic publishers\nincorporated many of the tools originally developed for codes in hardcopy. Also, some experienced legal researchers prefer codes in print due to\nthe efficient design of these resources.\n\n3.4.1 Codes & Topical Organization\nCodes work well for legal research because of their topical organization. A\ntopical organization allows for the easy creation of a topical index, a type\nof finding aid which researchers can use to find code provisions on a\nspecific topic. Once a researcher finds a code provision on point, nearby\nprovisions may also be likely to be of use because of the way codes group\nsimilar topics together. In order to see how this works, let us take a closer\nlook at the organization of a typical code.54\nThe most basic unit of a code is the section, which provides for a specific\nlegal rule over a set of circumstances. In fact, usually when lawyers refer to\n\xe2\x80\x9ca statute,\xe2\x80\x9d they mean an individual code section. While sections may\nfeature subsections, the subsections themselves only provide for part of\nthe legal rule created by the section and so cannot really act on their own.\nThink of code sections as analogous to atoms. While protons, neutrons,\nand electrons make up atoms, none of those particles will be found in\nnature on their own, but only clumped together in atoms. Subsections and\ncode sections work in the same way.\n\nNote that as with most authorities in a federal system, exact nomenclature may\nvary jurisdiction by jurisdiction; however, the terms that follow are the most\ncommonly used.\n54\n\n38\n\n\x0cCodes then group related sections together into chapters. Sometimes a\ncode will also use sub-chapters if an area of law contains a sufficient level\nof depth for multiple classifications. For instance, in the United States\nCode, Chapter 10 of Title 18 contains all of the code sections related to\nfederal criminalization of biological weapons. The individual sections in\nthe chapter address discreet topics such as the prohibition of biological\nweapons or seizure of biological weapons by the government.55 Note also\nthe inclusion of a definitions section in the chapter.56 The definitions\ncontained therein apply to all the other sections in the chapter. A\nresearcher would need to find the definitions in order to apply correctly\nany of the other sections in the chapter. Luckily, a code\xe2\x80\x99s inherent\norganization makes such a discovery likely. Furthermore, print codes\nfeature a table of contents at the beginning of each chapter to enable\nresearchers to grasp quickly the organization of that particular chapter.\n\nFigure 3.4.1a: The table of contents for Chapter 10 of Title\n18 of the United States Code Annotated.\n\nCodes then group related chapters together into titles. Generally, a title acts\nas the largest unit of organization in a code, other than the code itself.57 For\nexample, the U.S.C. houses the chapter on biological weapons in Title 18\nwith other chapters dealing with different crimes. A table of contents alerts\nresearchers as to what chapters are included in the title. Sometimes titles\ninclude definitions or general principles that apply throughout the title.\nThese will usually be found towards the beginning of the title. Similarly, a\n\n55\n\n18 U.S.C. \xc2\xa7\xc2\xa7 175 \xe2\x80\x93 178 (2018).\n\n56\n\n18 U.S.C. \xc2\xa7 178 (2018).\n\nSometimes codes also group related chapters into separate parts within a title.\nNote also that some jurisdictions, notably Texas and California, publish multiple\ntopical codes instead of one unified code. To determine the publication format\nfor a specific jurisdiction, see THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION\n242-294 tbl.T.1.3 (Columbia Law review Ass\xe2\x80\x99n et al. eds., 21st ed. 1st prtg. 2020).\n57\n\n39\n\n\x0ccode itself features a table of contents identifying its constituent titles and\nmay also feature general provisions applicable to the entire code. A lawyer\nwould need to find these in order to interpret applicable laws correctly.\nFortunately, codes provide enough organization to allow researchers to find\nthe information they need.\n\nFigure 3.4.1b: The table of contents for Title 18 of the\nUnited States Code Annotated.\n\n3.4.2 Annotations\nSometimes a jurisdiction publishes its own code as an official version, such\nas the U.S.C. Often, however, a jurisdiction will designate private entities as\nthe publisher(s) of its code. For instance, in Kentucky two separate private\npublishers produce the Kentucky Revised Statutes: Michie\xe2\x80\x99s (Lexis) and\nBaldwin\xe2\x80\x99s (West). Even for jurisdictions that publish their own code,\nthough, private publishers will also publish an unofficial version. For\nexample, West publishes the United States Code Annotated (U.S.C.A.), and\nLexisNexis publishes the United States Code Service (U.S.C.S.). Both of these\ntitles are reprints of the official U.S.C., yet their respective publishers are\n\n40\n\n\x0cable to sell copies and turn profits because they add value to the code by\nproviding editorial content called annotations.\nAnnotations lead researchers who have discovered a relevant statute in an\nannotated code to other authorities that help interpret that statute. Through\nannotations, researchers may discover cases, secondary sources on point, or\nother tools useful to the expansion of research from an applicable statute.\nFigure 3.4.2 shows examples of annotations included for a section from\nMichie\xe2\x80\x99s Kentucky Revised Statutes. Annotated codes also feature annotations\nfor constitutional sections.58\nThe publishers of annotated codes employ lawyers as editors to read new\nlegal authorities and to identify which authorities interpret which specific\nstatutes. Obviously, this is a time-intensive and expensive undertaking, but\nlegal researchers willingly pay the costs because good annotations are an\nefficient way to begin their research.59\n\nNote that publishers usually provide an extremely large number of annotations\nfor constitutional provisions. This makes sense as constitutional provisions tend\nto be broadly-written and open to much interpretation through caselaw. The\nresult for the researcher, though, is that annotations for a particular constitutional\nprovision may be extremely bulky and not as easy to use as those for statutes.\n58\n\nAlso, because the different publishers employ different editors, it may\nsometimes be beneficial to check multiple versions of a code (if a researcher has\ncost-effective access to multiple versions) as the annotations may differ.\n59\n\n41\n\n\x0cFigure 3.4.2: KY. REV. STAT. ANN. \xc2\xa7 411.070 (Lexis\n2005) Reprinted from LexisNexis with permission.\nCopyright 2016 Matthew Bender & Company, Inc., a\nLexisNexis company. All rights reserved.\n\n3.4.3 Using Codes in Print\nSome experienced legal researchers find print copies of codes more\nefficient to use than electronic copies. Often a researcher will need several\nrelated sections of a code and so desires the ability to flip back and forth\nbetween sections. Also, sometimes seeing a code in print makes it easier to\ngrasp the code\xe2\x80\x99s inherent organization. Naturally, when researching in\nprint good legal researchers prefer annotated codes to unannotated codes\nbecause of the value added by the annotations.\n\n42\n\n\x0c3.4.3.1 Finding Code Sections by Citation\nBefore a legal researcher can use annotations, however, he must find the\ncode section(s) relevant to his problem. The easiest way to pull a relevant\ncode section is by citation. A lawyer might know the citation of a code\nsection he needs through other means than research. For instance, a\ncriminal defense attorney may know the citation to the statute under which\nhis client has been charged. If a legal researcher knows the citation of a\nparticular code section, then retrieving that section is simple.\nCitation schemes vary from jurisdiction to jurisdiction, but generally\nspeaking, statutory citation begins with a number that references the title in\nwhich the section is found, then provides an abbreviation that lets\nresearchers know which code the citation references, and finishes with the\nspecific section number of the section. The federal code follows this\nformat, as do the codes of some states. For example, to pull 7 U.S.C.\n\xc2\xa7 1471(j),60 a researcher would find the volume of the U.S.C. that contains\nTitle 7 and turn to \xc2\xa7 1471(j). As you can see in Figure 3.4.2, codes feature a\nheader on each page that alerts researchers to the first (for left-hand pages)\nor last (for righthand pages) section that appears on that page. Note that\ncode volumes sometimes contain more than one title. This bears\nemphasizing: title numbers and volume numbers of print codes do not\ncorrespond. A title is a unit of intellectual organization, while a volume is a\nunit of physical organization. Researchers should take care to select the\ncorrect volume that houses the title for which they are looking.\nNot all states follow the federal citation scheme. For instance, in Hawai\xe2\x80\x99i\ncode sections are cited in the following format: HAW. REV. STAT. \xc2\xa7 322-1.\nThe citation still features an abbreviation referencing a specific code (in this\ncase, the Hawai\xe2\x80\x99i Revised Statutes), but there is no title number. Instead, the\ncitation provides only the specific section number: 322-1. For each section\nin the Hawai\xe2\x80\x99i code, the digits before the hyphen refer to a chapter, and the\nones after the hyphen refer to the specific section. Thus, a researcher would\nfind \xc2\xa7 322-1 in chapter 322 of the Hawai\xe2\x80\x99i Revised Statutes. Hawai\xe2\x80\x99i serves as\nonly one example, though many states employ a similar scheme. For a\n\nNote that for a full, formal citation when producing legal writing, more\ninformation would be required. See THE BLUEBOOK: A UNIFORM SYSTEM OF\nCITATION R. 12, 120-134 (Columbia Law review Ass\xe2\x80\x99n et al. eds., 21st ed. 1st prtg.\n2020).\n60\n\n43\n\n\x0ccomplete state-by-state breakdown of citation schema, researchers may\nconsult table 1.3 of The Bluebook.61\n\n3.4.3.2 Finding Code Sections by Topic\nWhile retrieving a code section by citation is quick and easy, often legal\nresearchers will not know the citation of code sections they will need.\nInstead, from talking with a client, they will merely have identified some\nrelevant legal issues and will need to find statutes that correspond with\nthose issues. For this reason, print codes provide a couple of methods of\naccessing information by topic.\nFirst, codes provide a table of contents. Actually, they usually provide a\nseries of tables of contents. At the very beginning of the code, a researcher\ncan find an exhaustive table of contents that lists each title of the code and\ngives information about what areas of law each respective title covers.62\nThen, at the beginning of each title, a code provides a table of contents for\nthat title, detailing the coverage of chapters within the title. Similarly,\nindividual chapters provide tables of contents with information on their\nconstituent sections. See Figures 3.4.1a and 3.4.1b above as examples.\nResearchers can browse through the tables of contents to narrow in on a\nspecific section of relevance.\nBrowsing tables of contents, however, can be time-intensive and does\nrequire some knowledge of how specific issues relate to general topics. For\ninstance, a researcher looking for criminal trespass statutes would need to\nknow that those would likely be included near burglary and that burglary as\na crime would be found in a penal code. Often, then, researchers turn to the\nother tool provided by codes for topical research: the index.\nResearchers will usually find a comprehensive index in one or more\nvolumes located at the end of a code. A code\xe2\x80\x99s index works in typical index\nfashion: researchers look up specific terms they think apply to their\nsituation, and the index refers them to specific code sections or to other\nterms in the index (that will then refer the researcher to specific code\nsections). Note that legal indexes tend to be organized into multiple levels\n\nTHE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3\n(Columbia Law review Ass\xe2\x80\x99n et al. eds., 21st ed. 1st prtg. 2020).\n61\n\nOften, the overall table of contents will be reproduced at the front of each\nindividual volume of a code.\n62\n\n44\n\n\x0cof classification, meaning that sometimes researchers can only find specific\nterms by looking under general topics. For instance, a researcher looking\nfor the statutory penalties for harming a bald eagle would first need to look\nup \xe2\x80\x9cbald eagle\xe2\x80\x9d as a topic and then scan through the subtopics to find\n\xe2\x80\x9cfines and penalties.\xe2\x80\x9d Often, the multiple-level organization of code indexes\neven leads researchers to investigate relevant terms that they would not\nhave thought of on their own! Between the index and the table of contents,\nlegal researchers should be able to find statutes on any given topic, even\nwithout knowing a citation beforehand.\n\nFigure 3.4.3.2: Excerpt from the General Index of West\xe2\x80\x99s\nUnited States Code Annotated.\n\n3.4.3.3 Popular Names Table & Other Tables\nIn addition to providing means for researchers to find code sections by\ntopic, codes often provide finding aids that allow a legal researcher to find\na code section if he possesses some other piece of information about a\nstatute. For instance, most laws receive \xe2\x80\x9cpopular names,\xe2\x80\x9d by which they\ncan be referenced without needing to rattle off a difficult-to-remember\ncitation. For example, the federal Religious Freedom Restoration Act\n(otherwise known as Public Law No. 103-141) tends to make the news a\nlot. A lawyer might remember that the Religious Freedom Restoration Act\n\n45\n\n\x0capplies to his case but then need to pull the relevant code sections to read\nthe actual statute. By using the Popular Names Table of the U.S.C.A., he\nwould be able to look up \xe2\x80\x9cReligious Freedom Restoration Act\xe2\x80\x9d and\nretrieve citations to the code sections which house the act, as seen in\nFigure 3.4.3.3.\n\nFigure 3.4.3.3: The U.S.C.A. Popular Names Table Entry\nfor the Religious Freedom Restoration Act.\n\nNote that the Popular Names Table also provides researchers with citations\nto the enacting and amending session laws. Annotated codes also often\nprovide separate tables that convert session law citations to code section\ncitations. The other tables provided by codes work under similar principles\nas the Popular Names Table.\n\n3.4.3.4 Using Code Sections\nRegardless of how a researcher finds a relevant code section, he then\nneeds to apply it to his client\xe2\x80\x99s problem. The first thing a good researcher\ndoes upon locating a potentially relevant code section is to read carefully\nthe language of the law itself. (Note that annotated codes provide much\nmore information than just the law itself. Please refer back to Figure 3.4.2\nfor an illustration of the different pieces of information discussed here.)\nReading the code section should alert the researcher as to whether or not\nthe code section he found actually applies to his legal problem.\nAfter an initial read, a lawyer should then check to see if the language he\njust read was in force at the time of the actions that gave rise to his client\xe2\x80\x99s\n\n46\n\n\x0cproblem. He does this by perusing the dates enacted/amended that codes\ninclude immediately after the language of each section. Obviously, the\nearliest date listed refers to the enactment of the law, while later dates refer\nto times later statutes amended the code section. The text of the code\nsection reflects the changes made by the most recent listed amending\nstatute. Therefore, if a client\xe2\x80\x99s problem occurred prior to the most recent\namendment, a lawyer would need to look at the version of the law in force\nat that time. Luckily, the dates amended following a code section also\nprovide citations to the session laws that did the amending. The lawyer\ncould then retrieve the appropriate session law by citation, as if he were\nretrieving a code section by citation, to obtain the law as written at the\ntime of the facts giving rise to his client\xe2\x80\x99s problem.\nHowever, looking backwards in time at changes to a code section when\nresearching in print is not enough. A legal researcher must also look\nforwards in time, or \xe2\x80\x9cupdate\xe2\x80\x9d the law. This occurs because books are\nprinted at a definite point in time. Because legislatures frequently pass\nstatutes that amend code sections, invariably some printed code sections\nwill have changed since the date when the volume they are found in was\nlast published. Fortunately, legal publishers are aware of this possibility\nand have developed a system to alert researchers to changes in the law.\nThey simply issue supplementary volumes containing the new language.\nMost annotated codes publish their supplementary updates as \xe2\x80\x9cpocket\nparts\xe2\x80\x9d, which are soft-bound pamphlets which dedicated library workers\nslide into a pocket at the back of the bound code volume. If enough laws\nchange to the point that a pocket part becomes too thick to fit into a code\nvolume comfortably, a publisher may issue a free-standing supplement\n(which would be located immediately to the right of its code volume on\nthe shelf), or may simply republish the code volume in question.\nPocket parts present code sections in the same order as their parent\nvolume, but they do not reprint every section of the volume. If a code\nsection does not appear in the pocket-part, then a researcher knows that it\nhas not been updated through the publication date of that pocket part and\ncan rely on the version found in the code volume proper. However, if a\ncode section does appear in the pocket-part, then a researcher knows one\nof two things: either the text of the law has changed, or the publisher has\nseen fit to add more annotations to the particular section. If the law has\nchanged, the new text of the code section will be provided in the pocketpart, and the researcher should use that language. If the text of the section\nitself does not appear, then the section appears in the pocket part because\n\n47\n\n\x0conly the annotations have changed. Note that if a new section is added to a\ncode after publication of its volume, it will appear only in the pocket part.\nSee Figure 3.4.3.4 for an illustration of the two different types of pocket\npart entries.\n\nFigure 3.4.3.4: Sample Pocket-Part Entries. Reprinted from\nLexisNexis with permission. Copyright 2016 Matthew\nBender & Company, Inc., a LexisNexis company. All rights\nreserved.\n\nOnce a researcher knows that the text of a statute was current at the time of\nhis client\xe2\x80\x99s incident, a good researcher then takes a couple of more steps\nbefore moving on with his research. First, he will flip to the beginning of\nthe chapter or sub-chapter that houses the section to see if any definitions,\n\n48\n\n\x0cgeneral provisions, or related sections apply to his issue. Second, he will\nmake note of any annotations included for his section of interest. The\nannotations may help him interpret or apply the statute he has found. They\nwill also usually give him an entry point into case research, which we will\ncover in Chapter 4.\n\n3.4.4 Using Codes Electronically\nAs West and LexisNexis publish the print versions of annotated codes,\nresearchers can find those same codes in electronic form on Westlaw Edge\nand Lexis+. Additionally, the federal and most state governments also\nprovide some sort of free online access to their codes. However, since the\nelectronic codes provided by jurisdictions do not include annotations\n(which are the intellectual property of the private publishers), law students\nlearning legal research for the first time should stick primarily to the\nWestlaw Edge and Lexis+ versions for full functionality.\n3.4.4.1 Finding Code Sections by Citation\nIf a researcher has a citation to a code section, retrieving the section in\nquestion is straightforward on both Westlaw Edge and Lexis+, as all one\nneeds do is to type the citation into the main search bar, and the platform\nwill usually recognize it as a citation and open the code section cited.\n\nFigure 3.4.4.1a \xe2\x80\x93 Retrieving legal documents by citation from\nlegal research platforms. Click here for screencast:\nhttps://youtu.be/3r89ImSbPjs.\n\n49\n\n\x0cIf a researcher types in a citation and the platform does not retrieve the\ndesired document, then most likely one of three things has happened: a\ntypo, the use of an alternative citation form, or the use of an incorrect or\noutdated citation. The first step in this instance is to check for typos. If\nthere are no typos in the citation entered into the search bar, then there is\nprobably a problem with the citation itself. Sometimes legal researchers\ncome across alternative citation forms (e.g. U.S. Code spelled out instead of\nU.S.C.). Westlaw Edge and Lexis+ may not recognize all alternatives of any\ngiven citation. Alternatively, the researcher may have come across a citation\nthat was incorrectly made or cited a code section that has since been\nremoved or renumbered. Luckily, Westlaw Edge and Lexis+ both feature\nelectronic versions of each code\xe2\x80\x99s table of contents which can also be used\nto find a cited section or to determine the non-existence of a cited section.\nSimply browse to the table of contents of the code cited (the middle part of\nthe citation), select the appropriate title (the first number of the citation),\nand then skim to the cited section (the final number in the citation), as\ndemonstrated in Figure 3.4.4.1b. If the section cited is present, then it may\nbe accessed despite the unrecognized citation. If the section cited is not\npresent in the table of contents, then the researcher knows it is no longer\npart of the code.\n\nFigure 3.4.4.1b \xe2\x80\x93 Accessing a code\xe2\x80\x99s table of contents\nelectronically. Click here for screencast: https://youtu.be/Y2Tnd8GaXI.\n\n50\n\n\x0c3.4.4.2 Finding Code Sections by Topic\nThe major legal research platforms also allow researchers to find relevant\ncode sections by topic through several different means. First, researchers\ncan find code sections on a given topic by using the electronic table of\ncontents much as they could use the paper table of contents as described in\nPart 3.4.3.2. See Figure 3.4.4.1b for accessing and using an electronic table\nof contents.\nSecond, Westlaw Edge generally makes indexes to its code available\nelectronically. Lexis+ also does so for some jurisdictions, though its\ncoverage is not yet universal. Legal researchers benefit from two advantages\nin using electronic indexes when available as opposed to jumping right to\nan electronic search. First, human editors create the indexes so they may be\nmore precise than a computer matching search terms. Second, an index\nentry will be comprehensive in that it will provide links to all sections in a\ncode relevant to a given topic, even if the related sections do not contain\nthe original search term(s).\nTo use a code index electronically, first a researcher must access the index.\nThen, the researcher may either browse alphabetically or search for a term.\nSearch results will show all the separate index entries containing the term\nand allow the researcher to open the most relevant. Note, however, that the\nindex search function on the platforms tends to be less robust than the\ngeneral search functions, so researchers may need to try several word\nvariations to find the correct entry. Once an index topic is opened,\nsubtopics will be listed much like a paper index, though the electronic index\nprovides the added benefit of hyperlinked cross references. Figure 3.4.4.2\ndemonstrates the use of an electronic index.\n\n51\n\n\x0cFigure 3.4.4.2 \xe2\x80\x93 Using an electronic index. Click here for\nscreencast: https://youtu.be/WboteIEZcig.\n\nIn addition to using electronic versions of tables of contents and indexes,\nlegal researchers can also use electronic search capabilities, as discussed in\nChapter 2 above, to find code sections by topic when researching statutes\non Westlaw Edge or Lexis+. Researchers should use care in general\nsearching of statutes, however, as statutory codes often use both controlled\nvocabularies and cross references, which can make results confusing and\nlead novice researchers astray. A well-crafted and thought-out search will\nmitigate these dangers.\n\n3.4.4.3 Popular Names Table & Other Tables\nWestlaw Edge and Lexis+ both provide access to the Popular Names\nTable and the Tables for the United States Code. Though researchers will\nfind these tables on the online platforms, they will function much as they\ndo in print (though with hyperlinks). On Westlaw Edge, the tables can be\naccessed from the landing page of the U.S.C. in the same \xe2\x80\x9cTools &\nResources\xe2\x80\x9d box where one finds the index. On Lexis+, the tables are\ntreated as separate resources, but researchers can find them by searching\nfor the sources \xe2\x80\x9cUSCS Popular Names Table\xe2\x80\x9d or \xe2\x80\x9cUSCS Statutes at Large\nTable.\xe2\x80\x9d\n\n52\n\n\x0c3.4.4.4 Using Code Sections\nCode sections published via Westlaw and Lexis+ contain all the same\ninformation as the print editions each publisher issues. A researcher will\nfind the text of the section, the section\xe2\x80\x99s enactment/amendment history,\nand editorial annotations that lead the researcher to other helpful sources.\nOn Lexis+, one finds this information laid out similarly to the print\nsources with the enactment/amendment history directly beneath the text\nof the code section and the annotations further down the page.\n\nFigure 3.4.4.4a \xe2\x80\x93 Elements of a code section on Lexis+TM.\nReprinted from LexisNexis with permission. Copyright 2021\nLexisNexis. All rights reserved.\n\nWestlaw Edge also provides this information although researchers will find\nthe annotations on separate tabs from the section text and\nenactment/amendment history, as seen in Figure 3.4.4.4b. In addition to\nproviding the information from the print editions, Westlaw Edge and\n\n53\n\n\x0cLexis+ also provide mechanisms that allow researchers to mimic the\nfunctionality of a print edition. Because researchers will often need to\nconsult multiple related code sections and also will need to be able to find\nquickly any relevant definitions sections, the ability to flip pages is why\nmany experienced legal researchers view researching statutes in print to be\nmore efficient. However, users of Westlaw Edge or Lexis+ can similarly\njump to nearby code sections by using the hyperlinked excerpt from the\ntable of contents that each platform provides at the top of every code\nsection. Similarly, researchers can use the previous/next buttons to \xe2\x80\x9cflip\npages\xe2\x80\x9d to code sections immediately preceding or following any given code\nsection.\n\nFigure 3.4.4.4b \xe2\x80\x93 A code section on Westlaw Edge. Click\nhere for screencast: https://youtu.be/4zzRA9pHNWo.\n\n3.4.4.5 \xe2\x80\x93 Codes on Bloomberg Law\nLike the other major legal research platforms, Bloomberg Law includes\ncodes in electronic form. Unlike Westlaw Edge and Lexis+, however,\nBloomberg does not publish annotated print versions. Thus, researchers\nwill not find true annotations on Bloomberg Law\xe2\x80\x99s codes. Bloomberg Law\ndoes include a \xe2\x80\x9csmart code\xe2\x80\x9d feature which approximates annotations by\nusing a computer to pull relevant discussions of the code section from\ncaselaw in a sort of targeted citator search. Other than that, legal researchers\n\n54\n\n\x0cwill find researching codes on Bloomberg Law similar to using the other\ntwo platforms.\n\n3.5 Local Legislation\nIn addition to creating their own laws, state legislatures also often delegate\nlocal law-making authority to cities or other local government units within\nthe state. Cities and other local units which have been delegated lawmaking power by the state are often referred to as municipalities or\nlocalities. Individual municipalities create their own processes of legislation\nin accordance with the state statute(s) creating the municipality. Lawyers\nrefer to local legislation as ordinances rather than statutes.\nThe major difference between a state statute and a municipal ordinance\ncomes in applicability. A statute carries force of law throughout the state.\nConversely, a municipal ordinance carries force of law only inside the\nboundaries of its municipality.\nAnother major difference between statutes and ordinances becomes\nobvious when one compares the publications that house the respective\nsources of law. While municipal ordinances do tend to be organized\ntopically into codes, the actual publication of physical copies remains less\nthan regular. A couple of commercial publishers publish larger\nmunicipalities\xe2\x80\x99 codes,63 but often the codes of smaller municipalities exist\nonly as self-created and promulgated documents. In fact, ordinance codes\ncan be somewhat hard to find, though many larger municipalities will\nprovide them on their websites. Researchers sometimes may need to\ncontact the issuing municipal government directly to find an up-to-date\ncopy, especially for smaller municipalities.\nShould a legal researcher get his hands on a municipal code of ordinances,\nhe would interact with it in the same ways he would interact with other\ncodes, as municipal codes typically feature indexes, tables of contents, and\ngood topical organization. Ordinance research is often easier than that\ninvolving other codes as a matter of scale, since municipal codes often\ncomprise only a single volume.\n\nMunicode and American Legal Publishing dominate the ordinance-publishing\nbusiness such as it is. The codes of ordinances published by these two companies\ndo not feature annotations, as both companies generally operate on a lowoverhead model. Both publishers make the codes they publish freely available on\ntheir respective websites.\n63\n\n55\n\n\x0cThough municipal ordinances can be difficult to find and carry only\nlimited applicability, they do carry the force of law in their municipalities\nthrough legislative delegation of authority. As such, lawyers need to be\nable to find ordinances affecting their clients, as they would statutes. Of\ncourse, both statutes and ordinances are subject to interpretation, as are\nconstitutions.\n\n3.6 Interpreting Constitutions and Statutes\nAs mentioned above, both constitutions and statutes tend to be broadly\nwritten in order to apply to a wide range of facts. They often lack specifics,\nand so lawyers must interpret them and how they will apply to a given set\nof facts. Often, lawyers look to judicial opinions that have already\ninterpreted a statute for guidance on how to interpret that statute. We will\ncover finding judicial opinions in Chapter 4.\nHowever, occasionally a lawyer may encounter a statute that has not yet\nbeen interpreted by a court, and so may need to look for other sources to\naid in interpretation. Similarly, a lawyer may face a situation in which all the\njudicial opinions side against his client and may be looking for an alternative\nway to interpret a statute or constitutional provision. In these situations,\nlawyers sometimes try to argue for an interpretation for an authority based\non the intent of the body that created the authority in question. In order to\nsupport an intent-based argument, a lawyer will often look to the history of\nthe authority\xe2\x80\x99s creation for evidence of intent.\n\n3.6.1 Constitutional History & Framers\xe2\x80\x99 Intent\nConstitutions typically come from constitutional conventions, which tend\nto publish records of their work beyond the constitution itself.\nFurthermore, to become binding as the ultimate source of law for a\njurisdiction, that jurisdiction must ratify the constitution. Usually, some\nform of a jurisdiction\xe2\x80\x99s legislature performs the ratification. Under some\ncircumstances, researchers can look to the work product of the\nconstitutional convention or of a ratifying body to help interpret a\nconstitutional provision by attempting to determine the intent of the\ndrafters or framers of the constitution.\nFor a variety of reasons, most lawyers will never find themselves needing\nto look to framers\xe2\x80\x99 intent. Most of the commonly-litigated constitutional\nprovisions feature a significant number of cases interpreting them. Usually,\n\n56\n\n\x0clawyers prefer to rely on a reported case\xe2\x80\x99s interpretation than to infer\nintent from the work product of a constitutional convention. Still, students\nmay sometimes encounter references to framers\xe2\x80\x99 intent in judicial opinions\nor scholarly works, so we will briefly introduce the major sources here.