Sources of
American Law
An Introduction to Legal Research
Fifth Edition

Beau Steenken
Instructional Services Librarian & Professor of Legal Research
University of Kentucky J. David Rosenberg College of Law

Tina M. Brooks

Electronic Services Librarian & Associate Professor of Legal Research
University of Kentucky J. David Rosenberg College of Law

CALI eLangdell® Press 2021

About the Authors
Beau Steenken joined the Law Library Faculty at the University of
Kentucky in September 2010. As Instructional Services Librarian, he
engaged in a revamp of the Legal Research curriculum as the UK College
of Law shifted from an adjunct-model to a full-time faculty model of LRW
instruction. He teaches two to four sections of 1L Legal Research a year
and also coordinates informal research instruction of various sorts. Before
coming to the University of Kentucky, he managed to collect a B.A., a
J.D., and an M.S.I.S. from the University of Texas, as well as an M.A. in
history from Texas State University and an LL.M. in Public International
law from the University of Nottingham, where he also took up archery.

Tina M. Brooks joined the Law Library Faculty at the University of
Kentucky in July 2011. As Electronic Services Librarian, she manages the
University of Kentucky Law Library’s website and electronic resources and
also teaches two sections of the 1L Legal Research course. She received a
B.A. in History and Spanish from the University of Northern Iowa in
2005, a J.D. from the University of Nebraska College of Law in 2009, and
an M.S. in Information Studies from the University of Texas School of
Information in 2011.

i

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iii

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iv

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v

This is the first version of the fifth edition of this book, updated June,
2021. Visit http://elangdell.cali.org for the latest version and for revision
history.
This work by Beau Steenken and Tina Brooks is licensed and published by
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Beau Steenken & Tina Brooks, Sources of American Law: an
Introduction to Legal Research, Fifth Edition, Published by CALI
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This material does not contain nor is intended to be legal advice. Users
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to any person for any loss caused by errors or omissions in this collection
of information.
Version 1 Fifth Edition: Updated June 28, 2021

vi

Table of Contents
About the Authors .............................................................................................. i
About eLangdell Press ....................................................................................... ii
Notices & Permissions ..................................................................................... iii
Table of Contents ................................................................................................. vii
Preface ................................................................................................................ xii
The United States Legal System ....................................................................... 1
1.1 Learning Objectives for Chapter 1 ....................................................... 1
1.2 Introduction to Researching the Law .................................................. 2
1.3 Federalism................................................................................................. 3
1.3.1 Origins of American Federalism ................................................... 4
1.3.2 Impact of Federalism on Legal Research .................................... 6
1.4 Separation of Powers and Sources of Law .......................................... 9
1.4.1 Constitutions .................................................................................... 9
1.4.2 Statutes ............................................................................................ 10
1.4.3 Judicial Opinions ........................................................................... 11
1.4.4 Administrative Regulations .......................................................... 13
1.5 Hierarchy of Authority ......................................................................... 13
1.5.1 Primary v. Secondary Authority .................................................. 14
1.5.2 Mandatory v. Persuasive Authority............................................. 14
1.5.3 Determining Weight of Authority .............................................. 15
1.6 Concluding Exercises for Chapter 1 .................................................. 17
1.6.1 Introductory Hierarchy of Authority Exercise ......................... 18
1.6.2 Intermediate Hierarchy of Authority Exercise ......................... 19
1.6.3 Advanced Hierarchy of Authority Exercise .............................. 20
1.7 Recommended CALI Lessons for Further Practice ........................ 22
Introduction to Electronic Research ............................................................. 23
2.1 Learning Objectives for Chapter 2 ..................................................... 23
2.2 Introduction to Electronic Research .................................................. 23

vii

2.3 Basic Electronic Research Processes.................................................. 25
2.3.1 Browsing ......................................................................................... 26
2.3.2 Filtering ........................................................................................... 27
2.3.3 Natural Language Searching ........................................................ 28
2.3.4 Boolean Operators ........................................................................ 30
2.4 Finding Aids ........................................................................................... 31
2.5 Citing References................................................................................... 32
Constitutions & Statutes ................................................................................. 34
3.1 Learning Objectives for Chapter 3 ..................................................... 34
3.2 Constitutions & Statutes ...................................................................... 35
3.3 Life Cycle of a Statute ........................................................................... 36
3.4 Using Codes ........................................................................................... 38
3.4.1 Codes & Topical Organization.................................................... 38
3.4.2 Annotations .................................................................................... 40
3.4.3 Using Codes in Print ..................................................................... 42
3.4.4 Using Codes Electronically .......................................................... 49
3.5 Local Legislation .................................................................................... 55
3.6 Interpreting Constitutions and Statutes ............................................. 56
3.6.1 Constitutional History & Framers’ Intent ................................. 56
3.6.2 Legislative History & Legislative Intent ..................................... 58
3.7 Concluding Exercises for Chapter 3 .................................................. 65
3.7.1 Introductory Exercise on Code Research .................................. 65
3.7.2 Intermediate Exercise on Code Research .................................. 66
3.7.3 Advanced Exercise on Code Research....................................... 67
3.8 Recommended CALI Lessons for Further Practice ........................ 68
Judicial Opinions & Common Law ............................................................... 70
4.1 Learning Objectives for Chapter 4 ..................................................... 70
4.2 Judicial Opinions and the Common Law .......................................... 71
4.3 Case Reporters ....................................................................................... 73
4.3.1 Types of Reporters ........................................................................ 73

viii

4.3.2 Finding an Opinion in a Reporter............................................... 76
4.3.3 Using a Reported Opinion ........................................................... 78
4.3.4 Unreported Cases & Court Dockets .......................................... 80
4.4 Digests ..................................................................................................... 82
4.4.1 Types of Digests ............................................................................ 82
4.4.2 Using Digests to Find Opinions ................................................. 84
4.4.3 Updating Digests ........................................................................... 89
4.5 Cases on the Legal Research Platforms ............................................. 92
4.6 Concluding Exercises for Chapter 4 .................................................. 94
4.6.1 Introductory Exercise on Case Research ................................... 94
4.6.2 Intermediate Exercise on Case Research ................................... 95
4.6.3 Advanced Exercise on Case Research........................................ 96
4.7 Recommended CALI Lessons for Further Practice ........................ 97
Administrative Regulations ............................................................................. 98
5.1 Learning Objectives for Chapter 5 ..................................................... 98
5.2 Delegated Rule-Making Authority ...................................................... 99
5.3 Researching Federal Regulations ...................................................... 100
5.3.1 The C.F.R...................................................................................... 100
5.3.2 The L.S.A. ..................................................................................... 104
5.3.3 The F.R.......................................................................................... 106
5.3.4 Federal Regulations Online ........................................................ 111
5.3.5 Administrative Decisions & Guidance..................................... 111
5.4 State Regulations ................................................................................. 113
5.5 Concluding Exercises for Chapter 5 ................................................ 117
5.5.1 Introductory Exercise on Researching Regulations ............... 117
5.5.2 Intermediate Exercise on Researching Administrative
Guidance................................................................................................. 118
5.5.3 Advanced Exercise on Researching Regulations .................... 119
5.6 Recommended CALI Lessons for Further Practice ...................... 120

ix

Updating Sources of Law .............................................................................. 122
6.1 Learning Objectives for Chapter 6 ................................................... 122
6.2

Introduction to Updating Sources of Law ............................... 123

6.3

Subsequent Treatment of Judicial Opinions............................ 123

6.3.1

How Subsequent Treatment Affects Opinions .................. 124

6.3.2

How to Determine Subsequent Treatment ......................... 125

6.4

Subsequent Treatment of Statutes and Regulations ............... 129

6.5

Citators as Research Tools ......................................................... 130

6.6 Concluding Exercises for Chapter 6 ................................................ 132
6.6.1 Introductory Exercise on Updating Sources of Law ............. 132
6.6.2 Intermediate Exercise on Using Citators as Research Tools 133
6.6.3 Advanced Exercise on Using Citators...................................... 134
6.7 Recommended CALI Lessons for Further Practice ...................... 135
Advanced Electronic Research .................................................................... 136
7.1 Learning Objectives for Chapter 6 ................................................... 136
7.2 Importance of Efficient Electronic Research ................................. 136
7.3 Advanced Searching ............................................................................ 137
7.3.1 Search Operators ......................................................................... 137
7.3.2 Field Searching ............................................................................. 140
7.4 Combining Process for Efficiency.................................................... 142
7.4.1 Browsing, filtering, and advanced search operators............... 143
7.4.2 Advanced searching within citing references .......................... 144
7.4.3 Advanced search operators with key numbers or Lexis Topic144
7.5 Limitations to Electronic Research .................................................. 146
7.6 Concluding Exercises for Chapter 5 ................................................ 148
7.6.1 Introductory Exercise on Electronic Research ....................... 148
7.6.2 Intermediate Exercise on Electronic Research ....................... 148
7.6.3 Advanced Exercise on Electronic Research............................ 149
7.7 Recommended CALI Lessons for Further Practice ...................... 151

x

Secondary Sources.......................................................................................... 152
8.1 Learning Objectives for Chapter 8 ................................................... 152
8.2 Overview of Legal Secondary Sources............................................. 153
8.2.1 Common Types of Secondary Sources .................................... 153
8.2.2 Uses of Secondary Sources ........................................................ 158
8.3 Researching Secondary Sources ........................................................ 160
8.3.1 Finding an Appropriate Secondary Source.............................. 161
8.3.2 Using Secondary Sources in Print ............................................. 165
8.3.3 Using Electronic Secondary Sources ........................................ 167
8.3.4 Law Review & Journal Articles ................................................. 168
8.4 Concluding Exercises for Chapter 8 ................................................ 171
8.4.1 Introductory Exercise on Secondary Sources ......................... 171
8.4.2 Intermediate Exercise on Secondary Sources ......................... 172
8.4.3 Advanced Exercise on Secondary Sources .............................. 173
8.5 Recommended CALI Lessons for Further Practice ...................... 174
The Research Process .................................................................................... 177
9.1 Learning Objectives for Chapter 9 ................................................... 177
9.2 Essential Steps of the Research Process .......................................... 178
9.2.1 Familiarize Yourself with the Legal Problem .......................... 178
9.2.2 Define the Scope of the Research............................................. 179
9.2.3 Construct Search Queries ........................................................... 180
9.2.4 Gather Primary Authorities ....................................................... 182
9.2.5 Analyze and Update Primary Authorities ................................ 184
9.2.6 Research and Writing as a Recursive Process ......................... 185
9.3 Common Research Concerns ............................................................ 186
9.3.1 When to Stop Researching ......................................................... 186
9.3.2 Not Finding Enough Relevant Authorities ............................. 186
9.3.3 Finding Too Many Relevant Authorities ................................. 187
9.4 Concluding Remarks ........................................................................... 188
9.5 Recommended CALI Lessons for Further Practice ...................... 188

xi

Preface
At its most basic definition the practice of law comprises conducting
research to find relevant rules of law and then applying those rules to the
specific set of circumstances faced by a client. However, in American law,
the legal rules to be applied derive from myriad sources, complicating the
process and making legal research different from other sorts of research.
This text introduces law students to the new kind of research required to
study and to practice law. It seeks to demystify the art of legal research by
following a “Source and Process” approach. First, the text introduces
students to the major sources of American law and describes the forms the
various authorities take in both print and electronic form. After establishing
this base, the text proceeds to instruct students on advanced uses of
electronic tools. Finally, the text illustrates how the different pieces come
together in the legal research process.
The text is intended to be used for introductory legal research courses for
first year law students with little or no experience with legal sources or legal
research. It is the authors’ experience that beginning students better
understand the role of each source of law in the U.S. system if it is
introduced on its own. Students also tend to focus more on efficient
processes if the processes are introduced independently of sources of law.
The organization of the text, therefore, deliberately introduces the U.S. legal
system and electronic search techniques generally before moving on to the
individual sources of law. After introducing the individual sources of law,
the text covers updating the law, advanced search techniques, the use of
secondary sources, and the research process. The authors follow a similar
organization in their own research courses but would like to emphasize that
they do so for pedagogical reasons specifically with 1Ls in mind.

xii

Chapter 1

The United States Legal
System
The simplest form of remedy for the uncertainty of
the regime of primary rules is the introduction of
what we shall call a ‘rule of recognition’… Wherever
such a rule of recognition is accepted, both private
persons and officials are provided with authoritative
criteria for identifying primary rules of obligation. –
H.L.A. Hart, The Concept of Law
We the people of the United States, in order to form
a more perfect union, establish justice, insure
domestic tranquility, provide for the common
defense, promote the general welfare, and secure the
blessings of liberty to ourselves and our posterity, do
ordain and establish this Constitution for the United
States of America. – Preamble to the United States
Constitution

1.1 Learning Objectives for Chapter 1
In working through this chapter, students should strive to be able to:




Describe key features of the U.S. legal system including:
o

Federalism,

o

Separation of Powers,

o

Sources of Law, and

o

Weight & Hierarchy of Authority.

Assess how the structure of the legal system frames research.

1.2 Introduction to Researching the Law
The practice of law necessarily involves a significant amount of research. In
fact, the average lawyer spends much of her work time researching. This
makes sense when one considers that American law as a field is too vast,
too varied, and too detailed for any one lawyer to keep all of it solely by
memory. Furthermore, the law is a living thing; it tends to change over
time. Thus, in order to answer clients’ legal questions, lawyers typically
conduct research into the laws affecting their clients.
Several things make legal research different from the types of research most
law students performed prior to law school. First, rules of law tend to be
both highly detailed and highly nuanced, so legal research often includes
acts of interpretation even at the research stage. Second, the rules of law
derive from a myriad of sources, many of which may be unfamiliar to
students. Furthermore, because legal research is so important to the practice
of law, the publication of legal materials has long been a profitable field. As
part of their long publishing history, legal sources developed their own
information systems that predate modern publishing practices. As a result,
the organization of legal materials tends to differ from that of other
materials. Finally, the process of legal research itself tends to be different. In
other fields, researchers often investigate ideas in the abstract. In the law, a
researcher must always keep the specific facts of her particular client’s
situation in mind, as a lawyer must always apply the results of her research
to her client’s problem.
Because legal research differs so substantially from other types of research,
the American Bar Association requires that law schools specifically instruct
students in legal research.1 Typically, research instruction occurs in the
context of a Legal Research & Writing (LRW) course. Schools teach legal
research and writing together because the two activities (finding/applying
the law and then communicating the found application) intertwine.
However, legal writing falls outside the scope of this text, which focuses on
the research portion of legal practice.
Throwing students into the deep end by having them read cases without
explanation or context and then teasing understanding out of them via the
Socratic Method remains the educational method of choice for most law
classes. This text will not follow that method. In fact, this text seeks to do

AMERICAN BAR ASSOCIATION, 2020-2021 STANDARDS AND RULES OF
PROCEDURE FOR APPROVAL OF LAW SCHOOLS, Standard 302(b) (2020).
1

2

the opposite, namely to provide enough explanation and context to
demystify the art of legal research. By knowing what each of the various
sources of law is, and by knowing how the various types of authority
interact with each other, law students will avoid being overwhelmed by the
level of detail and nuance inherent in the law and will be able to research
the law in a calm, efficient manner.
Thus, this text will introduce and explain the major sources of American
law one at a time. As it does so, it will provide insight into how publishers
arrange the sources of law. Because legal publishers originally developed
their methods of organization before the advent of electronics, each source
of law will be initially introduced by referencing its print form (i.e. actual law
books). Once students become familiar with the sources of law—and so
will know for what they are looking when they research—the text will
proceed to explain the processes of modern legal research, which mostly
involves computer-assisted research.
Before introducing the sources and processes involved in legal research,
however, a few words must be said about the shape and peculiarities of the
United States legal system. After all, it is the unique shape of our system
that gives rise to the different sources of law. Furthermore, lawyers conduct
research to solve legal problems, and those problems play out in the legal
system. You have to know the rules to play the game.

1.3 Federalism
The United States of America employs a federal system of government. As
anyone who follows American politics can tell you, federalism means
different things to different people. However, the legal definition of a
federal state is:
A composite state in which the sovereignty of the
entire state is divided between the central or federal
government and the local governments of the
several constituent states; a union of states in which
the control of the external relations of all the
member states has been surrendered to a central
government so that the only state that exists for
international purposes is the one formed by the
union.2

2 State, BLACK’S LAW DICTIONARY (11th ed. 2019).

3

The key point to take away from the definition is that in a federal state two
separate governments share law-making power, or sovereignty, over the
same territory. Of course, federal states differ from one another in precisely
how the central and local governments share law-making power. To
understand how the federal and state governments share sovereignty in the
U.S., one must look to the historical development of federalism in America.

1.3.1 Origins of American Federalism
Prior to declaring independence from Great Britain in 1776, the territory
that became the initial United States of America existed as colonies, at first
of England and later of Great Britain.3 Each of the colonies operated as an
entity under its own charter as a governing document according to English
law. The vast distances of America (especially compared to the relatively
smaller scale of England) combined with the slow speeds of pre-Industrial
Revolution travel to leave each colony effectively governing itself for large
portions of the 17th and 18th centuries.4
When the British government attempted to reassert control over the
colonies in the latter half of the 18th century, the colonies revolted and
eventually won their independence.5 Because of their history of self-rule,
each rebelling colony asserted its own sovereignty (thereby rejecting British
sovereignty over America) both during and after the Revolution. However,
in order to coordinate the war effort, each colony sent delegates to a
“Continental Congress” during the Revolution and eventually adopted the
Articles of Confederation6, which remained in force following British
recognition of American independence.

3 England and Scotland became joined in a “personal union” upon the ascension

of James VI of Scotland as James I of England. They did not officially merge into
the Kingdom of Great Britain until the Acts of Union of 1707: Union with
Scotland Act, 1706, 6 Ann, c.11 (Eng.); Union with England Act, 1707, c.7 (Scot.).
4See

generally JACK P. GREENE, PURSUITS OF HAPPINESS: THE SOCIAL
DEVELOPMENT OF EARLY MODERN BRITISH COLONIES AND THE FORMATION
OF AMERICAN CULTURE (1988).
5 For the definitive account of how the increased assertion of central authority by

the British Parliament led to the American Independence Movement, see
BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN
REVOLUTION (enl. ed. 1992).
6 ARTICLES OF CONFEDERATION OF 1781.

4

The Articles of Confederation created the United States as a confederation,
which resembles a federal state only with a weaker central government and
more independent local governments.7 Sadly, it turned out that a weak
central government with strong state governments did not adequately
administer such a large swath of territory. In particular, the fledgling United
States struggled economically.8 Thus, less than a decade after ratifying the
Articles of Confederation, the Founding Fathers reconvened to draft what
became the U.S. Constitution.9
However, even though the Founding Fathers acknowledged the need for a
stronger central government, they remained wary of too strong a central
power, as self-rule at the colony/state level had been the whole point of the
Revolution.10 Therefore, while the Constitution creates a strong federal
government, it also specifically limits the application of federal law-making
authority to specific topical competencies.11 State governments, while
subject to federal supremacy in the specified competencies12, retain general
sovereignty and so enjoy law-making authority over a wider range of
topics.13 Thus, the federal government possesses “enumerated powers,” or
law-making powers specifically enumerated by the Constitution, while state
governments possess “reserved powers,” or law-making powers over
everything else.14 Please see Figure 1.3.1 for a list of enumerated federal
competencies.

7 Confederation, BLACK’S LAW DICTIONARY 359 (11th ed. 2019).
8 The revolting colonies borrowed money heavily during the Revolution and so

owed huge sums of money to a number of foreign powers, most notably the
Dutch.

9 For a good legal discussion of the motivating factors behind the Constitution, see

CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE
MEANING OF THE FOUNDERS’ CONSTITUTION 15-60 (2005).
10 See id. at 100-127.
11 U.S. CONST. art. I, § 8.
12 U.S. CONST. art. VI.
13 U.S. CONST. amend. X.
14 Please note that it is not always entirely clear whether something is enumerated

or reserved, and in fact the definition of each has tended to change over time. For
purposes of legal research, just be aware that you will tend to deal with more state
law than federal but that federal law can trump state law on certain topics.

5

Enumerated Federal Power
Constitutional Origin(s) of Power
Taxation (partially shared with
art. I, § 8, cl. 1; amend. XVI
states)
Borrowing on Credit of U.S.
art. I, § 8, cl. 2
Regulating Interstate Commerce,
art. I, § 8, cl. 3
and Commerce with Foreign
Nations or Indian Tribes
Immigration & Naturalization
art. I, § 8, cl. 4
Bankruptcy
art. I, § 8, cl. 4
Coining & Regulating Value of
art. I, § 8, cl. 5
Money
Punishing Counterfeiting
art. I, § 8, cl. 6
The Mail
art. I, § 8, cl. 7
Copyright & Patents
art. I, § 8, cl. 8
Creation of Federal Courts (other
art. I, § 8, cl. 9
than the U.S. Supreme Court)
Punishing Piracy on the High Seas
art. I, § 8, cl. 10
& Crimes Under International Law
War & Armed Forces
art. I, § 8, cl. 11-16
Creating Laws for the District of
art. I, § 8, cl. 17
Columbia
“To make all laws which shall be
art. I, § 8, cl. 18
necessary and proper for carrying
into execution the foregoing
powers, and all other powers vested
by this Constitution in the
government of the United States, or
in any department of officer
thereof.”
Figure 1.3.1: Enumerated Powers of the Federal Government

1.3.2 Impact of Federalism on Legal Research
The way in which American federalism splits sovereignty impacts legal
research in a number of ways. First, for any given territorial point in the
United States, a researcher may need to look at two completely different
sets of laws, as both federal law and state law will apply throughout the
same territory. Sometimes a legal researcher will be able to tell at a glance
whether federal or state law will govern an issue, but at other times a

6

lawyer may need to do initial research just to determine whether to apply
federal or state law (or both) to a client’s problem. For example, federal
law, generally governs copyright15, a fact familiar to most lawyers off the
tops of their heads. However, the federal government’s interstate
commerce power derives from broader language16, has expanded over
time17, and may affect areas of law typically reserved to the states. For
instance, states typically define and punish crimes, such as robbery,
committed inside their boundaries.18 However, federal law also
criminalizes the robbery of banks, as the federal government insures banks
through the F.D.I.C. under the commerce power.19 Thus, any given legal
problem may necessitate researching multiple sets of laws.
Of course, American law comprises many more than two sets of laws.
While there is only one federal government, each of the fifty states
produces its own set of laws. Even 51 is too small a number to describe
the sets of laws contributing to the U.S. legal system. The District of
Columbia possesses its own laws, as do other Federal territories.
Furthermore, American Indian tribes, as “Domestic Dependent Nations,”
enjoy a limited form of sovereignty.20 While no legal problem will likely
involve all possible sets of laws in the U.S., legal researchers should remain
aware of the existence of multiple sets. Because most of the sets of laws
present in the U.S. evolved from a common ancestor (namely, the laws of
England), even if a jurisdiction’s set of laws does not directly apply to a
legal problem, it may contain pieces that help a researcher interpret a

15 U.S. CONST. art I, § 8, cl. 8.
16 U.S. CONST. art I, § 8, cl. 3.
17 See, e.g., Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); Wickard v. Filburn, 317

U.S. 111 (1942).
18 See, e.g., WASH. REV. CODE § 9A.56.200 (through December 7, 2020), available at

https://app.leg.wa.gov/RCW/default.aspx?cite=9A.56.200.
19 18 U.S.C. § 2113 (Legal Information Institute through Pub. L. No. 116-193).
20 American Indian law is outside the scope of this text. For a good introduction

to the subject of American Indian sovereignty, see WILLIAM C. CANBY, JR.,
AMERICAN INDIAN LAW IN A NUTSHELL (6th ed. 2015). For a list of federally
recognized tribes and contact information for their respective governments, see
BUREAU OF INDIAN AFFAIRS, U.S. DEP’T OF THE INTERIOR, TRIBAL LEADERS
DIRECTORY (2021).

7

different jurisdiction’s set that does apply.21 This concept will be revisited a
bit later in the discussion on hierarchy of authority in section 1.5.
Federalism impacts legal research not only by providing multiple sets of
laws for which researchers must account, but also by providing multiple
forums for the settling of disputes about the applications of laws. In other
words, in addition to worrying about the possibility of multiple sets of
laws affecting their clients, lawyers need to be aware of the options
presented by multiple, independent court systems operating over the same
geographic area. Sometimes a client may be advantaged by trying a case in
federal court as opposed to state court, or vice versa.
The matter becomes more complicated when one considers the fact that a
jurisdiction’s court system does not necessarily always apply its own set of
laws. For each controversy that comes before it, a court will determine
which jurisdiction’s laws should apply. This is known as choice-of-law.22 A
number of factors and guiding principles determine what set of laws a
court should apply, but for purposes of legal research it is important to
remember that federal courts, while largely interpreting federal law, also
sometimes interpret and apply state law. Similarly, while a state’s court
system most typically interprets the state’s own laws, it will sometimes
need to apply federal laws, or even the laws of another state.
Choice-of-law matters to the legal researcher because some cases will
involve applying bits of multiple sets of laws to the same facts. For
example, a criminal defendant facing prosecution under state law may raise
a federal constitutional defense. In such a case, the way the bits of law
interact with each other changes depending upon which court system tries
the case. Before we can cover more detail on the interaction between bits
of law, however, we need to examine where those bits, or sources, of law
originate by looking at the other key feature of the U.S. Legal System:
Separation of Powers.

There are a few notable exceptions to the proposition that American law
evolved from English Common Law. Louisiana’s law derived from the French
civil law system. Also, a number of states, primarily in the American Southwest,
feature elements of Spanish property law, and are known as “Community
Property” states. Finally, rather obviously, American Indian legal systems did not
evolve from English law.
21

22 Choice of Law, BLACK’S LAW DICTIONARY (11th ed. 2019).

8

1.4 Separation of Powers and Sources of Law
At the same time that the Founders, in drafting the Constitution, limited
the central government to enumerated powers, they also broke the federal
government into three distinct branches. They did so in the hopes that the
various branches would serve as checks and balances on each other and
prevent the sort of tyranny that the former colonists rejected from the
unified British government.23 This type of government structure is called
Separation of Powers, which is defined as:
The division of governmental authority into three
branches of government—legislative, executive, and
judicial—each with specified duties on which neither
of the other branches can encroach.24

Subsequent to the creation of the federal government with the U.S.
Constitution, each of the states in the United States adopted similar
provisions in their own constitutions. Indeed, every state government in the
U.S. features Separation of Powers.
American government, therefore, features three distinct branches at both
the state and federal levels: the legislative branch, the judicial branch, and
the executive branch. In the process of governing, each of the branches
contributes rules to the body of law of its jurisdiction. The term “sources of
law” refers to the different forms the various rules take.25. The legislative
branch passes statutes, the judicial branch issues opinions, and the executive
branch drafts regulations. However, a constitution underpins each of the
other sources and serves as the ultimate source of law.

1.4.1 Constitutions
Scholars often describe the United States legal system as a legally positivist
system. Legal positivism is a theory of jurisprudence that essentially states
that all law is human-made and is only valid in a state because people accept

23 For the classic account of the Constitutional Convention of 1787, when these

decisions were made, see CATHERINE DRINKER BOWEN, MIRACLE AT
PHILADELPHIA: THE STORY OF THE CONSTITUTIONAL CONVENTION MAY TO
SEPTEMBER 1787 (1966).
24 Separation of Powers, BLACK’S LAW DICTIONARY (11th ed. 2019).
25 Source of Law, BLACK’S LAW DICTIONARY (11th ed. 2019).

9

that it is.26 H. L. A. Hart, a twentieth century British legal philosopher,
wrote perhaps the clearest articulation of legal positivism in his seminal
work, The Concept of Law, which was quoted at the beginning of this chapter.
Part of Hart’s theory of legal positivism involves a “rule of recognition,”
which alerts citizens of a jurisdiction to the validity of its laws.27
For a legal rule in the U.S. to be valid, it must have been created by a
process described by the applicable constitution. Thus, in the United States,
the U.S. Constitution serves as the rule of recognition for the federal
government. Similarly, state constitutions serve as the rules of recognition
for their respective state governments. Under positivism, constitutions
derive their authority from the will and acceptance of the people. Thus, for
the American legal researcher constitutions represent the ultimate source of
law.
Of course, our constitutions do flesh out the processes by which our
governments may create other sources of law. We have already seen how
constitutions separate the various American governments into three distinct
branches. Logically enough, the constitutions also provide each branch a
method by which it can create legal rules.

1.4.2 Statutes
Under the American system of Separation of Powers as described by the
various constitutions, the legislative branch creates laws in the form of
statutes. Generally, to create a law, a legislator will introduce a bill into
whatever legislative house she belongs; then once the bill receives an
affirmative vote in each legislative house and the signature of the
jurisdiction’s chief executive, it becomes an enacted law.28
On the federal level, the legislative branch, known as Congress, consists of
the House of Representatives and the Senate. Bills that pass both houses
and are signed by the President become enacted and receive the
designation “Public Laws.” The Government Publishing Office (GPO)
publishes all Public Laws of the United States in a multi-volume set called

26 Legal Positivism, BLACK’S LAW DICTIONARY (11th ed. 2019).
27 H. L. A. HART, THE CONCEPT OF LAW 94-110 (2d ed. 1994).
28 This process holds true for the federal legislature and all but one of the state

legislatures. Nebraska, the odd state out, features a unicameral legislature, so bills
only need pass one house in the Cornhusker State.

10

the Statutes at Large. The GPO also divides the Public Laws into their
constituent parts by topic and fits them into a topically-organized
publication of all federal laws in force called the United States Code.
State legislatures follow the same process as the federal legislature, but the
nomenclature varies. For instance, in Kentucky the legislature is called the
General Assembly, which is comprised of the House of Representatives
and the Senate. Bills that pass both houses become Acts, which
researchers can find in chronological order in the Kentucky Acts or in the
topically-organized Kentucky Revised Statutes. Meanwhile, bills that pass both
houses of the Texas Legislature become General Laws published in the
Texas General Laws before being folded into one of a number of different
codes named for the topics they cover. Thus, while the processes resemble
each other, each state may call its statutes by slightly different terms.29
Because constitutions charge the legislative branches they create with
general law-making (“legislative” actually means law-making30) ability31,
statutes represent laws in their most basic sense. As such, they are the next
most important source of law after constitutions and typically control legal
problems over other sources of law. Statutes will be covered in greater
detail in Chapter 3.

1.4.3 Judicial Opinions
Although a statute on point would typically control a given legal
controversy, it is not always readily apparent how precisely a statute would
apply to a specific set of facts, or even whether it would cover the facts at
all. This ambiguity occurs because generally legislatures write statutes in
broad, abstract terms in order for the statute to cover as many scenarios as
possible. Thus, abstract statutes typically require interpretation in order to
apply them to specific controversies. Under Separation of Powers, the
judicial branch takes on the role of the interpreter of laws.
The judicial branch typically comprises several levels of courts, with a high
court at the top, trial courts at the bottom, and one or more levels of

29 For a thorough list of what each state calls its statutes, see THE BLUEBOOK: A

UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass’n et
al. eds., 21st ed. 1st prtg. 2020).
30 Legislative, BLACK’S LAW DICTIONARY 1039 (11th ed. 2019).
31 See, e.g., U.S. CONST. art. I, § 1; R.I. CONST. art. VI § 2.

11

intermediate appellate court in between, though the names of the various
courts vary by jurisdiction. At the federal level, the United States Supreme
Court acts as the high court, District Courts serve as the usual point of
entry to the system, and Courts of Appeal (also sometimes called Circuit
Courts) connect the two.32 Constitutional grants of judicial power generally
extend to the respective court system as a whole.33
Courts interpret the law by issuing judicial opinions, also referred to as
cases. Although subservient to the statutes they interpret, judicial opinions
create their own rules of law through the force of precedent.
Precedent works through the principle of stare decisis which is defined as:
The doctrine of precedent, under which a court must
follow earlier judicial decisions when the same points
arise again in litigation.34

Basically, consistency benefits law, in that it allows those governed by the
law to predict what they need to do to comply with the law. Following
earlier decisions as precedents leads to greater consistency. If courts begin
interpreting a statute in a certain way, society benefits if they continue to
interpret the same statute in the same way.
Sometimes judicial opinions create legal rules through precedent even
absent a statute. This happens often when courts interpret constitutional
sections. It also happens when courts apply legal rules that predate the
widespread use of statutes.35 The term “common law” refers to law made
through judicial opinions rather than by statutes.36 Many common law rules
remain in force in American law, particularly in the fields of Torts and
Property.
Thus, through the force of precedent, judicial opinions contribute legal
rules to the various bodies of American law, both through statutory
32 For a state-by-state breakdown of state court systems, see THE BLUEBOOK: A

UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass’n et
al. eds., 21st ed. 1st prtg. 2020).
33 See, e.g., U.S. CONST. art. III, § 1; MINN. CONST. art. VI § 1.
34 Stare Decisis, BLACK’S LAW DICTIONARY (11th ed. 2019).
35 The concept of the statute slowly developed in England during the late Middle

Ages, but statutes did not achieve primacy until the 16 th Century. Furthermore,
legislatures tended to operate on strictly part-time schedules well into the 19th
century.
36 Common Law, BLACK’S LAW DICTIONARY 334 (11th ed. 2019).

12

interpretation and common law. Indeed, many lawyers spend the majority
of their research time on case research. Judicial opinions will be covered in
more depth in Chapter 4.

