The Legal Research FAQ

Friday, September 19, 2014

This is an updated edition of Mark Eckenwiler's 1996 The Legal Research FAQ, in which he's described as "an attorney admitted to practice in the State of New York and the Commonwealth of Massachusetts." A later biography, which could be found here, states:

Mark Eckenwiler is Associate Director of the Office of Enforcement Operations, Criminal Division, U.S. Department of Justice. He previously worked for 9 years in the Justice Department's Computer Crime Section, where he served as Deputy Chief from 2002 to 2005. His areas of responsibility include federal wiretap law, online investigations, and sensitive investigative technologies.

The revisions in this version of The Legal Research FAQ include conversion to HTML, removal of broken links, and linking of the table of contents to corresponding sections. The 1996 version on which this is based is available here.

More information on legal research can be found at Government Publications & Legal Documents.

This document gives an overview of the standard resources and tools used in conducting legal research on state and federal law in the United States. It also provides an overview of the structure of the various state and federal court systems, and describes the primary legal sources (case reporters, statutory and regulatory compilations) where the law per se can be located. It is written for laymen, not lawyers; no prior legal knowledge or research experience is assumed.

The flag "**" preceding a term or the name of a resource indicates that an extended explanation of that term/resource can be found elsewhere in the FAQ.

Special thanks go to Terry Carroll, Mike Godwin, Michael Froomkin, Lori Fox, Larry Kolodney, Simona Nass, and Brian Smith. This FAQ (and its author) benefitted immensely from their helpful insights and criticisms.


TABLE OF CONTENTS


0 — ROADMAP FOR THE IMPATIENT

This section provides direct pointers to the answers to frequent questions.

Q. I have the name of a case, but not a cite to it. How do I find the case in a book?
A. See section 4.1.2.

Q. I know there's a famous Supreme Court case about <subject>. Is there an easy way to look it up?
A. See section 4.2.1, and the end of sections 1.1.3 and 4.1.3.

Q. How can I find out how courts interpret a specific statute?
A. See section 4.1.1.

Q. I need to know if case X has been overruled. How do I find out?
A. See sections 4.1.3 and 4.1.4.

Q. How do I identify the federal statute(s) governing <subject>?
A. See the end of section 4.1.1.

Q. This case citation stuff is Greek to me. What does it mean?
A. See section 2.1.

1 — STRUCTURE OF THE U.S. COURT SYSTEM

The United States has several different court systems — at least 55, if not more. Each state (plus DC, Puerto Rico, Guam, and the Virgin Islands) has its own system, and then there is the federal system.

1.1 — The Federal Courts

The federal court system has three basic levels: the District Court, the Circuit Court, and the Supreme Court.

1.1.1 — Federal District Courts

The lowest tier of federal courts, where suits are first brought and trials are held, is called the District Court level. District Courts hear every type of federal case, whether civil or criminal in nature. Each district may have several judges, and covers part or all of a state.

There are two groups of district court judges, "regular service" and "senior status." Their powers are equal, and all enjoy life tenure (under Article III of the U.S. Constitution); the only difference is that senior judges, by virtue of having been on the bench for at least ten years, may have lighter dockets (caseloads) and may choose what types of cases they hear. (Some senior judges have used this prerogative to refuse trials or sentencing in drug cases.) There are roughly 630 regular-service District Court Judges, a total set by statute. 28 USC sec. 133. There is no limit on the number of senior judges, other than the minimum age of 65 prerequisite to electing senior status. 28 USC sec. 371.

District Court judges are often assisted by so-called Magistrate Judges (aka magistrates). Magistrates are not life-tenure judges; rather, they are auxiliary officers (appointed under Article I of the Constitution) who handle certain kinds of tasks delegated by District Judges. Magistrates may take "not guilty" pleas in felony criminal arraignments; they also frequently handle discovery disputes, misdemeanor trials, settlement negotiations, and hearings to calculate damages. Their orders are generally appealable to the District Judge from whom the matter was referred. 28 USC sec. 636.

In addition to the District Courts, there are a few trial-level federal courts with limited subject-matter jurisdiction. These include the Court of Claims and the Court of International Trade. There is also the system of federal Bankruptcy Courts, staffed by judges who (like magistrates) are Article I (i.e., auxiliary) officers appointed for a limited term of years.

1.1.2 — Federal Appeals Courts

Above the District Courts sit the Circuit Courts of Appeal. There are 13 such courts (1st-11th Circuits, plus D.C. and the Federal Circuit.) With one exception, these courts hear appeals from District Court decisions within their individual geographical regions. For instance, the Second Circuit presides over the four federal Districts in New York state (EDNY, SDNY, WDNY, NDNY), and the Districts of Connecticut and Vermont.

(The exception is the confusingly named Federal Circuit, a special court for patent appeals, which reviews District Court decisions in this area from all over the country. As for the other Circuits, the frontispiece map in any recent volume of the **Federal Supplement or **Federal Reporter will show which states are in each Circuit.)

There are approximately 180 regular service Circuit Judges, 28 USC sec. 44, and in addition a varying number of senior Circuit Judges. The Circuits vary widely in size: the Ninth Circuit, covering CA, AK, AZ, ID, MT, NV, OR, WA, HI, and Guam, has 28 regular slots, while the First, covering MA, ME, NH, RI, and PR, has only 6. Like District Court Judges, Circuit Judges have life tenure.

Almost all District Court orders are appealable to the Circuit Court. However, except for a few specific types of orders (such as those granting or denying preliminary injunctions), most orders are not immediately appealable. Instead, parties must usually wait until the entire case has been disposed of in the District Court, and then raise all of their appeals at a single time. See 28 USC secs. 1291 and 1292.

Unlike District Court Judges, who preside alone over their cases, Circuit Courts sit in essentially random panels of three judges for each case. In extremely rare circumstances, a majority of the judges in the Circuit may sit "en banc" (also known as "in banc", or "in bench") on a single appeal in order to clarify or review a 3-judge-panel decision.

On occasion, the Chief Judge of a Circuit may invite a District Court Judge (or a judge from another circuit) to sit temporarily on a 3-judge panel to hear one or more appeals. This process is called "sitting by designation." When sitting by designation, a District Court Judge may not review his/her own earlier decisions.