\nThe federal constitution came about as the result of a constitutional\nconvention held in Philadelphia during the summer of 1787.64 In addition\nto producing the Constitution itself, the convention produced various bits\nof work product. The bits of work product were later collected by\nhistorians and published as compilations. The most comprehensive and\nwidespread of the compilations is Max Farrand\xe2\x80\x99s The Records of the Federal\nConvention of 1789.65 Following the convention, the Constitution faced a\ntough ratification campaign, which saw three of the convention delegates66\npublish a series of essays arguing for ratification. Collectively those essays\nform the Federalist Papers,67 and judges deem them good expressions of\nframer intent. Furthermore, a historian named Jonathan Elliot collected\ndocumentation from the ratification debates that took place in the various\nstate ratification conventions and published them in a work entitled The\nDebates in the Several State Conventions on the Adoption of the Federal Constitution\n(or Elliott\xe2\x80\x99s Debates for short).68 Together, these three works make\nresearching federal framers\xe2\x80\x99 intent relatively straight-forward, and\nresearchers may find all three titles on the Library of Congress\xe2\x80\x99s website\n(as well as in virtually every library system in the United States).\nState constitutions often feature similar documentations of history in\nterms of convention proceedings, but the availability of the proceedings\nmay vary by state. Furthermore, many states have adopted different\nconstitutions at different times, and so there may be more than one\nconvention\xe2\x80\x99s proceedings available. To research state constitutional\n\nSee CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF\nTHE CONSTITUTIONAL CONVENTION, MAY TO SEPTEMBER, 1787 (1966).\n64\n\nMAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1789\n(1911).\n65\n\n66\n\nAlexander Hamilton, James Madison, and John Jay.\n\nTHE FEDERALIST Nos. 1-85 (Alexander Hamilton, James Madison, and John\nJay).\n67\n\nJONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON\nTHE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE\nGENERAL CONVENTION IN PHILADELPHIA IN 1787 (1861).\n68\n\n57\n\n\x0chistory, a researcher should contact a reference librarian in his state of\ninterest.\nA complicating factor about constitutions is that, because they are\ndesigned to be organic documents, they change over time through the\namending process. If the constitutional issue being researched relates to\none of the amendments, neither convention nor ratification documents\nwill be of use to a researcher. Fortunately, though, the vast majority of\nconstitutional amendments pass through a more rigorous version of the\nlegislative process, and so their histories can be researched in similar\nmethods to the legislative history of statutes, which we will cover in the\nnext section.\n\n3.6.2 Legislative History & Legislative Intent\nA statute\xe2\x80\x99s legislative history can serve as a source that will aid in\ninterpreting the statute. Legislative history refers to the \xe2\x80\x9cproceedings\nleading to the enactment of a statute, including hearings, committee\nreports, and floor debates.\xe2\x80\x9d69 Essentially, everything that happens to a\nproposed statute procedurally goes into its legislative history. Lawyers can\nsometimes use the legislative history to investigate the legislature\xe2\x80\x99s intent\nin drafting the statute. A lawyer would then argue that the legislative intent\nindicates a particular interpretation of the statute.\nAs the exploration of legislative intent is usually the end goal of\nresearching legislative history, researchers will find some pieces of\nlegislative history more helpful than others. After all, the legislative process\ntypically involves several distinct steps in two separate houses, so finding\nsomething that indicates the intent of the legislature as a whole can be\nchallenging. We will briefly introduce the types of documents researchers\nof legislative history are likely to encounter in order from those generally\nthe most helpful for inferring intent to those less often used.\n\n3.6.2.1 Types of Legislative History Documents\nIn order to appraise the relative weight of a piece of legislative history, a\nresearcher needs to understand the basic legislative process. First, a\nlegislator introduces a draft statute as a bill. Upon introduction of the bill,\n\n69\n\nBLACK\xe2\x80\x99S LAW DICTIONARY 1039 (10th ed. 2014).\n\n58\n\n\x0cthe leadership of the legislative house in which the bill was introduced\nassigns it to a relevant committee of that house for evaluation. The\ncommittee will look at the bill in some detail and may hold hearings to\ninvestigate the bill\xe2\x80\x99s purpose or commission studies about specific effects\nthe bill may have. If the committee passes the bill, it returns to the full\nlegislative house for debate and consideration. After a bill passes one\nhouse, it will be introduced in the other legislative house to follow the\nsame process.70 Because bills are subject to amendment at pretty much any\ntime of the process, it is unlikely that a bill will pass each house with the\nexact same language intact. To resolve differing language, legislatures\ngenerally form special committees with members from both houses, called\nConference Committees. Once a Conference Committee agrees on a\nreconciled version, each house must pass the final, reconciled version of\nthe bills they have already passed. Only then will the bill be sent to the\nexecutive to be signed into law as a statute.71\nGiven that legislatures contain multiple legislators all with their own beliefs\nand motives that can affect the steps of the process, speaking of legislative\nintent as a singular force may strike one as somewhat specious. In essence,\nevery piece of legislation passed represents a compromise. Therefore, the\nintent expressed during the compromise stage of the process will be the\nstrongest expression of intent a researcher will be able to find. For this\nreason, researchers of legislative history often look to Conference\nCommittee materials first. Indeed, Conference Committee Reports\ndetailing the actions taken by the Conference Committee on a particular\nstatute usually provide the strongest expression of legislative intent.72\n\nNote that legislative procedures vary and also tend to be flexible. For instance,\nsometimes different, or even identical, versions of a bill may be introduced\nsimultaneously in both houses. If they both pass, the legislature then can combine\nthem instead of starting the process anew.\n70\n\nNote that the executive possesses the options of not signing or vetoing the bill,\nin which case it would not become a statute, barring a veto override.\n71\n\nNote that intent-inferring value does vary document by document. A researcher\nmay find a Conference Committee Report that offers little interpretive value for a\nparticular statute, while a different legislative history document for the same bill\ncontains an express statement of intent. Generally speaking, though, a Conference\nCommittee Report containing evidence of intent would be more persuasive than\nother documents, since the Conference Committee will have dealt most closely\nwith what became the final version of the statute.\n72\n\n59\n\n\x0cSadly, Conference Committees do not create reports for every statute they\nconsider, and not every statute requires a Conference Committee.\nTherefore, a researcher may or may not find a Conference Committee\nreport for a given statute. If no Conference Committee Report is available,\nhe should then try a Committee Report from one of the standing\ncommittees. Because the committee to which a bill is assigned looks at a\nbill more closely than the legislative house at large, the committee itself\noften expresses intent in recommending the bill to the rest of the\nlegislative house. Furthermore, legislatures such as Congress tend to have\ntheir own procedural rules requiring that standing committees be made up\nof members of both parties. As such, Committee Reports generally reflect\nthe views of both the majority and minority parties on the committee and\nso may provide insight into the compromise that best embodies intent.\nHowever, because the committee will have considered an earlier, preconference version of a bill, researchers should ensure that any discussion\nof intent in a Committee Report refers to a portion of the bill that\nremained in the bill as it passed into law.\nResearchers may also encounter statutes for which there are no Committee\nReports available from any legislative committee. Other pieces of\nlegislative history may still provide glimpses of legislative intent. At the\nFederal level, Congress publishes a journal of its proceedings called the\nCongressional Record, which often preserves transcripts of debates on\nparticular bills, as well as voting records on the same bills. By putting these\ntwo pieces of information together, a researcher might be able to\ndetermine which argument carried the day and then ascribe intent to that\nargument. Alternatively, a researcher might find multiple versions of a bill\nalong with suggested amendments and attempt to infer intent from the\nchanges made to the bill. Finally, a researcher may examine published\nHearings or Committee Prints (studies commissioned by the committee\nconsidering a bill) in order to see what information Congress considered\nbefore passing a bill or to see what the stated purpose of a bill was. While\nit is somewhat tenuous to infer intent from Hearings or Prints, they may\nbe able to show whether or not Congress considered a specific issue and\nmay also describe the legislation\xe2\x80\x99s general goal in the abstract. Note that all\nof the legislative documents described in this paragraph require inference\nand assumption in order to determine intent as it applies to the specific\nlanguage of a statute. As such, these materials are much weaker than\nCommittee Reports.\n\n60\n\n\x0cType of Legislative\nHistory Document\nConference Committee\nReport\n\nCommittee Report\n\nCongressional\nRecord/Legislative\nJournal\n\nHearings\n\nCommittee Prints\n\nSigning Statement\n\nBrief Description\n\nUtility for\nDetermining Intent\nOfficial report of the\nHigh \xe2\x80\x93 often contains\ncommittee which\nexpress intent as\nreconciles differences\nrelated to the version\nbetween the bills\nof the bill that actually\npassed by each house\nbecomes a statute\nOfficial report of\nMedium \xe2\x80\x93 contains\nwhatever committee\nviews of both parties\nreviewed initial bill\nand may contain\nexpress intent, though\nnot usually as related to\nthe final version of the\nbill\nOfficial journal of the\nLow \xe2\x80\x93 may contain\nlegislature which may\nexpress statements of\ncontain records of\nintent, but statements\ndebates or statements\nonly attributable to\nregarding a bill\nindividual(s) making\nstatements; inference\nrequired to attribute to\nlegislature at large\nTranscripts of hearings\nVery low \xe2\x80\x93 will show\nheld by legislative\nan issue was brought to\ncommittees studying\nthe legislature\xe2\x80\x99s\nparticular bills\nattention but intent\nabout specific statutory\nlanguage difficult to\ninfer\nPublished reports on\nVery low \xe2\x80\x93 will show\nan issue commissioned an issue was brought to\nby legislative\nthe legislature\xe2\x80\x99s\ncommittees studying\nattention but intent\nparticular bills\nabout specific statutory\nlanguage difficult to\ninfer\nStatement issued by the Very low \xe2\x80\x93 not actually\nexecutive when signing\nfrom legislature\nbill into law\n\nFigure 3.6.2.1 \xe2\x80\x93 Types of Legislative History Documents\n\n61\n\n\x0cIn addition to the documents produced by the legislature, researchers of\nlegislative history may sometimes also encounter signing statements. In\norder for a bill to become law, it not only must be passed by the legislature\nbut must also generally receive the signature of the executive. When the\nexecutive signs a bill, he sometimes issues a signing statement, which is an\nexpression of the executive\xe2\x80\x99s understanding of legislative intent behind the\nnew law. While this may seem like a strong, express statement of intent,\nnote that it does not, in fact, come from the legislature. As such, it is not as\ngood for a legislative intent argument as something actually produced by\nthe legislature.\nResearchers of federal legislative history will encounter the types of\nmaterials described above somewhat regularly. However, states vary in the\namount of legislative work product they publish. In fact, many states\npublish only a legislative journal and no reports of any sort. Therefore,\nbefore engaging in research of state legislative history, students should\ncontact reference librarians from their state to determine what actually is\navailable.\nBefore a researcher can use legislative history to determine intent, she must\nfirst find what legislative history exists for the statute in question, so let us\nnow turn to methods for finding legislative history documents.\n\n3.6.2.2 Finding Legislative History Documents\nWe have good news and bad news about researching legislative history.\nOn the bad news side, a researcher never knows whether a legislature will\nhave produced any legislative history documents for a given statute. Thus,\nresearching a statute\xe2\x80\x99s legislative history may sometimes prove fruitless.\nOn the good news side, because a researcher will typically be looking for\nlegislative history to help interpret a statute, he will have a logical starting\npoint to his research. The statute itself will naturally limit the scope of his\nresearch.\nIn order to conduct legislative history research on a statute, a researcher\nwill need the session law or slip law citation for the statute in question. As\ndiscussed above, researchers typically find statutes via a topically organized\ncode. The reason that codes do not work so well for legislative history is\nthat most statutes produced by a legislature get divided into pieces in order\nto fit topically into the code. However, when the legislature considered\nand ultimately passed the statute, all the topical bits would have been\nconsidered together. Therefore, researchers will need the version of the\n\n62\n\n\x0cstatute as it passed in order to pull all its associated legislative history\ndocuments. Luckily, the code itself provides citations to the session laws\nthat enacted or amended a code section at the end of each code section.\nOnce a researcher has obtained the citation information for the slip law or\nsession law version of a statute, he can proceed in a couple of ways. First,\nhe may find a compiled legislative history for his statute. Compiled\nlegislative histories are similar to the compilations of historical\nconstitutional documentation referenced in Section 3.6.1. Compiled\nlegislative histories may exist as stand-alone works on a single topic,73 but\nresearchers may also find works that collect and publish multiple compiled\nlegislative histories. Such collections\xe2\x80\x94at least for Federal legislation--exist\nboth in print and electronically.74\nThe dominant print source for compiled legislative histories is West\xe2\x80\x99s\nUnited States Code Congressional and Administrative News (USCCAN). Before\ncomputers, USCCAN was the easiest way to locate federal legislative\nhistory.75 Researchers would look up federal statutes by Public Law\nnumber, and the USCCAN entry for the Public Law in question would\ncontain a selection of the more useful legislative history documents as\nchosen by a West editor. Note that USCCAN only provides select (as\nopposed to comprehensive) legislative histories and only on select statutes.\nDespite these limitations, USCCAN is useful and ubiquitous enough that\nit remains the Bluebook preferred source for many citations to legislative\nhistory.76\nIn addition to finding them in print, researchers can also find compiled\nlegislative histories electronically. For instance, West includes an electronic\n\nSee, e.g., BERNARD D. REAMS AND CHARLES R. HAWORTH, CONGRESS AND THE\nCOURTS: A LEGISLATIVE HISTORY, 1787-1977: DOCUMENTS AND MATERIALS\nREGARDING THE CREATION, STRUCTURE, AND ORGANIZATION OF FEDERAL\nCOURTS AND THE FEDERAL JUDICIARY (1978).\n73\n\nFor a comprehensive bibliography of available compiled legislative histories, see\nNANCY P. JOHNSON, SOURCES OF COMPILED LEGISLATIVE HISTORIES: A\nBIBLIOGRAPHY OF GOVERNMENT DOCUMENTS, PERIODICAL ARTICLES, AND\nBOOKS (2d ed. 2012).\n74\n\nNote that in addition to its print form, USCCAN is now also published\nelectronically on Westlaw. It remains a trusted and useful source for legislative\nhistory research in the computer era.\n75\n\nSee THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 13.4, at 138, R 12.6,\nat 127-128, (Columbia Law Review Ass\xe2\x80\x99n et al. eds., 20th ed. 2015).\n76\n\n63\n\n\x0cversion of USCCAN on its Westlaw Edge platform. Similarly, HeinOnline\nprovides a number of compiled legislative histories in electronic format.\nUnfortunately, compiled histories are not available for every statute. In the\nevent that a researcher needs to investigate the legislative history of a\nstatute without an available compiled history, he will need to compile the\nmaterials himself. The amount, type, and format of legislative documents\navailable vary greatly by jurisdiction. At the Federal level, the Government\nPublishing Office produces a large selection of legislative documents that\nresearchers can find in print or on microfiche77 at a Federal Depository\nLibrary.78 Legislative history documents for more recent statutes may also\nbe found online at Congress.gov.79 Westlaw Edge and Lexis+ also\nsometimes provide links to individual pieces of legislative history in the\nannotations to code sections. Alternatively, the private publisher ProQuest\nprovides digitized Congressional documents from as early as 1789 through\nelectronic subscription services.80 Researchers can use the same basic\nsearching, browsing, and filtering techniques discussed above in Chapter 2\nto retrieve legislative history documents from either Congress.gov or the\nProQuest databases.\nState governments tend to publish significantly fewer legislative\ndocuments than the federal government, but the specific publication\nschemes vary by jurisdiction. To conduct legislative history research on a\nstate statute, we encourage students to contact a law librarian in the\nrelevant state.\nThe legislative history documents described in this section can aid lawyers\nin interpreting statutes, the source of law created by the legislative branch.\nIn the next chapter, we will turn our attention to another source of law:\njudicial opinions, which themselves often interpret statutes.\n\nIn the event that students find themselves needing to consult microfiche or\nmicrofilm, just ask a reference librarian for help.\n77\n\nThe GPO maintains a list of libraries participating in the Federal Depository\nLibrary Program at https://catalog.gpo.gov/fdlpdir/FDLPdir.jsp.\n78\n\nCongress.gov includes finding aids for legislative documents from 1973\nonwards that would make finding them in a Federal Depository Library easier, but\nonly contains the full-text of documents from 1993 onwards.\n79\n\nProQuest\xe2\x80\x99s subscription databases, such as Legislative Insight, are marketed\nmostly to research universities. The libraries of major public universities typically\nallow on-site use of subscription databases.\n80\n\n64\n\n\x0c3.7 Concluding Exercises for Chapter 3\nNow that we have covered the basics of using codes for research, let\xe2\x80\x99s try to\ndo some actual legal research!\n\n3.7.1 Introductory Exercise on Code Research\nYou are an associate at a mid-size law firm in Washington, D.C. Your\nmanaging partner comes to you to say that a client, an extremely wealthy\nwoman who inherited an alcohol-distribution company, stopped in to\nrequest that the firm initiate divorce proceedings on her behalf.\nApparently, her significantly-older husband has become increasingly\ncantankerous and erratic following some failed political ambitions. Upon\nbeing asked in which state the matrimonial residence was located, the client\nconfessed that the couple often spend time apart but rotate monthly to\ndwellings in the following locales:\n\nKahului, Hawaii\nSedona, Arizona\nKey West, Florida\nArlington, Virginia\n\nYou have been tasked with finding statutory grounds for divorce in each of\nthe jurisdictions listed. Please find the relevant code sections.\n\n65\n\n\x0c3.7.2 Intermediate Exercise on Code Research\nDear Associates:\nWe have recently been engaged by Bernard Brown, proprietor of Brown\nBooks, to defend him in a misdemeanor prosecution in the state of\nGeorgia. Brown Books is located in suburban Atlanta and carries a variety\nof new and used books. Recently, Mr. Brown sold a number of copies of\nD.H. Lawrence\xe2\x80\x99s Lady Chatterley\xe2\x80\x99s Lover to students at the local high school,\nwho ranged in age from 14 to 16 years of age. Some of their parents got\nupset and the State of Georgia charged Mr. Brown with selling harmful\nmaterials to minors. This despite the fact that according to Mr. Brown\n(who emigrated from Ireland), \xe2\x80\x9cthe bloody school assigned the bloody\nbook! It\xe2\x80\x99s art! It\xe2\x80\x99s literature! The school library has a copy for Pete\xe2\x80\x99s Sake!\xe2\x80\x9d\n\nAbove all, Mr. Brown would like us to get an acquittal.\n\nI need you to:\n\xef\x82\xb7\n\nFind the statute provision that prohibits the sale of harmful or\nobscene materials to minors. Does the Georgia code define\n\xe2\x80\x9charmful materials\xe2\x80\x9d?\n\n\xef\x82\xb7\n\nSee if there is anything in the code that provides special protection\nfor libraries.\n\n\xef\x82\xb7\n\nDo you think we will be able to defend Mr. Brown successfully?\n\nThanks,\n\nMr. Partner\n\n66\n\n\x0c3.7.3 Advanced Exercise on Code Research\nHello Team:\n\nWe have been retained to represent Mr. Tyler Sangman in his upcoming\nfederal criminal trial in the Northern District of Ohio. Mr. Sangman, a\nprofessional lobbyist and environmental activist, stands charged with the\nfederal crime of committing an \xe2\x80\x9cattack to plunder a vessel.\xe2\x80\x9d The vessel in\nquestion, the S.S. Umlaut, was carrying replacement parts across Lake Erie\nfor a chemical plant operated in western New York by industrial giant\nBADCO, Inc. Mr. Sangman allegedly used an inflatable motorboat to\nintercept the Umlaut off the coast of Ohio in order to disable its propeller\nsystem with plastic explosives. Unfortunately, the explosives were more\npowerful than intended, and the Umlaut sank to the bottom of Lake Erie.\nUsing the United States Code Annotated, I need you to find the following\ninformation:\n\n\xef\x82\xb7\n\nLook up the federal code section criminalizing attacking vessels to\nplunder them under the piracy laws of the U.S. Would Sangman\xe2\x80\x99s\nalleged actions qualify as a crime under the text of this code\nsection?\n\n\xef\x82\xb7\n\nLook at the annotations. Do any suggest a case that might answer\nwhether it matters that Sangman didn\xe2\x80\x99t intend to profit from his\nactions?\n\n\xef\x82\xb7\n\nDo any annotations indicate whether we would be able to challenge\nfederal jurisdiction over the crime, since the action occurred in\nwaters adjoining Ohio?\n\n\xef\x82\xb7\n\nI know you\xe2\x80\x99ll need to read the cases from the annotations for a\ndefinitive answer, but just going from the statute and its\nannotations, do you think we\xe2\x80\x99ll have good news or bad news for\nMr. Sangman?\n\nThanks,\nMr. Partner\n\n67\n\n\x0c3.8 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on constitutions, statutes, and codes touch upon material\ncovered in this chapter. They would be a great place to start for students\nlooking for further practice on the concepts introduced in this chapter!\n\n3.8.1 \xe2\x80\x9cHow to Research American Constitutional Law\xe2\x80\x9d\nSummary: an overview of researching federal and\nstate constitutional law.\nURL: http://www.cali.org/lesson/9024\n\n3.8.2 \xe2\x80\x9cIntroduction to State and Federal Statutes\xe2\x80\x9d\nSummary: a review of the different forms of\npublication statutes take\nURL: http://www.cali.org/lesson/576\n\n3.8.3 \xe2\x80\x9cForms of Federal Statutory Publication\xe2\x80\x9d\nSummary: a review of the four publication forms of\nfederal statutes\nURL: http://www.cali.org/lesson/589\n\n3.8.4 \xe2\x80\x9cCodification\xe2\x80\x9d\nSummary: an in-depth look at the code form of\npublication of statutes\nURL: http://www.cali.org/lesson/577\n\n3.8.5 \xe2\x80\x9cFinding Statutes\xe2\x80\x9d\nSummary: a review of the methods by which\nresearchers find statutes.\nURL: http://www.cali.org/lesson/857\n\n68\n\n\x0c3.8.6 \xe2\x80\x9cUpdating Federal and State Statutes\xe2\x80\x9d\nSummary: an overview of the processes by which\nresearchers ensure that discovered statutes are up to\ndate and still valid.\nURL: http://www.cali.org/lesson/584\n\n3.8.7 \xe2\x80\x9cStatutory Interpretation\xe2\x80\x9d\nSummary: an introduction to the processes\ninvolved in interpreting state and federal statutes\nonce found.\nURL: http://www.cali.org/lesson/1058\n\n3.8.8 \xe2\x80\x9cHow to Research Federal Legislative History\xe2\x80\x9d\nSummary: an introduction to the federal legislative\nprocess and the various congressional documents in\na legislative history. Students will be introduced to\nfree legislative databases on the Internet. Through\nvarious cases, students will see how the courts use\ncongressional documents to interpret laws.\nURL: http://www.cali.org/lesson/575\n\n3.8.9 \xe2\x80\x9cFederal Legislative History Research \xe2\x80\x93 Compiled\nLegislative History\xe2\x80\x9d\nSummary: an introduction to the use of compiled\nlegislative histories, both in print and electronically.\nThe lesson builds on the lesson in \xe2\x80\x9cResearching\nFederal Legislative History.\xe2\x80\x9d\nURL: http://www.cali.org/lesson/860\n\n3.8.10 \xe2\x80\x9cReading Legislative History\xe2\x80\x9d\nSummary: an overview of how to read legislative\nhistory materials once gathered, with an eye towards\ndetermining or inferring legislative intent for a\nparticular statute.\nURL: http://www.cali.org/lesson/10765\n\n69\n\n\x0cChapter 4\n\nJudicial Opinions &\nCommon Law\nThe law embodies the story of a nation\xe2\x80\x99s\ndevelopment through many centuries, and it cannot\nbe dealt with as if it contained only the axioms and\ncorollaries of a book of mathematics. In order to\nknow what it is, we must know what it has been, and\nwhat it tends to become. \xe2\x80\x93 Oliver Wendell Holmes,\nJr., The Common Law\nIt is a maxim among these lawyers, that whatever\nhath been done before, may legally be done again:\nand therefore they take special care to record all the\ndecisions formerly made against common justice and\nthe general reason of mankind. \xe2\x80\x93 Jonathan Swift,\nGulliver\xe2\x80\x99s Travels\n\n4.1 Learning Objectives for Chapter 4\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nAppreciate how judicial opinions create legal rules through\nprecedent.\n\n\xef\x82\xb7\n\nEvaluate judicial opinions\xe2\x80\x99 varying weight of precedential authority.\n\n\xef\x82\xb7\n\nUse reporters to look up opinions by citation.\n\n\xef\x82\xb7\n\nEvaluate the editorial content added to opinions by publishers of\nreporters.\n\n\xef\x82\xb7\n\nExplain how the West Key Number/Digest System functions.\n\n\xef\x82\xb7\n\nUse digests and reporters in combination to reconstruct the\ncommon law on a given subject.\n\n\xef\x82\xb7\n\nEvaluate continued utility of editorial content when researching\ncases via electronic means.\n\n70\n\n\x0c4.2 Judicial Opinions and the Common Law\nAs discussed in Chapter 1, both constitutional and statutory provisions\ngenerally consist of language too broad to be applied to specific facts\nwithout an act of interpretation. In the U.S. legal system, the judiciary\nserves as the primary interpreter of the law.\nCourts issue their interpretations as judicial opinions, which then act as\nprecedent to create lasting legal rules. Sometimes (maybe even most of the\ntime) lawyers will refer to opinions as cases. However, \xe2\x80\x9copinion\xe2\x80\x9d is a more\nprecise term, as a single case can feature more than one opinion. Multiple\nopinion cases occur when not all the judges81 hearing a case agree on the\nresult. (Most appellate cases use panels of judges rather than a single\njudge.) If a majority of judges agree, they will designate one of their\nmembers to issue a majority opinion, which is the strongest form of\njudicial precedent. If an individual judge disagrees with the majority\nopinion, she may issue a dissenting opinion. Similarly, if an individual\njudge agrees with the end result of a case, but not the legal reasoning that\nled to the result, she may issue a concurring opinion. Both dissenting\nopinions and concurring opinions may be cited as persuasive precedent,\nbut neither will be as strong a precedent as a majority opinion.\nTo further complicate matters, judges may \xe2\x80\x9cjoin\xe2\x80\x9d the opinions of their\ncolleagues. In fact, the way a researcher can tell that a majority opinion is a\nmajority opinion (other than by the fact it comes first in the write-up), is\nby seeing that a majority of the judges have joined it. Judges may also join\ndissents or concurrences instead of issuing their own. Furthermore, judges\nsometimes only join parts of an opinion, if they only agree with certain\nissues. After all the judicial maneuvering is said and done, sometimes a\ncourt will be left without a majority opinion but will have to issue a\nplurality opinion instead. Plurality opinions act as much weaker precedent\nthan majority opinions. Thus, when a legal researcher finds a relevant\nopinion, she should pay attention as to its origins.\nOnce issued, judicial opinions act as precedent for later courts, thus\nopinions provide their own legal rules that become part of American law.\nLawyers call such judge-made rules \xe2\x80\x9ccommon law.\xe2\x80\x9d Common law can\ndevelop from a statute or constitutional provision by creating a standard\ninterpretation of the same, or it can develop independently of\n\nCourts very as to whether they style their members as \xe2\x80\x9cjudge\xe2\x80\x9d or as \xe2\x80\x9cjustice.\xe2\x80\x9d\nFor purposes of this chapter, \xe2\x80\x9cjudge\xe2\x80\x9d will be used throughout.\n81\n\n71\n\n\x0cconstitutions and statutes. Miranda Rights serve as an example of the\nformer. The Fifth Amendment, in rather broad language, guarantees\npeople accused of crimes the right of \xe2\x80\x9cdue process.\xe2\x80\x9d82 Miranda v. Arizona, a\nU.S. Supreme Court case, interpreted due process as requiring police to\ninform a suspect in custody of her constitutional rights before\ninterrogating her.83 Later cases applied that opinion as precedent and\ndeveloped the law further by discussing what exactly qualifies as \xe2\x80\x9ccustody\xe2\x80\x9d\nor \xe2\x80\x9cinterrogation.\xe2\x80\x9d84 Thus, judicial opinions have created specific legal\nrules as a common law of the Fifth Amendment.\nJudge-made rules also exist independently of constitutional or statutory\ninterpretation. Typically, these rules were developed by judges prior to the\nwidespread use of statutes. Most such rules were part of the body of\nEnglish law that American colonists originally brought with them from the\nOld Country. Indeed, \xe2\x80\x9ccommon law\xe2\x80\x9d can also be used to refer only to the\ntraditional, customary laws that developed in England.85 Many English\ncommon law elements still persist in American law, especially in the fields\nof Torts and Property.\nRegardless of whether working on problems of statutory interpretation or\napplication of historic common law rules, legal researchers tend to spend\nmuch of their time conducting case-based research. Researching judicial\nopinions tends to take more time than researching codes, as cases tend to\nbe longer than statutes and also do not benefit from the inherent\norganization provided by the process of codification. Let us thus turn to\nhow one goes about researching cases.\nAs with statutes, the information systems for publishing judicial opinions\ncame about before the advent of computers. When the legal publishers\nbegan providing electronic content in the latter part of the twentieth\ncentury, they imported the existing information systems to the new\nformat. Thus, as we did with statutes, we will here introduce judicial\nopinions in their print format before proceeding to the materials\xe2\x80\x99\nreproduction in electronic format.\n\n82\n\nU.S. CONST. amend. V.\n\n83\n\nMiranda v. Arizona, 384 U.S. 436 (1966).\n\nSee, e.g., Maryland v. Shatzer, 559 U.S. 98 (2010); Rhode Island v. Innis, 446 U.S.\n291 (1980).\n84\n\nFor the multiple meanings of \xe2\x80\x9ccommon law,\xe2\x80\x9d see Common Law, BLACK\xe2\x80\x99S LAW\nDICTIONARY (11th ed. 2019).