Legal Research: How to Find & Understand the Law

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20th Edition

Legal Research

How to Find & Understand the Law

Attorney Cara O’Neill and Jessica Gillespie, M.S.L.I.S.

TWENTIETH EDITION

AUGUST 2024

Editor

CARA O’NEILL

Cover Design

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Book Design

SUSAN PUTNEY

Proofreading

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Index

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Printing

SHERIDAN

ISSN: 1539-4115 (print)

ISSN: 2377-7214 (online)

ISBN: 978-1-4133-3192-9 (pbk)

ISBN: 978-1-4133-3193-6 (ebook)

This book covers only United States law, unless it specifically states otherwise.

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Acknowledgments

This book wouldn’t be possible without the original author, Stephen R. Elias. Until his death in late 2011, Stephen R. Elias was a practicing attorney, president of the National Bankruptcy Law Project, and the author or coauthor of many Nolo books, including Bankruptcy for Small Business Owners, Special Needs Trusts: Protect Your Child’s Financial Future, How to File for Chapter 7 Bankruptcy, and Chapter 13 Bankruptcy. Steve was also one of the original authors of Nolo’s bestselling WillMaker software. He held a law degree from Hastings College of the Law and practiced in California, New York, and Vermont before joining Nolo in 1980.

Over the years, other wonderful people have also contributed to this book in different ways, particularly Susan Levinkind, an original coauthor, Alayna Schroeder, a subsequent author, and many of the researchers and editors of Nolo.

About the Authors

Cara O’Neill is a legal editor and writer at Nolo specializing in bankruptcy and small claims litigation. She has practiced law for more than 25 years in civil and criminal litigation, bankruptcy, and administrative law. Before joining Nolo, she served as an administrative law judge, took dozens of cases to jury verdict, appeared before the California appellate court, and taught undergraduate and graduate law courses. She earned her law degree in 1994 from the University of the Pacific, McGeorge School of Law, where she served as a law journal editor and graduated as a member of the Order of the Barristers—an honor society recognizing excellence in courtroom advocacy. Cara authors several Nolo book titles, including How to File for Chapter 7 Bankruptcy, Chapter 13 Bankruptcy, The New Bankruptcy, and Everybody’s Guide to Small Claims Court. She coauthors The Foreclosure Survival Guide, Solve Your Money Troubles, and Credit Repair, and edits several more.

Jessica Gillespie is a legal editor and Nolo’s Research Director. Jessica received a B.A. from the University of Virginia, an M.S. in Library and Information Science from Long Island University, an M.A. in U.S. History from North Carolina State University, and did doctoral work at the University of Tennessee. In addition to managing the Nolo Editorial team’s research needs, she writes and edits articles on estate planning and personal injury and is a cocreator of many of Nolo’s online legal forms, including those used in online LLC and corporation formation services. When Jessica began her legal research career in the library of a large law firm, she was given a copy of Nolo’s Legal Research to get her bearings. With book in tow, she gained valuable hands-on experience in tracking down what we usually just call the law. Now, more than 20 years later, she finds herself beyond honored to be coauthoring the very book that kickstarted her career, and, despite all that’s changed in the world of legal research since the book was first published, she’s confident that it still sets the standard for learning how to find and understand the law.

Table of Contents

Your Legal Research Companion

1 Understanding the Basics of the Law

What Is the Law?

Sources of Law

State vs. Federal Law

The Court System

2 Finding Legal Resources

Locating Legal Information

Primary Sources and Secondary Sources

Looking for Legal Resources Online

Legal Research Websites

3 Identifying Your Legal Issue

How to Approach Your Research

Step 1: Determine Your Legal Research Question

Step 2: Is the Issue Civil or Criminal?

Step 3: Determine the Area of Law You’re Researching

Step 4: What Resources Will Help You Find What You Need?