Circuit Court decisions are binding on the district courts within that circuit. This fosters uniformity of law within each circuit, although the circuits themselves may disagree strongly on points of law. (See the next section's discussion of "certiorari.")

1.1.3 — The Supreme Court

Atop the pyramid is the United States Supreme Court. The Court hears appeals from the Circuits Courts, from the highest courts of the respective states (only where a federal issue is involved), or (very rarely) from a District Court decision. The Court also occasionally acts as a trial court over certain constitutionally defined categories of cases, such as lawsuits between states.

In its appellate capacity, the Court is not obliged to entertain any given case. Rather, the Justices vote on whether or not to "grant certiorari"; by tradition, a vote of 4 in favor is sufficient to qualify the case for a hearing. In the vast majority of cases, the Court declines to hear the appeal ("denies cert."). A denial of certiorari has no precedential effect, and is not to be taken as a reliable indicator of the Court's views on the merit of the appeal. While this may seem harsh, it should be considered in light of the fact that the Court decides only 100-150 cases each Term, out of the 6000 petitions for certiorari annually.

The Supreme Court serves as the final authority of law in the United States. As a result, it is often called upon to resolve conflicts between the Circuits, e.g., in interpreting federal statutes. Petitions for certiorari are more likely to be granted when they involve such issues. (For example, at the time this FAQ was written, the Circuits were split over whether an organization must have an "economic motive" before it can be successfully sued under civil RICO. The Second Circuit [in a case involving Croatian terrorists] and the Seventh Circuit [in a case involving Operation Rescue] had held that an economic motive is required; other circuits disagreed. In late January 1994, the Supreme Court resolved the split in a unanimous opinion rejecting the Seventh Circuit's position. See National Org. for Women v. Scheidler, No. 92-780.)

There are currently nine Justices, although that number varied (substantially at times) prior to the 20th century. Like District and Circuit Court judges, Supreme Court Justices must be confirmed by majority vote of the Senate before taking office.

The highest ranking Justice is the Chief Justice of the United States (*not* the "Chief Justice of the Supreme Court"). The Chief Justice, who must be confirmed to that position even if s/he is already an Associate Justice when nominated, has special administrative and ceremonial functions. In addition, s/he always has the power to select who will write the opinion for the side on which the Chief Justice votes in a given case. When the Chief Justice is in the majority, s/he may write the Opinion of the Court himself/herself, or may assign it to another Justice on the same side.

When a Justice retires, s/he may continue to serve actively as a judge, albeit not at the Supreme Court. Retired Justices are often invited to sit on Circuit Court panels. See 28 USC sec. 294.

An excellent encyclopedia-style source of detailed information about the Supreme Court — its history, its members past and present, and numerous important decisions — is The Oxford Companion to the Supreme Court of the United States. Woodward and Armstrong's The Brethren offers an informative look into the Court's internal dynamics. And for a full narrative history of the Court, see Bernard Schwartz's A History of the Supreme Court (Oxford Univ. Press 1993).

1.2 — State Courts

There are too many state court systems to describe them all here. This section furnishes only an overview; for detailed information on state court system structures, Want's Federal-State Court Directory (Want Publishing Co.) includes a useful diagram of the system for each state, territory, etc.

Most state courts are designed in the same manner as the federal system: a trial court, an intermediate appellate court, and a court of final appeal (usually the "Supreme Court"). Some smaller states omit the intermediate level.

In addition, some of the older court systems use peculiar naming conventions. In Massachusetts, the highest court is the Supreme Judicial Court. New York's system is the most confusing by far: the trial level court of general jurisdiction is the Supreme Court; the first appellate court is the Supreme Court, Appellate Division; and the highest court is the Court of Appeals.

As in the federal system, the higher up you go in the system, the more judges sit on the panel that hears the case.

Also like the federal system, many states have special, limited-jurisdiction trial courts. These generally include Family Court, Small Claims Court, Juvenile Court, and so on.

2 — CASE LAW: CITING, LOCATING, AND READING REPORTED CASES

Because there are so many courts churning out opinions all across the U.S., there are correspondingly numerous published sets ("reporters") of the decisions of these various courts. This chapter describes briefly a) how to find a case if you have a cite for it, b) the functions served by the respective reporters, and c) the format in which printed cases appear.

2.1 — Components of a Standard Cite

The basic structure of a reference to a published decision is

Party1 v. Party2, [volume] [reporter] [start page] [(court, year)]

A good example is Hamaya v. McElroy, 797 F. Supp. 186 (E.D.N.Y. 1992). From this listing, you see that the last names of the primary parties are Hamaya and McElroy. The case can be found in volume 797 of the Federal Supplement (described below) beginning on page 186. The opinion was rendered in 1992 by a District Court in the Eastern District of New York (which covers Queens, Brooklyn, Staten Island, and Long Island).

A citation may sometimes omit the parenthetical information identifying the court of decision when that information can be gleaned from the name of the reporter. For instance, the famous Supreme Court flag-burning decision is cited as Texas v. Johnson, 491 U.S. 397 (1989). Since the **United States reporter (U.S.) only includes Supreme Court decisions, it is not necessary to specify the court again in the parenthetical.

Sometimes a case will appear in more than one reporter; in that event, information on the reporters is listed sequentially, e.g., Schmuck v. United States, 489 U.S. 705, 109 S. Ct. 1443 (1989). This case appears in volume 489 of U.S. (starting at page 705) and in volume 109 of the **Supreme Court reporter (S. Ct.), starting at 1443.

When reference is made to specific passage within a case, the cite will include a "jump cite" or "pin[point] cite", so called because it pinpoints the particular internal page to which the reader can "jump" directly in lieu of reading the entire case. For example, the cite Texas v. Johnson, 491 U.S. 397, 399 (1989), directs your attention to page 399.

All of the sample cites above are in "long form": that is, they give the names of both parties and provide a full citation. When a source cites to a case repeatedly, however, it will often use the long form only for the first reference; thereafter, it will use the aptly named "short form," which has the general structure

<unique name,> [volume] [reporter] at [page]

where <unique name,> is optional. The following are all typical short form cites to the cases listed above:

Johnson, 491 U.S. at 402. 491 U.S. at 401. Hamaya, 797 F. Supp. at 190-91.

Note that because "Texas" is even less useful as an identifier than "Johnson", one would generally find the latter in a short form cite even though it is not the first name in the case title. The same is generally true for frequent litigants like the Commissioner of Internal Revenue, the Secretary of HHS, and (of course) "United States".