1.4.4 Administrative Regulations
The final branch of government formed by constitutions mandating
Separation of Powers is the executive branch, which consists of a chief
executive and various cabinet departments and agencies that report to the
chief executive. At the federal level the President of the United States acts
as the chief executive, and at the state level the Governor fills the same
role. A constitution usually charges the chief executive with enforcing or
executing the laws of its jurisdiction.37
Of course, chief executives do not personally enforce all the laws of their
jurisdictions. Instead, they rely on employees of the various executive
departments and agencies for the enforcement of different areas of law.
Often, an agency or department will need to provide specific rules in order
to enforce a broad statute. Rules issued by agencies/departments take the
form of administrative regulations. In modern times, legislatures actually
delegate regulation-making authority to executive branch agencies by
statute, giving regulations the force of law.
While administrative regulations do contribute legal rules to the various
sets of American laws, lawyers generally regard them as the weakest of the
sources of law. Since regulatory authority comes via legislative delegation,
a legislature can remove the authority at any time. Administrative
regulations will be discussed in more detail in Chapter 5.

1.5 Hierarchy of Authority
As we have seen, American law comes from many sources. Not only does
each branch of government create its own source of law, but each separate
jurisdiction within the U.S. possesses its own set of laws. As such,
knowing how the different pieces of law interact with each other takes on
huge importance for legal researchers (especially if the different pieces of
law in any way contradict each other, which is not an unusual occurrence).

37 See, e.g., U.S. CONST. art. II, § 3; PA CONST. art. IV §2 .

13

Lawyers refer to individual sources of law as authorities and describe their
relationship to each other as the hierarchy of authority. As discussed
above, the standard hierarchy of authority starts with constitutions as the
most authoritative, and then proceeds in order of authoritativeness
through statutes, judicial opinions, and administrative regulations.
However, this simple hierarchy does not capture the nuance involved
when dealing with authorities from multiple jurisdictions or authorities
from one jurisdiction being applied by the courts of another. Furthermore,
not all judicial opinions carry equal weight. Some additional concepts are
therefore necessary to sort and rank authorities.

1.5.1 Primary v. Secondary Authority
Legal authority can be divided into two broad categories: primary authority
and secondary authority. Collectively, this distinction is referred to as “type
of authority.” Primary authority refers to “authority that issues directly
from a law-making body.”38 Thus, the four sources of law discussed
previously make up primary authority.39 Secondary authority, therefore,
refers to “authority that explains the law but does not itself establish it,
such as a treatise, annotation, or law-review article.”40 While lawyers may
cite secondary authorities, courts do not view secondary authorities as
possessing as much persuasive weight as primary authorities possess. More
will be said on secondary authorities and their use in Chapter 8.

1.5.2 Mandatory v. Persuasive Authority
Legal authority can also be divided into mandatory (sometimes called
binding) authority and persuasive authority. Collectively, this distinction is
referred to as “weight of authority.” Mandatory authority refers to an
authority that a court considering a case must apply, while persuasive
authority refers to “authority that carries some weight but is not binding

38 Authority, BLACK’S LAW DICTIONARY

(11th ed. 2019).

39 Note that in addition to the sources of law, government bodies often produce

various amounts of documentation in the process of creating the sources
themselves. These supporting documents will be primary in nature but will not be
legally binding. Nonetheless, researchers will sometimes look at them to help
interpret the sources of law they relate to.
40 Authority, BLACK’S LAW DICTIONARY

(11th ed. 2019).

14

on a court.”41 Obviously, lawyers benefit from knowing whether a court
must apply an authority to a case or whether a court may choose not to
apply an authority. Therefore, being able to determine the relative weights
of authority is a skill every legal researcher should aspire to acquire.

1.5.3 Determining Weight of Authority
Determining the weight of authority for some sources of law can be quite
straightforward. If a jurisdiction’s constitution applies to a set of facts
before a court, then the constitution acts as mandatory authority. Similarly,
if a statute from the jurisdiction in question relates to the facts in
controversy, a court must apply it. The same holds true for regulations,
though they tend to apply to more narrowly defined sets of facts. In other
words, constitutions, statutes, and regulations tend to be either mandatory
or irrelevant and are rarely used persuasively. Conversely, secondary
authority, since it is not actually law but merely interpretation, can never
be mandatory but only acts as persuasive authority. Thus, a determination
of weight for many authorities will be quick and easy.
The weight of authority of judicial opinions, however, depends on several
factors. A lawyer must first consider choice of law. In order to be binding,
a precedent must apply the same jurisdiction’s laws as would apply to the
controversy at hand. However, choice of law alone does not determine
weight of authority.
Second, the lawyer must consider venue, or the court where her
controversy would be heard if it went to trial. In order to be mandatory, an
earlier case must have been issued from the same court system as will be
adjudicating the controversy to which a lawyer would like to apply the
precedent. Furthermore, the earlier case must be from a higher court, in a
direct line of appeal, from the current controversy’s venue. As state court
structures vary, let us look at a hypothetical case in the federal court
structure as an example.
As discussed above, the federal court structure consists of trial level courts
(District Courts), intermediate appellate courts (Courts of Appeals), and
ultimately, the United States Supreme Court. District Courts and Courts of
Appeals are grouped into twelve geographic circuits (and one topical
circuit). If a lawyer loses a trial in a District Court, she may appeal to the

41 Id.

15

Court of Appeals for whichever geographic circuit contains the District
Court that tried her case. See Figure 1.5.3 for a list of which circuits
contain which districts.

Federal Circuit

Corresponding District Courts by
State in which they Reside
First Circuit
ME, NH, MA, RI, Puerto Rico
Second Circuit
NY, VT, CT
Third Circuit
PA, NJ, DE, Virgin Islands
Fourth Circuit
MD, VA, WV, NC, SC
Fifth Circuit
TX, LA, MS
Sixth Circuit
TN, KY, OH, MI
Seventh Circuit
IN, IL, WI
Eighth Circuit
MN, IA, MO, AR, ND, SD, NE
Ninth Circuit
CA, AZ, NV, ID, OR, WA, MT,
AK, HI, Guam, Northern Mariana
Islands
Tenth Circuit
UT, WY, CO, NM, KS, OK
Eleventh Circuit*
AL*, GA*, FL*
D.C. Circuit
D.C.
The Federal Circuit
certain appeals determined by
subject matter
Figure 1.5.3: The Federal Judicial Circuits
* The Eleventh Circuit split from the Fifth Circuit on
October 1, 1981. Therefore, Fifth Circuit Court of Appeals
decisions prior to that date are binding upon District Courts
in the Eleventh Circuit.
If a lawyer were trying a case applying federal law in the United States
District Court for the Eastern District of Kentucky, mandatory opinions
would include opinions from the Sixth Circuit Court of Appeals and the
United States Supreme Court. Because cases from the Eastern District of
Kentucky may only be appealed to the Sixth Circuit Court of Appeals,
opinions from other circuits’ Courts of Appeals would merely be
persuasive, even though those courts are higher courts. Similarly, if the
same lawyer were handling the appeal from the District case in the Sixth
Circuit Court of Appeals, only Supreme Court cases would be mandatory,

16

as the Supreme Court is the only court higher than a Court of Appeals in
the federal system.
To complicate matters, however, an exception exists if the choice of law
and venue do not match, i.e. a case in federal court involves state law, or a
case in state court is applying federal law or the law of another state as a
choice of law. Under these circumstances, the court applying a different
jurisdiction’s laws will treat opinions from the high court of that
jurisdiction as mandatory. This is because each jurisdiction’s high court
acts as the final arbiter of its laws under constitutional principles of
federalism. For example, if the United States District Court for the
Eastern District of Kentucky hears a negligence case governed by
Kentucky state tort law, it will treat opinions from the Kentucky Supreme
Court as mandatory.
Of course, even if a lawyer determines an opinion only serves as
persuasive authority, she may still choose to use it, particularly if it features
facts similar to her controversy. Furthermore, some cases may be more
persuasive than others. Generally speaking, opinions coming from higher
courts are more highly persuasive. Also, cases from the court system of the
jurisdiction whose law has been selected as the choice of law tend to be
better than cases from other court systems. In the abstract, more recent
cases tend to be favored over older cases, as the more recent cases will be
presumed to have been aware of the earlier cases and to have incorporated
them into the more recent holding. Finally, although they are not binding
because they may technically be overturned, earlier cases from the same
court hearing the current controversy would be a higher level of persuasive
authority as courts generally try to avoid overturning their earlier decisions.
Although not always an easy task, the evaluation of the hierarchy of
authority for a given legal problem is an essential skill for legal researchers
to determine what research paths to pursue. Furthermore, a legal
researcher needs to be able to recognize the various sources of law that
create the rules that govern the problem being researched. For these
reasons, legal researchers should keep the structures of the U.S. Legal
System firmly in mind as they research.

1.6 Concluding Exercises for Chapter 1
Try your hand at putting legal authorities into hierarchical order! For each
of the following fact patterns, put the authorities listed into order from the
most authoritative to the least authoritative. Draw a line at the point above

17

which all authorities are mandatory and below which all authorities are
persuasive.

1.6.1 Introductory Hierarchy of Authority Exercise
You represent Old Tobias Tobacco Company. Recently, a start-up
“guerrilla marketing” firm operating on Old Tobias’s behalf may have
inadvertently violated federal law. Apparently, the guerrillas started a
campaign whereby they were encouraging Facebook users to change their
profile pictures to an Old Tobias print ad from the 1950s, an ad which runs
afoul of current laws, and now the feds are preparing to file suit in the
Middle District of North Carolina (where Old Tobias is headquartered). As
a result, you did a little research into the matter. Please rank the authorities
you found according to weight and hierarchy of authority:
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). [United
States Supreme Court Case]
Robert J. Baehr, A New Wave of Paternalistic Tobacco Regulation, 95 Iowa L.
Rev. 1663 (2010). [Scholarly Article About Tobacco Regulation]
15 U.S.C. § 1335 (2012). [Federal Statute]
R.J. Reynolds Tobacco Co. v. Seattle-King County Dept. of Health, 473 F. Supp. 2d
1105 (W.D. Wash. 2007). [Federal District Court Case]
R.J. Reynolds v. Phillip Morris, 199 F. Supp. 2d 362 (M.D.N.C. 2002). [Federal
District Court Case]
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). [United States Supreme
Court Case]
Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2001). [Federal Court
of Appeals Case]
Brown & Williamson v. FDA, 153 F.3d 155 (4th Cir. 1998). [Federal Court of
Appeals Case]

18

1.6.2 Intermediate Hierarchy of Authority Exercise
Dear Associates:
We are representing Ronny Jotten in an upcoming drug possession case in
Fayette County Circuit Court in Lexington, KY. Jotten is a graduate
student living in university housing. He has his own bedroom but shares a
kitchen and common room with three other students. On the morning of
August 23rd, Lexington police officers, while looking for Vic Sydney, a
known acquaintance of Jotten, entered Jotten’s suite without a warrant.
The police limited themselves to the common areas and did not enter a
bedroom. All residents were away from the flat at the time. However, Mac
Shane, an undergraduate living next door to Jotten, entered the flat
looking for Jotten. The police, who in the meantime had found a rather
large bag of marijuana in between some couch cushions, asked Shane if he
knew whose it was. Shane, inebriated at the time and wanting to deflect
attention away from that fact, replied that the marijuana was “Ronny’s”
before waltzing out the door. The police subsequently arrested Jotten.
I’m pretty sure that what the police did was an unlawful search under
federal law, but I’m going to need to prove that Jotten had a reasonable
expectation of privacy in the common area (as opposed to dorm room) of
his suite. Here are some authorities on the matter. Please put the following
materials into hierarchical order. Please draw a line between binding and
persuasive authority. Thanks. As a reminder, we’re arguing federal law in
state court.
Regards,
Ms. Partner

United States v. Villegas, 495 F.3d 761 (7th Cir. 2007)
Katz v. United States, 389 U.S. 347 (1967)
Adams v. Commonwealth, 931 S.W.2d 465 (Ky. Ct. App. 1996)
Minnesota v. Olson, 495 U.S. 91 (1990)
Blades v. Commonwealth, 339 S.W.3d 450 (Ky. 2011)
U.S. Const. amend. IV
8 Ky. Prac. Crim. Prac. & Proc. § 18:11 (part of the Kentucky Practice legal
encyclopedia set)

19

United States v. Carriger, 541 F.2d 545 (6th Cir. 1976)
City of Athens v. Wolf, 313 N.E.2d 405 (Ohio 1974)

1.6.3 Advanced Hierarchy of Authority Exercise
You are a staff attorney for Heaven’s Doorkeepers, a non-profit legal aid
organization devoted to defending death penalty cases in the state of
Texas. Your most recent case is that of J.W. Harding, who has been
charged with capital murder under Tex. Penal Code ANN. § 19.03 (West
2011). The charges stem from an incident in which Mr. Harding broke
into a barn on The Freewheelin’ Ranch owned by one Robert Dillon. Mr.
Harding proceeded to steal roughly a dozen cattle from the barn. As he
was looking for some kind of way out of there, Mr. Harding, driving the
small herd of cattle, encountered Mr. Dillon approaching on foot along
Highway 61. Mr. Harding prompted the cattle to stampede in an attempt
to escape, and the herd trampled Mr. Dillon to death. To make matters
worse for Mr. Harding, Mr. Dillon’s next of kin, his son Jacob, is suing
Mr. Harding for wrongful death. Jacob Dillon resides in Nashville, TN, in
a condo with a great view of the skyline. As such, he is suing Mr. Harding
in federal court on diversity jurisdiction.
Since Heaven’s Doorkeepers is representing Mr. Harding anyway, your
supervising attorney has decided to help with the wrongful death suit as
well. She is assigning you to explore each of the following legal issues:
capital murder as a matter of state law in Texas courts, cruel and unusual
punishment as a matter of federal law applied in Texas state courts, and
wrongful death civil actions as a matter of Texas state law as applied in
federal courts. Please put the following sources into hierarchical order for
each issue. Label each source as mandatory or persuasive.
Bear in mind that Texas has two Supreme Courts, the Texas
Supreme Court (Tex.) handles civil cases, and the Texas Court of
Criminal Appeals (Tex. Crim. App.) deals with criminal cases.

Capital Murder (state law) in Texas
Young v. Commonwealth, 50 S.W.3d 435 (Ky. 2001)
Tex. Penal Code ANN. § 19.03 (West 2011)
Texas v. Cobb, 532 U.S. 162 (2001)

20

Patrick S. Metze, Death and Texas: The Unevolved Model of Decency, 90 Neb. L.
Rev. 240 (2011)
Bible v. State, 162 S.W.3d 234 (Tex. Crim. App. 2005)
Kennedy v. State, 338 S.W.3d 84 (Tex. App. 2011)
Paredes v. Thaler, 617 F.3d 315 (5th Cir. 2010)
Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011)
Cruel and Unusual Punishment (Federal Issue in Texas state courts)
Lawrence Rosenthal, Originalism in Practice, 87 Ind. L. J. 1183 (2012)
Gonzalez v. State, 353 S.W.3d 826 (Tex. Crim. App. 2011)
Stringer v. Black, 503 U.S. 222 (1992)
U.S. v. Fogg, 666 F.3d. 13 (1st Cir. 2011)
Garcia v. Texas, 131 S.Ct. 2866 (U.S. 2011)
Turpin v. Commonwealth, 350 S.W.3d 444 (Ky. 2011)
Sama v. Hannigan, 669 F.3d 585 (5th Cir. 2012)
U.S. Const. amend. VIII

Wrongful Death Civil Action (Texas state law in Federal Court, specifically
in the M.D. Tenn.)
Ruiz v. Guerra, 293 S.W.3d 706 (Tex. App. 2009)
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003)
Wackman v. Rubsamen, 602 F.3d 391 (5th Cir. 2010)
Austin Nursing Center, Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005)
Tex. Civ. Prac. & Rem. Code Ann. § 71.002 (West 2011)
Fry v. Lamb Rental Tools, Inc., 275 F. Supp. 283 (W.D. La. 1967)
Detroit Crude Oil v. Grable, 94 F. 73 (6th Cir. 1899)
Bunt v. Sierra Butte Gold Min. Co., 138 U.S. 483 (1891)

21

1.7 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on the legal system of the United States touch upon
material covered in this chapter. They would be a great place to start for
students looking for further practice on the concepts introduced in this
chapter!

1.7.1 “Where Does Law Come From?”
Summary: an overview of the branches of the U.S.
government and how they make law
URL: http://www.cali.org/lesson/1072

1.7.2 “Legal Research 101: The Tools of the Trade”
Summary: an introduction to basic resources for
researching the law
URL: http://www.cali.org/lesson/568

1.7.3 “Decision Point: State or Federal?”
Summary: a series of exercises designed to help
researchers recognize whether to look to federal or
state law
URL: https://cali.org/lesson/574

22

Chapter 2

Introduction to Electronic
Research
I think it’s fair to say that personal computers have
become the most empowering tool we’ve ever
created. They’re tools of communication, they’re
tools of creativity, and they can be shaped by their
user. – Bill Gates

Note: Some of the images presented in this chapter and subsequent
chapters are from video screencasts of the processes described in the
text. Readers are encouraged to watch the screencasts to see the
techniques in use. Screencasts may be accessed by clicking on the
URL provided in each image’s caption.

2.1 Learning Objectives for Chapter 2
In working through this chapter, students should strive to be able to:


Explore the basic organization of legal platforms.



Identify the basic processes of online research: searching,
browsing, and limiting results through filters.



Describe how an index and a table of contents differ.

2.2 Introduction to Electronic Research
At its core, the practice of law consists of locating relevant legal
authorities, applying the authorities to your client’s facts, and then
communicating the predicted result of the application. To accomplish this,
legal researchers need to be familiar with the most efficient ways of finding
the relevant legal authorities. Today, that is often accomplished using
online legal research platforms.
Researchers should keep in mind that computers did not achieve
prominence until roughly a hundred years after the professionalization of

23

the practice of law. As a result, major legal publishers originally created
their publications and accompanying tools in a strictly paper-based world.
When these publishers began to make their publications available
electronically, search capabilities were rudimentary compared to what we
are used to today, and so the same tools that existed in print were – and
continue to be - reproduced electronically. Search capabilities and new
electronic tools continue to be developed, so an efficient legal researcher
should be proficient not only in search but also in the additional
functionality available on legal research platforms.
The current legal research platform business features various market
segments. At the top end of the market lie full-service legal platforms such
as Westlaw Edge and Lexis+ that contain primary authorities, secondary
authorities, and a variety of tools beyond search to help a researcher locate
relevant materials. More recently, Bloomberg L.P. (an electronic resource
publisher focusing on news and finance) has branched into the legal
information market and now offers Bloomberg Law as a third full-service
legal research platform. A key feature of these full-service platforms,
beyond their breadth of coverage and proprietary search algorithms,
remains the inclusion of human-created value-added content to support
basic computer processing. Value added content, such as headnotes in
judicial opinions and annotations to statutes, will be addressed in
subsequent chapters.
The legal research platform market also features budget model legal
platforms, such as Casemaker and Fastcase. Generally speaking, the
budget models rely on search algorithms to a much greater extent and
include little or no human-generated content or tools. While these
services come with a significantly lower price tag than the full-service
providers, they require more effort and attention from researchers using
them.
In between the top end of the market and the budget models, many
publishers offer niche services. For example, Thomson Reuters, the
company that produces Westlaw Edge, also produces Checkpoint, an
electronic research platform devoted to tax law research. ProQuest’s
Legislative Insight provides legislative history documents in digital form.
Niche electronic legal research platforms vary in the amount of humangenerated features they employ.
Despite the proliferation of various types of electronic research platforms,
they tend to interact with information in similar ways regardless of specific

24

programming. In this chapter, we will introduce some of the basic
electronic processes and tools available on many legal research platforms
before speaking about them in relation to specific types of primary
authorities in Chapters 3, 4, and 5. For demonstration purposes, we will
focus on Westlaw Edge and Lexis+ as they are commonly used research
platforms in legal practice and law schools.

2.3 Basic Electronic Research Processes
Most researchers today possess extensive experience with the Internet.
Searching, browsing, and filtering42 are actions that many of us use daily to
navigate around the wealth of information the Internet has placed at our
fingertips. These same basic actions will be used for electronic legal
research.
This is not to say, however, that the novice researcher already knows how
to use electronic resources to research the law effectively. Law is a complex
system that encompasses a wide variety of authorities, and so understanding
what authorities the search engine is presenting to you and how they relate
to your legal problem is critical. The selection and evaluation of
appropriate resources for a given problem is sometimes referred to as
“information literacy.” The subsequent chapters of this book will elaborate
on the types of authorities you will encounter on legal research platforms
and advise you how to evaluate and utilize them in your research. Keep in
mind that it may take several years of experience before a researcher
achieves full literacy in the variety of sources that make up the field and is
able to identify quickly the most relevant sources to a research problem.
Law involves the interpretation of the meaning of words. Computers’
ability to interpret human language is improving rapidly but still requires the
researcher to think carefully about the terminology she is employing and
often to use tools beyond search that aid in the sorting of information.
While the basic processes used for recreational Internet-surfing will be the
same as those that are used for legal research, a greater level of precision
and efficiency must be employed for the latter lest one be inundated by
irrelevant results. For instance, simply typing common law marriage into
Lexis+’s search bar returns over 8,000 cases.

42 “Filtering” is sometimes also referred to as “limiting” or “selecting facets.” For

purposes of consistency, this text will use the term “filtering.”

25

Figure 2.3 A screenshot of a simple keyword search in
Lexis+TM brings back thousands of search results. Reprinted
from LexisNexis with permission. Copyright 2021
LexisNexis. All rights reserved.

Too many results can be just as bad for a legal researcher as too few. Not
only will she not have time to read through all the results, but they may not
all be relevant to her problem. It’s just as problematic for a researcher to
cite authorities that do not apply to the facts at hand as it is to fail to cite
key authorities that do apply. For these reasons, it is of paramount
importance that law students work to become precise, efficient researchers.

2.3.1 Browsing
In electronic research, browsing refers to the process of navigating through
a website’s inherent organization to narrow in on the information the
researcher is seeking. Legal research platforms are typically organized
according to the concepts discussed in Chapter 1: type of authority,
jurisdiction, as well as by legal topic. However, platforms may employ
slightly different terminology. For example, Lexis+ allows researchers to
browse by Content types, which allows users to select types of authority like
statutes or secondary sources. It also uses the term Practice Area rather
than topic. See the video in Figure 2.3.1 for further explanation of how
Lexis+ is organized. Westlaw Edge and other legal research platforms are
generally organized along similar lines.

26

Figure 2.3.1 Browsing on Lexis+TM. Click here for
screencast: https://youtu.be/9sRAqzp55hE. Reprinted
from LexisNexis with permission. Copyright 2021
LexisNexis. All rights reserved.

2.3.2 Filtering
Filtering is a process by which electronic researchers focus on some search
results while excluding others. Information providers assign descriptive
information to individual documents which allow researchers to narrow in
on the specific information they are looking for. For example, online
retailer Amazon has filters that allow customers to find exactly what they
are looking for among a multitude of results. So, if one wanted to buy
sandals from Amazon, one could search for “sandals” and then filter the
results by brand, size, color, and even average customer review, which are
all pieces of metadata collected by Amazon and applied to each individual
product entry.
Filtering may be the most flexible of the electronic information gathering
processes. It can be performed pre-search or post-search. Legal research
platforms generally build a number of useful filters into their platforms.
Commonly used filters include type of authority (statute, case, secondary
source, etc.), jurisdiction, date, and topic (as assigned by editors working for
the information provider). Researchers typically find available filters listed
in a box to the left of delivered search results.

27

Figure 2.3.2 Filtering in Westlaw Edge. Click here for
screencast: https://youtu.be/8JL44vzt2GY

2.3.3 Natural Language Searching
In daily life we tend to retrieve much of our information on the Internet by
searching. Even the name of the most widely used search engine is now
synonymous with the term “looking stuff up on the internet”.43 At its core,
searching is a simple process that consists of typing terms into a search bar
and then scanning through the results. For example, if I wanted to find out
how to add page numbers to a document, I might search for “page
numbers” or use a phrase including more contextual information such as
“page numbers in Word 2016” or even ask a question: “How do I add page
numbers in Word 2016?” The search engine then uses an algorithm to scan
websites and return results likely to give me the information I need.
This type of search is referred to as a natural language search or a keyword
search. The researcher is largely relying on the site’s search algorithm to
retrieve information. When search algorithms were first created, they did
not actually comprehend the information that was contained in each search
result. They were simply counting terms and other types of data on the
search results to rank them on the results page. Today, many sites utilize

43 For example: “Let me Google that for you.”

28

more sophisticated search algorithms which now employ types of artificial
intelligence that can relate search terms with synonyms or even concepts.
The current generation of legal research platforms default to a natural
language search, mostly as a response to the rise of Google, and employ
artificial intelligence in their search algorithms. While it is possible to use a
natural language search as a starting point for legal research, it is still best
suited for relatively simple legal questions. Even then, it usually returns a
relatively large number of results that will require a researcher with good
information literacy skills to be able to recognize which results are most
useful. For example, the search pictured in Figure 2.3.3 seeks an answer to
the question of whether Vermont recognizes common law marriages, a
relatively straight-forward yes-or-no question, and the artificial intelligence
tool in Westlaw Edge called Westlaw Answers has defaulted to other
states.44 The search has also returned 94 cases, amongst other types of
documents. So, while the algorithm (which Westlaw Edge tailored
specifically for legal research) does present authority to answer the yes or
no question, it also presents a lot of information that does not answer the
question. It is up to the researcher to determine which of the results
provide proper legal authority to answer the question. Thus, natural
language searching is not always the most efficient way to research complex
issues of law, or at least not in isolation.

44 However, AI algorithms can learn quickly.

We had originally used Kentucky
for this example, and Westlaw Answers was providing us with the same Maine
and New Mexico responses. Two weeks later, after running variations of this
search several times for Kentucky and other states, Westlaw Answers was
providing us with the correct answer for Kentucky. However, it had also
sometimes stopped returning an answers box at all if the question was posed
using slightly different language.

29

Figure 2.3.3 Screenshot of Westlaw Answers. Westlaw
Edge uses artificial intelligence for its Answers feature, but it
does not always provide the necessary information.

2.3.4 Boolean Operators
The creators of full-service legal information platforms (and indeed many
creators of search engines generally) include in their products tools that
enable legal researchers to take greater control of the search in order to
achieve more precise results. Programmers call these tools “operators”
because they operate upon the basic search function to modify the
algorithm used. Researchers can usually find a list of available operators
through an “advanced search” interface. The idea behind these operators is
not to rely on the search algorithm but to essentially override it by asking
for very specific results.
The basic operators supported by many search engines, including those on
legal research platforms, are called Boolean operators: AND, OR, and
NOT.45 The use of the AND operator between two keywords tells the
search engine that you want both keywords in all your search results, which

45 The form the operators take may differ by platform; see Chapter 7 for a chart

of search operators on used on Lexis+ and Westlaw Edge.

30

means that the search engine won’t bring back any result with only one of
the keywords. For example, if you wanted to be sure to find search results
mentioning the terms custody and the term divorce, using custody AND
divorce would force the search engine to pay attention to both terms and it
would eliminate any document that doesn’t contain both words. The
operator has effectively limited your search, which is often what you are
aiming for in research. The more search results you have, the more time
you will spend evaluating the results.
NOT operates by excluding terms. It tells the search engine to ignore any
result with a particular keyword. So, if you were doing research on Apple
the company and you are getting search results on apple the fruit, you might
use the NOT operator to exclude any search result using the term fruit:
Apple NOT fruit. This operator again works to limit a search; however, it
can be easy to over-exclude results, so it must be used cautiously.
OR, on the other hand, can be used to broaden a search. A typical use of
OR is when the search algorithm is not returning results containing all the
synonyms that you want. If you are searching for legal authorities
pertaining to boat ownership, you might use the search ship OR boat.
These search operators can be used in combination, and there are many,
many more of them that are available to you on research platforms. We
will talk about more search operators and how to use them in combination
with other research tools in Chapter 7.

2.4 Finding Aids
The term “finding aid” is employed by some researchers to refer to tools
that allowed a researcher to utilize a specific publication or set of
information. Two types of finding aids that originated in print can also
often be found in an electronic environment: the table of contents and the
index. For example, most legal researchers have utilized a print textbook
for a college or high school class, and many of these textbooks contain
those two finding aids common to non-fiction publications.
A table of contents is generally located at the front of a publication and lays
out the physical organization of the book, starting at page 1 and listing the
organization to the end of the book. The physical organization of the book
is often topical. An introductory biology textbook might have chapters on
Animals and Plants and Genetics. Those chapters are likely divided, just as
this book is, into more specific sub-topics in sections.

31

An index is generally located at the back of a publication and is organized
alphabetically by more specific topics than a table of contents. Under each
topic, subtopics will be specified, along with the page numbers where you
can find mentions of those subtopics in the textbook. Humans create
indexes, and so they will generally include both terms of art46 and more
colloquial language so that novices can use it as an entry point. An index
can help you find specific topics mentioned in multiple places in a book. In
a biology textbook, it might help you locate every page on which evolution
is discussed and, more specifically, pages that discuss the evolution of cell
structures. Before full-text searching, indexes were the best option for
locating all pages of a book discussing a specific topic.
Because many legal publications were initially created in print, these finding
aids are often still useful either instead of or in conjunction with electronic
processes. Most statutes relating to murder are probably located in the
same chapter of a statutory code. If the statutes use the term homicide
instead of murder, you could still probably look up murder in the index and
get to the right statutes. That doesn’t change just because statutes are now
available online. If a table of contents exists for a legal publication in print
form, it is probably also available in its electronic form. Indexes are not as
commonly available, but still exist for some sources on some platforms.
Further discussion of finding aids will be discussed in subsequent chapters
in relation to specific authorities.

2.5 Citing References
When conducting research, it is often useful to know what
documents discuss a relevant document that you have already found.
For example, if you have an article published in 2010 discussing
medical malpractice in California, it might be useful to see a list of
documents published after 2010 that cite or refer to your 2010 article
to see how the area of law evolved. Such a tool goes by various
names like “citing references” or “citator,” but most legal research
platforms have it available for some types of authorities. Further
discussion of citing references and their value in legal research will

46 “A word or phrase having a specific, precise meaning in a given specialty, apart

from its general meaning in ordinary contexts.”
DICTIONARY (11th ed. 2019).

32

Term of Art, BLACK’S LAW

occur in Chapter 6 and 7. In the meantime, Chapters 3-5 will focus
on the individual sources of law that researchers will discover on
these legal research platforms.

33

Chapter 3

Constitutions & Statutes
Thus, the particular phraseology of the Constitution
of the United States confirms and strengthens the
principle, supposed to be essential to all written
Constitutions, that a law repugnant to the
Constitution is void, and that courts, as well as other
departments, are bound by that instrument. – John
Marshall, Marbury v. Madison, 5 U.S. 137, 180 (1803)
All those courts before mentioned are in use, and
exercised as Law at this day, concerning the Sheriffes
Law dayes and Leets, and the offices of High
Constables, pettie-Constables, and Tithingmen;
howbeit, with some further additions by Statute
laws… - Francis Bacon, The Elements of the Common
Laws of England

3.1 Learning Objectives for Chapter 3
In working through this chapter, students should strive to be able to:


Compare the different stages in a statute’s life-cycle.



Evaluate the properties of a code:





o

code organization

o

currency

o

code annotations

Use finding aids to find specific statutes in print and online:
o

by citation

o

by topic using the index

o

by popular name

Recognize the various types of document comprising a statute’s
legislative history and evaluate how useful each type would be for
determining legislative intent.

34

3.2 Constitutions & Statutes
As discussed in Chapter 1, constitutions act as the highest source of law in
the United States legal system. No other law can be valid if it conflicts with
a constitutional provision. As such, finding applicable constitutional
sections takes on dire importance for legal researchers. Fortunately,
constitutions tend to be short. Furthermore, because of their importance,
most experienced lawyers will know whether or not a constitutional issue
will likely apply without needing to do an overly large amount of research.
Because of these factors, and because jurisdictions tend to publish their
constitutions in the same place as their statutes, we will cover constitutions
and statutes together.
Constitutionally-valid statutes act as the second highest source of law at
both the federal and state levels. An applicable statute will control a given
legal problem over case-made legal rules. This has been the case in the
Anglo legal tradition since the late Middle Ages, as the quote from Francis
Bacon at the beginning of this chapter suggests. However, the full primacy
of statutes did not occur until the Tudor period in the Sixteenth Century.47
In fact, at that time England underwent the Reformation and split from the
Roman Catholic Church by statute.48 As the development of statutory
authority occurred before the founding of the North American colonies,
statutes have always enjoyed primacy (subject to written constitutions, an
American innovation) in the U.S. legal system.
This is not to say that statutes have always taken the same form. American
political and legal institutions have evolved over time. However, we will not
cover the complete history of statutory forms since what matters to most
researchers is finding and understanding relevant statutes in their current
forms. To understand the different forms statutes currently take, however,
we must first turn our attention to the life-cycle of a statute.