4 Finding and Using Secondary Sources

Online Resources

Self-Help Legal Books

Legal Encyclopedias

Form Books

Practice Manuals

Continuing Legal Education Publications

Law Reviews and Other Legal Periodicals

Specialized Loose-Leaf Materials

Treatises and Monographs

Restatements of the Law

5 Finding and Using Constitutions, Statutes, Regulations, and Ordinances

Finding and Using Constitutions

Finding Federal Statutes

Finding State Statutes

Understanding and Using Federal and State Statutes

Finding and Using Regulations

Finding and Using Procedural Statutes and Rules

Finding and Using Local Laws or Ordinances

6 Finding Cases

Using Citations to Find Cases

Finding Cases Online

Finding Cases in the Law Library

The Next Step

7 Using Case Law

What Is a Case?

How Cases Are Published

How Cases Affect Later Disputes

8 Validating Your Research

Making Sure It’s Good Law

How to Shepardize a Case

Validating Statutes

Shepardizing for Research

9 Organizing and Putting Your Legal Research to Use

Organizing Your Research

How to Write a Legal Memorandum

Finding and Working With a Lawyer

Glossary

Appendix

Topic-Specific Research Sites

Index

INTRODUCTION

I

Your Legal Research Companion

If you’re new to legal research, you might be apprehensive about finding, understanding, and applying the law. Whether you’re in a law library or at a computer, it’s common to feel like you’ll never find what you need. After all, there are many different research resources and places to look.

Fortunately, legal research isn’t as difficult as it might seem, and with the help of this book, you’ll soon be finding the law that applies to your case. Not only will we help you navigate the legal research process, but we will also help you understand what you’re looking at once you find it. For instance, here are some of the things this book covers:

where to find legal resources

how to phrase your legal issue or problem like a lawyer

where to find legal resources like statutes, regulations, and cases

when a secondary source can help with complicated legal principles, and

how to ensure you’re using current law.

Also, you can feel comfortable using this book to improve your legal research skills or when representing yourself in court. The techniques we explain are the same as those used by lawyers, law students, paralegals, and other legal professionals. When it comes to finding what you need, if it’s out there, we’ll help you locate it.

CHAPTER

1

Understanding the Basics of the Law

What Is the Law?

Sources of Law

Constitutions

Statutes: Legislative-Made Law

Common Law: Judicial Interpretation

Administrative Regulations

Local Ordinances

State vs. Federal Law

Issues Covered by State Law

Issues Covered by Federal Law

Issues Covered by Both State and Federal Law

The Court System

How Courts Are Structured

Federal Courts

State Courts

Exceptions to the Overall Court Structure

Trying to research the law can be a daunting task. But it doesn’t have to be complicated. Anyone can develop solid legal research skills and learn to find current, relevant law. Because a legal foundation starts with understanding how the law works, we cover the following topics in this initial chapter:

what the law is

the differences between case law, statutory law, and administrative law

when state and federal law apply, and

the structure of the courts.

Understanding these basics will help you quickly and efficiently find the answers needed to resolve private disputes, work with legal professionals, advance a career, and more.

What Is the Law?

Most of us don’t spend much time thinking about what the law means. No one needs to see a written law to know that stealing or destroying someone else’s property is a crime. And we know we can be held responsible by our legal system. So, the law doesn’t play much of a part in our daily lives until we get a traffic ticket, are denied a government service, buy or sell a house, or dispute a bill. However, when a legal issue arises, knowing how to maneuver within the legal system is essential, and understanding where particular types of law come from can help pinpoint the law that applies to a specific problem. So that’s where we’ll start.

Sources of Law

You won’t find the law in a single set of books. Instead, many different types of laws exist, with most published in their own multivolume sets. Here are the general categories you can expect to encounter:

The U.S. Constitution. This high-level, comparatively short document explains how our legal system is structured. It outlines the responsibilities of the three branches of government and the federal government’s power. The Constitution explicitly gives the remaining power—any power not retained by the federal government—to the states. The amendments guarantee citizens’ fundamental rights that the government can’t take, such as the right to speak freely against the government, practice religion, and own guns.