\n85\n\n72\n\n\x0c4.3 Case Reporters\nThe practice of republishing judicial opinions for dissemination and use\nhas existed since medieval times.86 However, prior to modern times, only\nselect cases on pre-identified topics tended to be published.87 Also, reports\nof opinions that were published tended to focus on limited geographic\nareas, leaving lawyers with far fewer precedents with which to work. The\nmodern system of publishing judicial opinions began in the late nineteenth\ncentury when John B. West systematically collected appellate-level\nopinions and published them in multi-volume sets he termed the\n\xe2\x80\x9cNational Reporter System.\xe2\x80\x9d88 West Publishing continues to be the\ndominant publisher of American judicial opinions in print.\n\n4.3.1 Types of Reporters\nWest, and to a lesser extent its competitors89, produce several broad types\nof reporters. Simplest are jurisdictional reporters, which publish reported\ncases from a single jurisdiction. For instance, West\xe2\x80\x99s Kentucky Decisions\nincludes reported opinions from Kentucky state courts. Sometimes, the\npublisher limits the scope of jurisdictional reporters to opinions from a\nspecific judicial level, as West does with its various reporters for federal\ncases. The Supreme Court Reporter, for example, republishes opinions only\nfrom the United States Supreme Court. Likewise, the Federal Reporter\npublishes opinions from federal Courts of Appeal, and the Federal\n\nSee, e.g., HENRICI BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE (c.\n1260).\n86\n\nThe official United States Reports was an exception to this trend, as it has always\nincluded every Supreme Court opinion issued, a task made manageable because of\nthe limited number of cases granted cert.\n87\n\n88\n\nMichael O. Eshelman, A History of the Digests, 110 L. LIBR. J. 235, 237 (2018).\n\nBecause the term \xe2\x80\x9clion\xe2\x80\x99s share\xe2\x80\x9d does not even begin to do justice to West\xe2\x80\x99s\ndominance of publishing judicial opinions, most of the discussion in this chapter\nwill focus on West publications.\n89\n\n73\n\n\x0cSupplement publishes select cases from U.S. District Courts.90 Some\njurisdictions publish their own opinions in \xe2\x80\x9cofficial\xe2\x80\x9d reporters, the most\nnotable being the United States Reports containing opinions issued by the\nSupreme Court of the United States and published by the Government\nPublishing Office. Official reporters generally work similarly to West\xe2\x80\x99s\njurisdictional reporters although without the helpful editorial material that\nWest provides.91\nIn addition to jurisdictional reporters, West also publishes reporters that\ngather opinions from several different states into one series, called regional\nreporters. Please note that regional reporters exist as a publishing\ncontrivance only. Therefore, just because two states\xe2\x80\x99 judicial opinions\nappear in the same reporter, it does not mean that the opinions are in any\nway related. For instance, cases from Kentucky and cases from Texas both\nappear in the South Western Reporter, but opinions from Kentucky would\ncarry no more weight in Texas than opinions from Maine, which are found\nin the Atlantic Reporter, would.\n\nNote that not all district court opinions are published. Trial level opinions,\nbecause they mix application of law with finding of facts, do not make as good a\nprecedent as appellate opinions. Therefore, West only includes particularly\nsignificant district court opinions in the Federal Supplement. West also publishes the\nFederal Appendix which includes cases originally passed over for publication.\nOpinions in the Federal Appendix do not count as fully published opinions, per se,\nand so legal researchers should not rely on them as precedent.\n90\n\nSimilar to statutes, researchers often find West\xe2\x80\x99s unofficial reporters to be more\nuseful than official reporters, due to the extra editorial content.\n91\n\n74\n\n\x0cFigure 4.3.1: A Map of West\xe2\x80\x99s Regional Reporter System\n\nBeyond regional reporters, another instance exists in which legal researchers\nmight find cases from multiple jurisdictions within a single reporter set.\nSometimes publishers will create topical reporters, which gather opinions\nfrom all U.S. jurisdictions that touch upon the reporter\xe2\x80\x99s central theme. For\ninstance, West publishes the Education Law Reporter, which contains a variety\nof state and federal cases dealing with issues of law as applied to the\neducation profession.\nNote that legal researchers may often find the same judicial opinion in any\nnumber of reporters. For instance, a case dealing with education law from\nthe Kentucky Court of Appeals could probably be found in the Kentucky\nDecisions, the South Wester Reporter, or the Education Law Reporter. Nothing\nabout the opinion changes from reporter to reporter. In other words, it\ndoes not matter where a legal researcher finds a needed precedent, just that\nshe does so.\n\n75\n\n\x0c4.3.2 Finding an Opinion in a Reporter\nAs with statutes and codes, a legal researcher most easily retrieves an\nopinion from a reporter if she has a citation in hand. Unlike codes,\nhowever, reporters do not impose a topical organization upon the legal\nauthorities they contain. Instead, reporters publish opinions in\nchronological order as courts hand them down. Therefore, obtaining a\ncitation to a case takes on paramount importance. Luckily, before engaging\nin case research, a good legal researcher will have checked for controlling\nstatutes and made note of key case citations found in a relevant statute\xe2\x80\x99s\nannotations, so it is not unusual to begin case research with a citation in\nhand.\nCase citation works very similarly to code citation. A citation to a case\nbegins with a number, proceeds to an abbreviation, and then ends with\nanother number. The first number in a case citation refers to the volume\nof the reporter in which the case appears. The abbreviation alerts\nresearchers as to which reporter contains the case92, and the final number\nsignifies the page of the reporter volume on which the case begins. For\nexample, Rose v. Giamatti, 721 F. Supp. 906 (S.D. Ohio 1989) begins on\npage 906 of volume 721 of the Federal Supplement. Often, the first page\nnumber of a case will be immediately followed by a comma and a second\npage number. The second page number acts as a \xe2\x80\x9cpin-cite\xe2\x80\x9d referring the\nreader to the specific page of the case on which the issue being cited is\ndiscussed. Going straight to a pin-cite may save a researcher time, though\nthe whole case should be read for context.\n\n92\n\nSee Figure 4.3.2 for a list of abbreviations to common reporters.\n\n76\n\n\x0cAbbreviation\nU.S.\nS. Ct.\nL. Ed.\nF.\nF. Supp.\nSo.\nP.\n\nS.W.\nA.\n\nN.E.\nN.W.\n\nS.E.\n\nReporter\nUnited States Reports\n\nCases Contained\nU.S. Supreme Court\n(official version)\nSupreme Court Reporter\nU.S. Supreme Court\n(West version)\nSupreme Court Reporter,\nU.S. Supreme Court\nLawyer\xe2\x80\x99s Edition\n(LexisNexis version)\nFederal Reporter\nfederal Courts of\nAppeals\nFederal Supplement\nfederal District Courts\nSouthern Reporter\nstate courts from LA,\nMS, AL, FL\nPacific Reporter\nstate courts from AK,\nHI, CA, OR, WA, ID,\nNV, AZ, UT, MT,\nWY, CO, NM, KS,\nOK\nSouth Western Reporter\nstate courts from TX,\nAR, MO, KY, TN\nAtlantic Reporter\nstate courts from ME,\nVT, NH, RI, CT, NJ,\nDE, MD, DC, PA\nNorth Eastern Reporter\nstate courts from IL,\nIN, OH, NY, MA\nNorth Western Reporter\nstate courts from ND,\nSD, NE, MN, IA, WI,\nMI\nSouth Eastern Reporter\nState courts from WV,\nVA, NC, SC, GA\nFigure 4.3.2: Commonly Used Reporters\n\nNote that when we speak of citations, we speak of them as referring to\ncases, not opinions. This is because all opinions issued in a case are\npublished together as one unit in the reporter. Typically, however, a\ncitation to a case will be alluding to the majority (or plurality, if that is the\ncase) opinion of the court unless it specifically identifies a concurrence or\ndissent.\nA couple of other unique circumstances affecting case citation bear\nmentioning. First, sometimes cases appear in more than one reporter.\n\n77\n\n\x0cThus, a legal researcher may encounter parallel citation, in which one case\ncitation refers to multiple reporters. In this case, the researcher may pull\nthe desired case from whichever of the referenced reporters strikes her as\nmost convenient. Second, because book spines feature limited space, when\na reporter set reaches 999 volumes, rather than try to squeeze an extra\ndigit onto the spine, the publisher starts the numbering over. To avoid\nconfusion when this happens, the reporter enters its \xe2\x80\x9csecond series\xe2\x80\x9d (or\nthird series in the case of an exhausted second series). Citations to reporter\nseries other than the first include a notation to that effect next to the\nabbreviation of the reporter title. For example, F.2d refers to the second\nseries of the Federal Reporter. Thus, citations truly make it easy for\nresearchers to pull cases from reporters.\n\n4.3.3 Using a Reported Opinion\nOnce a legal researcher locates a case in a reporter, she will, of course, be\nable to read all opinions issued in the case. However, reading full cases can\nbe a time-consuming process. To increase the efficiency of legal research,\nWest includes valuable editorial content for cases in its reporters, much as\npublishers of annotated codes do.93 Figure 4.3.3 illustrates the editorial\ncontent provided by a West reporter.\nThe first thing to note about a reported case (as lawyers call cases that\nappear in reporters) is that the actual judicial opinion does not start right\naway. In fact, the opinion will sometimes not start for pages! This happens\nbecause West places its editorial content before the opinions. This\ninformation is often introductory and allows the researcher to more quickly\nparse the content of the actual opinion.\n\nNote that the editorial content merely helps explain or interpret the case; it does\nnot itself act as precedent. As such, lawyers never cite to editorial content but\nrather use it to understand and cite the case it accompanies.\n93\n\n78\n\n\x0cFigure 4.3.3: A Case as it Appears in a West Reporter\n\nThe first bit of information a reported case gives to a researcher comes in\nthe heading of the case. The heading includes the case name, the name of\nthe court that heard the case, the docket number assigned by the court, and\nany relevant procedural history for the case. A short synopsis of the case,\n\n79\n\n\x0cincluding the holding of the majority opinion, immediately follows the\nheading. Thus, before reading an entire opinion, a legal researcher can make\nan advance determination as to its worth by scanning the heading and\nsynopsis.\nAfter the synopsis, West provides the most useful of the editorial content\nincluded in reporters: headnotes. Headnotes identify specific legal issues\naddressed in the opinion(s) of the case. Thus, a researcher can tell at a quick\nglance whether the issues she wants were considered in a case.\nFurthermore, West includes notes within the text of the opinion(s)\nindicating where in the opinion(s) the court considered the specific issues\ndescribed by the headnotes.\nIn addition to helping the researcher identify legal issues within an opinion,\nWest\xe2\x80\x99s headnotes provide the ability to find other cases that discuss the\nsame issue. West assigns a \xe2\x80\x9ctopic and key number\xe2\x80\x9d to every headnote its\neditors create. Each key number refers to a specific legal issue found in the\njurisprudence of its accompanying topic. Different judicial opinions that\ndiscuss the same issue will all receive the same corresponding topic and key\nnumber. To find other cases with the same topic and key number, a legal\nresearcher turns to the other major type of West publication for case\nresearch: the digest, which we will discuss in section 4.4.\n\n4.3.4 Unreported Cases & Court Dockets\nNot all cases heard in the United States make it into a reporter. Cases will\nbe passed over for inclusion in a reporter for a variety of reasons. First,\ncases from trial-level state courts tend to focus more on findings of fact\nrather than on determinations of law, and so are usually not published.94\nSecond, sometimes a judge, even at the appellate level, will indicate in an\nopinion that it is not for publication. She may do this if the case breaks no\nnew ground legally and so adds nothing to the precedents on which it was\ndecided. Alternatively, the facts in the case may be unique or bizarre enough\nthat the judge thinks creating a precedent from the case might cause havoc\nwith other precedents. Whatever the reason behind not being included in a\nreporter, though, lawyers deem opinions issued in unreported cases to be\n\xe2\x80\x9cunpublished\xe2\x80\x9d and do not view them as having full precedential value. Note\n\nThe same holds true for some federal district court cases, though West\npublishes federal district opinions that do make determinations of law in the\nFederal Supplement as discussed above in section 4.3.1.\n94\n\n80\n\n\x0cthat West\xe2\x80\x99s Federal Appendix reports cases that were originally passed up for\npublication in West\xe2\x80\x99s other reporters. As such, researchers should view\ncases from the Federal Appendix as unreported, and should view their\nopinions as unpublished, to be used only with due caution.\nIn fact, until relatively recently, courts only allowed citation to unpublished\nopinions in very limited circumstances. However, with the advent of\ncomputer-assisted legal research, unpublished opinions have become\nsomewhat easier to find. As a result, in 2006, the Supreme Court of the\nUnited States adopted a rule permitting the citation of unpublished federal\nopinions in federal courts, provided that the unpublished opinions were\nissued in 2007 or later.95 Most states now make similar provisions, though\nthe exact details vary. Researchers should check the court rules of their\njurisdiction before using an unpublished opinion to ensure doing so is\npermissible.\nThe reason that courts traditionally treated unpublished opinions with\nskepticism derives from the difficulty in finding unpublished opinions prior\nto the electronic research era. Because the primary way of finding precedent\nin print was through the use of the reporter and digest system, any case not\nincluded in a reporter would have been overlooked by the majority of\nresearchers.96 In fact, prior to the computer age, the primary way of\nobtaining an unpublished opinion was to retrieve it from the court docket\nat the court that heard the case.\nCourt dockets are records kept by the court of proceedings in a particular\ncase. For the legal researcher, dockets can be a treasure trove of\ninformation because they typically note all the documents, or court filings,\nsubmitted by parties or produced by the court related to that case. In\naddition to the final opinion, a researcher may be able to see the briefs\n(written arguments) submitted by both parties, the motions they made in\ncourt, exhibits presented, court orders on motions, any final court orders\nregarding the proceedings, and more.\nAn enterprising researcher can explore other uses for dockets beyond\ngathering more information about an individual case. She can use dockets\nto find examples of motions, arguments, and other documents related to a\n\n95\n\nFed. R. App. P. 32.1.\n\nCases appearing in the Federal Appendix can be found via a print digest, but\nthese represent a very small percentage of the unpublished cases out there and do\nnot, of course, include any state cases.\n96\n\n81\n\n\x0cparticular legal issue and use them to inform her own legal documents. If\na case involves a corporation, sometimes it must reveal information to the\ncourt that they otherwise would never disclose to the public. A researcher\ncould potentially use documents submitted to the court to find out about\nfinancial issues within the company, confidential information regarding\npatents, or other useful information.\nNowadays many courts provide online access to their more recent dockets,\nand researchers can generally find court filings electronically using the\nmajor legal research platforms. However, some states do not put their\ndockets online, or sometimes a researcher may wish to look at a docket that\npredates electronic filing. In order to obtain materials from a docket\nunavailable electronically, a researcher should contact the clerk of the court\nthat heard the case in question.\nGenerally speaking, though, published opinions are much more valuable to\na legal researcher than unpublished opinions or court filings. Let us now\nturn to the tool that allowed lawyers to find published opinions on\nparticular topics prior to the invention of computers: the digest.\n\n4.4 Digests\nDigests, though themselves large multi-volume sets, act as topical indexes\nto the even more voluminous reporter sets. Remember, reporters\nthemselves lack topical organization\xe2\x80\x94the lengthy nature of judicial\nopinions would make any such internal organization highly impractical\xe2\x80\x94\nand instead work with the external organization provided by digests.\nLikewise, digests do not reproduce judicial opinions, but provide short\nsummaries of cases and citations to the same organized by topic. Thus,\nboth reporters and digests are of limited use without the other.97\n\n4.4.1 Types of Digests\nFor the most part, West publishes the same types of digests as it does\nreporters, though there are some key differences in coverage between the\ntwo types of publication. Like reporters, digests come in jurisdictional,\n\nNote, however, that a digest can also be used effectively with an electronic\ndatabase of cases. The basic steps would be the same except that instead of\npulling a case from a reporter, the researcher would retrieve the case by entering\nits citation into a legal research platform.\n97\n\n82\n\n\x0cregional, and topical varieties. Additionally, West publishes general digests\nthat can potentially lead researchers to opinions issued in any jurisdiction\nin the U.S.\nLegal researchers probably use jurisdictional digests more than any other\ntype. West publishes jurisdictional digests for most individual states and\nthe District of Columbia.98 State digests, unlike state reporters, include\nreferences to both state cases and related federal cases that originated in\nthe state in question. In addition to individual state digests, West publishes\na number of federal digests. Some, like the Supreme Court Digest, index cases\nfrom a single court. However, the Federal Practice Digest leads researchers to\npublished opinions issued by any federal court, regardless of level.\nWest also publishes several regional digests that mostly correspond to the\nregional reporters. Note, however, that not every regional reporter benefits\nfrom a companion regional digest.99 Regional digests lead researchers to\nopinions issued by state courts for the same states covered by the\ncorresponding reporter.\nAs West publishes topical reporters, so too does it publish topical digests\nto accompany the reporters. For example, lawyers working for a university\nmight consult the Education Law Digest in combination with the Education\nLaw Reporter.\nIn addition to the types of digests corresponding to types of reporter,\nWest publishes the General Digest, which can potentially lead researchers to\nopinions from any U.S. jurisdiction. Because of the sheer amount of\ninformation involved in such an undertaking, West periodically publishes\nthe Decennial Digest.100 When a new edition of the Decennial Digest\nappears, the General Digest then starts anew. Thus, if depending on a one-\n\nWest does not publish a digest for Delaware, Nevada, or Utah. To find\nopinions from these jurisdictions using only print sources, researchers would need\nto consult the relevant regional digest or the general digest.\n98\n\nWest never published a digest for the South Western Reporter. Furthermore, West\nhas discontinued the North Eastern Digest and the Southern Digest. Researchers in\njurisdictions covered by those regions would need to consult the relevant state\ndigest or the general digest in order to find opinions using print sources.\n99\n\nAlthough the period between publications of the Decenniel Digest used to be 10\nyears, as suggested by the title, in modern times of heavy case loads, West now\npublishes it more often.\n100\n\n83\n\n\x0cstop-shop approach to researching with digests, lawyers must consult both\nthe Decennial and General Digests.101\nFortunately, all of West\xe2\x80\x99s digests use the same system, the topic and key\nnumber system. Thus, once an aspiring legal researcher learns to use one\ndigest, she will be able to use all of them.\n\n4.4.2 Using Digests to Find Opinions\nAs discussed above in section 4.3.3, West editors assign a topic and key\nnumber to every headnote they create upon reading cases. Each key\nnumber corresponds to a specific legal issue within its topic, and judicial\nopinions that discuss the same issue will feature the same topic and key\nnumber. Please note that each topic in the system begins with key number\n1. In other words, West reuses numbers, so knowing key numbers without\nknowing the corresponding topics does researchers little good. For\nexample, key number 106 under the topic of Torts helps a researcher find\nopinions discussing the nature and elements of torts in general, while key\nnumber 106 under the topic of Criminal Law leads researchers to opinions\ndealing with the nature of venue in criminal prosecutions. The two issues\nare unrelated; West has simply reused the number 106 in each of the\ntopics.\nIf, however, a legal researcher knows the topic and key number that\ncorrespond to the issue for which she is looking, she can simply look up\nthe topic and key number in a digest and retrieve a list of cases that have\nconsidered the issue in question in the jurisdiction(s) covered by that\ndigest. Furthermore, the digest provides brief summaries of each case so\nthat the researcher can make an informed decision as to which cases she\nwants to pull from their respective reporters first. Figure 4.4.2a provides\nan example of a typical digest entry.\nAs a caveat, many West digests have started over in new series, much like\nthe West reporters. For instance, the Kentucky Digest 2d continues the\nKentucky Digest. Similarly, the Federal Practice Digest is now onto its 5th\nseries.102 The key fact to remember about digest series is that they are not\n\nIndeed, they should probably consult the Centenniel Digest, which predates the\nDecenniel Digest, as well.\n101\n\nThe Federal Practice Digest 5th is actually the sixth series of the title, as the\noriginal Federal Practice Digest replaced the precursor Federal Digest.\n102\n\n84\n\n\x0ccumulative. Therefore, in order to find judicial opinions from the whole\nrange of years available, a researcher must consult all the various series of a\nparticular digest. West publishes an editorial note at the beginning of each\nvolume of a digest providing researchers with notice of the year-range\ncovered by that particular series of the digest.\n\n85\n\n\x0cFigure 4.4.2a: Sample Entry from the Federal Practice\nDigest 5th\n\nDigests act as a powerful tool for finding judicial opinions, but to use them\na legal researcher must know the topic and key number that correspond to\nthe legal questions he wants answered. Fortunately, appropriate topics and\nkey numbers can be discovered in several ways.\n\n86\n\n\x0cFirst of all, as discussed above, every headnote attached to a West-reported\ncase features a corresponding topic and key number. Therefore, if a\nresearcher has discovered one opinion on point, she can lift topics and key\nnumbers from headnotes of interest to discover other cases addressing the\nsame point of law. Similarly, if a researcher has found a relevant statute in\nan annotated code published by West, then the annotations will likely alert\nher to any relevant topics and key numbers.\nFortunately, even if a researcher does not already have a topic and key\nnumber in mind, West digests provide ways to find topics and key numbers\nof interest. First, at the end of every digest, a researcher will find an index,\ntermed the Descriptive Word Index, which works almost identically to the\nindexes accompanying codes. A researcher would look up a general term\nthat covers the legal issue in question. Instead of code sections, however, a\ndigest\xe2\x80\x99s index lists topics and key numbers for the various issues and subissues. Once a researcher has looked up a term in the index to discover its\ntopic and key number, she can then look up that topic and key number in\nthe corresponding main volume of the digest for a list of cases related to\nthe issue. Note that the index itself does not provide case citations; it must\nbe used in conjunction with the main volumes of the digest.\nIn addition to providing indexes for digests, West divides all of American\nlaw into topics, which it fits into an overarching Outline of the Law.\nIndeed, the topics from this outline are the same that accompany key\nnumbers, and West places the key numbers themselves onto the outline.\nWest publishes its general outline of the law at the beginning of digest\nvolumes. Additionally, in front of each topic in the digest, West provides a\nmore detailed outline of that specific topic. Thus, legal researchers possess\nthe option of browsing through West\xe2\x80\x99s outlines to narrow in on a specific\nissue\xe2\x80\x99s topic and key number, much as researchers might use a code\xe2\x80\x99s tables\nof contents to narrow in on specific sections. Figure 4.4.2b gives readers an\nidea of what West\xe2\x80\x99s Outline of the Law looks like.\n\n87\n\n\x0cFigure 4.4.2b: An Excerpt of West\xe2\x80\x99s Outline of the Law as\nfound in the Federal Practice Digest 5th\n\nBy using the Descriptive Word Index or the Outline of the Law, researchers\ncan identify relevant topics and key numbers they can then use to find case\ncitations, which in turn would allow the researcher to pull relevant judicial\nopinions. Of course, the opinions themselves may lead the researcher to\n\n88\n\n\x0cadditional topics and key numbers of interest through the headnotes\nprovided by West. Researchers may then look up the additional topics and\nkey numbers in a digest in order to find additional cases. Thus, the topic\nand key number system provides a powerful tool for researchers to find\njudicial opinions.\nWest digests also provide a couple of other ways to find cases in addition to\nthe topic and key number system. First, digests contain Tables of Cases\nvolumes that allow researchers to look up cases by the name of either party.\nSecond, digests contain Words and Phrases volumes, which allow\nresearchers to look up a specific word or phrase to find opinions using that\nexact word or phrase. Both Tables of Cases and Words and Phrases\nvolumes, unlike the topic and key number volumes, will provide case cites\nin addition to the topics and key numbers assigned to the case. While a\nresearcher would need more starting information to use either of these\ntypes of volumes, they do provide an alternative access point to caselaw for\nprint researchers and demonstrate the comprehensiveness of West\xe2\x80\x99s digest\nand reporter system.\nIn fact, as discussed above in section 4.3.4, West\xe2\x80\x99s digest and reporter\nsystem acted as the sole means of finding precedent for so long that courts\ndeem opinions not published in one of West\xe2\x80\x99s reporters to be less than fully\nprecedential. In the modern era of electronic legal research, lawyers more\noften encounter such \xe2\x80\x9cunreported\xe2\x80\x9d opinions. Lawyers need to react to such\nopinions with caution and to avoid using them as key precedent. Indeed,\nmost courts will only consider unreported opinions under certain\ncircumstances. To determine if a court will consider an unreported opinion,\nlegal researchers should consult the court rules for the jurisdiction in\nquestion.103 Thus, understanding West\xe2\x80\x99s reporter and digest system remains\nimportant even when conducting electronic legal research.\n\n4.4.3 Updating Digests\nWhen a researcher uses a print edition of a digest, she should keep in mind\nthat, like all print materials, individual digest volumes describe the state of\nthe law at a particular moment in time. By its very nature, however,\n\nCommercial legal publishers generally provide a jurisdiction\xe2\x80\x99s Court Rules at\nthe end of its code. Legal researchers may thus find specific court rules by the\nsame methods, described in Chapter 2, with which they would find code\nprovisions.\n103\n\n89\n\n\x0cAmerican law constantly changes with every new judicial opinion\npublished. Thus, it becomes necessary for legal researchers to update the\ninformation found in print digests.\nBecause lawyers desire consistency in legal publishing, just as they desire\nconsistency in the law, the primary means of updating the information in\ndigests takes the same form as the primary means of updating the\ninformation in annotated codes: the pocket part. In fact, pocket parts for\ndigests work in exactly the same way as pocket parts for codes.104 If a topic\nand key number appears in the pocket part, then something about it has\nchanged since publication of the main volume. If a topic and key number\ndoes not appear in the pocket part, then nothing changed since the\npublication of the main volume. Additionally, West may have created a\nnew topic and key number since publication of the main volume. In this\ninstance, the topic and key number will appear in its entirety in the pocket\npart and not at all in the main volume.\nWest actually updates the Outline of the Law governing the topic and key\nnumber system quite frequently. Legal rules or issues may fall out of use,\nand so key numbers may be dropped. More often, opinions introduce new\nrules or issues, resulting in the addition of new key numbers. Furthermore,\nsometimes judicial opinions take a rule from an earlier opinion and expand\nupon it, or break it into multiple rules. When this happens, West may need\nto adjust its numbering. When an area of law changes sufficiently, West\nmay even renumber an entire topic.\nRenumbered topics often confuse aspiring legal researchers. Feelings of\nfrustration may occur when a researcher has identified a relevant topic and\nkey number from an old case headnote only to discover that the digest no\nlonger contains that topic and key number. Researchers should not panic\nwhen this occurs, though, because West includes key number conversion\ncharts at the beginning of every topic which has been renumbered.\n\nAlso like pocket parts for codes, pocket parts for digests will be replaced by\nsoftbound supplements should they become too big to fit in a bound volume.\nEventually the bound volume itself will be replaced.\n104\n\n90\n\n\x0cFigure 4.4.3: Excerpt from West\xe2\x80\x99s Key Number\nTranslation Table for Constitutional Law\n\nNote that one old key number often becomes multiple key numbers in\nrenumbered topics. Researchers should look at each of the new topics to\nunderstand how the law has changed. Note also that West includes key\nnumber conversion charts that operate in the reverse direction, i.e. new key\nnumbers to old key numbers. West does so because, to find older cases on\nan issue, a researcher may need to consult earlier series of a digest, since\ndigests are not cumulative. Naturally, the older digest series would not use\nthe new numbering scheme.105\n\nAlthough exceptions exist, West typically does not continue to issue pocket\nparts for non-current digest series.\n105\n\n91\n\n\x0c4.5 Cases on the Legal Research Platforms\nSince West created the national reporter system, researchers can naturally\nfind the cases, complete with headnotes and key numbers, reproduced on\nWestlaw Edge. Lexis+ and Bloomberg Law also feature all the opinions\nfound in the reporter system. However, as the editorial material is the\nintellectual property of West, researchers will not find key numbers on\neither Lexis+ or Bloomberg Law. Lexis+ does feature its own headnote\nsystem which functions similarly to West\xe2\x80\x99s key number system, albeit\nwithout numbers. Bloomberg Law being newer to the game generally does\nnot feature headnotes but merely the opinions themselves.\n\nFigure 4.5a \xe2\x80\x93 Anatomy of a case on Westlaw Edge. Click\nhere for screencast: https://youtu.be/b5JybipossE.\n\nA key difference between cases on the legal research platforms and those in\nprint is that the electronic versions lack pages. While the pageless format is\ngenerally good for reading (scrolling allows more continuous reading than\nhaving to load a new document for every new page), it is not so good for\ncitation. To allow researchers to provide pin cites to cases, the legal research\nplatforms each provide notations of where new pages would start in print.