For an account of how Henry VIII and his secretary Thomas Cromwell
modernized English political and legal institutions, see generally G. R. ELTON, THE
TUDOR REVOLUTION IN GOVERNMENT; ADMINISTRATIVE CHANGES IN THE
REIGN OF HENRY VIII (1953).
47

48 Ecclesiastical Appeals Act, 1532, 24 Henry 8, c. 12 (Eng.).

35

3.3 Life Cycle of a Statute
Statutes, of course, come from legislatures. When a legislator wants to
create a new statute, he introduces a bill into whichever house he belongs.
Upon introduction, each bill receives a number beginning with a
designation of its house of origin. For example, at the federal level, bills
introduced into the House of Representatives begin with the letters H.R.,
while bills introduced in the Senate begin with the letter S. State
legislatures follow similar schemes. Bill numbering starts over each
legislative session, so researchers need to be aware of which session of a
legislature considered a bill. However, bills are not yet statutes, and many
never become so.
Upon passing both houses of a legislature,49 a bill is signed by the
executive (barring a veto) and becomes a statute. Different jurisdictions
call their statutes by different names, but Acts or Laws are the most
commonly used terms. At the federal level, passed bills become known as
Public Laws.50 Public Laws receive a unique number, beginning with the
number of the Congressional session in which the law was passed. The
Government Publishing Office then immediately publishes each Public
Law as a pamphlet or slip law. Slip laws, due to their quick publication,
effectively give the public notice of new laws. However, because each slip
law contains only one statute in isolation, they are not terribly useful for
legal research purposes. In fact, many states do not bother to issue slip
laws.
At the conclusion of each legislative session, the printer for the legislature
gathers all statutes passed during the session,, also known as “session
laws”, and publishes them in chronological order as part of a multi-volume
set. At the federal level, the set is called the Statutes at Large. Different
states call their session laws different things. For instance Kentucky calls
its session laws the Kentucky Acts, while Ohio calls its the Ohio Laws.51
Because these collections of session laws feature chronological
organization, a legal researcher pursuing a specific topic will not find them

49 Except, of course, in unicameral Nebraska.
50 For a complete list of what each state calls its statutes, see THE BLUEBOOK: A

UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass’n et
al. eds., 21st ed. 1st prtg. 2020).

51 For a complete list of what each state calls its session laws, see THE BLUEBOOK:

A UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass’n
et al. eds., 21st ed. 1st prtg. 2020).

36

terribly useful. However, if a researcher has already found a specific statute
and wishes to see earlier versions of that statute, session laws become a
valuable resource, as we will see in section 3.4.3.4.

Figure 3.3: Life Cycle of a Generic Statute

Finally, after initial publication, statutes undergo codification, which is:
The process of compiling, arranging, and
systematizing the laws of a given jurisdiction, or of a
discrete branch of the law, into an ordered code.52

The process of codification thus results in a topically-organized code of
statutes in force. The federal government appropriately titles its code The
United States Code (U.S.C.). Naturally, as befits the U.S. federal system,
state codes vary in name.53 Note that when a new statute makes changes to
the existing statutory code, language is added or removed to the code as
necessary to incorporate those changes. Thus, codes constantly change,
while session laws serve as repositories of historical laws. Because most
legal research involves investigating legal issues that apply to facts, rather
than beginning with a specific statute, codes tend to be the statutory

52 Codification, BLACK’S LAW DICTIONARY (11th ed. 2019)..
53 For a complete list of what each state calls its code, see THE BLUEBOOK: A

UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law review Ass’n et
al. eds., 21st ed. 1st prtg. 2020).

37

source researchers use most often. A jurisdiction’s code also typically
includes its constitution at the front, so constitutional research would also
be conducted with a code.

3.4 Using Codes
Lawyers conduct the bulk of their statute research using the codified
versions of statutes (also known as statutory codes) because they contain
the statutes currently in force. Legal researchers therefore need the ability
to use codes efficiently. Because codes and their finding aids developed
during the pre-computer era, we will introduce their use in print format.
Of course, electronic legal publishers include codes on their research
platforms, but rather than reinvent the wheel, the electronic publishers
incorporated many of the tools originally developed for codes in hardcopy. Also, some experienced legal researchers prefer codes in print due to
the efficient design of these resources.

3.4.1 Codes & Topical Organization
Codes work well for legal research because of their topical organization. A
topical organization allows for the easy creation of a topical index, a type
of finding aid which researchers can use to find code provisions on a
specific topic. Once a researcher finds a code provision on point, nearby
provisions may also be likely to be of use because of the way codes group
similar topics together. In order to see how this works, let us take a closer
look at the organization of a typical code.54
The most basic unit of a code is the section, which provides for a specific
legal rule over a set of circumstances. In fact, usually when lawyers refer to
“a statute,” they mean an individual code section. While sections may
feature subsections, the subsections themselves only provide for part of
the legal rule created by the section and so cannot really act on their own.
Think of code sections as analogous to atoms. While protons, neutrons,
and electrons make up atoms, none of those particles will be found in
nature on their own, but only clumped together in atoms. Subsections and
code sections work in the same way.

54 Note that as with most authorities in a federal system, exact nomenclature may

vary jurisdiction by jurisdiction; however, the terms that follow are the most
commonly used.

38

Codes then group related sections together into chapters. Sometimes a
code will also use sub-chapters if an area of law contains a sufficient level
of depth for multiple classifications. For instance, in the United States
Code, Chapter 10 of Title 18 contains all of the code sections related to
federal criminalization of biological weapons. The individual sections in
the chapter address discreet topics such as the prohibition of biological
weapons or seizure of biological weapons by the government.55 Note also
the inclusion of a definitions section in the chapter.56 The definitions
contained therein apply to all the other sections in the chapter. A
researcher would need to find the definitions in order to apply correctly
any of the other sections in the chapter. Luckily, a code’s inherent
organization makes such a discovery likely. Furthermore, print codes
feature a table of contents at the beginning of each chapter to enable
researchers to grasp quickly the organization of that particular chapter.

Figure 3.4.1a: The table of contents for Chapter 10 of Title
18 of the United States Code Annotated.

Codes then group related chapters together into titles. Generally, a title acts
as the largest unit of organization in a code, other than the code itself.57 For
example, the U.S.C. houses the chapter on biological weapons in Title 18
with other chapters dealing with different crimes. A table of contents alerts
researchers as to what chapters are included in the title. Sometimes titles
include definitions or general principles that apply throughout the title.
These will usually be found towards the beginning of the title. Similarly, a

55 18 U.S.C. §§ 175 – 178 (2018).
56 18 U.S.C. § 178 (2018).
57 Sometimes codes also group related chapters into separate parts within a title.

Note also that some jurisdictions, notably Texas and California, publish multiple
topical codes instead of one unified code. To determine the publication format
for a specific jurisdiction, see THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION
242-294 tbl.T.1.3 (Columbia Law review Ass’n et al. eds., 21st ed. 1st prtg. 2020).

39

code itself features a table of contents identifying its constituent titles and
may also feature general provisions applicable to the entire code. A lawyer
would need to find these in order to interpret applicable laws correctly.
Fortunately, codes provide enough organization to allow researchers to find
the information they need.

Figure 3.4.1b: The table of contents for Title 18 of the
United States Code Annotated.

3.4.2 Annotations
Sometimes a jurisdiction publishes its own code as an official version, such
as the U.S.C. Often, however, a jurisdiction will designate private entities as
the publisher(s) of its code. For instance, in Kentucky two separate private
publishers produce the Kentucky Revised Statutes: Michie’s (Lexis) and
Baldwin’s (West). Even for jurisdictions that publish their own code,
though, private publishers will also publish an unofficial version. For
example, West publishes the United States Code Annotated (U.S.C.A.), and
LexisNexis publishes the United States Code Service (U.S.C.S.). Both of these
titles are reprints of the official U.S.C., yet their respective publishers are

40

able to sell copies and turn profits because they add value to the code by
providing editorial content called annotations.
Annotations lead researchers who have discovered a relevant statute in an
annotated code to other authorities that help interpret that statute. Through
annotations, researchers may discover cases, secondary sources on point, or
other tools useful to the expansion of research from an applicable statute.
Figure 3.4.2 shows examples of annotations included for a section from
Michie’s Kentucky Revised Statutes. Annotated codes also feature annotations
for constitutional sections.58
The publishers of annotated codes employ lawyers as editors to read new
legal authorities and to identify which authorities interpret which specific
statutes. Obviously, this is a time-intensive and expensive undertaking, but
legal researchers willingly pay the costs because good annotations are an
efficient way to begin their research.59

58 Note that publishers usually provide an extremely large number of annotations

for constitutional provisions. This makes sense as constitutional provisions tend
to be broadly-written and open to much interpretation through caselaw. The
result for the researcher, though, is that annotations for a particular constitutional
provision may be extremely bulky and not as easy to use as those for statutes.
Also, because the different publishers employ different editors, it may
sometimes be beneficial to check multiple versions of a code (if a researcher has
cost-effective access to multiple versions) as the annotations may differ.
59

41

Figure 3.4.2: KY. REV. STAT. ANN. § 411.070 (Lexis
2005) Reprinted from LexisNexis with permission.
Copyright 2016 Matthew Bender & Company, Inc., a
LexisNexis company. All rights reserved.

3.4.3 Using Codes in Print
Some experienced legal researchers find print copies of codes more
efficient to use than electronic copies. Often a researcher will need several
related sections of a code and so desires the ability to flip back and forth
between sections. Also, sometimes seeing a code in print makes it easier to
grasp the code’s inherent organization. Naturally, when researching in
print good legal researchers prefer annotated codes to unannotated codes
because of the value added by the annotations.

42

3.4.3.1 Finding Code Sections by Citation
Before a legal researcher can use annotations, however, he must find the
code section(s) relevant to his problem. The easiest way to pull a relevant
code section is by citation. A lawyer might know the citation of a code
section he needs through other means than research. For instance, a
criminal defense attorney may know the citation to the statute under which
his client has been charged. If a legal researcher knows the citation of a
particular code section, then retrieving that section is simple.
Citation schemes vary from jurisdiction to jurisdiction, but generally
speaking, statutory citation begins with a number that references the title in
which the section is found, then provides an abbreviation that lets
researchers know which code the citation references, and finishes with the
specific section number of the section. The federal code follows this
format, as do the codes of some states. For example, to pull 7 U.S.C.
§ 1471(j),60 a researcher would find the volume of the U.S.C. that contains
Title 7 and turn to § 1471(j). As you can see in Figure 3.4.2, codes feature a
header on each page that alerts researchers to the first (for left-hand pages)
or last (for righthand pages) section that appears on that page. Note that
code volumes sometimes contain more than one title. This bears
emphasizing: title numbers and volume numbers of print codes do not
correspond. A title is a unit of intellectual organization, while a volume is a
unit of physical organization. Researchers should take care to select the
correct volume that houses the title for which they are looking.
Not all states follow the federal citation scheme. For instance, in Hawai’i
code sections are cited in the following format: HAW. REV. STAT. § 322-1.
The citation still features an abbreviation referencing a specific code (in this
case, the Hawai’i Revised Statutes), but there is no title number. Instead, the
citation provides only the specific section number: 322-1. For each section
in the Hawai’i code, the digits before the hyphen refer to a chapter, and the
ones after the hyphen refer to the specific section. Thus, a researcher would
find § 322-1 in chapter 322 of the Hawai’i Revised Statutes. Hawai’i serves as
only one example, though many states employ a similar scheme. For a

Note that for a full, formal citation when producing legal writing, more
information would be required. See THE BLUEBOOK: A UNIFORM SYSTEM OF
CITATION R. 12, 120-134 (Columbia Law review Ass’n et al. eds., 21st ed. 1st prtg.
2020).
60

43

complete state-by-state breakdown of citation schema, researchers may
consult table 1.3 of The Bluebook.61

3.4.3.2 Finding Code Sections by Topic
While retrieving a code section by citation is quick and easy, often legal
researchers will not know the citation of code sections they will need.
Instead, from talking with a client, they will merely have identified some
relevant legal issues and will need to find statutes that correspond with
those issues. For this reason, print codes provide a couple of methods of
accessing information by topic.
First, codes provide a table of contents. Actually, they usually provide a
series of tables of contents. At the very beginning of the code, a researcher
can find an exhaustive table of contents that lists each title of the code and
gives information about what areas of law each respective title covers.62
Then, at the beginning of each title, a code provides a table of contents for
that title, detailing the coverage of chapters within the title. Similarly,
individual chapters provide tables of contents with information on their
constituent sections. See Figures 3.4.1a and 3.4.1b above as examples.
Researchers can browse through the tables of contents to narrow in on a
specific section of relevance.
Browsing tables of contents, however, can be time-intensive and does
require some knowledge of how specific issues relate to general topics. For
instance, a researcher looking for criminal trespass statutes would need to
know that those would likely be included near burglary and that burglary as
a crime would be found in a penal code. Often, then, researchers turn to the
other tool provided by codes for topical research: the index.
Researchers will usually find a comprehensive index in one or more
volumes located at the end of a code. A code’s index works in typical index
fashion: researchers look up specific terms they think apply to their
situation, and the index refers them to specific code sections or to other
terms in the index (that will then refer the researcher to specific code
sections). Note that legal indexes tend to be organized into multiple levels

THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3
(Columbia Law review Ass’n et al. eds., 21st ed. 1st prtg. 2020).
61

62 Often, the overall table of contents will be reproduced at the front of each

individual volume of a code.

44

of classification, meaning that sometimes researchers can only find specific
terms by looking under general topics. For instance, a researcher looking
for the statutory penalties for harming a bald eagle would first need to look
up “bald eagle” as a topic and then scan through the subtopics to find
“fines and penalties.” Often, the multiple-level organization of code indexes
even leads researchers to investigate relevant terms that they would not
have thought of on their own! Between the index and the table of contents,
legal researchers should be able to find statutes on any given topic, even
without knowing a citation beforehand.

Figure 3.4.3.2: Excerpt from the General Index of West’s
United States Code Annotated.

3.4.3.3 Popular Names Table & Other Tables
In addition to providing means for researchers to find code sections by
topic, codes often provide finding aids that allow a legal researcher to find
a code section if he possesses some other piece of information about a
statute. For instance, most laws receive “popular names,” by which they
can be referenced without needing to rattle off a difficult-to-remember
citation. For example, the federal Religious Freedom Restoration Act
(otherwise known as Public Law No. 103-141) tends to make the news a
lot. A lawyer might remember that the Religious Freedom Restoration Act

45

applies to his case but then need to pull the relevant code sections to read
the actual statute. By using the Popular Names Table of the U.S.C.A., he
would be able to look up “Religious Freedom Restoration Act” and
retrieve citations to the code sections which house the act, as seen in
Figure 3.4.3.3.

Figure 3.4.3.3: The U.S.C.A. Popular Names Table Entry
for the Religious Freedom Restoration Act.

Note that the Popular Names Table also provides researchers with citations
to the enacting and amending session laws. Annotated codes also often
provide separate tables that convert session law citations to code section
citations. The other tables provided by codes work under similar principles
as the Popular Names Table.

3.4.3.4 Using Code Sections
Regardless of how a researcher finds a relevant code section, he then
needs to apply it to his client’s problem. The first thing a good researcher
does upon locating a potentially relevant code section is to read carefully
the language of the law itself. (Note that annotated codes provide much
more information than just the law itself. Please refer back to Figure 3.4.2
for an illustration of the different pieces of information discussed here.)
Reading the code section should alert the researcher as to whether or not
the code section he found actually applies to his legal problem.
After an initial read, a lawyer should then check to see if the language he
just read was in force at the time of the actions that gave rise to his client’s

46

problem. He does this by perusing the dates enacted/amended that codes
include immediately after the language of each section. Obviously, the
earliest date listed refers to the enactment of the law, while later dates refer
to times later statutes amended the code section. The text of the code
section reflects the changes made by the most recent listed amending
statute. Therefore, if a client’s problem occurred prior to the most recent
amendment, a lawyer would need to look at the version of the law in force
at that time. Luckily, the dates amended following a code section also
provide citations to the session laws that did the amending. The lawyer
could then retrieve the appropriate session law by citation, as if he were
retrieving a code section by citation, to obtain the law as written at the
time of the facts giving rise to his client’s problem.
However, looking backwards in time at changes to a code section when
researching in print is not enough. A legal researcher must also look
forwards in time, or “update” the law. This occurs because books are
printed at a definite point in time. Because legislatures frequently pass
statutes that amend code sections, invariably some printed code sections
will have changed since the date when the volume they are found in was
last published. Fortunately, legal publishers are aware of this possibility
and have developed a system to alert researchers to changes in the law.
They simply issue supplementary volumes containing the new language.
Most annotated codes publish their supplementary updates as “pocket
parts”, which are soft-bound pamphlets which dedicated library workers
slide into a pocket at the back of the bound code volume. If enough laws
change to the point that a pocket part becomes too thick to fit into a code
volume comfortably, a publisher may issue a free-standing supplement
(which would be located immediately to the right of its code volume on
the shelf), or may simply republish the code volume in question.
Pocket parts present code sections in the same order as their parent
volume, but they do not reprint every section of the volume. If a code
section does not appear in the pocket-part, then a researcher knows that it
has not been updated through the publication date of that pocket part and
can rely on the version found in the code volume proper. However, if a
code section does appear in the pocket-part, then a researcher knows one
of two things: either the text of the law has changed, or the publisher has
seen fit to add more annotations to the particular section. If the law has
changed, 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
itself does not appear, then the section appears in the pocket part because

47

only the annotations have changed. Note that if a new section is added to a
code after publication of its volume, it will appear only in the pocket part.
See Figure 3.4.3.4 for an illustration of the two different types of pocket
part entries.

Figure 3.4.3.4: Sample Pocket-Part Entries. Reprinted from
LexisNexis with permission. Copyright 2016 Matthew
Bender & Company, Inc., a LexisNexis company. All rights
reserved.

Once a researcher knows that the text of a statute was current at the time of
his client’s incident, a good researcher then takes a couple of more steps
before moving on with his research. First, he will flip to the beginning of
the chapter or sub-chapter that houses the section to see if any definitions,

48

general provisions, or related sections apply to his issue. Second, he will
make note of any annotations included for his section of interest. The
annotations may help him interpret or apply the statute he has found. They
will also usually give him an entry point into case research, which we will
cover in Chapter 4.

3.4.4 Using Codes Electronically
As West and LexisNexis publish the print versions of annotated codes,
researchers can find those same codes in electronic form on Westlaw Edge
and Lexis+. Additionally, the federal and most state governments also
provide some sort of free online access to their codes. However, since the
electronic codes provided by jurisdictions do not include annotations
(which are the intellectual property of the private publishers), law students
learning legal research for the first time should stick primarily to the
Westlaw Edge and Lexis+ versions for full functionality.
3.4.4.1 Finding Code Sections by Citation
If a researcher has a citation to a code section, retrieving the section in
question is straightforward on both Westlaw Edge and Lexis+, as all one
needs do is to type the citation into the main search bar, and the platform
will usually recognize it as a citation and open the code section cited.

Figure 3.4.4.1a – Retrieving legal documents by citation from
legal research platforms. Click here for screencast:
https://youtu.be/3r89ImSbPjs.

49

If a researcher types in a citation and the platform does not retrieve the
desired document, then most likely one of three things has happened: a
typo, the use of an alternative citation form, or the use of an incorrect or
outdated citation. The first step in this instance is to check for typos. If
there are no typos in the citation entered into the search bar, then there is
probably a problem with the citation itself. Sometimes legal researchers
come across alternative citation forms (e.g. U.S. Code spelled out instead of
U.S.C.). Westlaw Edge and Lexis+ may not recognize all alternatives of any
given citation. Alternatively, the researcher may have come across a citation
that was incorrectly made or cited a code section that has since been
removed or renumbered. Luckily, Westlaw Edge and Lexis+ both feature
electronic versions of each code’s table of contents which can also be used
to find a cited section or to determine the non-existence of a cited section.
Simply browse to the table of contents of the code cited (the middle part of
the citation), select the appropriate title (the first number of the citation),
and then skim to the cited section (the final number in the citation), as
demonstrated in Figure 3.4.4.1b. If the section cited is present, then it may
be accessed despite the unrecognized citation. If the section cited is not
present in the table of contents, then the researcher knows it is no longer
part of the code.

Figure 3.4.4.1b – Accessing a code’s table of contents
electronically. Click here for screencast: https://youtu.be/Y2Tnd8GaXI.

50

3.4.4.2 Finding Code Sections by Topic
The major legal research platforms also allow researchers to find relevant
code sections by topic through several different means. First, researchers
can find code sections on a given topic by using the electronic table of
contents much as they could use the paper table of contents as described in
Part 3.4.3.2. See Figure 3.4.4.1b for accessing and using an electronic table
of contents.
Second, Westlaw Edge generally makes indexes to its code available
electronically. Lexis+ also does so for some jurisdictions, though its
coverage is not yet universal. Legal researchers benefit from two advantages
in using electronic indexes when available as opposed to jumping right to
an electronic search. First, human editors create the indexes so they may be
more precise than a computer matching search terms. Second, an index
entry will be comprehensive in that it will provide links to all sections in a
code relevant to a given topic, even if the related sections do not contain
the original search term(s).
To use a code index electronically, first a researcher must access the index.
Then, the researcher may either browse alphabetically or search for a term.
Search results will show all the separate index entries containing the term
and allow the researcher to open the most relevant. Note, however, that the
index search function on the platforms tends to be less robust than the
general search functions, so researchers may need to try several word
variations to find the correct entry. Once an index topic is opened,
subtopics will be listed much like a paper index, though the electronic index
provides the added benefit of hyperlinked cross references. Figure 3.4.4.2
demonstrates the use of an electronic index.

51

Figure 3.4.4.2 – Using an electronic index. Click here for
screencast: https://youtu.be/WboteIEZcig.

In addition to using electronic versions of tables of contents and indexes,
legal researchers can also use electronic search capabilities, as discussed in
Chapter 2 above, to find code sections by topic when researching statutes
on Westlaw Edge or Lexis+. Researchers should use care in general
searching of statutes, however, as statutory codes often use both controlled
vocabularies and cross references, which can make results confusing and
lead novice researchers astray. A well-crafted and thought-out search will
mitigate these dangers.

3.4.4.3 Popular Names Table & Other Tables
Westlaw Edge and Lexis+ both provide access to the Popular Names
Table and the Tables for the United States Code. Though researchers will
find these tables on the online platforms, they will function much as they
do in print (though with hyperlinks). On Westlaw Edge, the tables can be
accessed from the landing page of the U.S.C. in the same “Tools &
Resources” box where one finds the index. On Lexis+, the tables are
treated as separate resources, but researchers can find them by searching
for the sources “USCS Popular Names Table” or “USCS Statutes at Large
Table.”

52

3.4.4.4 Using Code Sections
Code sections published via Westlaw and Lexis+ contain all the same
information as the print editions each publisher issues. A researcher will
find the text of the section, the section’s enactment/amendment history,
and editorial annotations that lead the researcher to other helpful sources.
On Lexis+, one finds this information laid out similarly to the print
sources with the enactment/amendment history directly beneath the text
of the code section and the annotations further down the page.

Figure 3.4.4.4a – Elements of a code section on Lexis+TM.
Reprinted from LexisNexis with permission. Copyright 2021
LexisNexis. All rights reserved.

Westlaw Edge also provides this information although researchers will find
the annotations on separate tabs from the section text and
enactment/amendment history, as seen in Figure 3.4.4.4b. In addition to
providing the information from the print editions, Westlaw Edge and

53

Lexis+ also provide mechanisms that allow researchers to mimic the
functionality of a print edition. Because researchers will often need to
consult multiple related code sections and also will need to be able to find
quickly any relevant definitions sections, the ability to flip pages is why
many experienced legal researchers view researching statutes in print to be
more efficient. However, users of Westlaw Edge or Lexis+ can similarly
jump to nearby code sections by using the hyperlinked excerpt from the
table of contents that each platform provides at the top of every code
section. Similarly, researchers can use the previous/next buttons to “flip
pages” to code sections immediately preceding or following any given code
section.

Figure 3.4.4.4b – A code section on Westlaw Edge. Click
here for screencast: https://youtu.be/4zzRA9pHNWo.

3.4.4.5 – Codes on Bloomberg Law
Like the other major legal research platforms, Bloomberg Law includes
codes in electronic form. Unlike Westlaw Edge and Lexis+, however,
Bloomberg does not publish annotated print versions. Thus, researchers
will not find true annotations on Bloomberg Law’s codes. Bloomberg Law
does include a “smart code” feature which approximates annotations by
using a computer to pull relevant discussions of the code section from
caselaw in a sort of targeted citator search. Other than that, legal researchers

54

will find researching codes on Bloomberg Law similar to using the other
two platforms.

3.5 Local Legislation
In addition to creating their own laws, state legislatures also often delegate
local law-making authority to cities or other local government units within
the state. Cities and other local units which have been delegated lawmaking power by the state are often referred to as municipalities or
localities. Individual municipalities create their own processes of legislation
in accordance with the state statute(s) creating the municipality. Lawyers
refer to local legislation as ordinances rather than statutes.
The major difference between a state statute and a municipal ordinance
comes in applicability. A statute carries force of law throughout the state.
Conversely, a municipal ordinance carries force of law only inside the
boundaries of its municipality.
Another major difference between statutes and ordinances becomes
obvious when one compares the publications that house the respective
sources of law. While municipal ordinances do tend to be organized
topically into codes, the actual publication of physical copies remains less
than regular. A couple of commercial publishers publish larger
municipalities’ codes,63 but often the codes of smaller municipalities exist
only as self-created and promulgated documents. In fact, ordinance codes
can be somewhat hard to find, though many larger municipalities will
provide them on their websites. Researchers sometimes may need to
contact the issuing municipal government directly to find an up-to-date
copy, especially for smaller municipalities.
Should a legal researcher get his hands on a municipal code of ordinances,
he would interact with it in the same ways he would interact with other
codes, as municipal codes typically feature indexes, tables of contents, and
good topical organization. Ordinance research is often easier than that
involving other codes as a matter of scale, since municipal codes often
comprise only a single volume.

63 Municode and American Legal Publishing dominate the ordinance-publishing

business such as it is. The codes of ordinances published by these two companies
do not feature annotations, as both companies generally operate on a lowoverhead model. Both publishers make the codes they publish freely available on
their respective websites.

55

Though municipal ordinances can be difficult to find and carry only
limited applicability, they do carry the force of law in their municipalities
through legislative delegation of authority. As such, lawyers need to be
able to find ordinances affecting their clients, as they would statutes. Of
course, both statutes and ordinances are subject to interpretation, as are
constitutions.

3.6 Interpreting Constitutions and Statutes
As mentioned above, both constitutions and statutes tend to be broadly
written in order to apply to a wide range of facts. They often lack specifics,
and so lawyers must interpret them and how they will apply to a given set
of facts. Often, lawyers look to judicial opinions that have already
interpreted a statute for guidance on how to interpret that statute. We will
cover finding judicial opinions in Chapter 4.
However, occasionally a lawyer may encounter a statute that has not yet
been interpreted by a court, and so may need to look for other sources to
aid in interpretation. Similarly, a lawyer may face a situation in which all the
judicial opinions side against his client and may be looking for an alternative
way to interpret a statute or constitutional provision. In these situations,
lawyers sometimes try to argue for an interpretation for an authority based
on the intent of the body that created the authority in question. In order to
support an intent-based argument, a lawyer will often look to the history of
the authority’s creation for evidence of intent.

3.6.1 Constitutional History & Framers’ Intent
Constitutions typically come from constitutional conventions, which tend
to publish records of their work beyond the constitution itself.
Furthermore, to become binding as the ultimate source of law for a
jurisdiction, that jurisdiction must ratify the constitution. Usually, some
form of a jurisdiction’s legislature performs the ratification. Under some
circumstances, researchers can look to the work product of the
constitutional convention or of a ratifying body to help interpret a
constitutional provision by attempting to determine the intent of the
drafters or framers of the constitution.
For a variety of reasons, most lawyers will never find themselves needing
to look to framers’ intent. Most of the commonly-litigated constitutional
provisions feature a significant number of cases interpreting them. Usually,

56

lawyers prefer to rely on a reported case’s interpretation than to infer
intent from the work product of a constitutional convention. Still, students
may sometimes encounter references to framers’ intent in judicial opinions
or scholarly works, so we will briefly introduce the major sources here.
The federal constitution came about as the result of a constitutional
convention held in Philadelphia during the summer of 1787.64 In addition
to producing the Constitution itself, the convention produced various bits
of work product. The bits of work product were later collected by
historians and published as compilations. The most comprehensive and
widespread of the compilations is Max Farrand’s The Records of the Federal
Convention of 1789.65 Following the convention, the Constitution faced a
tough ratification campaign, which saw three of the convention delegates66
publish a series of essays arguing for ratification. Collectively those essays
form the Federalist Papers,67 and judges deem them good expressions of
framer intent. Furthermore, a historian named Jonathan Elliot collected
documentation from the ratification debates that took place in the various
state ratification conventions and published them in a work entitled The
Debates in the Several State Conventions on the Adoption of the Federal Constitution
(or Elliott’s Debates for short).68 Together, these three works make
researching federal framers’ intent relatively straight-forward, and
researchers may find all three titles on the Library of Congress’s website
(as well as in virtually every library system in the United States).
State constitutions often feature similar documentations of history in
terms of convention proceedings, but the availability of the proceedings
may vary by state. Furthermore, many states have adopted different
constitutions at different times, and so there may be more than one
convention’s proceedings available. To research state constitutional

64 See CATHERINE DRINKER BOWEN, MIRACLE AT PHILADELPHIA: THE STORY OF

THE CONSTITUTIONAL CONVENTION, MAY TO SEPTEMBER, 1787 (1966).

MAX FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1789
(1911).
65

66 Alexander Hamilton, James Madison, and John Jay.
67 THE FEDERALIST Nos. 1-85 (Alexander Hamilton, James Madison, and John

Jay).
68 JONATHAN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON

THE ADOPTION OF THE FEDERAL CONSTITUTION AS RECOMMENDED BY THE
GENERAL CONVENTION IN PHILADELPHIA IN 1787 (1861).

57

history, a researcher should contact a reference librarian in his state of
interest.
A complicating factor about constitutions is that, because they are
designed to be organic documents, they change over time through the
amending process. If the constitutional issue being researched relates to
one of the amendments, neither convention nor ratification documents
will be of use to a researcher. Fortunately, though, the vast majority of
constitutional amendments pass through a more rigorous version of the
legislative process, and so their histories can be researched in similar
methods to the legislative history of statutes, which we will cover in the
next section.

3.6.2 Legislative History & Legislative Intent
A statute’s legislative history can serve as a source that will aid in
interpreting the statute. Legislative history refers to the “proceedings
leading to the enactment of a statute, including hearings, committee
reports, and floor debates.”69 Essentially, everything that happens to a
proposed statute procedurally goes into its legislative history. Lawyers can
sometimes use the legislative history to investigate the legislature’s intent
in drafting the statute. A lawyer would then argue that the legislative intent
indicates a particular interpretation of the statute.
As the exploration of legislative intent is usually the end goal of
researching legislative history, researchers will find some pieces of
legislative history more helpful than others. After all, the legislative process
typically involves several distinct steps in two separate houses, so finding
something that indicates the intent of the legislature as a whole can be
challenging. We will briefly introduce the types of documents researchers
of legislative history are likely to encounter in order from those generally
the most helpful for inferring intent to those less often used.

3.6.2.1 Types of Legislative History Documents
In order to appraise the relative weight of a piece of legislative history, a
researcher needs to understand the basic legislative process. First, a
legislator introduces a draft statute as a bill. Upon introduction of the bill,

69 BLACK’S LAW DICTIONARY 1039 (10th ed. 2014).

58

the leadership of the legislative house in which the bill was introduced
assigns it to a relevant committee of that house for evaluation. The
committee will look at the bill in some detail and may hold hearings to
investigate the bill’s purpose or commission studies about specific effects
the bill may have. If the committee passes the bill, it returns to the full
legislative house for debate and consideration. After a bill passes one
house, it will be introduced in the other legislative house to follow the
same process.70 Because bills are subject to amendment at pretty much any
time of the process, it is unlikely that a bill will pass each house with the
exact same language intact. To resolve differing language, legislatures
generally form special committees with members from both houses, called
Conference Committees. Once a Conference Committee agrees on a
reconciled version, each house must pass the final, reconciled version of
the bills they have already passed. Only then will the bill be sent to the
executive to be signed into law as a statute.71
Given that legislatures contain multiple legislators all with their own beliefs
and motives that can affect the steps of the process, speaking of legislative
intent as a singular force may strike one as somewhat specious. In essence,
every piece of legislation passed represents a compromise. Therefore, the
intent expressed during the compromise stage of the process will be the
strongest expression of intent a researcher will be able to find. For this
reason, researchers of legislative history often look to Conference
Committee materials first. Indeed, Conference Committee Reports
detailing the actions taken by the Conference Committee on a particular
statute usually provide the strongest expression of legislative intent.72

70 Note that legislative procedures vary and also tend to be flexible. For instance,

sometimes different, or even identical, versions of a bill may be introduced
simultaneously in both houses. If they both pass, the legislature then can combine
them instead of starting the process anew.
71 Note that the executive possesses the options of not signing or vetoing the bill,

in which case it would not become a statute, barring a veto override.
72 Note that intent-inferring value does vary document by document. A researcher

may find a Conference Committee Report that offers little interpretive value for a
particular statute, while a different legislative history document for the same bill
contains an express statement of intent. Generally speaking, though, a Conference
Committee Report containing evidence of intent would be more persuasive than
other documents, since the Conference Committee will have dealt most closely
with what became the final version of the statute.