Federal statutes. As explained below, Congress frequently passes new laws. These written laws or statutes are assigned a number and kept in code books in numerical order.

Federal cases. Federal courts decide court lawsuits and publish the decisions (usually appellate decisions) when the decision clarifies how to interpret previous court rulings or federal statutes. How to apply case law or statutes to a factual situation isn’t always clear or even anticipated. Comparing the facts in a published case to your situation or reading how a judge applied a statute helps predict how a judge might rule.

Federal administrative regulations. The legislature can’t write all the statutes needed to regulate society—there simply isn’t enough time. Instead, the legislature shifts specific law-making authority to government agencies through an enabling statute. For instance, the U.S. Congress created the Equal Employment Opportunity Commission, the Internal Revenue Service, and the Environmental Protection Agency. The agencies are responsible for issuing regulations using the authority granted by the enabling statute. Regulations are part of federal administrative law.

CAUTION

Sovereign Native American tribes have their own courts and laws. These essentially function outside the system we describe here and are beyond the scope of this book.

State constitutions. Like the federal government, each state has a constitution that describes the state’s legal structure.

State statutes. Like Congress, the state legislature passes statutes. The state’s statutory law is in code books or published online on the state legislature’s website. While federal laws apply everywhere, these laws apply only within the state.

State cases. State courts decide cases about state law. The written opinions appear in case law reporters according to date.

State administrative regulations. State legislatures create agencies to regulate particular areas of law. The agencies write and enforce regulations (the state’s administrative law).

Local ordinances. Local governments pass ordinances that become municipal codes, police codes, building codes, planning codes, health codes, and so forth.

Your legal research will probably touch on only two or three of these legal sources in most cases. For example, suppose you want to sue your mechanic because your brakes failed after being worked on, and you were injured. In that case, you’d turn to state statutory and case law. You wouldn’t need to look at the federal constitution or local ordinances. We’ll explain more about these sources of law below.

TIP

You can skip the rest of the chapter and return later. Most people learn about an area of law by reading a secondary source, a fancy term for a book that explains the law—not from cases and statutes. At least, not initially. The following chapters explain why secondary sources are more accessible and how to find them. If you understand state and federal constitutional law, statutory law, case law, and administrative law well enough, you can probably skim or skip the rest of this chapter unless you’d like to dive deeper into how each type of law comes about.

Constitutions

Both state constitutions and the federal constitution are the founding documents that form the basis of authority for all other forms of law—that is, they tell each government branch what power they have to create or veto new laws. As explained below, a constitution gives legislatures and judges the power to make law, but that law can’t conflict with the mandates of the constitution.

Statutes: Legislative-Made Law

Most of us think of the law as the acts passed by our federal and state legislatures. We might understand, for example, that Congress has decided the income tax rate or that our state legislators have determined that it’s illegal to discriminate against someone in the workplace based on sexual orientation.

A statute comes into being when the legislature passes a bill. The text is written down, given an identification number, and arranged in numerical order in a code book (or codified). Changes are also incorporated into the code books when the legislature amends existing statutes.

Both federal and state statutes are usually organized by subject matter. For example, the California Family Code includes divorce, legal separation, and child custody laws, and most state criminal laws will be in a Criminal or Penal Code. Business, Fish and Game, Education, Civil Procedure, Corporations, and Tax are other standard statutory code titles. This organizational system makes finding relevant materials much easier when it’s time for legal research. We’ll discuss how to use and understand statutes in greater detail in Chapter 5.

Common Law: Judicial Interpretation

While statutes are essential to our law, we don’t always agree on what statutes or constitutions mean. We need courts to provide guidance and to explain how to apply them in particular situations. As a result, interpreting these laws is primarily a responsibility of our court system.

The law created in the judicial system is called case law, and it’s an essential part in our legal system. You’ll know case law when you see it because the opinion will be lengthy and have a title at the top, such as "Smith v. Smith. The case opinion will include the lawsuit’s facts and the applicable statutory or case law. The opinion will also have the court’s decision and reasoning. Judicial opinions form what is known as common law or case law." It’s a judge’s view of what the statute or previous opinion means when applied to the case’s particular facts.