\nThe notations take the form of page numbers preceded by an asterisk and\nare commonly called \xe2\x80\x9cstar pagination.\xe2\x80\x9d Examples of star pagination can be\nseen in the screencast accompanying Figure 4.5a.\n\n92\n\n\x0cAnother difference in conducting case research electronically is that\nresearchers will not find digests on the legal research platforms. Rather,\nclicking on a key number (or headnote topic on Lexis+) and selecting a\ndesired jurisdictional filter will directly retrieve all the cases from the\nselected jurisdiction that the editors have recognized as containing issues\nrelated to the topic covered by the key number (or headnote topic).\n\nFigure 4.5b \xe2\x80\x93 Using topics and key numbers on Westlaw\nEdge. Click here for screencast:\nhttps://youtu.be/jzjsDYvUGX8.\n\nThe legal research platforms also provide new ways to find relevant judicial\nopinions that were not possible in the print age. First, legal researchers can\nenter search terms and have the computer pull opinions related to the terms\nsearched. Researchers also have the option to \xe2\x80\x9csearch within\xe2\x80\x9d results of\nearlier searches. Note however that overly broad searches, whether from\nthe general search bar or the \xe2\x80\x9csearch within\xe2\x80\x99 search bar, will return too\nmany results to be useful. While all the legal research platforms recognize\nnatural language searching, legal researchers often tailor their search queries\nby using search operators to pull only the most relevant results. We will go\nover how to craft well-tailored searches in Chapter 7.\n\n93\n\n\x0c4.6 Concluding Exercises for Chapter 4\nNow try your hand at using digests and reporters to find relevant judicial\nopinions.\n\n4.6.1 Introductory Exercise on Case Research\nHello Team:\nWe have been retained by Molly Lancaster-Ferguson, owner of Awesome\nAntiques, to defend her from a pending Federal prosecution. The federal\ncharges stem from an isolated incident in which Ms. Lancaster-Ferguson\nsold an original 1861 Enfield Rifled Musket (a single-shot, muzzle-loading\nrifle manufactured in Enfield, England, and imported/smuggled in large\nquantities to arm Confederate troops during the Civil War), which she had\nfound at a garage sale, to an undercover federal agent posing as an online\nbuyer. To the extent of her recollection, the incident in question is the\nonly time that Ms. Lancaster-Ferguson has ever sold a firearm, and she\nwas unaware that it was illegal to do so. The federal authorities have\nnonetheless charged her with violating a federal law that requires all\ndealers of firearms to be properly licensed. She is set to be tried in the\nEastern District of Kentucky.\nUse the Federal Practice Digests (potentially more than one series) to look\ninto the following:\n1) Find me a case, preferably binding, on whether an individual who\ndoes not know dealing in weapons without a license is against the\nlaw can be convicted of the same.\n2) Are there any federal cases, binding or persuasive, that have held\nthat one isolated gun sale does not amount to \xe2\x80\x9cengaging in the\nbusiness of dealing in firearms without a license\xe2\x80\x9d?\n3) Based on your findings, do you think it is likely that we can\nultimately get an acquittal?\nThanks,\nMs. Partner\n\n94\n\n\x0c4.6.2 Intermediate Exercise on Case Research\nHello Team:\nOne of our best clients, Robert Standersen, has made a slightly unusual\nrequest of us. Normally, we handle corporate law issues for his orthodontist\npractice. However, he has asked that we defend his twin children, Brian and\nYvette in a criminal conspiracy action being prosecuted by the\nCommonwealth of Kentucky.\nBrian and Yvette are seniors at Tates Creek High School. They were\narrested while playing hacky-sack in the parking lot of Henry Clay High\nSchool last Thursday night at 11:30 pm. Two other Tates Creek High\nstudents, Vic Vandal and Hal Hooligan, were also arrested at approximately\nthe same time. Vandal and Hooligan were caught exiting the locked\nbuilding of Henry Clay High School in possession of crowbars and several\nsoccer championship trophies stolen from display cases in the school\xe2\x80\x99s\nhallway.\nNeither Vandal nor Hooligan implicated the Standersen twins in the\nburglary, so the state\xe2\x80\x99s case of conspiracy to commit burglary against the\ntwins consists solely of the following pieces of circumstantial evidence:\n\xef\x82\xb7\n\nBrian and Yvette are classmates of Vandal and Hooligan at Tates\nCreek High School and were found at the scene of the crime.\n\n\xef\x82\xb7\n\nTates Creek and Henry Clay are soccer rivals. Their annual game\noccurred the night after the incident in question.\n\nThe Commonwealth\xe2\x80\x99s Attorneys are advancing the theory that Brian and\nYvette were \xe2\x80\x9cstanding watch\xe2\x80\x9d for Vandal and Hooligan. I need you all to\nfind post-1974, binding caselaw (Kentucky\xe2\x80\x99s current penal code was\nenacted in 1974) to answer the following questions:\n1. Is circumstantial evidence alone enough for a conspiracy\nconviction in Kentucky?\n2. Is merely being present at the scene of a crime sufficient for a\nconspiracy conviction in Kentucky?\n3. Is the Commonwealth likely to succeed in its prosecution? Why or\nwhy not?\nThanks,\nMs. Partner\n\n95\n\n\x0c4.6.3 Advanced Exercise on Case Research\nHello Team:\nAs you are no doubt aware, we represent Bob \xe2\x80\x9cBubba\xe2\x80\x9d Hicklin (founder\nand CEO of Black Sky Coal) for most of his legal needs. One of Mr.\nHicklin\xe2\x80\x99s hobbies is breeding and training Bluetick Coonhounds.\nSeventeen years ago, he purchased a large tract of land along the\nTennessee-North Carolina border which he has used since then as his\ndogs\xe2\x80\x99 breeding/training ground. Unfortunately, Mr. Hicklin did not survey\nhis lands correctly (he did it himself, another hobby), and the rather large\nkennel he built at great cost actually lies on lands owned by the Cherokee\nNation of North Carolina.\nThe Cherokee have now initiated a legal action against Hicklin for the land\nand the kennel in the U.S. District Court for the Western District of North\nCarolina. While the Cherokee Nation does appear to hold title to the land\nin question, I would like to be able to use the doctrine of adverse\npossession as a defense. However, I\xe2\x80\x99m not sure if I can use North\nCarolina\xe2\x80\x99s adverse possession laws against the Cherokee as tribal lands fall\nat least partially under federal jurisdiction. I need you to:\n1. Find me a case from the past 30 years or so (we don\xe2\x80\x99t want\nanything decided before the Indian Civil Rights Movement in the\n70s), preferably binding over the Western District of North\nCarolina, which answers whether or not a state adverse possession\ndefense can be used against Indian lands?\n2. Assuming that you find a relevant case, does it tip you off to any\nother topics/keynumbers that we might want to look at that\npertain specifically to Indians and land title? (Keep in mind that\nnobody at the firm has an expertise in Indian law, so basic\ndefinitions might be helpful.) What topics and keynumbers will be\nmost useful to us?\n3. Applying relevant authorities to our facts, are we ultimately likely\nto succeed? Why or why not?\nThanks,\nMs. Partner\n\n96\n\n\x0c4.7 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on researching cases in print touch upon material covered\nin this chapter. They would be a great place to start for students looking for\nfurther practice on the concepts introduced in this chapter!\n\n4.7.1 \xe2\x80\x9cAnatomy of a Case\xe2\x80\x9d\nSummary: an introduction to cases as they appear in\nreporters.\nURL: http://www.cali.org/lesson/834\n\n4.7.2 \xe2\x80\x9cHow to Find Case Law Using the Digests\xe2\x80\x9d\nSummary: an overview of researching in print using\nthe digest and reporter system.\n\nURL: http://www.cali.org/lesson/588\n\n97\n\n\x0cChapter 5\n\nAdministrative Regulations\nI\xe2\x80\x99m not the smartest fellow in the world, but I can\nsure pick smart colleagues. \xe2\x80\x93 Franklin Delano\nRoosevelt\nLet us never forget that government is ourselves and\nnot an alien power over us. The ultimate rulers of\nour democracy are not a President and senators and\ncongressmen and government officials, but the\nvoters of this country. \xe2\x80\x93 Franklin Delano Roosevelt\n\n5.1 Learning Objectives for Chapter 5\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nDescribe the origins and authority of administrative regulations as a\nsource of law.\n\n\xef\x82\xb7\n\nAssess the primary publications of federal administrative legal\nmaterials: the Code of Federal Regulations and the Federal Register.\n\n\xef\x82\xb7\n\nAppreciate the similarities and differences between federal\nadministrative regulations and state administrative regulations.\n\n\xef\x82\xb7\n\nEvaluate the various pieces of information provided in regulatory\npublications.\n\n\xef\x82\xb7\n\nEvaluate the use of administrative notices, administrative decisions,\nand other administrative materials in interpreting administrative\nregulations.\n\n98\n\n\x0c5.2 Delegated Rule-Making Authority\nAs discussed in Chapter 1, each branch of government under a Separation\nof Powers system creates its own source of law. In Chapters 3 and 4, we\ncovered the sources of law that most lay-people would recognize as law:\nconstitutions, statutes, and judicial opinions. However, in the American\nlegal system, the executive branch also contributes rules to the body of law.\nExecutive-made rules take the form of administrative regulations, which\nvarious executive departments, agencies, and commissions issue under an\nexplicit delegation of rule-making authority from the legislature. Essentially,\nthe legislature passes a statute with a broad aim, and then delegates a\nparticular agency of expertise to provide more specific rules aimed at\nachieving the broad goal. Lawyers call a statute that creates an agency to\nregulate a particular area an \xe2\x80\x9corganic statute\xe2\x80\x9d or \xe2\x80\x9corganic act.\xe2\x80\x9d106 Similarly,\nan \xe2\x80\x9cenabling statute\xe2\x80\x9d delegates additional authority to an already existing\nagency.107 Both organic statutes and enabling statutes establish broad aims\ndesired by the legislature and create mechanisms for agencies to provide the\ndetails. As such, regulations tend to be much more specific in nature than\nstatutes.\nExecutive agencies possessing delegated legislative authority have existed in\nthe Anglo-American legal tradition at least since the 1530s, which happens\nto be when people also first began recognizing the primacy of legislative\nrule-making authority to begin with.108 Since their introduction in Tudor\ntimes, however, executive branches tended to exercise delegated rulemaking authority somewhat sparingly for the next four centuries or so.\nThen, in response to the Great Depression in the U.S., the creation of\nexecutive agencies and the use of administrative regulations exploded with\nthe New Deal of the 1930s. The Roosevelt administration pushed for the\ncreation of a veritable \xe2\x80\x9calphabet soup\xe2\x80\x9d of federal agencies, partially as an act\nof job creation, but partially as a way of modernizing the U.S. economy.109\n\n106\n\nSee Statute, BLACK\xe2\x80\x99S LAW DICTIONARY 1634 (11th ed. 2019).\n\n107\n\nSee Id.\n\nSee generally G. R. ELTON, THE TUDOR REVOLUTION IN GOVERNMENT;\nADMINISTRATIVE CHANGES IN THE REIGN OF HENRY VIII (1953).\n108\n\nFor a riveting account of Roosevelt\xe2\x80\x99s life and Presidency, see H. W. BRANDS,\nTRAITOR TO HIS CLASS: THE PRIVILEGED LIFE AND RADICAL PRESIDENCY OF\nFRANKLIN DELANO ROOSEVELT (2008).\n109\n\n99\n\n\x0cHowever, increasing the amount of regulatory output under delegated\nauthority raised concerns about democracy and due process. After all, many\nof the experts who draft rules for agencies are directly hired by the agency\nin question and were not elected by voters. In order to assuage these\nconcerns, the federal government developed a unique system of publication\nof regulations that allows citizens to comment on proposed regulations\nbefore they go into effect. The publication system became formalized by\nstatute in 1946.110\nState executive branches likewise often issue copious amounts of\nregulations in the modern era. Furthermore, state publication of\nadministrative regulations tends to follow the federal model, albeit on a\nmore limited scale. As the federal system of regulation promulgation\nremains the most sophisticated, we will begin by taking a closer look at\nfederal regulations.\n\n5.3 Researching Federal Regulations\nAs discussed above, the federal government follows a regimented\npublication procedure for administrative regulations in order to comport\nwith due process. In fact, the federal Government Publishing Office (GPO)\nissues three separate publications related to regulatory research: the Code of\nFederal Regulations (C.F.R.), the List of Sections Affected (L.S.A.), and the Federal\nRegister (F.R.). Of the three publications, the C.F.R. allows legal researchers\nto look up regulations by topic most easily, while the F.R. contains the most\nbackground information beyond the regulations themselves. The L.S.A. is\nused primarily to update C.F.R. sections; think of it as a multi-volume\npocket part. The federal government also creates electronic copies of the\nC.F.R. and F.R., but as the system developed in print, we will introduce it in\nprint in order that students may easily see the interactions between the\nvarious pieces of the system.\n\n5.3.1 The C.F.R.\nAs the use of the word \xe2\x80\x9ccode\xe2\x80\x9d in its title implies, the C.F.R. contains all\nfederal regulations currently in force, neatly arranged in topical order.\n\nAdministrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as\namended at 5 U.S.C. \xc2\xa7\xc2\xa7 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372,\n7521 (2018)).\n110\n\n100\n\n\x0cWhat the U.S.C. is for federal statutes, the C.F.R. is for federal regulations.\nIn fact, the two publications share the same basic structure: sections as\nbuilding blocks, housed in chapters/sub-chapters, which in turn get\ngrouped into titles. However, because of the dense nature of regulations,\nthe C.F.R. makes use of an additional unit of organization in between the\nsection and chapter levels. This unit is called a \xe2\x80\x9cpart.\xe2\x80\x9d (Sometimes\n\xe2\x80\x9csubparts\xe2\x80\x9d will also be included.)111 Nonetheless, the citation of a federal\nregulation looks substantially similar to the citation of a federal statute: title\nnumber, C.F.R., section number. A researcher would pull a regulation by\ncitation just as he would pull a statute by citation.\nLegal researchers also go about finding regulations on a specific topic in\nthe same ways they would go about finding statutes on a specific topic.\nLike the U.S.C., the C.F.R. features a series of increasingly-detailed tables\nof contents. Also like the U.S.C., the C.F.R. includes an index that\nresearchers may use to look up specific terms, though researchers should\nremember that sometimes a specific term will be located as a subset under\na more general index term. Thus, though the source of law differs,\nresearchers should generally use the same methods of research covered in\nChapter 3 for codes to discover a specific section within the C.F.R.\nHowever, once a researcher has opened a C.F.R. section, he will note\nsome key differences, as well as some similarities. Figure 5.3.1a provides\nan excerpt from the C.F.R. The first thing the reader probably notices\nabout the regulation is the incredible level of detail provided, especially\ncompared to typical statutory language. This language is typical in\nregulations. Second, note the lack of annotations. Because regulations\nchange quickly and possess such a high level of detail, commercial\npublishers do not reprint them, and thus no one provides editorial\ncontent. Finally, note that, like the U.S.C., the C.F.R. provides researchers\nwith citations to each section\xe2\x80\x99s creating and amending documents. In the\nC.F.R., these cites refer the researcher to the Federal Register, which will be\ndiscussed in section 5.3.3 below.\n\nNote that some statutory codes, notably the U.S.C., also make use of parts.\nNonetheless, the use of parts and subparts as intermediary levels of organization\nis fairly ubiquitous in administrative codes.\n111\n\n101\n\n\x0cFigure 5.3.1a: Excerpt from the Code of Federal Regulations\n\nUpon locating a relevant regulation, a good researcher will then flip to the\nbeginning of the part in which it appears. For instance, the regulation in\n\n102\n\n\x0cFigure 5.3.1a, 9 C.F.R. \xc2\xa7 77.8, may be found in Subpart B of Part 77 of\nSubchapter C of Chapter 1 of Title 9 of the Code of Federal Regulations.112 An\nexcerpt from the beginning of said Part 77 appears in Figure 5.3.1b. A good\nresearcher would then do two things. First, he would scan the part\xe2\x80\x99s table of\ncontents for other sections that may affect his client, including any\ndefinitions or general provisions section. Second, he would look for the\nstatutory grant of authority for the regulations in question. Remember,\nregulations are issued upon delegated authority. The organic and enabling\nstatutes that did the delegating provide additional necessary avenues of\ninquiry when researching situations governed by regulations.\n\nFigure 5.3.1b: Front matter to Part 77 of C.F.R. Title 9,\nshowing the statutory grant of authority and a portion of the\ntable of contents, or outline, for Part 77.\n\nReaders have been warned, repeatedly, about the highly dense and technical\nnature of regulations. The same also applies to C.F.R. organization.\n112\n\n103\n\n\x0cThus, the C.F.R. provides a mostly self-contained means to research federal\nregulations currently in force. Although the G.P.O. publishes each title of\nthe C.F.R. annually, as a print source it captures only a specific moment in\ntime. Because regulations tend to change rapidly, legal researchers should\nmake sure to update any applicable regulations using the second of the\nfederal regulatory publications: the L.S.A.\n\n5.3.2 The L.S.A.\nAs mentioned above, the List of Sections Affected essentially functions as a\ngiant pocket part to the C.F.R. In fact, the L.S.A. really does what its name\nsuggests; it lists sections of the C.F.R. that have been affected by\nregulations issued after the last printing of the C.F.R. title in which the\nsection appears.113 An excerpt from the L.S.A. appears in Figure 5.3.2.\n\nEach title of the C.F.R. gets published annually, but the exact date of\npublication varies by title: Titles 1-16, January 1; Titles 17-27, April 1; Titles 28-41,\nJuly 1; Titles 42-50, October 1. Also, by \xe2\x80\x9c1\xe2\x80\x9d of each month, we mean the first\nbusiness day of each month.\n113\n\n104\n\n\x0cFigure 5.3.2: Excerpt from the List of Sections Affected\n\nNote that only C.F.R. sections that have indeed been affected by\nsubsequent regulation appear in the L.S.A. Thus, if a C.F.R. section does\nnot appear in the L.S.A., then it has not changed and a researcher is free to\nrely upon the version discovered in the C.F.R. itself.\n\n105\n\n\x0cNote also that if a C.F.R. section does appear in the L.S.A., meaning that\nthe text of the regulation has changed since publication, the L.S.A. does not\nactually reproduce the updated text of the changed regulation.114 Rather, the\nL.S.A. refers the researcher to the number of the page upon which the\nresearcher can find the updated text. These page numbers refer to pages of\nthe third of the federal regulatory publications, the Federal Register.\n\n5.3.3 The F.R.\nThe Federal Register contains much more information than the other federal\nregulatory publications. It also predates the C.F.R. by more than a decade\nand serves as the primary means by which regulations satisfy due process.\nThe GPO publishes the F.R. daily.115 The F.R.\xe2\x80\x99s pages number\nconsecutively per year, meaning that the F.R. issue published on January 2\nbegins with page 1, while page numbers in December issues often\napproach 6 digits. The consecutive pagination is what allows the L.S.A. to\ncite the F.R. solely by page number. Other citations to the F.R. proceed as\nnormal: volume number (each year\xe2\x80\x99s run constitutes a separate volume),\nF.R., page number.\nWhen a federal administrative agency wishes to change a regulation or\nissue a new regulation, it first issues the regulation as a Proposed Rule in\nthe Federal Register. Proposed rules provide details on why the regulatory\nchange is needed and give citizens the opportunity to comment upon the\nproposed rule. Thus, the Federal Register\xe2\x80\x99s primary purpose is satisfying due\nprocess. The F.R. features its own index which can be used to find rules\nby topic. Figure 5.3.3a provides an excerpt from a proposed rule. Please\nnote, however, that most proposed rules comprise multiple pages.\n\n114\n\nThis is where the pocket part analogy breaks down.\n\n115\n\nMeaning, of course, business days.\n\n106\n\n\x0cFigure 5.3.3a: Excerpt from a Proposed Rule in the Federal\nRegister\n\nIn addition to proposed rules, agencies also publish final rules in the Federal\nRegister. For instance, after an agency assesses all the comments submitted\non a proposed rule, it will make necessary changes and issue it as a final\nrule. Final rules are then incorporated into the C.F.R. at the appropriate\nsection as regulations. Because the F.R. publishes the final rules, it works in\n\n107\n\n\x0cconjunction with the L.S.A. to update C.F.R. sections. Figure 5.3.3b shows\nthe final rule in the F.R. alluded to by the L.S.A. in Figure 5.3.2.\n\nFigure 5.3.3b: A Final Rule in the Federal Register\n\nBecause of the publication of final rules, researchers may also use old\neditions of the Federal Register to find former versions of federal regulations,\nmuch as researchers may use session laws to find former versions of\nstatutes.\n\n108\n\n\x0cIn addition to proposed and final rules, the Federal Register also allows\nadministrative departments and agencies to publish \xe2\x80\x9cnotices\xe2\x80\x9d if they want\nthe public to be aware of a particular issue. Often notices describe\nadministrative hearings or orders, but agencies can use them to provide the\npublic with materials that detail the application of administrative rules.\nNotices themselves do not carry the force of law but can often offer\nresearchers helpful guidance as to how an agency applies its regulations.\nFigure 5.3.3c shows an example of a notice in the Federal Register.\n\n109\n\n\x0cFigure 5.3.3c: A Notice in the Federal Register.\n\n110\n\n\x0cThus, the Federal Register allows compliance with due process, provides a\nmeans of updating C.F.R. sections, and publishes a wealth of information\nlawyers can use for regulatory interpretation.\n\n5.3.4 Federal Regulations Online\nIn addition to issuing the official print versions of the C.F.R. and F.R. to\ndepository libraries, the federal government also maintains electronic\nversions of both the C.F.R. and the F.R., the former at www.ecfr.gov, and\nthe latter at www.federalregister.gov. Additionally, the commenting system\nhas been moved online to www.regulations.gov, a site which also allows\nresearchers to search comments on proposed rules that an agency has\nreceived.\nResearchers can use the basic processes of searching, browsing, and\nfiltering to retrieve information from the three sites. However, when doing\nso, there are a few things to keep in mind. First, the eCFR provides the\ncode as currently in force. Furthermore, the eCFR is updated regularly as\nchanges made by the F.R. are incorporated with only the delay of a day or\ntwo, which removes the necessity of consulting the L.S.A.116 Finally, the\nelectronic version of the F.R. only includes issues from 1994 onwards, so\nfor earlier information when tracing a regulation\xe2\x80\x99s history researchers will\nneed to consult either the print edition or an edition on a commercial legal\nresearch platform.\nIn addition to the government sites, Westlaw Edge, Lexis+, and\nBloomberg Law all provide electronic versions of the C.F.R. Westlaw\nEdge and Lexis+ also provide the F.R., and importantly, electronic indexes\nto the C.F.R. For this reason, researchers may prefer using the legal\nresearch platforms to the government sites when researching federal\nregulations.\n\n5.3.5 Administrative Decisions & Guidance\nThe federal regulatory publishing system described above is\ncomprehensive in that it contains regulations and some supporting\nmaterials from all federal agencies. However, the Federal Register does not\n\nIn fact, as most legal research is now performed on computers, the L.S.A. is\nrarely used anymore.\n116\n\n111\n\n\x0ccontain all of the work produced by federal agencies, many of which\npublish their own titles containing supplemental information.\nFurthermore, commercial publishers will sometimes gather and publish\nadministrative materials on certain topics. The publications available for\nadministrative materials vary by agency and topic, but researchers can\nconsult Table 1.2 of The Bluebook to determine which publications are\navailable for select federal agencies.117 Alternatively, www.govinfo.gov\nprovides a comprehensive list of federal government publishers from all\nthree branches.\nLegal researchers tend to think of supplementary materials produced by\nadministrative agencies in two broad categories: administrative decisions\nand administrative guidance. While neither of these types of publications\ncreate binding rules of law, researchers often use them to help interpret\nregulations that do possess the force of law. Let us first look at\nadministrative decisions.\nAdministrative decisions resemble judicial opinions, except that they are\nissued by agencies\xe2\x80\x99 own hearings or review boards that lack the force of\nprecedent and therefore do not generate common law.118 This is because\nadministrative adjudicative bodies derive their authority from\nCongressional delegation and thus are generally treated as \xe2\x80\x9cArticle I\nCourts\xe2\x80\x9d after the article of the Constitution providing for Congressional\npower.119 Only \xe2\x80\x9cArticle III Courts,\xe2\x80\x9d those courts whose authority derives\ndirectly from the Constitutional article granting power to the Judiciary, act\nas common law courts.120\nResearchers may find administrative decisions in a variety of places. First,\nmany individual agency publications contain decisions, and these\npublications can generally be found in print at libraries participating in the\nFederal Depository Library Program. For example, decisions of the\nInterior Board of Indian Appeals appear in Interior Decisions, the reporter of\n\nTHE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 230-242 tbl.T.1.2\n(Columbia Law Review Ass\xe2\x80\x99n et al. eds., 21st ed. 1st prtg. 2020).\n117\n\nNote that terminology varies from agency to agency. Some agencies may have\n\xe2\x80\x9cboards\xe2\x80\x9d to hear administrative cases, while others may have \xe2\x80\x9cpanels\xe2\x80\x9d or use\nsome other term. A common thread is that members of agency adjudicative\npanels are referred to as ALJs or Administrative Law Judges.\n118\n\n119\n\nArticle I Court, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n120\n\nArticle III Court, BLACK\xe2\x80\x99S LAW DICTIONARY (11th ed. 2019).\n\n112\n\n\x0cadministrative decisions compiled by the Department of the Interior and\nsent to Federal Depository Libraries by the GPO.\nHowever, visiting a Federal Depository Library and/or enlisting the aid of\na government documents librarian can be time consuming. For this\nreason, the full-service legal search platforms all include at least some\nadministrative decisions. The websites of agencies themselves also often\nlink to their administrative decisions. Researchers should consult the\nUnited States Government Manual121 for an official listing of all federal\nagencies, and USA.gov provides links to the agency websites. Regardless\nof how a researcher finds administrative decisions, he may use them to\nhelp interpret regulations but should not rely on them as common-law\nprecedent.\nIn addition to issuing decisions actively applying their regulations to\ncontroversies, most agencies also produce manuals and other internal\ndocuments that researchers can use to determine how an agency is likely to\ninterpret its own regulations. These materials are referred to as\n\xe2\x80\x9cadministrative guidance.\xe2\x80\x9d For example, the Internal Revenue Service\n(I.R.S.) publishes the Internal Revenue Manual,122 which describes how the\nI.R.S. conducts its business. While administrative guidance materials vary\nfrom agency to agency, researchers should be able to find them in similar\nways to administrative decisions: in Federal Depository Libraries, in\ncommercial databases, or on agency websites. Regardless of the form the\nmaterials take, researchers can use them to help interpret and apply federal\nadministrative regulations as a source of law.\n\n5.4 State Regulations\nState executive agencies also issue binding administrative regulations,\nthough not to the same extent as federal agencies. At first this may strike\nthe reader as counterintuitive. If federal competency is limited to\nenumerated powers only, would one not expect to find less, rather than\n\nThe United States Government Manual is the official handbook of the federal\ngovernment and provides a detailed description of the three branches of\ngovernment and the offices that comprise them. Print copies may be found in\nFederal Depository Libraries, and the manual is also available electronically at\nhttp://www.usgovernmentmanual.gov/.\n121\n\nThe Internal Revenue Manual can be found in print at Federal Depository\nLibraries and electronically at http://www.irs.gov/irm/.\n122\n\n113\n\n\x0cmore federal regulations? The answer to this quandary lies in two facts.\nFirst, administrative regulations often target complicated commercial and\nindustrial activities, and so regulating interstate state commerce requires\nnumerous and detailed regulations in a variety of areas. Second, state\nbudgets tend to pale in comparison to the federal budget. Thus, federal\nagencies tend to be more numerous and better staffed than state agencies.\nNonetheless, state executive branches do regulate certain activities within\ntheir states.\nIn format, administrative regulations will vary state by state to a certain\ndegree, but they often mimic the form of federal regulations. For example,\nFigure 5.4 shows an administrative regulation from Kentucky. Note the\nexplicit reference to the statutory grant of authority, just like federal\nregulations contain. Also, if a researcher flipped to the beginning of either\nthe chapter or title that house the particular regulation (Chapter 10, and\nTitle 902 respectively), he would find a table of contents for that particular\nunit of organization. Also, most state administrative codes include a\ntopical index at the end. Thus, legal researchers interact with state\nadministrative codes in the same ways they would with the C.F.R.\nFurthermore, citation of state administrative regulations tends to resemble\nthat of federal regulations, though of course this varies depending upon\nthe state.123 Typically, though, lawyers cite state administrative codes in the\nstandard title number-code abbreviation-section number format.\n\nFor a complete list of state administrative regulation citation schemes, see THE\nBLUEBOOK: A UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law\nreview Ass\xe2\x80\x99n et al. eds., 21st ed. 1st prtg. 2020).\n123\n\n114\n\n\x0cFigure 5.4: 902 KAR 10:130\n\nMost states also publish administrative registers, in the style of the Federal\nRegister. However, most state administrative registers amount to very poor\nimitations of the F.R. (mostly because the states themselves are much\npoorer entities than the federal government). For instance, Kentucky\xe2\x80\x99s\nadministrative register is published monthly (as opposed to daily) and\ncontains far less information. It still provides citizens with notice of\nproposed rule changes, and researchers still can use it to update\nadministrative code sections, though state administrative codes usually are\nnot big enough to require a separate list of sections affected. (Affected\nsections instead typically appear in list form in part of the administrative\nregister.)\nAlso like federal agencies, state agencies both hold hearings that lead to\nadministrative decisions and create internal documentation that\nresearchers can use for administrative guidance. As with the other\nadministrative materials, the availability of administrative decisions and\nguidance varies state by state and tends to be less prevalent at the state\nlevel than the federal level. Students interested in conducting state\nadministrative research should contact a law librarian in their state to learn\nwhat sources are available.