59

Sadly, Conference Committees do not create reports for every statute they
consider, and not every statute requires a Conference Committee.
Therefore, a researcher may or may not find a Conference Committee
report for a given statute. If no Conference Committee Report is available,
he should then try a Committee Report from one of the standing
committees. Because the committee to which a bill is assigned looks at a
bill more closely than the legislative house at large, the committee itself
often expresses intent in recommending the bill to the rest of the
legislative house. Furthermore, legislatures such as Congress tend to have
their own procedural rules requiring that standing committees be made up
of members of both parties. As such, Committee Reports generally reflect
the views of both the majority and minority parties on the committee and
so may provide insight into the compromise that best embodies intent.
However, because the committee will have considered an earlier, preconference version of a bill, researchers should ensure that any discussion
of intent in a Committee Report refers to a portion of the bill that
remained in the bill as it passed into law.
Researchers may also encounter statutes for which there are no Committee
Reports available from any legislative committee. Other pieces of
legislative history may still provide glimpses of legislative intent. At the
Federal level, Congress publishes a journal of its proceedings called the
Congressional Record, which often preserves transcripts of debates on
particular bills, as well as voting records on the same bills. By putting these
two pieces of information together, a researcher might be able to
determine which argument carried the day and then ascribe intent to that
argument. Alternatively, a researcher might find multiple versions of a bill
along with suggested amendments and attempt to infer intent from the
changes made to the bill. Finally, a researcher may examine published
Hearings or Committee Prints (studies commissioned by the committee
considering a bill) in order to see what information Congress considered
before passing a bill or to see what the stated purpose of a bill was. While
it is somewhat tenuous to infer intent from Hearings or Prints, they may
be able to show whether or not Congress considered a specific issue and
may also describe the legislation’s general goal in the abstract. Note that all
of the legislative documents described in this paragraph require inference
and assumption in order to determine intent as it applies to the specific
language of a statute. As such, these materials are much weaker than
Committee Reports.

60

Type of Legislative
History Document
Conference Committee
Report

Committee Report

Congressional
Record/Legislative
Journal

Hearings

Committee Prints

Signing Statement

Brief Description

Utility for
Determining Intent
Official report of the
High – often contains
committee which
express intent as
reconciles differences
related to the version
between the bills
of the bill that actually
passed by each house
becomes a statute
Official report of
Medium – contains
whatever committee
views of both parties
reviewed initial bill
and may contain
express intent, though
not usually as related to
the final version of the
bill
Official journal of the
Low – may contain
legislature which may
express statements of
contain records of
intent, but statements
debates or statements
only attributable to
regarding a bill
individual(s) making
statements; inference
required to attribute to
legislature at large
Transcripts of hearings
Very low – will show
held by legislative
an issue was brought to
committees studying
the legislature’s
particular bills
attention but intent
about specific statutory
language difficult to
infer
Published reports on
Very low – will show
an issue commissioned an issue was brought to
by legislative
the legislature’s
committees studying
attention but intent
particular bills
about specific statutory
language difficult to
infer
Statement issued by the Very low – not actually
executive when signing
from legislature
bill into law

Figure 3.6.2.1 – Types of Legislative History Documents

61

In addition to the documents produced by the legislature, researchers of
legislative history may sometimes also encounter signing statements. In
order for a bill to become law, it not only must be passed by the legislature
but must also generally receive the signature of the executive. When the
executive signs a bill, he sometimes issues a signing statement, which is an
expression of the executive’s understanding of legislative intent behind the
new law. While this may seem like a strong, express statement of intent,
note that it does not, in fact, come from the legislature. As such, it is not as
good for a legislative intent argument as something actually produced by
the legislature.
Researchers of federal legislative history will encounter the types of
materials described above somewhat regularly. However, states vary in the
amount of legislative work product they publish. In fact, many states
publish only a legislative journal and no reports of any sort. Therefore,
before engaging in research of state legislative history, students should
contact reference librarians from their state to determine what actually is
available.
Before a researcher can use legislative history to determine intent, she must
first find what legislative history exists for the statute in question, so let us
now turn to methods for finding legislative history documents.

3.6.2.2 Finding Legislative History Documents
We have good news and bad news about researching legislative history.
On the bad news side, a researcher never knows whether a legislature will
have produced any legislative history documents for a given statute. Thus,
researching a statute’s legislative history may sometimes prove fruitless.
On the good news side, because a researcher will typically be looking for
legislative history to help interpret a statute, he will have a logical starting
point to his research. The statute itself will naturally limit the scope of his
research.
In order to conduct legislative history research on a statute, a researcher
will need the session law or slip law citation for the statute in question. As
discussed above, researchers typically find statutes via a topically organized
code. The reason that codes do not work so well for legislative history is
that most statutes produced by a legislature get divided into pieces in order
to fit topically into the code. However, when the legislature considered
and ultimately passed the statute, all the topical bits would have been
considered together. Therefore, researchers will need the version of the

62

statute as it passed in order to pull all its associated legislative history
documents. Luckily, the code itself provides citations to the session laws
that enacted or amended a code section at the end of each code section.
Once a researcher has obtained the citation information for the slip law or
session law version of a statute, he can proceed in a couple of ways. First,
he may find a compiled legislative history for his statute. Compiled
legislative histories are similar to the compilations of historical
constitutional documentation referenced in Section 3.6.1. Compiled
legislative histories may exist as stand-alone works on a single topic,73 but
researchers may also find works that collect and publish multiple compiled
legislative histories. Such collections—at least for Federal legislation--exist
both in print and electronically.74
The dominant print source for compiled legislative histories is West’s
United States Code Congressional and Administrative News (USCCAN). Before
computers, USCCAN was the easiest way to locate federal legislative
history.75 Researchers would look up federal statutes by Public Law
number, and the USCCAN entry for the Public Law in question would
contain a selection of the more useful legislative history documents as
chosen by a West editor. Note that USCCAN only provides select (as
opposed to comprehensive) legislative histories and only on select statutes.
Despite these limitations, USCCAN is useful and ubiquitous enough that
it remains the Bluebook preferred source for many citations to legislative
history.76
In addition to finding them in print, researchers can also find compiled
legislative histories electronically. For instance, West includes an electronic

73 See, e.g., BERNARD D. REAMS AND CHARLES R. HAWORTH, CONGRESS AND THE

COURTS: A LEGISLATIVE HISTORY, 1787-1977: DOCUMENTS AND MATERIALS
REGARDING THE CREATION, STRUCTURE, AND ORGANIZATION OF FEDERAL
COURTS AND THE FEDERAL JUDICIARY (1978).
74 For a comprehensive bibliography of available compiled legislative histories, see

NANCY P. JOHNSON, SOURCES OF COMPILED LEGISLATIVE HISTORIES: A
BIBLIOGRAPHY OF GOVERNMENT DOCUMENTS, PERIODICAL ARTICLES, AND
BOOKS (2d ed. 2012).
Note that in addition to its print form, USCCAN is now also published
electronically on Westlaw. It remains a trusted and useful source for legislative
history research in the computer era.
75

76 See THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 13.4, at 138, R 12.6,

at 127-128, (Columbia Law Review Ass’n et al. eds., 20th ed. 2015).

63

version of USCCAN on its Westlaw Edge platform. Similarly, HeinOnline
provides a number of compiled legislative histories in electronic format.
Unfortunately, compiled histories are not available for every statute. In the
event that a researcher needs to investigate the legislative history of a
statute without an available compiled history, he will need to compile the
materials himself. The amount, type, and format of legislative documents
available vary greatly by jurisdiction. At the Federal level, the Government
Publishing Office produces a large selection of legislative documents that
researchers can find in print or on microfiche77 at a Federal Depository
Library.78 Legislative history documents for more recent statutes may also
be found online at Congress.gov.79 Westlaw Edge and Lexis+ also
sometimes provide links to individual pieces of legislative history in the
annotations to code sections. Alternatively, the private publisher ProQuest
provides digitized Congressional documents from as early as 1789 through
electronic subscription services.80 Researchers can use the same basic
searching, browsing, and filtering techniques discussed above in Chapter 2
to retrieve legislative history documents from either Congress.gov or the
ProQuest databases.
State governments tend to publish significantly fewer legislative
documents than the federal government, but the specific publication
schemes vary by jurisdiction. To conduct legislative history research on a
state statute, we encourage students to contact a law librarian in the
relevant state.
The legislative history documents described in this section can aid lawyers
in interpreting statutes, the source of law created by the legislative branch.
In the next chapter, we will turn our attention to another source of law:
judicial opinions, which themselves often interpret statutes.

77 In the event that students find themselves needing to consult microfiche or

microfilm, just ask a reference librarian for help.

78 The GPO maintains a list of libraries participating in the Federal Depository

Library Program at https://catalog.gpo.gov/fdlpdir/FDLPdir.jsp.
Congress.gov includes finding aids for legislative documents from 1973
onwards that would make finding them in a Federal Depository Library easier, but
only contains the full-text of documents from 1993 onwards.
79

80 ProQuest’s subscription databases, such as Legislative Insight, are marketed

mostly to research universities. The libraries of major public universities typically
allow on-site use of subscription databases.

64

3.7 Concluding Exercises for Chapter 3
Now that we have covered the basics of using codes for research, let’s try to
do some actual legal research!

3.7.1 Introductory Exercise on Code Research
You are an associate at a mid-size law firm in Washington, D.C. Your
managing partner comes to you to say that a client, an extremely wealthy
woman who inherited an alcohol-distribution company, stopped in to
request that the firm initiate divorce proceedings on her behalf.
Apparently, her significantly-older husband has become increasingly
cantankerous and erratic following some failed political ambitions. Upon
being asked in which state the matrimonial residence was located, the client
confessed that the couple often spend time apart but rotate monthly to
dwellings in the following locales:

Kahului, Hawaii
Sedona, Arizona
Key West, Florida
Arlington, Virginia

You have been tasked with finding statutory grounds for divorce in each of
the jurisdictions listed. Please find the relevant code sections.

65

3.7.2 Intermediate Exercise on Code Research
Dear Associates:
We have recently been engaged by Bernard Brown, proprietor of Brown
Books, to defend him in a misdemeanor prosecution in the state of
Georgia. Brown Books is located in suburban Atlanta and carries a variety
of new and used books. Recently, Mr. Brown sold a number of copies of
D.H. Lawrence’s Lady Chatterley’s Lover to students at the local high school,
who ranged in age from 14 to 16 years of age. Some of their parents got
upset and the State of Georgia charged Mr. Brown with selling harmful
materials to minors. This despite the fact that according to Mr. Brown
(who emigrated from Ireland), “the bloody school assigned the bloody
book! It’s art! It’s literature! The school library has a copy for Pete’s Sake!”

Above all, Mr. Brown would like us to get an acquittal.

I need you to:


Find the statute provision that prohibits the sale of harmful or
obscene materials to minors. Does the Georgia code define
“harmful materials”?



See if there is anything in the code that provides special protection
for libraries.



Do you think we will be able to defend Mr. Brown successfully?

Thanks,

Mr. Partner

66

3.7.3 Advanced Exercise on Code Research
Hello Team:

We have been retained to represent Mr. Tyler Sangman in his upcoming
federal criminal trial in the Northern District of Ohio. Mr. Sangman, a
professional lobbyist and environmental activist, stands charged with the
federal crime of committing an “attack to plunder a vessel.” The vessel in
question, the S.S. Umlaut, was carrying replacement parts across Lake Erie
for a chemical plant operated in western New York by industrial giant
BADCO, Inc. Mr. Sangman allegedly used an inflatable motorboat to
intercept the Umlaut off the coast of Ohio in order to disable its propeller
system with plastic explosives. Unfortunately, the explosives were more
powerful than intended, and the Umlaut sank to the bottom of Lake Erie.
Using the United States Code Annotated, I need you to find the following
information:



Look up the federal code section criminalizing attacking vessels to
plunder them under the piracy laws of the U.S. Would Sangman’s
alleged actions qualify as a crime under the text of this code
section?



Look at the annotations. Do any suggest a case that might answer
whether it matters that Sangman didn’t intend to profit from his
actions?



Do any annotations indicate whether we would be able to challenge
federal jurisdiction over the crime, since the action occurred in
waters adjoining Ohio?



I know you’ll need to read the cases from the annotations for a
definitive answer, but just going from the statute and its
annotations, do you think we’ll have good news or bad news for
Mr. Sangman?

Thanks,
Mr. Partner

67

3.8 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on constitutions, statutes, and codes touch upon material
covered in this chapter. They would be a great place to start for students
looking for further practice on the concepts introduced in this chapter!

3.8.1 “How to Research American Constitutional Law”
Summary: an overview of researching federal and
state constitutional law.
URL: http://www.cali.org/lesson/9024

3.8.2 “Introduction to State and Federal Statutes”
Summary: a review of the different forms of
publication statutes take
URL: http://www.cali.org/lesson/576

3.8.3 “Forms of Federal Statutory Publication”
Summary: a review of the four publication forms of
federal statutes
URL: http://www.cali.org/lesson/589

3.8.4 “Codification”
Summary: an in-depth look at the code form of
publication of statutes
URL: http://www.cali.org/lesson/577

3.8.5 “Finding Statutes”
Summary: a review of the methods by which
researchers find statutes.
URL: http://www.cali.org/lesson/857

68

3.8.6 “Updating Federal and State Statutes”
Summary: an overview of the processes by which
researchers ensure that discovered statutes are up to
date and still valid.
URL: http://www.cali.org/lesson/584

3.8.7 “Statutory Interpretation”
Summary: an introduction to the processes
involved in interpreting state and federal statutes
once found.
URL: http://www.cali.org/lesson/1058

3.8.8 “How to Research Federal Legislative History”
Summary: an introduction to the federal legislative
process and the various congressional documents in
a legislative history. Students will be introduced to
free legislative databases on the Internet. Through
various cases, students will see how the courts use
congressional documents to interpret laws.
URL: http://www.cali.org/lesson/575

3.8.9 “Federal Legislative History Research – Compiled
Legislative History”
Summary: an introduction to the use of compiled
legislative histories, both in print and electronically.
The lesson builds on the lesson in “Researching
Federal Legislative History.”
URL: http://www.cali.org/lesson/860

3.8.10 “Reading Legislative History”
Summary: an overview of how to read legislative
history materials once gathered, with an eye towards
determining or inferring legislative intent for a
particular statute.
URL: http://www.cali.org/lesson/10765

69

Chapter 4

Judicial Opinions &
Common Law
The law embodies the story of a nation’s
development through many centuries, and it cannot
be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to
know what it is, we must know what it has been, and
what it tends to become. – Oliver Wendell Holmes,
Jr., The Common Law
It is a maxim among these lawyers, that whatever
hath been done before, may legally be done again:
and therefore they take special care to record all the
decisions formerly made against common justice and
the general reason of mankind. – Jonathan Swift,
Gulliver’s Travels

4.1 Learning Objectives for Chapter 4
In working through this chapter, students should strive to be able to:


Appreciate how judicial opinions create legal rules through
precedent.



Evaluate judicial opinions’ varying weight of precedential authority.



Use reporters to look up opinions by citation.



Evaluate the editorial content added to opinions by publishers of
reporters.



Explain how the West Key Number/Digest System functions.



Use digests and reporters in combination to reconstruct the
common law on a given subject.



Evaluate continued utility of editorial content when researching
cases via electronic means.

70

4.2 Judicial Opinions and the Common Law
As discussed in Chapter 1, both constitutional and statutory provisions
generally consist of language too broad to be applied to specific facts
without an act of interpretation. In the U.S. legal system, the judiciary
serves as the primary interpreter of the law.
Courts issue their interpretations as judicial opinions, which then act as
precedent to create lasting legal rules. Sometimes (maybe even most of the
time) lawyers will refer to opinions as cases. However, “opinion” is a more
precise term, as a single case can feature more than one opinion. Multiple
opinion cases occur when not all the judges81 hearing a case agree on the
result. (Most appellate cases use panels of judges rather than a single
judge.) If a majority of judges agree, they will designate one of their
members to issue a majority opinion, which is the strongest form of
judicial precedent. If an individual judge disagrees with the majority
opinion, she may issue a dissenting opinion. Similarly, if an individual
judge agrees with the end result of a case, but not the legal reasoning that
led to the result, she may issue a concurring opinion. Both dissenting
opinions and concurring opinions may be cited as persuasive precedent,
but neither will be as strong a precedent as a majority opinion.
To further complicate matters, judges may “join” the opinions of their
colleagues. In fact, the way a researcher can tell that a majority opinion is a
majority opinion (other than by the fact it comes first in the write-up), is
by seeing that a majority of the judges have joined it. Judges may also join
dissents or concurrences instead of issuing their own. Furthermore, judges
sometimes only join parts of an opinion, if they only agree with certain
issues. After all the judicial maneuvering is said and done, sometimes a
court will be left without a majority opinion but will have to issue a
plurality opinion instead. Plurality opinions act as much weaker precedent
than majority opinions. Thus, when a legal researcher finds a relevant
opinion, she should pay attention as to its origins.
Once issued, judicial opinions act as precedent for later courts, thus
opinions provide their own legal rules that become part of American law.
Lawyers call such judge-made rules “common law.” Common law can
develop from a statute or constitutional provision by creating a standard
interpretation of the same, or it can develop independently of

81 Courts very as to whether they style their members as “judge” or as “justice.”

For purposes of this chapter, “judge” will be used throughout.

71

constitutions and statutes. Miranda Rights serve as an example of the
former. The Fifth Amendment, in rather broad language, guarantees
people accused of crimes the right of “due process.”82 Miranda v. Arizona, a
U.S. Supreme Court case, interpreted due process as requiring police to
inform a suspect in custody of her constitutional rights before
interrogating her.83 Later cases applied that opinion as precedent and
developed the law further by discussing what exactly qualifies as “custody”
or “interrogation.”84 Thus, judicial opinions have created specific legal
rules as a common law of the Fifth Amendment.
Judge-made rules also exist independently of constitutional or statutory
interpretation. Typically, these rules were developed by judges prior to the
widespread use of statutes. Most such rules were part of the body of
English law that American colonists originally brought with them from the
Old Country. Indeed, “common law” can also be used to refer only to the
traditional, customary laws that developed in England.85 Many English
common law elements still persist in American law, especially in the fields
of Torts and Property.
Regardless of whether working on problems of statutory interpretation or
application of historic common law rules, legal researchers tend to spend
much of their time conducting case-based research. Researching judicial
opinions tends to take more time than researching codes, as cases tend to
be longer than statutes and also do not benefit from the inherent
organization provided by the process of codification. Let us thus turn to
how one goes about researching cases.
As with statutes, the information systems for publishing judicial opinions
came about before the advent of computers. When the legal publishers
began providing electronic content in the latter part of the twentieth
century, they imported the existing information systems to the new
format. Thus, as we did with statutes, we will here introduce judicial
opinions in their print format before proceeding to the materials’
reproduction in electronic format.

82 U.S. CONST. amend. V.
83 Miranda v. Arizona, 384 U.S. 436 (1966).
84 See, e.g., Maryland v. Shatzer, 559 U.S. 98 (2010); Rhode Island v. Innis, 446 U.S.

291 (1980).
85 For the multiple meanings of “common law,” see Common Law, BLACK’S LAW

DICTIONARY (11th ed. 2019).

72

4.3 Case Reporters
The practice of republishing judicial opinions for dissemination and use
has existed since medieval times.86 However, prior to modern times, only
select cases on pre-identified topics tended to be published.87 Also, reports
of opinions that were published tended to focus on limited geographic
areas, leaving lawyers with far fewer precedents with which to work. The
modern system of publishing judicial opinions began in the late nineteenth
century when John B. West systematically collected appellate-level
opinions and published them in multi-volume sets he termed the
“National Reporter System.”88 West Publishing continues to be the
dominant publisher of American judicial opinions in print.

4.3.1 Types of Reporters
West, and to a lesser extent its competitors89, produce several broad types
of reporters. Simplest are jurisdictional reporters, which publish reported
cases from a single jurisdiction. For instance, West’s Kentucky Decisions
includes reported opinions from Kentucky state courts. Sometimes, the
publisher limits the scope of jurisdictional reporters to opinions from a
specific judicial level, as West does with its various reporters for federal
cases. The Supreme Court Reporter, for example, republishes opinions only
from the United States Supreme Court. Likewise, the Federal Reporter
publishes opinions from federal Courts of Appeal, and the Federal

86 See, e.g., HENRICI BRACTON, DE LEGIBUS ET CONSUETUDINIBUS ANGLIAE (c.

1260).
87 The official United States Reports was an exception to this trend, as it has always

included every Supreme Court opinion issued, a task made manageable because of
the limited number of cases granted cert.
88 Michael O. Eshelman, A History of the Digests, 110 L. LIBR. J. 235, 237 (2018).
89 Because the term “lion’s share” does not even begin to do justice to West’s

dominance of publishing judicial opinions, most of the discussion in this chapter
will focus on West publications.

73

Supplement publishes select cases from U.S. District Courts.90 Some
jurisdictions publish their own opinions in “official” reporters, the most
notable being the United States Reports containing opinions issued by the
Supreme Court of the United States and published by the Government
Publishing Office. Official reporters generally work similarly to West’s
jurisdictional reporters although without the helpful editorial material that
West provides.91
In addition to jurisdictional reporters, West also publishes reporters that
gather opinions from several different states into one series, called regional
reporters. Please note that regional reporters exist as a publishing
contrivance only. Therefore, just because two states’ judicial opinions
appear in the same reporter, it does not mean that the opinions are in any
way related. For instance, cases from Kentucky and cases from Texas both
appear in the South Western Reporter, but opinions from Kentucky would
carry no more weight in Texas than opinions from Maine, which are found
in the Atlantic Reporter, would.

90 Note that not all district court opinions are published. Trial level opinions,

because they mix application of law with finding of facts, do not make as good a
precedent as appellate opinions. Therefore, West only includes particularly
significant district court opinions in the Federal Supplement. West also publishes the
Federal Appendix which includes cases originally passed over for publication.
Opinions in the Federal Appendix do not count as fully published opinions, per se,
and so legal researchers should not rely on them as precedent.
91 Similar to statutes, researchers often find West’s unofficial reporters to be more

useful than official reporters, due to the extra editorial content.

74

Figure 4.3.1: A Map of West’s Regional Reporter System

Beyond regional reporters, another instance exists in which legal researchers
might find cases from multiple jurisdictions within a single reporter set.
Sometimes publishers will create topical reporters, which gather opinions
from all U.S. jurisdictions that touch upon the reporter’s central theme. For
instance, West publishes the Education Law Reporter, which contains a variety
of state and federal cases dealing with issues of law as applied to the
education profession.
Note that legal researchers may often find the same judicial opinion in any
number of reporters. For instance, a case dealing with education law from
the Kentucky Court of Appeals could probably be found in the Kentucky
Decisions, the South Wester Reporter, or the Education Law Reporter. Nothing
about the opinion changes from reporter to reporter. In other words, it
does not matter where a legal researcher finds a needed precedent, just that
she does so.

75

4.3.2 Finding an Opinion in a Reporter
As with statutes and codes, a legal researcher most easily retrieves an
opinion from a reporter if she has a citation in hand. Unlike codes,
however, reporters do not impose a topical organization upon the legal
authorities they contain. Instead, reporters publish opinions in
chronological order as courts hand them down. Therefore, obtaining a
citation to a case takes on paramount importance. Luckily, before engaging
in case research, a good legal researcher will have checked for controlling
statutes and made note of key case citations found in a relevant statute’s
annotations, so it is not unusual to begin case research with a citation in
hand.
Case citation works very similarly to code citation. A citation to a case
begins with a number, proceeds to an abbreviation, and then ends with
another number. The first number in a case citation refers to the volume
of the reporter in which the case appears. The abbreviation alerts
researchers as to which reporter contains the case92, and the final number
signifies the page of the reporter volume on which the case begins. For
example, Rose v. Giamatti, 721 F. Supp. 906 (S.D. Ohio 1989) begins on
page 906 of volume 721 of the Federal Supplement. Often, the first page
number of a case will be immediately followed by a comma and a second
page number. The second page number acts as a “pin-cite” referring the
reader to the specific page of the case on which the issue being cited is
discussed. Going straight to a pin-cite may save a researcher time, though
the whole case should be read for context.

92 See Figure 4.3.2 for a list of abbreviations to common reporters.

76

Abbreviation
U.S.
S. Ct.
L. Ed.
F.
F. Supp.
So.
P.

S.W.
A.

N.E.
N.W.

S.E.

Reporter
United States Reports

Cases Contained
U.S. Supreme Court
(official version)
Supreme Court Reporter
U.S. Supreme Court
(West version)
Supreme Court Reporter,
U.S. Supreme Court
Lawyer’s Edition
(LexisNexis version)
Federal Reporter
federal Courts of
Appeals
Federal Supplement
federal District Courts
Southern Reporter
state courts from LA,
MS, AL, FL
Pacific Reporter
state courts from AK,
HI, CA, OR, WA, ID,
NV, AZ, UT, MT,
WY, CO, NM, KS,
OK
South Western Reporter
state courts from TX,
AR, MO, KY, TN
Atlantic Reporter
state courts from ME,
VT, NH, RI, CT, NJ,
DE, MD, DC, PA
North Eastern Reporter
state courts from IL,
IN, OH, NY, MA
North Western Reporter
state courts from ND,
SD, NE, MN, IA, WI,
MI
South Eastern Reporter
State courts from WV,
VA, NC, SC, GA
Figure 4.3.2: Commonly Used Reporters

Note that when we speak of citations, we speak of them as referring to
cases, not opinions. This is because all opinions issued in a case are
published together as one unit in the reporter. Typically, however, a
citation to a case will be alluding to the majority (or plurality, if that is the
case) opinion of the court unless it specifically identifies a concurrence or
dissent.
A couple of other unique circumstances affecting case citation bear
mentioning. First, sometimes cases appear in more than one reporter.

77

Thus, a legal researcher may encounter parallel citation, in which one case
citation refers to multiple reporters. In this case, the researcher may pull
the desired case from whichever of the referenced reporters strikes her as
most convenient. Second, because book spines feature limited space, when
a reporter set reaches 999 volumes, rather than try to squeeze an extra
digit onto the spine, the publisher starts the numbering over. To avoid
confusion when this happens, the reporter enters its “second series” (or
third series in the case of an exhausted second series). Citations to reporter
series other than the first include a notation to that effect next to the
abbreviation of the reporter title. For example, F.2d refers to the second
series of the Federal Reporter. Thus, citations truly make it easy for
researchers to pull cases from reporters.

4.3.3 Using a Reported Opinion
Once a legal researcher locates a case in a reporter, she will, of course, be
able to read all opinions issued in the case. However, reading full cases can
be a time-consuming process. To increase the efficiency of legal research,
West includes valuable editorial content for cases in its reporters, much as
publishers of annotated codes do.93 Figure 4.3.3 illustrates the editorial
content provided by a West reporter.
The first thing to note about a reported case (as lawyers call cases that
appear in reporters) is that the actual judicial opinion does not start right
away. In fact, the opinion will sometimes not start for pages! This happens
because West places its editorial content before the opinions. This
information is often introductory and allows the researcher to more quickly
parse the content of the actual opinion.

93 Note that the editorial content merely helps explain or interpret the case; it does

not itself act as precedent. As such, lawyers never cite to editorial content but
rather use it to understand and cite the case it accompanies.

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Figure 4.3.3: A Case as it Appears in a West Reporter

The first bit of information a reported case gives to a researcher comes in
the heading of the case. The heading includes the case name, the name of
the court that heard the case, the docket number assigned by the court, and
any relevant procedural history for the case. A short synopsis of the case,

79

including the holding of the majority opinion, immediately follows the
heading. Thus, before reading an entire opinion, a legal researcher can make
an advance determination as to its worth by scanning the heading and
synopsis.
After the synopsis, West provides the most useful of the editorial content
included in reporters: headnotes. Headnotes identify specific legal issues
addressed in the opinion(s) of the case. Thus, a researcher can tell at a quick
glance whether the issues she wants were considered in a case.
Furthermore, West includes notes within the text of the opinion(s)
indicating where in the opinion(s) the court considered the specific issues
described by the headnotes.
In addition to helping the researcher identify legal issues within an opinion,
West’s headnotes provide the ability to find other cases that discuss the
same issue. West assigns a “topic and key number” to every headnote its
editors create. Each key number refers to a specific legal issue found in the
jurisprudence of its accompanying topic. Different judicial opinions that
discuss the same issue will all receive the same corresponding topic and key
number. To find other cases with the same topic and key number, a legal
researcher turns to the other major type of West publication for case
research: the digest, which we will discuss in section 4.4.

4.3.4 Unreported Cases & Court Dockets
Not all cases heard in the United States make it into a reporter. Cases will
be passed over for inclusion in a reporter for a variety of reasons. First,
cases from trial-level state courts tend to focus more on findings of fact
rather than on determinations of law, and so are usually not published.94
Second, sometimes a judge, even at the appellate level, will indicate in an
opinion that it is not for publication. She may do this if the case breaks no
new ground legally and so adds nothing to the precedents on which it was
decided. Alternatively, the facts in the case may be unique or bizarre enough
that the judge thinks creating a precedent from the case might cause havoc
with other precedents. Whatever the reason behind not being included in a
reporter, though, lawyers deem opinions issued in unreported cases to be
“unpublished” and do not view them as having full precedential value. Note

The same holds true for some federal district court cases, though West
publishes federal district opinions that do make determinations of law in the
Federal Supplement as discussed above in section 4.3.1.
94

80

that West’s Federal Appendix reports cases that were originally passed up for
publication in West’s other reporters. As such, researchers should view
cases from the Federal Appendix as unreported, and should view their
opinions as unpublished, to be used only with due caution.
In fact, until relatively recently, courts only allowed citation to unpublished
opinions in very limited circumstances. However, with the advent of
computer-assisted legal research, unpublished opinions have become
somewhat easier to find. As a result, in 2006, the Supreme Court of the
United States adopted a rule permitting the citation of unpublished federal
opinions in federal courts, provided that the unpublished opinions were
issued in 2007 or later.95 Most states now make similar provisions, though
the exact details vary. Researchers should check the court rules of their
jurisdiction before using an unpublished opinion to ensure doing so is
permissible.
The reason that courts traditionally treated unpublished opinions with
skepticism derives from the difficulty in finding unpublished opinions prior
to the electronic research era. Because the primary way of finding precedent
in print was through the use of the reporter and digest system, any case not
included in a reporter would have been overlooked by the majority of
researchers.96 In fact, prior to the computer age, the primary way of
obtaining an unpublished opinion was to retrieve it from the court docket
at the court that heard the case.
Court dockets are records kept by the court of proceedings in a particular
case. For the legal researcher, dockets can be a treasure trove of
information because they typically note all the documents, or court filings,
submitted by parties or produced by the court related to that case. In
addition to the final opinion, a researcher may be able to see the briefs
(written arguments) submitted by both parties, the motions they made in
court, exhibits presented, court orders on motions, any final court orders
regarding the proceedings, and more.
An enterprising researcher can explore other uses for dockets beyond
gathering more information about an individual case. She can use dockets
to find examples of motions, arguments, and other documents related to a

95 Fed. R. App. P. 32.1.
96 Cases appearing in the Federal Appendix can be found via a print digest, but

these represent a very small percentage of the unpublished cases out there and do
not, of course, include any state cases.

81

particular legal issue and use them to inform her own legal documents. If
a case involves a corporation, sometimes it must reveal information to the
court that they otherwise would never disclose to the public. A researcher
could potentially use documents submitted to the court to find out about
financial issues within the company, confidential information regarding
patents, or other useful information.
Nowadays many courts provide online access to their more recent dockets,
and researchers can generally find court filings electronically using the
major legal research platforms. However, some states do not put their
dockets online, or sometimes a researcher may wish to look at a docket that
predates electronic filing. In order to obtain materials from a docket
unavailable electronically, a researcher should contact the clerk of the court
that heard the case in question.
Generally speaking, though, published opinions are much more valuable to
a legal researcher than unpublished opinions or court filings. Let us now
turn to the tool that allowed lawyers to find published opinions on
particular topics prior to the invention of computers: the digest.

4.4 Digests
Digests, though themselves large multi-volume sets, act as topical indexes
to the even more voluminous reporter sets. Remember, reporters
themselves lack topical organization—the lengthy nature of judicial
opinions would make any such internal organization highly impractical—
and instead work with the external organization provided by digests.
Likewise, digests do not reproduce judicial opinions, but provide short
summaries of cases and citations to the same organized by topic. Thus,
both reporters and digests are of limited use without the other.97

4.4.1 Types of Digests
For the most part, West publishes the same types of digests as it does
reporters, though there are some key differences in coverage between the
two types of publication. Like reporters, digests come in jurisdictional,

97 Note, however, that a digest can also be used effectively with an electronic

database of cases. The basic steps would be the same except that instead of
pulling a case from a reporter, the researcher would retrieve the case by entering
its citation into a legal research platform.