For example, suppose a child custody statute says that a judge should consider the best interests of the child when deciding custody. However, the statute doesn’t say whether living primarily with the mother or sharing equal time with both parents is in the child’s best interests. A judge will look at case law to see how previous judges handled factual situations similar to the one before the judge. For instance, suppose case law says that parents should share time equally as long as neither parent can prove neglect. If there is no evidence of neglect, the judge will award 50/50 custody. The case law helped the judge determine what best interests meant before applying it to the facts involved in the current lawsuit.

Common law is developed over time as opinions build on one another (most jurisdictions require judges to follow the logic of certain earlier opinions—more below). So you won’t find common law written down in one place, like a statute that sets forth a clear rule.

Also, not all opinions are published. When an opinion provides new legal guidance or a factual situation that hasn’t been addressed before, the case is selected for publication in books called reports or reporters. The reporters contain all the case opinions that must be followed as law. Federal and state courts have separate sets of reporters that organize opinions, or cases, by date.

Because common law is part of the law, judges must consider what judges before them have said on the same issue. In other words, court opinions serve as authority or precedent that other judges must consider when deciding similar cases. The reasoning in previous cases that a judge must follow is called binding authority.

But courts are arranged in a hierarchical system. Every judge isn’t required to consider every other judge’s opinion each time a similar issue comes up—just the opinions of the courts above them in the same jurisdiction. As a result, you’ll need to know which judicial opinions to review when researching a legal issue. We’ll explain how to do that in Chapter 7.

What If a Judge Was Wrong?

The system of judicial precedent works well when judges correctly interpret the law. But sometimes they don’t. When that happens at the trial court stage, your recourse will be to file an appeal.

But what happens if you believe the law itself is wrong when arguing your case before the trial judge? For typical legal issues (anything other than a human rights violation, an issue likely beyond this book’s scope), you won’t get far arguing the law is wrong. Don’t expect a trial judge to deviate from the law. The argument will fall flat because the judge will expect you to prove the elements of the law with evidence, not ask the judge to disregard the law itself.

Judges respect a legal principle called stare decisis—Latin for let the decision stand. Unless there is an excellent reason to depart from current law (and you shouldn’t assume your issue is the one without consulting a lawyer), judges don’t. Most lawyers will tell you they’ve never had a trial judge disregard current law. Instead, trial judges expect litigants seeking legal change to appeal the case to a higher court with the authority to do so.

Also, judges don’t want a higher court to find that the judge misapplied the law and be overturned on appeal. To prevent this, judges will straightforwardly decide cases within the law. Rarely will a judge’s ruling require the judge to justify a significant departure from precedent (a previous decision).

The takeaway is that you shouldn’t expect a judge to diverge from the law. Instead, use evidence to prove you’re legally entitled to your desired result. If the judge misapplies the law, you can use the appellate process to overturn the result.

However, if Congress disagrees with a court’s decision, it can usually pass a new law that contradicts it. (This isn’t true if the case interprets the Constitution because Congress’s power to legislate can’t conflict with the Constitution.) For example, Lily Ledbetter sued her employer, claiming that it had discriminated against her by paying her less than her male peers. But the Supreme Court held that she had filed her suit too late and upheld the trial court, which had thrown the case out. (Ledbetter v. Goodyear Tire & Rubber, 510 U.S. 618 (2007).) The Court decided Ledbetter hadn’t met the legal requirement to bring her claim within 180 days because the decision to pay Ledbetter less had happened many years before. Ledbetter argued that each time she received a paycheck for less than her peers, it was a continuing violation of the law, so the 180 days started to run from when she received her last paycheck. Even though the Supreme Court disagreed with Ledbetter, Congress passed the Lily Ledbetter Fair Pay Act shortly thereafter, taking Ledbetter’s side. Now, employees in Ledbetter’s shoes have the benefit of the act. Without it, courts would be required to treat those employees the same way the Supreme Court treated Ledbetter.