\n\n115\n\n\x0cThus, legal researchers typically interact with state administrative materials\nin the same ways with which they interact with federal regulatory\npublications. Indeed, the major differences between federal and state\nregulatory publications are differences of scale. It is important that aspiring\nlawyers learn to interact with regulations at both the state and federal\nlevels, as regulations act as the source of law for the executive branch and\noften govern commercial activities in their jurisdiction.\nWe have now introduced students to all the building blocks of modern\nlegal research. Let us now turn our attention to updating those basic\nsources to ensure their continued validity.\n\n116\n\n\x0c5.5 Concluding Exercises for Chapter 5\nTry your hand at conducting regulatory research!\n\n5.5.1 Introductory Exercise on Researching Regulations\nHello all,\nWe have been engaged to advise Giovanni \xe2\x80\x9cJonny\xe2\x80\x9d Camminatore on a\nbusiness venture he plans to undertake as a retirement career.\nMr. Camminatore, an amateur distiller, wants to bring his most recent\nattempt at whiskey to market as \xe2\x80\x9cErba Azzurie Bourbon.\xe2\x80\x9d I will need you\nto do the following:\n\n\xef\x82\xb7\n\nFind the regulations in the C.F.R. that deal with labeling and\nadvertising of liquors. Is there a regulation that defines \xe2\x80\x9cstandards\nof identity\xe2\x80\x9d for different types of spirits?\n\n\xef\x82\xb7\n\nAccording to the regulation you found, what steps must Mr.\nCamminatore take in his whiskey-production process in order to\nlabel it as \xe2\x80\x9cbourbon\xe2\x80\x9d?\n\nThanks,\nMr. Partner\n\n117\n\n\x0c5.5.2 Intermediate Exercise on Researching Administrative\nGuidance\nDear Team:\nWe have been engaged by Sinclair Upton, a research scientist and product\ndeveloper for Bow Chow Industries, Inc., a pet food manufacturer. Dr.\nUpton is concerned about some of the additives that Bow Chow puts into\none of its lines of canned dog food. He is considering whistle-blowing on\nthe company to the F.D.A. as a confidential informant. Before he does,\nhowever, he would like assurances that the F.D.A. will preserve his\nanonymity. I need you to find some F.D.A. guidance documents\n(preferably a F.D.A. manual) that outline their procedures for interviewing\ninformants and protecting the anonymity of confidential informants in the\ncontext of the F.D.A.\xe2\x80\x99s inspection procedures related to animal food\nadditives. Let me know what you find.\n\nRegards,\nMr. Partner\n\n118\n\n\x0c5.5.3 Advanced Exercise on Researching Regulations\nHello all,\nLast week when I was having my annual check-up, my allergist, Dr. Billie\nMayes, mentioned that she\xe2\x80\x99s been working on a new generic inhaler\n(tentatively to be marketed as \xe2\x80\x9cThe Wheeze-Whacker\xe2\x80\x9d) which I currently\ntake the designer version of. Unfortunately, she told me that she could not\nget it to work without using an ozone-damaging aerosol, and that she is\nafraid the FDA, under the influence of the EPA, will not allow the inhaler\nto go to market. The generic would potentially save individual asthma\nsufferers between six hundred and twelve hundred dollars a year, so I told\nher I\xe2\x80\x99d have my people look into it.\nDr. Mayes describes the Wheeze-Whacker as a \xe2\x80\x9csuper short-acting, rescue\nbronchodilator extraordinaire.\xe2\x80\x9d Each unit consists of 200 metered doses\nwith an extra 4 \xe2\x80\x9cpriming doses.\xe2\x80\x9d The active moieties in the inhaler are\nflunisolide and albuterol.\nI would like you to answer the following:\n1) Find a federal regulation on using aerosols that damage the ozone\nin drugs, specifically asthma inhalers.\n2) Assuming such a regulation exists, does it prohibit the use of said\naerosols, and if so, does it include any exceptions? (Asthma drugs\nare life-savers; surely there are exceptions for things of that\nnature!)\n3) Would the Wheeze-Whacker, in its specific make-up, qualify\nunder a necessity-type (or however they phrase it) exception?\nWhat authority supports your answer?\n4) What statute(s) grant(s) authority to the FDA to regulate the use\nof ozone-damaging aerosols in drugs such as inhalers?\n\nThanks,\nMr. Partner\n\n119\n\n\x0c5.6 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on researching administrative law touch upon material\ncovered in this chapter. They would be a great place to start for students\nlooking for further practice on the concepts introduced in this chapter!\n\n5.6.1 \xe2\x80\x9cIntroduction and Sources of Authority for\nAdministrative Law\xe2\x80\x9d\nSummary: an introduction to agencies\xe2\x80\x99 powers\nwithin the constitutional scheme and the regulatory\nprocess.\nURL: http://www.cali.org/lesson/765\n\n5.6.2 \xe2\x80\x9cRulemaking: Federal Register and CFR\xe2\x80\x9d\nSummary: an overview of the rulemaking process\nand the publication of the same.\n\nURL: http://www.cali.org/lesson/580\n\n5.6.3 \xe2\x80\x9cResearching Federal Administrative Regulations\xe2\x80\x9d\nSummary: an overview of researching federal\nregulations using print sources.\nURL: http://www.cali.org/lesson/566\n\n5.6.4 \xe2\x80\x9cAgency Decisions and Orders\xe2\x80\x9d\nSummary: an introduction to the process of\nresearching federal agency decisions. You should\nexpect to encounter: overview of agency regulatory\npowers; types of agency decisions; how to find them;\nhow to update them; and their precedential value.\nURL: http://www.cali.org/lesson/1223\n\n5.6.5 \xe2\x80\x9cInternal Agency Materials\xe2\x80\x9d\nSummary: an introduction to finding administrative\nguidance materials on the internet.\nURL: http://www.cali.org/lesson/1061\n\n120\n\n\x0c5.6.6 \xe2\x80\x9cGovernment Documents\xe2\x80\x9d\nSummary: to familiarize the user with the range of\ndocuments produced by the Federal government,\nwhere they can be found, and how they can be used\nin a law practice. The lesson focuses on issues\nsurrounding government documents including:\nauthenticity, how to find and use government\ndocuments, and statistics.\nURL: http://www.cali.org/lesson/8457\n\n5.6.7 \xe2\x80\x9cAttorney General Materials\xe2\x80\x9d\nSummary: an introduction to federal and state\nattorney general materials, which are a particular\nform of administrative guidance.\n\nURL: http://www.cali.org/lesson/862\n\n5.6.8 \xe2\x80\x9cResearching Federal Executive Orders\xe2\x80\x9d\nSummary: an introduction to researching federal\nexecutive orders, which direct executive agencies to\ntake certain actions or approaches to regulation.\nURL: http://www.cali.org/lesson/583\n\n121\n\n\x0cChapter 6\n\nUpdating Sources of Law\nLaw grows, and though the principles of law remain\nunchanged, yet (and it is one of the advantages of\nthe common law) their application is to be changed\nwith the changing circumstances of the times. Some\npersons may call this retrogression, I call it\nprogression of human opinion. \xe2\x80\x93 Samuel Taylor\nColeridge\n\n6.1 Learning Objectives for Chapter 6\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nAssess the necessity of updating individual sources of law by\nexamining their subsequent treatment by other, later sources of\nlaw.\n\n\xef\x82\xb7\n\nEvaluate how the totality of a case\xe2\x80\x99s subsequent treatment affects\nthe case\xe2\x80\x99s value as a precedent.\n\n\xef\x82\xb7\n\nDescribe situations in which a statute or regulation may no longer\nhold the force of law despite remaining on the books.\n\n\xef\x82\xb7\n\nDevelop strategies for using citators to determine a source of law\xe2\x80\x99s\nsubsequent treatment.\n\n\xef\x82\xb7\n\nDevelop strategies for using citators as research tools to find\nadditional sources of law.\n\n122\n\n\x0c6.2\n\nIntroduction to Updating Sources of Law\n\nAs discussed in Chapter 4, the common law system, by its very nature,\nconstantly changes over the course of time. As new precedents adapt,\nexpand, contract, or otherwise alter legal rules from earlier precedents, the\nlaw evolves and morphs, a process which allows it to continue to order a\nconstantly changing society. While the Common Law\xe2\x80\x99s adaptability acts as\none of its greatest strength, it does pose a challenge for legal researchers.\nIndividual sources of law are issued at discrete points in time, but events\nthat occur later in time can affect their continuing value and applicability.\nThus, legal researchers need to be able to conduct research to examine the\n\xe2\x80\x9csubsequent treatment\xe2\x80\x9d of sources of law in order to determine each\nsource\xe2\x80\x99s actual value. Lawyers refer to the process of researching an\nindividual source\xe2\x80\x99s subsequent treatment as \xe2\x80\x9cupdating\xe2\x80\x9d that source of law.\nLuckily, legal publishers have long recognized the importance of providing\nmeans for researchers to find efficiently the subsequent treatment of a\nsource of law and provide tools for doing so. In fact, the brand name of the\ndominant print-based tool, Shepard\xe2\x80\x99s Citation Service became so prevalent that\n\xe2\x80\x9cShepardizing\xe2\x80\x9d became a synonym for \xe2\x80\x9cupdating\xe2\x80\x9d much as \xe2\x80\x9cgoogling\xe2\x80\x9d has\nbecome a synonym for online searching. Legal researchers collectively refer\nto Shepard\xe2\x80\x99s and similar products as \xe2\x80\x9ccitators.\xe2\x80\x9d\nWhile citators originally developed in print, the advent of computers made\nthem much more powerful and much more efficient to use, and lawyers and\nother researchers now use them almost exclusively in online versions.\nShepard\xe2\x80\x99s still exists, although it was purchased by LexisNexis and serves as\nthe citator for Lexis+. Westlaw Edge and Bloomberg Law also feature\ncitators, termed KeyCite and BCite, respectively. In addition to allowing\nresearchers to investigate subsequent treatment, online citators also\nrepresent powerful research tools for discovering new sources of law.\nBefore we turn to citators as research tools, though, let us examine their\noriginal use in updating each source of law.\n\n6.3\n\nSubsequent Treatment of Judicial Opinions\n\nAs we have seen, the precedential weight of judicial opinions varies.\nFurthermore, subsequent treatment of an opinion, by later opinions or by\nlegislatures, often affects the continuing utility of the rules contained in the\nopinion. Thus, finding and reading an opinion merely represent the first\nsteps in case-based research; a lawyer must also evaluate an opinion\xe2\x80\x99s\napplicability to her client\xe2\x80\x99s circumstances in light of the treatment the\nopinion has received since it was issued.\n\n123\n\n\x0c6.3.1\n\nHow Subsequent Treatment Affects Opinions\n\nSubsequent treatment of an opinion ranges from positive to negative. On\nthe positive side, later opinions may discuss, explain, or cite an earlier\nopinion. If a later court cites an opinion on a specific point, it has\nimplicitly approved the legal rule from the earlier opinion. Such positive\ncitations tend to increase the precedential value of opinions.\nJudicial opinions also sometimes suffer negative subsequent treatment. For\ninstance, a holding may be overturned in whole or in part by a higher\ncourt. Furthermore, appellate courts may overturn their own earlier\ndecisions. A famous example of this occurred when Brown v. Board of\nEducation overturned the earlier Supreme Court decision, Plessy v.\nFerguson.124 Sometimes, a later court may limit or abrogate an earlier\nopinion without explicitly overturning it. Similarly, if a legislature dislikes a\nrule from a particular judicial opinion, it can pass a statute changing the\nlaw that the opinion had interpreted. The amended statute would then take\nprecedence over the opinion. Lawyers refer to opinions thus affected as\nhaving been superseded by statute.\nFinally, later judicial opinions may \xe2\x80\x9cdistinguish\xe2\x80\x9d an earlier case.\nDistinguishing lies somewhere in between positive and negative treatment.\nAn opinion that distinguishes an earlier opinion essentially recognizes the\nrule from the earlier opinion as valid but goes on to state that the rule\nshould not apply in the current case because of different material facts. On\nthe one hand, the rule from the earlier opinion remains valid. On the other\nhand, the rule now only applies to an at least somewhat limited set of\nfacts. The more times an opinion has been distinguished, the narrower its\nfactual application tends to be. Legal researchers who discover a\ndistinguished opinion should carefully evaluate whether their clients\xe2\x80\x99 facts\nfall closer to the original opinion or closer to the distinguishing opinion.\n\nBrown v. Board of Education, 347 U.S. 483, 494-495 (1954) (overruling Plessy\nv. Ferguson, 163 U.S. 537 (1896)).\n124\n\n124\n\n\x0cCommon Editorial Phrases\nDescribing Negative\nSubsequent Treatment\n\nDescription\n\nAbrogated:\n\nThe citing case effectively, but not explicitly, overrules or departs from the original case on at\nleast one legal issue.\n\nCriticized by:\n\nThe citing opinion criticizes the original case in some significant way, although the citing\ncourt may not have the authority to materially affect its precedential value, or may not be\nquite ready to completely overrule the original case on the issue.\n\nDeclined to extend by:\n\nThe citing case has declined to extend the ruling of the original case to that particular set of\nfacts; functionally very similar to distinguished by. Like \xe2\x80\x9cdistinguished\xe2\x80\x9d, this may have the\neffect of narrowing the original case\xe2\x80\x99s ruling.\n\nDistinguished by:\n\nThe citing case differs from the original case either because of different facts or a different\napplication of the law. May have the practical effect of narrowing the original case\xe2\x80\x99s ruling\nby stating a scenario in which that ruling does not apply. The more citing cases\ndistinguishing themselves from the original case on a particular legal issue, the narrower the\napplication of the original case tends to be.\n\nOverruled:\n\nThe citing case expressly or effectively overrules at least one legal issue in the original case.\n\nSuperseded:\n\nA new or amended statue or constitutional provision has rendered the original case\ninapplicable. Note that for events occurring before the enactment/adoption of the new\nprovisions, the original case would still be valid precedent.\n\nValidity questioned by:\n\nThe continuing validity or soundness of a ruling from the original case is questioned because\nof intervening circumstances, such as a change in judicial law or the passage of time.\nFigure 6.3.1: Common Editorial Phrases Describing\nSubsequent Negative Treatment of Judicial Opinions\n\n6.3.2\n\nHow to Determine Subsequent Treatment\n\nAs discussed above, each of the major legal research platforms features a\ncitator. Furthermore, the respective legal publishers have each fully\nintegrated their citator into their platform so that researchers can\neffortlessly shift between primary research and updating. The integration\nalso provides symbols so that researchers can tell at a glance what tone the\nsubsequent treatment of a particular case has taken.\n\n125\n\n\x0cWhen a researcher encounters a legal authority on Westlaw Edge, Lexis+,\nor Bloomberg Law, she may see a brightly-colored symbol next to the title\nof the authority.125 These are the subsequent treatment symbols provided\nby each platform\xe2\x80\x99s citator that alert the researcher that an authority has\nreceived subsequent treatment. The color scheme further alerts the\nresearcher as to how the original authority has been impacted by the\nsubsequent treatment. Generally, citator symbols follow a traffic-light\nscheme wherein red means to stop because of severe negative treatment,\nsuch as an overruling, while yellow indicates caution for some subsequent\ncriticism, and green gives the all clear for only positive subsequent\ntreatment.126 Thus, a researcher can tell at a glance whether a source is likely\nstill good law. Note, however, that a good legal researcher will actually read\nthe negative subsequent treatment, as even cases overruled on one issue\n(thereby receiving a red subsequent treatment symbol) may still be good law\non a separate issue.\nResearchers should keep in mind that each of the publishers discussed\nabove employs a team of attorney-editors to help determine how a case\xe2\x80\x99s\nsubsequent treatment has affected its precedential value. Because these\ndeterminations are judgment calls, it is not uncommon for researchers to\nfind a case receiving a red symbol on one platform but a yellow or orange\nsymbol on another. Furthermore, the publishers, as private entities, in no\nway are making official determinations. Thus, researchers rely on the\ndeterminations at their peril. Rather the determinations are just an added\nresearch tool; researchers may use the tool but must still perform their own\nresearch and make their own determination.\nIf a researcher encounters a case bearing a symbol indicating negative or\ncautionary treatment, she should first investigate the negative treatment. A\nresearcher can access the negative treatment by clicking on the subsequent\ntreatment symbol, which features a shortcut link. Alternatively, researchers\ncan access the full list of subsequent treatment by clicking on the\n\nOn Westlaw, the symbols for the most part take the form of flags. On Lexis+,\nthe symbols are different shapes, and Bloomberg Law uses colored squares with\ndifferent shapes inside them.\n125\n\nBCite offers more nuanced categories than the other two services, and thus\nsplits what would be red on West or LexisNexis into Red and Orange levels for\ndifferent types of negative treatment. Similarly, while West and LexisNexis\nconsider distinguishing to warrant a cautionary yellow, Bloomberg uses blue for\ndistinguishing treatment and reserves yellow for more direct criticism. The basic\npattern remains the same, however.\n126\n\n126\n\n\x0c\xe2\x80\x9cShepardize\xc2\xae this document\xe2\x80\x9d link (on Lexis+), the \xe2\x80\x9cCiting References\xe2\x80\x9d tab\n(on Westlaw Edge), or the \xe2\x80\x9cBCITE ANALYSIS\xe2\x80\x9d icon (on Bloomberg Law)\nand filtering to negative or cautionary treatment.\n\nFigure 6.3.2a: Accessing a case\xe2\x80\x99s subsequent treatment on\nWestlaw Edge.\n\nOnce a researcher has accessed the potentially negative treatment, she\nshould use filters to look at the most negative treatment (particularly that\nfeaturing a red symbol) first, and then proceed to look at the other\npotentially negative treatment (that bearing orange or yellow symbols.\nResearchers can also use the filters to narrow the list down further to only\nthose sources that will affect the continued validity of the original case for\nthe purposes of the legal issue being researched. In particular, jurisdictional,\ntopical, and reported/unreported filters may be useful.\nIn terms of jurisdiction, a researcher generally only cares about negative\ntreatment from the jurisdiction being researched, and most importantly\nfrom sources that would be binding upon the court that would hear the\nresearcher\xe2\x80\x99s problem. For instance, if investigating a point of Nebraska law,\na researcher would be concerned about Nebraska state court opinions that\ndeal with the original case negatively, and could use the appropriate\n\n127\n\n\x0cjurisdiction (or court) filter to limit results to those cases. Conversely, if\ninvestigating a point of federal law, a researcher can limit results to federal\ncourts and even levels of court that are higher and in the same circuit as the\noriginal case. Furthermore, trial level courts mix finding of fact with finding\nof law, and as such can never be mandatory authority, and so researchers\nshould feel comfortable using filters to restrict results to appellate cases\nwhen updating a case.\n\nFigure 6.3.2b \xe2\x80\x93 Screenshot of a Shepard\xe2\x80\x99s Report and its\navailable filters on Lexis+TM. Reprinted from LexisNexis\nwith permission. Copyright 2021 LexisNexis. All rights\nreserved.\n\nTopical filters are useful because cases often deal with more than one legal\nissue, so if an opinion has received negative treatment on one issue, its\nvalue as precedent on other issues may remain unaffected. Thus,\nresearchers should focus on negative treatment on point to their particular\nissue of interest. Similarly, unreported cases are not deemed to have full\nprecedential value, and so when determining the continued validity of an\nopinion, researchers should filter out unreported cases from their negative\nsubsequent treatment.\nOnce a researcher has filtered the negative subsequent treatment by\njurisdiction, topic, and/or reported status, she should then carefully read\nthe resulting sources. It bears repeating that the symbols provided by the\n\n128\n\n\x0clegal research platforms are unofficial judgment calls of editors employed\nby the publishers, and so researchers must make their own determinations\nas to how later authorities affect the original opinion being updated.\nOnce a researcher has made an initial determination on the negative\ntreatment, she should then balance it with positive and neutral treatment\nusing the same set of filters. Including an analysis of positive and neutral\nsubsequent treatment can give the researcher a good feel for how\nsubsequent sources tend to follow the original opinion. Comparing the\nnumber of cases, legal specifics, and dates of positive and negative\nsubsequent treatment may help a researcher decide upon which cases to\nrely. After all, some negative treatment is not a disqualifier, especially if\nbalanced with a large amount of positive treatment. Regardless, of the\namount of subsequent treatment, however, researchers must take this step\nbefore relying on a judicial opinion.\n\n6.4\n\nSubsequent Treatment of Statutes and Regulations\n\nCitators also allow researchers to gather subsequent treatment materials for\nstatutes and regulations. While statutes and regulations are not subject to\nthe same level of nuanced treatment as cases\xe2\x80\x94no one distinguishes a\nstatute or regulation; they are either relevant to the facts or not\xe2\x80\x94their\ncontinued validity can still be affected by subsequent events.\nMost obviously, statutes and regulations both face periodic amendment by\ntheir issuing legislatures/agencies. However, since both statutes and\nregulations are published in codes, and codes contain only language\ncurrently in force, researchers generally do not need to take extra steps to\naccount for amendments that have already gone into force. Note, however,\nthat the research platforms will attach yellow caution symbols to code\nsections facing potential amendment, either through an introduced\nlegislative bill or through a proposed rule published in an administrative\nregister. Researchers should pay attention to proposed changes if advising a\nclient on future action, but proposed changes will not affect statutes or\nregulations being used to answer a legal problem stemming from facts that\nhave already occurred.\nIn addition to amending by their issuing bodies, the enforcement of both\nstatutes and regulations may be prohibited by judicial decisions of\ncompetent courts. Courts may hold that statutes that conflict with\nconstitutional principles are unconstitutional. In addition to the\nconstitutional question, federal courts can hold federal regulations to be\n\n129\n\n\x0c\xe2\x80\x9carbitrary and capricious\xe2\x80\x9d and therefore invalid under the Administrative\nProcedure Act.127 State regulations are subject to similar judicial review by\nstate courts. Any of these actions will result in a red warning symbol, and\nresearchers should take care to investigate the symbol fully.\nResearchers can investigate the subsequent treatment of statutes and\nregulations by the same methods as they would cases. However, in doing\nso, researchers should pay particular attention to the dates of the\nsubsequent treatment compared to the dates of amendment of the original\nstatute or regulation. Legislatures and agencies will often (though not\nalways) amend unconstitutional statutes or regulations to comply with court\nrulings. Thus, if the original source has been amended more recently in time\nthan the issuance of the opinion that resulted in the red warning symbol, a\nresearcher should pay close attention to the change in language between the\nnew statutory language and that held to be unconstitutional. This generally\ninvolves a close and detailed reading of multiple versions of the statute or\nregulation and equally close and detailed readings of the opinions\nconstituting the negative treatment.\n\n6.5\n\nCitators as Research Tools\n\nIn addition to allowing researchers to gather an original source\xe2\x80\x99s subsequent\ntreatment, citators allow researchers to find new authorities on point as a\nresearch tool. For instance, if a researcher has found a case on point, she\ncan Shepardize it to gather all the later cases that have cited the original\ncase. Cases generally cite cases with similar issues to the ones they are\nfacing, so this can be an effective way of quickly expanding your research,\nespecially if you use relevant jurisdictional and topical filters. The research\nplatforms also provide \xe2\x80\x9cdepth of treatment\xe2\x80\x9d filters that allow researchers to\nfocus on only those later cases that discuss the original source in depth.\nAdditionally, a researcher can construct her own filter by using the \xe2\x80\x9csearch\nwithin\xe2\x80\x9d box, which allows searching for factual as well as legal terms. Figure\n6.5 demonstrates the use of citators and filters to expand research.\nThe use of citators as a research tool is particularly effective for statutorilycontrolled problems. When applying a statute to a problem, a lawyer will\nsupplement the statutory language with judicial opinions interpreting any\n\nAdministrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as\namended at 5 U.S.C. \xc2\xa7\xc2\xa7 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372,\n7521 (2018)).\n127\n\n130\n\n\x0cambiguities in the statutory language. Any opinion interpreting a statute will\ninvariably cite that statute, so running a statute through a citator will give a\nresearcher the complete universe of cases that have interpreted that\nparticular statute. Researchers can then search within the results for the\nparticular statutory language of interest. This process also works with\nregulations.\n\nFigure 6.5: Using a citator as a research tool on Westlaw\nEdge. Click here for screencast: https://youtu.be/g0ereU2hMk.\n\nThus, electronic citators are powerful tools both for updating sources of\nlaw as well as for conducting additional research. In the next chapter, we\nwill look at other powerful research tools afforded by electronic research\nplatforms.\n\n131\n\n\x0c6.6 Concluding Exercises for Chapter 6\nTry your hand at updating sources of law!\n\n6.6.1 Introductory Exercise on Updating Sources of Law\nDear Team:\nWe have been engaged by the Casablanca Community School District\n(CCSD) in Casablanca, IA to advise them on various legal matters. Recently\nthe CCSD, under the leadership of its superintendent, Dr. Victor Laszlo,\nwith the quiet support of Casablanca mayor, Richard Blaine, adopted an\nofficial policy of allowing students to use restrooms corresponding to\ngender identity and presentation rather than to physical sex at birth. Dr.\nLaszlo subsequently received what appears to be a piece of hate mail from\nHenry Strasser, who has two children attending the district. Apparently,\nStrasser does not want non-birth-gender-conforming students sharing a\nrestroom with either his son or daughter. Amidst the personal threats\ndirected at Dr. Laszlo, Strasser threatened a lawsuit and cited Plessy v.\nFerguson, 163 U.S. 537 (1896).\nWe have referred the personal threats to the Casablanca Police Department\n(Captain Louis Renault of the CPD assured us that Strasser has been on\ntheir radar \xe2\x80\x9cfor quite a while\xe2\x80\x9d), but Dr. Laszlo would like our assurances\nthat the lawsuit would be frivolous. Please run Plessy v. Ferguson through a\ncitator and answer the following questions:\n\xef\x82\xb7\n\nHas Plessy v. Ferguson received negative treatment?\n\n\xef\x82\xb7\n\nHas it received positive treatment?\n\n\xef\x82\xb7\n\nWhen did the positive treatment occur in relation to the negative\ntreatment?\n\n\xef\x82\xb7\n\nIs Plessy v. Ferguson still a valid precedent?\n\nThanks,\nMs. Partner\n\n132\n\n\x0c6.6.2 Intermediate Exercise on Using Citators as Research\nTools\nHello Team:\nWe are representing Mr. Nathaniel Bumppo who is being charged with first\ndegree burglary under KY. REV. STAT. \xc2\xa7 511.020. Mr. Bumppo admits to\nbreaking into Magua\xe2\x80\x99s Diner in Fort William Henry, Kentucky. Apparently,\nMr. Bumppo believed that the proprietor of the diner had assaulted his\ngirlfriend, Cora Munro, and so Mr. Bumppo broke into the diner with a\nhatchet to leave a warning for Mr. Magua to leave Ms. Munro alone.\nHowever, Mr. Bumppo tripped an alarm and was arrested by police at the\nscene while still \xe2\x80\x9carmed\xe2\x80\x9d with the hatchet.\nSince no one was hurt during the break-in, to be convicted under KY. REV.\nSTAT. \xc2\xa7 511.020, Mr. Bumppo will need to have been found by a jury to be\narmed with a deadly weapon. The Commonwealth is alleging that the\nhatchet amounts to a deadly weapon, but I believe this is a misreading of\nthe statute defining deadly weapon in Kentucky, KY. REV. STAT. \xc2\xa7\n500.080(4).\nI would like you to Shepardize the statutes in question to pull all of the\ncases that have interpreted the statutory provisions. Do any of the cases\nrefer to a hatchet, and if so, can it legally be considered a deadly weapon in\nKentucky?\n\nThanks,\nMs. Partner\n\n133\n\n\x0c6.6.3 Advanced Exercise on Using Citators\nOur firm represents Fionn and Siobh\xc3\xa1n \xc3\x93 Br\xc3\xa1daigh, primary shareholders\nof Emerald Herbs, an herbal health supplement shop in southeast\nLexington, KY. Emerald Herbs also features an online retail site and\noperates its own herb-growing facilities. Emerald Herbs is organized as a\nclosely held corporation and employs a total of 56 individuals full-time. The\nherbal supplement business is surprisingly lucrative, and the \xc3\x93 Br\xc3\xa1daighs\nare very good clients of ours. Unfortunately, they are currently locked in a\nlegal dispute.\nIt seems that in addition to working for Emerald Herbs, the majority of\nemployees also belong to the Jessamine Grove of the Reformed Druids of\nNorth America (RDNA), a neo-pagan religious organization. Siobh\xc3\xa1n \xc3\x93\nBr\xc3\xa1daigh, in fact, serves as the Arch-Druid of the Jessamine Grove.\nAmongst the tenets of the Jessamine Grove is that its members are \xe2\x80\x9cto cut\nno living tree.\xe2\x80\x9d This tenet conflicts with a Lexington ordinance requiring\ntrees to be trimmed to 7\xe2\x80\x99 clearance above sidewalks. Several trees in\nEmerald Herbs\xe2\x80\x99 parking lot feature branches that extend to only 5\xe2\x80\x99 above\nthe neighboring sidewalk. Lexington\xe2\x80\x99s authority to create ordinances stems\nfrom the Kentucky legislature through KRS ch. 67A on consolidated urbancounty governments.\n1. A federal law was enacted in 1993, the Religious Freedom Restoration\nAct (RFRA), that was intended to prevent government from passing laws\nsubstantially burdening an individual\xe2\x80\x99s free exercise of religion. Please find\nthe federal statutes comprising the RFRA. Does it currently apply to state\nlaws? Did it ever apply to state laws?\n2. Is the statute you used to answer Q1 still good law? Why or why not?\n3. What are our clients\xe2\x80\x99 chances of successfully using the RFRA to escape\nenforcement of Lexington\xe2\x80\x99s tree ordinance?\n\n134\n\n\x0c6.7 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons touch upon material covered in this chapter. They would\nbe a great place to start for students looking for further practice on the\nconcepts introduced in this chapter!\n6.7.1 \xe2\x80\x9cUpdating/Validating Case Law Using Citators\nSummary: an overview of the use of citators.\nCovers print citators, which were alluded to in this\nchapter, as well as common electronic citators,\nwhich we will cover in Chapter 5.\nURL: http://www.cali.org/lesson/858\n\n6.7.2 \xe2\x80\x9cUsing Citators as Finding Tools\xe2\x80\x9d\nSummary: an overview of how to use citators as a\nresearch tool to find similar authorities to ones\nalready discovered. The lesson covers print citators\nalluded to in this chapter, as well as electronic\ncitators, which we will cover in Chapter 5.\nURL: http://www.cali.org/lesson/8875\n\n135\n\n\x0cChapter 7\n\nAdvanced Electronic\nResearch\nThe good news about computers is that they do\nwhat you tell them to do. The bad news is that they\ndo what you tell them to do. \xe2\x80\x93 Ted Nelson\n\n7.1 Learning Objectives for Chapter 6\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nExplain the function of advanced search operators.