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regional, and topical varieties. Additionally, West publishes general digests
that can potentially lead researchers to opinions issued in any jurisdiction
in the U.S.
Legal researchers probably use jurisdictional digests more than any other
type. West publishes jurisdictional digests for most individual states and
the District of Columbia.98 State digests, unlike state reporters, include
references to both state cases and related federal cases that originated in
the state in question. In addition to individual state digests, West publishes
a number of federal digests. Some, like the Supreme Court Digest, index cases
from a single court. However, the Federal Practice Digest leads researchers to
published opinions issued by any federal court, regardless of level.
West also publishes several regional digests that mostly correspond to the
regional reporters. Note, however, that not every regional reporter benefits
from a companion regional digest.99 Regional digests lead researchers to
opinions issued by state courts for the same states covered by the
corresponding reporter.
As West publishes topical reporters, so too does it publish topical digests
to accompany the reporters. For example, lawyers working for a university
might consult the Education Law Digest in combination with the Education
Law Reporter.
In addition to the types of digests corresponding to types of reporter,
West publishes the General Digest, which can potentially lead researchers to
opinions from any U.S. jurisdiction. Because of the sheer amount of
information involved in such an undertaking, West periodically publishes
the Decennial Digest.100 When a new edition of the Decennial Digest
appears, the General Digest then starts anew. Thus, if depending on a one-

West does not publish a digest for Delaware, Nevada, or Utah. To find
opinions from these jurisdictions using only print sources, researchers would need
to consult the relevant regional digest or the general digest.
98

99 West never published a digest for the South Western Reporter. Furthermore, West

has discontinued the North Eastern Digest and the Southern Digest. Researchers in
jurisdictions covered by those regions would need to consult the relevant state
digest or the general digest in order to find opinions using print sources.
100 Although the period between publications of the Decenniel Digest used to be 10

years, as suggested by the title, in modern times of heavy case loads, West now
publishes it more often.

83

stop-shop approach to researching with digests, lawyers must consult both
the Decennial and General Digests.101
Fortunately, all of West’s digests use the same system, the topic and key
number system. Thus, once an aspiring legal researcher learns to use one
digest, she will be able to use all of them.

4.4.2 Using Digests to Find Opinions
As discussed above in section 4.3.3, West editors assign a topic and key
number to every headnote they create upon reading cases. Each key
number corresponds to a specific legal issue within its topic, and judicial
opinions that discuss the same issue will feature the same topic and key
number. Please note that each topic in the system begins with key number
1. In other words, West reuses numbers, so knowing key numbers without
knowing the corresponding topics does researchers little good. For
example, key number 106 under the topic of Torts helps a researcher find
opinions discussing the nature and elements of torts in general, while key
number 106 under the topic of Criminal Law leads researchers to opinions
dealing with the nature of venue in criminal prosecutions. The two issues
are unrelated; West has simply reused the number 106 in each of the
topics.
If, however, a legal researcher knows the topic and key number that
correspond to the issue for which she is looking, she can simply look up
the topic and key number in a digest and retrieve a list of cases that have
considered the issue in question in the jurisdiction(s) covered by that
digest. Furthermore, the digest provides brief summaries of each case so
that the researcher can make an informed decision as to which cases she
wants to pull from their respective reporters first. Figure 4.4.2a provides
an example of a typical digest entry.
As a caveat, many West digests have started over in new series, much like
the West reporters. For instance, the Kentucky Digest 2d continues the
Kentucky Digest. Similarly, the Federal Practice Digest is now onto its 5th
series.102 The key fact to remember about digest series is that they are not

101 Indeed, they should probably consult the Centenniel Digest, which predates the

Decenniel Digest, as well.
102 The

Federal Practice Digest 5th is actually the sixth series of the title, as the
original Federal Practice Digest replaced the precursor Federal Digest.

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cumulative. Therefore, in order to find judicial opinions from the whole
range of years available, a researcher must consult all the various series of a
particular digest. West publishes an editorial note at the beginning of each
volume of a digest providing researchers with notice of the year-range
covered by that particular series of the digest.

85

Figure 4.4.2a: Sample Entry from the Federal Practice
Digest 5th

Digests act as a powerful tool for finding judicial opinions, but to use them
a legal researcher must know the topic and key number that correspond to
the legal questions he wants answered. Fortunately, appropriate topics and
key numbers can be discovered in several ways.

86

First of all, as discussed above, every headnote attached to a West-reported
case features a corresponding topic and key number. Therefore, if a
researcher has discovered one opinion on point, she can lift topics and key
numbers from headnotes of interest to discover other cases addressing the
same point of law. Similarly, if a researcher has found a relevant statute in
an annotated code published by West, then the annotations will likely alert
her to any relevant topics and key numbers.
Fortunately, even if a researcher does not already have a topic and key
number in mind, West digests provide ways to find topics and key numbers
of interest. First, at the end of every digest, a researcher will find an index,
termed the Descriptive Word Index, which works almost identically to the
indexes accompanying codes. A researcher would look up a general term
that covers the legal issue in question. Instead of code sections, however, a
digest’s 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
topic and key number, she can then look up that topic and key number in
the corresponding main volume of the digest for a list of cases related to
the issue. Note that the index itself does not provide case citations; it must
be used in conjunction with the main volumes of the digest.
In addition to providing indexes for digests, West divides all of American
law into topics, which it fits into an overarching Outline of the Law.
Indeed, the topics from this outline are the same that accompany key
numbers, and West places the key numbers themselves onto the outline.
West publishes its general outline of the law at the beginning of digest
volumes. Additionally, in front of each topic in the digest, West provides a
more detailed outline of that specific topic. Thus, legal researchers possess
the option of browsing through West’s outlines to narrow in on a specific
issue’s topic and key number, much as researchers might use a code’s tables
of contents to narrow in on specific sections. Figure 4.4.2b gives readers an
idea of what West’s Outline of the Law looks like.

87

Figure 4.4.2b: An Excerpt of West’s Outline of the Law as
found in the Federal Practice Digest 5th

By using the Descriptive Word Index or the Outline of the Law, researchers
can identify relevant topics and key numbers they can then use to find case
citations, which in turn would allow the researcher to pull relevant judicial
opinions. Of course, the opinions themselves may lead the researcher to

88

additional topics and key numbers of interest through the headnotes
provided by West. Researchers may then look up the additional topics and
key numbers in a digest in order to find additional cases. Thus, the topic
and key number system provides a powerful tool for researchers to find
judicial opinions.
West digests also provide a couple of other ways to find cases in addition to
the topic and key number system. First, digests contain Tables of Cases
volumes that allow researchers to look up cases by the name of either party.
Second, digests contain Words and Phrases volumes, which allow
researchers to look up a specific word or phrase to find opinions using that
exact word or phrase. Both Tables of Cases and Words and Phrases
volumes, unlike the topic and key number volumes, will provide case cites
in addition to the topics and key numbers assigned to the case. While a
researcher would need more starting information to use either of these
types of volumes, they do provide an alternative access point to caselaw for
print researchers and demonstrate the comprehensiveness of West’s digest
and reporter system.
In fact, as discussed above in section 4.3.4, West’s digest and reporter
system acted as the sole means of finding precedent for so long that courts
deem opinions not published in one of West’s reporters to be less than fully
precedential. In the modern era of electronic legal research, lawyers more
often encounter such “unreported” opinions. Lawyers need to react to such
opinions with caution and to avoid using them as key precedent. Indeed,
most courts will only consider unreported opinions under certain
circumstances. To determine if a court will consider an unreported opinion,
legal researchers should consult the court rules for the jurisdiction in
question.103 Thus, understanding West’s reporter and digest system remains
important even when conducting electronic legal research.

4.4.3 Updating Digests
When a researcher uses a print edition of a digest, she should keep in mind
that, like all print materials, individual digest volumes describe the state of
the law at a particular moment in time. By its very nature, however,

103 Commercial legal publishers generally provide a jurisdiction’s Court Rules at

the end of its code. Legal researchers may thus find specific court rules by the
same methods, described in Chapter 2, with which they would find code
provisions.

89

American law constantly changes with every new judicial opinion
published. Thus, it becomes necessary for legal researchers to update the
information found in print digests.
Because lawyers desire consistency in legal publishing, just as they desire
consistency in the law, the primary means of updating the information in
digests takes the same form as the primary means of updating the
information in annotated codes: the pocket part. In fact, pocket parts for
digests work in exactly the same way as pocket parts for codes.104 If a topic
and key number appears in the pocket part, then something about it has
changed since publication of the main volume. If a topic and key number
does not appear in the pocket part, then nothing changed since the
publication of the main volume. Additionally, West may have created a
new topic and key number since publication of the main volume. In this
instance, the topic and key number will appear in its entirety in the pocket
part and not at all in the main volume.
West actually updates the Outline of the Law governing the topic and key
number system quite frequently. Legal rules or issues may fall out of use,
and so key numbers may be dropped. More often, opinions introduce new
rules or issues, resulting in the addition of new key numbers. Furthermore,
sometimes judicial opinions take a rule from an earlier opinion and expand
upon it, or break it into multiple rules. When this happens, West may need
to adjust its numbering. When an area of law changes sufficiently, West
may even renumber an entire topic.
Renumbered topics often confuse aspiring legal researchers. Feelings of
frustration may occur when a researcher has identified a relevant topic and
key number from an old case headnote only to discover that the digest no
longer contains that topic and key number. Researchers should not panic
when this occurs, though, because West includes key number conversion
charts at the beginning of every topic which has been renumbered.

104 Also like pocket parts for codes, pocket parts for digests will be replaced by

softbound supplements should they become too big to fit in a bound volume.
Eventually the bound volume itself will be replaced.

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Figure 4.4.3: Excerpt from West’s Key Number
Translation Table for Constitutional Law

Note that one old key number often becomes multiple key numbers in
renumbered topics. Researchers should look at each of the new topics to
understand how the law has changed. Note also that West includes key
number conversion charts that operate in the reverse direction, i.e. new key
numbers to old key numbers. West does so because, to find older cases on
an issue, a researcher may need to consult earlier series of a digest, since
digests are not cumulative. Naturally, the older digest series would not use
the new numbering scheme.105

105 Although exceptions exist, West typically does not continue to issue pocket

parts for non-current digest series.

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4.5 Cases on the Legal Research Platforms
Since West created the national reporter system, researchers can naturally
find the cases, complete with headnotes and key numbers, reproduced on
Westlaw Edge. Lexis+ and Bloomberg Law also feature all the opinions
found in the reporter system. However, as the editorial material is the
intellectual property of West, researchers will not find key numbers on
either Lexis+ or Bloomberg Law. Lexis+ does feature its own headnote
system which functions similarly to West’s key number system, albeit
without numbers. Bloomberg Law being newer to the game generally does
not feature headnotes but merely the opinions themselves.

Figure 4.5a – Anatomy of a case on Westlaw Edge. Click
here for screencast: https://youtu.be/b5JybipossE.

A key difference between cases on the legal research platforms and those in
print is that the electronic versions lack pages. While the pageless format is
generally good for reading (scrolling allows more continuous reading than
having to load a new document for every new page), it is not so good for
citation. To allow researchers to provide pin cites to cases, the legal research
platforms each provide notations of where new pages would start in print.
The notations take the form of page numbers preceded by an asterisk and
are commonly called “star pagination.” Examples of star pagination can be
seen in the screencast accompanying Figure 4.5a.

92

Another difference in conducting case research electronically is that
researchers will not find digests on the legal research platforms. Rather,
clicking on a key number (or headnote topic on Lexis+) and selecting a
desired jurisdictional filter will directly retrieve all the cases from the
selected jurisdiction that the editors have recognized as containing issues
related to the topic covered by the key number (or headnote topic).

Figure 4.5b – Using topics and key numbers on Westlaw
Edge. Click here for screencast:
https://youtu.be/jzjsDYvUGX8.

The legal research platforms also provide new ways to find relevant judicial
opinions that were not possible in the print age. First, legal researchers can
enter search terms and have the computer pull opinions related to the terms
searched. Researchers also have the option to “search within” results of
earlier searches. Note however that overly broad searches, whether from
the general search bar or the “search within’ search bar, will return too
many results to be useful. While all the legal research platforms recognize
natural language searching, legal researchers often tailor their search queries
by using search operators to pull only the most relevant results. We will go
over how to craft well-tailored searches in Chapter 7.

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4.6 Concluding Exercises for Chapter 4
Now try your hand at using digests and reporters to find relevant judicial
opinions.

4.6.1 Introductory Exercise on Case Research
Hello Team:
We have been retained by Molly Lancaster-Ferguson, owner of Awesome
Antiques, to defend her from a pending Federal prosecution. The federal
charges stem from an isolated incident in which Ms. Lancaster-Ferguson
sold an original 1861 Enfield Rifled Musket (a single-shot, muzzle-loading
rifle manufactured in Enfield, England, and imported/smuggled in large
quantities to arm Confederate troops during the Civil War), which she had
found at a garage sale, to an undercover federal agent posing as an online
buyer. To the extent of her recollection, the incident in question is the
only time that Ms. Lancaster-Ferguson has ever sold a firearm, and she
was unaware that it was illegal to do so. The federal authorities have
nonetheless charged her with violating a federal law that requires all
dealers of firearms to be properly licensed. She is set to be tried in the
Eastern District of Kentucky.
Use the Federal Practice Digests (potentially more than one series) to look
into the following:
1) Find me a case, preferably binding, on whether an individual who
does not know dealing in weapons without a license is against the
law can be convicted of the same.
2) Are there any federal cases, binding or persuasive, that have held
that one isolated gun sale does not amount to “engaging in the
business of dealing in firearms without a license”?
3) Based on your findings, do you think it is likely that we can
ultimately get an acquittal?
Thanks,
Ms. Partner

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4.6.2 Intermediate Exercise on Case Research
Hello Team:
One of our best clients, Robert Standersen, has made a slightly unusual
request of us. Normally, we handle corporate law issues for his orthodontist
practice. However, he has asked that we defend his twin children, Brian and
Yvette in a criminal conspiracy action being prosecuted by the
Commonwealth of Kentucky.
Brian and Yvette are seniors at Tates Creek High School. They were
arrested while playing hacky-sack in the parking lot of Henry Clay High
School last Thursday night at 11:30 pm. Two other Tates Creek High
students, Vic Vandal and Hal Hooligan, were also arrested at approximately
the same time. Vandal and Hooligan were caught exiting the locked
building of Henry Clay High School in possession of crowbars and several
soccer championship trophies stolen from display cases in the school’s
hallway.
Neither Vandal nor Hooligan implicated the Standersen twins in the
burglary, so the state’s case of conspiracy to commit burglary against the
twins consists solely of the following pieces of circumstantial evidence:


Brian and Yvette are classmates of Vandal and Hooligan at Tates
Creek High School and were found at the scene of the crime.



Tates Creek and Henry Clay are soccer rivals. Their annual game
occurred the night after the incident in question.

The Commonwealth’s Attorneys are advancing the theory that Brian and
Yvette were “standing watch” for Vandal and Hooligan. I need you all to
find post-1974, binding caselaw (Kentucky’s current penal code was
enacted in 1974) to answer the following questions:
1. Is circumstantial evidence alone enough for a conspiracy
conviction in Kentucky?
2. Is merely being present at the scene of a crime sufficient for a
conspiracy conviction in Kentucky?
3. Is the Commonwealth likely to succeed in its prosecution? Why or
why not?
Thanks,
Ms. Partner

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4.6.3 Advanced Exercise on Case Research
Hello Team:
As you are no doubt aware, we represent Bob “Bubba” Hicklin (founder
and CEO of Black Sky Coal) for most of his legal needs. One of Mr.
Hicklin’s hobbies is breeding and training Bluetick Coonhounds.
Seventeen years ago, he purchased a large tract of land along the
Tennessee-North Carolina border which he has used since then as his
dogs’ breeding/training ground. Unfortunately, Mr. Hicklin did not survey
his lands correctly (he did it himself, another hobby), and the rather large
kennel he built at great cost actually lies on lands owned by the Cherokee
Nation of North Carolina.
The Cherokee have now initiated a legal action against Hicklin for the land
and the kennel in the U.S. District Court for the Western District of North
Carolina. While the Cherokee Nation does appear to hold title to the land
in question, I would like to be able to use the doctrine of adverse
possession as a defense. However, I’m not sure if I can use North
Carolina’s adverse possession laws against the Cherokee as tribal lands fall
at least partially under federal jurisdiction. I need you to:
1. Find me a case from the past 30 years or so (we don’t want
anything decided before the Indian Civil Rights Movement in the
70s), preferably binding over the Western District of North
Carolina, which answers whether or not a state adverse possession
defense can be used against Indian lands?
2. Assuming that you find a relevant case, does it tip you off to any
other topics/keynumbers that we might want to look at that
pertain specifically to Indians and land title? (Keep in mind that
nobody at the firm has an expertise in Indian law, so basic
definitions might be helpful.) What topics and keynumbers will be
most useful to us?
3. Applying relevant authorities to our facts, are we ultimately likely
to succeed? Why or why not?
Thanks,
Ms. Partner

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4.7 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on researching cases in print touch upon material covered
in this chapter. They would be a great place to start for students looking for
further practice on the concepts introduced in this chapter!

4.7.1 “Anatomy of a Case”
Summary: an introduction to cases as they appear in
reporters.
URL: http://www.cali.org/lesson/834

4.7.2 “How to Find Case Law Using the Digests”
Summary: an overview of researching in print using
the digest and reporter system.

URL: http://www.cali.org/lesson/588

97

Chapter 5

Administrative Regulations
I’m not the smartest fellow in the world, but I can
sure pick smart colleagues. – Franklin Delano
Roosevelt
Let us never forget that government is ourselves and
not an alien power over us. The ultimate rulers of
our democracy are not a President and senators and
congressmen and government officials, but the
voters of this country. – Franklin Delano Roosevelt

5.1 Learning Objectives for Chapter 5
In working through this chapter, students should strive to be able to:


Describe the origins and authority of administrative regulations as a
source of law.



Assess the primary publications of federal administrative legal
materials: the Code of Federal Regulations and the Federal Register.



Appreciate the similarities and differences between federal
administrative regulations and state administrative regulations.



Evaluate the various pieces of information provided in regulatory
publications.



Evaluate the use of administrative notices, administrative decisions,
and other administrative materials in interpreting administrative
regulations.

98

5.2 Delegated Rule-Making Authority
As discussed in Chapter 1, each branch of government under a Separation
of Powers system creates its own source of law. In Chapters 3 and 4, we
covered the sources of law that most lay-people would recognize as law:
constitutions, statutes, and judicial opinions. However, in the American
legal system, the executive branch also contributes rules to the body of law.
Executive-made rules take the form of administrative regulations, which
various executive departments, agencies, and commissions issue under an
explicit delegation of rule-making authority from the legislature. Essentially,
the legislature passes a statute with a broad aim, and then delegates a
particular agency of expertise to provide more specific rules aimed at
achieving the broad goal. Lawyers call a statute that creates an agency to
regulate a particular area an “organic statute” or “organic act.”106 Similarly,
an “enabling statute” delegates additional authority to an already existing
agency.107 Both organic statutes and enabling statutes establish broad aims
desired by the legislature and create mechanisms for agencies to provide the
details. As such, regulations tend to be much more specific in nature than
statutes.
Executive agencies possessing delegated legislative authority have existed in
the Anglo-American legal tradition at least since the 1530s, which happens
to be when people also first began recognizing the primacy of legislative
rule-making authority to begin with.108 Since their introduction in Tudor
times, however, executive branches tended to exercise delegated rulemaking authority somewhat sparingly for the next four centuries or so.
Then, in response to the Great Depression in the U.S., the creation of
executive agencies and the use of administrative regulations exploded with
the New Deal of the 1930s. The Roosevelt administration pushed for the
creation of a veritable “alphabet soup” of federal agencies, partially as an act
of job creation, but partially as a way of modernizing the U.S. economy.109

106 See Statute, BLACK’S LAW DICTIONARY 1634 (11th ed. 2019).
107 See Id.

See generally G. R. ELTON, THE TUDOR REVOLUTION IN GOVERNMENT;
ADMINISTRATIVE CHANGES IN THE REIGN OF HENRY VIII (1953).
108

109 For a riveting account of Roosevelt’s life and Presidency, see H. W. BRANDS,

TRAITOR TO HIS CLASS: THE PRIVILEGED LIFE AND RADICAL PRESIDENCY OF
FRANKLIN DELANO ROOSEVELT (2008).

99

However, increasing the amount of regulatory output under delegated
authority raised concerns about democracy and due process. After all, many
of the experts who draft rules for agencies are directly hired by the agency
in question and were not elected by voters. In order to assuage these
concerns, the federal government developed a unique system of publication
of regulations that allows citizens to comment on proposed regulations
before they go into effect. The publication system became formalized by
statute in 1946.110
State executive branches likewise often issue copious amounts of
regulations in the modern era. Furthermore, state publication of
administrative regulations tends to follow the federal model, albeit on a
more limited scale. As the federal system of regulation promulgation
remains the most sophisticated, we will begin by taking a closer look at
federal regulations.

5.3 Researching Federal Regulations
As discussed above, the federal government follows a regimented
publication procedure for administrative regulations in order to comport
with due process. In fact, the federal Government Publishing Office (GPO)
issues three separate publications related to regulatory research: the Code of
Federal Regulations (C.F.R.), the List of Sections Affected (L.S.A.), and the Federal
Register (F.R.). Of the three publications, the C.F.R. allows legal researchers
to look up regulations by topic most easily, while the F.R. contains the most
background information beyond the regulations themselves. The L.S.A. is
used primarily to update C.F.R. sections; think of it as a multi-volume
pocket part. The federal government also creates electronic copies of the
C.F.R. and F.R., but as the system developed in print, we will introduce it in
print in order that students may easily see the interactions between the
various pieces of the system.

5.3.1 The C.F.R.
As the use of the word “code” in its title implies, the C.F.R. contains all
federal regulations currently in force, neatly arranged in topical order.

Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as
amended at 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372,
7521 (2018)).
110

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What the U.S.C. is for federal statutes, the C.F.R. is for federal regulations.
In fact, the two publications share the same basic structure: sections as
building blocks, housed in chapters/sub-chapters, which in turn get
grouped into titles. However, because of the dense nature of regulations,
the C.F.R. makes use of an additional unit of organization in between the
section and chapter levels. This unit is called a “part.” (Sometimes
“subparts” will also be included.)111 Nonetheless, the citation of a federal
regulation looks substantially similar to the citation of a federal statute: title
number, C.F.R., section number. A researcher would pull a regulation by
citation just as he would pull a statute by citation.
Legal researchers also go about finding regulations on a specific topic in
the same ways they would go about finding statutes on a specific topic.
Like the U.S.C., the C.F.R. features a series of increasingly-detailed tables
of contents. Also like the U.S.C., the C.F.R. includes an index that
researchers may use to look up specific terms, though researchers should
remember that sometimes a specific term will be located as a subset under
a more general index term. Thus, though the source of law differs,
researchers should generally use the same methods of research covered in
Chapter 3 for codes to discover a specific section within the C.F.R.
However, once a researcher has opened a C.F.R. section, he will note
some key differences, as well as some similarities. Figure 5.3.1a provides
an excerpt from the C.F.R. The first thing the reader probably notices
about the regulation is the incredible level of detail provided, especially
compared to typical statutory language. This language is typical in
regulations. Second, note the lack of annotations. Because regulations
change quickly and possess such a high level of detail, commercial
publishers do not reprint them, and thus no one provides editorial
content. Finally, note that, like the U.S.C., the C.F.R. provides researchers
with citations to each section’s creating and amending documents. In the
C.F.R., these cites refer the researcher to the Federal Register, which will be
discussed in section 5.3.3 below.

111 Note that some statutory codes, notably the U.S.C., also make use of parts.

Nonetheless, the use of parts and subparts as intermediary levels of organization
is fairly ubiquitous in administrative codes.

101

Figure 5.3.1a: Excerpt from the Code of Federal Regulations

Upon locating a relevant regulation, a good researcher will then flip to the
beginning of the part in which it appears. For instance, the regulation in

102

Figure 5.3.1a, 9 C.F.R. § 77.8, may be found in Subpart B of Part 77 of
Subchapter C of Chapter 1 of Title 9 of the Code of Federal Regulations.112 An
excerpt from the beginning of said Part 77 appears in Figure 5.3.1b. A good
researcher would then do two things. First, he would scan the part’s table of
contents for other sections that may affect his client, including any
definitions or general provisions section. Second, he would look for the
statutory grant of authority for the regulations in question. Remember,
regulations are issued upon delegated authority. The organic and enabling
statutes that did the delegating provide additional necessary avenues of
inquiry when researching situations governed by regulations.

Figure 5.3.1b: Front matter to Part 77 of C.F.R. Title 9,
showing the statutory grant of authority and a portion of the
table of contents, or outline, for Part 77.

112 Readers have been warned, repeatedly, about the highly dense and technical

nature of regulations. The same also applies to C.F.R. organization.

103

Thus, the C.F.R. provides a mostly self-contained means to research federal
regulations currently in force. Although the G.P.O. publishes each title of
the C.F.R. annually, as a print source it captures only a specific moment in
time. Because regulations tend to change rapidly, legal researchers should
make sure to update any applicable regulations using the second of the
federal regulatory publications: the L.S.A.

5.3.2 The L.S.A.
As mentioned above, the List of Sections Affected essentially functions as a
giant pocket part to the C.F.R. In fact, the L.S.A. really does what its name
suggests; it lists sections of the C.F.R. that have been affected by
regulations issued after the last printing of the C.F.R. title in which the
section appears.113 An excerpt from the L.S.A. appears in Figure 5.3.2.

Each title of the C.F.R. gets published annually, but the exact date of
publication varies by title: Titles 1-16, January 1; Titles 17-27, April 1; Titles 28-41,
July 1; Titles 42-50, October 1. Also, by “1” of each month, we mean the first
business day of each month.
113

104

Figure 5.3.2: Excerpt from the List of Sections Affected

Note that only C.F.R. sections that have indeed been affected by
subsequent regulation appear in the L.S.A. Thus, if a C.F.R. section does
not appear in the L.S.A., then it has not changed and a researcher is free to
rely upon the version discovered in the C.F.R. itself.

105

Note also that if a C.F.R. section does appear in the L.S.A., meaning that
the text of the regulation has changed since publication, the L.S.A. does not
actually reproduce the updated text of the changed regulation.114 Rather, the
L.S.A. refers the researcher to the number of the page upon which the
researcher can find the updated text. These page numbers refer to pages of
the third of the federal regulatory publications, the Federal Register.

5.3.3 The F.R.
The Federal Register contains much more information than the other federal
regulatory publications. It also predates the C.F.R. by more than a decade
and serves as the primary means by which regulations satisfy due process.
The GPO publishes the F.R. daily.115 The F.R.’s pages number
consecutively per year, meaning that the F.R. issue published on January 2
begins with page 1, while page numbers in December issues often
approach 6 digits. The consecutive pagination is what allows the L.S.A. to
cite the F.R. solely by page number. Other citations to the F.R. proceed as
normal: volume number (each year’s run constitutes a separate volume),
F.R., page number.
When a federal administrative agency wishes to change a regulation or
issue a new regulation, it first issues the regulation as a Proposed Rule in
the Federal Register. Proposed rules provide details on why the regulatory
change is needed and give citizens the opportunity to comment upon the
proposed rule. Thus, the Federal Register’s primary purpose is satisfying due
process. The F.R. features its own index which can be used to find rules
by topic. Figure 5.3.3a provides an excerpt from a proposed rule. Please
note, however, that most proposed rules comprise multiple pages.

114 This is where the pocket part analogy breaks down.
115 Meaning, of course, business days.

106

Figure 5.3.3a: Excerpt from a Proposed Rule in the Federal
Register

In addition to proposed rules, agencies also publish final rules in the Federal
Register. For instance, after an agency assesses all the comments submitted
on a proposed rule, it will make necessary changes and issue it as a final
rule. Final rules are then incorporated into the C.F.R. at the appropriate
section as regulations. Because the F.R. publishes the final rules, it works in

107

conjunction with the L.S.A. to update C.F.R. sections. Figure 5.3.3b shows
the final rule in the F.R. alluded to by the L.S.A. in Figure 5.3.2.

Figure 5.3.3b: A Final Rule in the Federal Register

Because of the publication of final rules, researchers may also use old
editions of the Federal Register to find former versions of federal regulations,
much as researchers may use session laws to find former versions of
statutes.

108

In addition to proposed and final rules, the Federal Register also allows
administrative departments and agencies to publish “notices” if they want
the public to be aware of a particular issue. Often notices describe
administrative hearings or orders, but agencies can use them to provide the
public with materials that detail the application of administrative rules.
Notices themselves do not carry the force of law but can often offer
researchers helpful guidance as to how an agency applies its regulations.
Figure 5.3.3c shows an example of a notice in the Federal Register.

109

Figure 5.3.3c: A Notice in the Federal Register.

110

Thus, the Federal Register allows compliance with due process, provides a
means of updating C.F.R. sections, and publishes a wealth of information
lawyers can use for regulatory interpretation.

5.3.4 Federal Regulations Online
In addition to issuing the official print versions of the C.F.R. and F.R. to
depository libraries, the federal government also maintains electronic
versions of both the C.F.R. and the F.R., the former at www.ecfr.gov, and
the latter at www.federalregister.gov. Additionally, the commenting system
has been moved online to www.regulations.gov, a site which also allows
researchers to search comments on proposed rules that an agency has
received.
Researchers can use the basic processes of searching, browsing, and
filtering to retrieve information from the three sites. However, when doing
so, there are a few things to keep in mind. First, the eCFR provides the
code as currently in force. Furthermore, the eCFR is updated regularly as
changes made by the F.R. are incorporated with only the delay of a day or
two, which removes the necessity of consulting the L.S.A.116 Finally, the
electronic version of the F.R. only includes issues from 1994 onwards, so
for earlier information when tracing a regulation’s history researchers will
need to consult either the print edition or an edition on a commercial legal
research platform.
In addition to the government sites, Westlaw Edge, Lexis+, and
Bloomberg Law all provide electronic versions of the C.F.R. Westlaw
Edge and Lexis+ also provide the F.R., and importantly, electronic indexes
to the C.F.R. For this reason, researchers may prefer using the legal
research platforms to the government sites when researching federal
regulations.

5.3.5 Administrative Decisions & Guidance
The federal regulatory publishing system described above is
comprehensive in that it contains regulations and some supporting
materials from all federal agencies. However, the Federal Register does not

116 In fact, as most legal research is now performed on computers, the L.S.A. is

rarely used anymore.

111

contain all of the work produced by federal agencies, many of which
publish their own titles containing supplemental information.
Furthermore, commercial publishers will sometimes gather and publish
administrative materials on certain topics. The publications available for
administrative materials vary by agency and topic, but researchers can
consult Table 1.2 of The Bluebook to determine which publications are
available for select federal agencies.117 Alternatively, www.govinfo.gov
provides a comprehensive list of federal government publishers from all
three branches.
Legal researchers tend to think of supplementary materials produced by
administrative agencies in two broad categories: administrative decisions
and administrative guidance. While neither of these types of publications
create binding rules of law, researchers often use them to help interpret
regulations that do possess the force of law. Let us first look at
administrative decisions.
Administrative decisions resemble judicial opinions, except that they are
issued by agencies’ own hearings or review boards that lack the force of
precedent and therefore do not generate common law.118 This is because
administrative adjudicative bodies derive their authority from
Congressional delegation and thus are generally treated as “Article I
Courts” after the article of the Constitution providing for Congressional
power.119 Only “Article III Courts,” those courts whose authority derives
directly from the Constitutional article granting power to the Judiciary, act
as common law courts.120
Researchers may find administrative decisions in a variety of places. First,
many individual agency publications contain decisions, and these
publications can generally be found in print at libraries participating in the
Federal Depository Library Program. For example, decisions of the
Interior Board of Indian Appeals appear in Interior Decisions, the reporter of

THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION 230-242 tbl.T.1.2
(Columbia Law Review Ass’n et al. eds., 21st ed. 1st prtg. 2020).
117

118 Note that terminology varies from agency to agency. Some agencies may have

“boards” to hear administrative cases, while others may have “panels” or use
some other term. A common thread is that members of agency adjudicative
panels are referred to as ALJs or Administrative Law Judges.
119 Article I Court,

BLACK’S LAW DICTIONARY (11th ed. 2019).

120 Article III Court, BLACK’S LAW DICTIONARY (11th ed. 2019).

112

administrative decisions compiled by the Department of the Interior and
sent to Federal Depository Libraries by the GPO.
However, visiting a Federal Depository Library and/or enlisting the aid of
a government documents librarian can be time consuming. For this
reason, the full-service legal search platforms all include at least some
administrative decisions. The websites of agencies themselves also often
link to their administrative decisions. Researchers should consult the
United States Government Manual121 for an official listing of all federal
agencies, and USA.gov provides links to the agency websites. Regardless
of how a researcher finds administrative decisions, he may use them to
help interpret regulations but should not rely on them as common-law
precedent.
In addition to issuing decisions actively applying their regulations to
controversies, most agencies also produce manuals and other internal
documents that researchers can use to determine how an agency is likely to
interpret its own regulations. These materials are referred to as
“administrative guidance.” For example, the Internal Revenue Service
(I.R.S.) publishes the Internal Revenue Manual,122 which describes how the
I.R.S. conducts its business. While administrative guidance materials vary
from agency to agency, researchers should be able to find them in similar
ways to administrative decisions: in Federal Depository Libraries, in
commercial databases, or on agency websites. Regardless of the form the
materials take, researchers can use them to help interpret and apply federal
administrative regulations as a source of law.