Administrative Regulations

The federal government and many state governments have administrative agencies in specific law areas. Congress and state lawmakers create these agencies and give them the authority to adopt regulations to carry out certain laws with an enabling statute. For example, the U.S. Department of Labor oversees the wages and working conditions of the nation’s workers.

The regulations written by an agency typically provide the process required for oversight. For example, every state’s transportation or criminal code prohibits people from driving cars with a suspended license. However, the state Department of Public Safety or the Department of Motor Vehicles oversees the process for reinstating suspended privileges and drafts regulations explaining the process, as needed.

Local Ordinances

Some areas of the law aren’t covered by state or federal law, or at least aren’t covered completely. In that case, local bodies like city councils or county boards have the authority to regulate. You might have encountered local ordinances if you have needed a building permit or questioned zoning laws. Often, these ordinances are enforced and regulated by the bodies that create them. Also, there are options to resolve disputes that don’t involve the court system. For example, appealing a decision by the local planning commission might require a hearing before the commission rather than going to court.

State vs. Federal Law

As discussed at the beginning of the chapter, the law comes from multiple sources, with state and federal law, local law, and administrative agencies creating and enforcing law in different legal areas. Because the primary sources of law you’ll likely be working with are state and federal laws, understanding the differences is essential. We’ll keep the explanation simple for this book’s purposes.

The U.S. Constitution is the starting point of all law in the United States. It carves out areas the federal government controls exclusively without state intervention—for example, maritime law—and what the federal government can control if it decides. Finally, the Constitution gives states the power to legislate laws in any area not explicitly retained by the federal government.

The general principle is that certain areas—federal taxes, immigration, and bankruptcy, for example—are governed solely by federal law. The states can legislate statutes and create case law in areas the federal government doesn’t regulate. Over the years, what falls within the federal government’s control has resulted in much judicial interpretation, and currently, federal and state law touch most other legal areas to some extent. When a conflict exists, the Constitution’s Supremacy Clause tells us that federal law governs state law.

Issues Covered by State Law

Each state has its own set of statutes, as well as common law or case law. For instance, most states’ laws cover the following areas: child custody, conservatorships, contracts, corporations, crimes (in most cases), divorce, durable powers of attorney for health care and financial management, guardianships, landlord-tenant relationships, licensing (businesses and professions), living wills, motor vehicles, partnerships, paternity, personal injuries, probate, property taxation, real estate, trusts, wills, workers’ compensation, and zoning. Except in rare cases (for example, the federal government regulates the disclosure of lead-based paint hazards in residential rentals), federal law won’t address these issues.

Issues Covered by Federal Law

For most of our country’s history, federal law was limited to court interpretations of the U.S. Constitution, the Bill of Rights, and topics Congress is authorized to address, such as commerce and immigration. But as courts have interpreted the Constitution to allow the federal government to regulate more areas, federal law might control a broad range of social welfare, health, and environmental issues.

Federal law generally controls areas like agriculture, bankruptcy, copyright, customs, food and drug regulation, immigration, interstate commerce, maritime activity, patent, Social Security, and trademark.

Issues Covered by Both State and Federal Law

A large number of legal areas now involve both state and federal law. Federal and state governments are concerned about environmental law, consumer protection, and the enforcement of child support statutes, and the Constitution doesn’t limit who can do what.

This legislative power broadened because the Constitution authorized Congress to spend money for the general welfare. Programs offering federal funds to state governments usually require the state to meet condi-tions and contribute financially according to the applicable federal law.

When states participate in one of these programs, federal law typically gives some latitude in how the state implements the program, allowing states to put laws and regulations in place. With time, courts interpret these statutes and regulations, creating common or case law.

Areas covered by both state and federal law include consumer protection, criminal law, employment, environmental protection, health law, labor law, occupational safety, subsidized housing, taxes, transportation, unemployment insurance, veterans’ benefits, and welfare law. If you have a problem affected by federal and state law, you might have to look to state and