A case cite also often includes additional information about which judge wrote the decision, whether the case was ever affirmed or reversed on appeal (or cert. was denied in the Supreme Court), and so on.

A note on the order of names in the caption: In District Court and Circuit Court opinions, the first name listed is *always* that of the plaintiff. This means that in a Circuit decision captioned Party1 v. Party2, you cannot tell from the caption alone which party appealed to the Circuit Court. In contrast, the title of U.S. Supreme Court decisions always tells you which party ("the petitioner") brought the appeal: it's the first name listed, regardless of whether that party was originally a plaintiff or a defendant in the trial court. (As a result, you can tell who won a case based solely on whether the Supreme Court reversed or affirmed the lower court: an affirmance means that the petitioner (listed first) lost, and vice versa for reversal.)

As you have probably gathered by this point, a case citation often carries a large amount of information. As a result, certain standards have arisen for citing cases "correctly".

[The remainder of section 2.1, below, has been added by the editor of Polisource due to out of date material in the original tutorial. The added material was copied from http://www.polisource.com/government-publications-legal-documents.shtml.]

Reading Legal Citations, published by Boston College, is an easy to use guide to understanding legal citations.

Basic Legal Citation from the Appalachian School of Law (ASL) discusses citation manuals and tutorials found elsewhere in addition to providing citation instruction.

A more difficult but extensive guide is Cornell Law School's Introduction to Basic Legal Citation. The Boston College and ASL webpages mentioned above list citations for court cases under Cases and Case Citations respectively, while Cornell's guide uses the less beginner-friendly Judicial Opinions with no explanation. Also, the narrow, badly formatted index on the left should be expandable to full screen width with properly spaced items and maybe subtitles for each item to explain things like what judicial opinions are.

Introduction to Basic Legal Citation "includes references to both The Bluebook and the ALWD Citation Manual" (see Practice Strategies: Legal Writing for a comparison between The Bluebook and ALWD) and "seeks to introduce the basics through concise statements of principles and usage linked to examples."

2.2 — Individual Case Reporters

Case reporters can be divided into two basic types: "official" reporters published by the federal government or the states, and commercial reporters. In the latter category, far and away the dominant company is West Publishing, about whom you will read much more below (see **Federal Practice Digest).

2.2.1 — Federal Case Law Reporters

United States Reports (U.S.): The official reporter for decisions of the U.S. Supreme Court. The actual opinion of the Court is preceded by a "syllabus," written by a Court employee, summarizing the issues decided. The Syllabus is not part of the opinion, and should be relied on only for a quick overview of the case. The Supreme Court once rebuked a litigant for carelessly quoting a Syllabus rather than the opinion it inaccurately summarized. See United States v. Detroit Lumber Co., 200 U.S. 321, 337 (1906).

Supreme Court Reporter (S. Ct.): The West Publishing reporter for the Supreme Court. In addition to the Court's Opinion and the Syllabus, S. Ct. introduces each case with a series of so-called "headnotes" distilling and categorizing major legal conclusions in the opinion. (These headnotes, which are created by West and are not part of the Opinion, are discussed at length in section 4.1.2 on using the **Federal Practice Digest. All West reporters, for federal or state courts at any level, attach these headnotes to each case as a research tool.)

Lawyers Edition (L. Ed., L. Ed. 2d): An alternative collection of Supreme Court decisions from the private publisher Lawyers Cooperative. L. Ed. 2d is less widely available in the United States than U.S. or S. Ct., although it includes some useful features (such as summaries of the parties' arguments) not found in the more common reporters. Note also: like many reporters, Lawyers Edition has entered its "second series" (L. Ed. 2d), which simply means that at some point the publisher wanted to restart the volume numbers again at 1.

United States Law Week (U.S.L.W.): A weekly looseleaf newsletter, published by the private Bureau of National Affairs (BNA), reporting Supreme Court decisions (in addition to summarizing important lower court decisions). USLW is the most up-to-date hardcopy form of Court decisions, and includes excellent indexes for determining the status of a pending case (or locating a recent opinion) on the basis of party names, subject matter, or docket number.

Federal Reporter (F., F.2d, F.3d): The West reporter covering decisions of the Circuit Courts of Appeal. Like all West reporters, it includes headnotes before each case as a research tool. There is no equivalent official reporter; this is the only comprehensive printed source for Circuit Court opinions.

Federal Supplement (F. Supp.): The primary West reporter reprinting decisions of the District Courts. Unlike F.2d/F.3d, which includes almost all Circuit Court decisions, F. Supp. represents only a fraction of the orders issued by federal trial courts. (Unless the District Judge submits a copy of a given decision to West — usually done when s/he considers it groundbreaking or useful as a guide to other courts — it will not appear in F. Supp.)

Instead of appearing in F. Supp., a decision may appear in one of two specialized reporters, Federal Rules Decisions (F.R.D.) or Bankruptcy Reporter (B.R.), if it relates to bankruptcy law or certain federal rules of court. "Unpublished" decisions (i.e., those absent from the printed reporters) can often be found on **Lexis and **Westlaw. There is no official reporter for District Court opinions.

2.2.2 — State Case Law Reporters

Nearly every state has an official reporter reprinting decisions of that state's highest court. This reporter invariably has as its title the name of the state (sometimes abbreviated), e.g., "Mass.". (The exceptions are states like Alaska and Wyoming, which no longer publish official reporters. The only printed resource for such cases is the West regional reporter [see below].)

In some states, the official reporter also includes the decisions of lower appellate and trial courts. Other states publish one or more separate official reporters for these courts. In New York, for instance, the current official reporters are N.Y.2d (highest court), A.D.2d (Appellate Division cases), and Misc. 2d (trial court opinions).

For two prominent states — California and New York — West also publishes its own single-state reporter compiling the major decisions of all courts in that state. The current editions of these reporters are the California Reporter, 2d series (Cal. Rptr. 2d) and New York Supplement, 2d series (N.Y.S.2d).