5.4 State Regulations
State executive agencies also issue binding administrative regulations,
though not to the same extent as federal agencies. At first this may strike
the reader as counterintuitive. If federal competency is limited to
enumerated powers only, would one not expect to find less, rather than

The United States Government Manual is the official handbook of the federal
government and provides a detailed description of the three branches of
government and the offices that comprise them. Print copies may be found in
Federal Depository Libraries, and the manual is also available electronically at
http://www.usgovernmentmanual.gov/.
121

The Internal Revenue Manual can be found in print at Federal Depository
Libraries and electronically at http://www.irs.gov/irm/.
122

113

more federal regulations? The answer to this quandary lies in two facts.
First, administrative regulations often target complicated commercial and
industrial activities, and so regulating interstate state commerce requires
numerous and detailed regulations in a variety of areas. Second, state
budgets tend to pale in comparison to the federal budget. Thus, federal
agencies tend to be more numerous and better staffed than state agencies.
Nonetheless, state executive branches do regulate certain activities within
their states.
In format, administrative regulations will vary state by state to a certain
degree, but they often mimic the form of federal regulations. For example,
Figure 5.4 shows an administrative regulation from Kentucky. Note the
explicit reference to the statutory grant of authority, just like federal
regulations contain. Also, if a researcher flipped to the beginning of either
the chapter or title that house the particular regulation (Chapter 10, and
Title 902 respectively), he would find a table of contents for that particular
unit of organization. Also, most state administrative codes include a
topical index at the end. Thus, legal researchers interact with state
administrative codes in the same ways they would with the C.F.R.
Furthermore, citation of state administrative regulations tends to resemble
that of federal regulations, though of course this varies depending upon
the state.123 Typically, though, lawyers cite state administrative codes in the
standard title number-code abbreviation-section number format.

123 For a complete list of state administrative regulation citation schemes, see THE

BLUEBOOK: A UNIFORM SYSTEM OF CITATION 242-294 tbl.T.1.3 (Columbia Law
review Ass’n et al. eds., 21st ed. 1st prtg. 2020).

114

Figure 5.4: 902 KAR 10:130

Most states also publish administrative registers, in the style of the Federal
Register. However, most state administrative registers amount to very poor
imitations of the F.R. (mostly because the states themselves are much
poorer entities than the federal government). For instance, Kentucky’s
administrative register is published monthly (as opposed to daily) and
contains far less information. It still provides citizens with notice of
proposed rule changes, and researchers still can use it to update
administrative code sections, though state administrative codes usually are
not big enough to require a separate list of sections affected. (Affected
sections instead typically appear in list form in part of the administrative
register.)
Also like federal agencies, state agencies both hold hearings that lead to
administrative decisions and create internal documentation that
researchers can use for administrative guidance. As with the other
administrative materials, the availability of administrative decisions and
guidance varies state by state and tends to be less prevalent at the state
level than the federal level. Students interested in conducting state
administrative research should contact a law librarian in their state to learn
what sources are available.

115

Thus, legal researchers typically interact with state administrative materials
in the same ways with which they interact with federal regulatory
publications. Indeed, the major differences between federal and state
regulatory publications are differences of scale. It is important that aspiring
lawyers learn to interact with regulations at both the state and federal
levels, as regulations act as the source of law for the executive branch and
often govern commercial activities in their jurisdiction.
We have now introduced students to all the building blocks of modern
legal research. Let us now turn our attention to updating those basic
sources to ensure their continued validity.

116

5.5 Concluding Exercises for Chapter 5
Try your hand at conducting regulatory research!

5.5.1 Introductory Exercise on Researching Regulations
Hello all,
We have been engaged to advise Giovanni “Jonny” Camminatore on a
business venture he plans to undertake as a retirement career.
Mr. Camminatore, an amateur distiller, wants to bring his most recent
attempt at whiskey to market as “Erba Azzurie Bourbon.” I will need you
to do the following:



Find the regulations in the C.F.R. that deal with labeling and
advertising of liquors. Is there a regulation that defines “standards
of identity” for different types of spirits?



According to the regulation you found, what steps must Mr.
Camminatore take in his whiskey-production process in order to
label it as “bourbon”?

Thanks,
Mr. Partner

117

5.5.2 Intermediate Exercise on Researching Administrative
Guidance
Dear Team:
We have been engaged by Sinclair Upton, a research scientist and product
developer for Bow Chow Industries, Inc., a pet food manufacturer. Dr.
Upton is concerned about some of the additives that Bow Chow puts into
one of its lines of canned dog food. He is considering whistle-blowing on
the company to the F.D.A. as a confidential informant. Before he does,
however, he would like assurances that the F.D.A. will preserve his
anonymity. I need you to find some F.D.A. guidance documents
(preferably a F.D.A. manual) that outline their procedures for interviewing
informants and protecting the anonymity of confidential informants in the
context of the F.D.A.’s inspection procedures related to animal food
additives. Let me know what you find.

Regards,
Mr. Partner

118

5.5.3 Advanced Exercise on Researching Regulations
Hello all,
Last week when I was having my annual check-up, my allergist, Dr. Billie
Mayes, mentioned that she’s been working on a new generic inhaler
(tentatively to be marketed as “The Wheeze-Whacker”) which I currently
take the designer version of. Unfortunately, she told me that she could not
get it to work without using an ozone-damaging aerosol, and that she is
afraid the FDA, under the influence of the EPA, will not allow the inhaler
to go to market. The generic would potentially save individual asthma
sufferers between six hundred and twelve hundred dollars a year, so I told
her I’d have my people look into it.
Dr. Mayes describes the Wheeze-Whacker as a “super short-acting, rescue
bronchodilator extraordinaire.” Each unit consists of 200 metered doses
with an extra 4 “priming doses.” The active moieties in the inhaler are
flunisolide and albuterol.
I would like you to answer the following:
1) Find a federal regulation on using aerosols that damage the ozone
in drugs, specifically asthma inhalers.
2) Assuming such a regulation exists, does it prohibit the use of said
aerosols, and if so, does it include any exceptions? (Asthma drugs
are life-savers; surely there are exceptions for things of that
nature!)
3) Would the Wheeze-Whacker, in its specific make-up, qualify
under a necessity-type (or however they phrase it) exception?
What authority supports your answer?
4) What statute(s) grant(s) authority to the FDA to regulate the use
of ozone-damaging aerosols in drugs such as inhalers?

Thanks,
Mr. Partner

119

5.6 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on researching administrative law touch upon material
covered in this chapter. They would be a great place to start for students
looking for further practice on the concepts introduced in this chapter!

5.6.1 “Introduction and Sources of Authority for
Administrative Law”
Summary: an introduction to agencies’ powers
within the constitutional scheme and the regulatory
process.
URL: http://www.cali.org/lesson/765

5.6.2 “Rulemaking: Federal Register and CFR”
Summary: an overview of the rulemaking process
and the publication of the same.

URL: http://www.cali.org/lesson/580

5.6.3 “Researching Federal Administrative Regulations”
Summary: an overview of researching federal
regulations using print sources.
URL: http://www.cali.org/lesson/566

5.6.4 “Agency Decisions and Orders”
Summary: an introduction to the process of
researching federal agency decisions. You should
expect to encounter: overview of agency regulatory
powers; types of agency decisions; how to find them;
how to update them; and their precedential value.
URL: http://www.cali.org/lesson/1223

5.6.5 “Internal Agency Materials”
Summary: an introduction to finding administrative
guidance materials on the internet.
URL: http://www.cali.org/lesson/1061

120

5.6.6 “Government Documents”
Summary: to familiarize the user with the range of
documents produced by the Federal government,
where they can be found, and how they can be used
in a law practice. The lesson focuses on issues
surrounding government documents including:
authenticity, how to find and use government
documents, and statistics.
URL: http://www.cali.org/lesson/8457

5.6.7 “Attorney General Materials”
Summary: an introduction to federal and state
attorney general materials, which are a particular
form of administrative guidance.

URL: http://www.cali.org/lesson/862

5.6.8 “Researching Federal Executive Orders”
Summary: an introduction to researching federal
executive orders, which direct executive agencies to
take certain actions or approaches to regulation.
URL: http://www.cali.org/lesson/583

121

Chapter 6

Updating Sources of Law
Law grows, and though the principles of law remain
unchanged, yet (and it is one of the advantages of
the common law) their application is to be changed
with the changing circumstances of the times. Some
persons may call this retrogression, I call it
progression of human opinion. – Samuel Taylor
Coleridge

6.1 Learning Objectives for Chapter 6
In working through this chapter, students should strive to be able to:


Assess the necessity of updating individual sources of law by
examining their subsequent treatment by other, later sources of
law.



Evaluate how the totality of a case’s subsequent treatment affects
the case’s value as a precedent.



Describe situations in which a statute or regulation may no longer
hold the force of law despite remaining on the books.



Develop strategies for using citators to determine a source of law’s
subsequent treatment.



Develop strategies for using citators as research tools to find
additional sources of law.

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6.2

Introduction to Updating Sources of Law

As discussed in Chapter 4, the common law system, by its very nature,
constantly changes over the course of time. As new precedents adapt,
expand, contract, or otherwise alter legal rules from earlier precedents, the
law evolves and morphs, a process which allows it to continue to order a
constantly changing society. While the Common Law’s adaptability acts as
one of its greatest strength, it does pose a challenge for legal researchers.
Individual sources of law are issued at discrete points in time, but events
that occur later in time can affect their continuing value and applicability.
Thus, legal researchers need to be able to conduct research to examine the
“subsequent treatment” of sources of law in order to determine each
source’s actual value. Lawyers refer to the process of researching an
individual source’s subsequent treatment as “updating” that source of law.
Luckily, legal publishers have long recognized the importance of providing
means for researchers to find efficiently the subsequent treatment of a
source of law and provide tools for doing so. In fact, the brand name of the
dominant print-based tool, Shepard’s Citation Service became so prevalent that
“Shepardizing” became a synonym for “updating” much as “googling” has
become a synonym for online searching. Legal researchers collectively refer
to Shepard’s and similar products as “citators.”
While citators originally developed in print, the advent of computers made
them much more powerful and much more efficient to use, and lawyers and
other researchers now use them almost exclusively in online versions.
Shepard’s still exists, although it was purchased by LexisNexis and serves as
the citator for Lexis+. Westlaw Edge and Bloomberg Law also feature
citators, termed KeyCite and BCite, respectively. In addition to allowing
researchers to investigate subsequent treatment, online citators also
represent powerful research tools for discovering new sources of law.
Before we turn to citators as research tools, though, let us examine their
original use in updating each source of law.

6.3

Subsequent Treatment of Judicial Opinions

As we have seen, the precedential weight of judicial opinions varies.
Furthermore, subsequent treatment of an opinion, by later opinions or by
legislatures, often affects the continuing utility of the rules contained in the
opinion. Thus, finding and reading an opinion merely represent the first
steps in case-based research; a lawyer must also evaluate an opinion’s
applicability to her client’s circumstances in light of the treatment the
opinion has received since it was issued.

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6.3.1

How Subsequent Treatment Affects Opinions

Subsequent treatment of an opinion ranges from positive to negative. On
the positive side, later opinions may discuss, explain, or cite an earlier
opinion. If a later court cites an opinion on a specific point, it has
implicitly approved the legal rule from the earlier opinion. Such positive
citations tend to increase the precedential value of opinions.
Judicial opinions also sometimes suffer negative subsequent treatment. For
instance, a holding may be overturned in whole or in part by a higher
court. Furthermore, appellate courts may overturn their own earlier
decisions. A famous example of this occurred when Brown v. Board of
Education overturned the earlier Supreme Court decision, Plessy v.
Ferguson.124 Sometimes, a later court may limit or abrogate an earlier
opinion without explicitly overturning it. Similarly, if a legislature dislikes a
rule from a particular judicial opinion, it can pass a statute changing the
law that the opinion had interpreted. The amended statute would then take
precedence over the opinion. Lawyers refer to opinions thus affected as
having been superseded by statute.
Finally, later judicial opinions may “distinguish” an earlier case.
Distinguishing lies somewhere in between positive and negative treatment.
An opinion that distinguishes an earlier opinion essentially recognizes the
rule from the earlier opinion as valid but goes on to state that the rule
should not apply in the current case because of different material facts. On
the one hand, the rule from the earlier opinion remains valid. On the other
hand, the rule now only applies to an at least somewhat limited set of
facts. The more times an opinion has been distinguished, the narrower its
factual application tends to be. Legal researchers who discover a
distinguished opinion should carefully evaluate whether their clients’ facts
fall closer to the original opinion or closer to the distinguishing opinion.

124 Brown v. Board of Education, 347 U.S. 483, 494-495 (1954) (overruling Plessy

v. Ferguson, 163 U.S. 537 (1896)).

124

Common Editorial Phrases
Describing Negative
Subsequent Treatment

Description

Abrogated:

The citing case effectively, but not explicitly, overrules or departs from the original case on at
least one legal issue.

Criticized by:

The citing opinion criticizes the original case in some significant way, although the citing
court may not have the authority to materially affect its precedential value, or may not be
quite ready to completely overrule the original case on the issue.

Declined to extend by:

The citing case has declined to extend the ruling of the original case to that particular set of
facts; functionally very similar to distinguished by. Like “distinguished”, this may have the
effect of narrowing the original case’s ruling.

Distinguished by:

The citing case differs from the original case either because of different facts or a different
application of the law. May have the practical effect of narrowing the original case’s ruling
by stating a scenario in which that ruling does not apply. The more citing cases
distinguishing themselves from the original case on a particular legal issue, the narrower the
application of the original case tends to be.

Overruled:

The citing case expressly or effectively overrules at least one legal issue in the original case.

Superseded:

A new or amended statue or constitutional provision has rendered the original case
inapplicable. Note that for events occurring before the enactment/adoption of the new
provisions, the original case would still be valid precedent.

Validity questioned by:

The continuing validity or soundness of a ruling from the original case is questioned because
of intervening circumstances, such as a change in judicial law or the passage of time.
Figure 6.3.1: Common Editorial Phrases Describing
Subsequent Negative Treatment of Judicial Opinions

6.3.2

How to Determine Subsequent Treatment

As discussed above, each of the major legal research platforms features a
citator. Furthermore, the respective legal publishers have each fully
integrated their citator into their platform so that researchers can
effortlessly shift between primary research and updating. The integration
also provides symbols so that researchers can tell at a glance what tone the
subsequent treatment of a particular case has taken.

125

When a researcher encounters a legal authority on Westlaw Edge, Lexis+,
or Bloomberg Law, she may see a brightly-colored symbol next to the title
of the authority.125 These are the subsequent treatment symbols provided
by each platform’s citator that alert the researcher that an authority has
received subsequent treatment. The color scheme further alerts the
researcher as to how the original authority has been impacted by the
subsequent treatment. Generally, citator symbols follow a traffic-light
scheme wherein red means to stop because of severe negative treatment,
such as an overruling, while yellow indicates caution for some subsequent
criticism, and green gives the all clear for only positive subsequent
treatment.126 Thus, a researcher can tell at a glance whether a source is likely
still good law. Note, however, that a good legal researcher will actually read
the negative subsequent treatment, as even cases overruled on one issue
(thereby receiving a red subsequent treatment symbol) may still be good law
on a separate issue.
Researchers should keep in mind that each of the publishers discussed
above employs a team of attorney-editors to help determine how a case’s
subsequent treatment has affected its precedential value. Because these
determinations are judgment calls, it is not uncommon for researchers to
find a case receiving a red symbol on one platform but a yellow or orange
symbol on another. Furthermore, the publishers, as private entities, in no
way are making official determinations. Thus, researchers rely on the
determinations at their peril. Rather the determinations are just an added
research tool; researchers may use the tool but must still perform their own
research and make their own determination.
If a researcher encounters a case bearing a symbol indicating negative or
cautionary treatment, she should first investigate the negative treatment. A
researcher can access the negative treatment by clicking on the subsequent
treatment symbol, which features a shortcut link. Alternatively, researchers
can access the full list of subsequent treatment by clicking on the

125 On Westlaw, the symbols for the most part take the form of flags. On Lexis+,

the symbols are different shapes, and Bloomberg Law uses colored squares with
different shapes inside them.
126 BCite offers more nuanced categories than the other two services, and thus

splits what would be red on West or LexisNexis into Red and Orange levels for
different types of negative treatment. Similarly, while West and LexisNexis
consider distinguishing to warrant a cautionary yellow, Bloomberg uses blue for
distinguishing treatment and reserves yellow for more direct criticism. The basic
pattern remains the same, however.

126

“Shepardize® this document” link (on Lexis+), the “Citing References” tab
(on Westlaw Edge), or the “BCITE ANALYSIS” icon (on Bloomberg Law)
and filtering to negative or cautionary treatment.

Figure 6.3.2a: Accessing a case’s subsequent treatment on
Westlaw Edge.

Once a researcher has accessed the potentially negative treatment, she
should use filters to look at the most negative treatment (particularly that
featuring a red symbol) first, and then proceed to look at the other
potentially negative treatment (that bearing orange or yellow symbols.
Researchers can also use the filters to narrow the list down further to only
those sources that will affect the continued validity of the original case for
the purposes of the legal issue being researched. In particular, jurisdictional,
topical, and reported/unreported filters may be useful.
In terms of jurisdiction, a researcher generally only cares about negative
treatment from the jurisdiction being researched, and most importantly
from sources that would be binding upon the court that would hear the
researcher’s problem. For instance, if investigating a point of Nebraska law,
a researcher would be concerned about Nebraska state court opinions that
deal with the original case negatively, and could use the appropriate

127

jurisdiction (or court) filter to limit results to those cases. Conversely, if
investigating a point of federal law, a researcher can limit results to federal
courts and even levels of court that are higher and in the same circuit as the
original case. Furthermore, trial level courts mix finding of fact with finding
of law, and as such can never be mandatory authority, and so researchers
should feel comfortable using filters to restrict results to appellate cases
when updating a case.

Figure 6.3.2b – Screenshot of a Shepard’s Report and its
available filters on Lexis+TM. Reprinted from LexisNexis
with permission. Copyright 2021 LexisNexis. All rights
reserved.

Topical filters are useful because cases often deal with more than one legal
issue, so if an opinion has received negative treatment on one issue, its
value as precedent on other issues may remain unaffected. Thus,
researchers should focus on negative treatment on point to their particular
issue of interest. Similarly, unreported cases are not deemed to have full
precedential value, and so when determining the continued validity of an
opinion, researchers should filter out unreported cases from their negative
subsequent treatment.
Once a researcher has filtered the negative subsequent treatment by
jurisdiction, topic, and/or reported status, she should then carefully read
the resulting sources. It bears repeating that the symbols provided by the

128

legal research platforms are unofficial judgment calls of editors employed
by the publishers, and so researchers must make their own determinations
as to how later authorities affect the original opinion being updated.
Once a researcher has made an initial determination on the negative
treatment, she should then balance it with positive and neutral treatment
using the same set of filters. Including an analysis of positive and neutral
subsequent treatment can give the researcher a good feel for how
subsequent sources tend to follow the original opinion. Comparing the
number of cases, legal specifics, and dates of positive and negative
subsequent treatment may help a researcher decide upon which cases to
rely. After all, some negative treatment is not a disqualifier, especially if
balanced with a large amount of positive treatment. Regardless, of the
amount of subsequent treatment, however, researchers must take this step
before relying on a judicial opinion.

6.4

Subsequent Treatment of Statutes and Regulations

Citators also allow researchers to gather subsequent treatment materials for
statutes and regulations. While statutes and regulations are not subject to
the same level of nuanced treatment as cases—no one distinguishes a
statute or regulation; they are either relevant to the facts or not—their
continued validity can still be affected by subsequent events.
Most obviously, statutes and regulations both face periodic amendment by
their issuing legislatures/agencies. However, since both statutes and
regulations are published in codes, and codes contain only language
currently in force, researchers generally do not need to take extra steps to
account for amendments that have already gone into force. Note, however,
that the research platforms will attach yellow caution symbols to code
sections facing potential amendment, either through an introduced
legislative bill or through a proposed rule published in an administrative
register. Researchers should pay attention to proposed changes if advising a
client on future action, but proposed changes will not affect statutes or
regulations being used to answer a legal problem stemming from facts that
have already occurred.
In addition to amending by their issuing bodies, the enforcement of both
statutes and regulations may be prohibited by judicial decisions of
competent courts. Courts may hold that statutes that conflict with
constitutional principles are unconstitutional. In addition to the
constitutional question, federal courts can hold federal regulations to be

129

“arbitrary and capricious” and therefore invalid under the Administrative
Procedure Act.127 State regulations are subject to similar judicial review by
state courts. Any of these actions will result in a red warning symbol, and
researchers should take care to investigate the symbol fully.
Researchers can investigate the subsequent treatment of statutes and
regulations by the same methods as they would cases. However, in doing
so, researchers should pay particular attention to the dates of the
subsequent treatment compared to the dates of amendment of the original
statute or regulation. Legislatures and agencies will often (though not
always) amend unconstitutional statutes or regulations to comply with court
rulings. Thus, if the original source has been amended more recently in time
than the issuance of the opinion that resulted in the red warning symbol, a
researcher should pay close attention to the change in language between the
new statutory language and that held to be unconstitutional. This generally
involves a close and detailed reading of multiple versions of the statute or
regulation and equally close and detailed readings of the opinions
constituting the negative treatment.

6.5

Citators as Research Tools

In addition to allowing researchers to gather an original source’s subsequent
treatment, citators allow researchers to find new authorities on point as a
research tool. For instance, if a researcher has found a case on point, she
can Shepardize it to gather all the later cases that have cited the original
case. Cases generally cite cases with similar issues to the ones they are
facing, so this can be an effective way of quickly expanding your research,
especially if you use relevant jurisdictional and topical filters. The research
platforms also provide “depth of treatment” filters that allow researchers to
focus on only those later cases that discuss the original source in depth.
Additionally, a researcher can construct her own filter by using the “search
within” box, which allows searching for factual as well as legal terms. Figure
6.5 demonstrates the use of citators and filters to expand research.
The use of citators as a research tool is particularly effective for statutorilycontrolled problems. When applying a statute to a problem, a lawyer will
supplement the statutory language with judicial opinions interpreting any

Administrative Procedure Act, ch. 324, 60 Stat. 237 (1946) (codified as
amended at 5 U.S.C. §§ 551-559, 701-706, 1305, 3105, 3344, 4301, 5335, 5372,
7521 (2018)).
127

130

ambiguities in the statutory language. Any opinion interpreting a statute will
invariably cite that statute, so running a statute through a citator will give a
researcher the complete universe of cases that have interpreted that
particular statute. Researchers can then search within the results for the
particular statutory language of interest. This process also works with
regulations.

Figure 6.5: Using a citator as a research tool on Westlaw
Edge. Click here for screencast: https://youtu.be/g0ereU2hMk.

Thus, electronic citators are powerful tools both for updating sources of
law as well as for conducting additional research. In the next chapter, we
will look at other powerful research tools afforded by electronic research
platforms.

131

6.6 Concluding Exercises for Chapter 6
Try your hand at updating sources of law!

6.6.1 Introductory Exercise on Updating Sources of Law
Dear Team:
We have been engaged by the Casablanca Community School District
(CCSD) in Casablanca, IA to advise them on various legal matters. Recently
the CCSD, under the leadership of its superintendent, Dr. Victor Laszlo,
with the quiet support of Casablanca mayor, Richard Blaine, adopted an
official policy of allowing students to use restrooms corresponding to
gender identity and presentation rather than to physical sex at birth. Dr.
Laszlo subsequently received what appears to be a piece of hate mail from
Henry Strasser, who has two children attending the district. Apparently,
Strasser does not want non-birth-gender-conforming students sharing a
restroom with either his son or daughter. Amidst the personal threats
directed at Dr. Laszlo, Strasser threatened a lawsuit and cited Plessy v.
Ferguson, 163 U.S. 537 (1896).
We have referred the personal threats to the Casablanca Police Department
(Captain Louis Renault of the CPD assured us that Strasser has been on
their radar “for quite a while”), but Dr. Laszlo would like our assurances
that the lawsuit would be frivolous. Please run Plessy v. Ferguson through a
citator and answer the following questions:


Has Plessy v. Ferguson received negative treatment?



Has it received positive treatment?



When did the positive treatment occur in relation to the negative
treatment?



Is Plessy v. Ferguson still a valid precedent?

Thanks,
Ms. Partner

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6.6.2 Intermediate Exercise on Using Citators as Research
Tools
Hello Team:
We are representing Mr. Nathaniel Bumppo who is being charged with first
degree burglary under KY. REV. STAT. § 511.020. Mr. Bumppo admits to
breaking into Magua’s Diner in Fort William Henry, Kentucky. Apparently,
Mr. Bumppo believed that the proprietor of the diner had assaulted his
girlfriend, Cora Munro, and so Mr. Bumppo broke into the diner with a
hatchet to leave a warning for Mr. Magua to leave Ms. Munro alone.
However, Mr. Bumppo tripped an alarm and was arrested by police at the
scene while still “armed” with the hatchet.
Since no one was hurt during the break-in, to be convicted under KY. REV.
STAT. § 511.020, Mr. Bumppo will need to have been found by a jury to be
armed with a deadly weapon. The Commonwealth is alleging that the
hatchet amounts to a deadly weapon, but I believe this is a misreading of
the statute defining deadly weapon in Kentucky, KY. REV. STAT. §
500.080(4).
I would like you to Shepardize the statutes in question to pull all of the
cases that have interpreted the statutory provisions. Do any of the cases
refer to a hatchet, and if so, can it legally be considered a deadly weapon in
Kentucky?

Thanks,
Ms. Partner

133

6.6.3 Advanced Exercise on Using Citators
Our firm represents Fionn and Siobhán Ó Brádaigh, primary shareholders
of Emerald Herbs, an herbal health supplement shop in southeast
Lexington, KY. Emerald Herbs also features an online retail site and
operates its own herb-growing facilities. Emerald Herbs is organized as a
closely held corporation and employs a total of 56 individuals full-time. The
herbal supplement business is surprisingly lucrative, and the Ó Brádaighs
are very good clients of ours. Unfortunately, they are currently locked in a
legal dispute.
It seems that in addition to working for Emerald Herbs, the majority of
employees also belong to the Jessamine Grove of the Reformed Druids of
North America (RDNA), a neo-pagan religious organization. Siobhán Ó
Brádaigh, in fact, serves as the Arch-Druid of the Jessamine Grove.
Amongst the tenets of the Jessamine Grove is that its members are “to cut
no living tree.” This tenet conflicts with a Lexington ordinance requiring
trees to be trimmed to 7’ clearance above sidewalks. Several trees in
Emerald Herbs’ parking lot feature branches that extend to only 5’ above
the neighboring sidewalk. Lexington’s authority to create ordinances stems
from the Kentucky legislature through KRS ch. 67A on consolidated urbancounty governments.
1. A federal law was enacted in 1993, the Religious Freedom Restoration
Act (RFRA), that was intended to prevent government from passing laws
substantially burdening an individual’s free exercise of religion. Please find
the federal statutes comprising the RFRA. Does it currently apply to state
laws? Did it ever apply to state laws?
2. Is the statute you used to answer Q1 still good law? Why or why not?
3. What are our clients’ chances of successfully using the RFRA to escape
enforcement of Lexington’s tree ordinance?

134

6.7 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons touch upon material covered in this chapter. They would
be a great place to start for students looking for further practice on the
concepts introduced in this chapter!
6.7.1 “Updating/Validating Case Law Using Citators
Summary: an overview of the use of citators.
Covers print citators, which were alluded to in this
chapter, as well as common electronic citators,
which we will cover in Chapter 5.
URL: http://www.cali.org/lesson/858

6.7.2 “Using Citators as Finding Tools”
Summary: an overview of how to use citators as a
research tool to find similar authorities to ones
already discovered. The lesson covers print citators
alluded to in this chapter, as well as electronic
citators, which we will cover in Chapter 5.
URL: http://www.cali.org/lesson/8875

135

Chapter 7

Advanced Electronic
Research
The good news about computers is that they do
what you tell them to do. The bad news is that they
do what you tell them to do. – Ted Nelson

7.1 Learning Objectives for Chapter 6
In working through this chapter, students should strive to be able to:


Explain the function of advanced search operators.



Assess the value of using advanced search operators both
individually and in combination.



Construct well-tailored searches with terms and connectors.



Use the basic processes of online legal research, online finding aids,
and advanced search operators together for efficient research.

7.2 Importance of Efficient Electronic Research
The previous chapters have introduced you to the basics of electronic
research and shown you how to locate primary authorities on legal research
platforms. However, to research effectively, knowledge of advanced search
techniques and the ability to combine research methods is critical.
Remember that for any attorney, time equals money. If an attorney spends
too much time researching a single case, that limits the time she can spend
on other aspects of legal practice and the time at her disposal to conduct
research on other cases ongoing simultaneously. Researchers will encounter
copious amount of legal information on legal research platforms; using
various research methods and advanced research techniques in conjunction
with one another can help target the necessary information more efficiently.

136

7.3 Advanced Searching
While some basic search operators were described in Chapter 2, full-service
legal research platforms have many other operators available. They also
provide forms and accompanying commands that allow researchers to
target their search to specific parts of a document. Effective utilization of
these methods requires a researcher to have a solid understanding of the
legal authorities she is looking for and at least a basic understanding of the
legal issue she is researching.

7.3.1 Search Operators
Connectors and expanders are both categories of advanced search
operators.128 Connectors alert the research platform that the researcher
would like to limit results to pieces of information that contain specific
search criteria; they effectively narrow the search results. The Boolean
operator AND mentioned in Chapter 2 is a type of connector. Recall that
AND would be used to specify that two keywords both appear in every
search result. To further narrow the search results, /p could be used
between two terms to tell the research platform that not only would the
researcher like the results to contain both terms but that she requires that
both terms to occur in the same paragraph.
While connectors work to limit the search results, expanders work to
broaden the search results. The Boolean operator OR discussed in Chapter
2 is a type of expander. On Westlaw Edge, the ! functions as a root
expander. This means that a researcher could use an exclamation point to
retrieve multiple variations of a word that stem from a common root. For
instance, searching for the term declar! would return results that begin with
the root declar, which would include the following words: declare, declaring,
declarant, declaration, etc. While connectors tend to limit results, expanders
will sometimes yield more results but will eliminate the need for multiple
searches if searching for a term that exists in multiple variations.
Keep in mind that when using advanced search operators, the search engine
will usually follow your specific commands and only bring back results

128 Legal researchers may encounter the

phrase “terms and connectors” when
constructing advanced search queries on legal research platforms. Technically, the
word “connectors” refers to the search operators while “terms” refers to the
researcher’s individual search terms, but the phrase is often used more generically
to mean an advanced search.

137

using the criteria you specified. This means you must think carefully and
critically about the language and operators you utilize in the search query.
We are used to relying on search engines to automatically bring us back
synonyms and variations of words. However, if you are constructing an
advanced search query, you will have to be specific about all the criteria you
want your search results to contain.
One way to be specific in a search query is to use quotation marks to signal
that you want a series of words to be found together in exactly that order.
For example, intentional infliction of emotional distress is a specific kind of
tort. But you can imagine those words being used in a variety of ways in
legal documents. So if you only want documents containing that exact
phrase, rather than all documents that contain those words just somewhere
in the document, you would use quotation marks to signal that to the search
engine: “intentional infliction of emotional distress”
Different platforms sometimes recognize slightly different operators but
usually a researcher will be able to find a list of recognized connectors and
expanders via a link on the research platform itself. On Westlaw Edge, for
example, click “Advanced” below the search button for a list of connectors;
on Lexis+, click “Advanced Search” just below the right end of the search
box on the home page. Figure 7.3.1 provides a list of commonly
recognized search operators.
Expert legal researchers will combine search terms, connectors, and
expanders into a single search to get a concise list of relevant results. When
constructing advanced searches using multiple operators, it is sometimes
helpful to break your search query into chunks with parentheses. At one
point in time the parentheses were necessary to tell the search engine the
order in which the operators should be applied (much as parentheses work
in algebraic equations). Today, legal research platforms no longer need the
parentheses, but it can be helpful to the researcher to identify visually the
order in which the operators will be applied.129 For example, if I wanted to
use Westlaw Edge to find the Oregon cases in which embryos are discussed
as property in a divorce, I might craft the following search:
embryo! /p property /p (divorce OR “dissolution of marriage”)
The search query above contains a series of operators, as well as four terms
that I think are integral to my legal problem. The operator ! after embryo
129 Refer to the help documentation on the legal research platforms for more

information about the order of operators.

138

tells Westlaw Edge that I am interested in results with the term embryo
with various endings since I want to retrieve cases that discuss one embryo
as well as those that discuss multiple embryos. The operator /p tells
Westlaw Edge that I want the search terms embryo! and property to
appear in the same paragraph, since if the terms appear in proximity to one
another they are probably being discussed in relation to one another. I’ve
then specified that I also want in that same paragraph either one of two
synonyms for the concept of divorce. I’ve also put the phrase “dissolution
of marriage” in quotes to indicate that I want results with that exact
phrase, not just the term dissolution appearing in one sentence and the term
marriage appearing in a different sentence.130 By using these operators, I
have narrowed my results to those likely to address my specific problem,
though I will still need to try additional research methods to make sure I’ve
located all the relevant primary authorities.

130 Notice that I did not include search terms referencing the type of authority

(cases) or the jurisdiction (Oregon) in the search query since I can use filters
and/or browsing to more precisely target documents conforming to that criteria.

139

Operator
AND

OR

NOT

/s

/p

“”

!

Effect
Returns only documents
containing both terms.
Returns documents
containing either term.
Often used with
synonyms.
Returns documents
containing the first term
but excludes any
documents that also
contain the second.
Returns documents with
both terms in the same
sentence.
Returns documents with
both terms in the same
paragraph.
Returns only documents
that contain the entire
phrase found within the
quotes.
Root expander; will
return documents
containing any variation
of a root word.