\n\n\xef\x82\xb7\n\nAssess the value of using advanced search operators both\nindividually and in combination.\n\n\xef\x82\xb7\n\nConstruct well-tailored searches with terms and connectors.\n\n\xef\x82\xb7\n\nUse the basic processes of online legal research, online finding aids,\nand advanced search operators together for efficient research.\n\n7.2 Importance of Efficient Electronic Research\nThe previous chapters have introduced you to the basics of electronic\nresearch and shown you how to locate primary authorities on legal research\nplatforms. However, to research effectively, knowledge of advanced search\ntechniques and the ability to combine research methods is critical.\nRemember that for any attorney, time equals money. If an attorney spends\ntoo much time researching a single case, that limits the time she can spend\non other aspects of legal practice and the time at her disposal to conduct\nresearch on other cases ongoing simultaneously. Researchers will encounter\ncopious amount of legal information on legal research platforms; using\nvarious research methods and advanced research techniques in conjunction\nwith one another can help target the necessary information more efficiently.\n\n136\n\n\x0c7.3 Advanced Searching\nWhile some basic search operators were described in Chapter 2, full-service\nlegal research platforms have many other operators available. They also\nprovide forms and accompanying commands that allow researchers to\ntarget their search to specific parts of a document. Effective utilization of\nthese methods requires a researcher to have a solid understanding of the\nlegal authorities she is looking for and at least a basic understanding of the\nlegal issue she is researching.\n\n7.3.1 Search Operators\nConnectors and expanders are both categories of advanced search\noperators.128 Connectors alert the research platform that the researcher\nwould like to limit results to pieces of information that contain specific\nsearch criteria; they effectively narrow the search results. The Boolean\noperator AND mentioned in Chapter 2 is a type of connector. Recall that\nAND would be used to specify that two keywords both appear in every\nsearch result. To further narrow the search results, /p could be used\nbetween two terms to tell the research platform that not only would the\nresearcher like the results to contain both terms but that she requires that\nboth terms to occur in the same paragraph.\nWhile connectors work to limit the search results, expanders work to\nbroaden the search results. The Boolean operator OR discussed in Chapter\n2 is a type of expander. On Westlaw Edge, the ! functions as a root\nexpander. This means that a researcher could use an exclamation point to\nretrieve multiple variations of a word that stem from a common root. For\ninstance, searching for the term declar! would return results that begin with\nthe root declar, which would include the following words: declare, declaring,\ndeclarant, declaration, etc. While connectors tend to limit results, expanders\nwill sometimes yield more results but will eliminate the need for multiple\nsearches if searching for a term that exists in multiple variations.\nKeep in mind that when using advanced search operators, the search engine\nwill usually follow your specific commands and only bring back results\n\nLegal researchers may encounter the phrase \xe2\x80\x9cterms and connectors\xe2\x80\x9d when\nconstructing advanced search queries on legal research platforms. Technically, the\nword \xe2\x80\x9cconnectors\xe2\x80\x9d refers to the search operators while \xe2\x80\x9cterms\xe2\x80\x9d refers to the\nresearcher\xe2\x80\x99s individual search terms, but the phrase is often used more generically\nto mean an advanced search.\n128\n\n137\n\n\x0cusing the criteria you specified. This means you must think carefully and\ncritically about the language and operators you utilize in the search query.\nWe are used to relying on search engines to automatically bring us back\nsynonyms and variations of words. However, if you are constructing an\nadvanced search query, you will have to be specific about all the criteria you\nwant your search results to contain.\nOne way to be specific in a search query is to use quotation marks to signal\nthat you want a series of words to be found together in exactly that order.\nFor example, intentional infliction of emotional distress is a specific kind of\ntort. But you can imagine those words being used in a variety of ways in\nlegal documents. So if you only want documents containing that exact\nphrase, rather than all documents that contain those words just somewhere\nin the document, you would use quotation marks to signal that to the search\nengine: \xe2\x80\x9cintentional infliction of emotional distress\xe2\x80\x9d\nDifferent platforms sometimes recognize slightly different operators but\nusually a researcher will be able to find a list of recognized connectors and\nexpanders via a link on the research platform itself. On Westlaw Edge, for\nexample, click \xe2\x80\x9cAdvanced\xe2\x80\x9d below the search button for a list of connectors;\non Lexis+, click \xe2\x80\x9cAdvanced Search\xe2\x80\x9d just below the right end of the search\nbox on the home page. Figure 7.3.1 provides a list of commonly\nrecognized search operators.\nExpert legal researchers will combine search terms, connectors, and\nexpanders into a single search to get a concise list of relevant results. When\nconstructing advanced searches using multiple operators, it is sometimes\nhelpful to break your search query into chunks with parentheses. At one\npoint in time the parentheses were necessary to tell the search engine the\norder in which the operators should be applied (much as parentheses work\nin algebraic equations). Today, legal research platforms no longer need the\nparentheses, but it can be helpful to the researcher to identify visually the\norder in which the operators will be applied.129 For example, if I wanted to\nuse Westlaw Edge to find the Oregon cases in which embryos are discussed\nas property in a divorce, I might craft the following search:\nembryo! /p property /p (divorce OR \xe2\x80\x9cdissolution of marriage\xe2\x80\x9d)\nThe search query above contains a series of operators, as well as four terms\nthat I think are integral to my legal problem. The operator ! after embryo\nRefer to the help documentation on the legal research platforms for more\ninformation about the order of operators.\n129\n\n138\n\n\x0ctells Westlaw Edge that I am interested in results with the term embryo\nwith various endings since I want to retrieve cases that discuss one embryo\nas well as those that discuss multiple embryos. The operator /p tells\nWestlaw Edge that I want the search terms embryo! and property to\nappear in the same paragraph, since if the terms appear in proximity to one\nanother they are probably being discussed in relation to one another. I\xe2\x80\x99ve\nthen specified that I also want in that same paragraph either one of two\nsynonyms for the concept of divorce. I\xe2\x80\x99ve also put the phrase \xe2\x80\x9cdissolution\nof marriage\xe2\x80\x9d in quotes to indicate that I want results with that exact\nphrase, not just the term dissolution appearing in one sentence and the term\nmarriage appearing in a different sentence.130 By using these operators, I\nhave narrowed my results to those likely to address my specific problem,\nthough I will still need to try additional research methods to make sure I\xe2\x80\x99ve\nlocated all the relevant primary authorities.\n\nNotice that I did not include search terms referencing the type of authority\n(cases) or the jurisdiction (Oregon) in the search query since I can use filters\nand/or browsing to more precisely target documents conforming to that criteria.\n130\n\n139\n\n\x0cOperator\nAND\n\nOR\n\nNOT\n\n/s\n\n/p\n\n\xe2\x80\x9c\xe2\x80\x9d\n\n!\n\nEffect\nReturns only documents\ncontaining both terms.\nReturns documents\ncontaining either term.\nOften used with\nsynonyms.\nReturns documents\ncontaining the first term\nbut excludes any\ndocuments that also\ncontain the second.\nReturns documents with\nboth terms in the same\nsentence.\nReturns documents with\nboth terms in the same\nparagraph.\nReturns only documents\nthat contain the entire\nphrase found within the\nquotes.\nRoot expander; will\nreturn documents\ncontaining any variation\nof a root word.\n\nExample\nbudget and deficit\nship or vessel or\nboat\n\napple not fruit\n\nsanction /s\nfrivolous\ncustody /p child\n\n\xe2\x80\x9cattorney of record\xe2\x80\x9d\nacqui!\nFinds acquire,\nacquisition,\nacquiring, etc.\n\nUseful if looking at\nalternate spellings,\nUniversal character; the\ne.g. defen*e if\n*\ncomputer will treat the *\nlooking at both\nas all letters.\nEnglish and\nAmerican cases.\nFigure 7.3.1: Commonly Used Connectors and Expanders\n\n7.3.2 Field Searching\nField searching represents another way to target and limit research results.\nWhen legal research platforms upload authorities to their electronic\nplatforms, they often divide the source document into different segments or\nfields. Researchers may then search each of these fields individually.\n\n140\n\n\x0cDifferent types of authority may contain different fields. On Westlaw Edge,\nfor instance, codified statutes are broken into nine fields: preliminary,\ncaption, preliminary/caption (in other words, the first two fields combined),\ncitation, annotations, credit, statutory text, historical notes, and words &\nphrases (a specific finding aid originally produced as a print publication).\nMeanwhile, the same provider divides published cases into twenty-four\nseparate fields: date, party name, citation, synopsis, digest, synopsis/digest,\njudge, attorney, court name/prelim, docket number, background,\nconcurring, court abbreviation, dissenting, full text, headnote, holding, lead\nnotes, opinions, panel, topic, words & phrases, and written by. Though the\nfields vary, a researcher can use any individual field to increase the precision\nof a search.\nSome of the fields mentioned above correspond to value-added content,\nsuch as headnotes, that Westlaw Edge adds to primary source documents.\nThe replication of these print-based information systems, when combined\nwith the ability to field search, gives legal researchers the ability to narrowly\ntailor their searches to be as precise as possible. For example, if you are\nlooking for cases with specific facts, it might be useful to use the\nsynopsis/digest (aka SyDi) field to search only the Westlaw Edge editorial\ncontent of cases than do a full-text search of cases. Westlaw Edge editors\nwill usually only mention facts related to the legal issues discussed in the\ncase, so a search of that field will eliminate facts mentioned solely as\nbackground or in relation to cases mentioned in passing in the opinion.\nTo conduct a fielded search, a researcher may either enter an advanced\nsearch interface and type terms into the appropriate boxes or add field\ncommands to a hand-crafted advanced search. Different publishers may\ncreate different fields for different types of documents, so you must be\nfamiliar with the fields available on the platform you are using.\nFurthermore, the abbreviated field search commands vary from platform to\nplatform, so it may be a good idea for novice researchers to investigate the\nadvanced search interface or click on a help button when conducting a field\nsearch. Expert researchers often use field searches in combination with\nadvanced search operators. Refer to Figure 7.3.2 for a demonstration.\nFinding out what part of the document each field is referring to can be a\nchallenge. Fortunately, both Westlaw Edge and Lexis+ provide an\nannotated image of each kind of document to tell you which field\ncorresponds with which part of the document. On either platform,\nnavigate to the type of authority you want to research in (e.g. cases or\nstatutes), and then to the advanced search page.\n\n141\n\n\x0cFigure 7.3.2 Field searching in cases in Westlaw Edge.\nClick here for screencast: https://youtu.be/ws0XyOW3ujU\n\n7.4 Combining Process for Efficiency\nWhile a researcher can use any of the processes discussed thus to find at\nleast some relevant results, efficient researchers often combine the\nprocesses to find the most relevant results efficiently. This is true of all\nelectronic information gathering to a certain extent, whether for formal\nresearch or personal use. For example, if I wanted to download a new\nfantasy book to read for some old-fashioned escapism, I might use a variety\nof basic processes on Amazon.com. First, I would browse through\nAmazon\xe2\x80\x99s internal organization to get to Kindle eBooks. Next, I would\nenter a search term, such as \xe2\x80\x9curban fantasy.\xe2\x80\x9d Finally, I would apply a filter\nfor an average customer review of 4 stars or higher (there is a lot of bad\nfantasy out there).\nAs the example above illustrates, web navigation that most people would\nprobably regard as routine regularly combines searching, browsing, and\nfiltering. Of course, the more complex the research task, the more\nimportant it is to research efficiently. Unfortunately for aspiring legal\nresearchers, American law tends to be one of the more complex subjects to\nresearch. Complex subjects often require advanced search techniques, so in\nthe following sections we\xe2\x80\x99ll explore a few ways to combine electronic\nresearch processes and tools described thus far.\n\n142\n\n\x0c7.4.1 Browsing, filtering, and advanced search operators\nBrowsing, filtering, and advanced search operators are frequently employed\nin conjunction with one another. For novice legal researchers learning\nabout various types of authority for the first time, and even for experienced\nresearchers who know exactly what they are looking for, it is sometimes\nhelpful to browse down to the type of authority you are looking for before\nrunning a search. For example, to find case law on Lexis+ to determine\nhow embryos are treated as marital property in divorce proceedings in\nOregon, I would start by browsing to the type of authority \xe2\x80\x93 Cases.131 From\nthis screen, I would construct a well-formed advanced search, previously\nidentified in 7.3.1:\nembryo! /p property /p (divorce OR \xe2\x80\x9cdissolution of marriage\xe2\x80\x9d)\nThis well-crafted search yields a workable number of cases, but for good\nmeasure I would add filters for more precise results. Specifically, I would\napply the publication status filter so that I am only viewing reported cases,\nand then the jurisdiction filter to specify only Oregon cases. Between these\ntwo filters I have limited myself to only one mandatory case. After I read\nthe controlling case, I can always expand my research to persuasive cases by\nremoving filters.\n\nFig. 7.4.1 Browsing, filtering, and advanced search\noperators in Lexis+TM. Click here for screencast:\nhttps://youtu.be/Pa-sJnK6b9Y. Reprinted from\nLexisNexis with permission. Copyright 2021 LexisNexis.\nAll rights reserved.\n\nI could accomplish the same goal by running a search and then using the\nappropriate filter, but this order focuses the researcher\xe2\x80\x99s attention on only the\ndesired type of authorities.\n131\n\n143\n\n\x0c7.4.2 Advanced searching within citing references\nIn Chapter 6, Figure 6.5, we looked at an example using the citing\nreferences to the Howes v. Fields, 565 U.S. 499 (2012) opinion to narrow in\non cases regarding the legal issue of whether an individual was in custody\nfor purposes of needing a Fifth Amendment Miranda warning. This video\nis a good example of combining research processes using citing references\nand filtering by jurisdiction and legal topic. At the end of the video, we\nused the search within filter to narrow the citing cases to specific type of\nfact that we were looking for. However, we can use advanced search\noperators here as well to broaden or narrow that search. For example, we\nmight want to make sure that we are finding mentions of home specifically\nin relation to the concept of custody, so we might search within using an\nadvanced search of home /p custody. This would help exclude cases\nwhere the term home was merely mentioned as part of the background facts\nof the case rather than in relation to the legal issue. Alternatively, if we\nwanted to be sure we were being thorough in our coverage of synonyms in\nthe search query, we might use home OR hous! OR apartment. The !\ncovers variations of words beginning with hous, such as house or housing,\nwhile the OR encompasses synonyms of home. And we could combine the\ntwo search queries just mentioned to be even more precise:\n(home OR hous! OR apartment) /p custody\n\n7.4.3 Advanced search operators with key numbers or Lexis\nTopic\nIn Chapter 4, we discussed how to use the key number system on Westlaw\nEdge to pull up a list of cases related to a specific key number. Recall that\neach key number corresponds to a specific legal issue. However, it may be\nthat within a listing of cases under a specific key number, a researcher\nwould want to run a keyword search for an opinion with particular facts.\nUnfortunately, when we are on a key number page, neither the search bar at\nleft nor the one at the top of the page searches the full text of the opinions\nlisted on the page; these search boxes only search the headnote summaries\nlisted on the page. To search the full text of opinions within a specific key\nnumber, we can use the key number itself as a search term.\nFor example, the key number that relates to the legal concept of what\nconstitutes custody for the purposes of needing a 5th Amendment Miranda\nwarning is Criminal Law k411.21. The topic of Criminal Law also has a\nnumber \xe2\x80\x93 110. That means we can write the key number using almost\n\n144\n\n\x0centirely numbers \xe2\x80\x93 110k411.21 \xe2\x80\x93 which makes it easier to use as a search\nterm. The key number then functions as a stand-in for the legal issue in our\nsearch query. If we were interested in cases discussing the legal concept of\nwhat situations constitutes custody in which a person was located in their\nhome, you might construct the following:\n110k411.21 & (home OR hous! OR apartment)\n\nFigure 7.4.3a Using key numbers as a search term in\nWestlaw Edge. Click here for screencast:\nhttps://youtu.be/zzI6bXCU9t8\n\nLexis Topics makes this process easier. If we look at the headnotes to a\ncase related to the legal issue, such as Howes, we can find the Lexis Topic\nCriminal Law & Procedure>\xe2\x80\xa6>Miranda Rights>Self-Incrimination\n\n145\n\n\x0cPrivilege>Custodial\nInterrogation.132\nBy\nclicking\non\nthe\ntriangle/arrowhead next to the topic, we get a dropdown where we can\nselect \xe2\x80\x9cGet Documents\xe2\x80\x9d to take us to a list of all cases related to that legal\ntopic (see the screenshot in Figure 7.4.3b). From the legal topic page, we\ncan run a full-text search of those documents using the search within filter\non the left side of the page. However, note that Lexis Topics are often\nbroader than key numbers. This Topic is combining the more specific legal\ntopics of custody and interrogation, which means there will be more cases\nassociated with it, so you might need to craft a more specific search query\nto effectively limit your results.\n\nFigure 7.4.3b Screenshot of Headnote 5 of Howes v.\nFields, 565 U.S. 499 (2012) in Lexis+TM and its\nassociated Lexis Topics. Reprinted from LexisNexis with\npermission. Copyright 2021 LexisNexis. All rights reserved.\n\n7.5 Limitations to Electronic Research\nThe shift from research being conducted in print to being conducted via\ncomputers was \xe2\x80\x93 and continues to be \xe2\x80\x93 a game changer for conducting\nresearch of any kind. However, it is not without its limitations. Many of\nthe high-end legal research platforms charge for their content via cable-like\nsubscription packages.133 For example, an attorney at a small firm in Ohio\nmay pay for access on Lexis+ to Ohio state primary authorities and statespecific secondary authorities. If, however, his long-time client has a case\nwhere Kentucky state law applies, he may have to either pay to access\ndocuments outside his subscription on Lexis+, use free resources or budget\n\nThe ellipses mean that there are more subtopics that have been omitted here\nfor the sake of length.\n132\n\nWhenever you first start using electronic research platforms at your place of\nemployment, ask about how organization is billed for using them. Some\nplatforms charge by each search run or each document accessed rather than a\nsubscription model, and there are other billing variations, so inquire before you\ninadvertently run up a bill of hundreds or even thousands of dollars.\n133\n\n146\n\n\x0clegal platforms to supplement his pricier Lexis+ subscription, or go to a\nnearby county or academic law library to access their print materials or\nelectronic subscriptions.\nAnother limitation to electronic research is that not all information that was\noriginally published in print has been digitized. As an example, if you are\ntrying to complete a legislative history of a statute that was originally\nenacted in the 1960s, such documents may not have been digitized and may\nrequire contacting a government agency or library for access to print\nmaterials. Or if you are trying to track down a secondary source cited in a\ncase from the 1980s, many of those have not been digitized and may\nrequire that you track down a print copy of the book.\nEven if a document was initially created electronically, it may not have been\nmade available for purchase or to the public in any form. You may need to\ncontact administrative agencies for an internal document or a court for a\nspecific court filing. The publisher of a secondary source may make it\navailable for purchase but only in print form, or they may make it available\nin electronic form but not license the content to a platform that you\nsubscribe to, so it would be an additional cost to access.\n\n147\n\n\x0c7.6 Concluding Exercises for Chapter 7\nHone your skills by completing the following exercises on all the legal\nresearch platforms available to you.\n\n7.6.1 Introductory Exercise on Electronic Research\n1. Find the United States Supreme Court case in which Justice\nJackson argued that, \xe2\x80\x9cCompulsory unification of opinion achieves\nonly the unanimity of the graveyard.\xe2\x80\x9d\n2. Find a 1971 case in which Satan was sued in federal court.\n3. Find a pre-1990 Massachusetts case in which a goldfish is\nconsidered an \xe2\x80\x9canimal\xe2\x80\x9d for the purposes of enforcing a statute.\n4. Find a 5th Circuit Court of Appeals Case from December 2010\nregarding identity theft.\n\n7.6.2 Intermediate Exercise on Electronic Research\nAgainst your better judgment, shortly after graduating and passing the\nKentucky bar, a heretofore slacker friend of yours, Joe Stoner, convinces\nyou to sign on as General Counsel for his newly formed video game\ndevelopment company, Rockabilly Star Games, incorporated in South\nDakota. Honestly, you just agreed to be G.C. to stop Joe from pestering\nyou while you looked for a more legitimate job. You never expected him\nactually to produce a single game. Contrary to your expectations, however,\nJoe has found his true calling in life and is nearing launch of the\ncompany\xe2\x80\x99s new centerpiece, Mary Jane\xe2\x80\x99s Marauding Moppets, in which\npuppet-like, anthropomorphic versions of common woodland animals\nengage in the illicit marijuana trade. (Some of the challenges of the game\ninclude: a mini-game on DEA Dodging, a social-networking style minigame on Crop Watering/Farm simulation, and a supply and demand\nbusiness distribution simulator. Joe swears the game will \xe2\x80\x9clike, destroy\npreconceived notions of genre, man.\xe2\x80\x9d) Rockabilly Star Games is also\noffering a limited edition of the game that ships with a hollow, ceramic\nfigurine of one of the woodland animal characters. The figurines look\nsuspiciously like bongs. You decide that as General Counsel, you had\nbetter do some research.\n\n148\n\n\x0c1. Find a United States Supreme Court case from 2011 that struck\ndown a California law regulating the sale of violent video games\non First Amendment grounds.\na.\n\nHas it received any negative treatment? Describe that\ntreatment in general terms.\n\nb. Has any South Dakota state court decision cited this\ncase?\n2. Find the U.S.C. provision prohibiting the sale of drug\nparaphernalia.\na.\n\nDo you see anything that might affect the validity of this\nstatute?\n\nb. Have there been any federal cases in the 8th Circuit Court\nof Appeals that discuss this statute?\n\n7.6.3 Advanced Exercise on Electronic Research\nWe represent Mr. Cobain, a resident of Seattle, WA. Mr. Cobain was\nconvicted of second degree assault by King County Superior Court\nfollowing an incident in which Mr. Cobain confronted his neighbor Mr.\nVedder.\nMr. Cobain and Mr. Vedder have a history of minor confrontations\nmostly stemming from noise complaints, as Mr. Vedder has often\ncomplained of sounds of domestic disputes emanating from Mr.\nCobain\xe2\x80\x99s residence. In the incident that led to Mr. Cobain\xe2\x80\x99s conviction,\nMr. Cobain had been arguing with his girlfriend, Ms. Love, when Mr.\nVedder belligerently approached Mr. Cobain\xe2\x80\x99s residence, banged on his\ndoor, and screamed, \xe2\x80\x9cEnough with this racket! Come out here and I\xe2\x80\x99ll\nshow you who the better man is!\xe2\x80\x9d Accompanying Mr. Vedder was his\ndog, a boxer-mix named Jeremy.\nFollowing Mr. Vedder\xe2\x80\x99s intervention, Mr. Cobain opened his door and\nnoted Mr. Vedder\xe2\x80\x99s aggressive posture and the presence of Jeremy, who\nwas now growling. Mr. Cobain then called for his dog Polly to come to\nhis aid. Polly, a Giant Schnauzer weighing approximately 100 lbs.,\nbounded down the stairs (she had been upstairs in the bath having\nearlier become doused in mud, which was the source of the argument\n\n149\n\n\x0cbetween Mr. Cobain and Ms. Love) and launched herself at Mr. Vedder,\nwho turned and ran back to his house. Jeremy was able to slow Polly\ndown enough to enable Mr. Vedder to escape unscathed, though\neventually Jeremy too fled before the Schnauzer\xe2\x80\x99s wrath.\nDespite the fact that Mr. Vedder suffered no physical injuries, he\npressed charges against Mr. Cobain for assault, and Mr. Cobain was\nconvicted of second degree assault on the theory that he used Polly as a\nweapon. During trial, we introduced evidence that Mr. Cobain only\ncalled Polly in self-defense, but the judge did not allow a self-defense\ninstruction to go to the jury. We are appealing Mr. Cobain\xe2\x80\x99s conviction\nto the Washington Court of Appeals, Division 1, and I need you to do\nthe following, using an electronic search platform of your choice:\n1. Find the Washington statute that criminalizes assault in the\nsecond degree. Does the statute expressly state that the victim\nneeds to suffer physical harm if a weapon is used?\n2. Find the definitions section for Washington\xe2\x80\x99s criminal code.\nWhat is the statutory definition of the weapon called for by the\nstatute on assault in the second degree?\n3. Have there been any reported cases interpreting the definitions\nstatute you found that hold that a dog can be a weapon for\npurposes of the statute(s)?\n4. Have any binding Washington state cases addressed the issue as\nto whether a defendant is entitled to a jury instruction on selfdefense due to the presence of the victim\xe2\x80\x99s dog? Make sure you\nonly look at cases that have occurred since 1975 (when\nWashington adopted its current criminal code).\n5. Based on what you have found so far, do you think it likely that\nwe will be able to have Mr. Cobain\xe2\x80\x99s conviction overturned?\nSupport your answer with citations to authority.\nThanks,\nMs. Partner\n\n150\n\n\x0c7.7 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on electronic research touch upon material covered in this\nchapter. They would be a great place to start for students looking for\nfurther practice on the concepts introduced in this chapter!\n\n7.7.1 \xe2\x80\x9cIntroduction to Search Logic and Strategies\xe2\x80\x9d\nSummary: an introduction to searching and using\nsearch operators.\nURL: http://www.cali.org/lesson/1121\n\n7.7.2 \xe2\x80\x9cCost of Legal Research\xe2\x80\x9d\nSummary: an introduction to the costs associated\nwith using full-service legal search providers and\nstrategies that can be used to mitigate those costs.\nURL: http://www.cali.org/lesson/1065\n\n7.7.3 \xe2\x80\x9cInternet Legal Resources \xe2\x80\x93 Free Resources\xe2\x80\x9d\nSummary: an introduction to free electronic legal\nresources available outside of the major legal\nresearch platforms.\nURL: http://www.cali.org/lesson/856\n\n7.7.4 \xe2\x80\x9cEvaluating Web Sites\xe2\x80\x9d\nSummary: provides a practical framework for\nimproving information literacy, especially as it relates\nto sites on the open web.\nURL: http://www.cali.org/lesson/817\n\n7.7.5 \xe2\x80\x9cThe Legal Research Game: Fee or Free Edition\xe2\x80\x9d\nSummary: focuses on the decisions you may need\nto make when choosing between print, free web, and\nfee-based electronic databases.\nURL: https://www.cali.org/lesson/1211\n\n151\n\n\x0cChapter 8\n\nSecondary Sources\nIf I have seen farther, it is by standing on the\nshoulders of giants. \xe2\x80\x93 Sir Isaac Newton\n\n8.1 Learning Objectives for Chapter 8\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nDescribe various types of secondary sources.\n\n\xef\x82\xb7\n\nAssess when to use a general secondary source vs. an in-depth,\ntopical secondary source.\n\n\xef\x82\xb7\n\nFind an appropriate secondary source for any discrete legal issue.\n\n\xef\x82\xb7\n\nUse secondary sources in print or online to research a specific\nlegal issue.\n\n152\n\n\x0c8.2 Overview of Legal Secondary Sources\nThis text has so far discussed primary legal authorities and the methods for\nlocating them. Now we turn our attention to secondary authorities, also\ncalled secondary sources, which are the sources researchers often use to\nbegin their research. Legal secondary sources are texts that provide\ncommentary and analysis of the law for the benefit of the reader. Secondary\nsources come in a variety of forms; they can be general or detailed, cover a\nspecific jurisdiction, and they are written for a wide range of audiences.\nDifferent secondary sources may be employed at different stages of the\nresearch process; the choice of secondary source may also rest on the\nresearcher\xe2\x80\x99s prior knowledge of the topic. This chapter will describe the\nmost common types of secondary sources the researcher is likely to\nencounter, when they should (and should not) be used, and a variety of\nmethods for locating them.\n\n8.2.1 Common Types of Secondary Sources\nLaw students and aspiring legal researches will likely encounter a broad\nrange of secondary sources. In the following sections, we briefly describe\nsome of the common types of secondary sources used by legal researchers.\nFigure 8.2.1 provides a quick-glance summary of the strengths and\nweaknesses of each type of secondary source described.\n\n153\n\n\x0cSecondary Source\n\nAdvantages & Disadvantages\n\nLegal encyclopedias\n\nMore breadth and less depth; a very general\nintroduction to many legal topics. Low\ncitability.\n\nPractice Series &\nMaterials\n\nBreadth and depth vary by source, as does the\namount of commentary. Citability thus varies;\ntypically low. Useful in jurisdiction-specific\nresearch.\n\nAmerican Law\nReports (ALRs)\n\nMore breadth and less depth; annotations\ncontain summary but not analysis. Useful to\nstart research on narrow topics and for\njurisdictional comparisons. Low citability.\n\nRestatements\n\nHighly credible and thus highly citable. Indepth coverage on areas of traditional common\nlaw.\n\nModel Codes &\nUniform Acts\n\nFocus on areas governed by statutory law and\nprovide extensive annotations to relevant\ncaselaw.\n\nTreatises\n\nTreats a subject in depth but breadth varies.\nCitability sometimes high but varies depending\non the reputation of the treatise.\n\nForm books\n\nUseful for identifying the pieces necessary to a\ntype of legal document.\n\nLaw Review &\nJournal Articles.\n\nIn-depth treatment on a narrow area of law; not\nupdated once published. Quality and thus\ncitability varies.\n\nFigure 8.2.1: An Overview of Secondary Source Types\n\n8.2.1.1 Legal Encyclopedias\nLegal encyclopedias are the most general of secondary sources. They have\nmore breadth than depth and so can provide an introduction to a wide\nrange of legal topics. If the researcher is unfamiliar with an area of law and\nneeds a list of the major primary authorities in the area as a starting point\nfor further research on the issue, legal encyclopedias are a solid place for\nhim to begin his research. They are, as one would expect from the term\n\n154\n\n\x0c\xe2\x80\x9cencyclopedia,\xe2\x80\x9d organized alphabetically by topic. American Jurisprudence 2d\n(Am. Jur. 2d) and the Corpus Juris Secundum (C.J.S.) are two of the most\nwidely known legal encyclopedias. Some states have jurisdiction-specific\nlegal encyclopedias, such as Ohio Jurisprudence 3d.