Because it is expensive and cumbersome for many smaller law libraries to keep a full collection of official state reporters, West publishes various "regional reporters," each collecting the combined case law of a region of the U.S. These are N.W.2d (Minnesota and Wisconsin region), N.E.2d (New York, Illinois, Ohio and parts of New England), A.2d (Atlantic coast), So.2d (South), S.E.2d (Southeast), S.W.2d (Texas, Arkansas, Kentucky, Tennessee), and P.2d (Pacific). For historical reasons, many of the categories are counterintuitive: P.2d covers not only California, but recent additions to the Union like Oklahoma and Kansas.

In every instance, a case in a West regional reporter can also be found in the corresponding official state reporter. Indeed, for New York, Illinois, and California, a single case may appear in no less than *three* reporters (one official and one West reporter for that state, plus a regional reporter). An example: Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 539 N.E.2d 1069, 541 N.Y.S.2d 941 (1989).

A full list of which reporters contain the decisions of various state courts can be found in Table 1 of the Bluebook, starting at page 169.

Finally, note that what is true for the U.S. Supreme Court syllabus (not valid as law) may not be true for certain state supreme courts. In Ohio, for example, the Supreme Court itself writes the syllabus, which is part of the official opinion (and binding as law).

3 — STATUTORY AND REGULATORY LAW

3.1 — Statutory Citation

The basic structure of a federal statutory citation is

[volume] U.S.C. sec. [number]

"U.S.C." is United States Code, the official government codification of all U.S. statutes. U.S.C. is divided into roughly 50 different categories ("titles"), each with a name and number; Title 8, for example, covers immigration law. This title number is used as the [volume] marker at the start of a cite. The [number] field is simply the section number of the referenced statute. For instance, 28 U.S.C. sec. 2254 is the federal statute permitting state prisoners to file habeas corpus petitions in federal court.

(This FAQ uses the notation "sec." in place of the formal section symbol [a doubled S]. Other ASCII-limited sources, such as **Westlaw and **Lexis, may use "$", "@", or even "|" instead.)

Some of the more important titles of U.S.C. are Title 11 (bankruptcy), Title 18 (criminal laws), Title 26 (Internal Revenue Code), Title 28 (Judicial procedure), and Title 42 (Public Health and Welfare).

(You may occasionally hear people refer to certain laws as "Title so-and-so", such as Title IX (barring sex discrimination in education), Title III (regulating wiretaps), and Title VII (barring race/sex-based employment discrimination). These are not titles of U.S.C.; rather, they refer to specific portions of particular Acts of Congress. Title III, for instance, is the third major section in the Omnibus Crime Control and Safe Streets Act of 1968.)

Relatively few people use U.S.C. itself, which collects statutory revisions in cumbersome separate volumes. Instead, most researchers use **United States Code Annotated (or **United States Code Service), two private publications which include not only the statutes but also useful summaries of relevant court decisions. U.S.C.A. and U.S.C.S. are discussed at greater length below, in section 4.1.1.

The United States Code may also be found on the net at http://www.law.cornell.edu/uscode/

Be careful; online versions are often 12 months or more out of date.

State laws are not organized in a uniform manner. For example, in Massachusetts, the laws are divided into "chapters": Massachusetts General Law ch. 89, sec. 11 penalizes motorist failure to yield to crosswalk pedestrians. In New York, the major divisions have names but not numbers, e.g., NY Penal Law sec. 245.01 (indecent exposure). Each state publishes an annotated version of its statutes similar to U.S.C.A.

Note also that many smaller units of government — counties, parishes, cities, towns — also have their own statutes, sometimes called "ordinances". Publication formats vary widely.

3.2 — Regulatory Citations

In addition to the official legislation of Congress, federal law includes regulations created by various federal agencies. Prior to taking effect, a regulation must be printed in the Federal Register. Upon being finally adopted, a regulation is codified in the Code of Federal Regulations (C.F.R., not to be confused with the Council on Foreign Relations).

Similar to statutes and cases, a citation to a federal regulation has the basic form

[volume] C.F.R. sec. [number]

Knowing the cite for the section you need is essential, as the C.F.R. index is practically worthless. Since most regulations are promulgated pursuant to an explicit statutory grant of authority, one of the best methods for locating regulations on a specific subject is to consult **U.S.C.A. Once you locate the relevant statute, look in the text which follows for cross-references under the heading "Code of Federal Regulations".

4 — LEGAL RESEARCH SOURCES AND METHODS

4.1 — General Resources

Legal research aids come in a variety of complementary and interrelated forms. One of the few elements common to nearly all such tools is the "pocket part," an update section usually tucked inside the back cover of a volume. (Sometimes the update will be a separate paperbound supplement instead.) When you use any of the following tools for the first time, note the location and general organization of the update section, and *use it*. Otherwise, your research will miss the most recent (and most significant) law on the issue.

4.1.1 — United States Code Annotated and United States Code Service (U.S.C.A., U.S.C.S.)

U.S.C.A. and U.S.C.S. are the two commercially produced "annotated" versions of the **United States Code. This simply means that these series provide not only the text of all federal statutes, but also include helpful research cross-references. The discussion below explains how to use U.S.C.A. — published by West, and therefore the more widely available of the two sets — but is equally applicable to U.S.C.S.

After each statute reprinted in U.S.C.A., you will find a variety of headings for such subjects as law review articles, notes to statutory revisions, cross-references to **C.F.R., and so on, with relevant information under each. Most significantly, U.S.C.A. provides a set of "annotations" on the statute: that is, brief summaries of court decisions applying or construing the law in question.

This annotation section after each statute generally begins with an alphabetical index of the topics covered by the cases. Each topic corresponds to a number, which tells you where to find case summaries ("squibs") on that topic.

The alphabetical index is followed by groups of squibs under the numbered topic headings. Annotation topic number 1 is almost invariably either "Constitutionality" [i.e., of the statute] or "Generally" (collecting cases discussing the statute broadly).

There are two important things to keep in mind as you use U.S.C.A. First, U.S.C.A. does not list every case that has ever referred to the statute; it is only a selection, albeit usually a helpful one that includes most or all major decisions. Second, you should not rely on the case summaries as authority. Because the squibs occasionally misstate a court's holding, it is essential that you read the cases themselves.

As with other research tools, make certain to consult the pocket part when using U.S.C.A. so you don't overlook revisions to the statute or recent court decisions interpreting it.

One very useful feature of U.S.C.A. is the paperbound set of subject index volumes located at the end. These volumes provide pointers to all laws on any particular topic (Postal Employees, Eavesdropping, or whatever).