Example
budget and deficit
ship or vessel or
boat

apple not fruit

sanction /s
frivolous
custody /p child

“attorney of record”
acqui!
Finds acquire,
acquisition,
acquiring, etc.

Useful if looking at
alternate spellings,
Universal character; the
e.g. defen*e if
*
computer will treat the *
looking at both
as all letters.
English and
American cases.
Figure 7.3.1: Commonly Used Connectors and Expanders

7.3.2 Field Searching
Field searching represents another way to target and limit research results.
When legal research platforms upload authorities to their electronic
platforms, they often divide the source document into different segments or
fields. Researchers may then search each of these fields individually.

140

Different types of authority may contain different fields. On Westlaw Edge,
for instance, codified statutes are broken into nine fields: preliminary,
caption, preliminary/caption (in other words, the first two fields combined),
citation, annotations, credit, statutory text, historical notes, and words &
phrases (a specific finding aid originally produced as a print publication).
Meanwhile, the same provider divides published cases into twenty-four
separate fields: date, party name, citation, synopsis, digest, synopsis/digest,
judge, attorney, court name/prelim, docket number, background,
concurring, court abbreviation, dissenting, full text, headnote, holding, lead
notes, opinions, panel, topic, words & phrases, and written by. Though the
fields vary, a researcher can use any individual field to increase the precision
of a search.
Some of the fields mentioned above correspond to value-added content,
such as headnotes, that Westlaw Edge adds to primary source documents.
The replication of these print-based information systems, when combined
with the ability to field search, gives legal researchers the ability to narrowly
tailor their searches to be as precise as possible. For example, if you are
looking for cases with specific facts, it might be useful to use the
synopsis/digest (aka SyDi) field to search only the Westlaw Edge editorial
content of cases than do a full-text search of cases. Westlaw Edge editors
will usually only mention facts related to the legal issues discussed in the
case, so a search of that field will eliminate facts mentioned solely as
background or in relation to cases mentioned in passing in the opinion.
To conduct a fielded search, a researcher may either enter an advanced
search interface and type terms into the appropriate boxes or add field
commands to a hand-crafted advanced search. Different publishers may
create different fields for different types of documents, so you must be
familiar with the fields available on the platform you are using.
Furthermore, the abbreviated field search commands vary from platform to
platform, so it may be a good idea for novice researchers to investigate the
advanced search interface or click on a help button when conducting a field
search. Expert researchers often use field searches in combination with
advanced search operators. Refer to Figure 7.3.2 for a demonstration.
Finding out what part of the document each field is referring to can be a
challenge. Fortunately, both Westlaw Edge and Lexis+ provide an
annotated image of each kind of document to tell you which field
corresponds with which part of the document. On either platform,
navigate to the type of authority you want to research in (e.g. cases or
statutes), and then to the advanced search page.

141

Figure 7.3.2 Field searching in cases in Westlaw Edge.
Click here for screencast: https://youtu.be/ws0XyOW3ujU

7.4 Combining Process for Efficiency
While a researcher can use any of the processes discussed thus to find at
least some relevant results, efficient researchers often combine the
processes to find the most relevant results efficiently. This is true of all
electronic information gathering to a certain extent, whether for formal
research or personal use. For example, if I wanted to download a new
fantasy book to read for some old-fashioned escapism, I might use a variety
of basic processes on Amazon.com. First, I would browse through
Amazon’s internal organization to get to Kindle eBooks. Next, I would
enter a search term, such as “urban fantasy.” Finally, I would apply a filter
for an average customer review of 4 stars or higher (there is a lot of bad
fantasy out there).
As the example above illustrates, web navigation that most people would
probably regard as routine regularly combines searching, browsing, and
filtering. Of course, the more complex the research task, the more
important it is to research efficiently. Unfortunately for aspiring legal
researchers, American law tends to be one of the more complex subjects to
research. Complex subjects often require advanced search techniques, so in
the following sections we’ll explore a few ways to combine electronic
research processes and tools described thus far.

142

7.4.1 Browsing, filtering, and advanced search operators
Browsing, filtering, and advanced search operators are frequently employed
in conjunction with one another. For novice legal researchers learning
about various types of authority for the first time, and even for experienced
researchers who know exactly what they are looking for, it is sometimes
helpful to browse down to the type of authority you are looking for before
running a search. For example, to find case law on Lexis+ to determine
how embryos are treated as marital property in divorce proceedings in
Oregon, I would start by browsing to the type of authority – Cases.131 From
this screen, I would construct a well-formed advanced search, previously
identified in 7.3.1:
embryo! /p property /p (divorce OR “dissolution of marriage”)
This well-crafted search yields a workable number of cases, but for good
measure I would add filters for more precise results. Specifically, I would
apply the publication status filter so that I am only viewing reported cases,
and then the jurisdiction filter to specify only Oregon cases. Between these
two filters I have limited myself to only one mandatory case. After I read
the controlling case, I can always expand my research to persuasive cases by
removing filters.

Fig. 7.4.1 Browsing, filtering, and advanced search
operators in Lexis+TM. Click here for screencast:
https://youtu.be/Pa-sJnK6b9Y. Reprinted from
LexisNexis with permission. Copyright 2021 LexisNexis.
All rights reserved.

131 I could accomplish the same goal by running a search and then using the

appropriate filter, but this order focuses the researcher’s attention on only the
desired type of authorities.

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7.4.2 Advanced searching within citing references
In Chapter 6, Figure 6.5, we looked at an example using the citing
references to the Howes v. Fields, 565 U.S. 499 (2012) opinion to narrow in
on cases regarding the legal issue of whether an individual was in custody
for purposes of needing a Fifth Amendment Miranda warning. This video
is a good example of combining research processes using citing references
and filtering by jurisdiction and legal topic. At the end of the video, we
used the search within filter to narrow the citing cases to specific type of
fact that we were looking for. However, we can use advanced search
operators here as well to broaden or narrow that search. For example, we
might want to make sure that we are finding mentions of home specifically
in relation to the concept of custody, so we might search within using an
advanced search of home /p custody. This would help exclude cases
where the term home was merely mentioned as part of the background facts
of the case rather than in relation to the legal issue. Alternatively, if we
wanted to be sure we were being thorough in our coverage of synonyms in
the search query, we might use home OR hous! OR apartment. The !
covers variations of words beginning with hous, such as house or housing,
while the OR encompasses synonyms of home. And we could combine the
two search queries just mentioned to be even more precise:
(home OR hous! OR apartment) /p custody

7.4.3 Advanced search operators with key numbers or Lexis
Topic
In Chapter 4, we discussed how to use the key number system on Westlaw
Edge to pull up a list of cases related to a specific key number. Recall that
each key number corresponds to a specific legal issue. However, it may be
that within a listing of cases under a specific key number, a researcher
would want to run a keyword search for an opinion with particular facts.
Unfortunately, when we are on a key number page, neither the search bar at
left nor the one at the top of the page searches the full text of the opinions
listed on the page; these search boxes only search the headnote summaries
listed on the page. To search the full text of opinions within a specific key
number, we can use the key number itself as a search term.
For example, the key number that relates to the legal concept of what
constitutes custody for the purposes of needing a 5th Amendment Miranda
warning is Criminal Law k411.21. The topic of Criminal Law also has a
number – 110. That means we can write the key number using almost

144

entirely numbers – 110k411.21 – which makes it easier to use as a search
term. The key number then functions as a stand-in for the legal issue in our
search query. If we were interested in cases discussing the legal concept of
what situations constitutes custody in which a person was located in their
home, you might construct the following:
110k411.21 & (home OR hous! OR apartment)

Figure 7.4.3a Using key numbers as a search term in
Westlaw Edge. Click here for screencast:
https://youtu.be/zzI6bXCU9t8

Lexis Topics makes this process easier. If we look at the headnotes to a
case related to the legal issue, such as Howes, we can find the Lexis Topic
Criminal Law & Procedure>…>Miranda Rights>Self-Incrimination

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Privilege>Custodial
Interrogation.132
By
clicking
on
the
triangle/arrowhead next to the topic, we get a dropdown where we can
select “Get Documents” to take us to a list of all cases related to that legal
topic (see the screenshot in Figure 7.4.3b). From the legal topic page, we
can run a full-text search of those documents using the search within filter
on the left side of the page. However, note that Lexis Topics are often
broader than key numbers. This Topic is combining the more specific legal
topics of custody and interrogation, which means there will be more cases
associated with it, so you might need to craft a more specific search query
to effectively limit your results.

Figure 7.4.3b Screenshot of Headnote 5 of Howes v.
Fields, 565 U.S. 499 (2012) in Lexis+TM and its
associated Lexis Topics. Reprinted from LexisNexis with
permission. Copyright 2021 LexisNexis. All rights reserved.

7.5 Limitations to Electronic Research
The shift from research being conducted in print to being conducted via
computers was – and continues to be – a game changer for conducting
research of any kind. However, it is not without its limitations. Many of
the high-end legal research platforms charge for their content via cable-like
subscription packages.133 For example, an attorney at a small firm in Ohio
may pay for access on Lexis+ to Ohio state primary authorities and statespecific secondary authorities. If, however, his long-time client has a case
where Kentucky state law applies, he may have to either pay to access
documents outside his subscription on Lexis+, use free resources or budget

132 The ellipses mean that there are more subtopics that have been omitted here

for the sake of length.
133 Whenever you first start using electronic research platforms at your place of

employment, ask about how organization is billed for using them. Some
platforms charge by each search run or each document accessed rather than a
subscription model, and there are other billing variations, so inquire before you
inadvertently run up a bill of hundreds or even thousands of dollars.

146

legal platforms to supplement his pricier Lexis+ subscription, or go to a
nearby county or academic law library to access their print materials or
electronic subscriptions.
Another limitation to electronic research is that not all information that was
originally published in print has been digitized. As an example, if you are
trying to complete a legislative history of a statute that was originally
enacted in the 1960s, such documents may not have been digitized and may
require contacting a government agency or library for access to print
materials. Or if you are trying to track down a secondary source cited in a
case from the 1980s, many of those have not been digitized and may
require that you track down a print copy of the book.
Even if a document was initially created electronically, it may not have been
made available for purchase or to the public in any form. You may need to
contact administrative agencies for an internal document or a court for a
specific court filing. The publisher of a secondary source may make it
available for purchase but only in print form, or they may make it available
in electronic form but not license the content to a platform that you
subscribe to, so it would be an additional cost to access.

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7.6 Concluding Exercises for Chapter 7
Hone your skills by completing the following exercises on all the legal
research platforms available to you.

7.6.1 Introductory Exercise on Electronic Research
1. Find the United States Supreme Court case in which Justice
Jackson argued that, “Compulsory unification of opinion achieves
only the unanimity of the graveyard.”
2. Find a 1971 case in which Satan was sued in federal court.
3. Find a pre-1990 Massachusetts case in which a goldfish is
considered an “animal” for the purposes of enforcing a statute.
4. Find a 5th Circuit Court of Appeals Case from December 2010
regarding identity theft.

7.6.2 Intermediate Exercise on Electronic Research
Against your better judgment, shortly after graduating and passing the
Kentucky bar, a heretofore slacker friend of yours, Joe Stoner, convinces
you to sign on as General Counsel for his newly formed video game
development company, Rockabilly Star Games, incorporated in South
Dakota. Honestly, you just agreed to be G.C. to stop Joe from pestering
you while you looked for a more legitimate job. You never expected him
actually to produce a single game. Contrary to your expectations, however,
Joe has found his true calling in life and is nearing launch of the
company’s new centerpiece, Mary Jane’s Marauding Moppets, in which
puppet-like, anthropomorphic versions of common woodland animals
engage in the illicit marijuana trade. (Some of the challenges of the game
include: a mini-game on DEA Dodging, a social-networking style minigame on Crop Watering/Farm simulation, and a supply and demand
business distribution simulator. Joe swears the game will “like, destroy
preconceived notions of genre, man.”) Rockabilly Star Games is also
offering a limited edition of the game that ships with a hollow, ceramic
figurine of one of the woodland animal characters. The figurines look
suspiciously like bongs. You decide that as General Counsel, you had
better do some research.

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1. Find a United States Supreme Court case from 2011 that struck
down a California law regulating the sale of violent video games
on First Amendment grounds.
a.

Has it received any negative treatment? Describe that
treatment in general terms.

b. Has any South Dakota state court decision cited this
case?
2. Find the U.S.C. provision prohibiting the sale of drug
paraphernalia.
a.

Do you see anything that might affect the validity of this
statute?

b. Have there been any federal cases in the 8th Circuit Court
of Appeals that discuss this statute?

7.6.3 Advanced Exercise on Electronic Research
We represent Mr. Cobain, a resident of Seattle, WA. Mr. Cobain was
convicted of second degree assault by King County Superior Court
following an incident in which Mr. Cobain confronted his neighbor Mr.
Vedder.
Mr. Cobain and Mr. Vedder have a history of minor confrontations
mostly stemming from noise complaints, as Mr. Vedder has often
complained of sounds of domestic disputes emanating from Mr.
Cobain’s residence. In the incident that led to Mr. Cobain’s conviction,
Mr. Cobain had been arguing with his girlfriend, Ms. Love, when Mr.
Vedder belligerently approached Mr. Cobain’s residence, banged on his
door, and screamed, “Enough with this racket! Come out here and I’ll
show you who the better man is!” Accompanying Mr. Vedder was his
dog, a boxer-mix named Jeremy.
Following Mr. Vedder’s intervention, Mr. Cobain opened his door and
noted Mr. Vedder’s aggressive posture and the presence of Jeremy, who
was now growling. Mr. Cobain then called for his dog Polly to come to
his aid. Polly, a Giant Schnauzer weighing approximately 100 lbs.,
bounded down the stairs (she had been upstairs in the bath having
earlier become doused in mud, which was the source of the argument

149

between Mr. Cobain and Ms. Love) and launched herself at Mr. Vedder,
who turned and ran back to his house. Jeremy was able to slow Polly
down enough to enable Mr. Vedder to escape unscathed, though
eventually Jeremy too fled before the Schnauzer’s wrath.
Despite the fact that Mr. Vedder suffered no physical injuries, he
pressed charges against Mr. Cobain for assault, and Mr. Cobain was
convicted of second degree assault on the theory that he used Polly as a
weapon. During trial, we introduced evidence that Mr. Cobain only
called Polly in self-defense, but the judge did not allow a self-defense
instruction to go to the jury. We are appealing Mr. Cobain’s conviction
to the Washington Court of Appeals, Division 1, and I need you to do
the following, using an electronic search platform of your choice:
1. Find the Washington statute that criminalizes assault in the
second degree. Does the statute expressly state that the victim
needs to suffer physical harm if a weapon is used?
2. Find the definitions section for Washington’s criminal code.
What is the statutory definition of the weapon called for by the
statute on assault in the second degree?
3. Have there been any reported cases interpreting the definitions
statute you found that hold that a dog can be a weapon for
purposes of the statute(s)?
4. Have any binding Washington state cases addressed the issue as
to whether a defendant is entitled to a jury instruction on selfdefense due to the presence of the victim’s dog? Make sure you
only look at cases that have occurred since 1975 (when
Washington adopted its current criminal code).
5. Based on what you have found so far, do you think it likely that
we will be able to have Mr. Cobain’s conviction overturned?
Support your answer with citations to authority.
Thanks,
Ms. Partner

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7.7 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on electronic research touch upon material covered in this
chapter. They would be a great place to start for students looking for
further practice on the concepts introduced in this chapter!

7.7.1 “Introduction to Search Logic and Strategies”
Summary: an introduction to searching and using
search operators.
URL: http://www.cali.org/lesson/1121

7.7.2 “Cost of Legal Research”
Summary: an introduction to the costs associated
with using full-service legal search providers and
strategies that can be used to mitigate those costs.
URL: http://www.cali.org/lesson/1065

7.7.3 “Internet Legal Resources – Free Resources”
Summary: an introduction to free electronic legal
resources available outside of the major legal
research platforms.
URL: http://www.cali.org/lesson/856

7.7.4 “Evaluating Web Sites”
Summary: provides a practical framework for
improving information literacy, especially as it relates
to sites on the open web.
URL: http://www.cali.org/lesson/817

7.7.5 “The Legal Research Game: Fee or Free Edition”
Summary: focuses on the decisions you may need
to make when choosing between print, free web, and
fee-based electronic databases.
URL: https://www.cali.org/lesson/1211

151

Chapter 8

Secondary Sources
If I have seen farther, it is by standing on the
shoulders of giants. – Sir Isaac Newton

8.1 Learning Objectives for Chapter 8
In working through this chapter, students should strive to be able to:


Describe various types of secondary sources.



Assess when to use a general secondary source vs. an in-depth,
topical secondary source.



Find an appropriate secondary source for any discrete legal issue.



Use secondary sources in print or online to research a specific
legal issue.

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8.2 Overview of Legal Secondary Sources
This text has so far discussed primary legal authorities and the methods for
locating them. Now we turn our attention to secondary authorities, also
called secondary sources, which are the sources researchers often use to
begin their research. Legal secondary sources are texts that provide
commentary and analysis of the law for the benefit of the reader. Secondary
sources come in a variety of forms; they can be general or detailed, cover a
specific jurisdiction, and they are written for a wide range of audiences.
Different secondary sources may be employed at different stages of the
research process; the choice of secondary source may also rest on the
researcher’s prior knowledge of the topic. This chapter will describe the
most common types of secondary sources the researcher is likely to
encounter, when they should (and should not) be used, and a variety of
methods for locating them.

8.2.1 Common Types of Secondary Sources
Law students and aspiring legal researches will likely encounter a broad
range of secondary sources. In the following sections, we briefly describe
some of the common types of secondary sources used by legal researchers.
Figure 8.2.1 provides a quick-glance summary of the strengths and
weaknesses of each type of secondary source described.

153

Secondary Source

Advantages & Disadvantages

Legal encyclopedias

More breadth and less depth; a very general
introduction to many legal topics. Low
citability.

Practice Series &
Materials

Breadth and depth vary by source, as does the
amount of commentary. Citability thus varies;
typically low. Useful in jurisdiction-specific
research.

American Law
Reports (ALRs)

More breadth and less depth; annotations
contain summary but not analysis. Useful to
start research on narrow topics and for
jurisdictional comparisons. Low citability.

Restatements

Highly credible and thus highly citable. Indepth coverage on areas of traditional common
law.

Model Codes &
Uniform Acts

Focus on areas governed by statutory law and
provide extensive annotations to relevant
caselaw.

Treatises

Treats a subject in depth but breadth varies.
Citability sometimes high but varies depending
on the reputation of the treatise.

Form books

Useful for identifying the pieces necessary to a
type of legal document.

Law Review &
Journal Articles.

In-depth treatment on a narrow area of law; not
updated once published. Quality and thus
citability varies.

Figure 8.2.1: An Overview of Secondary Source Types

8.2.1.1 Legal Encyclopedias
Legal encyclopedias are the most general of secondary sources. They have
more breadth than depth and so can provide an introduction to a wide
range of legal topics. If the researcher is unfamiliar with an area of law and
needs a list of the major primary authorities in the area as a starting point
for further research on the issue, legal encyclopedias are a solid place for
him to begin his research. They are, as one would expect from the term

154

“encyclopedia,” organized alphabetically by topic. American Jurisprudence 2d
(Am. Jur. 2d) and the Corpus Juris Secundum (C.J.S.) are two of the most
widely known legal encyclopedias. Some states have jurisdiction-specific
legal encyclopedias, such as Ohio Jurisprudence 3d.

8.2.1.2 Practice Series & Practice Materials
Practice series resemble legal encyclopedias in that they cover a variety of
legal topics, though perhaps not as many as a legal encyclopedia, and they
tend to be jurisdiction-specific. They are usually written by practitioners or
scholars specializing in that jurisdiction and may contain descriptions of
the current state of the law, some analysis of the law, and possibly forms
relating to a particular topic. They tend to be organized by topic and can
be one volume or many.
Other practice materials may be form books, discussed further in section
6.2.1.7, or process-oriented guides as to how litigation on a topic normally
proceeds. Materials in the latter category may explain how litigation on a
topic proceeds and the court filings and documentation typically seen in
such cases.
Practice series and other practice-oriented materials can sometimes
resemble treatises in their depth of coverage on specific topics. In fact,
whether an item should be deemed a “treatise” or a “practice material” can
be a gray area, and these sources are often found using similar methods that
will be discussed later in this chapter.

8.2.1.3 American Law Reports (ALRs)
The American Law Reports is a set of hundreds of volumes which are filled
with articles called “annotations.” ALRs provide an odd combination of
breadth and depth; the number of topics covered is vast but those topics
are much more specific than those in an encyclopedia. The annotations
summarize caselaw on those narrow topics across jurisdictions; the
function is more of a report on the current state of the law rather than an
analysis of the law as one would find in a topical treatise. Each annotation
contains a table of the relevant primary authorities described in the
annotation organized by jurisdiction which can be a quick reference for
finding primary authorities on that topic across jurisdictions. There are six
series of the ALRs covering state law, the most recent being the ALR 6th.
The ALR Federal covers federal topics and is on its second series.

155

8.2.1.4 Restatements & Principles of Law
Restatements are publications by the American Law Institute (ALI) that
clarify and organize the existing state of caselaw on a given topic, or, in
other words, restate the law. The restatements contain analysis on an area
of law, summarize and refer to caselaw across jurisdictions, and may offer
suggestions on how the legal system could clarify an area of law going
forward.
Because the ALI is composed of a large number of legal scholars and
practitioners who are the experts in their fields, the restatements are
generally considered to be among the most persuasive of the secondary
sources of law. In fact, they are often cited by judicial opinions,
particularly when there is no binding authority on point.
Many of the restatements are on their third series and are published by
topic. Some of the more well-known restatements are those covering the
laws of agency, contracts, property, torts, trusts, and unfair competition. A
complete list of topics may be found on the ALI website.
The ALI also publishes recommendations on areas of the law that need to
be updated; these publications are called “Principles” and cover a wide
variety of legal topics. These can be useful to a practitioner looking for
guidance on how to present to the court on an area of unsettled or outdated
law.

8.2.1.5 Model Codes & Uniform Acts
The ALI and the Uniform Law Commission both publish model codes and
uniform acts to advocate standards or to improve organization in certain
areas of the law. Just as the name implies, these publications are written in
the form of model statutes that jurisdictions can adopt in part or whole into
their own statutory codes. Examples that are familiar to first year law
students are the Uniform Commercial Code and the Model Penal Code; a full
listing can be seen on the Uniform Law Commission website and the ALI
website. These publications contain annotations detailing how these model
statutes have been adopted and implemented in various jurisdictions and
thus can be a rich source of primary authority for a researcher.

156

8.2.1.6 Treatises
Treatises are comprehensive texts on a narrow legal subject. They
generally provide much more discussion and analysis of the legal topic
than a legal encyclopedia or ALR annotation while also leading the
researcher to primary authorities through references and citations. They
may or may not be jurisdiction-specific and can vary in length from one to
dozens of volumes.
Treatises are often named after their authors, e.g., Nimmer on Copyright,
Farnsworth on Contracts. Some treatises are highly reputable in a given field,
but the quality can run the gamut. Consulting a subject-specific research
guide or a research expert may be the quickest method to locate the most
credible title for a specific legal topic.

8.2.1.7 Form Books
While each legal problem is distinct and each client unique, often the
output of legal practice takes standardized forms. For instance, partnership
agreements, while differing in the details, are generally structured in the
same way. On the litigation side, while motions will employ unique
arguments depending on the circumstances, the motions themselves will
follow a standard format. Thus, one of the more useful types of secondary
source in practice are form books, which publish blank templates or forms
that lawyers can use in crafting their own legal documents. Usually, some
explanatory text, similar to what you would see in a treatise, accompanies
the templates.
Form books may be either jurisdiction specific or neutral; they may also be
topical specific or cover a wide variety of subjects. West’s Legal Forms is an
example of a general, jurisdiction-neutral form set. Published sets of pattern
jury instructions, on the other hand, are topically specific and are often
published for specific jurisdictions.

8.2.1.8 Law Reviews & Journals
Law reviews and journals contain scholarly articles primarily written by law
professors on various specialized areas of law. Journals are published
periodically and may contain articles on a particular subject area (e.g. Harvard
Journal on Racial and Ethnic Justice) or articles in a wide variety of subjects (e.g.
Harvard Law Review). Individual articles, however, usually address a very
narrow area of the law. Furthermore, journal articles tend to focus on

157

underdeveloped or rarely-visited areas of the law and thus often contain
information not found elsewhere. For this reason, they can be a rich
resource for identifying not only relevant primary authority on that narrow
topic but also secondary authorities on point. For the same reason, they are
occasionally cited as persuasive authority by judicial opinions.
From a jurisdiction perspective, journals function differently from other
secondary sources. E.g., if you saw the title Ohio Jurisprudence 3d, and noted
its similarity to the American Jurisprudence 2d, you might correctly assume that
this is a legal encyclopedia focusing on issues of Ohio law. However, the
same assumption cannot be made of the Ohio State Law Review. Law reviews
and journals named after a state school are generally not jurisdiction
specific. E.g., the Ohio State Law Review refers less to the jurisdictions
covered by the articles it contains than the name of the school it is affiliated
with, which means it will include articles covering the law of a wide variety
of jurisdictions. That said, articles related to a specific state’s law are more
often found in journals from that state than from any other state.

8.2.2 Uses of Secondary Sources
As indicated above, different secondary sources are employed for different
research scenarios. Typically the researcher will use a secondary source to
educate himself on an unfamiliar area of law, unfamiliar jurisdiction, or as
a method to quickly identify relevant primary authorities on a given topic.
Sections 8.2.2.1 and 8.2.2.2 address these uses in more detail.
While secondary sources are extremely useful tools for the research
process, the researcher will not ordinarily cite to them in formal
memorandums or court documents. He should never rely on a secondary
source’s analysis of a primary authority; he must always review the primary
authorities and conduct his own analysis relative to the specific facts of the
legal issue that he is researching. Additionally, some areas of the law
change rapidly and secondary sources vary widely in their currency; a
researcher will always need to perform additional research to make sure he
is working with the most recent primary authorities on the issue. There
are, however, exceptions to every rule, and section 6.2.2.3 describes
scenarios in which citing to secondary authorities may be appropriate.

158

8.2.2.1 For an Overview
A researcher may need to consult a secondary resource for an overview of
an unfamiliar area of law, of an unfamiliar jurisdiction, or of an
overdeveloped area of law.
When researching an unfamiliar area of law or jurisdiction, a secondary
source will give the researcher a quick overview of the state of the law in a
specific legal area or in a specific jurisdiction. For an unfamiliar area of law,
a general resource such as a legal encyclopedia may be the best place to
start; once the researcher has a basic introduction, he may move on to a
treatise or practice guide. A jurisdiction-specific legal encyclopedia would be
beneficial for the researcher working with the law in a state in which he
does not typically practice. A jurisdiction-specific practice series may be
beneficial both for gaining an understanding of the topic in the researcher’s
home jurisdiction, or he may want to identify a practice series in a new
jurisdiction to see how it differs from his.
When researching in an overdeveloped area of the law, the researcher may
find that he is overwhelmed by the number of primary authorities available
on a particular topic. Separating the most relevant authorities from the
multitude can be a time-consuming process, but a topic-specific secondary
source may give the researcher a head start. A treatise on the topic will
highlight the most important primary authorities in a given area, saving the
researcher the time of identifying them himself.
In any of the above scenarios, the secondary source will also yield another
important resource: relevant terminology to the topic. A different
jurisdiction may use legal phrases to which the researcher is unaccustomed;
an unfamiliar or overdeveloped area of law may have sub-topics or
concepts previously unknown to him. The secondary materials will help the
researcher grasp the appropriate terminology and concepts. Armed with the
appropriate vocabulary, he can then pursue primary authorities using the
methods described in earlier chapters.

8.2.2.2 As a Pathfinder
One of the most useful features of secondary sources is that they direct
researchers to primary authorities, and sometimes other secondary
authorities, on the topic. An ALR article may summarize cases on a narrow
topic across jurisdictions; a treatise will not only summarize the cases but
provide detailed analysis of opinions on a particular legal issue; a

159

jurisdiction-specific practice series will highlight the critical cases on the
topic in that state. For underdeveloped areas of law, a scholarly article on
point can direct the researcher to a wealth of excellent materials. That
scholar has likely performed months, if not years, of research, identified the
most relevant primary authorities, and consulted the most authoritative
secondary sources on the topic.

8.2.2.3 To Cite as Persuasive Authority
There are scenarios in which it is appropriate to cite to persuasive authority
in your legal writing. Typically, this occurs in areas of law that are either
underdeveloped or overdeveloped.
When an area of law is overdeveloped, the amount of relevant primary
authority to be found can be staggering. It may be difficult to narrow down
the appropriate cases to cite to support a particular legal proposition. In
such a scenario, it may be prudent to cite a Restatement instead of
hundreds of cases that have developed a particular proposition. If that
Restatement is cited in precedent from your jurisdiction, it is an indication
that it may be appropriate to use it for the same purpose. Some treatises are
held in similarly high regard and used in a similar manner.
Citing to secondary authority may also be appropriate in the opposite
scenario: when an area of law is new or underdeveloped in a particular
jurisdiction. Persuasive authorities, including secondary sources, are used
more often when primary authorities on point are scarce. If your legal
problem is a case of first impression in a jurisdiction, i.e. there are no
precedents, a suggestion from a law review article or a restatement on how
to resolve the issue may be suitable.

8.3 Researching Secondary Sources
Now let us turn to how legal researchers find and utilize secondary
sources. Keep in mind that different research platforms will contain
different selections of secondary source depending on what publishing
companies it has acquired over the decades or what companies it licenses
content from. E.g. while Westlaw Edge and Lexis+ may both have
treatises on copyright, they will probably not have the same titles.
However, both platforms contain American Jurisprudence 2d, American Law
Reports, and similar sets of law journals and reviews. At the state level, the
secondary sources available on each platform are likely to differ quite

160

significantly. This mean if you subscribe to Lexis+, you may have print
copies of state-specific secondary sources in your office that are only
available electronically on Westlaw Edge. We will start with describing
general principles for finding secondary sources on research platforms
before turning to print.

8.3.1 Finding an Appropriate Secondary Source
Because secondary sources vary widely in type and format, and often have
similar or nondescript titles, finding an appropriate source for the legal issue
at hand can be challenging. Ideally the researcher will want to start with a
resource that identifies secondary sources by topic, type, or both.

8.3.1.1 Browsing by Topic or Jurisdiction on a Full-Service
Legal Information Platform
Some online legal research platforms, such as Bloomberg Law, Westlaw
Edge, or Lexis+, allow the researcher to browse their secondary resources
by topic and perhaps the types of secondary sources on that topic. Such
categorization may be broad or narrow. For example, one platform may
have a single category for Intellectual Property, while another may further
sub-divide that subject area into Copyright, Unfair Competition,
Trademarks, and Patents.
Some platforms will also allow the researcher to browse the secondary
sources available that relate to a specific jurisdiction. On Lexis+, the
Browse Sources screen (accessed via the Sources option located in the
home page Explore box) provides filters to narrow the list of titles by
category or type of resource, jurisdiction, and practice areas and topics.
These filters are indicated by arrows in Figure 8.3.1.1.

161

Figure 8.3.1.1: Filters for Narrowing Sources in Lexis+TM.
Reprinted from LexisNexis with permission. Copyright 2021
LexisNexis. All rights reserved.

Once the researcher has browsed and narrowed down the platform’s
secondary sources to those on a particular topic, he can either use the
finding aids to work with a specific source or use the standard search
techniques to search across the topical sources.
The secondary sources available on the three major legal research
platforms vary widely as they each produce, or own publishers that
produce, different titles. Some major titles (e.g. ALRs, Restatements) are
available on multiple platforms due to licensing arrangements, but specific
treatises and practice materials typically are not. If a researcher has access

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to more than platform, he may need to check more than one to find
appropriate secondary sources on point.

8.3.1.2 Online Catalogs
Online catalogs are another starting point for finding both print and
electronic resources on point. For law students, the law school library will
have an online catalog containing records of its print and electronic
resources. Most importantly, each record will have one or more Library of
Congress subject headings associated with it. The researcher can search
the subject headings directly in a fielded search, or he can search the
catalog by keyword and then browse the subject headings found on
records that appear to be relevant. Records for print resources will provide
him with call numbers for locating the item in the library’s physical
collection; records for electronic resources will contain links directly to the
resource online.
These catalogs can be useful for practitioners as well. A law firm may have
its own catalog the researcher can use as a starting place to identify
resources held by your firm. If an organization does not have its own
catalog, researchers can use collaborative catalogs such as Worldcat to
identify resources. Because libraries from all over the world contribute their
records to Worldcat, it can be an excellent starting point to identify the
world of resources available on a given topic. A researcher may then check
to see if his organization has access to those resources or use Worldcat to
identify the libraries nearby that may provide access to those resources.