\n\n8.2.1.2 Practice Series & Practice Materials\nPractice series resemble legal encyclopedias in that they cover a variety of\nlegal topics, though perhaps not as many as a legal encyclopedia, and they\ntend to be jurisdiction-specific. They are usually written by practitioners or\nscholars specializing in that jurisdiction and may contain descriptions of\nthe current state of the law, some analysis of the law, and possibly forms\nrelating to a particular topic. They tend to be organized by topic and can\nbe one volume or many.\nOther practice materials may be form books, discussed further in section\n6.2.1.7, or process-oriented guides as to how litigation on a topic normally\nproceeds. Materials in the latter category may explain how litigation on a\ntopic proceeds and the court filings and documentation typically seen in\nsuch cases.\nPractice series and other practice-oriented materials can sometimes\nresemble treatises in their depth of coverage on specific topics. In fact,\nwhether an item should be deemed a \xe2\x80\x9ctreatise\xe2\x80\x9d or a \xe2\x80\x9cpractice material\xe2\x80\x9d can\nbe a gray area, and these sources are often found using similar methods that\nwill be discussed later in this chapter.\n\n8.2.1.3 American Law Reports (ALRs)\nThe American Law Reports is a set of hundreds of volumes which are filled\nwith articles called \xe2\x80\x9cannotations.\xe2\x80\x9d ALRs provide an odd combination of\nbreadth and depth; the number of topics covered is vast but those topics\nare much more specific than those in an encyclopedia. The annotations\nsummarize caselaw on those narrow topics across jurisdictions; the\nfunction is more of a report on the current state of the law rather than an\nanalysis of the law as one would find in a topical treatise. Each annotation\ncontains a table of the relevant primary authorities described in the\nannotation organized by jurisdiction which can be a quick reference for\nfinding primary authorities on that topic across jurisdictions. There are six\nseries of the ALRs covering state law, the most recent being the ALR 6th.\nThe ALR Federal covers federal topics and is on its second series.\n\n155\n\n\x0c8.2.1.4 Restatements & Principles of Law\nRestatements are publications by the American Law Institute (ALI) that\nclarify and organize the existing state of caselaw on a given topic, or, in\nother words, restate the law. The restatements contain analysis on an area\nof law, summarize and refer to caselaw across jurisdictions, and may offer\nsuggestions on how the legal system could clarify an area of law going\nforward.\nBecause the ALI is composed of a large number of legal scholars and\npractitioners who are the experts in their fields, the restatements are\ngenerally considered to be among the most persuasive of the secondary\nsources of law. In fact, they are often cited by judicial opinions,\nparticularly when there is no binding authority on point.\nMany of the restatements are on their third series and are published by\ntopic. Some of the more well-known restatements are those covering the\nlaws of agency, contracts, property, torts, trusts, and unfair competition. A\ncomplete list of topics may be found on the ALI website.\nThe ALI also publishes recommendations on areas of the law that need to\nbe updated; these publications are called \xe2\x80\x9cPrinciples\xe2\x80\x9d and cover a wide\nvariety of legal topics. These can be useful to a practitioner looking for\nguidance on how to present to the court on an area of unsettled or outdated\nlaw.\n\n8.2.1.5 Model Codes & Uniform Acts\nThe ALI and the Uniform Law Commission both publish model codes and\nuniform acts to advocate standards or to improve organization in certain\nareas of the law. Just as the name implies, these publications are written in\nthe form of model statutes that jurisdictions can adopt in part or whole into\ntheir own statutory codes. Examples that are familiar to first year law\nstudents are the Uniform Commercial Code and the Model Penal Code; a full\nlisting can be seen on the Uniform Law Commission website and the ALI\nwebsite. These publications contain annotations detailing how these model\nstatutes have been adopted and implemented in various jurisdictions and\nthus can be a rich source of primary authority for a researcher.\n\n156\n\n\x0c8.2.1.6 Treatises\nTreatises are comprehensive texts on a narrow legal subject. They\ngenerally provide much more discussion and analysis of the legal topic\nthan a legal encyclopedia or ALR annotation while also leading the\nresearcher to primary authorities through references and citations. They\nmay or may not be jurisdiction-specific and can vary in length from one to\ndozens of volumes.\nTreatises are often named after their authors, e.g., Nimmer on Copyright,\nFarnsworth on Contracts. Some treatises are highly reputable in a given field,\nbut the quality can run the gamut. Consulting a subject-specific research\nguide or a research expert may be the quickest method to locate the most\ncredible title for a specific legal topic.\n\n8.2.1.7 Form Books\nWhile each legal problem is distinct and each client unique, often the\noutput of legal practice takes standardized forms. For instance, partnership\nagreements, while differing in the details, are generally structured in the\nsame way. On the litigation side, while motions will employ unique\narguments depending on the circumstances, the motions themselves will\nfollow a standard format. Thus, one of the more useful types of secondary\nsource in practice are form books, which publish blank templates or forms\nthat lawyers can use in crafting their own legal documents. Usually, some\nexplanatory text, similar to what you would see in a treatise, accompanies\nthe templates.\nForm books may be either jurisdiction specific or neutral; they may also be\ntopical specific or cover a wide variety of subjects. West\xe2\x80\x99s Legal Forms is an\nexample of a general, jurisdiction-neutral form set. Published sets of pattern\njury instructions, on the other hand, are topically specific and are often\npublished for specific jurisdictions.\n\n8.2.1.8 Law Reviews & Journals\nLaw reviews and journals contain scholarly articles primarily written by law\nprofessors on various specialized areas of law. Journals are published\nperiodically and may contain articles on a particular subject area (e.g. Harvard\nJournal on Racial and Ethnic Justice) or articles in a wide variety of subjects (e.g.\nHarvard Law Review). Individual articles, however, usually address a very\nnarrow area of the law. Furthermore, journal articles tend to focus on\n\n157\n\n\x0cunderdeveloped or rarely-visited areas of the law and thus often contain\ninformation not found elsewhere. For this reason, they can be a rich\nresource for identifying not only relevant primary authority on that narrow\ntopic but also secondary authorities on point. For the same reason, they are\noccasionally cited as persuasive authority by judicial opinions.\nFrom a jurisdiction perspective, journals function differently from other\nsecondary sources. E.g., if you saw the title Ohio Jurisprudence 3d, and noted\nits similarity to the American Jurisprudence 2d, you might correctly assume that\nthis is a legal encyclopedia focusing on issues of Ohio law. However, the\nsame assumption cannot be made of the Ohio State Law Review. Law reviews\nand journals named after a state school are generally not jurisdiction\nspecific. E.g., the Ohio State Law Review refers less to the jurisdictions\ncovered by the articles it contains than the name of the school it is affiliated\nwith, which means it will include articles covering the law of a wide variety\nof jurisdictions. That said, articles related to a specific state\xe2\x80\x99s law are more\noften found in journals from that state than from any other state.\n\n8.2.2 Uses of Secondary Sources\nAs indicated above, different secondary sources are employed for different\nresearch scenarios. Typically the researcher will use a secondary source to\neducate himself on an unfamiliar area of law, unfamiliar jurisdiction, or as\na method to quickly identify relevant primary authorities on a given topic.\nSections 8.2.2.1 and 8.2.2.2 address these uses in more detail.\nWhile secondary sources are extremely useful tools for the research\nprocess, the researcher will not ordinarily cite to them in formal\nmemorandums or court documents. He should never rely on a secondary\nsource\xe2\x80\x99s analysis of a primary authority; he must always review the primary\nauthorities and conduct his own analysis relative to the specific facts of the\nlegal issue that he is researching. Additionally, some areas of the law\nchange rapidly and secondary sources vary widely in their currency; a\nresearcher will always need to perform additional research to make sure he\nis working with the most recent primary authorities on the issue. There\nare, however, exceptions to every rule, and section 6.2.2.3 describes\nscenarios in which citing to secondary authorities may be appropriate.\n\n158\n\n\x0c8.2.2.1 For an Overview\nA researcher may need to consult a secondary resource for an overview of\nan unfamiliar area of law, of an unfamiliar jurisdiction, or of an\noverdeveloped area of law.\nWhen researching an unfamiliar area of law or jurisdiction, a secondary\nsource will give the researcher a quick overview of the state of the law in a\nspecific legal area or in a specific jurisdiction. For an unfamiliar area of law,\na general resource such as a legal encyclopedia may be the best place to\nstart; once the researcher has a basic introduction, he may move on to a\ntreatise or practice guide. A jurisdiction-specific legal encyclopedia would be\nbeneficial for the researcher working with the law in a state in which he\ndoes not typically practice. A jurisdiction-specific practice series may be\nbeneficial both for gaining an understanding of the topic in the researcher\xe2\x80\x99s\nhome jurisdiction, or he may want to identify a practice series in a new\njurisdiction to see how it differs from his.\nWhen researching in an overdeveloped area of the law, the researcher may\nfind that he is overwhelmed by the number of primary authorities available\non a particular topic. Separating the most relevant authorities from the\nmultitude can be a time-consuming process, but a topic-specific secondary\nsource may give the researcher a head start. A treatise on the topic will\nhighlight the most important primary authorities in a given area, saving the\nresearcher the time of identifying them himself.\nIn any of the above scenarios, the secondary source will also yield another\nimportant resource: relevant terminology to the topic. A different\njurisdiction may use legal phrases to which the researcher is unaccustomed;\nan unfamiliar or overdeveloped area of law may have sub-topics or\nconcepts previously unknown to him. The secondary materials will help the\nresearcher grasp the appropriate terminology and concepts. Armed with the\nappropriate vocabulary, he can then pursue primary authorities using the\nmethods described in earlier chapters.\n\n8.2.2.2 As a Pathfinder\nOne of the most useful features of secondary sources is that they direct\nresearchers to primary authorities, and sometimes other secondary\nauthorities, on the topic. An ALR article may summarize cases on a narrow\ntopic across jurisdictions; a treatise will not only summarize the cases but\nprovide detailed analysis of opinions on a particular legal issue; a\n\n159\n\n\x0cjurisdiction-specific practice series will highlight the critical cases on the\ntopic in that state. For underdeveloped areas of law, a scholarly article on\npoint can direct the researcher to a wealth of excellent materials. That\nscholar has likely performed months, if not years, of research, identified the\nmost relevant primary authorities, and consulted the most authoritative\nsecondary sources on the topic.\n\n8.2.2.3 To Cite as Persuasive Authority\nThere are scenarios in which it is appropriate to cite to persuasive authority\nin your legal writing. Typically, this occurs in areas of law that are either\nunderdeveloped or overdeveloped.\nWhen an area of law is overdeveloped, the amount of relevant primary\nauthority to be found can be staggering. It may be difficult to narrow down\nthe appropriate cases to cite to support a particular legal proposition. In\nsuch a scenario, it may be prudent to cite a Restatement instead of\nhundreds of cases that have developed a particular proposition. If that\nRestatement is cited in precedent from your jurisdiction, it is an indication\nthat it may be appropriate to use it for the same purpose. Some treatises are\nheld in similarly high regard and used in a similar manner.\nCiting to secondary authority may also be appropriate in the opposite\nscenario: when an area of law is new or underdeveloped in a particular\njurisdiction. Persuasive authorities, including secondary sources, are used\nmore often when primary authorities on point are scarce. If your legal\nproblem is a case of first impression in a jurisdiction, i.e. there are no\nprecedents, a suggestion from a law review article or a restatement on how\nto resolve the issue may be suitable.\n\n8.3 Researching Secondary Sources\nNow let us turn to how legal researchers find and utilize secondary\nsources. Keep in mind that different research platforms will contain\ndifferent selections of secondary source depending on what publishing\ncompanies it has acquired over the decades or what companies it licenses\ncontent from. E.g. while Westlaw Edge and Lexis+ may both have\ntreatises on copyright, they will probably not have the same titles.\nHowever, both platforms contain American Jurisprudence 2d, American Law\nReports, and similar sets of law journals and reviews. At the state level, the\nsecondary sources available on each platform are likely to differ quite\n\n160\n\n\x0csignificantly. This mean if you subscribe to Lexis+, you may have print\ncopies of state-specific secondary sources in your office that are only\navailable electronically on Westlaw Edge. We will start with describing\ngeneral principles for finding secondary sources on research platforms\nbefore turning to print.\n\n8.3.1 Finding an Appropriate Secondary Source\nBecause secondary sources vary widely in type and format, and often have\nsimilar or nondescript titles, finding an appropriate source for the legal issue\nat hand can be challenging. Ideally the researcher will want to start with a\nresource that identifies secondary sources by topic, type, or both.\n\n8.3.1.1 Browsing by Topic or Jurisdiction on a Full-Service\nLegal Information Platform\nSome online legal research platforms, such as Bloomberg Law, Westlaw\nEdge, or Lexis+, allow the researcher to browse their secondary resources\nby topic and perhaps the types of secondary sources on that topic. Such\ncategorization may be broad or narrow. For example, one platform may\nhave a single category for Intellectual Property, while another may further\nsub-divide that subject area into Copyright, Unfair Competition,\nTrademarks, and Patents.\nSome platforms will also allow the researcher to browse the secondary\nsources available that relate to a specific jurisdiction. On Lexis+, the\nBrowse Sources screen (accessed via the Sources option located in the\nhome page Explore box) provides filters to narrow the list of titles by\ncategory or type of resource, jurisdiction, and practice areas and topics.\nThese filters are indicated by arrows in Figure 8.3.1.1.\n\n161\n\n\x0cFigure 8.3.1.1: Filters for Narrowing Sources in Lexis+TM.\nReprinted from LexisNexis with permission. Copyright 2021\nLexisNexis. All rights reserved.\n\nOnce the researcher has browsed and narrowed down the platform\xe2\x80\x99s\nsecondary sources to those on a particular topic, he can either use the\nfinding aids to work with a specific source or use the standard search\ntechniques to search across the topical sources.\nThe secondary sources available on the three major legal research\nplatforms vary widely as they each produce, or own publishers that\nproduce, different titles. Some major titles (e.g. ALRs, Restatements) are\navailable on multiple platforms due to licensing arrangements, but specific\ntreatises and practice materials typically are not. If a researcher has access\n\n162\n\n\x0cto more than platform, he may need to check more than one to find\nappropriate secondary sources on point.\n\n8.3.1.2 Online Catalogs\nOnline catalogs are another starting point for finding both print and\nelectronic resources on point. For law students, the law school library will\nhave an online catalog containing records of its print and electronic\nresources. Most importantly, each record will have one or more Library of\nCongress subject headings associated with it. The researcher can search\nthe subject headings directly in a fielded search, or he can search the\ncatalog by keyword and then browse the subject headings found on\nrecords that appear to be relevant. Records for print resources will provide\nhim with call numbers for locating the item in the library\xe2\x80\x99s physical\ncollection; records for electronic resources will contain links directly to the\nresource online.\nThese catalogs can be useful for practitioners as well. A law firm may have\nits own catalog the researcher can use as a starting place to identify\nresources held by your firm. If an organization does not have its own\ncatalog, researchers can use collaborative catalogs such as Worldcat to\nidentify resources. Because libraries from all over the world contribute their\nrecords to Worldcat, it can be an excellent starting point to identify the\nworld of resources available on a given topic. A researcher may then check\nto see if his organization has access to those resources or use Worldcat to\nidentify the libraries nearby that may provide access to those resources.\n\nFigure 8.3.1.2: Using Worldcat to find a Treatise. Click here\nfor screencast: http://youtu.be/jPzthzsGyxk\n\n163\n\n\x0c8.3.1.3 Online Research Guides\nAnother excellent starting point for finding topical secondary resources are\nresearch guides created by law librarians. Most university law libraries\nfeature designated webpages to guide researchers to the items in the\nlibrary\xe2\x80\x99s collection relating to particular legal subjects. These guides may\nidentify the most highly-regarded secondary sources on topic, give\ninstructions for how to use particular resources, and discuss methods for\nfurther research for primary and secondary authorities on point.\nThere are a few ways to find these online research guides. One strategy\nwould be to look at the law library websites for the law schools in the\njurisdiction in which you are researching. Those websites will list their\nresearch guides and may well provide jurisdiction-specific information.\nAnother strategy would be to utilize Google or another web search engine\nto search research guides across institutions. By using the site:.edu search\noperator on Google, you may restrict your search query to look only at\neducational websites. If you include the legal topic you are researching and\nthe term \xe2\x80\x9clegal research,\xe2\x80\x9d the search results will primarily be from research\nguides developed by law school librarians. For instance, the following\nsearch will return librarian-produced research guides that will lead\nresearchers to products liability treatises:\nsite:.edu AND \xe2\x80\x9cproducts liability\xe2\x80\x9d AND \xe2\x80\x9clegal research\xe2\x80\x9d\nOf course, if you have access to one, even better than consulting a librarianproduced research guide would be consulting an actual librarian.\n\n8.3.1.4 Asking a Reference Librarian or an Information\nProfessional\nIn the current era, so much information is available in just a few clicks\nonline we sometimes forget that asking a knowledgeable individual for\nassistance remains an option. However, as many of the strategies discussed\nin this book indicate, the amount of information that is a few clicks away\ncan be the problem. Asking a reference librarian or another individual,\nsuch as a practicing attorney, knowledgeable about the area in which the\nresearcher is investigating is sometimes the quickest way to find relevant\nmaterials on point. Reference librarians are the people most familiar with\ntheir collections, whether that be a law school library or the library of a\nprivate organization. They are experts in utilizing many of the systems\ndescribed in this text and those specific to their own institutions. Their\n\n164\n\n\x0cjobs are not only to be familiar with those systems and resources but also\nto help others navigate them. If the researcher is unsure of where to begin\nhis research or has reached a roadblock after pursuing a variety of leads, a\nreference librarian, an attorney specializing in that area of law, or other\nlegal information specialist may be able to guide him to resources to\npropel him forward.\n\n8.3.2 Using Secondary Sources in Print\nLike codes, secondary sources tend to possess an inherent topical\norganization. Thus, expert researchers often find the use of print secondary\nsources to be more efficient than electronic versions. We will briefly discuss\nthe chief methods of use of secondary sources in print.\n\n8.3.2.1 Organization & Finding Aids\nSome print secondary sources are organized chronologically, but most are\norganized by topic. A legal encyclopedia is organized alphabetically by\ngeneral topic; a subject treatise is organized in a logical progression of subtopics; a practice series may be organized by general subject area and then\nspecific subtopics. Skimming the table of contents can be a quick way of\nidentifying the major topics covered by the source. A secondary source set\nconsisting of a large number of volumes may have different levels of tables\nof contents much as a statutory code does: a table of contents for the\nentire set, a table of contents for a chapter, or even more granular levels.\nArticle-based secondary sources such as ALRs or legal encyclopedias will\nusually have a table of contents at the beginning of an article.\nEven with multiple levels of tables of contents, the index is often the\nresearcher\xe2\x80\x99s best starting point. Indexes alphabetize in detailed lists the\ntopics and sub-topics covered by the source; they are far more detailed\nthan even the most specific table of contents. Most secondary sources will\nhave an index published at the end of the volume or in the last volume of\nthe set if the source consists of multiple volumes.\nSecondary sources may also include tables listing primary authorities along\nwith references to where the authorities are discussed in the text. This can\nbe useful if the researcher has a citation to a particular source of law on\nwhich he is interested in finding further analysis. Such tables are usually\nalso located at the end of a volume or set and may be called a Table of\nCases or Table of Authorities.\n\n165\n\n\x0cFor the secondary sources organized chronologically, the utilization of the\nrelevant finding aids is critical. For example, the annotations in ALRs are\npublished in chronological order. There may be more than one article on\ndivorce and child custody, but they will not be found in close physical\nproximity the way they would be in a practice series. The only way to\nidentify annotations that discuss a particular topic is to use the available\nindex. Law reviews and journal are also published chronologically; relevant\nfinding aids are discussed in section 8.3.4.\n\n8.3.2.2 Updating in Print\nTopical secondary sources in print may be published either in bound\nvolumes or in loose-leaf fashion. As discussed with digests and statutory\ncodes earlier, hardbound volumes are expensive to produce and so\nhardbound secondary sources are updated in a similar manner to their\nprimary authority counterparts. Pocket parts are used to update individual\nvolumes and will be found in a pocket at the back of a volume;\nsupplements may be stand-alone soft-bound publications relating to an\nindividual volume for a particular set or may be an update to the set as a\nwhole.\nLoose-leafs are an alternative publication format that makes integrating\nupdates into the text somewhat easier. \xe2\x80\x9cLoose-leafs\xe2\x80\x9d is the term used to\nrefer to treatises or practice materials that are published in a binder rather\nthan a bound volume. To update loose-leafs, the publisher of a title sends\npages to replace those that have become dated. The old pages are removed\nand the new pages inserted; the table of contents, index, and other finding\naids of the volume may be updated as well to reflect the new content. This\nmethod of updating eliminates a step for the researcher; there is no need\nto consult additional parts in the set to update the material, as required\nwith hardbound sets. The disadvantage to this updating method is that it\ncan be hard to track down what that secondary source said at a given\nmoment in time, as a researcher might need to do when tracking down\nsecondary sources cited in older documents.\nEvery print title has a slightly different updating schedule and process,\nwhether in hardbound or loose-leaf format. If a researcher needs\nassistance in updating a resource, he should contact a reference librarian\nfor assistance.\n\n166\n\n\x0c8.3.3 Using Electronic Secondary Sources\nUsing electronic secondary sources gives researchers an additional finding\naid: keyword searching. Many of the legal research platforms allow you to\nperform a keyword search across the content of the entire platform. As a\npractical matter, this is often not the best approach to finding relevant\nsecondary sources. A general keyword search is likely to bring back\nthousands of results from a wide variety of sources. Sorting through the\nresults of such a general search to determine what type of source the\nmaterial came from and if it is on point or merely mentioning the topic of\ninterest in passing can be time-consuming. Narrowing the search first by\nbrowsing as described in section 8.3.1.1 to find materials on point and\nthen searching across materials on the topic or searching within a specific\ntitle is usually more efficient. Alternatively, the researcher may be able to\nperform a keyword search and then use post-search filters to narrow the\nresults list before perusing them. Researchers can utilize many of the same\nsearch strategies described in Chapter 7.\nWhile keyword searching is an additional finding aid for accessing\nsecondary sources, it is not necessarily a superior option to the traditional\nfinding aids. Often the researcher is using a secondary source to become\nfamiliar with an area of law and to begin building a vocabulary to be used\nin primary source research. So, if the researcher does not yet know the\nappropriate vocabulary to the topic, keyword searching may not get him\nvery far.\nThough the temptation to search is there, do not overlook a source\xe2\x80\x99s\ninherent organizational structure. Browsing the table of contents can be as\neffective in the electronic universe as it is in print, particularly if the\nresearcher is unfamiliar with the relevant terminology used for the topic.\nIn addition to the table of contents, the legal research platform or publisher\nmay reproduce other finding aids that are useful in print. Check to see if an\nelectronic version of the index has been included; again, the index is\nextremely useful when one is unfamiliar with the terminology that would\nallow you to search. Sometimes such an index may be just a reproduction of\nthe print, requiring you to search the document via the Find feature in your\nbrowser (control+F or command+F). For some sources, the index may be\nsearchable on the platform.\n\n167\n\n\x0cFigure 8.3.3: Using an electronic index. Click here for\nscreencast: https://youtu.be/So25ZHDAG94.\n\n8.3.4 Law Review & Journal Articles\nScholarly legal journals publish articles on many topics but lack any\ninternal topical organization. Luckily, researchers may use several\nelectronic tools to find articles on topics of interest.\n\n8.3.4.1 Indexes\nFinding relevant law review and journal articles is a somewhat different task\nthan finding other secondary sources described in this chapter. Thousands\nof law reviews are published every year across hundreds of individual\npublications. Checking each title for articles on a topic is impractical.\nFortunately, there are publications that index those thousands upon\nthousands of articles by topic. There are two such general indexes in print:\nIndex to Legal Periodicals and Books and the Current Law Index. Like Shepard\xe2\x80\x99s\nCitator, however, these publications are often no longer carried by libraries,\nas their online incarnations are superior tools. The electronic versions are\nthe commercial databases Index to Legal Periodicals & Books (ILP), now\navailable through EBSCO, and LegalTrac, available through Gale Cengage,\nrespectively. Most university law libraries subscribe to one or both. These\nindexes cover roughly 1980 to the present; to research older articles you\nneed to use a separate index, the Index to Legal Periodicals Retrospective. There\n\n168\n\n\x0care also indexes that cover specific legal practice areas, such as the Index to\nForeign Legal Periodicals (on HeinOnline).\nThese electronic indexes allow the researcher to search their records by\nkeyword, author, or subject. Depending on the subscription, these indexes\nmay provide full-text of some or none of the articles. If the latter, a search\nmay provide the researcher only with an abstract and a citation; he will need\nto find the full-text article by using another resource such as those\ndescribed in the next section.\n\n8.3.4.2 Full-text Commercial Platforms\nApart from indexes, there are several legal information platforms that allow\nresearchers to perform full-text searches across all the journal articles\navailable on the platform. HeinOnline is the platform with the most\ncomprehensive coverage of law school reviews and journals, though it\nsometimes will not contain the most recent issues. Westlaw Edge and\nLexis+ also have selections of journals on their platforms and are more\nlikely to contain the most recent issues. Again, the researcher can utilize\nmany of the search techniques described in Chapter 7 when searching on\nthese platforms.\n\nFigure 8.3.6: HeinOnline and journal research. Click here\nfor screencast: https://youtu.be/veZPohr1OWY.\n\n169\n\n\x0c8.3.4.3 Free Resources\nThere are also free resources available online for searching scholarly legal\npublications. Many universities promote their faculty by participating in\nopen access repositories and are thus making their faculty scholarship\navailable for free online. There are several ways to find such materials; this\ntext will highlight three.\nMany law professors post their published articles and works in progress on\nSSRN, or the Social Science Research Network. SSRN makes these works\nfreely available to the public. The site can be searched and browsed down\nto specific legal areas of research, but it can be slow and difficult to use.\nDigital Commons is a platform used by many universities to host and\nprovide free public access to their faculty\xe2\x80\x99s scholarship. BePress, the creator\nof Digital Commons, has created a publicly available search engine called\nthe Digital Commons Network to search across all the universities that are\nhosting their scholarship using Digital Commons. The Network even\nprovides a faceted search to drill down by topic, publication year, and more.\nFinally, the Google product Google Scholar utilizes the company\xe2\x80\x99s\npowerful search algorithms to search only scholarly materials rather than all\ncontent on the web. It searches the scholarly content made available for\nfree by universities as well as the records of some subscription databases\nsuch as HeinOnline and LexisNexis. Google Scholar pulls in only citations\nrather than full-text articles from those subscription databases. An\nadditional limitation of Google Scholar is that it will also pull in materials\nfrom the Google Books database with no easy way of filtering those\nmaterials out of the results.\nWith the wide variety of free and paid secondary sources available, a legal\nresearcher can become overwhelmed with the amount of information\naccessible to him while still not quite finding the piece of information he\nneeds. Knowledge of the types of the secondary sources and where and\nhow to look for them will help the researcher be more efficient when\nbeginning his research. And he should never forget the most direct way to\nfind a resource on point: ask someone with knowledge of the legal topic or\nlegal resources.