Note that the equivalent of U.S.C.A. exists for most state law compilations as well. Check with your law librarian for details.

Finally, U.S.C.A. is now available as a 2-disk CD-ROM.

4.1.2 — Federal Practice Digest (FPD)

In section 2.2.1 above, you learned about the West Publishing headnotes that precede nearly all reported cases. In case you were wondering how to make use of those headnotes, the answer is "use the Federal Practice Digest".

West has created a vast taxonomy of legal issues, referred to as the "West key number system". A West reference has the form

[subject] [key number]

where [subject] is a gross division like "Jurisdiction," "Venue," "Constitutional Law," or "Contracts." The key number, usually of the form xx, xx.yy, or sometimes xx.yy(nn), corresponds to a subdivision of the larger topic, such as "Freedom of speech: prior restraint" or "Anticipatory repudiation of contract." The volumes of FPD are organized alphabetically by subject; a list of numbered subdivisions (with helpful short descriptions) appears at the start of each major subject entry.

Whenever a case is published in a West reporter, West's legal writers analyze the court's opinion and break it down into main points. Each legal point — e.g., "claims litigated once may not be litigated again" — is put into one of the pigeonholes in West's overarching key-number system. These key numbers, along with a summary of the case's conclusion or reasoning on that sub-issue, are printed at the start of each case, numbered sequentially from 1 to N. Within the case itself, bracketed numbers (e.g., "[3]") are inserted into the opinion to indicate which passages are summarized by which headnotes. Sometimes a single passage will merit several headnotes, and will be preceded by a bracketed range ("[5-7]").

So what's the point, you say? The point is that in the volumes of FPD itself, West organizes *ALL* of the headnotes from every reported decision according to these systematic groupings. Thus, if your case has a headnote labeled "Perjury 36", you can open the FPD "Perjury" volume to section 36 and read a summary of similar decisions rendered in other courts. You can then locate the actual opinions that seem useful, read them, and make a note of any *other* key numbers in those cases that may be relevant. Repeat as necessary.

This system is wonderful in principle. In practice, it depends on the ability of West's employees to summarize cases correctly and to do so using consistent key numbers — an ability which is obviously variable. A given proposition of law may be treated under several nonconsecutive key numbers; indeed, it may be treated under entirely different major subject headings. A good rule of thumb in using FPD is that if you can't find what you need, try looking in a different place. (This is also good advice even when you *do* find what appears to be the answer.)

If you don't have a case to start from, you can use the FPD subject index volumes (near the end of the set) to locate potentially useful key numbers.

An extremely valuable feature of FPD is the Table of Cases volumes (at the end), which list every reported federal decision. If you have the name of a case — say, Hamaya v. McElroy — you can look it up in these volumes and find the citation. If you only know the defendant's name, use the Defendant-Plaintiff volumes (also at the end), which provide the same information alphabetized by the name of the defendant.

A final word about the FPD series: There is more than one. Because courts are constantly churning out opinions, West creates a new set of FPD every 10-20 years. The current series, FPD 4th, covers cases starting around 1987; its predecessor, FPD 3d, covers the period from 1975 to roughly 1987. (Nobody ever uses the older sets, FPD 2d and FPD, since the case law they summarize is ferociously out of date.)

Note that West publishes the equivalent of FPD for state court decisions as well. For each of the West regional reporters described above, there is a corresponding Digest (e.g., Pacific Digest) containing summaries of decisions rendered in that region. (Indeed, the case law of a few large states such as New York and California is summarized in special state digests, e.g., the current New York Practice Digest 4th.) Note especially that West's key numbering system is consistent, so a single topic/number combination corresponds to the same legal issue in FPD and all the regional (and state) digests.

4.1.3 — Shepard's Case Citations

When you read a case, you'll generally see citations to numerous older cases. But how do you find out if the case you're looking at has itself been cited in later decisions, or possibly reversed on appeal? By using Shepard's.

Shepard's is a multivolume, multiseries set of red books whose sole purpose is to list every source (well, almost every) that has ever cited any given case. The later sources listed in Shepard's include federal and state court decisions, law review articles, and **ALR. For court decisions, Shepard's frequently indicates whether the later court agreed or disagreed with the reasoning or conclusion of the first case.

To use Shepard's ("Shepardize a case"), locate the volumes of Shepard's which cover the reporter in which your original case appears. For example, if you want to see which courts have cited 797 F. Supp. 186, go to the volumes of Shepard's which cover the range of F. Supp. that includes volume 797. (Since Shepard's is necessarily updated all the time, you will probably have to consult 2 or 3 bound volumes and another 2 or 3 paperback supplements; the cover of the most recent paper supplement will indicate how many volumes there are in the series.)

Once you have the volumes, open one to the page which specifically covers 797 F. Supp. Now scan down the listings until you locate the subheading "– 186 –", which indicates the start of listings for the case beginning on that page (i.e., 797 F. Supp. 186). You'll see a listing like the following. (Note: this is not the actual Shepard's listing; it's a fictional listing concocted for purposes of this FAQ.)

– 186 – a981F2d227 2 800FS 512 q793FS22 ...

The listings are of the general form

<treatment-code> [volume] [reporter] <headnote> [page]

where the <bracketed> fields are optional. The volume/reporter/page fields indicate the specific page where the later source cites your case. Note that this is generally NOT the first page of that case; instead, it almost always occurs in the middle.

The treatment codes indicate how the later court regarded the first court's reasoning. Common codes are a (affirmed by appeals court), q (questioned), o (overruled), and s (later decision in same case); a full list of the codes appears near the front of each hardback Shepard's volume. Thus, the first Shepard's entry above says that a Circuit Court of Appeals affirmed the lower court decision, and that affirmance appears at 981 F.2d 227. Likewise, the third entry indicates that another district court opinion questioned some portion of the first court's reasoning; its skepticism can be found at 793 F. Supp. 22.

The headnote field, often omitted, indicates which specific passage of the first case is being referred to. Shepard's uses the West headnote system for this purpose: the number shown corresponds to headnote N in the original case, which itself points to a particular passage in that case. (Note that the West headnote summary in case 1 may have nothing to do with the issue for which case 1 is cited in case 2, as the West headnotes do not (and cannot) summarize every issue in a case. Shepard's merely uses the headnote divisions to make its cross-references to the first case more specific, by defining more specifically the section of text to which the second case refers.)