Figure 8.3.1.2: Using Worldcat to find a Treatise. Click here
for screencast: http://youtu.be/jPzthzsGyxk

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8.3.1.3 Online Research Guides
Another excellent starting point for finding topical secondary resources are
research guides created by law librarians. Most university law libraries
feature designated webpages to guide researchers to the items in the
library’s collection relating to particular legal subjects. These guides may
identify the most highly-regarded secondary sources on topic, give
instructions for how to use particular resources, and discuss methods for
further research for primary and secondary authorities on point.
There are a few ways to find these online research guides. One strategy
would be to look at the law library websites for the law schools in the
jurisdiction in which you are researching. Those websites will list their
research guides and may well provide jurisdiction-specific information.
Another strategy would be to utilize Google or another web search engine
to search research guides across institutions. By using the site:.edu search
operator on Google, you may restrict your search query to look only at
educational websites. If you include the legal topic you are researching and
the term “legal research,” the search results will primarily be from research
guides developed by law school librarians. For instance, the following
search will return librarian-produced research guides that will lead
researchers to products liability treatises:
site:.edu AND “products liability” AND “legal research”
Of course, if you have access to one, even better than consulting a librarianproduced research guide would be consulting an actual librarian.

8.3.1.4 Asking a Reference Librarian or an Information
Professional
In the current era, so much information is available in just a few clicks
online we sometimes forget that asking a knowledgeable individual for
assistance remains an option. However, as many of the strategies discussed
in this book indicate, the amount of information that is a few clicks away
can be the problem. Asking a reference librarian or another individual,
such as a practicing attorney, knowledgeable about the area in which the
researcher is investigating is sometimes the quickest way to find relevant
materials on point. Reference librarians are the people most familiar with
their collections, whether that be a law school library or the library of a
private organization. They are experts in utilizing many of the systems
described in this text and those specific to their own institutions. Their

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jobs are not only to be familiar with those systems and resources but also
to help others navigate them. If the researcher is unsure of where to begin
his research or has reached a roadblock after pursuing a variety of leads, a
reference librarian, an attorney specializing in that area of law, or other
legal information specialist may be able to guide him to resources to
propel him forward.

8.3.2 Using Secondary Sources in Print
Like codes, secondary sources tend to possess an inherent topical
organization. Thus, expert researchers often find the use of print secondary
sources to be more efficient than electronic versions. We will briefly discuss
the chief methods of use of secondary sources in print.

8.3.2.1 Organization & Finding Aids
Some print secondary sources are organized chronologically, but most are
organized by topic. A legal encyclopedia is organized alphabetically by
general topic; a subject treatise is organized in a logical progression of subtopics; a practice series may be organized by general subject area and then
specific subtopics. Skimming the table of contents can be a quick way of
identifying the major topics covered by the source. A secondary source set
consisting of a large number of volumes may have different levels of tables
of contents much as a statutory code does: a table of contents for the
entire set, a table of contents for a chapter, or even more granular levels.
Article-based secondary sources such as ALRs or legal encyclopedias will
usually have a table of contents at the beginning of an article.
Even with multiple levels of tables of contents, the index is often the
researcher’s best starting point. Indexes alphabetize in detailed lists the
topics and sub-topics covered by the source; they are far more detailed
than even the most specific table of contents. Most secondary sources will
have an index published at the end of the volume or in the last volume of
the set if the source consists of multiple volumes.
Secondary sources may also include tables listing primary authorities along
with references to where the authorities are discussed in the text. This can
be useful if the researcher has a citation to a particular source of law on
which he is interested in finding further analysis. Such tables are usually
also located at the end of a volume or set and may be called a Table of
Cases or Table of Authorities.

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For the secondary sources organized chronologically, the utilization of the
relevant finding aids is critical. For example, the annotations in ALRs are
published in chronological order. There may be more than one article on
divorce and child custody, but they will not be found in close physical
proximity the way they would be in a practice series. The only way to
identify annotations that discuss a particular topic is to use the available
index. Law reviews and journal are also published chronologically; relevant
finding aids are discussed in section 8.3.4.

8.3.2.2 Updating in Print
Topical secondary sources in print may be published either in bound
volumes or in loose-leaf fashion. As discussed with digests and statutory
codes earlier, hardbound volumes are expensive to produce and so
hardbound secondary sources are updated in a similar manner to their
primary authority counterparts. Pocket parts are used to update individual
volumes and will be found in a pocket at the back of a volume;
supplements may be stand-alone soft-bound publications relating to an
individual volume for a particular set or may be an update to the set as a
whole.
Loose-leafs are an alternative publication format that makes integrating
updates into the text somewhat easier. “Loose-leafs” is the term used to
refer to treatises or practice materials that are published in a binder rather
than a bound volume. To update loose-leafs, the publisher of a title sends
pages to replace those that have become dated. The old pages are removed
and the new pages inserted; the table of contents, index, and other finding
aids of the volume may be updated as well to reflect the new content. This
method of updating eliminates a step for the researcher; there is no need
to consult additional parts in the set to update the material, as required
with hardbound sets. The disadvantage to this updating method is that it
can be hard to track down what that secondary source said at a given
moment in time, as a researcher might need to do when tracking down
secondary sources cited in older documents.
Every print title has a slightly different updating schedule and process,
whether in hardbound or loose-leaf format. If a researcher needs
assistance in updating a resource, he should contact a reference librarian
for assistance.

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8.3.3 Using Electronic Secondary Sources
Using electronic secondary sources gives researchers an additional finding
aid: keyword searching. Many of the legal research platforms allow you to
perform a keyword search across the content of the entire platform. As a
practical matter, this is often not the best approach to finding relevant
secondary sources. A general keyword search is likely to bring back
thousands of results from a wide variety of sources. Sorting through the
results of such a general search to determine what type of source the
material came from and if it is on point or merely mentioning the topic of
interest in passing can be time-consuming. Narrowing the search first by
browsing as described in section 8.3.1.1 to find materials on point and
then searching across materials on the topic or searching within a specific
title is usually more efficient. Alternatively, the researcher may be able to
perform a keyword search and then use post-search filters to narrow the
results list before perusing them. Researchers can utilize many of the same
search strategies described in Chapter 7.
While keyword searching is an additional finding aid for accessing
secondary sources, it is not necessarily a superior option to the traditional
finding aids. Often the researcher is using a secondary source to become
familiar with an area of law and to begin building a vocabulary to be used
in primary source research. So, if the researcher does not yet know the
appropriate vocabulary to the topic, keyword searching may not get him
very far.
Though the temptation to search is there, do not overlook a source’s
inherent organizational structure. Browsing the table of contents can be as
effective in the electronic universe as it is in print, particularly if the
researcher is unfamiliar with the relevant terminology used for the topic.
In addition to the table of contents, the legal research platform or publisher
may reproduce other finding aids that are useful in print. Check to see if an
electronic version of the index has been included; again, the index is
extremely useful when one is unfamiliar with the terminology that would
allow you to search. Sometimes such an index may be just a reproduction of
the print, requiring you to search the document via the Find feature in your
browser (control+F or command+F). For some sources, the index may be
searchable on the platform.

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Figure 8.3.3: Using an electronic index. Click here for
screencast: https://youtu.be/So25ZHDAG94.

8.3.4 Law Review & Journal Articles
Scholarly legal journals publish articles on many topics but lack any
internal topical organization. Luckily, researchers may use several
electronic tools to find articles on topics of interest.

8.3.4.1 Indexes
Finding relevant law review and journal articles is a somewhat different task
than finding other secondary sources described in this chapter. Thousands
of law reviews are published every year across hundreds of individual
publications. Checking each title for articles on a topic is impractical.
Fortunately, there are publications that index those thousands upon
thousands of articles by topic. There are two such general indexes in print:
Index to Legal Periodicals and Books and the Current Law Index. Like Shepard’s
Citator, however, these publications are often no longer carried by libraries,
as their online incarnations are superior tools. The electronic versions are
the commercial databases Index to Legal Periodicals & Books (ILP), now
available through EBSCO, and LegalTrac, available through Gale Cengage,
respectively. Most university law libraries subscribe to one or both. These
indexes cover roughly 1980 to the present; to research older articles you
need to use a separate index, the Index to Legal Periodicals Retrospective. There

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are also indexes that cover specific legal practice areas, such as the Index to
Foreign Legal Periodicals (on HeinOnline).
These electronic indexes allow the researcher to search their records by
keyword, author, or subject. Depending on the subscription, these indexes
may provide full-text of some or none of the articles. If the latter, a search
may provide the researcher only with an abstract and a citation; he will need
to find the full-text article by using another resource such as those
described in the next section.

8.3.4.2 Full-text Commercial Platforms
Apart from indexes, there are several legal information platforms that allow
researchers to perform full-text searches across all the journal articles
available on the platform. HeinOnline is the platform with the most
comprehensive coverage of law school reviews and journals, though it
sometimes will not contain the most recent issues. Westlaw Edge and
Lexis+ also have selections of journals on their platforms and are more
likely to contain the most recent issues. Again, the researcher can utilize
many of the search techniques described in Chapter 7 when searching on
these platforms.

Figure 8.3.6: HeinOnline and journal research. Click here
for screencast: https://youtu.be/veZPohr1OWY.

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8.3.4.3 Free Resources
There are also free resources available online for searching scholarly legal
publications. Many universities promote their faculty by participating in
open access repositories and are thus making their faculty scholarship
available for free online. There are several ways to find such materials; this
text will highlight three.
Many law professors post their published articles and works in progress on
SSRN, or the Social Science Research Network. SSRN makes these works
freely available to the public. The site can be searched and browsed down
to specific legal areas of research, but it can be slow and difficult to use.
Digital Commons is a platform used by many universities to host and
provide free public access to their faculty’s scholarship. BePress, the creator
of Digital Commons, has created a publicly available search engine called
the Digital Commons Network to search across all the universities that are
hosting their scholarship using Digital Commons. The Network even
provides a faceted search to drill down by topic, publication year, and more.
Finally, the Google product Google Scholar utilizes the company’s
powerful search algorithms to search only scholarly materials rather than all
content on the web. It searches the scholarly content made available for
free by universities as well as the records of some subscription databases
such as HeinOnline and LexisNexis. Google Scholar pulls in only citations
rather than full-text articles from those subscription databases. An
additional limitation of Google Scholar is that it will also pull in materials
from the Google Books database with no easy way of filtering those
materials out of the results.
With the wide variety of free and paid secondary sources available, a legal
researcher can become overwhelmed with the amount of information
accessible to him while still not quite finding the piece of information he
needs. Knowledge of the types of the secondary sources and where and
how to look for them will help the researcher be more efficient when
beginning his research. And he should never forget the most direct way to
find a resource on point: ask someone with knowledge of the legal topic or
legal resources.

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8.4 Concluding Exercises for Chapter 8
Now try your hand at using secondary sources in print or online with the
following exercises:

8.4.1 Introductory Exercise on Secondary Sources
Our client, Mary Smith, was adopted by the Smith family as an infant in
California and would like to find her birth parents. You are a novice not
only to adoption but to family law generally and need to educate yourself
on this area of law. Please find the following:
1. A California practice guide or treatise on family law.
2. An AmJur 2d article that relates to whether an individual who was
adopted can view her adoption records now that he’s an adult.

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8.4.2 Intermediate Exercise on Secondary Sources
Our client, Lexington Online Inc., has published the names and phone
numbers of all of Verizon’s Lexington subscribers in an online directory
that is freely available on the Internet. Verizon is suing our client for,
among other things, copyright infringement. Verizon says that they
(Verizon) were the original authors of that information and Lexington
Online’s directory is thus violating copyright. Our client says that they
(Lexington Online) have just published facts and those are
noncopyrightable.
Please find a reputable treatise on copyright and use it to perform some
preliminary research on the following questions:
1. Please find a section that discusses authorship and originality.
Which primary authorities are analyzed in this section? According
to this treatise, what makes a work “original” in terms of
authorship?
2. Please find a second section that discusses whether facts can be
protected under copyright. Can facts be protected under
copyright? Why or why not, according the treatise’s analysis?
3. Based on the information you’ve found so far, is it likely that
Verizon will succeed on the copyright infringement claim?
4. What research avenues might you pursue after utilizing this
treatise for preliminary background information?

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8.4.3 Advanced Exercise on Secondary Sources
Our clients, Ina and Mal Washburn, are being sued for vicarious liability in
a traffic accident because they negligently entrusted the use of their car to
their 16 year-old-daughter, Kaylee. Kaylee rear-ended another driver while
driving down Highway 34 near the Washburns’ home in Pierre, South
Dakota, while talking on her iPhone. The plaintiff, Diane Riker, is suing
under the theory that the Washburns knew their daughter to be a reckless
driver, as she has been ticketed for traffic incidents in the past and
consistently talks on the phone while driving. The Washburns insist that
none of Kaylee’s prior traffic incidents involved her smartphone.
Your supervising attorney is unaware of any South Dakota caselaw on
point and would like you to find authorities on point from other
jurisdictions.
1. Find a relevant ALR annotation regarding liability, smartphones,
and car accidents.
2. Does this annotation list any primary authorities from South
Dakota?
3. What section(s) of the annotation seems most applicable to our
situation? What primary authorities does that section(s) refer to?
4. Does this article refer you to any additional secondary sources
that might be worth pursuing? If so, which ones would you start
with and why?

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8.5 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on secondary sources touch upon material covered in this
chapter. They would be a great place to start for students looking for
further practice on the concepts introduced in this chapter!

8.5.1 “Introduction to Secondary Resources”
Summary: an overview of secondary resources used
in legal research. Secondary resources are books and
other material ABOUT legal subjects and issues:
they discuss and explain primary resources such as
cases and statutes and can be useful in assisting our
understanding about specific areas of law. The
student will learn about the different types of
secondary resources and what secondary resources
are most useful for specific types of legal research
tasks.

URL: http://www.cali.org/lesson/721
8.5.2 “Legal Encyclopedias”
Summary: an introduction to understanding and
using the two most common legal encyclopedias,
American Jurisprudence 2d and Corpus Juris
Secundum.
URL: http://www.cali.org/lesson/859

8.5.3 “American Law Reports”
Summary: an introduction to using the American
Law Reports (ALRs).
URL: http://www.cali.org/lesson/582

8.5.4 “Subject Specific Treatises”
Summary: an introduction to identifying and using
subject specific treatises.
URL: http://www.cali.org/lesson/16370

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8.5.5 “Using the Restatements of the Law”
Summary: an overview of what the Restatements of
the Law are and why one would use them for legal
research, their major features, how to search them,
and how to use them to find cases.

URL: http://www.cali.org/lesson/769

8.5.6 “Researching Uniform and Model Laws”
Summary: an overview of how uniform laws are
created and shows researchers how to locate
uniform laws, drafters' commentary, state versions of
uniform laws, and cases interpreting them.
URL: http://www.cali.org/lesson/762

8.5.7 “Researching and Working with Procedural Forms”
Summary: an overview of the use of procedural
forms designed to assist in litigation practice.
URL: http://www.cali.org/lesson/8994

8.5.8 “Researching and Working with Transactional Forms”
Summary: an introduction to locating and utilizing
transactional forms.
URL: http://www.cali.org/lesson/8991

8.5.9 “Periodicals and Periodical Indexes”
Summary: an overview of two of the most
important external finding tools--periodicals indexes
and library catalogs--that you can use to help find
secondary sources relevant to your research.
URL: http://www.cali.org/lesson/766

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8.5.10 “Secondary Sources: Practice Centers – The Evolution
from Print Looseleaf to Practice Center”
Summary: teaches students about practice centers,
and describes their origins as print legal loose-leaf
services.
URL: https://www.cali.org/lesson/16713

8.5.11 “Current Awareness & Alerting Services”
Summary: introduces students to commonly-used
current awareness tools and alerting services.
URL: https://www.cali.org/lesson/8617

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Chapter 9

The Research Process
A lawyer shall provide competent representation to a
client. Competent representation requires the legal
knowledge, skill, thoroughness and preparation
reasonably necessary for the representation. – The
American Bar Association, MODEL RULES OF
PROFESSIONAL CONDUCT R. 1.1
In order to conduct legal research effectively, a
lawyer should have a working knowledge of . . .the
process of devising and implementing a coherent
and effective research design. – MacCrate Report

9.1 Learning Objectives for Chapter 9
In working through this chapter, students should strive to be able to:


Describe the steps of the research process.



Assess which research techniques are best utilized at each step of
the process.



Understand the recursive nature of the research process.



Describe techniques a researcher can employ when faced with too
much or too little information.

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9.2 Essential Steps of the Research Process
So far in this text we have discussed primary and secondary sources of
American law and techniques for locating them in print and online
environments. Now we will turn our attention to how to integrate those
discrete techniques into a strategic process. The steps for researching most
legal problems will follow a logical progression:
1. Familiarize yourself with the specifics of the legal problem.
2. Define the scope of the research.
3. Construct search queries.
4. Gather primary authorities.
5. Analyze and update primary authorities.
Let us look at each step in turn and explore the most efficient techniques,
or combination thereof, that the researcher can use at each step of the
process. At the end of the chapter, we will address some common
concerns that researchers have once they have begun the research process.

9.2.1 Familiarize Yourself with the Legal Problem
Legal research does not exist in a vacuum. Lawyers engage in research to
answer a question of law about a specific problem. The researcher must
know intimately the facts of that underlying problem, as this is essential to
being able to judge what legal authorities will apply to it.
The researcher may begin to ask some questions of the legal problem at
this stage of the research. Who are the people or entities involved in the
problem? What is their relationship? Are there any obviously missing
pieces of information from the scenario forming the basis of the problem?
The researcher will likely return to the facts of the client’s legal problem
repeatedly over the course of the research process in an effort to
determine which facts are critical to answer the problem, but at this initial
stage the researcher must do his best to internalize the basic story structure
to facilitate revisiting those facts at a later stage.
The organized researcher should also ask some additional questions to
frame the process of the research at this stage. Whether the legal problem
comes directly from a client, a supervising attorney, or a professor, the
researcher should clearly understand what work product is expected at the
end of the research process and when that work product must be

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completed. This will aid the researcher both in his final selection of
primary authorities and help him establish a timeline for which to progress
through the various stages of research.
Last but not least, the researcher should always note if any primary or
secondary authorities have been recommended as a place to begin his
research. A supervising attorney or professor may well refer to primary or
secondary authorities related to the problem; the researcher can use both
to find additional primary authorities on point as described later in this
chapter. Such recommendations may save the researcher much time in the
initial stages of gathering primary authorities.

9.2.2 Define the Scope of the Research
Once the researcher has familiarized himself with the facts of the legal
problem and has an idea of the timeline to which he must adhere, he then
must define the scope of the research. An easy mistake to make early in
the research process is defining the problem too broadly and simply
researching any legal topic or terminology that comes to mind; the result is
typically that the researcher is overwhelmed by the number of primary and
secondary authorities identified and has no clear idea if the legal problem
has actually been addressed. In order to find relevant authorities quickly
and efficiently, the researcher needs to form a clear picture of what he
needs to find from the onset of his research. To narrow the scope of the
problem, the researcher should consider the following:
 Choice of Law: Which jurisdiction’s law applies to the problem?
 Venue: Which court would any legal action relating to the
problem be (or has already been) filed in?
 Area of Law: Do the facts of the problem suggest a particular
area of law (e.g. criminal law, contracts, etc.) on which the
researcher will want to focus his attention?
 Issue statement: Can the researcher identify a clear question that
the research must seek to answer? Such an issue statement need
not be phrased in specific legal terminology such as one would
find in a brief or memorandum at this point, but the formulation
of the question will still serve as a limiting factor on the research.

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 Hierarchy of Authority: At this point, the researcher may also
want to sketch out what sorts of authorities will be mandatory
authority for the problem.
Sometimes this information will be readily apparent from the legal
problem; other times some initial research may be involved.

9.2.2.1 Techniques for Defining the Scope of Research
Secondary sources can be key at this stage of the research process. A
treatise may inform the researcher whether the issue is one of state or
federal law; a practice series may specify related areas of law or aid in
formulating the issue statement. The appropriate secondary source to use
at this stage will vary with the researcher’s prior knowledge of the legal
topic to be researched. Thus, the researcher may need to use a series of
secondary sources for guidance, starting with a more general resource like
a legal encyclopedia and moving on to a source that discusses the area in
more detail. Review Chapter 8 for an overview of the various types of
secondary sources and methods useful for locating them.
If in the early stages of the process the researcher has been informed
about relevant primary authorities, he can use those authorities to find
relevant secondary authorities. Citators are useful tools for this purpose.
As the reader may recall from Chapter 6, citators can be used to find a
listing of all the primary and secondary authorities available on a particular
research platform that cite back to the original authority under
investigation. This is a quick way to see a list of treatises, practice
materials, and law review articles on the platform that may relate back to
the topic. The researcher can narrow these results by using searching and
filtering functions provided by the citator. Statutory annotations may also
lead a researcher to useful primary and secondary materials.

9.2.3 Construct Search Queries
Once the researcher has limited the scope of his research to a specific area
of law from a specific jurisdiction, he will still need to research that
jurisdiction's area of law to find specific authorities applicable to the
problem at hand. To do this, the lawyer will need to generate specific
terms for which to look in primary or secondary sources. Constructing this
keyword list is often the first major hurdle in the research process, but it is
a useful tool for proceeding in both print and electronic research. Search

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terms may be general at this stage, e.g. the name of the relevant jurisdiction
or a broad area of law, or they may be more specific, e.g. facts from the
initial problem or legal terms of art already provided.

9.2.3.1 Techniques for Constructing Search Queries
The researcher may need to think critically about the terminology
employed as a means of either broadening or narrowing his research. For
instance, if the researcher is investigating a defense against a copyright
infringement claim, the researcher may identify “copyright” as the relevant
area of law to investigate. However, depending on how a given primary or
secondary source is organized, the researcher may need to broaden or
narrow that terminology. Copyright is a subset of an area of law more
broadly termed Intellectual Property, and a legal research platform may
organize their secondary sources under the broader category rather than
the narrower one. On the other hand, a common defense to copyright
infringement claims is the defense of fair use, and it has a substantial
amount of secondary literature in its own right. So, the researcher may
want to narrow that initial term of “copyright” to the more specific term
of “fair use.” In print or electronic format, an index may help the
researcher narrow these terms by having specific sub-headings under a
more general topic heading. As a general rule, if the search terms the
researcher is utilizing are yielding too many results, try narrowing the
search terms; if yielding too few results, try broadening.
One way to broaden a search is to incorporate synonyms of terms on the
initial list. If a critical fact of the legal problem involves a dorm room,
perhaps opinions discussing buildings with similar characteristics be useful
for analogies, e.g. an apartment or a duplex. If a case involves a motorcycle,
perhaps that vehicle shares materially relevant features with other types of
automobiles. Such synonyms can be useful not only for reminding the
researcher of options he should be aware of while using topical indexes
but also in formulating advanced search queries discussed in Chapter 7.
Recall from Chapter 8 that one of the most valuable uses of a secondary
source is introducing the reader to the appropriate vocabulary of the legal
topic it covers. The commentary and analysis or even the organization and
finding aids of a secondary source may assist the researcher in determining
the relevant terminology. Such sources may assist in generating broader or
narrow terms by looking at the index or table of contents, and the cases

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discussed in the secondary source may suggest relevant synonyms or fact
patterns worth adding to the search term list.
The researcher may also pose questions to the facts of the initial legal
problem to help construct the keyword list: What is the relationship
between the parties of the legal matter? Are there things or places that are
in dispute? Have any legal terms of art been discussed? Have legal claims
or defenses been identified? The answers to these questions may well have
been identified in the first two stages of the research process and can now
be incorporated into a list of search terms.

9.2.4 Gather Primary Authorities
Now the researcher must employ the search terms and queries generated
to gather primary authorities. The researcher must take care to find not
only the most relevant primary authorities but also those that could be
relevant. It is a constant balancing act to make sure the search queries are
not too broad or too narrow as discussed in the prior section; the
researcher will improve his balance with experience. Generally, as
indicated throughout this text, it is in the researcher’s best interest to start
narrow and then broaden so as not to be overwhelmed by the number of
authorities identified. At the same time, the researcher must not develop
tunnel vision and limit his research too far. A common mistake to new
legal researchers is to focus too narrowly on the specific facts of the case.
However, there may not be an opinion with facts extremely similar to
those of the researcher’s legal problem. Thus, he should not discount
materials on the applicable legal principle simply because the facts do not
align directly with the legal problem in front of him.
One way of narrowing the initial research pass into primary authorities is
to focus on gathering those authorities that are binding on the legal
problem. If the researcher is working on a legal problem governed by
federal law that will be filed in the Southern District Court of Texas, he
should not start by researching cases in the Sixth Circuit Court of Appeals
or investigating Oregon state court opinions. Persuasive primary
authorities should be pursued only after the researcher has determined that
the binding authorities do not sufficiently address the legal problem.
However, the astute researcher will note persuasive authorities that seem
particularly relevant if stumbled upon during the search for mandatory
authorities; such a note would save the researcher time in the event that
persuasive authority proves to be a necessary avenue of inquiry.

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9.2.4.1 Techniques for Gathering Primary Authorities
At this step, the researcher will employ a combination of many of the
research techniques described in previous chapters to thoroughly
investigate primary authorities for relevant materials. Below is a suggested
progression of research techniques. Remember that not all legal problems
are governed by all sources of law. Secondary sources will often alert the
reader as to which sources of law govern in an area of law, but a thorough
researcher will perform his own investigations on the topic to verify.
1. Secondary sources: Utilize secondary sources to identify the key
primary authorities on a legal topic. See Chapter 8 for a discussion
of secondary sources and techniques for locating them.
2. Constitutional provisions, statutes, and regulations:
Investigate relevant constitutional provisions, statutes, and
regulations by using the search terms previously identified to
search, browse, and filter through electronic research platforms or
browse the table of contents or indexes in print as described in
Chapter 3. Do not forget that finding aids such as indexes and
tables of contents may serve the researcher as well in the online
environment as in the print.
a.

If the researcher identifies relevant constitutional
provisions, statutes, or regulations, he should investigate
the annotations for references to relevant primary and
secondary authorities.

b. Remember that researchers can use citators to trace a
legal issue forward in time; a citator will identify other
primary and secondary authorities citing back to the
original constitutional provision, statute, or regulation
under discussion. Review Chapter 6 for a more thorough
discussion of the uses of citators.
3. Judicial Opinions: Investigate judicial opinions by using the
search terms previously identified to search, browse, and filter
through electronic platforms or to browse the relevant digest as
described in Chapter 4. Do not forget to utilize any topical
organization system available either in print or electronic format.
Once the researcher has identified some relevant cases, he can
employ them to find more authorities on point:

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a.

Look at the headnotes of the opinion for relevant topics
and/or key numbers. Use them to find further primary
authorities on point.

b. Use a citator to trace the issue forward in time and find
more recent primary and secondary authorities on point.
c.

Investigate the authorities to which the opinion itself cites
and on which it bases its analysis. The citator may include
a Table of Authorities for the case which will list all the
primary authorities mentioned in the opinion.

9.2.5 Analyze and Update Primary Authorities
This is perhaps the most time-consuming and challenging piece of the
research process. After gathering the relevant primary authorities, a
researcher should read each authority carefully to understand the legal
issues being discussed and the relevant facts. Such analysis must include
updating each authority through the use of a citator. The researcher must
then analyze each authority on its own and how it relates to the other
authorities to synthesize rules relevant to the problem at hand. This step is
where research and writing become inseparable; the researcher’s analysis
of the primary authorities and rule-formation will create a framework for
the final written product.

9.2.5.1 Techniques for Analyzing and Updating Primary
Authorities
Topical secondary sources providing in-depth treatment of a legal subject,
such as treatises or law review articles, may provide analysis that will aid
the researcher in her understanding of the primary authorities. Refer to
Chapter 8 for a discussion of which secondary sources tend to offer such
treatments.
Citators will alert the researcher to any negative treatment of a primary
authority as explained in Chapter 6. An authority will be marked
accordingly if it has received negative or cautionary treatment by other
authorities. For opinions, citators will typically also indicate the level of
analysis the opinion received in the citing opinions; the analysis of the case
by other courts may also inform the researcher’s analysis. The citator may
indicate which legal issue in the original opinion was treated negatively by
the citing opinions. The researcher can use this feature to determine which

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citing opinions must be analyzed to place the original opinion in the
appropriate overarching context of the legal issue.

9.2.6 Research and Writing as a Recursive Process
Though the research steps above progress in a logical fashion, the process
is not always as linear as the steps may indicate. Research and writing is
often a recursive process; the more information the researcher gathers and
analyzes, the more he may need to revisit earlier assumptions or fill in gaps
that were not apparent in the first research pass. Any of the steps of the
research process may be utilized at various points on the research timeline.
For instance:


A researcher may find after consulting some secondary
authorities that he has not correctly identified the relevant
areas of law or which jurisdiction’s law should be applied,
thus prompting a re-evaluation of the scope of the problem
and the search terms employed.



Issue statements may be refined as more information is
gathered, which may lead to more tailored search queries that
yield a different line of primary authorities.



A researcher may begin to write up his analysis of the
gathered materials and find that he is making statements that
his authorities do not explicitly support. He must then revisit
primary authorities overlooked at the beginning stages of
research.



Facts that did not appear relevant in the initial stages of
research may be highlighted in opinions as crucial pieces of
the puzzle; the researcher will then need to add them to the
list of search terms for further investigation.

All of these scenarios and more are possible during the research and
writing process; revisiting earlier stages of the research process is a normal
and natural occurrence.

9.2.6.1 Recurring Research Techniques
Much as the steps of the research process may be revisited over the course
of the investigation, the finding aids and electronic research techniques are

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often utilized repeatedly at different stages of the research process. A
researcher will likely use the features of a citator on every primary
authority found. He will note topics and key numbers mentioned in
secondary and primary authorities that may be found at different stages of
the process. The index of a useful treatise may be referred to frequently as
the researcher discovers new legal terminology and concepts from the
treatise itself or in the primary authorities. These techniques are tools to be
utilized during the myriad iterations of the research process rather than
static, individual actions.

9.3 Common Research Concerns
Even with a logical research process and recommendations regarding
techniques to use to perform the research, the researcher may still find
himself asking questions about when to stop his research or what to do if
he has found too much or too little information. The final part of this
chapter recommends criteria and actions to consider in these scenarios.

9.3.1 When to Stop Researching
“How do I know when to stop?” is a very common question among
novice researchers. Unfortunately, there is no singular sign that will
indicate to the researcher that he has completed his task; the answer will
vary not only by problem but by the time the researcher has in which to
create the end work product. Generally, if the researcher has found
authorities that answer the initial issue statement and subsequent issues
that have come to his attention during research, if he has pursued the
relevant avenues of research discussed in this text, and if he is seeing the
same authorities referred to over and over again, he is in a good position
to stop.

9.3.2 Not Finding Enough Relevant Authorities
If a researcher cannot find enough, or any, relevant authorities, he may
need to revisit some of the earliest steps of the research process.


Refer back to the initial information received about the legal
problem and make sure you understand the information given to
you. Are you overlooking any critical information or was any
critical information missing from the information you received?

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

Return to the secondary sources you identified initially or find
different secondary sources on point. Read the materials carefully
to be sure you understand the material presented.



Rethink your search terms. You may need to broaden the
terminology or concepts for which you are searching.



If you have exhaustively searched the mandatory primary
authorities, you may want to try searching persuasive primary
authorities, focusing first on highly persuasive authorities.



Consult with a reference librarian or another legal information
specialist as described in section 8.3.1.4. Be prepared to describe
in detail both the legal problem and the steps you have taken to
research the problem. This individual may be able to suggest
sources or research techniques you have overlooked or help you
modify the techniques you have been using.

9.3.3 Finding Too Many Relevant Authorities
If the researcher is overwhelmed with authorities, the techniques to be
employed are similar to those utilized when one is underwhelmed as
described section 9.3.2.


Refer back to the initial information received about the legal
problem and make sure you understand the information given to
you. Are you overlooking any critical information or was any
critical information missing from the information you received?



Return to the secondary sources you identified initially or find
different secondary sources on point. Read the materials carefully
to be sure you understand the material presented.



Rethink your search terms. You may need to narrow the
terminology or concepts for which you are searching. If you are
using electronic resources, be careful about filtering information
appropriately. You may also want to perform searches within the
initial results lists.



If you had broadened your search to primary persuasive
authorities, refocus on primary mandatory authorities or only the
most highly persuasive authorities.

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

Consult with a reference librarian or another legal information
specialist as described in section 8.3.1.4. Be prepared to describe
in detail both the legal problem and the steps you have taken to
research the problem. This individual may be able to suggest
sources or research techniques you have overlooked or help you
modify the techniques you have been using.

9.4 Concluding Remarks
It is an oft-quoted maxim that research is an art, not a science. Much as
with painting, the novice must work diligently at developing his basic skills
by practicing with the tools of his trade; repetition and exposure to new
materials accretes those skills into the knowledge necessary to create
detailed works of art. This text has outlined the basic tools available to the
legal researcher and described skills he should strive to develop; time and
practice will evolve the researcher’s skills into experience and allow him to
competently address the legal problems that will come his way.

9.5 Recommended CALI Lessons for Further Practice
CALI hosts an impressive number of interactive lessons on its website. The
following lessons on research methodology touch upon material covered in
this chapter. They would be a great place to start for students looking for
further practice on the concepts introduced in this chapter!

9.5.1 “Legal Research Methodology”
Summary: a series of tutorials lead students through
situations and problems commonly given to new
attorneys and student interns. Each section contains
questions that test the students' responses to
different situations and their understanding of the
reasons behind legal research. The exercises use
realistic research problems and demand that students
begin to think logically and practically about legal
research.
URL: http://www.cali.org/lesson/567

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9.5.2 “Hold 'em, Fold 'em, Walk Away or Run: When to Stop
the Search”
Summary: Knowing when to stop is important for
efficient and cost effective legal research. This
exercise will cover several factors which you may
wish to consider.

URL: http://www.cali.org/lesson/763

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