\n\n170\n\n\x0c8.4 Concluding Exercises for Chapter 8\nNow try your hand at using secondary sources in print or online with the\nfollowing exercises:\n\n8.4.1 Introductory Exercise on Secondary Sources\nOur client, Mary Smith, was adopted by the Smith family as an infant in\nCalifornia and would like to find her birth parents. You are a novice not\nonly to adoption but to family law generally and need to educate yourself\non this area of law. Please find the following:\n1. A California practice guide or treatise on family law.\n2. An AmJur 2d article that relates to whether an individual who was\nadopted can view her adoption records now that he\xe2\x80\x99s an adult.\n\n171\n\n\x0c8.4.2 Intermediate Exercise on Secondary Sources\nOur client, Lexington Online Inc., has published the names and phone\nnumbers of all of Verizon\xe2\x80\x99s Lexington subscribers in an online directory\nthat is freely available on the Internet. Verizon is suing our client for,\namong other things, copyright infringement. Verizon says that they\n(Verizon) were the original authors of that information and Lexington\nOnline\xe2\x80\x99s directory is thus violating copyright. Our client says that they\n(Lexington Online) have just published facts and those are\nnoncopyrightable.\nPlease find a reputable treatise on copyright and use it to perform some\npreliminary research on the following questions:\n1. Please find a section that discusses authorship and originality.\nWhich primary authorities are analyzed in this section? According\nto this treatise, what makes a work \xe2\x80\x9coriginal\xe2\x80\x9d in terms of\nauthorship?\n2. Please find a second section that discusses whether facts can be\nprotected under copyright. Can facts be protected under\ncopyright? Why or why not, according the treatise\xe2\x80\x99s analysis?\n3. Based on the information you\xe2\x80\x99ve found so far, is it likely that\nVerizon will succeed on the copyright infringement claim?\n4. What research avenues might you pursue after utilizing this\ntreatise for preliminary background information?\n\n172\n\n\x0c8.4.3 Advanced Exercise on Secondary Sources\nOur clients, Ina and Mal Washburn, are being sued for vicarious liability in\na traffic accident because they negligently entrusted the use of their car to\ntheir 16 year-old-daughter, Kaylee. Kaylee rear-ended another driver while\ndriving down Highway 34 near the Washburns\xe2\x80\x99 home in Pierre, South\nDakota, while talking on her iPhone. The plaintiff, Diane Riker, is suing\nunder the theory that the Washburns knew their daughter to be a reckless\ndriver, as she has been ticketed for traffic incidents in the past and\nconsistently talks on the phone while driving. The Washburns insist that\nnone of Kaylee\xe2\x80\x99s prior traffic incidents involved her smartphone.\nYour supervising attorney is unaware of any South Dakota caselaw on\npoint and would like you to find authorities on point from other\njurisdictions.\n1. Find a relevant ALR annotation regarding liability, smartphones,\nand car accidents.\n2. Does this annotation list any primary authorities from South\nDakota?\n3. What section(s) of the annotation seems most applicable to our\nsituation? What primary authorities does that section(s) refer to?\n4. Does this article refer you to any additional secondary sources\nthat might be worth pursuing? If so, which ones would you start\nwith and why?\n\n173\n\n\x0c8.5 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on secondary sources touch upon material covered in this\nchapter. They would be a great place to start for students looking for\nfurther practice on the concepts introduced in this chapter!\n\n8.5.1 \xe2\x80\x9cIntroduction to Secondary Resources\xe2\x80\x9d\nSummary: an overview of secondary resources used\nin legal research. Secondary resources are books and\nother material ABOUT legal subjects and issues:\nthey discuss and explain primary resources such as\ncases and statutes and can be useful in assisting our\nunderstanding about specific areas of law. The\nstudent will learn about the different types of\nsecondary resources and what secondary resources\nare most useful for specific types of legal research\ntasks.\n\nURL: http://www.cali.org/lesson/721\n8.5.2 \xe2\x80\x9cLegal Encyclopedias\xe2\x80\x9d\nSummary: an introduction to understanding and\nusing the two most common legal encyclopedias,\nAmerican Jurisprudence 2d and Corpus Juris\nSecundum.\nURL: http://www.cali.org/lesson/859\n\n8.5.3 \xe2\x80\x9cAmerican Law Reports\xe2\x80\x9d\nSummary: an introduction to using the American\nLaw Reports (ALRs).\nURL: http://www.cali.org/lesson/582\n\n8.5.4 \xe2\x80\x9cSubject Specific Treatises\xe2\x80\x9d\nSummary: an introduction to identifying and using\nsubject specific treatises.\nURL: http://www.cali.org/lesson/16370\n\n174\n\n\x0c8.5.5 \xe2\x80\x9cUsing the Restatements of the Law\xe2\x80\x9d\nSummary: an overview of what the Restatements of\nthe Law are and why one would use them for legal\nresearch, their major features, how to search them,\nand how to use them to find cases.\n\nURL: http://www.cali.org/lesson/769\n\n8.5.6 \xe2\x80\x9cResearching Uniform and Model Laws\xe2\x80\x9d\nSummary: an overview of how uniform laws are\ncreated and shows researchers how to locate\nuniform laws, drafters\' commentary, state versions of\nuniform laws, and cases interpreting them.\nURL: http://www.cali.org/lesson/762\n\n8.5.7 \xe2\x80\x9cResearching and Working with Procedural Forms\xe2\x80\x9d\nSummary: an overview of the use of procedural\nforms designed to assist in litigation practice.\nURL: http://www.cali.org/lesson/8994\n\n8.5.8 \xe2\x80\x9cResearching and Working with Transactional Forms\xe2\x80\x9d\nSummary: an introduction to locating and utilizing\ntransactional forms.\nURL: http://www.cali.org/lesson/8991\n\n8.5.9 \xe2\x80\x9cPeriodicals and Periodical Indexes\xe2\x80\x9d\nSummary: an overview of two of the most\nimportant external finding tools--periodicals indexes\nand library catalogs--that you can use to help find\nsecondary sources relevant to your research.\nURL: http://www.cali.org/lesson/766\n\n175\n\n\x0c8.5.10 \xe2\x80\x9cSecondary Sources: Practice Centers \xe2\x80\x93 The Evolution\nfrom Print Looseleaf to Practice Center\xe2\x80\x9d\nSummary: teaches students about practice centers,\nand describes their origins as print legal loose-leaf\nservices.\nURL: https://www.cali.org/lesson/16713\n\n8.5.11 \xe2\x80\x9cCurrent Awareness & Alerting Services\xe2\x80\x9d\nSummary: introduces students to commonly-used\ncurrent awareness tools and alerting services.\nURL: https://www.cali.org/lesson/8617\n\n176\n\n\x0cChapter 9\n\nThe Research Process\nA lawyer shall provide competent representation to a\nclient. Competent representation requires the legal\nknowledge, skill, thoroughness and preparation\nreasonably necessary for the representation. \xe2\x80\x93 The\nAmerican Bar Association, MODEL RULES OF\nPROFESSIONAL CONDUCT R. 1.1\nIn order to conduct legal research effectively, a\nlawyer should have a working knowledge of . . .the\nprocess of devising and implementing a coherent\nand effective research design. \xe2\x80\x93 MacCrate Report\n\n9.1 Learning Objectives for Chapter 9\nIn working through this chapter, students should strive to be able to:\n\xef\x82\xb7\n\nDescribe the steps of the research process.\n\n\xef\x82\xb7\n\nAssess which research techniques are best utilized at each step of\nthe process.\n\n\xef\x82\xb7\n\nUnderstand the recursive nature of the research process.\n\n\xef\x82\xb7\n\nDescribe techniques a researcher can employ when faced with too\nmuch or too little information.\n\n177\n\n\x0c9.2 Essential Steps of the Research Process\nSo far in this text we have discussed primary and secondary sources of\nAmerican law and techniques for locating them in print and online\nenvironments. Now we will turn our attention to how to integrate those\ndiscrete techniques into a strategic process. The steps for researching most\nlegal problems will follow a logical progression:\n1. Familiarize yourself with the specifics of the legal problem.\n2. Define the scope of the research.\n3. Construct search queries.\n4. Gather primary authorities.\n5. Analyze and update primary authorities.\nLet us look at each step in turn and explore the most efficient techniques,\nor combination thereof, that the researcher can use at each step of the\nprocess. At the end of the chapter, we will address some common\nconcerns that researchers have once they have begun the research process.\n\n9.2.1 Familiarize Yourself with the Legal Problem\nLegal research does not exist in a vacuum. Lawyers engage in research to\nanswer a question of law about a specific problem. The researcher must\nknow intimately the facts of that underlying problem, as this is essential to\nbeing able to judge what legal authorities will apply to it.\nThe researcher may begin to ask some questions of the legal problem at\nthis stage of the research. Who are the people or entities involved in the\nproblem? What is their relationship? Are there any obviously missing\npieces of information from the scenario forming the basis of the problem?\nThe researcher will likely return to the facts of the client\xe2\x80\x99s legal problem\nrepeatedly over the course of the research process in an effort to\ndetermine which facts are critical to answer the problem, but at this initial\nstage the researcher must do his best to internalize the basic story structure\nto facilitate revisiting those facts at a later stage.\nThe organized researcher should also ask some additional questions to\nframe the process of the research at this stage. Whether the legal problem\ncomes directly from a client, a supervising attorney, or a professor, the\nresearcher should clearly understand what work product is expected at the\nend of the research process and when that work product must be\n\n178\n\n\x0ccompleted. This will aid the researcher both in his final selection of\nprimary authorities and help him establish a timeline for which to progress\nthrough the various stages of research.\nLast but not least, the researcher should always note if any primary or\nsecondary authorities have been recommended as a place to begin his\nresearch. A supervising attorney or professor may well refer to primary or\nsecondary authorities related to the problem; the researcher can use both\nto find additional primary authorities on point as described later in this\nchapter. Such recommendations may save the researcher much time in the\ninitial stages of gathering primary authorities.\n\n9.2.2 Define the Scope of the Research\nOnce the researcher has familiarized himself with the facts of the legal\nproblem and has an idea of the timeline to which he must adhere, he then\nmust define the scope of the research. An easy mistake to make early in\nthe research process is defining the problem too broadly and simply\nresearching any legal topic or terminology that comes to mind; the result is\ntypically that the researcher is overwhelmed by the number of primary and\nsecondary authorities identified and has no clear idea if the legal problem\nhas actually been addressed. In order to find relevant authorities quickly\nand efficiently, the researcher needs to form a clear picture of what he\nneeds to find from the onset of his research. To narrow the scope of the\nproblem, the researcher should consider the following:\n\xef\x82\xb7 Choice of Law: Which jurisdiction\xe2\x80\x99s law applies to the problem?\n\xef\x82\xb7 Venue: Which court would any legal action relating to the\nproblem be (or has already been) filed in?\n\xef\x82\xb7 Area of Law: Do the facts of the problem suggest a particular\narea of law (e.g. criminal law, contracts, etc.) on which the\nresearcher will want to focus his attention?\n\xef\x82\xb7 Issue statement: Can the researcher identify a clear question that\nthe research must seek to answer? Such an issue statement need\nnot be phrased in specific legal terminology such as one would\nfind in a brief or memorandum at this point, but the formulation\nof the question will still serve as a limiting factor on the research.\n\n179\n\n\x0c\xef\x82\xb7 Hierarchy of Authority: At this point, the researcher may also\nwant to sketch out what sorts of authorities will be mandatory\nauthority for the problem.\nSometimes this information will be readily apparent from the legal\nproblem; other times some initial research may be involved.\n\n9.2.2.1 Techniques for Defining the Scope of Research\nSecondary sources can be key at this stage of the research process. A\ntreatise may inform the researcher whether the issue is one of state or\nfederal law; a practice series may specify related areas of law or aid in\nformulating the issue statement. The appropriate secondary source to use\nat this stage will vary with the researcher\xe2\x80\x99s prior knowledge of the legal\ntopic to be researched. Thus, the researcher may need to use a series of\nsecondary sources for guidance, starting with a more general resource like\na legal encyclopedia and moving on to a source that discusses the area in\nmore detail. Review Chapter 8 for an overview of the various types of\nsecondary sources and methods useful for locating them.\nIf in the early stages of the process the researcher has been informed\nabout relevant primary authorities, he can use those authorities to find\nrelevant secondary authorities. Citators are useful tools for this purpose.\nAs the reader may recall from Chapter 6, citators can be used to find a\nlisting of all the primary and secondary authorities available on a particular\nresearch platform that cite back to the original authority under\ninvestigation. This is a quick way to see a list of treatises, practice\nmaterials, and law review articles on the platform that may relate back to\nthe topic. The researcher can narrow these results by using searching and\nfiltering functions provided by the citator. Statutory annotations may also\nlead a researcher to useful primary and secondary materials.\n\n9.2.3 Construct Search Queries\nOnce the researcher has limited the scope of his research to a specific area\nof law from a specific jurisdiction, he will still need to research that\njurisdiction\'s area of law to find specific authorities applicable to the\nproblem at hand. To do this, the lawyer will need to generate specific\nterms for which to look in primary or secondary sources. Constructing this\nkeyword list is often the first major hurdle in the research process, but it is\na useful tool for proceeding in both print and electronic research. Search\n\n180\n\n\x0cterms may be general at this stage, e.g. the name of the relevant jurisdiction\nor a broad area of law, or they may be more specific, e.g. facts from the\ninitial problem or legal terms of art already provided.\n\n9.2.3.1 Techniques for Constructing Search Queries\nThe researcher may need to think critically about the terminology\nemployed as a means of either broadening or narrowing his research. For\ninstance, if the researcher is investigating a defense against a copyright\ninfringement claim, the researcher may identify \xe2\x80\x9ccopyright\xe2\x80\x9d as the relevant\narea of law to investigate. However, depending on how a given primary or\nsecondary source is organized, the researcher may need to broaden or\nnarrow that terminology. Copyright is a subset of an area of law more\nbroadly termed Intellectual Property, and a legal research platform may\norganize their secondary sources under the broader category rather than\nthe narrower one. On the other hand, a common defense to copyright\ninfringement claims is the defense of fair use, and it has a substantial\namount of secondary literature in its own right. So, the researcher may\nwant to narrow that initial term of \xe2\x80\x9ccopyright\xe2\x80\x9d to the more specific term\nof \xe2\x80\x9cfair use.\xe2\x80\x9d In print or electronic format, an index may help the\nresearcher narrow these terms by having specific sub-headings under a\nmore general topic heading. As a general rule, if the search terms the\nresearcher is utilizing are yielding too many results, try narrowing the\nsearch terms; if yielding too few results, try broadening.\nOne way to broaden a search is to incorporate synonyms of terms on the\ninitial list. If a critical fact of the legal problem involves a dorm room,\nperhaps opinions discussing buildings with similar characteristics be useful\nfor analogies, e.g. an apartment or a duplex. If a case involves a motorcycle,\nperhaps that vehicle shares materially relevant features with other types of\nautomobiles. Such synonyms can be useful not only for reminding the\nresearcher of options he should be aware of while using topical indexes\nbut also in formulating advanced search queries discussed in Chapter 7.\nRecall from Chapter 8 that one of the most valuable uses of a secondary\nsource is introducing the reader to the appropriate vocabulary of the legal\ntopic it covers. The commentary and analysis or even the organization and\nfinding aids of a secondary source may assist the researcher in determining\nthe relevant terminology. Such sources may assist in generating broader or\nnarrow terms by looking at the index or table of contents, and the cases\n\n181\n\n\x0cdiscussed in the secondary source may suggest relevant synonyms or fact\npatterns worth adding to the search term list.\nThe researcher may also pose questions to the facts of the initial legal\nproblem to help construct the keyword list: What is the relationship\nbetween the parties of the legal matter? Are there things or places that are\nin dispute? Have any legal terms of art been discussed? Have legal claims\nor defenses been identified? The answers to these questions may well have\nbeen identified in the first two stages of the research process and can now\nbe incorporated into a list of search terms.\n\n9.2.4 Gather Primary Authorities\nNow the researcher must employ the search terms and queries generated\nto gather primary authorities. The researcher must take care to find not\nonly the most relevant primary authorities but also those that could be\nrelevant. It is a constant balancing act to make sure the search queries are\nnot too broad or too narrow as discussed in the prior section; the\nresearcher will improve his balance with experience. Generally, as\nindicated throughout this text, it is in the researcher\xe2\x80\x99s best interest to start\nnarrow and then broaden so as not to be overwhelmed by the number of\nauthorities identified. At the same time, the researcher must not develop\ntunnel vision and limit his research too far. A common mistake to new\nlegal researchers is to focus too narrowly on the specific facts of the case.\nHowever, there may not be an opinion with facts extremely similar to\nthose of the researcher\xe2\x80\x99s legal problem. Thus, he should not discount\nmaterials on the applicable legal principle simply because the facts do not\nalign directly with the legal problem in front of him.\nOne way of narrowing the initial research pass into primary authorities is\nto focus on gathering those authorities that are binding on the legal\nproblem. If the researcher is working on a legal problem governed by\nfederal law that will be filed in the Southern District Court of Texas, he\nshould not start by researching cases in the Sixth Circuit Court of Appeals\nor investigating Oregon state court opinions. Persuasive primary\nauthorities should be pursued only after the researcher has determined that\nthe binding authorities do not sufficiently address the legal problem.\nHowever, the astute researcher will note persuasive authorities that seem\nparticularly relevant if stumbled upon during the search for mandatory\nauthorities; such a note would save the researcher time in the event that\npersuasive authority proves to be a necessary avenue of inquiry.\n\n182\n\n\x0c9.2.4.1 Techniques for Gathering Primary Authorities\nAt this step, the researcher will employ a combination of many of the\nresearch techniques described in previous chapters to thoroughly\ninvestigate primary authorities for relevant materials. Below is a suggested\nprogression of research techniques. Remember that not all legal problems\nare governed by all sources of law. Secondary sources will often alert the\nreader as to which sources of law govern in an area of law, but a thorough\nresearcher will perform his own investigations on the topic to verify.\n1. Secondary sources: Utilize secondary sources to identify the key\nprimary authorities on a legal topic. See Chapter 8 for a discussion\nof secondary sources and techniques for locating them.\n2. Constitutional provisions, statutes, and regulations:\nInvestigate relevant constitutional provisions, statutes, and\nregulations by using the search terms previously identified to\nsearch, browse, and filter through electronic research platforms or\nbrowse the table of contents or indexes in print as described in\nChapter 3. Do not forget that finding aids such as indexes and\ntables of contents may serve the researcher as well in the online\nenvironment as in the print.\na.\n\nIf the researcher identifies relevant constitutional\nprovisions, statutes, or regulations, he should investigate\nthe annotations for references to relevant primary and\nsecondary authorities.\n\nb. Remember that researchers can use citators to trace a\nlegal issue forward in time; a citator will identify other\nprimary and secondary authorities citing back to the\noriginal constitutional provision, statute, or regulation\nunder discussion. Review Chapter 6 for a more thorough\ndiscussion of the uses of citators.\n3. Judicial Opinions: Investigate judicial opinions by using the\nsearch terms previously identified to search, browse, and filter\nthrough electronic platforms or to browse the relevant digest as\ndescribed in Chapter 4. Do not forget to utilize any topical\norganization system available either in print or electronic format.\nOnce the researcher has identified some relevant cases, he can\nemploy them to find more authorities on point:\n\n183\n\n\x0ca.\n\nLook at the headnotes of the opinion for relevant topics\nand/or key numbers. Use them to find further primary\nauthorities on point.\n\nb. Use a citator to trace the issue forward in time and find\nmore recent primary and secondary authorities on point.\nc.\n\nInvestigate the authorities to which the opinion itself cites\nand on which it bases its analysis. The citator may include\na Table of Authorities for the case which will list all the\nprimary authorities mentioned in the opinion.\n\n9.2.5 Analyze and Update Primary Authorities\nThis is perhaps the most time-consuming and challenging piece of the\nresearch process. After gathering the relevant primary authorities, a\nresearcher should read each authority carefully to understand the legal\nissues being discussed and the relevant facts. Such analysis must include\nupdating each authority through the use of a citator. The researcher must\nthen analyze each authority on its own and how it relates to the other\nauthorities to synthesize rules relevant to the problem at hand. This step is\nwhere research and writing become inseparable; the researcher\xe2\x80\x99s analysis\nof the primary authorities and rule-formation will create a framework for\nthe final written product.\n\n9.2.5.1 Techniques for Analyzing and Updating Primary\nAuthorities\nTopical secondary sources providing in-depth treatment of a legal subject,\nsuch as treatises or law review articles, may provide analysis that will aid\nthe researcher in her understanding of the primary authorities. Refer to\nChapter 8 for a discussion of which secondary sources tend to offer such\ntreatments.\nCitators will alert the researcher to any negative treatment of a primary\nauthority as explained in Chapter 6. An authority will be marked\naccordingly if it has received negative or cautionary treatment by other\nauthorities. For opinions, citators will typically also indicate the level of\nanalysis the opinion received in the citing opinions; the analysis of the case\nby other courts may also inform the researcher\xe2\x80\x99s analysis. The citator may\nindicate which legal issue in the original opinion was treated negatively by\nthe citing opinions. The researcher can use this feature to determine which\n\n184\n\n\x0cciting opinions must be analyzed to place the original opinion in the\nappropriate overarching context of the legal issue.\n\n9.2.6 Research and Writing as a Recursive Process\nThough the research steps above progress in a logical fashion, the process\nis not always as linear as the steps may indicate. Research and writing is\noften a recursive process; the more information the researcher gathers and\nanalyzes, the more he may need to revisit earlier assumptions or fill in gaps\nthat were not apparent in the first research pass. Any of the steps of the\nresearch process may be utilized at various points on the research timeline.\nFor instance:\n\xef\x82\xb7\n\nA researcher may find after consulting some secondary\nauthorities that he has not correctly identified the relevant\nareas of law or which jurisdiction\xe2\x80\x99s law should be applied,\nthus prompting a re-evaluation of the scope of the problem\nand the search terms employed.\n\n\xef\x82\xb7\n\nIssue statements may be refined as more information is\ngathered, which may lead to more tailored search queries that\nyield a different line of primary authorities.\n\n\xef\x82\xb7\n\nA researcher may begin to write up his analysis of the\ngathered materials and find that he is making statements that\nhis authorities do not explicitly support. He must then revisit\nprimary authorities overlooked at the beginning stages of\nresearch.\n\n\xef\x82\xb7\n\nFacts that did not appear relevant in the initial stages of\nresearch may be highlighted in opinions as crucial pieces of\nthe puzzle; the researcher will then need to add them to the\nlist of search terms for further investigation.\n\nAll of these scenarios and more are possible during the research and\nwriting process; revisiting earlier stages of the research process is a normal\nand natural occurrence.\n\n9.2.6.1 Recurring Research Techniques\nMuch as the steps of the research process may be revisited over the course\nof the investigation, the finding aids and electronic research techniques are\n\n185\n\n\x0coften utilized repeatedly at different stages of the research process. A\nresearcher will likely use the features of a citator on every primary\nauthority found. He will note topics and key numbers mentioned in\nsecondary and primary authorities that may be found at different stages of\nthe process. The index of a useful treatise may be referred to frequently as\nthe researcher discovers new legal terminology and concepts from the\ntreatise itself or in the primary authorities. These techniques are tools to be\nutilized during the myriad iterations of the research process rather than\nstatic, individual actions.\n\n9.3 Common Research Concerns\nEven with a logical research process and recommendations regarding\ntechniques to use to perform the research, the researcher may still find\nhimself asking questions about when to stop his research or what to do if\nhe has found too much or too little information. The final part of this\nchapter recommends criteria and actions to consider in these scenarios.\n\n9.3.1 When to Stop Researching\n\xe2\x80\x9cHow do I know when to stop?\xe2\x80\x9d is a very common question among\nnovice researchers. Unfortunately, there is no singular sign that will\nindicate to the researcher that he has completed his task; the answer will\nvary not only by problem but by the time the researcher has in which to\ncreate the end work product. Generally, if the researcher has found\nauthorities that answer the initial issue statement and subsequent issues\nthat have come to his attention during research, if he has pursued the\nrelevant avenues of research discussed in this text, and if he is seeing the\nsame authorities referred to over and over again, he is in a good position\nto stop.\n\n9.3.2 Not Finding Enough Relevant Authorities\nIf a researcher cannot find enough, or any, relevant authorities, he may\nneed to revisit some of the earliest steps of the research process.\n\xef\x82\xb7\n\nRefer back to the initial information received about the legal\nproblem and make sure you understand the information given to\nyou. Are you overlooking any critical information or was any\ncritical information missing from the information you received?\n\n186\n\n\x0c\xef\x82\xb7\n\nReturn to the secondary sources you identified initially or find\ndifferent secondary sources on point. Read the materials carefully\nto be sure you understand the material presented.\n\n\xef\x82\xb7\n\nRethink your search terms. You may need to broaden the\nterminology or concepts for which you are searching.\n\n\xef\x82\xb7\n\nIf you have exhaustively searched the mandatory primary\nauthorities, you may want to try searching persuasive primary\nauthorities, focusing first on highly persuasive authorities.\n\n\xef\x82\xb7\n\nConsult with a reference librarian or another legal information\nspecialist as described in section 8.3.1.4. Be prepared to describe\nin detail both the legal problem and the steps you have taken to\nresearch the problem. This individual may be able to suggest\nsources or research techniques you have overlooked or help you\nmodify the techniques you have been using.\n\n9.3.3 Finding Too Many Relevant Authorities\nIf the researcher is overwhelmed with authorities, the techniques to be\nemployed are similar to those utilized when one is underwhelmed as\ndescribed section 9.3.2.\n\xef\x82\xb7\n\nRefer back to the initial information received about the legal\nproblem and make sure you understand the information given to\nyou. Are you overlooking any critical information or was any\ncritical information missing from the information you received?\n\n\xef\x82\xb7\n\nReturn to the secondary sources you identified initially or find\ndifferent secondary sources on point. Read the materials carefully\nto be sure you understand the material presented.\n\n\xef\x82\xb7\n\nRethink your search terms. You may need to narrow the\nterminology or concepts for which you are searching. If you are\nusing electronic resources, be careful about filtering information\nappropriately. You may also want to perform searches within the\ninitial results lists.\n\n\xef\x82\xb7\n\nIf you had broadened your search to primary persuasive\nauthorities, refocus on primary mandatory authorities or only the\nmost highly persuasive authorities.\n\n187\n\n\x0c\xef\x82\xb7\n\nConsult with a reference librarian or another legal information\nspecialist as described in section 8.3.1.4. Be prepared to describe\nin detail both the legal problem and the steps you have taken to\nresearch the problem. This individual may be able to suggest\nsources or research techniques you have overlooked or help you\nmodify the techniques you have been using.\n\n9.4 Concluding Remarks\nIt is an oft-quoted maxim that research is an art, not a science. Much as\nwith painting, the novice must work diligently at developing his basic skills\nby practicing with the tools of his trade; repetition and exposure to new\nmaterials accretes those skills into the knowledge necessary to create\ndetailed works of art. This text has outlined the basic tools available to the\nlegal researcher and described skills he should strive to develop; time and\npractice will evolve the researcher\xe2\x80\x99s skills into experience and allow him to\ncompetently address the legal problems that will come his way.\n\n9.5 Recommended CALI Lessons for Further Practice\nCALI hosts an impressive number of interactive lessons on its website. The\nfollowing lessons on research methodology touch upon material covered in\nthis chapter. They would be a great place to start for students looking for\nfurther practice on the concepts introduced in this chapter!\n\n9.5.1 \xe2\x80\x9cLegal Research Methodology\xe2\x80\x9d\nSummary: a series of tutorials lead students through\nsituations and problems commonly given to new\nattorneys and student interns. Each section contains\nquestions that test the students\' responses to\ndifferent situations and their understanding of the\nreasons behind legal research. The exercises use\nrealistic research problems and demand that students\nbegin to think logically and practically about legal\nresearch.\nURL: http://www.cali.org/lesson/567\n\n188\n\n\x0c9.5.2 \xe2\x80\x9cHold \'em, Fold \'em, Walk Away or Run: When to Stop\nthe Search\xe2\x80\x9d\nSummary: Knowing when to stop is important for\nefficient and cost effective legal research. This\nexercise will cover several factors which you may\nwish to consider.\n\nURL: http://www.cali.org/lesson/763\n\n189\n\n\x0c'