Thus, the second entry above tells us that on page 512 of 800 F. Supp., another district court cited case 1 for a proposition that is stated (or implied) in the text corresponding to note "[2]" in 797 F. Supp. 186.

Note that the Shepard's entries are organized according to jurisdiction, with the highest authority in each listed first. A full-length listing of a significant case will have entries for F.2d and F. Supp. in all the Circuit Courts, and will likely be cited by various state courts as well.

One final note: there is a separate 3-volume subset of Shepard's that lists Acts of Congress and important court decisions by their popular names. These volumes serve the same purpose as the Popular Names Table at the end of the **U.S.C.A. index. The Shepard's list of cases is not even vaguely comprehensive, unlike the Table of Cases at the end of **F.P.D., but it has three major advantages:

a) it covers a full two centuries in one place (unlike F.P.D., which is now in its 4th series, with separate Tables for different time periods),

c) it covers state cases absent from F.P.D., and

b) it allows you to find cases by looking under "Congresional Veto case" (answer: INS v. Chadha) or "Flag Burning cases" (answer: Texas v. Johnson and U.S. v. Eichmann).

4.1.4 — Lexis and Westlaw

Two companies, the ubiquitous West Publishing (Westlaw) and Mead Data (Lexis), provide online facilities for legal researchers. While the two systems have a variety of distinguishing features — Westlaw is generally more up-to-date and includes its proprietary key number headnotes in the cases, while Lexis is easier to use overall, has more finely subdivided case libraries, and has better international coverage — the general usage principle is the same: either system allows you to run Boolean keyword searches across a variety of federal and state law databases.

Each service has recently added a "natural language" interface — "WIN" on Westlaw, "Freestyle" on Lexis — to take the mystery out of framing a proper search query. While these search methods have some advantages over pure Boolean searches — for example, weighting the documents in the "hit" list on the basis of [in]frequency of usage of key search terms — they are usually not a substitute for a rigorous Boolean search. As a quick way to locate a few relevant cases on a given topic, however, they are quite helpful.

Both services are extremely expensive, and require the establishment of an account prior to use, unless you're fortunate enough to have access through a university library. The cost is prohibitive for most individuals; those who already have access can consult their librarians or the provider itself.

One noteworthy feature of these services is that they make available many more opinions than appear in the printed case reporters. In addition, both services provide a function which tells you whether a particular case is still good law. This function — AutoCite (Lexis) or InstaCite (Westlaw) — lists any subsequent case history (e.g., later appeals), as well as any other case which overrules it or questions its reasoning. This is more selective than Shepard's, which lists *all* other cases citing your case; at the same time, it is broader because it lists any court decision overruling your case, regardless of whether your case is specifically mentioned in that later opinion. (A Supreme Court decision, for example, may overrule scores of lower court cases without listing them all.)

4.1.5 — ALR, Am. Jur., and CJS

[to be added later]

4.1.6 — Black's Law Dictionary

The most famous dictionary of legal terms and phrases is Black's. Unfortunately, Black's is useful almost exclusively for definitions of historical terms ("Lex Petronia" is my favorite, with "enfeoffment" a close second). Black's definitions of contemporary legal terms are often too vague to be of use, and even in those cases where Black's provides a case quote, it's too frequently from an obscure 1932 decision in Kentucky.

Moral: don't rely on Black's unless you're desperate or lazy, or researching some point of purely historical interest.

4.2 — Subject Area Resources

Special reference works and treatises simplify research in several major areas of the law. In addition to the specialty works listed below, you may also find so-called "hornbooks" helpful. These are general reference works that provide an overview of a particular subject, and are generally not as up-to-date as the works listed below. While the name Hornbook Series belongs to one publisher, there are usually several hornbooks in each area. Your law librarian will be able to direct you to these, as well as to the resources listed below.

4.2.1 — Constitutional Law

The history and interpretation of the Constitution is, not surprisingly, the subject of innumerable works. This FAQ cannot begin to do justice to the available bibliography, and will not attempt to do so.

For what it's worth, a widely available (and respected) overview is Laurence Tribe's single-volume American Constitutional Law (2d ed.). Also useful, if less commonly available, is Rotunda and Nowak's 4-volume Treatise on Constitutional Law: Substance and Procedure (2d ed.). Both works provide extensive cross-reference to other secondary sources, as well as discussions of hundreds of important Supreme Court decisions.

Finally, note that much of constitutional law relates to standards for criminal proceedings. Accordingly, the sources mentioned in section 4.2.4 below contain informative discussions on numerous constitutional topics (such as the fifth amendment, the ex post facto clause, the double jeopardy clause, etc.).

4.2.2 — Evidence

The admission and use of evidence in federal courts is governed by the Federal Rules of Evidence (FRE or Fed. R. Evid. for short), which can be found (among other places) in the appendix to Title 28, **United States Code. The Rules deal with a variety of issues, such as:

  • the general admissibility standard
  • character testimony
  • impeaching witnesses
  • the hearsay rule and its exceptions
  • authentication of writings
  • privileges against testifying
  • using copies or printouts instead of original documents/data files

Individual states have their own rules of evidence. Many of these state codes vary from the federal rules, although the federal Rules have proven increasingly influential as states modernize their laws.

Anyone researching federal evidence law has a variety of tools from which to choose. A broad-based (and therefore inefficient) method of attack is to use **Federal Practice Digest (3d, 4th), especially the key-number entries under the "Evidence" heading. A better approach is to start with Weinstein's Federal Evidence, a frequently updated treatise covering the Rules in exhaustive detail (and providing extensive case citations). If you know the Rule you need to research, you can go directly to the Weinstein chapter with that number; otherwise, look up your desired topic in the extensive index.

Other tools to supplement Weinstein are Moore's Federal Practice (also with numbered chapters corresponding to the Rules) and Wright & Miller, Federal Practice and Procedure (use the index volumes to locate your topic). Once you have the number of the Rule you're researching, you may also find the case annotations in **U.S.C.A. (or **U.S.C.S.) helpful; consult the volumes at the end of Title 28.

Finally, whenever using any of the above resources, DON'T FORGET THE POCKET PART (or supplemental paperback volume).

4.2.3 — Civil Procedure

"Civil procedure" is the massive body of law that covers, in brief, who gets into court and how. Civil procedure governs the kinds of disputes (and parties) that courts have jurisdiction over; the manner in which parties file their claims with the court; the types of motions a party may bring to obtain a ruling, and how those motions should be brought; the entry of judgments; the degree to which one court must obey another's orders and judgments; and so on.

In federal district courts, proceedings are controlled by the Federal Rules of Civil Procedure (FRCP or Fed. R. Civ. P. for short); the Circuit Courts adhere to the Federal Rules of Appellate Procedure (FRAP or Fed. R. App. P.). Both sets of rules can be found in the appendix to Title 28, **United States Code. In fact, Title 28 contains most of the statutes on which FRCP relies. (A separate set of rules controls criminal procedure.)

As with rules of evidence, state courts have their own rules of procedure. These vary widely from state to state, and in some cases are highly idiosyncratic. In New York, which has the oldest continuously operating court system in the U.S., the Civil Practice Law and Rules (CPLR) are notoriously complex.

Well-structured tools for researching federal civil procedure include the following:

- Moore's Federal Practice (looseleaf binder multi-volume set; updates are the yellow pages up front) - Wright & Miller, Federal Practice and Procedure (hardbound series) - Title 28, **U.S.C.A. (annotations to statutes and rules)

In addition, a researcher may also wish to consult **Federal Practice Digest (3d and 4th), especially under the headings "Federal Courts and Procedure" and "Judgments".

Finally, whenever using any of the above resources, DON'T FORGET THE POCKET PART (or supplemental paperback volume).

4.2.4 — Criminal Law

Federal criminal law is scattered across several titles of the United States Code. The bulk of federal criminal law, however, can be found in Title 18; in addition, some of the most commonly invoked narcotics (and forfeiture) statutes are in Title 21.

Procedure in federal criminal trials is covered by the Federal Rules of Criminal Procedure (Fed R Crim P or FRCrP), which can be found at the end of Title 18, United States Code. The most important set of criminal procedure rules at the state or federal level, however, is the Bill of Rights. With the advent of the "incorporation" doctrine in the 20th century — whereby the Bill of Rights, formerly applicable only to the federal government, was applied to the states through the 14th amendment to the Constitution — the 4th, 5th, 6th, and 8th amendments have assumed increased significance in all criminal trials.

Far and away the most useful and comprehensive treatises on various criminal law subjects are W. LaFave's blue-bound multi-volume sets in West's Criminal Practice Series:

Search and Seizure Criminal Law Criminal Procedure (co-author J. Israel)

LaFave's books provide useful historical background, summaries of significant case law (including recent developments), and comment on unresolved questions or conflicts likely to pose the thorniest problems in actual practice.

Other resources:

  • Wright & Miller, Federal Practice and Procedure (criminal vols.)
  • Titles 18 and 21, **U.S.C.A. (annotations to statutes and rules)

A diligent researcher may also wish to consult **Federal Practice Digest (3d and 4th), especially under the subject headings "Criminal Law" and "Constitutional Law".

Finally, the Model Penal Code — a model codification of criminal law principles and definitions drafted by the American Law Institute — has proven influential in many jurisdictions.

4.2.5 — Torts

A tort is a "civil wrong." Common types of tort include libel, assault, battery (all "intentional torts"), and the garden-variety "negligence tort". Because the roots of tort law lie in the common law, and because tort law is strictly a creature of state law in the U.S., there are innumerable types of torts, often defined differently from state to state. (In fact, tort law varies widely from state to state; it is seldom safe to assume that one state's law will hold true elsewhere.)

A good overview of tort law is the renowned Prosser on Torts, currently edited by Robert Keeton. The Restatement (Second) of Torts, an influential codification of common tort principles, is also helpful.

4.2.6 — Contracts

The law of contract, with its roots deep in the common law, has inspired a number of exhaustive treatises, as well as sundry other resources. The two most authoritative (and voluminous) works are the multivolume sets Corbin on Contracts and Williston's Law of Contracts. The answer to nearly any question on contract law can be found in either of these. If your library is more modest, a good sourcebook in a pinch is the more readable, compact, and modern Farnsworth on Contracts.

In addition, an important source of law are Articles 1 and 2 of the Uniform Commercial Code, a model code of contract law that has been adopted (sometimes with minor modifications) by most states. Likewise influential is the American Law Institute's Restatement (Second) of Contracts, a summary of commonly accepted principles of contract law.

4.2.7 — Copyrights

The best sources for information on copyright law are the treatise Nimmer on Copyright, and a large number of publications available from the Copyright Office. These sources, and others, are covered in detail in part 5 of Terry Carroll's exhaustive and authoritative Copyright FAQ, regularly posted to misc.legal, misc.answers, and assorted other newsgroups. In addition to providing pointers to sources, Terry's FAQ explains U.S. copyright law in detail, describing its relation to international law and answering specific common questions about copyright doctrine. Terry's FAQ is available from ftp://rtfm.mit.edu/pub/usenet/news.answers/law/copyright/faq in files /part1 through /part6.

4.3 — Putting It All Together

So you need to investigate a legal topic using all of these tools. How do you put them together effectively?

First, if there's a treatise or hornbook on your subject, look there first. Half the time, the source will give you a clearcut answer, and save you the agony of reinventing the wheel and doing all the case/statute research yourself. (But make SURE you look in the pocket part — this can't be stressed enough.)

Suppose the issue is more complex, and you want to delve deeper. Note the cases, statutes, and rules mentioned in the treatise, and go look them up. (Of course, you can begin the research process here if you start off with a citation to some case, statute, or rule.) For each one of these, you have several routes for locating additional materials:

a) Your case etc. will likely cite other cases etc. which are themselves relevant. Repeat the recursive process for these sources.

b) If your new source is a case, Shepardize it for later-decided cases citing it. Look especially for later cases where the Shepard's listing includes a headnote number that corresponds to the important textual passage in your case.

c) If your new source is a case, note which headnotes (in front of the opinion) seem to address the issue you're interested in. You can then go to **Federal Practice Digest 3d and 4th (FPD), which contains summaries ("squibs") of other cases under that same heading/key-number combination. (For state law research, you would use the relevant state digest instead, e.g., NY Digest 3d and 4th.)

Make a note of the cases whose squibs look useful, and set them aside to be looked up later. When you get to them, you'll repeat steps a) and b) above; in addition, these new cases may include helpful discussions under a different West heading/key-number, in which case you'll recursively repeat step c).

d) If your source is a federal statute or rule (e.g., FRCP, FRE), consult the appropriate volume of **U.S.C.A. containing that rule. You'll find more case squibs relating to various aspects of the statute/rule. Consult those cases, and repeat steps a)-d) with them and the significant sources they discuss.

Suppose you didn't start this process by looking in a treatise, or with a particular case in hand; rather, you think there's general caselaw out there. Using the keyword index volumes at the end of FPD (or your state digest), look up terms that describe your issue. The index will generally provide you with a list of heading/key-number pairs, which you can then use starting with step c) above.

Or suppose you think there's a federal (or state) statute that addresses the subject. You'd go to the paperback index volumes of **U.S.C.A. (or your annotated state code) and look under whatever seem like the appropriate headings. For instance, to find the wiretap statutes, you'd look under "wiretap" or "eavesdropping" to start. Once you locate the relevant statute, proceed to step d) above.

Obviously, this recursive process could go on forever, since every case, rule, and statute ultimately leads to every other case etc. in the seamless web of the law. Use your judgment and cull accordingly as your research progresses. New cases are more persuasive than old ones; appeals court (and especially Supreme Court) opinions are more important than district court decisions; if you're before a particular district court, cases from that court (and the courts directly above it) are the most influential.

A useful guide to developing research strategies (and carrying them out) is The Legal Research Manual: A Game Plan For Legal Research and Analysis, by Christopher G. Wren and Jill Robinson Wren, available at many law-oriented bookstores.

5 — GENERAL PRECEPTS CONCERNING WEIGHT OF AUTHORITY

It's not enough simply to be able to point to words in a book that say what you want to prove. Different sources have varying degrees of persuasiveness, and certain kinds of beside-the-point remarks may have little weight, even in Supreme Court opinions.

A spectrum of significant authority, from weightiest to least important, is as follows: court opinions; statutes and codified rules; regulations; model codes; scholarly treatises; survey works (e.g., CJS and Am. Jur.); and dictionaries.

Within each category above, there are (naturally) still finer gradations. Appellate court opinions carry more weight than lower court decisions; on questions of federal law, federal court cases carry more authority than state cases, and vice versa on questions of state law. Similarly, when a federal law and a state law conflict, the federal law controls (under the Constitution's Supremacy Clause).

It is a common error to assume that everything in a judicial opinion carries the full weight of that court's authority. An opinion is nothing more than a court's decision resolving a *particular* dispute between 2 (or more) parties on the basis of the specific facts presented. Accordingly, the most significant part (or parts) of an opinion are those where the court answers directly the questions placed before it. (In Supreme Court opinions, the Court frequently identifies these questions early on with a phrase like "The question placed before us is whether or not . . . .") This answer (or answers) on the main legal issues in a case is called the "holding"; in other words, the holding is the proposition for which the case should be cited.

Opinions often contain what are called "dicta," remarks or conclusions not necessary to deciding the case before the court. (Judges include such comments, often in footnotes, either to note the existence of an interesting legal issue not fully presented in the case, or to suggest how the court might analyze such an issue in the future.) Dicta are not binding on lower courts (as is the holding in a case), and should not be relied on as conclusive statements of the law.

The distinction between holding and dictum is important because of a bedrock principle in American law known as "stare decisis". That phrase — Latin for "to stand on matters decided" — simply signifies that a court should, whenever possible, adhere to its own precedents (and to those of higher courts). (This rule promotes consistency in decisionmaking, which in turn allows individuals and businesses to structure their affairs in reliance on the belief that the law will be the same tomorrow as it is today.) In this context, a prior "holding" is precedent to be respected; dictum, by contrast, is not binding.

It is perhaps obvious that "stare decisis" is not an ironclad rule. Many famous Supreme Court decisions — notably Brown v. Board of Education — even overrule prior cases. It should be understood, however, that such deviations are the exception and not the rule. For a fuller discussion from the Supreme Court itself on the value of stare decisis, see Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992) (declining to overrule Roe v. Wade).

Note also that a single appellate case in a reporter may include several different opinions. These can be divided into three basic categories: majority opinions, concurrences, and dissents. Only the majority opinion constitutes binding law; concurrences and dissents, while they may contain discussions useful to later courts (and researchers) interested in the issues involved, have no legal effect.

Sometimes a judge may concur and dissent in a single opinion. Such opinions are usually labelled "concurring in part and dissenting in part" at the beginning. This happens when the judge agrees with some or all of the majority's conclusions, but disagrees strongly with at least one portion of the analysis.

On courts with more than 3 members — such as the Supreme Courts of the United States and the various states, certain intermediate state courts (such as New York's Appellate Division), and the federal Circuit Courts when sitting **en banc — there is also the phenomenon of the "plurality" opinion. A plurality exists when the largest voting bloc does not constitute a majority (e.g., 4 Justices on the U.S. Supreme Court). Plurality opinions are generally strongly persuasive as statements of the law, but are not binding authority; at the U.S. Supreme Court, for example, it is common for plurality opinions to be adopted as law by a majority of the court in a similar case a few years later.

One last point closely tied to the phenomenon of plurality opinions: It is essential to bear in mind that an appellate court has one overriding function — to affirm or reverse the decision of the lower court. Courts exist to resolve specific, concrete disputes (see the discussion re "dicta" above); thus, it is the "judgment" of the court (AFFIRMED or REVERSED, or sometimes VACATED) that is most important.

It is possible for a court — say, the Supreme Court — to affirm or reverse without reaching majority agreement on why a particular outcome is appropriate. When a Justice (or judge) "concurs in the judgment," s/he is agreeing with the outcome reached by the majority (or plurality), but with little or none of their reasoning.

For example, consider Prisoner X's appeal (on Fourth and Fifth Amendment grounds) from a Circuit Court decision affirming his conviction. Four Justices might conclude that Prisoner X should be freed because his Fifth Amendment rights were violated at trial; if another Justice disagrees with that reasoning, but finds that X's Fourth Amendment claim justifies voiding the conviction, then five Justices have agreed on the "judgment," and the conviction is reversed. Because there was no majority agreement, however, the case does not furnish binding precedent on the constitutional issues raised.